text:
    Charles Houck et al., Appellees, v. Benjamin D. Herrick, Appellant.
    Gen. No. 5,976.
    1. Equity, § 493

      —necessity of cross-bill for relief between co-defendants. Equities arising between codefendants can only be adjusted on cross-bill filed by the party seeking such aid of the court.
    2. Wills, § 486*—right to adjustment of equities between defendants on bill to enforce payment of legacies. On bill to enforce the payment of legacies which were made a charge upon real estate, a defendant who had purchased a one-half interest in the real estate from his codefendant without taking into account the charge upon the property cannot complain of a decree in favor of complainants on the ground that the court did not provide some effectual means of collecting the legacies from his codefendant and exonerate his interest in the land, where he did not file a cross-bill to have the equities between himself and his codefendant adjusted.
    Appeal from the Circuit Court of Woodford county; the Hon. Thomas M. Harris, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed July 31, 1914.
    A. F. Goodyear, for appellant.
    John F. Bosworth, Vane C. Bosworth and H. E. Torrance, for appellees.

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

This case has been once before in this court, and our opinion may be found in 179 Ill. App. 274. We will not repeat what may be there read.

After the cause was reinstated*™ the trial court, Benjamin D. Herrick, appellant, filed his answer therein, stating that he purchased the land of Lizzie Q-rove Byan, paying full market value therefor without taking into account any charge for the payment of said legacies, that she was and is solvent, and introduced some evidence in support thereof. Lizzie Qrove Byan also filed an answer, but set up no facts affecting the questions here presented. The chancellor entered a decree in which he found that Lizzie Qrove Byan is personally liable to pay the legacies; that she is solvent; that complainants (the legatees) are entitled, in case said premises do not sell for sufficient money to satisfy said legacies, interest and costs of this proceeding, to a personal judgment against her for the residue of said legacies; that the undivided half interest in said premises was conveyed by Lizzie Qrove Byan to Benjamin D. Herrick, who paid the full value of said half interest; and ordered that Lizzie Qrove Byan pay within twenty days said legacies and interest thereon, together with costs of this suit; and that in default of such payment the premises (the half interest) be sold, etc.

Appellant assigns as error: That the court did not settle the rights of all the parties and relieve appellant from bringing another action for reimbursement, and. did not provide some effectual means of collecting the legacies from Lizzie Qrove Byan and exonerating the lands of appellant.

The answer is that equities arising between codefendants can only be adjusted on cross-bill filed by the party seeking such aid of the court. This has been repeatedly held from the case of Ballance v. Underhill, 4 Ill. (3 Scam.) 453, to Thomas v. Thomas, 250 Ill. 354, and it is not a mere technical rule of pleading. If one defendant seeks relief f as against another defendant because of facts and conditions alleged to exist, that other defendant must have an opportunity to answer and be heard in the matter, which is not afforded by setting up in an answer grounds for such relief. Appellant filed no cross-bill and therefore cannot complain that equities between himself and Lizzie Grove Ryan were left unadjusted. We express no opinion that the facts disclosed by his answer, if properly pleaded, would entitle him to relief. It Was not the duty of the chancellor to consider or determine that question, and he did not err in not doing so.

In other respects the decree is in accordance with the directions of this court in its former opinion, and while counsel for appellees have furnished us with citations of many authorities supporting the conclusions there announced, we will not discuss or review them. The principles there announced were the law of this case for the purpose of the further hearing below, and we see no reason for modifying what we said in our former opinion.

The decree is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Carnes

license: Public Domain

text:
    Edward J. O’Beirne Appellee, v. City of Elgin et al., Appellants.
    Gen. No. 5,978.
    1. Municipal cobpobations, § 79
      —when ordinance required to be filed for public inspection. An ordinance authorizing the issuance of bonds for a municipal electric lighting plant and a system of street lighting, held to he an ordinance authorizing the making of a contract so as to fall within the provisions of art. 13, § 33, of the Act relating to cities, villages and towns, J. & A. If 1592, requiring such, an ordinance he filed for public inspection previous to its final passage or adoption.
    2. Elections, § 89

      —when suggestive form of ballot renders election void. Where a ballot, submitting to the voters the question, whether city bonds should be issued for a municipal electric lighting plant and a street lighting system, used the following words to indicate the question submitted: “If you favor Municipal Ownership, vote yes. If you oppose Municipal Ownership, vote no. By making a cross in one square below, thus: (x),” held that words used were suggestive, that they might influence the voter in making his choice, and that the ballot used was such a noncompliance with the statute as to render the election void.
    3. Elections, § 2*—compliance with election law. A failure to comply with the provisions of the election law in a matter of substance in conducting an election renders the election void.
    4. Injunction, § 162*—right to temporary injunction without notice. The granting of a temporary injunction without notice cannot be defeated because of the fact that complainant might have filed his bill earlier and thus had time to give notice of his application.
    5. Injunction, § 385*—questions not r'eviewahle on appeal from interlocutory order. On appeal from an interlocutory order granting an injunction, the case stands as though the defendant had demurred to the bill, and the defendant cannot raise the question that the injunction was issued without notice or that the bond was approved by the clerk instead of by the court.
    6. Injunction, § 13*—right of taxpayer to maintain hill. A taxpayer may maintain a bill to enjoin the letting of an illegal contract, or the extension of an illegal tax, irrespective of the question whether he could also successfully defend against the collection of the tax levied on his property.
    7. Injunction, § 99*—when letting of contract hy city may be enjoined. The fact that a contract to be let by a city as a part of the execution of the provisions of an illegal ordinance could have been made by it in the absence of an -ordinance, is no defense to a suit to enjoin the city from letting it, where it appears the contract was intended as a part performance of the plan of the ordinance and was not considered by the city as an independent contract.
    8. Injunction, § 99*—right to enjoin city from letting contracts pursuant to ordinance adopted hy void election. A taxpayer is entitled to maintain a bill to enjoin a city from letting a contract pursuant to an ordinance adopted by an illegal election though the void election complained of was'not contested in an action at law.

      Appeal from the Circuit Court of Kane county; the Hon. Clinton F. Irwin, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed July 31, 1914.
    Eugene Clifford, for appellants; Charles M. Haft, of counsel.
    Charles L. Abbott, Walter E. Healy and Glenne R. Beverly, for appellee.

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

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

This is an appeal from an order entered April 14, 1914, granting, without notice and on a bond approved by the clerk instead of the court, an interlocutory injunction restraining appellants, the City of Elgin and certain of its officers, from proceeding under an ordinance providing for a municipal electric lighting plant and a system-of electric lights for ligthing the streets of said City and the issuing of $162,000 of bonds to be designated as “Lighting Plant Bonds of 1914,” to be in force from and after its passage, publication and approval by a majority of the legal voters of the City of Elgin voting at a general or special election to be held.

The bill on which the temporary injunction issued was filed by appellee, Edward J. O ’Beirne, a taxpayer of said City, acting on behalf of himself and all others similarly situated. And charged among other things that said City is under “The Commission Form of Municipal Government.” That said ordinance was presented, read and passed at a meeting of said council held September 20, 1913, and had not theretofore been on file for public inspection in the office of the city clerk. That said ordinance was passed on a written motion in which the form of ballot to be used in the contemplated election was prescribed as follows:

“If you favor Municipal Ownership Vote Yes. If you oppose Municipal Ownership Vote' No. By making a cross in one square below, thus: (X).
Shall Bonds or obligations of the City of Elgin for the purpose of providing funds Yes for the purposes mentioned in the ordinance printed hereon to the amount of-One Hundred and Sixty-two Thousand Dollars ($162,000) be issued by the City No Council of the City of Elgin, Illinois'?”__

That election was held October 22, 1913, in which only that form of ballot was used, resulting in a majority of votes cast in favor of said ordinance. That pursuant to said ordinance bonds have been printed and advertised and are ready for execution and delivery, and said council will sell and deliver them unless restrained and thereby create an illegal indebtedness. That the commissioners have issued a call for bids for machinery, arc lamps, etc., and have received bids therefor until 11 a. m., April 14, 1914 (the date of application for injunction), and will open said bids at 2 p. m. of that day, and will then proceed to let the contract in accordance with said call for bids and said ordinance. The hill is verified and accompanied by an affidavit in support of the motion for injunction without notice, in which affidavit, made on said day, it is stated that the officials of the City will accept bids and make contracts under the said invalid ordinance, and are now considering such bids.

The foregoing averments of the bill sufficiently present the questions that we regard controlling. There are other averments raising other questions that in view we take of the case we need not consider.

It is provided in article XIII, sec. 33, “Cities, Villages and Towns Act” (J. & A. ft 1592): “Every ordinance or resolution appropriating any money or ordering any street improvement or sewer, or making or authorizing the making'of any contract or granting any franchise, right or license to occupy or use the streets, alleys, highways, bridges, viaducts, public property or public places in the city or village for any purpose, shall remain on file with the city or village clerk for public inspection, complete in form in which it is finally passed, at least one week before the final passage or adoption thereof.”

It is contended by appellants that the ordinance in question does not fall within the provisions of that statute. We are of the opinion that it does fall within both the letter and spirit. It authorized the issue of bonds, fixing the terms and conditions of payment therefor. It is an ordinance authorizing the making' of a contract. It is a character of ordinance the Legislature might well have had in mind when providing for public examination and discussion preceding the passing of ordinances.

As to the ballot, appellant calls our attention to section 14 of the Act of 1891 (J. & A. 4906), which provides: “If a contsitutional amendment or other public measure is submitted to a vote, such question shall be printed upon the ballot after the list of candidates, and words calculated to aid the voter in his choice of candidates or to answer any question submitted to vote may be added, such as, ‘Vote for one,’ ‘Vote for three,’ ‘Yes,’ ‘No,’ or the like,” and says the ballot in question is justified under that provision. We do not so regard it. The provision is intended to aid the voter to understand the meaning of his vote and not the reason for it. It was not intended that public officers charged with a duty to impartially submit a question to the vote of the people should use the ballot as a vehicle for information or argument as to the motives that might influence the voter in making his choice. Such suggestions as were made on this ballot are open to argument. It was not for the City Council of Elgin to determine that every voter in favor of municipal ownership should vote “Tes.” It is quite coneeivahle that there might he among the voters those who favored municipal ownership hut for reasons satisfactory to themselves did not favor the bond issue in question. The ballot must substantially conform to the form prescribed by the statute. A failure to comply with the provisions of the law in a matter of substance in conducting an election renders the election void. People ex rel. Woods v. Myers, 256 Ill. 529. We are of the opinion that the ballot used was such a substantial noncompliance with the statute as to make this election void, and as the ordinance was of no force and effect in the absence of a valid election approving it, it follows that appellants derived no authority from it. Appellants’ counsel say it was not necessary to specify the form of ballot, that the form is prescribed by statute; that is probably true, very likely the form of ballot ordered by the council might have been disregarded and proper ballots used without vitiating the election. The trouble lies not in the suggestion, but in the use of an improper form of ballot.

Appellants ask that the order he reversed because the injunction was issued without notice, and on a bond approved by the clerk, in violation of the statute requiring the bond to be approved by the court or the judge issuing the order of temporary injunction. We are of the opinion that there was a sufficient showing in the bill and accompanying affidavit to justify the issuing of the injunction without notice. It is said that the commissioners could not have let the contract enjoined until two days had elapsed, because of the provision of the statute that bids should remain on file in the mayor’s office at least forty-eight hours before an award (J. & A. if 1613), and it should not be assumed that the commissioners intended to act contrary to law. But the bill was filed to prevent their acting contrary to law and on the positive allegations that they had so acted and were intending to so act in letting the contract. If a presumption was to prevail that they would not act contrary to law there was no necessity for an injunction with or without notice. It is argued that appellee might have filed his bill earlier and thus had time to .give notice of his application. This may be true, but we know of no law that forbids the issuing of an injunction without notice on the ground that the complainant might have commenced his proceeding earlier and given notice. We are aware of no requirement that it should appear to the court granting the temporary injunction, not only that damage would result if the injunction is not issued without notice, but also that the complainant is guilty of no negligence in failing to file his bill at an earlier period.

But it is at least doubtful whether this question can be raised here. The Appellate Court of the First District in Florin v. Rayman, 176 App. 106, in considering an appeal from an interlocutory order granting an injunction said: The case stands as though the defendant had demurred to the bill, and he can raise here the questions, and only the questions, which he could have raised by demurrer,” citing Herzberger v. Barrow, 115 Ill. App. 79, another First District case to the same effect, where the court refused to consider the sufficiency of the bond given upon the issuing of the injunction and said: “The appeal is based upon the face of the bill. The case stands as if appellants had. demurred.” This court held in Craig v. Craig, 175 Ill. App. 176, that objections to the issuance of an interlocutory injunction without notice are waived when a motion to dissolve is made, since such motion operates as a demurrer to the bill; as did also the Appellate Court of the First District in Adams v. Oberndorf, 121 Ill. App. 497, and appellants concede that to be the law, but say it does not apply on an appeal like this. We see no reason why it should not; the interests of the parties require a decision of the question on whether the injunction was properly granted, not whether there was some technical error in the manner of the application for the writ.

These suggestions dispose of the question of the ap-proval of the bonds by the clerk instead of the court. As said in Herzberger v. Barrow, supra, that defect “will be remedied by the chancellor upon proper application.” The court may grant an injunction without bond in a case where the public interest is involved. Kerz v. Galena Water Co., 139 Ill. App. 598. The error can work no injury to appellants, as the obligors cannot escape liability on the ground that the bond was not approved by the proper authority.

It is urged that appellee could not be injured by any act of the commissioners in letting the contract enjoined within the time required for notice of application for injunction, and also said that appellee could not be injured by the letting of an illegal contract which could not be enforced in law or equity. A taxpayer may maintain a bill to enjoin the letting of an illegal contract, or the extension of an illegal tax, irrespective of the question whether he could also successfully defend against the collection of the tax levied on his property. The authorities are too numerous on this subject to require extensive citation or discussion of the reasons supporting them. Among the earlier cases are Harding v. Rockford, R. I. & St. L. R. Co., 65 Ill. 90, and Chestnutwood v. Hood, 68 Ill. 132; and among the later, Stevens v. County of Henry, 218 Ill. 468, and Loeffler v. City of Chicago, 246 Ill. 43.

It is said that appellants were authorized to make the contracts enjoined, other than for borrowing money, in the absence of the ordinance, therefore the court should not have enjoined them as to those contracts. The court was warranted in enjoining any contract made as a part of the execution of the provisions of the ordinance, and we are of the opinion that it sufficiently appeared that the contracts in question were intended as a part performance of that plan and were not considered by appellants and should not be considered by the court as independent contracts that might or would have been made independent of the provisions of the ordinance.

It is said complainant might have joined with others and contested the election within the time prescribed by law, and claimed that such contest is an action at law and that a court of chancery should not take jurisdiction of a matter where the question could be determined in an election contest.

A taxpayer is not estopped to resist the payment of a tax or the creating of an illegal indebtedness, by the fact that a void election complained of might have been contested in the manner provided by statute.

Finding no reversible error the order and judgment is affirmed.

!Affirmed.


author: Mr. Justice Dibell

text:
    Edward S. Merrill, Administrator, Appellant, v. William Merrill, Appellee.
    Gen. No. 5,889.
    1. Appeal and ebbob, § 1272

      —when exceptions to master's report presumed filed. Where the record is not certified to be complete, the Appellate Court may assume that exceptions to the master’s report were filed though the record does not contain the same, where the final order recites that the case was heard upon exceptions filed to the report and that they were all overruled.
    2. Witnesses, § 232*—when may testify to conversation on cross-examination. If a part of a conversation has been given in direct testimony, the remainder, so far as it is relevant, may be called out by cross-examination.
    3. Gifts, § 22*—when evidence insufficient to show procurement 5y undue influence and fraud. A bill filed by an administrator of an intestate to compel an heir to turn over the proceeds of a certificate of deposit, and to turn over various other notes and certificates of deposits, on the ground that defendant had exercised fraudulent practices over the intestate while she was in feeble mind to procure the same as a gift, held not supported by the evidence.
    4. Gifts, § 15

      —when not defeated by noncompliance with conditions. Where a certificate of deposit was delivered to a donee with the request not to -cash the same at the bank for a certain time so that the donor might he entitled to the interest, held that the fact that the donee cashed it before such time did not defeat the gift, where the donor was paid the interest and it appeared that she had full knowledge thereof and did not question the gift up to the time of her death.
    5. Gifts, § 29*—evidence of gift of certificate of deposit. A donee’s possession of a certificate of deposit and his claim of ownership is proof tending to show that it had been duly delivered to him and that he owned it, and this is true though it was not indorsed.
    6. Appeal and ebbob, § 1506*—when party cannot complain of failure of master to certify questions refused answer by witness. Where on a reference to a master a witness refused on cross-examination to answer certain questions and the cross-examining party demanded that they be certified to the court for action, and the master sustained objections to the questions but stated that if it was persisted in he would so certify the questions, held that failure of the master to certify the questions could not be complained of on appeal, where there was no further request to certify, and no application to the court for a rule on the master, to certify, and the subject was not referred to in the objections to the master’s report.
    7. Judgment, § 535*—when judgment on citation issued under administration act res adjudicata. A judgment of the County Court in favor of the defendant upon a citation issued under the administration act to recover assets, followed by the dismissal of the administrator’s appeal therefrom to the Circut Court, held to be a final adjudication in favor of defendant and to bar a subsequent suit in equity by the administrator to recover the same subject-matter.
    Appeal from the Circuit Court of Boone county; the Hon. Chables H. Donnelly, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed July 31, 1914.
    William L. Pierce and Alexander J. Strom, for appellant.
    William Biester, for appellee..

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

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

   Mr. Justice Dibell

delivered the opinion of the court.

On March 19, 1909, Mrs. Mary Sizer died in Boone county, intestate, without issue, and owning real and personal estate, and leaving- collateral kindred surviving her. Edward Merrill, a nephew, was appointed administrator of the estate. As such administrator he filed this bill in equity against William Merrill, another nephew, in which he charged that Mrs. Sizer was about eighty-one years old at the time of her death, and that for sometime prior thereto she had been enfeebled in mind, and was in such a weakened state of mind and body that she was incapable of attending to her ordinary business affairs, or making any disposition of her property, and was easily influenced in her business dealings by others, and that in October, 1908, William Merrill used undue arts and fraudulent practices over his aunt, and thereby wrongfully took and removed from her to his possession a certificate of deposit issued by the First National Bank of Belvidere for $900, and converted the same into money and still retains the custody of the proceeds thereof. The bill further charged that Mrs. Sizer lived in the house of William Merrill during the last four months of her life, and that he exercised fraudulent practices over her, when she was incapable of attending to her ordinary affairs, and thereby obtained from her various other notes and certificates of deposit, without consideration, and that William Merrill refuses to surrender them to the complainant, to whom they rightfully belonged as administrator, and that the defendant claims that Mrs. Sizer made him a gift of this property in her lifetime, and that this is untrue. He asked for a discovery from the defendant, and waived the answer under oath. The defendant filed two pleas. The first alleged that prior to the commencement of this suit the said complainant obtained a citation against him in the County Court, in said estate, concerning the same matters set up in the hill and that he appeared and was examined under oath and evidence was heard, and he was discharged under said citation, and that the administrator appealed to the Circuit Court and perfected said appeal, and thereafter dismissed his appeal, and that the rights and interests involved in said proceeding were the same as those involved in the present suit, and that said order of the County Court is in bar of this suit. The second plea set up that prior to that time, and before the commencement of this suit, the said administrator began an action at law in the Circuit Court against the said defendant to recover for the same matters sought to be litigated in this suit, and that afterwards he dismissed said suit in the Circuit Court. These pleas were adjudged insufficient, and defendant answered the bill, admitting that he received said certificate for $900 from Mrs. Sizer, but denying that she was in a feeble state of mind or body, and denying that he used any fraudulent practices, and asserting that the same was a gift, and denying all the other allegations in the bill, and setting up the same citation in the County Court, and the result thereof, as a bar to this suit. The case was referred to the master to take and report the evidence with his conclusions of law and fact. He did take the evidence, prepared a report for the defendant and overruled objections which each party filed thereto, the objections of the defendant being that the master had failed to rule whether said proceedings under the citation were a bar to the suit. Exceptions were filed by the defendant in the Circuit Court, but the record does not contain exceptions filed by the complainant; but the final order recites that the case was heard upon exceptions filed by both complainant and defendant, and they were all overruled, and there was a decree dismissing the bill for want of equity. From that decree, the administrator prosecutes this appeal.

Appellee contends that as the record does not contain any exceptions filed by appellant in the Circuit Court to the master’s report, therefore there is nothing before this court on appeal. The record is not certified to be complete, and we shall therefore assume for the purposes of this opinion, that there are exceptions on file by the complainant, or that we should be governed by what we said in Croissant v. Beers, 118 Ill. App. 502.

Appellee contends that the judgment of the County Court in his favor on the citation, having been made final by the subsequent dismissal of the appeal of the administrator therefrom, is a bar to this suit. It seems to be so decided in Wade v. Pritchard, 69 Ill. 279. 'There are numerous cases in the Illinois Supreme Court, of appeals from judgments upon such citations issued in the County Court under the Administration Act, and so far as we are advised they have always been treated as final dispositions of the questions litigated. But appellee has not assigned cross-errors upon the action of the court in holding his pleas insufficient, and in his proofs on that subject under the answer he did not offer in evidence the final order of the County Court, or the order dismissing the appeal in the Circuit Court, but only introduced oral testimony of those facts. Though that evidence was not objected to on the ground that the record itself was the best evidence, yet, as the record is not before us, we deem it best to pass upon the merits of the case.

Appellant made appellee his witness and examined Turn concerning the transactions between himself and Mrs. Sizer, in October, 1908, the time when appellee received the said certificate from his aunt. On cross-examination by his own counsel, appellee was asked to state all that was said between himself and Mrs. Sizer on that occasion. After he had begun to answer, he was interrupted by objections by appellant’s counsel, and said counsel insisted that in his examination of the witness he had not asked for any conversation, and he insisted upon that so strenuously that the master ruled with him and held the evidence incompetent, but at the same time permitted the answer to be made and to be taken, down, following, in that respect, the suggestions made by us in Ellwood v. Walter, 103 Ill. App. 219, where we collected the authorities upon the practice before the master upon objections to testimony. The master, however, was misled as to the fact because, on said direct examination, after appellant’s counsel had asked appellee if at the time he obtained the certificate there was anything said about interest, and had had a reply to that question, this question was then asked: “Did she say to you at the time she gave you that certificate, on the date she gave it to you, that she wanted you to hold that certificate before you cashed it, until the interest was due?” To which he answered, “Yes, sir.” The rule of law is that if a part of a conversation has been given in direct testimony, the remainder so far as it is relevant, may be called out by the cross-examination; or, “where a witness details a conversation, the party against whom the evidence is offered is entitled to the whole of the conversation.” Phares v. Barber, 61 Ill. 271; Moore v. Wright, 90 Ill. 470; Barnes v. Northern Trust Co., 169 Ill. 112; Jones on Evidence (2nd Ed.,) sec. 882. The evidence, therefore, which the master caused to be taken down, after he had held it incompetent, giving the full details of the interview between appellee and Mrs. Sizer, in which she gave him the certificate of deposit, was all competent, and fully explained the reason for the gift, and made it appear an honorable and proper transaction on both sides. Thereafter, in the same conversation, appellee invited his aunt to spend the winter in his home, and she accepted and went, a little later, and spent the winter there, and appellee refused to permit her to pay him for said support because of her generosity to him. The allegations of the bill, that she was feeble in mind and was overreached, and that appellee used fraudulent practices over her to obtain this certificate, are all of them without any support in the evidence. There is also proof by other people of statements made by her, afterwards, to various persons, that she had given her nephew William $900; and to one or more of the witnesses she stated to some extent the reasons which actuated her doing so. There was no proof to support the allegations of the bill that appellee afterwards obtained other notes and certificates from Mrs. Sizer.

The certificate of deposit was payable to the order of Mrs. Sizer, and the proof by several witnesses shows that she was unable to write, and appellee testified that at the time when his aunt gave him, the certificate he wrote her name in lead pencil upon the back, pursuant to her request, and that she placed her cross after her name, in lead pencil. In the matter of the citation, a deposition was taken and this certificate was attached thereto, and the end of the certificate which had the name of Mrs. Sizer written upon it was the end which was fastened into the deposition; and it is claimed by some witnesses that there is now no appearance of a lead pencil cross after her name, and by other witnesses it is claimed that there is some slight indication of such á cross still to be seen. The original instrument is attached to the record before us. Appellant made much of the supposed absence of this lead pencil cross, in the trial of the case and in his argument here. Apparently he contends that appellee testified untruthfully when he said that Mrs. Sizer made her cross after her name, and that having testified untruthfully on that subject, the rest of his evidence should be disbelieved. Regardless of the appearance of the certificate at the present time, there is, in our judgment, a clear preponderance of testimony in this record that at the time when his certificate passed through several hands and reached the bank and was cashed it did bear a cross after Mrs. Sizer’s name. We regard the matter however, as of slight importance.

The certificate was dated May 6, 1908, and provided for interest at three per cent, if left six months, and for no interest after six months. The six months would expire November 8, 1908, and the interest for six months at three per cent, would be $13.50, and the certificate was given to appellee on October 4, 1908. Appellee testified that his aunt told him to hold it until the interest was due, and to pay her the interest, as she wanted it with which to pay her taxes. Before the six-months were up he needed the avails of this certificate for investment in the business which he was then just entering upon, and which was one of the reasons why his aunt gave it to him at that time; and he found a friend who cashed it for him and gave him the six months’ interest, $13.50, and he thereupon paid said $13.50 to his aunt, and, in fact, being unable to make the exact change, paid her $14.00. Appellant contends that the condition imposed by the aunt, that the interest for six months should be paid to her and that he should retain the certificate until the interest was earned, imposed a condition upon the gift, and that because of that condition the title did not pass to appellee. Whatever the law might be, if nothing had been said or done between the parties after the interview of October 4th, we think that rule cannot possibly apply where, as here, the condition was fulfilled and interest was paid to her, he received and appropriated the principal in the investment which she intended he should use it for, and she knew all about it, lived in his house for months thereafter and told various people that she had given him $900, and her reasons for doing so. The gift and its consummation was fully proved by abundance of evidence, and there was no evidence of any kind to contradict or put it in question. There is nothing to show that Mrs. Sizer ever regretted having made the gift, or ever had any desire to recall it; but, on the contrary, it is obvious from the evidence that she remained satisfied therewith to the end of her life. Again, appellee’s possesion of the certificate, claiming to own it, was proof tending to show that it had been duly delivered to him and that he owned it. O’Connor v. Messenger, 183 Ill. App. 1, and cases there cited. This is true even if there had been no indorsement. Bertolet v. Stoner, 164 Ill. App. 605; Rinard v. Lasley, 143 Ill. App. 450. This evidence was not overcome by any other proof and authorized a decree for appellee.

On cross-examination by appellant of a witness called by appellee, the witness refused to answer certain questions, and appellant demanded that they be certified to the Circuit Court for action. The master sustained objections by appellee to the questions, but stated that if the application to certify was persisted in he would certify the questions to the Circuit Court. It is contended that the master erred in not so certifying. Appellant did not afterwards request the master to certify, nor did he apply to the Circuit Court for a rule on the master to certify the questions, and in the objections which appellant filed to the master’s report he did not include anything on that subject. He therefore has nothing of which he can avail himself in this court. Moreover, the questions were trivial, and they had no bearing upon anything connected with this case.

We are of the opinion that the order of the County Court upon the citation, followed by the dismissal of appellant’s appeal therefrom to the Circuit Court, became a final adjudication in favor of appellee, if it had been properly proved by the record. We have carefully read all the evidence in the record itself, in a desire to know the justice of this case, and we are clear that the allegations of the bill are not in any way supported by the evidence, and that the bill was properly dismissed for want of equity. Decree affirmed.

'Affirmed.


text:
    B. F. Loftus, Appellee, v. Herman Behrens, Appellant.
    Gen. No. 5,909.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Sales, § 18

      —when evidence sustains finding of unqualified acceptance of offer. In an action for the purchase price of a corn shredder claimed to have been sold to defendant, evidence held sufficient to sustain a verdict that there was an unqualified acceptance of plaintiffs offer to sell the shredder, where the facts showed that the defendant, upon being offered the shredder for one hundred dollars, accepted the offer by saying: “You have bought it, the shredder is yours,” and the defendant then asked if it was in good condition and plaintiff replied that it was, there being conflicting evidence on the question whether the defendant then stated that he would take the shredder if it was in good condition, but no attempt by defendant to prove that he made any complaint to plaintiff regarding the condition of the shredder after he examined it, nor that he gave plaintiff any notice he did not intend to carry out the bargain.

      Appeal from the County Court of Lake county; the Hon. Perry L. Persons, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed July 31, 1914.
    Statement of the Case.
    Action by B. J. Loftus against Herman Behrens to recover the price of a corn shredder which plaintiff claims he sold to defendant. The action was originally brought before a justice of the peace where plaintiff had judgment, and on appeal by the defendant to the County Court a verdict was returned in favor of plaintiff for one hundred dollars. To reverse a judgment entered on the verdict, defendant appeals.
    E. V. Orvis and A. V. Smith, for appellant.
    R. W. Churchill, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.

2. Sales, § 186*—when delivery not essential. As between the parties, delivery is not essential to a complete sale, unless so intended by them.

3. Sales, § 18*—when instruction as to unqualified offer and acceptance correct. An instruction that an unqualified offer and acceptance constituted a valid sale of chattel property, and that if the defendant made an unqualified offer for the property, which was accepted by the plaintiff, and that if the parties then intended the sale to be complete the verdict should be for the plaintiff, held to state a correct principle of law.

4. Appeal and eeeob, § 1533*—when underscoring words in instruction harmless. The underscoring of the words “your verdict” in an instruction held harmless.


text:
    The People of the State of Illinois ex rel. Charles Agnew, Plaintiff in Error, v. Edward Graham et al., Defendants in Error.
    Gen. No. 5,918.
    Elections, § 134

      —when holding of election for aldermen in one polling place does not invalidate election. The fact that an election for three aldermen in a city having only three wards was held at a polling place in one ward, which was a short distance from the boundaries of the other wards, held not to render the election void under section 4, art. IV, of the Cities and Villages Act, J. & A. f 1323, requiring aldermen to be elected in each ward, where there was a full and fair election, and all the elections had been held at such place for twenty years.

      Error to the Circuit Court of La Salle county; the Hon. Joe A. Davis, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed July 31, 1914.
    L. B. Olmstead and Butters & Clark, for plaintiff in error; George S. Wiley, of counsel.
    Faissler, Fulton & Roberts and Browne & Wiley, for defendants in error.

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

   Mr. Justice Dibell

delivered the opinion of the court.

By leave of court, the People, by the State’s Attorney of LaSalle County on the relation of Charles Agnew, filed an information against Edward Graham, F. E. Blakeslee and P. J. Cruise, requiring them to show by what warrant they held and exercised the offices of mayor of the city of Earlville and aldermen of said city of Earlville, and the offices of president, secretary and member, respectively, of the Board of Local Improvements of said city of Earlville, which offices said information charged that they had usurped and still do usurp. Eespondents filed a plea, setting up their title to said respective offices. A demurrer thereto was overruled. Plaintiff elected to abide by its demurrer, and there was a judgment in bar in favor of respondents. This is a writ of error to review that judgment.

The plea is very lengthy and we deem it unnecessary to set it out in full. As to many of its averments, we think it sufficient to say that it alleged, with sufficient fullness of detail, the existence of said city under the general act for the incorporation of cities; that in the spring of 1911 a primary and thereafter an election were duly called, due notice thereof given and the same duly held; that the respondents duly became candidates for said respective'offices and that all the necessary steps were taken to place their names on the primary ballot and on the official ballot at the election; that they were duly qualified in every respect to be candidates for and to hold said offices; that they were each duly nominated and elected, Graham as mayor and Cruise and Blakeslee as aldermen of the First and Second Wards respectively; that the election was duly canvassed and declared and they duly qualified and entered upon the duties of the offices of mayor and aldermen, and thereafter duly became members of said Board of Local Improvements, and at the time of filing said plea were duly occupying said offices; and that their title to said respective offices is unassailable, unless their election was void by reason of the matters hereinafter stated.

It appears from the plea that the city of Earlville was organized under the general law on February 5, 1887; that on April 4,1887, by ordinance it was divided into three wards; that the First Ward included that part of the city lying west of the center of Ottawa street and south of the center of Winthrop street and of Winthrop street extended; that the Second Ward included that part of the city lying east of the center of Ottawa street and of Ottawa street extended; that the Third Ward included that part of the city west of Ward Two and north of Ward One; that on the same day, by ordinance, the city provided that the city council should elect three judges of election, one from each of the three wards, and one or more clerks, who should conduct all city elections until their successors were elected, and that the elections should be held at a place in said city to be designated by the city council in a notice published by the city clerk twenty days before the election; that said ordinance provided that a ballot box should be prepared with three apartments, lettered “First Ward,” “Second Ward” and “Third Ward,” respectively, and that the ballot of each voter should be deposited in the apartment designated for the ward in which he resided, otherwise such ballot should not be counted for alderman; that said ordinances remained in full force from 1887 to the time of filing said plea and had never been repealed or amended; and that the city of Earl-ville had held and conducted all elections therein from and after its inception in conformity to said ordinances.

The plea further alleged that said primary and said election of 1911 were held at the City Hall in the City of Earlville and that that was the place designated by the city council and had been the place of holding elections in said city for twenty years prior to 1911; that the ballot box used for said primary and election contained three apartments, as required by said ordinance, and that all the voters who voted thereat were male citizens of the United States, who had resided in the State of Illinois one year, in LaSalle county ninety days and in the ward designated on the apartment in the ballot box in which their ballots were deposited thirty days next preceding said primary and election, and were qualified voters of such ward; that each judge of election possessed the other qualifications required by law and had resided for a year next preceding said election in the ward where he resided at the time of said election. The plea further averred that said election was held April 18, 1911, in the engine room of the City Hall in said city; that the polls were open from 8 a. m. until 7 p. m. of said day; that the voters of all three wards voted at said voting place; that the judges and clerks had separate poll books for each ward; that the names of the voters residing in the First Ward were recorded in the poll book for the First Ward, and so of the voters residing in the Second and 'Third Wards, respectively; that the ballot cast by each voter was deposited by one of the judges in its respective apartment, according to the residence of the voter. The plea further averred: “That there was a large vote cast at said election and a fair expression of the will of the voters of said city;'that no one entitled to vote was deprived of his right to do so by reason of the polling place being situated as aforesaid; that the election was conducted in all respects in the same manner and in the same place as had been the custom and practice in said city for more than twenty years and as provided for by the general ordinance of said city; that said City Hall is centrally and conveniently located for holding such elections in the southwest corner of the Third Ward of said city, which point is not more than sixty feet distant from the northerly boundary line of the Second Ward of said city, and that said City Hall is so located that it is not more than sixty feet distant from the easterly boundary line of the First Ward of said city.” By comparing this description of the location of the City Hall, quoted from the plea, with the boundaries of the wards as above stated, it will be seen that the plea contains inconsistent allegations as to the location of the City Hall. Counsel for both parties have orally requested us to treat the plea as if it averred that said City Hall is located in the southeast corner of the Third Ward and not more than sixty feet distant from the northerly boundary line of the First Ward and from the westerly boundary line of the Second Ward of said city. The allegations of the plea being so considered, it will be seen that the election was held in one place in the southeast comer of the Third Ward, not more than sixty feet distant from the First and Second Wards, respectively, and that the elections had all been held at that, particular place for the last preceding twenty years. The first question is whether the holding of that election at that place was a compliance with the statute.

Section 4 of article IV of the Cities and Villages Act (J. & A. 1323) requires that one alderman shall annually be elected “in” each ward as well as “for” each ward. It has, we think, been the universal construction of this language, ever since the Act of 1872 was adopted, that the ward constitutes an election district and that the statute requires the election for an alderman to be held in the ward where he is a candidate. The respondents quote some general language from Welsh v. Shumway, 232 Ill. 54, as tending to show that the Legislature intended that the city authorities should establish the city election precincts and fix their boundaries, regardless of the provisions of the General Election Law. While the language there used might be so applied, if not qualified, it was qualified on page 67 of said opinion by these words: “In an incorporated city, for city elections the ward lines must necessarily be considered in forming election districts.” We are referred to authorities in other States holding differently, but we are of opinion that in this State the ward lines must be held to be the boundary of an election district, though such district may be divided into more than one precinct where the number of voters is very numerous. Of course, if the city council had not divided the city into wards, it could lawfully hold an election at one place in the city, as held by us in People v. Becker, 179 Ill. App. 446, but this city was divided into wards.

The relator contends that as the election for aider-man of the First and Second Wards was not held pursuant to law, respondents were not lawfully elected and were not entitled to hold their offices. We are cited to numerous cases in Texas, Massachusetts and elsewhere, where an election held outside the boundaries of the election district has been sustained, but we deem it unnecessary to go outside of this State for authority. In Choisser v. York, 211 Ill. 56, on page 63, the general principle prevailing in this State is stated, viz.: that, if the intention of the voter can be fairly ascertained, effect will be given to that intention, and the voter should not be disfranchised through mere inadvertence, mistake or ignorance. At that time the general statute relating to elections (section 30, J. & A. |f 4755) required polling places to have an entrance upon a highway or public street. In one of the election precincts involved in the case just cited, the polling place was established in a room not opening upon a public thoroughfare. It was established by the proper authorities and had been the authorized and usual voting place from 1885 to that election in 1902. It was held that the election was not void by reason of the location and situation of the building in which it was held. In People v. Brown, 189 Ill. 619, which was quo warranto to test the title of the appellees to certain offices, it was averred that from 1880 to 1895 a certain “truck house” had been the place where elections were held; that that place became unsuitable and the board of supervisors in 1896 changed the voting place to the opera house, situated on the same lot about one hundred feet away, and that elections had been held at said opera house and the voters recognized and accepted it as the voting place up to 1890, when the election in question took place. The board of supervisors had in fact no power to make said change or to fix the place for holding said election. The Court said: “Where there has been a custom, acquiesced in for years, to hold an election at a particular place, and the people suppose that said place is the correct one, or some change not calculated to produce any injurious effect has been made in the place of holding elections, the holding of an election at such place is not sufficient to avoid the election.” The Court there cites Steele v. Calhoun, 61 Miss. 556, where no place to hold an election had been fixed by the authorities, but the voters by common consent voted where the election had usually been held, and this was held valid. The Court therefore held in People v. Brown, supra, that the change from the truck house to the opera house should not invalidate the election, as it was admitted that no one was prevented from voting at such election on account of its being held at the opera house. Si mons v. People, 119 Ill. 617, was quo warranto to test the title of Simons to an office. At one of the polling places there in question, the place for voting was changed on the morning of the election from “Kuhn’s Hall” to “Kuhn’s real estate office,” two hundred feet distant in plain sight with open space between. It was admitted that no one was prevented from voting at such election on account of such change. It was held that this did not invalidate the election. Another polling place was appointed at “Ball’s store” and was changed from that place across the railroad to “Fox’s store.” It was averred that no voter in the district was ignorant of the change or failed to vote at such election by reason of the change. The election was full and fair. No injurious effects followed from the change. It was held that this change would not invalidate an election otherwise full, free and fair, and that public policy forbade the adoption of a rule that would defeat the expression of the popular rule at elections.

From the foregoing statement it appears that it was only sixty feet across Ottawa street from the place where the election was held to the Second Ward, and only sixty feet across Winthrop street to the First Ward, and that the intervening space was in each case a public street and must have been open, and that all the elections had been held at this place for twenty years, so that the place of holding elections must have been known to every elector; that there was a large vote cast and a fair expression of the will of the voters, and that no one was deprived of his right to vote by reason of the location of the polling place, and that the place where it was held was central and convenient. The electors had either to vote at the place appointed or to refrain from voting. We are of opinion that under such circumstances the failure of the city council to establish three polling places and select three judges for each should not be permitted to defeat the will of the voters, expressed at a full and fair election.

The judgment is therefore affirmed.

Affirmed.


text:
    W. D. Chemical Company, Appellee, v. K. F. Thomas, Appellant.
    Gen. No. 5,920.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puterbaugh and Hon. Theodore N. Green, Judges, presiding. Heard in this court at the April term, 1914.
    Dismissed.
    Opinion filed July 31, 1914.
    Statement of the Case.
    Motion by K. F. Thomas for leave to plead to an action in which a judgment by confession had been entered against him in favor of W. D. Chemical Company. From an order denying the motion, ‘Thomas appeals.
    Appellant’s motion was based upon the ground that he had a meritorious defense of fraud and failure of consideration. Two affidavits were filed in support of the motion. One affidavit stated that appellant gave an order for certain stock food to an agent that he supposed was acting for a certain company instead of for the appellee, and that appellant would not have bought the appellee’s stock food had he known of the circumstances, and further states that appellant was induced to believe certain things, without stating what was said or done to induce him to believe them, or that he had a right to rely on the representations, or who induced him to believe them. The other affidavit stated that he did not sign the note sued on nor authorized it be signed, and that said note was a forgery. Neither of the affidavits stated that the suit was brought to recover the price of said stock food.
    Abstract of the Decision.
    1. Appeal and error, § 1021

      —when judgment of confession not presented for review. On appeal from an order denying a motion to plead to an action in which a judgment by confession was entered, the judgment by confession is not properly before the Appellate Court for review where it is contained in the' record but not certified by the clerk.
    2. Judgment, § 88*—when record on appeal from order denying motion to plead presents nothing for review. On appeal from an order denying a motion for leave to plead to an action in which a judgment by confession had been entered, there is nothing presented for review where the declaration and the instrument sued on are not set out in the record and the judgment of the court is not certified to the Appellate Court.
    3. Appeal and error, § 990*—when ruling on motion not presented for review. Where it is assigned for error that the court erred in overruling appellant’s motion to set aside a judgment by confession, the record presents no question for review where it does not disclose that there was any motion to set aside the judgment, but rather a motion for leave to plead.
    4. Judgment, § 88*—when order denying motion to plead defense not reviewahle. An order denying a motion to plead to an action in which a judgment by confession had been rendered cannot be reviewed where there is nothing in the judgment or the record to show that the case is based on a note or for what the suit was brought.
    5. Appeal and error, § 952*—when motion to strilce hill of exception from files will he denied. A motion to strike the bill of exceptions from the files will be denied where it appears that it does not purport to have been so filed.
    Frank A. Hall, for appellant.
    Charles A. Kimmel, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.


text:
    James Brack, Appellee, v. B. F. Berry Coal Company, Appellant.
    Gen. No. 5,931.
    (Kot to be reported in full.)
    Abstract of the Decision.
    1. Mines and minerals, § 176

      —when recovery for injuries for failure to supply props not warranted hy evidence. A verdict allowing a miner to recover for personal injuries alleged to have resulted from failure of defendant to supply props cannot he sustained where there is no evidence in the record of any demand on the mine manager therefor, or of any rule or custom that the props might he ordered of any other person.
    2. Mines and minerals, § . 90*—from whom demand for props must he made. Under paragraph 6, § 20, oh. 93, R. S., J. & A. f 7494, which provides that the mine manager shall furnish props when demanded, the demand must be made on the mine manager himself, and. a demand made upon a driver or other agent or servant of the company is not sufficient, unless there is an express rule or recognized custom in the mine to make a demand on such other persons.

      Appeal from the Circuit Court of Putnam county; the Hon. Theodore N. Green, Judge, presiding. Heard in this court at'the April term, 1914.
    Reversed and remanded.
    Opinion filed July 31, 1914.
    Statement of tie Case.
    Action by James Brack against B. F. Berry Coal Company to recover for personal injuries sustained by plaintiff by the fall of a roof of the defendant’s mine. The injury was alleged to have been caused by the wilful failure of defendant to supply props. To reverse a judgment entered on a verdict in favor of plaintiff for $15,000, defendant appeals.
    McDougall, Chapman & Bayne and Walter A. Panneck, for appellant; Mastin & Sherlock, of counsel.
    No appearance for appellee.

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

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

   Mr. Justice Dibell

delivered the opinion of the court.

3. Mines and minebaxs, § 191 —when instruction as to demand for props erroneous. In an action by a miner for injuries sustained by the fall of a roof of a mine in which be was working, where the declaration charged the defendant with wilful failure to provide plaintiff with props when demanded, an instruction given for plaintiff requiring defendant to supply props when demanded, with no explanation that the statute requires that the demand should have been made on a certain person, held erroneous.

4. Mines and minebaxs, § 194*—when refusal of requested in* struction reversible error. In an action by a miner to recover for injuries alleged to have resulted from the wilful failure of defendant to furnish props, refusal of a requested instruction to find defendant not guilty if the injury to plaintiff was caused by his own want of care and not by reason of any violation of law, held reversible error, there being evidence that immediately after the accident a number of props were found in the room where plaintiff was working, and it was not clear but that he might have avoided the accident by using such props.


text:
    Ella McCorkle, Appellant, v. Estate of John McGinnis, Appellee.
    Gen. No. 5,940.
    (Hot to he reported in full.)
    Appeal from the Circuit Court of Peoria county; the Hon. Nicholas E. Worthington, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed July 31, 1914.
    Statement of the Case.
    Action by Ella McCorkle against the Estate of John McGinnis, deceased, to recover for plaintiff’s services in nursing and caring for the deceased in his lifetime. Trial was had upon plaintiff’s claim in the Probate Court before a jury and the issues were found for the estate. Plaintiff appealed to the Circuit Court, in which a verdict was returned in her favor for $1,750. A motion by plaintiff for a new trial was overruled, and judgment was entered upon the verdict. The plaintiff, not satisfied with the amount of the judgment, appeals.
    Abstract of the Decision
    1. Damages, § 190&emdash;when amount of verdict for services will he sustained. The amount of the verdict recovered by plaintiff in an action against the estate of her deceased uncle for nursing and caring for him during his illness, held not grossly inadequate and against the weight of the evidence, it appearing there was no dispute as to the weekly sum to be paid, but the evidence was conflicting as to the number of weeks which the deceased required care for which she was to be paid.
    2. Appeal and ebbob § 1547*&emdash;when giving of instruction assuming facts harmless. In an action by the plaintiff against the estate of her deceased uncle for nursing and caring for him in his ill health, error in the giving of instructions which assumed that plaintiff was a member of the family of deceased during the time she nursed and cared for him, and stating plaintiff could not recover in such case, held harmless where the jury found by its verdict that she was not a member of the family and allowed her a verdict for an amount they thought proper under the evidence.
    3. Appeal and ebbob, § 1464*-&emdash;when error in ruling on competency of witness harmless. Error in refusing to permit a witness to testify on the ground of incompetency, held harmless where the testimony was of slight importance and other witnesses had already testified to the matter in detail.
    W. T. Whiting, for appellant.
    Judson Starr, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.


text:
    Anton O. Mathison, Appellant, v. Julia Mathison, Appellee.
    Gen. No. 5,958.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Husband and wife, § 264

      —when evidence insufficient to sustain decree of separate maintenance. Evidence held insufficient to sustain a decree for separate maintenance on the ground that the husband sustained improper relations with another woman, where the only evidence relating to such relation was a letter which the wife found purporting to be written to the husband, and it appeared that the finding of the letter was not the cause of her leaving her husband and the contents of the letter were not sufficient to show such relations.
    Appeal from the Circuit Court of Will county; the Hon. Charles B. Campbell, Judge, presiding. Heard in this court at the April term, 1914.
    Reversed and remanded with directions.
    Opinion filed July 31, 1914.
    Statement of the Case.
    Bill by Anton 0. Mathison against Julia Mathison for divorce on the ground of desertion. Defendant filed an answer denying desertion by her but alleging that the husband left her, and also filed a cross-bill for separate maintenance setting up that she had ceased marital relations with her husband on account of his improper relations with another woman. __ From a decree dismissing the original bill and granting relief on the cross-bill the complainant appeals.
    E. Meers, for appellant.
    T. F. Monahan, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.

2. Divorce § 48*—evidence sufficient to establish desertion. Evidence held sufficient to entitle a husband to divorce on the ground of desertion, where the wife sold the home and all the furniture and ceased to live with him and her only excuse for so doing was that he had improper relations with another woman, which relations were not established by the evidence.


text:
    The People of the State of Illinois ex rel. Wayne H. Dyer, State’s Attorney, Appellee, v. Nellie Clark, Appellant.
    Gen. Nos. 5,959, 5,960.
    1. Appeal and error, § 711

      —number of records. Where there is but one prayer and order for appeal, and but one appeal bond filed and approved, there should be but one record in the cause.
    2. Nuisance, § 83*—jurisdiction to abate. Where a nuisance exists which injures property rights the owner may apply to equity to have said nuisance abated, and where a public nuisance injures the public welfare the same may be abated in equity at the suit of the Attorney General or State’s Attorney, and this applies to a house of ill fame.
    3. Nuisance, § 83*—jurisdiction in equity to abate public nuisance. While equity has no jurisdiction to punish crime it does have jurisdiction to abate a public nuisance at the suit of a public officer, although a crime may also be committed upon the premises, and this is especially so where prosecutions have been had without resulting in the closing of a disorderly place.
    4. Injunction, § 245*—when violator not protected from, punishment by defects in bill and decree. The fact that the allegations of the bill and the findings of the decree are not sufficient to warrant an injunction does not protect a violator of the injunction from punishment therefor.
    5. Equity, § 462*—right to hearing on bill talcen as confessed. Where a bill is taken as confessed by an adult defendant, such defendant has no right to have evidence produced in support of the bill, but it is in the discretion of the court whether to have corroborative testimony on any or all the allegations of the bill.

      Appeal from the Circuit Court of Kankakee county; the Hon. Charles B. Campbell, Judge, presiding. Heard in this court at the April term, 1914.

      Certiorari allowed by Supreme Court.
    Affirmed.
    Opinion filed July 31, 1914.
    T. W. Shields, for appellant.
    Wayne H. Dyer and John H. Beckers, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.

On December 23, 1912, the People on the relation of the State’s Attorney of Kankakee county filed a bill in equity in the Circuit Court of said county wherein it was charged that Nellie Clarke owned and occupied a certain building in the city of Kankakee, the location of which was duly described, and therein kept a house of ill fame and therein kept women for purposes of prostitution, and that prostitution was therein carried on; that she had been several times within two years theretofore arrested and prosecuted, both by the State and the city authorities, for keeping such house of ill fame, and that she had on divers of said occasions pleaded guilty to said charge, and at other times had been tried and convicted of such offense, but notwithstanding such prosecutions, she still continued to keep said house of ill fame, and intended to continue so to do; that the continuation of said place and business had resulted in irreparable injury to the People, had lowered the standard of the citizens of the community, had produced contempt for law, debauched the youthful inhabitants of the community, enticed them from lawful pursuits and educated them in vicious habits, and that if defendant was allowed to continue to keep said house it would drive away law abiding people desiring to become residents in the community, and would make it a center for a congregation of disorderly persons and increase the burdens of police protection to life and property and seriously impair the public health of the commu. nity; and that the business there carried on in said building was a common nuisance. The bill was not sworn to by the State’s Attorney nor did anyone else make an affidavit expressly stating that its allegations were true, but there were affidavits attached to said bill describing various scenes which had taken place upon said premises within the view of the affiants, which amounted to a carrying on of a house of ill fame by Nellie Clark upon said premises. Notice was given to defendant of an application for a temporary injunction, and a temporary injunction was issued and served, restraining said defendant from keeping- a house of ill fame at said place. Summons was issued in said case and was served upon said defendant more than ten days before the first day of the J anuary term, 1913, of that court. On January 20,1913, at said January term, defendant was defaulted and the bill was taken as confessed and a decree was entered which recited that the court had examined the exhibits filed with the bill of complaint (meaning said affidavits) and a finding of facts was made in detail, showing the allegations of said bill to be true, and said temporary injunction was made permanent. No appeal was prosecuted from that decree.

On May 21,1913, at the May term of said Circuit Court, the People, by said State’s Attorney, filed a petition or information in said cause, setting out the proceedings previously had and alleging that since the issuing of said injunction and the entry of said final decree, said Nellie Clark continued to keep a house of ill fame upon said premises in violation of said injunction; and said petition asked an attachment against her to cause her to answer for a contempt of court in not obeying said injunction and to show cause why she should not be adjudged in contempt of court and the petition asked that she be required to answer certain interrogatories therein propounded to her. This petition was not sworn to by the State’s Attorney, but there were attached thereto affidavits stating facts which showed that she was keeping a house of ill fame at that place in violation of said injunction. An attachment was ordered and issued and she was brought into court thereon. Counsel appeared for her and demurred to said petition. Said demurrer was argued and overruled and she was ruled to answer the petition by July 9th. On July 12th, on her motion, she was given leave to withdraw her answer from the files and to answer under oath by July 14th. On July 21, 1913, her answer on file was stricken from the files and she was ruled to file a verified answer or to plead to the information and she did not do so, and was defaulted, and the court heard evidence and the admission of said defendant by her counsel in open court that she could not deny the allegations of the information, and the court found that she had wilfully disobeyed the injunction and, contrary to the terms of said final decree, had used said premises as a house of ill fame and a place for the practice of prostitution and lewdness, and she was adjudged to be wilfully in contempt of court and was sentenced to the county jail of the county for forty-five days and ordered to pay a fine of two hundred dollars and costs, and was ordered committed to the county jail until said fine and costs were paid or she was otherwise discharged by due process of law. On August 9, 1913, other solicitors appeared for her in said cause and asked for time to prepare a motion to vacate such prior proceedings. On August 19th defendant, by said other solicitors, entered her motion to vacate the decree of January 20th, and said order purporting to impose a punishment upon her for a contempt of court, and filed therewith thirty-four written reasons why said motion should be granted. Said motion was argued and taken under advisement. On August 21st said motions to vacate said original decree and said judgment punishing defendant for contempt were each denied. From that ruling defendant appealed to this court and verified that appeal.

Defendant has filed in this court two records, one in No. 5,959 and one in No. 5,960, which are identical, except in the assignments of error. The errors assigned in No. 5,959 only question the action of the court in taking jurisdiction of the cause, in granting the original injunction, in entering the decree of January 20th and in refusing to vacate the same. In No. 5,960 substantially the same errors are assigned and also errors relating to the action of the court in entertaining said petition for an attachment, and in the action of the court upon said petition, and in refusing to vacate the judgment finding defendant in contempt, and in punishing her therefor. Strange to say, the errors assigned in No. 5,960 are printed in the abstract in No. 5,959 and not in the. abstract in No. 5,960. There was but one prayer and order for appeal, and but one appeal bond filed and approved, and there’should be but one record in this cause. The validity of the decree entered at the January term could not be inquired into upon a motion at the May term, and we might refuse to consider the errors assigned in relation to said original decree. But, if we did so, the defendant below might sue out a writ of error to review said decree, and we have therefore concluded to consider the entire case as presented.

It is urged that the criminal statutes afford a complete remedy to punish defendant if she has violated the law, in which proceeding she would be entitled to a jury trial; and that equity has no jurisdiction to punish her for a crime and that she cannot in this way be deprived of a trial by jury.

It must be considered as now settled in this State that where a nuisance exists which injures property rights, the owner thereof may apply to equity to have said nuisance abated; and that where a public nuisance injures the public welfare the same may be abated in equity at the suit of the Attorney General or State’s Attorney, and that this principal applies to houses of ill fame. Hoyt v. McLaughlin, 250 Ill. 442; People ex rel. Stead v. Billburg, 175 Ill. App. 136; Bucks v. Strawn, 182 Ill. App. 646. Equity does not have jurisdiction to punish crime, hut it does have jurisdiction to abate a a public nuisance at the suit of a public officer, although a crime may also be committed upon the premises; and this is especially so where prosecutions have been had without resulting in the closing of the disorderly place. Stead v. Fortner, 255 Ill. 468. The court below had before it a bill in chancery, a complainant and a defendant, and service of process moré than ten days before the January term. It therefore at said term had jurisdiction of the parties and of the subject-matter.

It is contended that the allegations of the bill and the findings of the decree were not sufficient to justify an injunction. If this were so, it would not warrant the defendant in violating the injunction, nor save the defendant from punishment therefor. If the bill or decree was defective, the defendant was bound to obey the injunction until she obtained a dissolution thereof or a reversal of the decree, either in a direct proceeding at the same term or by appeal or writ of error. Such supposed defects do not protect the violator of the injunction from punishment therefor. Franklin Union No. 4 v. People, 220 Ill. 355.

The bill is ample in its allegations of fact. The affidavits filed therewith sustain all the necessary allegations. Defendant was defaulted. The decree does not recite that any evidence was heard except the exhibits filed with the bill, meaning thereby said affidavits. Where a bill is taken as confessed by an adult defendant, such defendant has no right to have evidence produced in support of the bill, but it is in the discretion of the court whether to have corroborative testimony on any or all of the allegations of the bill. Farnsworth v. Strasler, 12 Ill. 482; Gault v. Hoagland, 25 Ill. 241 (page 266 of original edition); Monarch Brewing Co. v. Wolford, 179 Ill. 252. Therefore the original decree was a valid adjudication between the parties of a matter where the court had jurisdiction, and the findings of facts in the decree fully support the permanent injunction therein granted.

The proceedings against defendant for contempt at the next term show that defendant had a full opportunity to be heard in her defense, and that in open court her solicitor admitted that she could not deny the allegations of the information, and evidence was heard which has not been preserved by a certificate of evidence, and the facts found in the order show that she was guilty of contempt of court in wilfully violating the injunction contained in the final decree,’ and the punishment inflicted was not unusual or excessive, and no error of the court appears.

She was not punished for a crime, but for violating an injunction abating a public nuisance. The orders appealed from are therefore affirmed.

Orders affirmed.


text:
    The People of the State of Illinois ex rel. Wayne H. Dyer, State’s Attorney, Appellee, v. Gertie Clark, Appellant.
    Gen. No. 5,961.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Kankakee county; the Hon. Chables B. Campbell, Judge, presiding. Heard in this court at the April term, 1914.

      Certiorari allowed by Supreme Court.
    Affirmed.
    Opinion filed July 31, 1914.
    Statement of the Case.
    Petition filed by the People ex rel. Wayne H. Dyer, State’s Attorney of Kankakee County, for an attachment against Gertie Clark and Nellie Clark for contempt of court in keeping a house of ill fame upon certain premises in violation of an injunction. The petition was dismissed as to Nellie Clark, and Gertie Clark was ruled to file a verified answer to the petition or information mstomter, and she made default. The court adjudged her guilty of wilful contempt of court, and sentenced her to imprisonment in the county jail for forty-five days and fined her two hundred dollars and costs. From the sentence, defendant Gertie Clark appeals.
    Abstract of the Decision.
    1. Appeai and ebbob, § 852

      —certificate of evidence construed. A certificate of. evidence reciting that counsel for the respective parties made a stipulation as to a certain mutter and this was all the evidence offered on the hearing, construed to mean that the certificate was all the evidence heard except that recited in the order of court.
    2. Injunction, § 259*—conclusiveness of contempt order entered on default. Where a person attached for contempt for violation of an injunction was defaulted and the averments of the petition confessed on failure to comply with a rule to file a verified answer, he cannot question the sufficiency of the evidence to support the order convicting for contempt.
    3. Equity, § 461*—conclusiveness of default decree. One against whom a decree hy default is entered cannot question the sufficiency of the evidence to support it.
    The case is in all respects, except one, similar in principle to People v. Clark, p. 613, ante. It relates to a house of ill fame kept in another location.
    T. W. Shields, for appellant.
    Wayne H. Dyer and John H. Beckers, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.


text:
    Richard Boggs by J. A. Boggs, Appellee, v. Iowa Central Railway Company, Appellant.
    Gen. No. 5,969.
    1. Railroads, § 785

      —when evidence warrants finding of negligence in backing train over crossing. In an action by a driver of an automobile for injuries sustained in a collision with defendant’s railway cars at a street crossing, evidence held sufficient to warrant a finding that defendant was guilty of negligence in the manner in which the train was operated, where the facts showed that a cut of freight cars were being backed over the crossing and that a brakeman on the first car was unable to signal the engineer to stop on account of a “crook” in the train.
    2. Railroads, § 759*—when contributory negligence of driver of automobile in approaching crossing question of fact. In an action by a driver of an automobile for injuries received in a collision with railway cars at a street crossing, held that the question whether the plaintiff exercised the necessary degree of care while approaching and going upon the crossing was a question of fact for the jury.
    3. Railroads, § 709*—when evidence of character of injuries of persons accompanying plaintiff admissible. In an action against a railroad company for injuries received by the driver of an automobile in a collision with defendant’s cars at a public crossing, testimony of other occupants of the automobile as to the character of the injuries sustained by them, held admissible to show the amount of force exercised at the time of the accident and the conditions surrounding the accident.
    4. Appeal and error, § 1245*—when defendant cannot complain of admission of evidence. Where in an action by an automobile driver for injuries received in a collision with railroad cars at a public crossing, the court admitted the testimony of other occupants of the automobile as to the character of their injuries, held that the defendant Railway Company could not complain of the admission of such evidence where it had previously asked questions bearing on the matter in the cross-examination of plaintiff’s witnesses.
    5. Evidence, § 277*—when photoghaphs of scene of accident admissible. In an action against a railroad company to recover for injuries received by plaintiff in a collision between an automobile and a cut of freight cars at a public crossing, refusal to admit in evidence a photograph 'of the scene of the accident, taken from a place where defendant claims the plaintiff had a view of the crossing, and offered for the purpose of aiding the jury to decide whether a car on the track would appear to be standing still or moving, held error.
    6. Infants, § 52

      —when instruction may allow recovery for loss of time and earnings during minority. In a suit by a minor for personal injuries, an instruction given at the request of plaintiff held not erroneous, for the reason that it might be understood to allow plaintiff to recover for loss of Ms time and Ms earnings during his minority, where the declaration was framed to recover for such loss and the suit was in the name of his father as next friend.
    7. Damages, § 209*—when instruction as to amount of recovery erroneous. An instruction telling the jury to assess the plaintiff’s damages “in such sum as you may think him justly entitled to under the evidence in this case, taking into consideration the character of his injury as the same is shown by the evidence,” held erroneous for the reason it left the jury unguided by any legal rule of damages.
    Appeal from the Circuit Court of Warren county; the Hon. Robert J. Grier, Judge, presiding. Heard in this court at the April term, 1914.
    Reversed and remanded.
    Opinion filed July 31, 1914.
    Brown & Soule, for appellant.
    Hanna & Lauder, for appellee.

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

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

   Mr. Justice Dibell

delivered the opinion of the court.

Third street, in the city of Monmouth, in Warren county, runs north and south and crosses the right of way and three tracks of the Iowa Central Railway Company, the course of which at that place is east and west. In the afternoon of Sunday, July 30, 1911, Richard Bogg’s, then sixteen years old, was driving an automobile south on Third street towards the tracks of said railway company and had with him in the automobile six other people. While the automobile was on the railroad tracks, above mentioned, it was struck by a freight car, propelled by a switch engine of the Iowa Central Railway Company. The automobile was demolished and Richard Boggs was injured. He brought suit by his next friend against the railway company to recover damages for said injuries, and had a verdict and a judgment for four thousand five hundred dollars, from which the defendant below appeals.

The declaration consists of three original counts and two additional counts and each alleges due care and caution on the part of appellee and negligence on the part of appellant, and that negligence is stated to be in running its engine and cars at a dangerous rate of speed, in failing to keep a proper watch for persons about to pass over said crossings, in failing to have a servant stationed on said cars, in failing to give such signals as would warn persons of the approach of engines and cars, and in failing to have a servant in such a position that he might signal the engineer to stop. A plea of the general issue was filed by appellant.

The crossing of the railroad tracks by Third street was a public one which had been in common use for more than thirty years. The railroad tracks run in a straight direction on either side of the highway, and the evidence shows that the car which caused the injury to appellee was not running more than six miles per hour. A cut of cars had been stopped at or near the freight depot of appellee, a short distance west of Third street, for the purpose of entering into a switch, and at that point the foreman in charge of the crew and cars left them and went into the freight depot for the purpose of attending to his regular duties. As soon as the switch had been set, a switch engine, pushing seven or eight ears, proceeded east in charge of the engineer, the fireman and one switchman. This switchman had opened the switch and had caught hold of and jumped on to the first car when it reached him, being a large car of the type known as a “cattle car.” This switchman did not ascend to the top of the ear but clung to the irons provided for that purpose along its north side. Appellant was driving the automobile, with six persons besides himself therein, about eight miles per hour. He testifies, as do others riding in the automobile with him at that time, that he and they first saw the head ear of that string of cars when the automobile was from seventy-five to one hundred feet from the track and that he had not seen it any sooner because the view was obstructed by trees and standing corn in the lot next to the railroad track. Appellee and some of those with him testified that the cars appeared to be standing still, and that they heard no whistle or bell and saw no smoke of the engine nor any person to warn them that the train was approaching. Appellee testified that as he approached nearer to the railroad tracks he noticed a man hanging on the north side of the first car and waving his left arm; that the car still seemed to him to be standing still, and that he understood that the switchman was motioning him to proceed across the tracks; that he" continued to approach the tracks, in the belief that the railroad train was motionless, until he was within a few feet of the track, when the switchman jumped down from the car, called to appellee to stop and waved his arms up and down, giving the emergency signal to the engineer to stop his train. There was what may be termed a “crook” in the train at this time, due to its proceeding from the main track to a switch track, and being still partly on the main track and partly on the curves leading out to the main track and partly on the switch track. Because of this “crook” the switchman was not within the range of vision of the engineer, and to enable the engineer to see his emergency signals the switchman was obliged to and did run to the fence adjoining the right of way. As soon as the engineer saw the emergency signals he put on the full force of the brake and stopped his train within the length of a car or a car and a half. As soon as appellee heard the brakeman calling to him to stop he did so, with the front wheels of his automobile upon the north track, which was the switch track upon which the train was approaching. He reversed his engine, and the automobile had started to back off from the track when it was struck by the train and demolished. Appellee testified that when the switchman first motioned to him he understood him to be beckoning him to go on over the tracks, and that when he finally heard the switch-man’s command to stop, he thought the switchman meant that there was a train approaching on one of the other tracks.

The evidence shows that the switching crew in charge of the train which caused the injury ordinarily consisted of five men, the foreman, two brakemen and the engineer and fireman. As stated above, the foreman had gone into the freight depot and was not on or near the train at the time of the accident. One of the brakemen was either laying’ off or had been temporarily suspended. The engineer and fireman were in a cab at the other end of the train on a crooked track and the other brakeman was the only person upon the cars and near the head of the train. The brakes by which the train could be stopped were all controlled by the engineer in his cab, and though the brakeman on the end of the train might discover some reason for stopping the train, he would' be powerless to do so until his signals could be so made as to be observed by the engineer. The foreman and all of the other members of this switching crew must be presumed to have known that this train was about to approach a public crossing, which was in general use by the public. In our judgment the evidence warranted the jury in finding that appellant was guilty of negligence in the manner in which this train was operated. If there had been two brakemen on these cars, one at the head end and the other on the car near the engine, it seems entirely probable that the first signal by the head brakeman would have been passed on to the engineer so quickly that this train would have been stopped without striking the automobile. Especially was such a disposition of the brakemen on the train essential when the train was obliged to pass over a crooked piece of track in passing into this switch. The question whether or not appellee exercised the necessary degree of care while approaching and going upon the crossing was a question of fact, which was within the province of the jury to decide. The jury by their verdict have found that appellee was in the exercise of ordinary care and the trial judge has approved that conclusion, and we should not be disposed to disturb it if the record were otherwise free from error.

Each one of the occupants of the automobile was injured at the same time that appellee received the injuries here complained of, and on the trial of this cause in the court below each one of them was questioned as to the character of the injuries so sustained by them. To this line of questions appellant objected and here insists that the evidence was improperly admitted, that when admitted it served to prejudice the jury against appellant, and that its admission constituted reversible error. In ruling upon the objections of appellant to this testimony, the court below stated that it would be admitted only for the purpose of showing the amount of force exercised at the time and the conditions surrounding the accident, and we do not consider the court’s action in that respect erroneous. Testimony of this kind has been admitted by the courts of this State. Richardson v. Nelson, 221 Ill. 254; West Chicago St. R. Co. v. Kennelly, 170 Ill. 508. Again, appellant is hardly in a position to complain of the admission of the testimony regarding the injuries sustained by the other occupants of the automobile, for the reason that the first questions bearing on that matter were asked of one of appellee’s witnesses by appellant on cross-examination in an apparent effort to determine how and to what extent the other occupants of the automobile were injured.

Appellant caused two photographs of the place and surroundings to be taken and, after examining the photographer who took them and who testified that they were correct representations of the objects shown, offered them in evidence as Exhibits 3 and 4. Exhibit 4 was admitted, but the court sustained an objection to Exhibit 3. Before this photograph was taken, appellant placed a freight car at a certain distance west of said crossing, and caused the photographer to place his instrument a certain distance north of the crossing, and these places corresponded with proof by appellant as to the places where the head freight car was at a certain instant shortly before the collision and where appellee then was in the automobile. Appellee had testified that the freight car appeared to him to be standing still; 'and the photograph, Exhibit 3, tended to give the jury a much better understanding of what the situation was at that time, if appellant’s testimony was believed, than the oral evidence would, and was calculated to aid the jury to decide whether, from the place where appellee then was, a freight car where that car then was would appear to be standing still, when in fact it was moving. These photographs were taken the second day after the accident, and there is no claim that the shrubbery and intervening growing corn had been changed. It is true that the photograph did not-wholly present the situation to which appellee’s witnesses testified, but we do not consider that a sufficient objection. It tended to illustrate the case as made by the proofs introduced by appellant. We think Exhibit 3 should have been admitted, under the rules laid down in Lake Erie & W. R. Co. v. Wilson, 189 Ill. 89.

Complaint is made of the first instruction given at the request of appellee. This instruction might have been understood to permit appellee to recover for his loss of time and earnings during his minority, whereas these belonged to bis father. Appellee’s declaration was framed to recover for such loss, and .the suit was in his name by his father as his next friend. For that reason only the instruction was not erroneous. American Car & Foundry Co. v. Hill, 226 Ill. 227; Orr v. Wahlfeld Mfg. Co., 179 Ill. App. 235.

The second instruction given at the request of appellee told the jury that under the circumstances therein stated they should assess appellee’s damages “in such sum as you may think him justly entitled to under the evidence in this case, taking into consideration the character of his injury as the same is. shown by the evidence.”

“This left the jury free scope to give such damages as, according to their individual notions of right and wrong, they might think the plaintiff ought to recover, unguided by any legal rule of damages.” Keightlinger v. Egan, 65 Ill. 235. We collected the authorities adverse to such an instruction in La Porte v. Wallace, 89 Ill. App. 517. Later cases are Cleveland, C., C. & St. L. Ry. Co. v. Jenkins, 174 Ill. 398, where an instruction to fix plaintiff’s damages “at such sum as you think right,” was condemned; Illinois Cent. R. Co. v. Johnson, 221 Ill. 42, where a given instruction authorized the jury to fix plaintiff’s damages “at such reasonable sum as she may be entitled to recover, under all the facts and circumstances proved in the case, not exceeding $5,000,” and this was held erroneous because it did not limit the jury to compensation for pecuniary injury or loss; and Fowler v. Chicago & E. I. R. Co., 234 Ill. 619, where it is implied that the jury should he limited to the amount of actual pecuniary damages sustained, as shown by the evidence.

This case is close upon the questions whether appellee was guilty of contributory negligence and whether the damages awarded are excessive, and we therefore conclude that for the error in giving the second instruction and in refusing to admit in evidence Exhibit 3, the cause should be submitted to another jury. The judgment is therefore reversed and the cause remanded.

Reversed and remanded.