text:
    The People of the State of Illinois, Defendant in Error, v. Robert Johns, Plaintiff in Error.
    (Not to he reported in full.)
    Error to the City Court of Pana; the Hon. J. H. Fornoff, Judge, presiding. Heard in this court at the April term, 1914.
    Reversed and remanded.
    Opinion filed October 16, 1914.
    Statement of the Case.
    An indictment returned by a grand jury of the city of Pana charged Robert Johns with having made an assault with a deadly weapon, to wit, an iron seal, upon William H. Alexander with intent to inflict bodily injury, no considerable provocation appearing. A second count charged an assault made “under circumstances showing an abandoned and malignant heart and no considerable provocation appearing.” At the trial the evidence showed that the complaining witness and defendant, with other parties, were engaged in an oil enterprise; that defendant had obtained a lease of oil lands which had been assigned to the company; that such lease was in the possession of the secretary of the company, and that the assault occurred when an altercation arose, as to the possession of such lease, at a meeting of some of the parties.
    The jury returned a verdict of guilty of assault with a deadly weapon with intent to inflict a bodily injury, the circumstances showing an abandoned and malignant heart. The court overruled a motion for a new trial and assessed a fine of five hundred dollars against the defendant, who brought error.
    John E. Hogan and J. W. Preihs, for plaintiff in error.
    Harry B. Hershey and W. B. McBride, for defendant in error; E. E. Dowell, of counsel.

      Abstract of the Decision.
    1. Assault and batteby, § 38

      —when penalty excessive. On a prosecution for assault, where it appeared that such assault occurred during an altercation as to the possession of a lease, and the complaining witness was a partner in a conspiracy to get possession of the lease whether he was entitled to it or not, there was such provocation that a fine of five hundred dollars was excessive.
    2. Assault and batteby, § 33*—what instructions improper. On a prosecution for assault, the action of the court in telling the jury what the penalty was for the offense charged, when giving instructions, was improper, as such penalty was a matter with which the jury had nothing to do.
    3. Assault and batteby, § 24*—what may he considered in determining provocation. Words coupled with acts which are admitted to have been done in the carrying out of a conspiracy to obtain possession of property from other parties may be considered in determining whether an assault was without considerable provocation, where want of such provocation is a material averment of the indictment.
    4. Assault and batteby, § 33*—when erroneous instruction harmless. On a prosecution for assault, the giving of an erroneous instruction as to provocation is harmless, where the jury by their verdict acquitted the defendant of the charge of assault with intent to inflict bodily injury, no considerable provocation appearing.
    6. Assault and batteby, § 33*—when instruction misleading. On a prosecution for assault, the giving of an instruction that where personal property is wrongfully withheld from an owner, such owner can obtain possession by peaceable means, or if it comes to his hands he has a right to hold it against the world, was erroneous, being an abstract proposition which, under the facts, was misleading.
    6. Assault and batteby, § 33*—when instruction as to evidence improper. On a prosecution for assault, the giving of an instruction that the jury might disregard the evidence of the accused if he wilfully testified falsely to any material fact was error, as the instruction should have been made general and applicable to all witnesses.
    7. Assault and batteby, § 33*—when instruction not justified hy evidence. On a prosecution for an assault arising out of an attempt to obtain possession of a lease, the giving of an instruction submitting the question of how the lease was taken was error, since the court had excluded evidence as to such issue.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Thompson

delivered the opinion of the court


source: Caselaw Access Project

author: Mr. Presiding Justice Thompson

license: Public Domain

text:
    E. F. Colwell, Appellee, v. S. J. Swick, Appellant.
    1. Replevin, § 10

      —what is nature of statute. Section 2 of the Replevin Act (chapter 119, J. & A. If 9187) prohibiting actions of replevin at the suit of the defendant in execution, and section 4 of such Act (J. & A. If 9189) requiring an affidavit that the goods were not seized under any execution, are mostly declaratory of the common law.
    2. Justices oe the peace, § 117*—when judgment must he rendered. A justice of the peace at the conclusion of a trial before him must either render judgment or continue the cause to some definite time when he shall render judgment; and if he takes the case under advisement indefinitely, a judgment subsequently rendered by him is a nullity.
    3. Execution, § 33*—when execution void. An execution issued on a judgment of a justice which is void because of his taking the case under advisement indefinitely, is unauthorized and void.
    4. Replevin, § 10*—what property may he replevied. As a general rule, neither the defendant in execution nor any one claiming under him can maintain replevin against an officer levying an execution, as the property is in the custody of the law.
    5. Replevin, § 10*—when property taken under execution may he replevied. A writ in the form of an execution, which is void because the judgment on which it is issued is void is not an execution, and the party named therein may replevy property attempted to be taken under such void writ.
    Appeal from the Circuit Court of Christian county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 16, 1914.
    J. A. Merry, for appellant.
    Drennan & Bullington, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

In May, 1913, S. J. Swicli, a constable, by virtue of an execution issued by a justice of the peace, levied on certain chattel property belonging to E. P. Colwell. Colwell began a replevin suit before a justice of the peace to retake the property. A writ was issued and the property replevined. An appeal was taken from the judgment before the justice to the Circuit Court, where a motion was made to dismiss the case on the g’round that there was no sufficient affidavit and that the writ was issued without authority of law.

The' motion to dismiss was overruled and the case was then tried by the court without a jury. The court found for the plaintiff and judgment was rendered that he is entitled to the possession of the property replevined and for costs. The defendant appeals.

There is no controversy over the facts. William Waterman brought suit in a justice’s court against Colwell. The summons was returnable November 15th. On the return day the case was continued to November 16th, at 1 P. M., when the trial was begun. The docket contains this entry: “Trial heard and court takes the case under advisement. After examining court reports the court found in favor of plaintiff. "Judgment Twenty-five Dollars and costs of said suit.” Signed by the justice. The execution issued on this judgment was the execution levied on the property of appellant which he replevined. The affidavit for replevin as filed before the justice contained the statutory requirements except that it stated that the property had not been seized under any valid execution. The affidavit was amended in the Circuit Court by striking out the word “valid.” The second section of the Replevin Act (chapter 119, J. & A. 9187) provides: “No action of replevin shall lie at the suit of the defendant in any. execution or attachment to recover goods or chattels seized by virtue thereof, unless such goods and chattels are exempted by law. * * *” The fourth section (J. & A. ft 9189) provides: “The person bringingsuch action shall before the writ issues file * * * an affidavit showing that the plaintiff in such action is the owner * * * that the same has not been taken for any tax * * * nor seized under any execution or attachment against the goods and chattels of such plaintiff liable to execution * * These provisions of the statute are mostly declaratory of the common law. The question at issue is, had the goods been seized under an execution against the plaintiff within the contemplation of the statute?

It is contended that because the justice took the case in which the execution was issued under advisement, without fixing a time at which he would dispose of it, he lost jurisdiction and the judgment rendered and execution issued thereon are void, and that the replevin was not of property that had been taken on execution. The rule is that a justice of the peace, at the conclusion of a trial before him, must either render judgment or continue the cause to some definite time 'when he shall render judgment. If he takes the case under advisement indefinitely, a judgment subsequently rendered by him is a nullity. Hall v. Reber, 36 Ill. 483; Murray Bros. v. Churchill & Co., 86 Ill. App. 480. The record of the justice’s judgment in the case in which the execution was issued shows that after the trial was finished the case was taken under advisement indefinitely. No time was fixed when the parties were to meet to hear the judgment rendered. The docket does not show when the judgment was rendered. The postponement being to an indefinite time, the judgment is a nullity and void. There was no judgment on which an execution could issue, and the purported execution was therefore unauthorized and void. Ling v. Henry W. King & Co., 91 Ill. 571; Cummins v. Holmes, 109 Ill. 15.

Appellant cites McClaughry v. Cratsenberg, 39 Ill. 117, and Heagle v. Wheeland, 64 Ill. 423, and contends that these cases decide the question involved. In the McClaughry case, supra, the affidavit stated that the property had not been taken for ‘‘ any legal tax. ’ ’ The party suing out the replevin sought to test the validity of an act of the legislature, which manifestly could not be done in that way. In the Heagle case, supra, the original owner of property, which had been sold for the payment of a penalty or fine against the property taken up for running at large, in which notice to the unknown owner had been given by posting, sued out the writ to retake the property from the purchaser at the sale. The statute in force at the time that decision was rendered provided that the affidavit must state that the goods had not been taken for any tax, assessment or fine levied by virtue of any law of this State. The party suing out the writ recovered judgment for the possession of the property sold to pay a fine, and the Supreme Court affirmed the judgment on the ground that the justice’s judgment was void because the justice did not have jurisdiction and for the reason that the property was not in the custody of the officer but had been sold on an execution or order from the justice, the penalty having been assessed’ in favor of a town by a justice residing in the town, which at that time was prohibited by statute. A further reason for affirming the judgment was that the property replevied was not in the custody of the officer but had been sold to a third party from whom it was replevied.

The question of whether property attempted to be levied on under a void execution, or an execution issued on a void judgment, can be replevied by the owner of the property, who is the judgment debtor in the void judgment and execution, has never, that we can find, been squarely decided in this State. The question decided in the Heagle case, supra, however, has some analogy to this case. At common law it was contempt of the court issuing an execution, for the judgment debtor to replevy property taken under it. The general rule is well settled that neither the defendant in execution nor any one claiming under him can maintain replevin against an officer levying an execution, for the reason the property is in the custody of the law. Freeman on Executions, sec. 268; 34 Cyc. 1368. The rule is also announced by the courts of some States that where the judgment on which an execution issued is void, the defendant may maintain replevin for goods seized thereunder against the officer making the levy; and this is so, although the execution is regular on its face. 34 Cyc. 1369; Adams v. Hubbard, 30 Mich. 103; Balm v. Nunn, 63 Iowa 641; Karr v. Stahl, 75 Kan. 387; Iron Cliffs Co. v. Lahais, 52 Mich. 394; Breckenridge v. Johnson, 57 Miss. 371; Muller v. Plue, 45 Neb. 701; George v. Chambers, 11 M. & W. 149 (Eng.).

“A void judgment is in legal effect no judgment. From it no rights can be obtained, being worthless in itself all proceedings founded on it are equally worthless. It neither binds nor bars any one. All acts performed under it, and all claims flowing out of it are void.” Freeman on Executions, sec. 20; Campbell v. McCahan, 41 Ill. 45.

We are of the opinion that a writ in the form of an execution, which is void for the reason the supposed judgment on which it is issued is void, is not an execution, and that the party named therein may replevy property attempted to be taken under such void writ. A constable, a ministerial officer, is ordinarily not liable for damages for serving a writ, which is regular on its face and does not disclose a want of jurisdiction. Tuttle v. Wilson, 24 Ill. 561; Housh v. People, 75 Ill. 487. It is insisted by appellant that the remedy of the appellee is by a suit in trespass or trover against the person at whose instance the supposed execution was issued. If that party should be irresponsible then appellee, whose property has been taken by a void writ, would be remediless. The judgment is affirmed.

Affirmed.


text:
    Fred Morrison, Appellant, v. W. J. Elzy et al., Appellees.
    1. Chattel mortgages, § 29

      —what is effect of incorrect description of property. An incorrect description of a part of the property included in a chattel mortgage will not invalidate the mortgage as to the part correctly described.
    2. Chattel mortgages, § 30*—when description of property sufficient as notice. If the description of property in a chattel mortgage is such as will enable third persons to identify the property, aided hy inquiries which the mortgage indicates, then the mortgage is constructive notice to parties even who purchase in good faith.
    3. Chattel mortgages, § 30*—what is effect of false description of property. A description of property in a chattel mortgage which is wholly false voids the mortgage.
    4. Chattel mortgages, § 100*—when mortgagee estopped to deny validity of prior mortgage. Where a chattel mortgage to a hank described the cattle mortgaged as being subject to a prior mortgage, and the agent of the bank was informed by the mortgagor about the cattle being covered by the prior mortgage, such bank was in no better position than the mortgagor to object to the partially inaccurate description in the prior mortgage; and since the bank only received a conveyance of the equity of the mortgagor, it was estopped to deny the title of the prior mortgagee.
    5. Chattel mortgages, § 269*—when proceeds of sale should be held in trust. Where a bank was the holder of a second chattel mortgage and knew of the prior mortgage on such chattels, and it consented to a sale of the chattels and received the proceeds of the sale hy virtue of its mortgage, such proceeds were held in trust for the holder of the first mortgage.
    6. Appeal and error, § 1096*—what brief should contain. Briefs and arguments containing insinuations reflecting on the trial court should, on motion, be stricken from the records.
    Appeal from the Circuit Court of Shelby county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the April term, 1914.
    Reversed and remanded with directions.
    Opinion filed October 16, 1914.
    Rehearing denied December 2, 1914.

      Certiorari denied by Supreme Court (making opinion final).
    Statement Tt>y the Court. On October 15, 1910, W. J. Elzy bought from Fred Morrison sixty-one head of steers for $2,767.84, for which he gave Morrison a note bearing seven per cent, interest, payable July 1, 1911. To secure the payment of this note Elzy gave a chattel mortgage on these cattle in which the mortgaged property is described as “61 head of 2 yr. old short-horn steers.” The mortgage was properly acknowledged and recorded.
    On January 21, 1911, Elzy gave a promissory note to J. E. Dazey for $1,557.55, due four months after date with interest at seven per cent. This note was secured by a chattel mortgage on “sixty-two head of coming three year old steers, consisting of Hereford, Polled Angus and Short-Horn stock, subject to a former mortgage to Fred Morrison.”
    On May 22, 1911, Elzy renewed the note and mortgage to Dazey, the new note being for $1,593.90, due sixty days after date. The new chattel mortgage to Dazey described the stock the same as it was described in the first mortgage to him, and recited that it was given subject to a former mortgage to Fred Morrison.
    Dazey was cashier of the First National Bank of Findlay, and the notes and mortgages were given to him for the bank and were indorsed by him to the bank without recourse.
    On June 6, 1911, sixty-two head of steers and five cows were shipped by Elzy to the stock yards in Chicago for market. Dazey and Elzy were both in Chicago at the stock yards when the cattle were sold. The net proceeds of the sale of the cattle after deducting freight and expenses were $3,797.91. The proceeds of the sale of the cattle on Dazey’s demand were placed in the Ft. Dearborn Bank to be placed to the credit of Elzy in the First National Bank of Findlay. Morrison had no knowledge of the Dazey mortgage or the shipping of the cattle to Chicago.
    The First National Bank of Findlay on June 8th credited Elzy’s account with $3,587.65, the proceeds of the sale of the steers, and charged against Elzy’s account $1,600, the amount due on the note and mortgage given to Dazey; on June 12th it charged to Elzy’s account $200, that was due on a demand note executed by Elzy to Dazey and indorsed to the bank May 15, 1911, and $325, the principal of a note given by Elzy to the bank dated March 11, 1911, due June 11, with interest at seven per cent, after due.
    On June 10,1911, the Farmers’ Bank of Gays, which had recovered a judgment against Elzy for $522.21, caused a summons in garnishment to be issued and served on the First National Bank of Findlay as garnishee of Elzy. The bank answered in the garnishment suit that it had on deposit $522.21 in the name of Elzy.
    Morrison learned of the sale of the cattle and immediately went to Elzy and the Bank of Findlay and demanded that his note be paid from the proceeds of the sale of the steers. The officers of the bank told him that it had applied the proceeds on the payment of its mortgage note and other notes held by it and that it had been served with garnishee process for $522.21, and gave Elzy a check for $910.44, claiming that was the balance it had to Elzy’s credit. This check Elzy gave to the attorney for Morrison.
    In October, Morrison brought suit at law against the First National Bank of Findlay to recover for money had and received for his use. At the November term, after the trial of this suit had been begun, it was transferred from the law to the chancery docket with leave to plaintiff to file a bill in equity and make new parties.
    A bill in equity was filed by Morrison in which the First National Bank of Findlay, Elzy, Dazey, The Farmers Bank of Gays and the stock dealers in Chicago, who bought the cattle, were made parties defendant to the bill. It sets forth the facts hereinbefore stated, alleges fraud on the part of the First National Bank of Findlay and Elzy, and that complainant is not able to designate accurately, by reason of the mingling and adding to the number of cattle that complainant’s mortgage covers, what proportion of the money the sixty-two steers sold for, the sixty-one head of cattle mortgaged to complainant brought, nor the proportion of the expenses chargeable to each, and prays that complainant may have a prior lien on the proceeds of said cattle sold and that the claims of the parties be marshaled.
    The several defendants answered the bill. The answer of the First National Bank of Findlay and Dazey admits the taking of the notes and mortgages from Elzy to Dazey and by him assigned to the bank, and denies that the mortgages assigned to the bank were on the same cattle that were included in the Morrison mortgage. The answer denies all fraud, and sets up the garnishment proceedings. The Farmers Bank of Gays adopted the answer of the Bank of Findlay.
    Elzy answered admitting the giving of the notes and mortgages, but denies that the mortgages cover the same property; states that the claims of complainant against him have been fully settled and paid by the sale to complainant of cattle, mules and other property, and that the claims of complainant against him have also been settled by a discharge of the defendant in a proceeding in bankruptcy. Beplications were filed and at the trial the evidence was heard in open court. A decree-was entered dismissing the bill for want of equity, from which Morrison appeals.
    Chafee & Chew, J. G. Burnsides and George B. Rhoads, for appellant.
    Whitaker, Ward & Pugh and E. A. Richardson, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

The question in this case is whether the mortgage, given by Elzy to Morrison on sixty-one steers was such as will hold the proceeds of the sale of the stock which were received by the First National Bank of Findlay. The evidence shows that the description of the stock was not such that it could all be identified by a third party. The description in the Morrison mortgage is: “61 head of 2 yr. old short horn steers.” The proof shows that the cattle were of mixed stock. The greater number of the steers were red or roan two years old, which were half or more than half short horns. There were a number of the steers in which Hereford or Polled Angus was the prevailing type. They were all two-year-olds, and were lotted in Chicago, and sold as short horns or Herefords.

Dazey, the cashier of the bank to whom the mortgage and note assigned to the Bank of Findlay were given, had no interest in them. The description of the prop- - erty is the same in both mortgages given to Dazey and both contain the provision that they are given subject to a former mortgage to Morrison. The agent of the bank who made the loan and accepted the mortgage was told at the time that Morrison had a prior mortgage on the stock on which the bank was taking a mortgage.

. The joint answer of the bank and Dazey states, “that many, if not all of the cattle so shipped were not mentioned in any of said mortgages unless it be that they were mentioned in the last mortgage given to the said Dazey,” and “alleges that said Dazey hearing of a proposed shipment of cattle by the said Elzy from Findlay to Chicago, went to Chicago for the purpose of protecting the rights of the First National Bank of Findlay, if need be, in the mortgage which it then held executed by the said Elzy and for no other purpose.” The record shows that the same counsel appear for, filed the answers for and represent the bank, Dazey and Elzy.

The preponderance of the proof is that the steers sold by Morrison to Elzy were kept on a farm, known as the Lanham farm, with some younger cattle and that none of the Morrison cattle were sold at the public sale that Elzy had in December, 1910; that these cattle were included in the Dazey mortgage with another steer; that the steers sold in Chicago by Elzy were the ones he bought of Morrison, and that Dazey, in the stock yards at Chicago, demanded by virtue of the mortgage held by thó bank that the proceeds of the sale of the cattle in Chicago be deposited in the Bank of Findlay, when Elzy stated that the Morrison mortgage on these cattle must be paid. The conclusion is inevitable that the Bank of Findlay received the proceeds of the cattle only because of its second mortgage.

The settlement of the Chicago commission house that sold the stock shows that sixty-six cattle were sold for Elzy on June 7th for $3,941.89, of which five were cows sold on the account of a neighbor for $251.24; that the expenses of the sale including freight and commissions were $143.98; and that the net proceeds of the sale of the sixty-one steers were $3,546.17, without maldng any deduction from the expense account for the expenses chargeable against the five cows. From this statement it would appear that only sixty-one steers were shipped to Chicago.

An incorrect description of a part of the property included in a chattel mortgage will not invalidate the mortgage as to the part correctly described. If the description of the property in a chattel mortgage is such as will enable third persons to identify the property, aided by inquiries which the mortgage indicates, then the mortgage is constructive notice to parties even who purchase in good faith. A description wholly false voids the mortgage, but if a part of the description only is false, this may be rejected and the mortgage will take effect, if the remainder of the description is sufficient, aided by inquiries which the mortgage suggests, to enable the property to be identified. Boyle v. Miller, 93 Ill. App. 627, 5 Am. & Eng. Encyc. of Law, 958; 6 Cyc. 1036. “Persons with actual knowledge of the property covered by the mortgage stand in no better position than the mortgagor in respect to their right to object to an insufficient description.” 6 Cyc. 1023, and authorities there cited.

Such of the steers as were grade short horns were accurately described. All the steers were described as two-year-olds. These steers included in the Morrison mortgage were all two-year-olds and were kept and fed by themselves, except that there were some yearling cattle with them.

The- mortgage to the bank described the cattle mortgaged to it as subject to the Morrison mortgage. The agent of the bank who took its mortgages having been informed by Elzy at the time the first bank mortgage was taken about the cattle being covered by the Morrison mortgage, the bank stands in no better position than Elzy to object to the partially inaccurate description in the Morrison mortgage. The bank is estopped to deny the title of Morrison for the reason that all the title the bank received was a conveyance of the equity of Elzy. The bank being- represented at the sale in Chicago, consenting to it and receiving the proceeds of' the sale of the mortgaged cattle by virtue of its mortgage, must be held to hold the proceeds in trust for the holder of the first mortgage. The net proceeds of the sale of the cattle sold in Chicago were more than the amount due on the Morrison note, and the balance unpaid on-that note must be paid from the proceeds of the sale.

There is an issue in the case as to whether or not Morrison was paid anything on the note dated October 15, 1910, by the purchase of stock at the sale held by Elzy in December, 1910. Morrison testified that the price of the cattle and other property bought by ffim at that sale was credited on a $2,000 note and mortgage held by him against Elzy, while Elzy testified that it was credited on the note of October 15, 1910. We express no opinion concerning this issne.

Counsel for appellant in their original argument and in their reply have gone out of the record to abuse the trial court by insinuations reflecting on the court which are unseemly and unprofessional. Such practice should not be passed by without comment. Briefs and arguments containing such insinuations, on motion, should be stricken from the files.

The decree is reversed and the cause remanded with instructions to state the account as to the amount due and unpaid on the noté of October 15, 1910, and to render a decree for the balance due on that note to be paid by the First National Bank of Findlay out of the proceeds of the sale of the sixty-one steers covered by the mortgage given by Elzy to Morrison.

Reversed and remanded with directions.


author: Mr. Presiding Justice

text:
    Calvin Petty, Appellee, v. Hugh Maddox, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Coles county; the Hon. William B. Scholfield, Judge, presiding. Heard in this court at the April term, 1914.
    Reversed and remanded.
    Opinion filed October 16, 1914.
    Statement of the Case.
    Suit begun before a justice of the peace by Calvin Petty against Hugh Maddox to recover damages for the killing of a horse belonging to plaintiff which was struck, while running at large on a public highway in the country about midnight, by an automobile driven by the defendant. An appeal was taken from the judgment of the justice to the Circuit Court, where a jury returned a verdict in favor of plaintiff for $128, on which judgment was rendered, and the defendant appealed.
    Abstract of the Decision.
    1. Infants, § 36

      —what is effect of failure to appoint guardian ad litem.. While a judgment against a minor, where no guardian ad litem has heen appointed, is not void hut only voidable, no steps in a case should he taken against a minor until a guardian ad litem, has been appointed, where a guardian does not appear and defend for him.
    2.' Automobiles and garages, § 3*—what instructions are proper in action for death of horse. In an action for the killing of a horse by an automobile, an instruction requiring the operator of an automobile to use such care and caution as to prevent injury to the person or property of other persons, and rightfully on the highway, was erroneous as making such operator an insurer of the property of others.
    3. Automobiles and gabages, § 2*—what is duty of operator of automobile. An operator of an automobile is required to use ordinary and reasonable care in the running of the machine, and must not drive it at greater speed than is reasonable and proper, having regard to the traffic and use of the highway.
    4. Automobiles and garages, § 2*—what speed excessive. The operation of an automobile at a rate of speed exceeding twenty-five miles an hour in the country is prima facie evidence of negligence.
    5. Automobiles and gabages, § 3*—when instruction in action for injuries erroneous. In an action for the killing of a horse by an automobile, the giving of instructions argumentative in their nature and which required the jury to consider certain things, “if shown by a preponderance of the evidence together wth all facts and circumstances that may be proven by a preponderance of the evidence,” was error, as the jury should consider not only such facts as are shown by a preponderance of the evidence but all the evidence and facts and circumstances in evidence.
    Scholfield, J., took no part in this decision.
    Charles C. Lee and F. C. Winkler, for appellant.
    T. N. Coper, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice

Thompson delivered the opinion of the court.


text:
    Mary E. Lee, Administratrix, Appellee, v. Toledo, St. Louis & Western Railroad Company, Appellant.
    1. Master and servant, § 582

      —what must be shown to prove negligence, under Federal Employers’ Liability Act. In an action under the Federal Employers’ Liability Act for the death of a locomotive fireman caused by a derailment, the plaintiff was not required to prove the exact point where the locomotive left the track nor that, beyond a doubt, it was derailed because- of defective ties, and since the evidence showed a large percentage of rotten ties, it was a legitimate inference that the train was derailed by the rails spreading or giving away because the ties did not properly support them, wherefore a verdict of negligence was supported by the evidence.
    2. Master and servant, § 622*—what evidence is admissible to show negligence. In an action for the death of a locomotive fireman caused by a derailment, evidence of the condition of the ties that were splintered and mashed by the engine was competent, when confined to the ties under the train and which it had passed over.
    3. Master and servant, § 622*—what conditions may be shown to prove negligence. In an action for the death of a locomotive fireman caused by a derailment, the parties were permitted to show the condition of the roadbed at the time of, prior to and immediately after the accident, but evidence of what was done after the accident was not admissible, since if changes were made they were apt to be interpreted as an admission of negligence, and if the defendant was permitted to offer evidence on such question, the plaintiff would be entitled to rebut such evidence, and it would raise an immaterial issue.
    4. Master and servant, § 622*—lohen cross-examination improper. In an action for the death of a locomotive fireman caused by a derailment, where a witness testified to the condition of the road just prior to the accident, a question asked of such witness as to what was done five years prior to that time was not proper cross-examination, and such question was properly excluded.
    5. Master and servant, § 666*—what evidence as to cause of accident improper. In an action for the death of a locomotive fireman caused by a derailment, it was not error to sustain an objection to a question put to an expert witness as to what was the cause of the accident, as such cause was an issue for the iury.

      Appeal from the Circuit Court of Coles county; the Hon. E. R. E. Kimbbough, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 16, 1914.
    M. A. Tipsword and C. E. Pope, for appellant; Charles A. Schmettau, of counsel.
    S. S. Anderson and H. A. Neal, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

Mary E. Lee, administratrix of the estate of Robert E. Lee, deceased, brought this suit to recover damages sustained by reason of the death of the intestate averred to have been caused by the negligence of the Toledo, St. Louis & Western Railroad Company.

The declaration consists of one count and avers that on August 23, 1911, the defendant operated a railroad from the city of Charleston, Illinois, to the city of Frankfort, Indiana, and was engaged in interstate commerce; avers the passage of the Federal Liability Act entitled: “An Act relating to the Liability of Common Carriers by Railroad to their employees in certain cases, ’ ’ setting out the act in its entirety; avers that the intestate was a locomotive fireman in the employ of the defendant and was performing his duties on a certain passenger train, engaged in interstate commerce, running from Charleston to Frankfort; that it was the duty of defendant to exercise reasonable care to provide a reasonably safe track on which to operate said train; that in disregard of said duty defendant negligently furnished a defective track with insufficient rails, and rails not properly spiked to the ties and decayed and rotten ties, which defects defendant knew or in the exercise of reasonable care would have known, and that the locomotive by reason of said defects was thrown from the track and the intestate while in the exercise of reasonable care in the performanee of his duties was killed, etc. A jury returned a verdict for plaintiff for sixty-five hundred dollars, on which judgment was rendered and the defendant appeals.

The evidence shows that Robert E. Lee was a fireman on a locomotive engine that was hauling an eastbound passenger train engaged in interstate commerce, and that the engine left the track and turned over, killing Lee while he was engaged in the line of his duty.

It is contended that there is no proof of negligence on the part of appellant and that the court erred in refusing a peremptory instruction requested by it. The proof shows that the engine and tender and several cars left the track and turned over. The evidence does not disclose with any degree of certainty where the first derailment was. At one place a wheel had run on the top of a rail and marked it for several feet; there is nothing to show whether it was a wheel-mark of the locomotive or the tender or a car. The track was badly torn up for some distance after the train left it and the ties and rails displaced. The evidence of Dr. J. L. White is that “there were no solid ties from the engine back to where it went off the track and there were some defective ties still further back. Ties that wouldn’t hold spikes. ’’ John Replogle, after testifying that there were many decayed ties, was asked: “What per cent, of the ties where the train apparently left the track and west of there were unsound in your judgment?” and answered that: “There were two-thirds of them that he would not count good ties.” This witness further testified that the engine apparently left the track when the rails spread apart twenty-five or thirty feet west of where the rear end of the train was when it was stopped. At this point the ties were rotten; the rails had slipped apart over the rotten end—nothing to hold them. J. M. Simms testified that ninety per cent, of the hardwood ties were decayed; the spikes did not seem to hold; in a portion of the soft wood ties and spikes had been reset as many as three times. ‘ ‘ The section men went along there and marked these ties to be taken ont before the wreck. They scalped them with a foot adz, the bad ones. At this point where the derailment was, about half the ties were scalped.” Three other witnesses testified to the same effect. Some of the witnesses for appellant testified that some of the ties were in bad condition; there were a g’ood many that were not first class.

There- were some witnesses who testified for appellant that there were no rotten ties. Appellant argues that rotten ties are only shown by the evidence to have been in the track where it was torn up, east of where the engine was derailed. As we understand the evidence a large percentage of the ties are shown to be rotten or defective, not only where the track was torn up, but back as far as three hundred feet west of where it was torn up. The appellee did not have to prove the exact point where the locomotive left the track nor that, beyond a doubt, it was derailed because of the defective ties. The proof showing such a large percentage of rotten ties, it is a legitimate inference that the train was derailed by the rails spreading or giving away because the ties did not properly support them and keep them in their proper place. On a review of all the evidence, this court cannot say that the verdict, which was approved by the trial court that saw the witnesses testify, is not sustained by the evidence.

It is contended that the court erred in permitting appellee to show the condition of the ties that were splintered and mashed by the engine and cars after the engine was derailed. The evidence for appellee was confined to the ties that were under the train and west of it. No good reason is shown why everything that pertained to and was a part of the accident in which the intestate was killed was not competent.

It is also assigned for error that the court sustained objections to competent evidence offered by appellant. The appellant sought to prove what repairs were made to the roadbed after the accident—that no substantial changes were made. The parties were permitted to show its condition at the time of, prior to and immediately after the accident. Evidence of what was done after the accident is not admissible for the reason that if changes were made they are apt to be interpreted by the jury as an admission of negligence (City of Bloomington v. Legg, 151 Ill. 9; Howe v. Medaris, 183 Ill. 288; Chicago P. & St. L. Ry. Co. v. Lewis, 145 Ill. 67); and if appellant was permitted to offer evidence on that question then appellee would be permitted to rebut such evidence and it would raise an immaterial issue. On the cross-examination of the witness Simms, appellant asked if the roadbed had not been rebuilt in 1906 and 1907. The court sustained an objection to the question. The witness had only testified to the condition of the roadbed just prior to the accident; what was done five years prior to that time was not cross-examination and the ruling was proper.

It is also contended that it was error to sustain an objection to a question put to one of appellant’s expert witnesses. “Were you able to ascertain from the observation you made and that others made the cause of the accident?” The cause of the derailment was the issue to be tried by the jury. The court in sustaining the objection remarked it was proper for the witness to tell what he saw and discovered. There was no error in sustaining the objection.

Appellant contends that there was error in giving several instructions given at the request of appellee. On a careful examination, the objections appear to be hypercritical and without merit, and it would serve no useful end to review them at- length. Finding no reversible error in the case the judgment is affirmed.

Affirmed.


text:
    Louis Heilbrunn and David Kahn, trading as Heilbrunn & Kahn, Appellants, v. J. J. Ellsworth and Harry McNair, trading as Ellsworth & McNair, Appellees.
    1. Property, § 27

      —when person is presumed owner. A party. In possession of personal property is presumed to be the owner of it, and where such owner puts another in possession and clothes him with the indicia of ownership, he loses his right thereto, as against creditors of that person.
    2. Attachment, § 360*—when sureties are estopped from attaching bond. Obligors on a forthcoming bond are estopped to deny the recitals and admissions in the bond.
    3. Attachment, § 317*—what is effect of plea preventing inter-pleaders from claiming property. Where certain property and money, seized by a writ of attachment, was released because of the giving of a forthcoming bond, and a partnership interpleaded and claimed the property, a plea that the sureties on the forthcoming bond executed the same at the special instance and request of the interpleaders, and that the undertaking was that of the partnership, was one of estoppel by record or deed, the bond being under seal.
    4. Attachment, § 317*—when interpleaders are estopped from claiming property. Where personal property, seized by a writ of attachment, was released because of the giving of a forthcoming bond, and it appeared that such bond was the undertaking of a partnership which interpleaded and claimed the property, it was not permissible for such partnership or its surety to obtain the property under the outstanding title of a third person, when they had agreed to hold it under the sheriff.
    5. Principal and surety, § 8*—what is extent of liability of surety. The liability of sureties follows that of the principal, and if the obligation is valid against the principal it is valid against the sureties.
    Appeal from the City Court of Mattoon; the Hon. John McNutt, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 16, 1914.

      Certiorari denied by Supreme Court (making opinion final).
    Vause & Hughes, for appellants.
    Henley & Douglas, for appellees; Spencer Ward, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number,

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

J. J. Ellsworth and Harry McNair, partners doing business under the firm name of Ellsworth & McNair, caused a writ of attachment to be issued out of the Mattoon City Court and levied on certain horses in the possession of William Fink, the defendant in the attachment suit, and about seventeen hundred dollars in the National Bank of Mattoon was also garnisheed as the money of Fink.

Fink gave a forthcoming bond under section 14 of the Attachment Act (J. & A. % 505), with G. S. Richmond and W. H. Ownby as sureties, and the horses levied on were returned to Fink and the money attached in the bank released. Thereafter Louis Heilbrunn and David Kahn, partners doing business under the name of Heilbrunn & Kahn, filed an interpleader in the attachment suit alleging that the money attached and the horses levied on were at the time of the levy and still are the money and property of Heilbrunn & Kahn, and not the property of Fink.

To this interpleader, Ellsworth & McNair filed a plea averring that Heilbrunn & Kahn caused George S. Richmond and W.. H. Ownby to become sureties on the forthcoming bond, which was delivered to the sheriff, under and by which the property levied upon was redelivered to Fink, the defendant in the attachment suit, in whose possession the property was at the time the writ was levied; that said Richmond and Ownby executed said bond as sureties at the special instance and request and by the procuration of said Heilbrunn & Kahn, “which said forthcoming bond was for the use and benefit of and was in law the undertaking of Heilbrunn & Kahn a"s sureties.” The plea further avers that Richmond and Ownby, who so executed said forthcoming bond, executed and delivered the same in their own names, but in fact solely and wholly for and on behalf of Heilbrunn & Kahn. The plea sets forth the bond in haec verba and concludes, “by reason whereof said Heiibrunn & Kahn became and are now estopped and precluded from claiming" or setting up title in any other than said Fink, in any of the property so levied .upon or seized by said attachment writ, and this the defendants are ready to verify, etc.”

Heiibrunn & Kahn filed a general demurrer to the plea which was overruled, and abiding by their demurrer judgment was rendered against them on the plea that they take nothing by their interpleader, etc., and for costs. Heiibrunn & Kahn prosecute this appeal from that judgment.

The only question raised on this appeal is the sufficiency of the plea of estoppel. The substance of the plea is that the interpleading claimants of the property and money induced and procured Richmond and Ovnby to become sureties on the forthcoming bond given to the sheriff, whereby the property attached was redelivered to the defendant in the attachment. The conclusion of the bond is: “Now, if the said property and money shall be forthcoming to answer the judgment of the court in said suit then this obligation to be void. Otherwise to remain in full force and effect.”

The party in possession of personal property is presumed to be the owner of it, and where the owner of personal property puts another in possession and clothes him with the indicia of ownership, he loses his right thereto, as against creditors of that person. Gilbert v. National Cash Register Co., 176 Ill. 288. The forthcoming bond recites the issuing of a writ of attachment against the estate of Fink. The return on the attachment shows the levying of the writ on the property as the property of Fink. The forthcoming bond recites the issuing of the writ of attachment against the estate of Fink and the levying of the writ on the property as the property of Fink, and that Fink is desirous of regaining possession of the property, and that the property shall be forthcoming to answer the judgment in said suit.

The obligors on the bond are estopped to deny the recitals and admissions in the bond. Crisman v. Matthews, 2 Ill. 148. Obligors and sureties are es-topped to set up defenses which contradict the recitals of the bond. McCarthy v. Chimney Const. Co., 219 Ill. 616; Harding v. Kuessner, 172 Ill. 125. The plea avers that the sureties on the bond executed the same at the special instance and request and by the procuration of Heilbrunn & Kahn and for their benefit ; that it was in law the undertaking of Heilbrunn & Kahn as sureties; and that they executed it solely and wholly for and on behalf of Heilbrunn & Kahn. The bond being under seal, the plea is one of estoppel by record or deed. “It was not admissible for him or his surety to get possession of the property by the execution of the forthcoming bond, and then refuse to deliver it to answer the judgment of the court # * * because it belong to a third person. * * * Neither the defendant nor the surety had a right to benefit himself by claiming to hold the property under the outstanding title of a third person, while they had agreed to hold it under the sheriff.” Gray v. Mac-Lean, 17 Ill. 404; Case v. Steele, 34 Kan. 90; Sprigg v. Bank of Mt. Pleasant, 35 U. S. 261.

The liability of the sureties follows that of the principal, and if the obligation is valid against the principal it is valid against the sureties. The demurrer admits the averments of the plea to be true. The plea averring that the sureties gave the bond solely and wholly for Heilbrunn & Kahn, Heilbrunn & Kahn can- . not set up a claim to the property any more than the sureties could. The court properly overruled the demurrer of Heilbrunn & Kahn to the plea to the inter-pleader. The judgment is affirmed.

Affirmed.


text:
    H. L. Barnes, Plaintiff in Error, v. Ora Ward et al., Defendants in Error.
    1. Fraudulent conveyances, § 109

      —when debtor may prefer creditor. The right of a debtor to pay one creditor in preference to another, or to transfer property in satisfaction of or tó create a lien upon it for the security of a particular debt, in preference to and to the exclusion of other liabilities, always existed at common law.
    2. Fraudulent conveyances, § 200*—when mortgage cannot be set aside. A bill by a creditor to set aside a third mortgage is properly dismissed for want of equity when it appears that there was a full consideration for such mortgage, since the debtor had the right to secure the mortgagee in preference to the plaintiff creditor.
    3. Mortgages, § 50*—when mortgage delivered. Evidence of delivery of a mortgage to the recorder for the mortgagee, and the delivery of the recorder’s receipt and the note to the mortgagee on the same day, is sufficient to show a delivery of the note and mortgage to the mortgagee and an acceptance of them by him.
    4. Mortgages, § 375*—when strict foreclosure proper. As a general rule, strict foreclosures are not favored in equity, but such foreclosure may be allowed where there are other creditors and the property is of less value than the debt, the mortgagor is insolvent and the mortgagee is willing to take the property in discharge of his debt.
    5. Costs, § 6*—when taxation erroneous. Where a creditor brought a bill to set aside a mortgage he was properly taxable with all costs caused by the filing of-the original bill and the trial of the issues made thereon, but it was error to tax costs properly, arising out of a cross-bill for foreclosure and the issues thereon to such complainant.
    Error to the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed October 16, 1914.
    Statement by the Court. This is a bill in chancery filed January 24, 1912, by H. L. Barnes against Ora Ward, Bernice Ward and J. S. Ward to set aside a mortgage dated October 23, 1911, executed by Ora Ward and his wife, Bernice, to his father, J. S. Ward, on thirty acres of land occupied by the mortgagors as their home in McLean county. The bill alleges that Barnes on October 28,1911, recovered a judgment in the Circuit Court of McLean county against Ora Ward for $642.56, and on the same date he recovered another judgment for $2,375.70 against Ora and Bernice Ward; that at the time of the rendition of said judgments Ora Ward was the owner in fee simple of said land subject to two mortgages aggregating $4,500; that on October 23, 1911, Ora and Bernice Ward, for a pretended consideration of $4,000, made and recorded a third mortgage upon said real estate to J. S, Ward, father of Ora Ward, thereby disposing of the full value of their equity without any consideration, with intent to defraud complainant and hinder and delay him in the collection of his judgments; that said judgments are for an indebtedness of said Ora Ward that existed before the making of said third mortgage ; that on October 28, 1911, executions were issued on said judgments to the sheriff of McLean county commanding him that he cause to be made the sum of $3,027.26, the amount of said judgments; that said executions were served by said sheriff on the defendants on the day of their date, and are still in his hands unsatisfied; that said note and mortgage dated October 23, 1911, were not delivered to J. S. Ward prior to the rendition of said judgments; that said J. S. Ward is fraudulently holding said mortgage to cover up the property of said Ora Ward; that said Ora and Bernice Ward have no personal property or real estate except the real estate covered by said mortgage; and that said judgments are still in full force and entirely unpaid. The bill calls for answers under oáth and to interrogatories thereto attached, and prays that said third mortgage be set aside and declared void. The defendants filed their several answers to said bill, under oath, in which the defendants set up a full consideration for the $4,000 note and' mortgage dated October 23, 1911, and give the details of the business transactions of the defendants. They allege the delivery of the note and mortgage to J. S. Ward on the day of their date and deny all fraud.
    J. S. Ward on March 25,1912, filed a cross-bill praying for a strict foreclosure of the two prior mortgages and the third mortgage which the original bill prays to have vacated. The cross-bill alleges that cross complainant is the owner of the three notes and mortgages. The first two notes and mortgages were past due before the cross-bill was filed; the third mortgage secures a $4,000 note due in five years from October 23, 1911. It contains a provision that the mortgagors will cause the buildings on said premises to be insured for their full insurable value and the policy assigned to the mortgagee, and on failure to insure, at the option of the legal holder of said note, the indebtedness secured may be declared due and payable at once. The cross-bill further alleges that the mortgagors have failed to insure said buildings and cross complainant has been compelled to insure them, and that there is now due on said three notes and mortgages $8,253.19; that said Ora and Bernice Ward are insolvent and said mortgaged premises are meager and scant security and insufficient to pay the amount due. Answers to the cross-bill were filled by Ora Ward, Bernice Ward and H. L. Barnes.
    The issues were joined on both bills and the cause was referred to the master to report the evidence with his conclusions. He reported the value of the mortgaged premises to be $7,500; that there was due J. S. Ward from Ora and Bernice Ward, $8,603.99 on the three notes and mortgages and that the equities were with the cross complainant and the defendants in the original bill. The complainant in the original bill filed objections before the master which were overruled. The objections were ordered to stand as exceptions before the court, and on a trial were again overruled and a decree entered dismissing the original bill for want of equity, and finding that the amount due J. S. Ward on the notes secured by the mortgages so much exceeds the value of the mortgaged property that no benefit can inure to defendant or any creditor from a sale of the premises, and that Ora Ward and Bernice Ward within five days convey the premises to J. S.Ward in full satisfaction of said mortgage indebtedness, and that upon H. L. Barnes paying to J. S. Ward said $8,603.99, with legal interest from the date of the decree together with the costs, within six months from the date of this decree, that J. S. Ward convey said premises to H. L. Barnes, and that H. L. Barnes pay the costs of this suit. H. L. Barnes has sued out a writ of error to review the decree.
    A. M. Hester, for plaintiff in error; Welty, Sterling & Whitmore, of counsel.
    DeMange, Gillespie & DeMange, for defendants in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

It is contended that the court erred in dismissing the original bill for want of equity. It is not controverted but that the two first mortgages, one for $2,000 to Sophia Lingg, assigned to J. S. Ward, and the other to J. S. Ward for $2,500, are bona fide and were given, one for part of the purchase money, and the other to obtain money with which to make the cash payment at the time the mortgagors purchased the real estate covered by these mortgages. The evidence shows conclusively that on October 23, 1911, when the note for $4,000 and the mortgage securing it were executed, Ora Ward was indebted to J. S. Ward in the further sum of $4,000—$2,000 of which was for a liability on a note, which J. S. Ward, as surety for Ora Ward, had executed to plaintiff in error, on the promise of Ora Ward to secure him by a mortgage on the premises. “The right of a debtor to pay one creditor in preference to another, or to turn out property in satisfaction of or to create a lien upon it for the security of a particular debt, in preference to and to the exclusion of other liabilities, always existed at common law.” Farwell v. Nilsson, 133 Ill. 45; Merchants’ Nat. Bank v. Lyon, 185 Ill. 343; Murry Nelson & Co. v. Leiter, 190 Ill. 414. There was no error in dismissing the original bill for want of equity since there was a full consideration for the third mortgage, and Ora. Ward had the right in good faith to secure his father to the exclusion of the plaintiff in error. Whatever may be said of the justice or equity of this rule, its existence is too firmly established to be questioned. Morriss v. Blackman, 179 Ill. 103.

It is contended that the note and mortgage were not delivered before the judgments were rendered. J. S. Ward was seventy-five years of age, with poor eyesight and forgetful, and for some time prior to the execution of the note and mortgage had been insisting that he be secured. He was not present when the note and mortgage were executed, but had been informed by the mortgagors that they were going to Bloomington to execute them, and they were prepared and executed at his request. Ora Ward testified that his father was uneasy and that on October 22nd he told his father that he would go and give T-nm a mortgage and his father said, all right go to Lester Martin, an attorney, and have him attend to it and that he, J. S. Ward, would pay the expense; that Martin prepared the papers and sent Ora Ward to have the mortgage recorded; that Ora Ward did record the mortgage and directed it to be mailed to his father at Colfax, when recorded, and got the recorder’s receipt and the note, and they were delivered to J. S. Ward by Bernice Ward the evening of October 23rd. Bernice Ward testified to the same effect. The proof shows a delivery of the mortgage to the recorder for the mortgagee and the delivery of the recorder’s receipt and the note to the mortgagee the same day; these facts constituted a delivery of the note and mortgage to the mortgagee and an acceptance of them by him.

It is also contended that the court erred in decreeing a strict foreclosure. The decree is an unusual one, in not giving Ora Ward and Bernice Ward any time in which to redeem the premises, and in commanding them “to convey by warranty deed within five days from the rendition of this decree the said premises to J. S. Ward in full satisfaction of the said indebtedness secured by said mortgages,” but they have neither assigned any error nor are they making any complaint about the decree.

The decree gives H. L. Barnes, the judgment creditor, six months from the entering of the decree within which to pay to J. S. Ward the sum of $8,603.99 with legal interest and the costs, and directs that upon the making of such payment J. S. Ward convey said premises to H. L. Barnes by a proper conveyance free from the liens of said mortgages or any incumbrances arising out of any act of said J. S. Ward.

The original bill, which is verified by plaintiff in error, alleges that by the execution of the third mortgage Ora and Bernice Ward by such act did then and there part with the full value of their equity to a relative. The cross-bill alleges that the mortgaged premises are meager and scant security for the sum of $8,253.10, the amount due at the time the bill was filed, and wholly insufficient to pay the same.

Ora and Bernice Ward in their answer to the cross-bill agree that J. S. Ward may take the mortgaged premises in discharge of the amount due him, freed from homestead and every interest of said defendants in the premises, and it is admitted by all parties that the mortgagors are and were insolvent on October 23, 1911.

The plaintiff in error in his answer to the cross-bill admits that the mortgaged premises are meager and scant security for a bona fide indebtedness of $8,253.10, as set forth by cross complainant, but says said premises are ample security for the indebtedness really owing by Ora Ward, secured by mortgage.

The evidence shows that the property is worth from $7,000 to $7,500, no witness puts it over $7,500 and Eoy Barnes, who is a banker and the son of plaintiff in error, and who made the loans for plaintiff in error, testified that Ora Ward tried to sell it to him for $8,500 in payment of his indebtedness before the $4,000 mortgage was given, but that he was asking too much. The master found the mortgaged premises to be worth $7,500, and there is no exception to that finding. It is clear that the value of the property was less than the, mortgage incumbrance against it.

While it is a general rule that strict foreclosures are not favored in equity where there are other creditors, yet the r-ule is not an arbitrary oiie and there are exceptions to it. A strict foreclosure may be allowed where there are other creditors and the property is of less value than the debt, the mortgagor is insolvent and the mortgagee is willing to take the property in discharge of his debt. Illinois Starch Co. v. Ottawa Hydraulic Co., 125 Ill. 237. The object of giving time for redemption is to make the property pay as much of the debts of the mortgagor as the property is worth. It was said in the case last cited: “The court of equity will not, by a decree of strict foreclosure, sacrifice the just and equitable rights of creditors, or of those holding second liens, or the equity of redemption. Neither will the court of conscience sacrifice or endanger the rights of a complainant who comes within her portals with a just cause, and holding the oldest and preferred lien and best equity, for the bare possibility- of a wholly improbable benefit to one having a second lien and subordinate equity.” Moffett v. Fartwell, 123 Ill. App. 528; affirmed in 222 Ill. 543.

The evidence concerning the value of the property and the admission of plaintiff in error that it was worth less than the amount of the mortgages against it show that the plaintiff in error was not harmed by the strict foreclosure. To have foreclosed the mortgages in the ordinary method would have made a large bill of unnecessary and useless costs. The mortgagors consented to a strict foreclosure and the mortgagee agreed to accept the property in satisfaction of his debt. Plaintiff in error might redeem the same and get the title of the Wards with immediate possession, disincumbered of the homestead of the Wards, without permitting the mortgage debt to be increased by the accumulation of interest and the costs of the mortgage sale. The court gave plaintiff in error six months to redeem from the decree. There was no error against plaintiff in error in the granting of a strict foreclosure.

The court taxed all the costs of the case against plaintiff in error. The mortgagee to secure a strict foreclosure agreed to accept the property in satisfaction of the mortgage debt and costs of the foreclosure. There was no reason why the costs that appertain to the foreclosure should have been taxed against plaintiff in error. The plaintiff in error was properly taxable with all costs caused by the filing of the original bill, and the trial of the issue made thereon. The court erred in taxing all the costs properly arising out of the cross-bill and the issue thereon to plaintiff in error. If there were costs made in said matter by the defense of plaintiff in error against the strict foreclosure that otherwise would not have been made, such costs were taxable to plaintiff in error in the discretion of the court. The decree is affirmed in all particulars except. as to the taxation of costs; that part of the decree taxing the costs against the plaintiff in error is reversed and the cause remanded with instructions to apportion the costs and give plaintiff in error ninety days after the entering of the decree in which ,to redeem if he shall so desire. The costs of this writ of error will be taxed one-half to J. S. Ward and one-half to plaintiff in error. -

Affirmed in part, reversed in part and remanded with directions.


text:
    John French, Appellee, v. The Cloverleaf Coal Mining Company, Appellant.
    1. Appeal and error, § 198

      —when question of validity of statute waived. A party appealing to the Appellate Court waives the question as to the constitutionality of a statute.
    2. Master and servant, § 760*—when question of proximate cause for jury. In an action for injuries sustained by a shot firer in a coal mine, the question of whether the negligence of the defendant was the proximate cause of the injuries was for the jury; and it appearing that loaded coal cars and gob piled at both sides of the cars delayed the plaintiff from escaping from a shot, a finding of negligence was sustained.
    3. Master and servant, § 528a*—what is effect of Compensation Act. In an action by a servant for injuries sustained in a mine, where it appeared that the defendant had elected not to pay compensation under- the Workmen’s Compensation Act, (J. & A. 1f1f 5449 et seq.), the effect'of such election was to relegate the plaintiff to a suit at law for damages measured by the law as it existed prior to the act, except that contributory negligence could not be considered in reduction of damages.
    4. Master and servant, § 670*—what evidence admissible to show damages. In an action by a shot firer for injuries sustained in a coal mine, there was no error in permitting the plaintiff to prove the amount of his daily wages.

      5. Masteb and sebvant, § 795

      —when requested instruction may he refused. In an action for injuries sustained by a shot firer in a coal mine, there was no error in refusing requested instructions when the instructions given covered those refused.
    6. Damages, § 135*—when verdict not excessive. Where a shot firer in a coal mine, forty-four years of age, earning $4.72 a day, had both his upper and lower jaws broken, lost several teeth and pieces of bone, was out of work nine weeks, was in bed two weeks, suffered intense pain and was compelled to pay a doctor’s bill of $75, a verdict of $1,029.16 was not excessive.
    Appeal from the Circuit Court of Montgomery county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 16, 1914.
    Miller & McDavid, for appellant.
    Hill & Bullington, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same copie and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same tonic and section number.

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is an action on the case begun by appellee against appellant to the January term, 1913, of the Montgomery County Circuit Court to recover damages for personal injuries suffered by appellee while working as a short firer in appellant’s coal mine. The declaration contains two counts, both averring common-law negligence. Each count avers that the appellant was operating a coal mine in Montgomery county; that appellee was employed therein as a short firer; that the appellant had elected not to accept the provisions of the Compensation Act in force May 1, 1912, and was thereby deprived of the defenses of assumed risk; that the injury was caused in whole or in part by the negligence of a fellow-servant, and proximately caused by the contributory negligence of appellee, except that such contributory negligence shall be considered in reducing the amount of damages; that appellee had, as an employee of appellant, elected to accept the provisions of said act; that in the underground works of said mine were divers roadways, crosscuts and rooms; that on September 16, 1912, appellee was engaged in rooms 3, 4, 5, 6 and 7 off a certain entry, and while engaged as a shot firer, after placing a shot in "room seven, appellee started to room number 4 where he encountered an obstruction of three cars which appellant had negligently placed there, with gob on either side which appellant had negligently placed, wholly obstructing the travel of appellee, and while so delayed a shot exploded and thereby appellee was injured.

The second count contains the further averment that after appellee had ignited certain shots and started to retire to a place of safety he encountered an obstruction, consisting of cars with gob on either side thereof, negligently placed and permitted to remain whereby appellee was delayed.

A demurrer to both counts of the declaration was overruled. The appellant then filed a plea of not guilty. On a trial before a jury a verdict for $1,029.16 was returned in favor of appellee, on which judgment was rendered.

It is insisted that the court erred in overruling the demurrer for the reason the Compensation Act is unconstitutional. The Supreme Court has held the act constitutional. Deibeikis v. Link-Belt Co., 261 Ill. 454; 5 N. C. C. A. 401; Dietz v. Big Muddy Coal & Iron Co., 263 Ill. 480, 5 N. C. C. A. 419, and if the act had not been passed on, the appellant by appealing to this court has waived that question. Luken v. Lake Shore & M. S. Ry. Co., 248 Ill. 377, 4 N. C. C. A. n492.

It is also contended that the evidence does not sustain the finding in favor of appellee for the reason that the evidence does not show the negligence of the appellant was the proximate cause of the injury. The evidence shows that there were loaded coal cars standing in the neck of rooms 6 and 7 and that there was gob piled at both sides of the cars in the neck of room 6 which was eighteen inches high at the wheels and sloped back to the rib, where it was four feet high, and that this obstruction would delay a person trying to get out of the room in a hurry. Appellee had lighted the fuse to the shots and had then run to the mouth of the room where, having to crawl over the gob to get out, he was delayed until the shot exploded and a piece of the rock struck him on the right side of his face. If the cars had not obstructed the neck of the room, or the gob had not hindered him so that he had to crawl over it, he would have been out of the neck of the room before the explosion occurred. We think it was a question for the jury whether the negligence of the defendant was or not the proximate cause of the injury. The evidence sustains the finding in favor of appellee.

It is also argued that appellee can only recover the compensation that is provided for by the act. The appellant elected not to pay compensation under the act. The effect of that election by .appellant is to relegate appellee to a suit at law for his damages measured by the law as if it existed prior to the act, except that contributory negligence, if any of appellee, shall be considered in reduction of his damages. There was no error in permitting appellee to prove the amount of his daily wages.

It is contended that the court erred in refusing the second refused instruction requested by appellant. The first part of the instruction was fully given in both appellant’s second and third given instructions, and the remainder of the refused instruction which tells the jury “that the plaintiff must prove by a preponderance of the evidence that the said negligent act was the direct and proximate cause of the injury,” is fully given in appellant’s thirteenth, which tells the jury that “the damages to be recovered in an action must always be the natural and proximate consequences of the wrongful act complained of * * * that to entitle the plaintiff to recover in this case the damages claimed must be the direct consequence of the act complained of. The relation of cause and effect must be shown to exist between the act complained of and the injury.” There is no error either in giving or refusing instructions.

It is also insisted that the judgment is excessive. The evidence shows that appellee is forty-four years of age, that he was earning $4.72 a day, that both his upper and lower jaws were broken, four teeth were knocked out and seven pieces of bone extracted, he was out of work nine weeks, confined to his bed two weeks, suffered intense pain and had a doctor’s bill of about $75. We cannot say that the judgment is excessive or that it should be set aside because the damages were calculated down to cents. The judgment is affirmed.

Affirmed.


text:
    First National Bank of Leroy, Plaintiff in Error, v. Harry J. Stewart et al., Defendants in Error.
    1. Fraudulent conveyances, § 109

      —when debtor may give preference. A debtor who is insolvent or in failing circumstances may prefer any creditor, although the preferred creditor may be a relative.
    ' 2. Fraudulent conveyances, § 268*—when evidence fails to show fraudulent conveyance. Evidence held to show that transfers of the property by a debtor were made in good faith and for full value in the payment of just debts, and such transactions were not colorable for the purpose of hindering and delaying creditors.
    Error to the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 16, 1914.
    Rehearing denied November 6, 1914.

      Leslie J. Owen and Stone, Oglevee & Franklin, for plaintiff in error.
    Livingston & Bach, for defendants in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number,

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

The First National Bank of Leroy on February 14, 1913, filed a creditor’s bill against Harry J. Stewart, William Baber and Ed. Baber, alleging that on February 13, 1913, the complainant recovered a judgment for $1,522.24 and for costs against Harry J. Stewart and Anna Stewart; that an execution had been issued on said judgment and returned no property found; that the principal defendant, Harry J. Stewart, has money on hand, promissory notes or other securities due him, and personal property which he keeps concealed, and which complainant has been unable to reach by execution; that the principal defendant has since November 1,1912, conveyed personal property to William Baber and Ed. Baber without any good and sufficient consideration and with the intent to hinder and delay complainant in the collection of its debt.

The defendants answered the bill denying its allegations wherein fraud is alleged. The cause was referred to the master in chancery to report the evidence with his conclusions. A report was made that there was no fraudulent intent in the transactions between the defendants and the evidence showed nothing more than a preference for the payment of debts due to the Babers. On a hearing on .exceptions before the court a decree was entered dismissing the bill for want of equity. The complainant has sued out a writ of error to review that decree.

The evidence shows that Harry Stewart and William Baber are farmers, Stewart being a tenant farmer, and that Baber had furnished Stewart with funds with which to start farming; that in December, 1912, Stewart, in order to reduce his indebtedness to plaintiff in error, held a public sale and that substantially all the proceeds thereof, amounting to about $2,000, were paid to plaintiff in error. Shortly after the sale a note made by Stewart for $700 to the Keenan bank, and the rent for the farm he occupied, became due. He was also indebted to Kaber on four notes, amounting to $946, against which he was entitled to a credit from Kaber for $106 for some stock bought by Kaber at the public sale. Stewart, while so indebted to Kaber, asked him for the loan of $1,000 with which to pay his rent and the Keenan note. Kaber declined to loan him any more money. Stewart insisted that he must have the money, and on January 2,1913, agreed to sell Kaber enough property to get the $1,000 he needed at the time. They went over the balance of the property he then had, item by item, and Stewart sold to Kaber property to the value of $1,000 and Kaber delivered to Stewart two checks, one for $725 and one for $275, with which to pay the note at the Keenan bank and his cash rent, and a part of the property sold to Kaber was turned over to him. Shortly thereafter Stewart again went to Kaber for more money; they talked over Stewart’s financial condition and went to Blooming-ton where Stewart made a bill of sale of his property to Baber in payment of the notes due to Baber from Stewart, and Baber gave Stewart a check for $275, the value of the property over the amount of the notes. The value of all the property turned over by Stewart to Baber, including that sold to him when the checks dated January 2, 1913, were given to Stewart, was $2,036. The summary of the transactions showed that Baber received property valued at $2,036, and that the money paid to Stewart with the notes held by Baber against Stewart and cancelled at the making of the bill of sale amounted to over $2,100. Baber paid full value for everything he received. There is no evidence of any fraud in the transaction, and it occurred before the Bulk Sales Act took effect. Stewart was endeavoring to pay Baber, who had befriended him, and received full value for the property sold to Baber. The evidence does not sustain the allegations of the bill that the transfers were either without adequate consideration, colorable or made for the purpose of hindering and delaying creditors, but does sustain the contention of defendants in error that they were made in good faith and for full value in the payment of just debts. Such transfers are not invalid. A debtor who is insolvent or in failing circumstances may prefer any creditor, although the preferred creditor may be a relative. Merchants’ Nat. Bank v. Lyon, 185 Ill. 343; Murry Nelson & Co. v. Leiter, 190 Ill. 414. Whatever may be said of the justice or equity of the rule, its existence is too firmly established to be questioned. Morriss v. Blackman, 179 Ill. 103.

The point is made by defendants in error that the plaintiff in error has not exhausted his remedy at law and cannot maintain this suit, for the reasoii. that the return on the execution shows that it was ordered returned, no property found, by the attorney or plaintiff in error. Since the decree is right on the merits, it is not necessary to discuss the legal question.

The decree is affirmed.

Affirmed. -


text:
    John S. Crain, Appellee, v. James F. Burnett, Appellant.
    1. Landlord and tenant, § 5

      —when relation not created. Under a contract by which a person was to furnish her son-in-law with board and lodging and pay him $B0 per year, in return for which the son-in-law was to render certain services, furnish household supplies and care for Ms mother-in-law, 'the premises occupied being restrained by the mother-in-law during her life, the son-in-law had no right of possession to the premises except as was necessary to perform the services required, and the contract did not create the relation of landlord and tenant, but that of master and servant.
    2. Master and servant, § 39

      —what is duty of employee on termination of relation. Where an employee occupies a house incidently to his employment and he is discharged, whether the discharge be rightful or wrongful, he must vacate the premises occupied by him as such employee, and if he fails to leave peaceably, or after doing so returns and becomes a trespasser, he may be ejected by the master although his wages have not been paid.
    3. Forcible entry and detainer, § 3*—when remedy available. Under the Forcible Entry and Detainer Act, § 2, (J. & A. V 5843), suit may be maintained when a peaceable entry is made and the possession unlawfully withheld; and where a contract for services under which a son-in-law occupied premises of his mother-in-law was cancelled wrongfully, it was his duty to vacate the premises, and his withholding possession thereafter was wrongful.
    4. Appeal and error, § 1625*—when exclusion of evidence harmless. In a suit in forcible detainer, a contract showing the nature of the occupancy of the premises was competent, but its rejection as evidence was harmless, where such contract was in the record and its admission could not have changed the result of the trial.
    Appeal from the County Court of Piatt county; the Hon. Fred C. Hill, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 16, 1914.
    Hicks & Doss, for appellant.
    A. C. Edie and F. M. Shonkwiler, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is a suit in forcible detainer begun by John S. Crain, appellee, against James F. Burnett, appellant, before a justice of the peace and appealed to the County Court of Piatt county. In the trial in the County Court a jury was waived, and the court found the appellant guilty of unlawfully withholding the possession of the premises described in the complaint, and judgment was rendered in favor of appellee.

Appellant married a daughter of S. V. and Sarah Hamilton. After the marriage appellant and his wife made their home with her parents, and about fourteen years ago the Hamiltons with appellant moved into the premises in controversy.

S. V. Hamilton died in 1903. In January, 1904, Mrs. Hamilton and appellant executed the following written agreement under their seals:

“This agreement made and entered into this twelfth day of January (1903) by and between Sarah E. Hamilton party of the first part and J. F. Burnett party of the second part witnesseth:
“That the party of the first part in consideration of the promises hereinafter expressed agrees to furnish party of the second part with board, lodging and washing and fifty dollars ($50.00) per year to be paid on January 1st of each year. Also household and kitchen furniture. Party of the first part further agrees to execute a warranty deed to the S.% South Half lots three, four, five and six (3, 4, 5 and 6) Block No. 3 in Bandall’s Addition to the village of Atwood, Piatt County, Hlinois. Party of the first part reserving a life estate with all the rights of possession and control during her lifetime.
“And in consideration of the performance of the above by the first party said second party agrees to furnish all vegetables snch as potatoes, cabbage, turnips, all kind of fruit and berries. Also to furnish a first-class garden all for family use, also to furnish poultry and eggs, to keep lawn and shrubbery, shade trees, fruit trees and flowers in first-class condition. Also to see that fuel is provided, fires kept up, also to attend to all business affairs when requested to by party of the first part. Party of the second part reserving the right to work at his trade or any other labor, provided in so doing it does not interfere with work at home.
“Party of the second part further agrees to care for party of the first part through health, sickness and death, in the event of death to see that she is laid to rest by the side of her husband in McYille Cemetery. ’ ’

The deed from Mrs. Hamilton to appellant was made November 23, 1909. It contains the clause, “the grantor reserving a life estate with all the rights of possession and control during her lifetime.”

In August, 1910, Edward E. Parsons was, by the County Court of Piatt county, appointed conservator of the person and estate of Mrs. Hamilton, who had been found to be distracted. On August 29, 1910, the conservator made a contract with appellee under which appellee was to move into said premises with Mrs. Hamilton, occupy the premises and care for her, furnishing her food, clothing, care and maintenance except nursing during illness, for which appellee was to have the use of the premises and $41.65 per month. This contract was approved by the County .Court. On August 30th the appellee, as lessee, made a demand in writing on appellant for the immediate possession of the premises, and on the same day the conservator, on behalf of Mrs. Hamilton, made á demand in writing on appellant that he deliver up the possession of the premises within thirty days. The appellant continuing to live on the premises, thereafter, on October 1st, this suit was begun. The evidence of appellant was that he had made his home with Mrs. Hamilton for forty-two years and that there was an error in the date of his contract with her, that it was made in 1904.

The appellant contends that his possession was not such as is contemplated by the statute in order for the plaintiff to maintain this action, while the appellee contends that the occupation of appellant was a tenancy at will.

The contract is one by which Mrs. Hamilton was to furnish appellant with board and lodging, but not for any specified time,' and pay him $50 per year, in return for which the appellant was to render certain specified services, furnish certain household supplies and care for Mrs. Hamilton. Mrs. Hamilton reserved all rights of possession and control of the premises during her life. The contract does not give appellant any right to the possession or any control over the premises during her life. The relation between them was one of master and servant or employer and employee. The only right of occupancy or possession that appellant had under the contract was such as was necessary for or incident to the performance of the services to be rendered by him. Such right to occupy or possess did not create the relation of landlord and tenant. Cochrane v. Tuttle, 75 Ill. 361; Hayvood v. Miller, 3 Hill (N. Y.) 90; Wilson v. Martin, 1 Denio (N. Y.) 602; White v. Maynard, Ill Mass. 250; 18 Am. & Eng. Encyc. of Law, 171; 24 Cyc. 879.

There is no evidence in the record as to the performance or nonperformance by appellant of the duties agreed to be performed by him. So far as this record is concerned it must be conceded that appellee has not shown any right to cancel the contract and discharge appellant. If it be conceded that appellant was not in default, then appellee had no cause to cancel the contract, and the demand for possession of the premises was a discharge of appellant and a termination of the contract for service, but not for cause on the part of appellant.

Where an employee occupies a house incidentally to his employment and he is discharged, whether the discharge be rightful or wrongful, he must vacate the premises occupied by him as such employee. If he fails to leave peaceably, or after doing so returns, he becomes a trespasser and may be ejected by the master although his wages have not been paid. 26 Gyc. 996; Champion v. Hartshorne, 9 Conn. 564; Kerrains v. People, 60 N. Y. 221; Bourland v. McKnight, (79 Ark. 427), 4 L. R. A. (N. S.) 698; Noonan v. Luther, (206 N. Y. 105), 41 L. R. A. (N. S.) 761, and notes.

The second section of the Forcible Entry and Detainer Act (J. & A. ft 5843) provides that the suit may be maintained, when a peaceable entry is made and the possession unlawfully withheld. When the contract under which appellant occupied the premises as a lodger was cancelled, although wrongfully, still it was his duty to vacate the premises, and his withholding possession thereafter was wrongful.

The court sustained an objection to the introduction in evidence of the contract between Mrs. Hamilton and appellant. The contract was clearly competent for the reason it showed the nature of the occupancy of the premises by appellant. However, as the contract is in the record and its admission could not have changed the result of the trial, its rejection was harmless error. There being no reversible error in the record, the judgment is affirmed.

Affirmed.


text:
    Cyrus O. Fletcher et al., Executors, Appellees, v. Chicago & Alton Railroad Company, Appellant.
    1. Railroads, § 461

      —when railroad liable for excessive speed. Under the statute chapter 114, § 87, (J. & A. If 8836), when any railroad corporation shall run any train at a greater rate of speed than is provided hy ordinance it shall he liable for all damages done to person or property hy such train, “and the same shall be presumed to have been done by the negligence of said corporation.”
    2. Railroads, § 551*—what does not preclude finding of due care. In an action for the death of a person who was struck by a train, the facts that the day was clear, and that the deceased was familiar with the crossing and might have seen the train if he had looked just before he was struck, would not preclude the jury from finding that the deceased was in the exercise of ordinary care.
    3. Railroads, § 738*—when evidence sufficient to show due care. In an action for the death of a person who was killed by a train at a crossing, operated at a speed in violation of an ordinance, the evidence was sufficient to sustain a finding of due care on the part of the deceased and that the speed of the train was the proximate cause of the accident.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Cbeighton, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 16, 1914.

      Certiorari denied by Supreme Court (making opinion final).
    Patton & Patton, for appellant; Silas H. Strawn, of counsel.
    Thomas L. Jarrett and Graham & Graham, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

The executors of the estate of Benjamin Fletcher, deceased, brought this suit in case against the Chicago & Alton Railroad Company, charging the railroad company with negligence in the running and management of a train by means whereof Benjamin Fletcher, while attempting on a public street in the village of Chatham to drive across the track of the defendant, was struck by a train and killed and his automobile, of the value of $2,000, entirely destroyed. There was a verdict and judgment for $3,000 in favor of plaintiff and the defendant appeals.

The declaration charges the appellant with negligence in violating an ordinance of the village limiting the speed of freight trains to six miles an hour, with a failure to give the statutory signals at highway crossings, and with a failure to manage its trains with due regard to the safety of others at a highway crossing.

The village of Chatham is laid out in lots and blocks. Main street runs north and south and is crossed at right angles by Spruce street in the southern part of the village. Appellant’s railroad runs slightly east of north and west of south, crossing Main street at the intersection of Spruce street at an acute angle of twenty-two degrees. The railroad is a double-track road, the west track being the southbound track. The track of the Illinois Traction Company, an interurban railway, is on the west side of the railroad and substantially parallel with it. The depot is on the west side of the railroad a block east of Main street and two and a half blocks northeasterly.from the intersection of the railroad and Main street. The railroad section house and the tool house stand on the west side of the railroad about half way between the depot and the Main street crossing. The railroad tracks are slightly above the level of the land. There are no obstructions to the view between Main street and the railroad south of the depot except the section house, the tool house and a few trees in the vicinity of the section house. ■

The evidence shows that the deceased, a retired farmer seventy-three years of age, on November 29, 1912, alone in a new 36-horsepower Chalmers automobile left Springfield to go to a farm south of Chatham. While going south on Main street through Chatham his automobile was struck by a freight train going south on the west track of appellant, when crossing the railroad at the Main street crossing, and he was killed and the machine was destroyed. The train was about three hundred and fifty feet long. It consisted of eight tank cars, a caboose and a locomotive with its tender-, and was backing up from Knapp to Virden with the caboose in front and the locomotive, with the tender behind, pushing the cars ahead of it.

There was in force, at the time the deceased was killed, an ordinance of the village limiting the speed of- freight trains to not exceeding six miles an hour.

The evidence is conflicting as to whether any ■bell was rung or whistle sounded. The evidence as to the speed .of the train is also conflicting. Three of the train crew testify that the speed of the train was ten miles an hour; another witness testifies it was twenty miles an hour; five witnesses testify it was twenty-five miles an hour and two testify the speed was thirty miles an hour. The train ran five hundred feet after striking the automobile, pushing the automobile ahead of it, and was stopped with the automobile under the caboose. The evidence is that the automobile was going slowly, about five miles an hour. The train crew saw the deceased—the conductor and the brakeman from the caboose, and the engineer from the locomotive—from the time they passed the depot. They also testify that an air whistle was blowing from the time they passed the depot and that they thought the driver of the automobile would come up close to the track and stop, but when they saw he was not going to stop they shouted to him and applied the air brakes about two car lengths from the crossing; that the deceased did not appear to hear them and they say he never turned his head or looked back over his shoulder towards the direction the train was coming from after they saw him.

It is clearly proven that the train was run at a speed much beyond the rate permitted by the ordinance. The train was backing up and going substantially in the same direction the deceased was traveling in the automobile. The deceased may have seen the train and thought it was going in the other direction: If the train had not been going at a speed greater than that permitted by the ordinance he would not have been struck by the caboose. The statute provides (section 87, ch. .114, J. & A. ft 8836) that when any railroad corporation shall run any train at a greater rate of speed than is permitted by ordinance it shall be liable for all damages done to person or property by such train, “and the same shall be presumed to have been done by the negligence of said corporation.” This statute has been applied and enforced in numerous cases. Chicago & E. I. R. Co. v. Crose, 214 Ill. 602; Winn v. Cleveland C., C. & St. L. Ry. Co., 239 Ill. 132.

It is argued that it is not proved by the evidence that the deceased was in the exercise of due care. The facts that it was a clear day, and that the deceased was familiar with the crossing and might have seen the train if he had looked just before he was struck, do not preclude the jury from finding from the evidence that the deceased was in the exercise of ordinary care. He may have looked after he passed the section house or seen the train and not have noticed that it was backing up, but thought it was going north in the direction a train put together as that was would naturally be going. We are not able to say that the jury were not justified in finding from all the evidence that the deceased was in the exercise of due care or that the speed of the train was not the efficient cause of the accident. No other question is presented for review. Neither is any question raised concerning the right to recover damages for the destruction of the automobile and the death of deceased for the benefit of the next of kin in the same suit. . The judgment is therefore affirmed.

Affirmed.