text:
    Samuel M. Thrift, Appellant, v. The Vandalia Railroad Company, Appellee.
    1. Licensees—when policemen and firemen are. Where a police officer or a fireman enters upon premises in order that he may better perform his duties as such, but without any express or implied invitation of the owner of the premises, he is a mere licensee, and such owner owes him no duty except to refrain from inflicting wilful or wanton injury upon him. Held, that the particular ordinance in question in this case did not affect the general rule as above stated.
    2. Negligence—what does not establish wilfulness. Where the sole negligence charged is the violation of an ordinance, wilfulness is not established.
    Action in case for personal injuries. Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    William: E. Nelson and Lee Boland, for appellant; David Hutchinson, of counsel.
    Outten, Roby, Ewing and McCullough, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is a suit against appellee for personal injuries received by appellant in the yards of the Illinois Central Bailroad Company in the city of Decatur, through the alleged negligence of appellee. The yards in question were at the time used and operated by appellee under an arrangement with the Illinois Central Bail-road Company. The declaration in its various counts alleges that upon a certain day between the hours of ten and eleven o’clock at night, at which time it was very dark and a violent snow storm was raging, appellant attempted to cross one of the tracks in said yard, in an endeavor to apprehend unknown persons who he hacl been informed were stealing property stored in freight cars then upon the tracks in said yard, and that he was run over by a moving train which was running backward over such track without a light on the rear end thereof and without any warning being given by either whistle or bell, nor any brakeman or employe being stationed on the rear end of the train.

An ordinance of the city of Decatur then in force provided in substance that no railroad train should be started in the city without first ringing a bell or sounding a whistle thereon; that a bell should be kept constantly ringing while such train was in motion, and that any train running or backing in the night time should have a bright and conspicuous light on the end of the train which might be foremost in the direction in which the train was moving. The negligence upon which appellant relies primarily for recovery is the violation of such ordinance. It is charged in several of the counts that the train was recklessly backed in the night time when it was very dark, in disregard of the rights and safety of persons who might be upon said track; that the backing of the train was wanton and reckless, and that by reason of such gross and wanton negligence plaintiff was injured, etc. It is also averred in the sixth count that the defendant had been informed through its servants that the plaintiff would be upon the premises at or about the day of his injury for the purpose .of apprehending offenders as aforesaid, and that said servants had assented thereto. The court sustained a general and special demurrer to the entire declaration and entered judgment for the defendant.

It is not contended by appellant that he was upon the premises by the invitation of the appellee, either express or implied; but it is insisted that he was rightfully there under a license given him by law. It is now well settled that where' a police officer or fireman enters upon premises in order that he may better perform his duties as such, but without any express or implied invitation of the owner of the premises, he is a mere licensee, and such owner owes him no duty except to refrain from inflicting wilful or wanton injury upon him. The doctrine applies equally to cases where the license is given by law. Gibson v. Leonard, 143 Ill. 182; Casey v. Adams, 234 Ill. 350. Counsel contend however that the case at bar is distinguishable from those cited, in that the ordinance alleged to have been violated, being general in its nature, was enacted for the benefit of all persons rightfully upon the premises, and imposed upon appellee the duty to use reasonable care to avoid injuring such persons, whether they were expressly or impliedly invited there by appellee or not. We regard such position as untenable. The ordinance could only have been intended to protect those who might go upon the private right of way of appellee upon its business or by its solicitation or invitation or by its authority; that is to say, those whose presence there might he reasonably anticipated. An ordinance which could properly he construed to impose upon a railroad company the duty to anticipate the presence of persons, even peace officers in the performance of their official duties, upon its private right of way necessarily at rare intervals and at unexpected times and places, and to exercise continuous vigilance to avoid' injuring them, would be manifestly unreasonable, and seriously interfere with the practical operation of railroads. Those operating them would thus be rendered unable to properly perform their duty to the public of furnishing cheap, safe and rapid transportation.

It is urged by counsel for appellant that inasmuch as it is averred in several counts of the declaration that appellee had knowledge, through certain of its servants, that appellant would go and be within its yards in the performance of his official duty, in the night time, on or about the day in question, it thus had specific notice of his presence there, and was bound to use reasonable care for his safety. The averment in question fails to state upon what particular night, what time in the night, or at what place in the yard appellant expected to be; nor does it state which of the servants of appellee was so informed. It is therefore insufficient to establish the status of appellant as one upon the tracks with the knowledge and authority of appellee.

It is also insisted that even if. it be conceded that appellant was a mere licensee, the characterization in several counts of the declaration of the alleged negligent acts of the defendant as wanton, wilful, reckless and heedless, established a right to recover under the rule above stated. The violation of the ordinance which is the sole negligence charged, did not constitute wantonness or wilfulness. I. C. R. R. v. O’Connor, 189 Ill. 557. It is not sufficiently pleaded that appellee had knowledge, express or implied, of the presence or probable presence of appellant upon the right of way. It therefore cannot be said that under the circumstances detailed in the declaration, such want of care and disregard for the rights of appellant existed as to constitute wilfulness or wantonness. It is manifest there could be no wilful disregard of the rights of one whose presence was unknown and could not have been reasonably anticipated.

The court did not err in its rulings upon the demurrer and the judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Puterbaugh

license: Public Domain

text:
    Harry W. White, Appellee, v. Illinois Collieries Co., Appellant.

      Instbuctioks—erroneous to exclude issue of negligence. The rule res ipsa loquitur not being invoked, it is error to authorize a jury in an action for personal injuries to render a verdict for the plaintiff without proof of negligence.
    Action in case for personal injuries. Appeal from the Circuit Court of Montgomery county; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the May term, 1908.
    Reversed and remanded.
    Opinion filed November 17, 1908.
    Jett & Kinder, for appellant.
    L. V. Hill and Harry C. Stuttle, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

Appellee, a minor, by his next friend, brought suit to recover damages for personal injuries received by him through the alleged negligence of appellant company while he was in its employ as a mule driver in its mines. Upon a trial by jury he recovered judgment for $1,000, to reverse which this appeal is prosecuted. The declaration' charges that plaintiff was a coal miner and was requested by defendant to act as a driver on the day he was injured; that he informed defendant he was not an experienced driver and had no knowledge whatever of driving; that defendant advised him it would furnish a gentle mule and that it was necessary for him to drive that day; that it was the duty of defendant to provide a reasonably safe, gentle and well-trained mule, and to inform plaintiff of any peculiar habits possessed by the mule he was provided with; that defendant negligently ordered and commanded plaintiff to use an unsafe mule, in that he' was possessed of a peculiar habit of stopping at a certain low place in a certain entry, where the roof bulged downward and diminished the distance between the bottom and top; that plaintiff did not know of such habit of the mule and that defendant had known the same for a year; that while plaintiff was driving the mule, in the exercise of ordinary care, through said entry, and while he was riding on a car pulled by said mule, the animal came to said low place and suddenly stopped and refused to go further, whereby the car ran against the mule and plaintiff was thrown from the car and was caught between the car and the rib of coal, and injured.

As the judgment must be reversed for the reason hereinafter stated we shall not discuss the evidence at length or in detail. The third instruction given at the request of the plaintiff told the jury that if the plaintiff received the injuries charged in the declaration while in the exercise of ordinary care, and that the mule suddenly stopped when he came to the low place in the roof of the entry" and that such sudden stopping was the cause of the plaintiff being injured, the verdict should be for the plaintiff. Such instruction which directs a verdict for the plaintiff without requiring any negligence on the part of the defendant to be shown, made the defendant an absolute insurer of the safety of the plaintiff, and is so obviously erroneous and prejudicial as to necessitate a reversal of the judgment. The cause will therefore he remanded for another trial.

Reversed and remanded.


author: Mr. Presidiug Justice Puterbaugh

text:
    Henry G. Metzger, Appellant, v. William B. Manlove, Appellee.

      Trial—when improper remarles will not reverse. Improper remarks of counsel made in argument will not reverse where the verdict is clearly right.
    Assumpsit. Appeal from the Circuit Court of Hancock county; the Hon. Robert J. Grier, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    Charles J. Scofield and Apollos W. O’Harra, for appellant.
    J. N. Carter, T. B. Pape, Vose & Creel, J. W. Willlams and S. P. Lemmon, for appellee.
   Mr. Presidiug Justice Puterbaugh

delivered the opinion of the court.

A former judgment in this case in favor of the plaintiff was reversed by this court, for errors of the trial court, in admitting incompetent evidence in behalf of the plaintiff. In the opinion then filed (Manlove v. Metzger, 124 Ill. App. 383) the nature of the action and the pleadings are sufficiently stated. Upon a second trial, which resulted in a verdict and judgment for the defendant, there was additional evidence adduced by appellant which tended to show acts and conduct on the part of appellee which would have warranted the belief by the public that he was jointly interested with his son Joseph E. Manlove in the business in question.

In our former opinion, to which we now adhere, it was held that before a person can be held liable for the debt of another by reason of holding himself out as a partner when he is not a partner in fact, such holding out must be brought to the knowledge of the party extending the credit, at or before the time the credit is extended. The evidence in the present record fails to establish such knowledge on the part of appellant. While there is some evidence tending to show that appellee had knowingly permitted himself to be held out as such by his son, the same is clearly insufficient to warrant a finding that appellee had knowledge that he was being so advertised.

The instructions asked by appellant indicate that the liability of appellee was sought to be predicated upon the theory that an actual partnership existed between the parties. We are unable to say that the greater weight of the evidence upon the issue was so manifestly with appellant that the finding of the jury thereon should he disturbed.

Serious complaint is made of remarks made by one of counsel for appellant during the trial in the presence of the jury. Certain of the remarks in question were highly improper and would necessitate a reversal of the judgment in á close case. In the present case, however, the verdict was so clearly in accordance with the evidence that we are satisfied that the rights of appellant were not prejudiced thereby.

It is further insisted that the court erred in the rulings upon the instructions. We have carefully considered the objections urged and are of opinion that the given instructions fully stated the law applicable with substantial accuracy, and that there was no error in this respect. The same may be said as to the rulings upon the admissibility of evidence offered.

The judgment of the Circuit Court is affirmed.

Affirmed.


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    Scott Stollard, Appellant, v. William Nycum et al., Appellees.

      Partition—when apportionment of solicitor’s fees not warranted. Even though the original petition properly set out the rights and interest of the parties, yet if by the death of one of such parties an amendment became necessary, which amendment did not set out every interest so fully and clearly that the parties defendant were relieved from the necessity of employing other counsel, an apportionment of complainant’s solicitor’s fees is properly denied.
    Partition. Appeal from the Circuit Court of Logan county; the Hon. T. N. Harris, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    Baldwin & Stringer, for appellant.
    Edward G. King, for appellees.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is a proceeding instituted by appellant for the partition of certain real estate, to which the other tenants in common were made defendants. The original bill correctly stated the interests of the defendants. After it was filed, Mary Stollard, who held an estate for life in part of the land, and an undivided interest in fee simple in a portion of the remainder, died, leaving a will by which she devised her interest in fee to appellant. Thereupon appellant filed an amended bill setting up the death of Mary Stollard and his succession to her interest in fee in the premises. Appellee answered the amended bill setting up that appellant was at the time the original bill was filed, a tenant of Mary Stollard upon the greater portion of the lands sought to be partitioned, and had retained possession and used the same after her' death until the filing of the cross bill; and that he thereby became liable to account to the defendants, his tenants in common, for such .use and occupancy. Appellant thereupon filed an amendment to the amended bill setting up the facts averred in the answer and admitting his liability to account.

The cause was referred to the master to take proofs and report conclusions.. There was some controversy upon the hearing, as to the rental value of the land so occupied by appellant, and the amount of his consequent liability to . his co-tenants, the result of which was that the master recommended and the court decreed that he should account at the rate of $5 per acre per annum for the period of nine months of his occupancy. A cross-bill was subsequently filed by defendants Fowler and McBride, setting up that Fowler had recovered a judgment against the estate of said Mary Stollard for $700; that it would be necessary to subject her real estate to the payment of the same, and praying that the portion of the decree which found that appellant was entitled to the interest of Mary Stollard, be amended so as to find that such interest was subject to the payment of the debts of the said Mary Stollard. A decree was entered amending the original decree in accordance with the prayer of the cross-bill. After a sale of the property under said decree and the approval of the same, appellant interposed a motion that the fees of his solicitor be apportioned among the parties as provided by the statute, which motion the court denied.

The statute provides that in proceedings for the partition of real estate, solicitor’s fees” shall be apportioned among the parties in interest where the rights and interests of the parties in the land are properly set forth in the bill and no good and substantial defense has. been interposed. Eev. Stat. 1905, p. 1497. We are of opinion that the action of the court in refusing to apportion the complainant’s solicitor’s fees, among the parties was warranted. While the original bill set up the interests of the parties correctly at the time it was filed, the death of Mary Stollard' made it necessary to amend the same. It then became the duty of appellant to set out fully and accurately the interests of all the parties as they then existed. This he failed to do, and it became necessary for the defendants to employ counsel to properly protect their interests as was done by the cross-bill. The statute does not contemplate the apportionment of costs in any case where the bill does not set out every interest so fully and fairly that the parties defendant are relieved from the necessity of employing other-counsel. The petition or bill should be so accurate in this respect that all the parties can safely allow a default to go against them.

The decree of the Circuit Court should be and is affirmed.

Affirmed.


text:
    Charles O. Leeper, Appellee, v. Rogers Grain Co., Appellant.

      Instructions—must not ignore material issue. An instruction which authorizes a verdict in disregard of how a particular issue may he determined, is erroneous and cannot be cured by other instructions given.
    Trover. Appeal from the Circuit Court of De Witt county; the Hon. W. G. Cochean, Judge, presiding. Heard in this court at the May term, 1908.
    Reversed and remanded.
    Opinion filed November 17, 1908.
    Herrick & Herrick, for appellant.
    Ingham & Ingham, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action in trover by Leeper against Rogers Grain Co., a corporation, for the recovery of the value of certain corn. The plaintiff recovered a judgment for $220.45, to reverse which the defendant appeals. The declaration charges that Leeper, the plaintiff, owned a farm, which he rented to one Huffman for the year beginning March 1, 1906; that the defendant corporation bought and paid for the corn raised by Huffman upon the premises during that year; that Huffman had not paid the full amount of rent due, by reason of which the defendant became liable to the plaintiff therefor. The evidence establishes the averments of the declaration, and that the amount for which judgment was rendered was still due Leeper at the time suit was brought. There is also evidence tending to show that appellee consented to or acquiesced in the payment by appellant to the tenant of the proceeds of the corn raised on the farm, in which case he must be held to have waived his lien. This question, which is decisive of the case, was one of fact for a jury. Several of the instructions given at the request of appellee directed a verdict without regard to the issue whether the lien had been waived or not. This was palpable error, which was not cured by the other instructions given. The judgment will -therefore be reversed and the cause remanded.

Reversed and remanded.


text:
    George W. Reed et al., Appellants, v. John Ziemans, Appellee.
    1. Brokers and factors—when real estate commissions cannot he recovered. If the broker has been guilty of bad faith to his principal in connection with the consummation of the sale for which he claims commissions, no recovery can be had.
    2. Verdict—how incapacity of juror may not he established. The mental incapacity of a juror is not ground for reversal unless established by affidavits of persons competent to testify to such mental incapacity.
    Assumpsit. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    Rehearing denied December 17, 1908.
    Charles M. Peirce and W. W. Whitmore, for appellants.
    Charles I. Will and Barry & Morrissey, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action in assumpsit by the firm of Reed & Welch, real estate agents, against John Ziemans and Frank McKennan, to recover commissions alleged to be due them under a written contract for services rendered in procuring the exchange of certain of their real estate for other property belonging, to one Mickelberry. Judgment was rendered in the Circuit Court for the defendants and the plaintiffs appeal. By the first count of their declaration they seek to recover upon a quantum meruit, and by the second an alleged stipulated commission of $960, being one dollar per acre. McKennan was defaulted and Ziemans pleaded the general issue.

The evidence discloses that Ziemans and McKennan each owned an undivided one-half interest in certain lands in Iroquois county, Illinois; that the property in question was encumbered to the extent of $21,000; that McKennan owed $6,050 to other parties for which Ziemans was security; that they owed jointly $3,811.35; that on June 15, 1905, they entered into a written agreement which recited the existence and character of. the aforesaid indebtedness and then provided that McKennan should convey the land to Ziemans; that $1,000 should be borrowed by them to be secured by a trust deed upon the land to one Welty; that out of the proceeds of such loan Welty should pay the joint indebtedness of the parties and apply the balance on the indebtedness of McKennan for which Ziemans was security; that the property should be sold as soon as consistent with the best interests of the parties, and out of the proceeds each of them should be repaid any advances made by them, and the balance, if any, should be divided between them, McKennan agreeing to protect Ziemans against any deficit. One Mickelberry owned a building and stock of goods at Clinton, Illinois, which'he had listed with appellants for sale or exchange. Through the efforts of appellants negotiations were begun between McKennan and Mickelberry for the exchange of the Iroquois county farm for said Clinton property, which finally terminated, on May 9, 1906, in a written contract between Mickelberry, Ziemans and McKennan for the exchange of the property. Said contract provided that all deeds and papers necessary for the proper transfer of the property should be executed and delivered to a bank in Bloomington, to be held in escrow and delivered to the respective parties in interest as soon as the provisions of the contract were complied with. It also provided that the personal property should be conveyed by bill of sale to a trustee for McKennan’s use, as provided in a certain contract to be entered into between McKennan and Ziemans, and which was to be of even date therewith. Ziemans and McKennan were unable to agree upon the terms of said latter proposed contract, and the same was never executed. Appellee thereupon refused to abide by the contract of exchange and the same was never consummated. McKennan then filed a bill for specific performance against appellee and Mickelberry and appellant instituted the present action.-

The evidence tends to show that appellants were employed by McKennan and rendered the services for which they seek to recover and that they were the procuring cause of the contract between Ziemans, McKennan and Mickelberry; but appellee contends, and so testified, that he neither employed, nor agreed to pay appellants a commission for their services.

It is not controverted that during the time negotiations for an exchange of the two properties were pending appellants entered into an arrangement with Mickelberry whereby Mickelberry agreed to pay to them a commission of $500 in the event that the proposed deal was consummated. There is evidence tending to show that appellants also agreed with McKennan to divide with him such commissions as they might receive in the transaction, and further that Ziemans was not a party to or cognizant of either of such agreements for the payment and division of commissions. While it is true that the evidence upon that issue was in close conflict, if the jury gave credence to the testimony of. Ziemans they were warranted in finding that" the latter agreement was in fact made and that Ziemans had no knowledge of either of such agreements and did not consent thereto.

It follows that as appellants were in the employ of both Mickelberry and Ziemans without the knowledge or consent of Ziemans they were guilty of bad faith toward the latter and cannot recover commissions from him. Bunn v. Keach, 214 Ill. 259.

It is contended by counsel for appellants that "the effect of the contract between McKennan and Ziemans was to constitute them partners in the ownership of the farm and that Ziemans was therefore bound by the acts of McKennan in the premises.

The obvious purpose of Ziemans in entering into the contract was to procure a settlement with McKennan to obtain security for the money he had advanced as well as that for which he was liable on surety for him, and to facilitate the sale and conveyance of the property. It was in no sense a joint venture or enterprise within the meaning of the law governing partnerships and the rule invoked is therefore inapplicable.

We have carefully considered the objections urged to the rulings of the court upon the instructions, and are satisfied that the same are not prejudical to appellants. It is insisted that a new trial should have been granted for the reason that it developed after the trial that a member of the jury was mentally incompetent to sit as such. It will suffice to say that such fact does not satisfactorily appear from affidavits of those whose evidence would be competent upon the question. The merits of the case appear to be clearly with appellee, and inasmuch as no error harmful to the appellants was committed upon the trial the judgment will be affirmed,

Affirmed.


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    F. K. Hornung, Appellee, v. Decatur Railway and Light Co., Appellant.
    1. Verdict—when not disturbed as against the evidence. A verdict will not be set aside upon review as against the preponderance of the evidence unless clearly and manifestly so.
    2. Contributory negligence—how question to be determined. Whether a plaintiff has been guilty of contributory negligence which resulted in his injury, is a question of fact, where the evidence is conflicting, to be determined by the jury.
    3. Instructions—when upon assessment of damages, will not be reviewed. In the absence of a claim that the verdict is excessive, assignments of error respecting the propriety of instructions given upon the question of damages will not he considered.
    Action in case for personal injuries. Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    Hugh Crea and Hugh W. Housum, for appellant.
    A. G. Webber, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an appeal from a judgment recovered by appellee against appellant for the sum of $1,500 as damages for personal injuries alleged to have been sustained by reason of the negligence of appellant. The first count of the declaration charges that appellee was driving a horse hitched to a wagon, upon and along North Water street, in the city of Decatur; that when he reached a certain place on said street it became necessary for him to drive across the tracks of appellant’s street car line; that while he was so doing, one of the appellant’s cars, which was being run at a high and dangerous rate of speed, ran into his wagon and injured him. The second count charges the failure of the motorman to reduce the speed of the car.

The evidence tends to establish the material allegations of the declaration. The motorman in charge of the car testified that when he noticed appellee he was about 100 feet distant; that the car at the time was running at the rate of thirty miles an hour, and that he saw that appellee was in danger and rang the bell. There is evidence tending to show that after the car had struck appellee it ran from thirty to ninety feet further before stopping. The motorman also testified that at the rate the car was running it could have been stopped within sixty feet, and the conductor testified that it could have been stopped within forty or fifty feet. While the evidence is somewhat in conflict, we are unable to say that the jury were not warranted in finding both that the car was being run at a dangerous rate of speed under the circumstances and that the motorman failed to properly bring the car under control when he noticed that appellee was attempting to cross the track.

It is urged that appellee was guilty of contributory negligence. He testified that at the time he attempted to cross the tracks the wind was blowing hard, and that he did not hear the car approaching; that he looked toward the north for the distance of a block, and seeing nothing, started to drive across the track. The question as to what constituted due care on the part of appellee under the circumstances, was peculiarly one of fact for the jury. Inasmuch as its findings upon the issue was not manifestly contrary to the evidence, we are not disposed to disturb the same.

It is not urged that the verdict is excessive.' It is therefore unnecessary to consider the alleged error in the instructions relative to the assessment of damages. We find no prejudicial error in the rulings of the court on the instructions or the evidence.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    James R. Miller, Appellant, v. C., C., C. & St. L. Ry. Co., Appellee.
    1. Contributory negligence—how question to he determined. Whether a plaintiff has been guilty- of contributory negligence which resulted in his injury, is a question of fact, where the evidence is conflicting, to be determined by the jury.
    2. Instructions—must he predicated upon the evidence. An instruction which is unsupported upon any hypothesis of evidence should not be given.
    Action in case for personal injuries. Appeal from the Circuit Court of Shelby county; the Hon. Albert M. Rose, Judge, presiding. Heard in the court at the May term, 1908.
    Reversed and remanded.
    Opinion filed November 17, 1908.
    Chafee & Chew, for appellant.
    George B. Gillespie, for appellee; L. J. Hackney, Hamlin, Gillespie & Fitzgerald and W. C. Kelly, of counsel.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

In an action by appellant against appellee for the recovery of damages for personal injuries alleged to have been sustained by him through the negligence of appellee, while he was a passenger upon one of its trains, judgment was rendered upon the verdict of a jury, in favor of the defendant and in bar of the action. The negligence charged in the first count of the declaration is that after the train upon which the plaintiff was a passenger had reached the station of Shelbyville and had stopped, he went upon the platform of the coach in which he had been riding intending to alight, and that just as he had reached the platform, the defendant caused the train to be suddenly and violently moved forward, and that the plaintiff in attempting to avoid falling had his fingers caught by the closing of the door of said coach, whereby they were cut and injured. It is further charged in the second count that the defendant negligently caused the door of the coach in question to be opened and in no wise securely fastened. Appellant testified that he received the injury for which he seeks to recover under the following circumstances: “When we reached Shelbyville the conductor and brakeman both went through the train. The brakeman called the station, opened the door, went out, and then closed it. After that the train came to a standstill, and I got up and with my grip in my right hand opened the door with my left hand and stepped out on the platform. Just as I did so the coach made a lurch forward for some cause. There was no one on the platform beside myself. There was nothing said about the train starting. I grabbed for something to keep me from falling and caught the door and it came onto these two fingers and I had to set my valise down and push the door off of them. At the time I set my valise down my fingers were between the door and the facing. I would have fallen to the floor had I not caught the door. My recollection is that I took hold of the door and swung it back and then stepped out. The door swung back on the inside of the car and I was outside of the door standing right even with it. When the ear moved it threw me off my feet. I might possibly have staggered against the door. The door did not lock. My fingers were caught on the opposite side from the hinges. The train was going east and the door opened back to the north.”

The main contested question in the case was whether or not appellant at the time he received the injury, was in the exercise of due care under all the surrounding circumstances. This was a question of fact exclusively for the determination of the jury, and had they been accurately advised as to the law, we would not be disposed to disturb their finding. The court instructed the jury at the request of the appellee, that although they believed from the evidence “that the plaintiff was injured, while alighting or attempting to alight from a passenger train of the defendant company, and that the company was guilty of negligence in causing his injury, yet that fact alone would not entitle him to recover;” and if they believed from the evidence “that at the time he was injured he was attempting to alight from a moving train, or from a train before it had arrived at the platform, or before said train had arrived at the usual place of discharging passengers,” it was proper for them to take into consideration such facts in connection with the other circumstances surrounding the plaintiff, at the time, in determining whether he was in the exercise of due care for his own safety; and that if they determined “that at the time he was injured the plaintiff was not in the exercise of due care and caution for Ms own safety but voluntarily put himself in a place of danger or knowingly attempted to alight from the train while it was moving, or at a time when he knew it was about to be moved, and that in so doing he did not exercise under the circumstances reasonable care and caution for his own safety,” then they should find the defendant not guilty.

The court erred in giving the foregoing instruction for the reason that it was not based upon the evidence. There was no evidence tending to show that appellant was attempting to alight from a moving train at the time he received his injury. The word “alight” in its ordinary acceptation means to get down from or descend. The evidence shows that appellant had when injured but arrived at the platform preparatory to alighting. We are not satisfied that the jury were not misled to the prejudice of appellant. The judgment of the Circuit Court will therefore be reversed and the cause remanded.

Reversed and remanded.


text:
    Davis B. Folrath, Appellee, v. Walter Hutchin, Appellant.
    1. Statute of frauds—who may avail of. A lessee entitled to possession of demised premises may urge as against a former tenant in possession that such possession was under an agreement void by virtue of the statute of frauds.
    2. Landlord and tenant—when demand for possession not essential. Demand for possession is not essential where the tenant is in possession without right.
    Forcible detainer. Appeal from the Circuit Court of Macon county; the Hon. William G. Cochran, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinon filed November 17, 1908.
    C. E. Schroll, for appellant.
    Buckingham & Gray, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an appeal by Hutchins, the appellant, from a judgment rendered against him in a forcible entry and detainer proceeding instituted by Folrath, the appellee. The material facts are the following: Hut-chins and his partner, one Hardy, had leased from Carter, the owner, the premises in controversy, for the period of five years from March 1, 1902. It appears from the testimony of Hutchins and Hardy, that during July, 1905, they had a conversation with Carter relative to a renewal of the lease at its expiration, and that Carter then agreed orally to execute to them a written lease for the premises, upon the expiration of the one they then held, at a rental of $1,600 per annum, payable monthly, and for a period of either five or ten years at their option. Hutchins further testified that upon the following rent day Carter informed him that he had decided not to rent to them again. In August, 1903, Carter leased the premises to Folrath for the term of ten years from March 1, 1907, at $1,600 per annum. On March 1, 1907, Hutchins, to whom Hardy had assigned his interest, tendered to Carter one month’s rent at the rate of $1,600 per annum. Carter refused to accept the same and on March 4th, made a demand in writing for possession of the premises, and upon refusal to surrender them, brought the present suit.

Appellant concedes that the alleged parol agreement for a new lease, for a longer period than one year, was voidable under the Statute of Frauds, but insists that as Folrath was not privy to the contract he was not in a position to take advantage of the statute. Such position is untenable. (Best v. Davis, 44 Ill. App. 624). In reply to appellant’s further contention that inasmuch as he was rightfully in possession under an oral agreement for a lease, the only way in which such occupancy could be terminated was by thirty days’ notice in writing, it will suffice to say that appellant’s own testimony shows that such agreement, if made, was rescinded by Carter before it was acted upon by appellant and Hardy. He was therefore not in possession under an existing and binding agreement at the time demand for possession was made.

In this view of the case the error in giving appellee’s second instruction was harmless. The judgment will be affirmed.

Affirmed.


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    William D. Null et al., Appellees, v. Thomas Parsons et al., Appellants.
    1. Corporations—when principles of partnership applied to. If a corporation closely partakes of the nature of a partnership it will be governed by the rules and principles applied to partnerships.
    2. Corporation—when dissolution of will he decreed. A corporation will be dissolved if it so closely partakes of the nature of a partnership as to be governed by the rules and principles of partnerships and it is shown that ill-will and dissension has arisen between the members forming the joint enterprise.
    3. Equity—when remedy at law does not oust jurisdiction. Under the law of partnerships, the existence of a remedy at; law will not preclude the interposition of equity to grant the relief of dissolution.
    4. Decree—when cannot he attached for insufficiency of prayer for relief. A decree entered pro confesso cannot be questioned on review upon the ground that it was not authorized by the relief prayed.
    Bill in chancery. Appeal from the Circuit Court of Hancock county; the Hon. John A. Gray, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    S. L. McCroby and William; H. Hartzell, for appellants.
    Charles J. Scofield and John W. Williams, for appellees.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is a bill in chancery by appellees against appellants, charging that appellees and appellants, all of whom lived in the vicinity of Burnside, in the latter part of the year 1900, organized a company for mutual convenience in securing telephone service by a system of telephones; that they entered into a written agreement, which provided among other things that each member should share equally in the expense of construction, maintenance or extension of the line and should have equal privileges in its benefits; that such organization should be known as the Shake Bag Telephone Company; that pursuant to said agreement they expended about $600 in installing the system; that prior to January 1, 1907, they had contracts with divers switchboard companies located at Burnside, Illinois, for the exchange of telephone service; that in July, 1906, permission was granted to all who desired to do so, to connect with the Burnside Telephone Exchange, and pursuant thereto appellees contracted with such exchanges and their respective telephones were connected therewith; that about February 1, 1907, appellants connected the line of said Shake Bag Telephone Company with the switchboard of Manning & Steel at Burnside, Illinois, thus making two connections; that such connections had caused confusion and interruption in the use of the Shake Bag Telephone Company’s line, had greatly injured its efficiency and rendered the same wholly without a value for telephone purposes; that at the meeting of the members of said Shake Bag Telephone Company on March 1, 1907, a resolution was adopted providing that all members of the company who then had connection by the wires and poles of the company with the Burnside telephone exchange, should sever such connection within two days, and that in default thereof such connection might be severed by the board of managers of the company, or that a meeting might be called for the purpose of expelling such member, or other proceedings be taken to enforce obedience of the rule; that the board of managers thereafter severed the wire of said company which connected with the Manning & Steel Switch, and that appellants again connected the same, thereby inflicting an irreparable injury to the use of property; that ill-will and dissension had arisen between appellants and appellees and their relations had become so strained that they could no longer work in harmony, and said telephone line had become out of repair and its use entirely destroyed; that they own no other property in common and that a dissolution of said company and a sale of its property and division of the proceeds was necessary in order to preserve the rights of all.

The bill prays that the court ascertain and declare the rights and interests of all the parties to the suit; that a dissolution of said company be decreed; that its property be partitioned among the several parties entitled thereto, if practicable, and if not practicable that the same be sold and the proceeds divided among the parties in interest; and that if necessary a receiver be appointed to wind up the affairs of the company; to which is added the prayer for general relief. A general and special demurrer interposed by appellants to the bill was overruled. They abided by their, demurrer, whereupon a decree was entered dissolving the co-partnership and ordering the master in chancery to make sale of the assets.

We are of opinion that the facts set forth in the bill are sufficient to entitle the complainants to equitable relief and that the chancellor properly so held. It is manifest that the Shake Bag Telephone Company was a joint enterprise and so closely partook of the nature of a partnership as to be governed by the rules and principles of partnerships. Being a partnership at will, it could be terminated at any time. Metcalfe v. Bradshaw, 145 Ill. 124.

The bill avers that ill-will and dissension had arisen between the members so that they could no longer work together in harmony. In such case a court of equity will dissolve a partnership. Whalen v. Stephens, 193 Ill. 121. This is not a proceeding for partition of either real or personal estate, as contended by appellants. It is in effect but a bill for the dissolution of a partnership. If any of the partnership property is real estate, for the purposes of the partnership the same will be in equity considered as personal property. The only interest of the members in the partnership property, whether real or personal, is their proportionate share of the residue upon a final settlement of the partnership business. Simpson v. Leech, 86 Ill. 286; Galbraith v. Tracy, 153 Ill. 54; Van Housen v. Copeland, 180 Ill. 74.

That appellees had not a full and complete remedy at law under section 8 of the by-laws, which provides for the expulsion of any member for a refusal to obey the rules, is too obvious to warrant discussion; but if it were otherwise, such remedy at law would not preclude a suit in equity of the present character. 2 Bates Partnership, sec. 907; 2 Bindley Partnership, p. 486. It is unnecessary to consider the contention that the specific prayer for relief is insufficient to warrant the decree rendered, or that the decree fails to declare the rights of the respective parties. Appellants by abiding by their demurrer, failing to answer, and permitting a default pro confesso to go against them, cannot now question the decree. It appears upon the face of the bill that all members of the partnership are made either parties complainant or defendant. There is therefore no want of proper parties, as is contended, by appellants.

The decree of the Circuit Court will be affirmed.

Affirmed.


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    Henry McDonald, Admr., Appellee, v. B. & O. S. W. R. R. Co., Appellant.

      Negligence—duty of railroad company to warn pedestrians of intended movement of cars. If a railroad company leaves a string of cars standing within a few feet of a public thoroughfare over which pedestrians might reasonably be expected to pass at any time, it is the duty of such company’s servants, in the exercise of ordinary care, in some manner to give timely warning to passersby of the impending movement of such cars.

      Action in case. Appeal from the Circuit Court of Cass county; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    Graham & Graham for appellant; Edward Barton, of counsel.
    A. A. Leeper, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action in case by appellee against appellant, to recover damages for causing the death of appellee’s intestate, which it is charged was the result of the negligence of appellant. A trial by jury resulted in a verdict and judgment in favor of the plaintiff for $750. The deceased was struck and killed by a car upon appellant’s track at a point where the same crossed the public sidewalk upon which he was walking, such car having been set in motion by the impact of a locomotive and string of cars which were being backed over the track which led over the sidewalk. The negligence charged in the declaration is that the car which struck the deceased was within six feet of the sidewalk, with the brake thereon unset, and that appellant negligently ran its locomotive and string of cars against said car, forcing the same against the deceased, thereby causing his death; and further that no servant of appellant was stationed at the crossing to warn persons who might be passing over the same.

The evidence discloses that the. appellant’s tracks and its yards at Beardstown, near the passenger depot, run in a general north and south direction; that all of such tracks terminate on the south side of Fourth street near the passenger depot, except the “city” track, which runs across Fourth street, at right angles, to some local industries. Immediately prior to the accident, a string consisting of six freight cars, was standing on the “city” track in front of the station and but a few feet from the south line of Fourth street. The deceased had walked north along the station platform until he reached the sidewalk on the south side of Fourth street, when he started west across the “city” track, and was run over by the string of cars in question, which had been set in motion by the impact of three other cars which were being pushed by a switch engine over the “city” track from the south.

The evidence tends to show that the brakes upon the latter cars were at the time unset; and further, that a brakeman who was stationed on the north side of Fourth street, endeavored by shouting to the deceased to warn him of his danger prior to stepping upon the track. We are of opinion that in view of the fact that the string of cars were left standing within a few feet of the public thoroughfare over which pedestrians might reasonably be expected to pass at any time, it was the duty of appellant’s servants, in the exercise of ordinary care, in some manner to give timely warning to passersby of the impending movement of such cars. Whether the presence of a brakeman on the opposite side of the street was a suficient compliance with such duty was a question for the jury, as were the further issues as to whether the negligence shown was the proximate cause of the death of plaintiff’s intestate, and whether he was, immediately prior to and at the time he was killed, in the exercise of ordinary care for his own safety. Inasmuch as the conclusion of the jury thereupon was not clearly contrary °to the evidence, we are not at liberty to disturb the same.

The judgment of the Circuit Court is accordingly aErmed.

Affirmed.


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    Robert M. Bingaman, Appellee, v. Toledo, St. Louis & Western R. R. Co., Appellant.
    Appeals and ebbobs—when judgment will he affirmed. If no prejudicial error appears and the verdict is sustained by the evidence, a judgment will be affirmed.
    Trespass on the case. Appeal from the Circuit Court of Coles county; the Hon. James W. Craig, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    C. E. Pope, for appellant; Clarence Brown and Charles M. Sohmettau, of counsel.
    Bryan H. Tivnen, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action in case by appellee against appellant to recover damages for the loss of certain buildings and personal property alleged to have been destroyed by fire communicated by a locomotive engine operated by appellant upon its railroad. The trial resulted in a judgment in favor of appellee for $250. The negligence charged in the first count of the declaration is that the defendant failed to keep its right of way free from grass and other combustibles whereby sparks escaped from one of its locomotives, ignited said combustibles and caused fire to spread to and upon the land of the plaintiff and destroy certain buildings, trees and chattel property of the plaintiff.

The negligence charged in the second count is that the defendant failed to equip a certain one of its locomotives with the best and most approved appliances to prevent the escape of fire, and to keep the same in suitable repair, whereby fire escaped therefrom and burned and destroyed the plaintiff’s said property. Appellant admits in its statements of facts the destruction of the property by fire and that fire was discovered in the barn of appellee immediately after a freight train upon the railroad had passed the vicinity of the premises. There was no evidence tending to show that the fire originated from any other source, and the jury was warranted in finding from all the surrounding facts and circumstances, that it was communicated as charged in the declaration. In this state of the proof, the question whether the court erred in refusing to instruct the jury to disregard the first count of the declaration becomes unimportant. For the same reason the error in appellee’s sixth instruction, even if not cured by appellant’s eighth, which correctly stated the law, was not harmful.

We find no prejudicial error in the rulings of the court upon the other instructions or the admission of evidence.

The motion to tax costs of additional abstract to appellant is denied.

The judgment of the Circuit Court is affirmed.

Affirmed.


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      V. W. Johnston, Defendant in Error, v. A. M. Loar, Plaintiff in Error.
    1. Pleading—effect of verified plea of non est factum. The interposition of a verified plea of non est factum imposes upon the plaintiff the burden of proving the execution of the notes and the endorsement, assignments and respective deliveries of the notes, as averred in the declaration.
    2. Negotiable instruments—presumption as to time of assignment. In the absence of proof as to the time of assignment of a note, it would be presumed that it was made before maturity.
    3. Negotiable instruments—when fraud in inducing execution competent as against assignee. If an assignee, at the time of the assignment to it of the notes in suit, was manifestly not a bona fide purchaser and holder thereof, fraud which induced the execution of such notes may be shown by way of defense to an action brought by such an assignee.
    Assumpsit. Error to the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the May term, 1908.
    Reversed and remanded.
    Opinion filed November 17, 1908.
    W. K. Whitfield and James L. Loar, for plaintiff in error.
    E. J. Miller, for defendant in error.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action in assumpsit by defendant in error against plaintiff in error for the recovery of the amount alleged to be due upon two judgment notes for the sum of $500 each, signed by plaintiff in error, due in six and nine months respectively, and payable to the order of William E. White. Upon the back of each note appears the following endorsement: “Pay to the order of V. W. Johnson without recourse. William E. White.” The declaration alleges that on August 18, 1903, the day the notes bear date, they were assigned and delivered by White, the payee, to the German-American Bank of Bloomington, Ill., and that said bank afterward sold and delivered the same to the plaintiff. The defendant interposed a verified plea denying the transfer and delivery of the notes by White to the bank, or by the bank to the plaintiff, or that they were purchased by the bank in good faith for a valuable consideration before maturity, or at any other time; also special pleas alleging in substance that the notes were purchased by the bank and the plaintiff long after their maturity and were procured to be executed and delivered by the defendant to White pursuant to and in furtherance of an unlawful scheme similar to that described and detailed in White v. Moran, 134 Ill. App. 480; and that there was no othei consideration for the notes, of which fact the bank and plaintiff had notice at the time they acquired the same.

Issues were joined upon said pleas. Upon the trial, at the close of all the evidence, the court directed a verdict for the plaintiff.. Judgment was rendered thereon for $1250.82 being the amount due upon the notes. To reverse such judgment this writ of error is prosecuted by the defendant.

The interposition of the verified plea of non est factum imposed upon the plaintiff the burden of proving the execution of the notes and the endorsement, assignments and respective deliveries of the notes, as averred in the declaration. Walsh v. Marvel, 130 Ill. App. 305. The evidence offered by the plaintiff upon these issues, while meager and somewhat unsatisfactory was sufficient, we think, in the absence of contradictory evidence, to warrant the admission of the notes in evidence.

In the absence of proof as to the time of the assignment of a note it will be presumed that it was made before maturity. Cook v. Norwood, 106 Ill. 558. No evidence was offered by the defendant upon this issue, while the plaintiff offered evidence tending to show that the assignment of the notes was made before maturity.

The defendant on the trial sought to introduce evidence which tended to show the fraudulent and void character of the notes, and that the bank through its cashier had notice of the fraudulent and void character of the notes at the time it purchased them, but the court held such evidence incompetent. This was error. We have heretofore held, in White v. Moran, supra, that a promissory note executed and delivered under the circumstances and for the purposes alleged in the pleas, is without legal consideration and void as between the original parties. If the bank at the time the notes in suit were transferred to it had notice of such facts, it was manifestly not a bona fide holder of the same, and took them subject to all defenses, notwithstanding it may have acquired them for a valuable-consideration before maturity and in the regular course of business.

Other questions are presented and argued which it is at this time unnecessary to consider or determine. The judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.


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    The People of the State of Illinois, ex rel. Viola Slusser, Defendant in Error, v. Bertha Johnson, Plaintiff in Error.
    1. Appears and errors—what court has jurisdiction of appeal appointing guardian. An appeal lies from the County to the Circuit Court from an order appointing a guardian for a minor child.
    2. Guardian and ward—character of proceedings for appointment. Application for the appointment of a guardian for a minor child is in no proper sense a suit or proceeding at law or in chancery within the meaning of section 8 of the Appellate Court Act, but such a proceeding is purely statutory.
    Petition for appointment of guardian. Error to the County Court of Vermilion county; the Hon. Isaac A. Love, Judge, presiding. Heard in this court at the May term, 1908.
    Writ of error dismissed.
    Opinion filed November 17, 1908.
    George B. Leonard, for plaintiff in error.
    Keeslar & Gun, for defendant in error.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

On July 3, 1907, Viola Slusser filed a petition in the County Court for the appointment of a guardian of the person of Genevieve Jenkins, a minor child of the plaintiff in error, averring in said petition that the father had deserted said child and the mother was addicted to the excessive use of intoxicating liquor. On the same day the court issued a citation directing the plaintiff in error to appear on July 6, 1907, and show cause why the prayer of the petition should not be granted. The citation was served upon the plaintiff in error by the sheriff, and she appeared in court and resisted said petition. The court after hearing the evidence held that the plaintiff in error was not a proper person to have the custody of said child, and appointed Viola Slusser the guardian of said child. To review said order a writ of error was sued out of this court.

Although the question is not urged by counsel, we are of opinion that the writ of error should be dismissed on the ground of lack of jurisdiction in this court to issue the same. Section 43 of the act entitled “Guardian and Ward” (Rev. Stat. p. 1174) provides that appeals shall be allowed to the Circuit Court from any order or judgment made or rendered under this act, upon the appellant giving bond, etc. McCallum v. Trust Co., 203 Ill. 142, cited by counsel for plaintiff in error, was a writ of error sued out from the Supreme Court, from the Probate Court of Cook county, to review the order of that court disapproving a guardian’s report of sale of real estate and ordering a re-sale of the property. The court held that the foregoing section was repealed by implication by the adoption of section 88 of the Practice Act and section 8 of the Appellate Court Act, and that the writ of error was properly sued out from that court. We do not think that it was there intended to be held that writs of error or appeals to review other orders in guardianship matters than those pertaining to applications to sell real estate, should issue from or lie to the Appellate or Supreme Courts. This view is borne out by section 11 of the Probate Court Act (Rev. Stat. 1905, p. 628), which provides that “appeals may be taken from the final orders, judgments and decrees of the Probate Courts to the Circuit Courts of their respective counties in all matters except in proceedings on the application of executors, administrators, guardians and conservators for the sale of real estate, upon the appellant giving bond,” etc.

It is obvious that proceedings for the appointment of guardians are in no proper sense suits or proceedings at law or in chancery within the meaning of section 8 of the Appellate Court Act, but that they are purely statutory. Grier v. Cable, 159 Ill. 29. This court therefore has no jurisdiction to issue writs of error to review orders, judgments or decrees of the County or Probate Courts in guardianship matters, except those involving applications to sell real estate and where a freehold is not involved. Lynn v. Lynn, 160 Ill. 317. The proper remedy in proceedings of the present character, is through an appeal to the Circuit Court. The writ of error is therefore dismissed.

Writ of error dismissed.


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    Lettie Still, Administratrix, Appellee, v. McGuire-Cummings Manufacturing Co., Appellant.

      Instructions—must be confined to issues. Instructions which are . not confined to the issues of a cause should not be given.
    Action in case. Appeal from the Circuit Court of Edgar county; the Hon. James W. Craig, Judge, presiding. Heard in this court at the May term, 1908.
    Reversed and remanded.
    Opinion filed November 17, 1908.
    H. S. Tanner and J. E. Dyas, for appellant.
    John W. Shepherd and Frank T. O’Hair, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action in case by Lettie Still, administratrix of the estate of William Still, deceased, against the McGuire-Cummings Manufacturing Co., for the recovery of damages for wrongfully causing the death of her intestate, which it is charged was occasioned by the negligence of the defendant company. The jury returned a verdict for plaintiff and assessed the damages at $4,000. To reverse the judgment rendered thereupon this appeal is prosecuted by the defendant.

The first count of the declaration alleges in substance that the defendant, a corporation, was engaged in the construction of railroad and other cars; that on the day he was killed Still was in its employ and with other servants was engaged in assembling the various parts of cars, under the direction of a foreman; that he was directed by said foreman to assist in lifting and unloading a heavy iron car frame from a flat car; that he and other servants were directed to and did place an iron chain, furnished by the defendant, and which was attached to a derrick, around said car frame, so that such frame could be lifted from the flat car, and placed in proper position to be used; that the defendant negligently failed to furnish a chain of the proper strength and size for the use aforesaid, but furnished one of insufficient size, quality and strength to bear the weight of and lift said car frame; by reason whereof, while Still was engaged in assisting in lifting and removing said car frame by means of said derrick and chain, such chain, because of its insufficiency, defective condition and lack of strength, proper size and quality, then and there broke and permitted said car frame to fall upon him, thereby causing his death.

The negligence charged in the second count is that the defendant failed to furnish a sufficient chain or chains and fall lines and guy ropes, of proper and sufficient strength, size and quality to enable Still and the servants employed with him, to safely move and handle said car frame, and that the foreman, who was not a fellow-servant of Still, negligently failed to properly direct the use of said apparatus in a safe and proper manner.

As the cause may again be tried, we shall not discuss the evidence, other than to say that there was evidence adduced which fairly tended to support the declaration.

At the request of the plaintiff the court gave to the jury the following instruction:

“The court instructs the jury that a master is liable to his servant, if the master is guilty of negligence, if he orders the latter to perform a dangerous work, unless the danger is so imminent that no man of ordinary prudence would incur it. Even if the servant has some knowledge of the attendant danger, his right to recover will not be defeated if in obeying the order he acts with a degree of prudence which an ordinarily prudent man would exercise under the circumstances. When the master orders the servant to perform his work, the latter has a right to assume that the former, with his superior knowledge of the facts, would not expose him to unnecessary peril. The servant has a right to rest upon the assurance that there is no danger which is implied by such order, provided this instruction is to be read and construed with the following instructions, which are part of this instruction.”

It will be observed that there is no allegation in either count of the declaration charging that appellant or its vice-principal gave any orders or directions to Still to perform any hazardous work and that he was injured as the result of obeying the same. The gravamen of the negligence charged is the failure of appellant to use reasonable care to provide reasonably safe appliances for the use of Still and its other servants. The instruction quoted was therefore inapplicable under the pleadings, and directed the attention of the jury to grounds of liability other than those charged in the declaration. They were thus misled, and it is impossible to determine whether or not appellant was prejudiced thereby. A majority of the court are of the opinion that the error in giving the instruction in question is not cured by the other instructions in the series, and that the judgment of the Circuit Court must be reversed and the cause remanded.

jReversed and remanded.


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    People, etc., for use of Levi W. Sholtey, Appellant, v. Thomas Crowe et al., Appellees.

      Damages—when allegation of special, essential. The rule is that whenever the damages sustained have not necessarily accrued from the act complained of, and consequently are not implied by law, then in order to prevent surprise of the defendant which might otherwise ensue on the trial, the plaintiff must in general state the particular damage which he has sustained, or he will not he permitted to give evidence of it.
    Trial of right of property. Appeal from the Circuit Court of Ford county; the Hon. George W. Patton, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    Charles M. Peirce and Schneider & Schneider, for appellant.
    Sigmund Livingston, Cloud & Thompson and Frank Lindley, for appellees.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

Upon the reversal of a former judgment in this cause and the remandment of the same to the Circuit Court (130 Ill. App. 349), the cause was submitted to another jury upon the issues whether there was any record of the supposed judgment of the County Court in the proceedings for the trial of the rights of property, and whether the property taken by Crowe was that of Otto and Mary Taylor or of Sholtey. Both issues were established in favor of appellant. At the close of all the evidence the court instructed the jury to find the issues in favor of the plaintiff and assess his damages at one cent. Upon a verdict so returned, judgment was rendered in debt for the penalty of the bond and for one cent damages.

The chief controversy upon the trial was as to the amount of damages to which Sholtey was entitled under the pleadings. After he had proved the taking of the property, appellees, in mitigation of damages, proved that the same had been returned to the possession of Sholtey. Sholtey then offered to prove in rebuttal that in order to procure said return of the property he had been compelled to pay a large sum of money for traveling and other expenses, court costs and attorney’s fees; but- the court held such evidence improper under the pleadings. He then sought further to prove the fair cash value of the property at the time it was levied upon, and that when returned it had materially depreciated in value. This, too, the court held improper, for the same reason. We are of opinion that the ruling of the court was proper. If Sholtey desired to recover special damages he should have claimed the same in his declaration. The rule is that whenever the damages sustained have not necessarily accrued from the act complained of, and consequently are not implied by law, then in order to prevent surprise of the defendant which might otherwise ensue on the trial, the plaintiff must in general state the particular damage which he has sustained, or he will not be permitted to give evidence of it. 1 Chit. Pl., 397. It follows that there being no proof of other than nominal damages the court properly instructed the verdict returned.

Various other reasons are assigned for reversal, none of which we deem meritorious. The judgment of the Circuit Court was warranted and will therefore be affirmed.

Affirmed.


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    Joseph Miller, Appellee, v. Kelly Coal Co., Appellant.
    1. Proximate cause—defined. The proximate cause of an injury is that act or omission which immediately causes and without which the injury would not have happened, notwithstanding other conditions or omissions concurred therewith.
    2. Negligence—what does not excuse. The presence of a concurring or intervening cause does not excuse liability for negligence which proximately results in the injury.
    3. Master and servant—what risk not assumed. No duty of inspection or inquiry is imposed upon the servant, and he has the right, in the absence of knowledge or means of knowledge to the contrary, to assume that the master would not supply him with improper means to perform his work, as in this case a vicious mule.
    Action in case for personal injuries. Appeal from the Circuit Court of Vermilion county; the Hon. E. R E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    Buckingham & Troup, for appellant.
    S. F. Schecter and Acton & Acton, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action in case by appellee against the appellant corporation to recover damages for personal injuries sustained by appellee while working as a mule driver in appellant’s mine. The jury returned a verdict in favor of appellee and assessed his damages at $3,000. Judgment was rendered thereon. To reverse such judgment this appeal is prosecuted. The first count of the declaration under which the verdict was returned alleged in substance, that appellee on May 31, 1907, was working for defendant as a mule driver and in the usual course of his employment was engaged in hauling coal along the sixth northwest entry; that the defendant negligently furnished the plaintiff with a mule that was vicious and disposed to kick, and otherwise to be and become dangerous and unmanageable, of which facts the defendant was then and there well aware, and of which the plaintiff had no notice; that on the morning of the second day the plaintiff had driven said mule, he was hauling coal along said entry, and that when about opposite room 30 of said entry the said mule, without provocation other than its vicious disposition, as aforesaid, began kicking and struck plaintiff and knocked him down in front of the car; that because of a gob of debris that defendant had permitted to accumulate there on either side of said track, plaintiff was unable to get away, and was caught beneath said car loaded with coal, and the car pulled up against and upon him, thereby injuring him.

Appellee testified that he had been driving along the entry where he was injured, for about three months prior to the day he was injured; that the accumulation of gob along the entry at the place he was engaged was about as high as the entry itself and extended close to the side of the car; that he had known of the proximity of the gob ever since he had driven in the entry; that upon his first trip in the morning, of the second day he had driven this particular mule, it began kicking; that after the mule kicked him the first time he stepped off the car to one side and tried to climb over the gob, but was unable to do so; that the mule kicked him again and he fell under the car, and that if it had not been for the presence of the gob he would have escaped injury. There is evidence tending to show that the mule was vicious and disposed to kick, and that appellant had notice through a former boss mule driver of such propensity, and we are unable to say that the jury was unwarranted in so finding.

It is first urged that the presence of the gob was the proximate cause of the injury; that inasmuch as appellee knew of the presence of the gob and continued to work without complaint, he assumed the risk of injury therefrom. The proximate cause of an injury is that act or omission which immediately causes and without which the injury would not have happened, notwithstanding other conditions or omissions concurred therewith. 1 Thomp. Neg. 56; Weick v. Lander, 75 Ill. 93; Carterville Coal Co. v. Cook, 129 Ill. 152. It is obvious that in the case at bar the immediate cause of appellee’s injuries was the kicks he received from the mule; that had not the mule kicked, appellee would not have been harmed by the presence of the gob. Even though the gob be held to have been a concurring or intervening cause of the injury, appellant would be nevertheless liable for the reason stated.

The assignment of error that the damages are excessive, is not argued by counsel. The contentions that the court erred in admitting improper evidence, and in improperly giving an instruction for the plaintiff relative to the assessment of damages, are therefore unnecessary to be considered.

It is urged that the court erred in giving an instruction that if the jury believed from the evidence that the plaintiff had proved his case as set forth in the' first count of the declaration, it was their duty to find in his favor, for the reason that it did not negative the assumption of risk. There was no evidence which would have justified the jury in finding that appellee had knowledge of the disposition of the mule to kick, or that by the exercise of due care he would have acquired such knowledge, or that he had the same or equal means as appellant of ascertaining such fact. No duty of inspection or inquiry was imposed upon him, and he had the right, in the absence of knowledge or means of knowledge to the contrary, to assume that appellant would not furnish him with a vicious mule. The risk was clearly not ordinarily incident to his employment. The question of assumed risk was not involved in the case, and any inaccuracies in other instructions criticized could not have been harmful to appellant.

There was sufficient competent evidence in the record to warrant the verdict, and the judgment will be affirmed.

Affirmed.


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    Walter Mathias, Appellee, v. George W. Miller, Appellant.

      Injunctions—when should he denied. If a remedy at law exists, as in this case for replevin, an injunction should not be awarded.
    Bill for injunction. Appeal from the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the May term, 1908.
    Reversed and remanded.
    Opinion filed November 17, 1908.
    Walter Eden and Eden & Martin, for appellant.

      R. M. Peadro and M. A. Mattox, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court refusing to dissolve an injunction. The following facts are averred in the bill: Peter Mathias, the father of appellee, leased from the defendant Miller 160 acres of land for the year ending March 1, 1908, at a rental of $1100, payable in equal installments on October 1,1907, and January 1, 1908. On March 15, 1907, Peter Mathias sublet to appellee 80 acres of said land, upon his agreement to pay one-half the rent stipulated, whereupon appellee went into possession of said 80 acres and raised crops thereon. In August, 1907, Peter Mathias was adjudged bankrupt, and his trustee Webb took possession of all his property and appraised the same. Appellant then filed against the estate of said bankrupt his claim for rent due under the lease, in the sum of $1100, which claim was allowed by the bankruptcy court as a first lien upon the crops belonging to said bankrupt, which were of the value of $1300. On September 28,1907, appellee tendered appellant $520, the amount that he had agreed to pay to his father as rent for the land sublet by him, but appellant refused to accept the same, whereupon said sum was deposited in a bank with instructions to pay the same to appellant upon presentation of a receipt therefor. The money so tendered was borrowed by appellee, and payment of the same secured by a mortgage upon personal property including the crop raised by him upon the premises rented by him of his father. On October 16,1907, appellant caused a distress warrant to be issued against the property of Peter Mathias and to be levied upon the crops which appellee had raised upon the premises in quesion. Upon the return of the distress warrant into court, appellant intervened in the proceeding, and on November 19, 1907, without notice to appellee, and with full knowledge that the property was that of appellee, procured an order for the sale of such of said property as was perishable. A temporary injunction was ordered against appellant, in accordance with the prayer of the bill, restraining him from further interference with said property or the rights of the orator in his management, control and sale of the same, conditioned upon appellee paying into court the sum of $550 for the use of appellant. On April 28,1908, a supplemental bill was filed by appellee, setting up that on the 11th day of April, 1908, a decree was entered by the bankruptcy court ordering the trustee to pay to appellant the sum of $550, which amount appellant refused to accept. A motion to dissolve said injunction was heard by the court upon affidavits, and denied.

We are of opinion that the chancellor erred in refusing to dissolve the injunction. Appellee had a complete and adequate remedy at law. It is manifest that if the property levied upon was his property and not that of his father, he could have proceeded by replevin to obtain possession of the same, or have had his rights protected and adjudicated by intervening in the distress proceeding, or by a trial of the right of property under the statute. The decree of the Circuit Court will accordingly be reversed and remanded with directions to dismiss the bill for want of equity.

jReversed and remanded with directions.


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    Lydia A. Edwards, Appellant, v. W. Scott Edwards, Appellee.
    1. Repeal—when not effected by implication. A repeal by implication is not favored in the law, and a later statute will never be held to repeal an earlier one, unless they cannot be reconciled. It is the duty of the court to construe them so as to avoid a repeal, if such a construction can be given, and a statute will never be held to be repealed by implication if it can be avoided by any reasonable .hypothesis.

      2. Repeat.—when general law does not affect special. A subsequent law which is general does not repeal a former one which is special and intended to operate on a particular subject, unless it is impossible that both should be enforced. The one does not repeal the other, if both may exist together, and the court will seek for such a construction as to reconcile them, and thus give effect to the legislative will as expressed in each act.
    3. Administration of estates—when next of Join not entitled to. Section 9 of chapter 86, pertaining to idiots, drunkards and spendthrifts, is not repealed by section 18 of the Administration' Act, and the conservator of the deceased, rather than the next of kin, is entitled to administer.
    Petition for letters of administration. Appeal from the Circuit Court of Fulton county; the Hon. George W. Thompson, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    Marvin T. Robison and Charles F. Robison, for appellant.
    W. Scott Edwards and Harry M. Waggoner, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an appeal by Lydia A. Edwards from a judgment of the Circuit Court setting aside an order of the County Court by which she had theretofore been appointed administratrix of the estate of her deceased husband, Samuel Edwards, and appointing appellee, W. Scott Edwards, who was acting as conservator of said Samuel Edwards at the time of his death, to administer said estate. The appellee predicated his right to administer upon section 9 of chapter 86 of the statutes, which provides that “Whenever any lunatic, idiot, drunkard or spendthrift shall die seized or possessed of any real or personal estate, then such conservator shall have full power and authority under the letters issued to him or her, to make full settlement of the estate of said deceased ward, without further letters of administration, in such time and manner as is required by law of administrators of the estates of deceased persons. Provided this shall not apply to non-resident conservators.” Rev. Stat. 1905, p. 1347. Appellant claims the right, as widow of said decedent, by virtue of section 18 of the Administration Act, which as amended, provides for the grant of letters of administration of the estates of all persons dying intestate, by certain persons as therein named, giving preference to the surviving husband or wife, if any. Rev. Stat. 1905, p. 107. It is contended by appellant that inasmuch as the latter section was enacted, as amended, subsequently to the adoption of the former section, it repealed the former by implication. The cause having been submitted to the court upon an agreed statement of facts this is the only question presented for determination.

It is well settled that a repeal by implication is not favored in the law, and a later -statute will never be held to repeal an earlier one, unless they cannot be reconciled. It is the duty of the court to construe them so as to avoid a repeal, if such a construction can be given, and a statute will never be held to be repealed by implication if it can be avoided by any reasonable hypothesis. It is also the rule that a subsequent law which is general does not repeal a former one which is special and intended to operate on a particular subject, unless it is impossible that both should be enforced. The one does not repeal the other, if both may exist together, and the court will seek for such a construction as to reconcile them, and thus give effect to the legislative will as expressed in each act. Village of Ridgway v. Gallatin Co., 181 Ill. 521; Fowler v. Pirkins, 77 Ill. 271; Trausch v. County of Cook, 147 Ill. 534; Lang v. Friesenecker, 213 Ill. 598. Unless, therefore, the statutes in question can be said to be so directly and positively inconsistent with and repugnant to each other that under no reasonable hypothesis can both be enforced, the contention is without force. Lang v. Friesenecker, supra.

The former section is special in that it operates upon a particular subject, that of the administration of the estates of incompetent persons upon whose conservators are conferred unusual powers.. We perceive no reason why the respective sections cannot be fairly reconciled and each be consistently enforced independently of the other. The effect of such construction would be to preserve the preferences conferred by the latter section, except in the special case mentioned in the former. No violence would thus be done to the terms of the respective acts, nor, as we believe, would the legislative intent as expressed in each act, be thereby defeated. The purpose of the former section, which was evidently to save the expense of administering upon the estates of deceased persons whose estates were already under the control of conservators and undergoing settlement by the latter (Lang v. Friesenecker, supra), is thus recognized and kept effective.

It is further contended by appellant that in the absence of any proof by appellee that he was a resident conservator his appointment was invalid. If he was disqualified to act for the reason stated, it was the duty of appellant to have established such fact upon the de novo hearing upon the petition in the circuit court.

The judgment will be affirmed.

Affirmed.


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    Hugh G. Park, Appellee, v. Mary J. Lehman, Appellant.
    Master in chancery—when findings of fact not disturbed. Findings of fact by a master, approved by the chancellor, will not be disturbed on review, unless manifestly against the weight of the evidence.
    Bill for specific performance. Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    C. E. Schroll, for appellant.
    Mills Bros., for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is a bill by appellee to enforce the specific performance by appellant of an alleged agreement for the extension of a lease. The chancellor entered a decree granting the relief prayed in the bill. The bill avers that appellant was the owner of a life estate in certain farm lands, and that she executed to appellee a lease of the same for the period of three years from March 1, 1905; that during the year 1906 the barn on said premises was in bad repair, and appellee applied to appellant to construct a new one, but that appellant represented that she did not have the necessary money to do so, and that thereupon appellee agreed that if appellant would extend his lease until March 1, 1912, he would furnish the money necessary to build a new barn, the amount so furnished to be credited pro rata upon the notes to be given by him for rent during the extended period; that he had expended in tearing down the old barn and constructing a new one the sum of $517.58; that he had applied to appellant to extend said lease, and make proper credits' upon his notes, but that she had refused to do so. The cause was referred to the master, who found the facts to be substantially as alleged in the bill, and recommended that a decree be entered in accordance with the prayer thereof.

It is conceded by appellant in argument that appellee is entitled to have his lease extended for the period claimed, the only point in dispute being as to what amount should be credited upon his rent notes. It is insisted that under the agreement for the extension of the lease appellant was to pay $300 only on account of the construction of the barn. The only question involved, therefore, is one of fact. The evidence is in conflict. The conclusions of the master, who saw and heard the witnesses, upon the issue, are in favor of appellee, and the chancellor has approved such finding. We cannot say that such conclusions are against the manifest weight of the evidence, and therefore would, he unwarranted in disturbing the same. Day v. Wright, 233 Ill. 218. The decree of the circuit court is affirmed.

Affirmed.


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    Wabash Realty & Loan Company, Appellant, v. Fred A. Krabbe, Appellee.
    Landlord and tenant—how written lease may he surrendered. A written lease, even though it be under seal, may be surrendered by a parol agreement or by an agreement inferable from the conduct of the parties.
    Assumpsit. Appeal from the County Court of Champaign county; the Hon. Thomas J. Roth, Judge, presiding. Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    Schaefer & Dolan, for appellant.
    Savage & Woods, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is a suit brought November 1, 1907, upon a written lease, for the recovery of rent alleged to be due to the appellant corporation from appellee Krabbe, for certain premises in the city of Champaign, the term of said lease being five years from June 1, 1904, and the rental fifty dollars per month, payable on the first day of each month. The case was tried in the County Court, and the judgment rendered upon the verdict of the jury in favor of the defendant. In addition to the general issue, appellee pleaded, first, that the lease was surrendered on September 1, 1905, at which time no rent was due upon the same; and second, actio non as to so much of the rent as became due after May 30, 1907, for the reason that it was stipulated in and by the lease that appellee should occupy the premises for saloon purposes and for no other purpose; that it was therein provided that beer manufactured by the Terre Haute Brewing Company should he given the preference in the sale of beer upon said premises, and that the city council had adopted an ordinance prohibiting the sale of intoxicating, malt, vinous or fermented liquor within the limits of said city, which ordinance became effective May 20, 1907; by reason of all of which appellee could not thereafter legally conduct a saloon upon said premises, nor use the same for any other purpose whatsoever, whereby said lease became null and void and the premises were and continued to be until' the time of the commencement of the suit, rendered useless for the purpose for which the same were rented. Demurrers were interposed to said special pleas. The court sustained the same as to the first and overruled it as to the second. No replication, however, was filed to said second plea.

The evidence shows that appellee occupied the premises for saloon purposes from June 1, 1904, until September 5,1905, when the business was purchased from him by one Mascher. No formal transfer of the lease was made, and Mascher continued to conduct the saloon upon the premises until March, 1907, during which time he paid the rent to appellee’s agent. The rent which it is sought to recover in the present suit is for the period of from March to November, 1907, inclusive.

It will be observed that the second special plea does not purport to meet the entire cause of action, but only the claim for rent claimed to have accrued subsequent to May 20, 1907. The verdict returned in favor of the defendant must therefore have been rendered upon the theory that a surrender of the lease had been established under the general issue. Otherwise a verdict for the rent which accrued subsequently to the month of February, and prior to May 20, 1907, would necessarily have followed. Therefore, the action of the court in overruling the demurrer to the second plea, and the admission of the ordinance in evidence, if error, could not have been prejudicial, and it is unnecessary to determine the question of the sufficiency of the plea.

Appellant insists that the verdict of the jury is against the weight of the evidence upon the issue as to whether the lease was in fact surrendered by appellant. It is well settled that a written lease, even though it be under seal, may be surrendered by a parol agreement, or by an agreement inferable from the conduct of the parties. Stobie v. Dills, 62 Ill. 432; Fry v. Patridge, 73 Ill. 51; Dills v. Stobie, 81 Ill. 202; Alschuler v. Schiff, 164 Ill. 298. While the evidence is in conflict upon this issue, we cannot say that the surrounding facts and circumstances disclosed by the evidence were insufficient to warrant the finding that the lease and premises were surrendered to appellant by appellee and accepted by it, thus releasing appellee from further liability under the lease.

We find no reversible error in the rulings of the court upon the instructions or in the admission of evidence. The judgment of the circuit court is affirmed.

Affirmed.


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    Joseph A. Miller, Administrator, Appellant, v. Peter Mathias and Mary Mathias, Appellees.
    1. Evidence—when party incompetent by virtue of interest. Where the adverse party sues or defends in a representative capacity, the other party in interest is incompetent.
    2. Evidence—when admissions of one party hind another. The admission of one joint lessee is general evidence against both lessees.
    Assumpsit. Appeal from the County Court of Moultrie county; the Hon. E. D. Hutchinson, Judge, presiding. Heard in this court at the May term, 1908.
    Reversed and remanded.
    Opinion filed November 17, 1908.
    Walter Eden and Eden & Martin, for appellant.
    R. M. Peadro and M. A. Mattox, for appellees.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action by appellant to recover rent alleged to be due under a verbal lease by the terms of which appellant’s intestate, Salathiel Miller, rented to appellees certain farm lands for the year beginning March 1, 1905, at the rental of $1,440. The jury returned a verdict in favor of the defendants, upon which judgment was duly rendered. It is conceded that all of said rent has been paid except the sum of $400, which is the amount now in controversy. Upon the trial appellant testified that all he knew had been paid on account of the rent was $1,050, which would leave still due the sum of $400, and that he had heard appellees say that they had rented the land in question from his father, his intestate. Counsel for appellees then contended that they were entitled to show the entire conversation between the deceased and the witness, and under such pretext the court, over the objection of appellant, permitted Mrs. Mathias to relate in detail a conversation which she claimed to have had with the deceased and to have repeated to appellant after his appointment as administrator. She was thus allowed to testify in effect that she told appellant that she paid the deceased $400 in September, 1906; and that she at that time exhibited to appellant an account book containing an entry pertaining to the transaction made on the day the money was paid. A party to a suit of the present character is an incompetent witness under the statute as to any transaction with the deceased. There was- nothing in the cross-examination of the witness which rendered the conversation in question competent. The jury doubtless believed from the testimony of Mrs. Mathias' that she had paid the deceased the sum in controversy in the ease, on the day in question, that she had shown him an entry to that effect in her account book and that he failed to object to the correctness of the same. The error was therefore clearly prejudicial to appellant.

To sustain his contention that the sum in controversy was still due under the lease, appellant proved certain alleged admissions by Peter Mathias which tended to support such claim. The court instructed the jury that such admissions were not binding upon Mary Mathias. This also was error. Being joint lessees of the premises, it will be presumed in the absence of proof to the contrary, that they shared in the benefits. They therefore had a joint interest in the suit, and an admission by one was general evidence against both. 1 Greenleaf Evidence, sec. 174; McMillan v. McDill, 110 Ill. 51.

For the reasons stated the judgment is reversed and the cause remanded.

Reversed and remanded.