text:
    Christina Klage, Executrix, Appellee, v. Bunsen Coal Company, Appellant.
    1. Workmen’s Compensation Act—when appeal lies to Appellate Court from Circuit Court after trial de novo. Where, after proceedings had before arbitrators in accordance with the provisions of the Workmen’s Compensation Act, an appeal is taken to the Circuit Court and a trial de novo had there before a jury, an appeal from a judgment there rendered will lie to the Appellate Court.
    2. Workmen’s Compensation Act, § 12*—when evidence sufficient to sustain finding that injury was cause of death. In an action for death under the Workmen’s Compensation Act, where it was shown that the deceased, when partially recovered from a fracture of the leg, was seized with and died suddenly as the result of an- attack of what was described by the defendant’s physicians as cerebral embolism, resulting from a long standing case of arterio-sclerosis, and by the plaintiff’s physicians as pulmonary embolism, caused by a clot of blood from the injured leg, evidence held not to justify a reversal of a verdict for the plaintiff on the ground that the injury received by the plaintiff was not the cause of his death.
    3. Workmen’s Compensation Act, § 12*—when instruction not erroneous as assuming facts. In an action for death under the Workmen’s Compensation Act, an instruction held not to assume that the deceased was suffering from a diseased condition of his blood vessels, by reason of which his death would be more easily caused by such an injury as he received.
    Appeal from the Circuit Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the October term, 1914. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 13, 1915.
    Rehearing denied December 11, 1915.

      Rearick & Meeks and Knapp & Campbell, for appellant; George F. Rearick and William Beye, of counsel.
    Isaac A. Love, C. H. Beckwith and Acton & Acton, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

On December 17, 1912, Wilhelm Klage was injured in an accident arising out of and in the course of his employment with the Bunsen Coal Company. He died December 29, 1912. At the time of the accident both Klage and the Bunsen Coal Company were working under the Workmen’s Compensation Act in force May 1, 1912 (J. & A. ¶ 5449 et seq.). Christina Klage was appointed and qualified as executrix of the estate of the deceased. A board of arbitration was selected under the provisions of said act to pass upon the right of Christina Klage, the widow of the deceased, .to receive compensation from the employer under said act. A majority of the board of arbitration, composed of two doctors and a lawyer, made an award finding that the death was not caused by the accident. The executrix took an appeal from the award of the arbitrators to the Circuit Court and demanded a trial by a jury. On the trial in the Circuit Court, it was stipulated that the average annual earnings of the deceased were $586.15; that the coal company was duly notified of the claim of plaintiff for compensation on March 5, 1913; that the present value of such compensation is $1,988.56, and if the coal company is liable for the death of the deceased the jury need not make any finding as to the amount of the compensation. On the trial in the Circuit Court, the jury found the issues for the plaintiff. Judgment in favor of plaintiff was rendered for $1,988.56 against the defendant. The defendant prosecutes this appeal from that judgment.

Appellee has entered a motion to dismiss the appeal, and contends that no appeal lies from the judgment of the Circuit Court rendered on the hearing under the provisions of the Workmen’s Compensation Act in force May 1, 1912. Similar appeals have been prosecuted (Stevenson v. Illinois Watch Case Co., 186 Ill. App. 418 [5 N. C. C. A. 858]; Staley v. Illinois Cent. R. Co., 268 Ill. 356; Brown v. City of Decatur, 188 Ill. App. 147), and different Appellate Courts have taken jurisdiction of appeals from the Circuit Courts from judgments rendered under the act, but the question of the jurisdiction of the Appellate Court in such cases apparently was not raised.

The act provides for an appeal from the report of award of the arbitrators to the Circuit Court “and upon such appeal the questions in dispute shall be heard de novo and either party may have a jury upon filing a written demand therefor with his petition.” The proceeding before the arbitrators was a statutory proceeding and the statute provides how the proceeding shall be conducted before the arbitrators. No provision is contained in the statute as to.the method of procedure before the Circuit Court further than it is de novo, and before a jury if either party so desires.

On the trial in the Circuit Court the jury was selected, the evidence presented, the cause argued and the jury instructed by the court at the request of both parties. The trial was had after the forms of the common law and under the Practice Act. The trial in the Circuit Court was conducted by both parties and the court as if it was a proceeding at common law. The fact that the initial proceeding was statutory did not change the rights of the parties to appeal from the judgment of the Circuit Court from the result of a trial had as at common law. This proceeding is parallel with the presenting of a claim against an estate in the Probate Court; that is a statutory proceeding from which an appeal is permitted to the Circuit Court, where the trial is de novo and appeals are prosecuted in such matters to the Appellate and Supreme Courts. Grier v. Gable, 159 Ill. 29; Zeigler v. Illinois Trust & Savings Bank, 245 Ill. 180; Kolb v. Stephens’ Estate, 176 Ill. App. 391, and cases cited. Since the case at bar was submitted to this court, the Appellate Court of the Second District has passed on a similar motion and denied it. Carlson v. Avery Company, 196 Ill. App. 262. This court agrees with the reasoning of the Appellate Court of the Second District, and the motion to dismiss the appeal is denied.

Appellant contends that there was no evidence tending to prove that the injury received by the deceased on December 17th caused his death; that the verdict cannot be sustained on the evidence, and that the court should have instructed the jury to find the issues for the defendant. The evidence shows that the deceased was a coal miner sixty-seven years of age when he received the injury in appellant’s mine. The injury was a compound fracture of the left leg between the knee and the ankle. The ends of the bone protruded through the skin. He was taken to the hospital for treatment of the fracture. He had had no sickness, heart trouble or headaches prior to the injury. The leg was set, put in a fracture box and dressed daily for ten days, then it was put in a plaster cast. There was nothing surprising in the history of the ease. The patient appeared to be getting along well. On the day of his death the doctor had him stand up, to be measured for crutches. He suddenly became pale and his mind appeared flighty. He was put back in bed, had a convulsion and died within half an hour.

The appellant contends that his death was caused by cerebral embolism, that is, that he had a bad case of hardening of the arteries, arterio-sclerosis, and that part of the lining of the artery became detached and formed a clot that lodged in and plugged an artery.in the brain. The appellee contends that he died of pulmonary embolism, the plugging up of an artery in a lung by a blood clot, which came from the site of the fracture. There were an equal number of doctors who testified on each side. The doctors for appellant testified that they thought the death was caused by cerebral embolism; the doctors for appellee testified that they thought the death was caused by pulmonary embolism caused by a clot coming from the injury. In the conflicting state of the evidence, we cannot say the accident did not have a direct causal relationship to his death or that the verdict is not sustained by the evidence.

Appellant further insists that the court erred in the giving of two instructions. The contentions are that the first instruction assumes that the deceased had a diseased condition of the blood vessels by reason of which his death would be more easily caused by an injury such as he received, and that there was no evidence on that question. The part of the instruction complained of is: “if you believe from a preponderance of the evidence that the said William Klage had any diseased condition of the blood vessels by reason of which his death would be more easily caused by an injury like the one in question,” etc. The instruction is not an assertion of a diseased condition, but clearly leaves it to the jury to find from the evidence whether or not there was such a condition of the blood vessels. The evidence tended to show that the deceased had hardening of the arteries and that for that disease complete rest and quiet is the best remedy. One doctor testified he “would not expect any tendency of trouble to come from it where the patient had been quiet several days.” There is much evidence in the case on which to base the instruction, not, however, in the language of the instruction but from which such facts might reasonably be inferred. A similar complaint is made concerning appellee’s second instruction, but upon a careful examination we find it is not subject to the criticism made. Finding no error in the record, the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Thompson

license: Public Domain

text:
    Nelson Busick, Appellee, v. Illinois Central Railroad Company, Appellant.
    1. Appeal and error, § 1051

      —When rulings on evidence not considered on appeal. Where neither in a motion for a new trial nor in the assignment of errors on appeal mention is made of rulings on the admission or rejection of evidence, such questions cannot he considered by the reviewing court.
    2. Assault and battery, § 15*—when question Whether officer acting Within scope of employment for jury. In an action for assault on the plaintiff by a special police officer in the employment of. the defendant, the question whether the acts done by the officer were within the scope of his employment, held for the jury.
    3. Trespass, § 64*—when a crime at common law. Unless a trespass is.accompanied by or tends to produce a breach of the peace, It is not a crime at common law.
    4. Trespass, § 64*—what does not constitute statutory trespass. Loitering around a railway company’s station, held not a statutory trespass as defined in the Criminal Code of Illinois.
    5. Trespass—what force may he used to remove trespasser. The use of any more force than necessary to remove a trespasser is wrongful.
    6. Assault and battery, § 17*—when instruction correct. In an action for an assault by a special police officer, an instruction that it was for the jury to determine whether the officer was acting within the scope of his authority, held correct.
    7. Assault and battery, § 22*—when punitive damages allowed. Apparently it is the law in this State that punitive damages can be allowed in an action against a railroad company for assault and false imprisonment by one of its watchmen, who is also a special policeman of a municipality, serving without pay.
    8. Assault and battery, § 17*—when requested instruction on right of special police officer to arrest person violating statute properly refused. In an action for assault on an alleged trespasser by a special police officer, an instruction that the officer had a right to arrest on sight any person who might he guilty of violating any statute, ordinance or breach of the peace, held properly refused where no ordinance creating any offense was in evidence.
    9. Assault and battery, § 22

      —when instruction on punitive damages erroneous. An instruction stating under what circumstances punitive damages could be allowed for an assault by a special police officer in arresting a trespasser, held misleading and reversibly erroneous.
    Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed October 13, 1915.
    Rehearing denied December 11, 1915.
    Crea & Housum, for appellant; John G. Drennan, of counsel.
    Vail & Miller, Charles C. LeForgee and Herrick & Herrick, for appellee.

      See Illindis 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 Thompson

delivered the opinion of the court.

This appeal seeks to reverse a judgment for $1,250 in favor of Nelson Busick against the Illinois Central Railroad Company for an alleged assault and false imprisonment.

The first count of the declaration avers that the defendant in the City of Champaign, by its servant, Gr. Gr. Phillips, assaulted the plaintiff and wantonly, wilfully and maliciously struck plaintiff and severely bruised and maimed him, etc. The second count avers that the defendant by its servant, Phillips, assaulted plaintiff and imprisoned him without warrant of law, etc. The defendant filed a plea of the general issue and four special pleas. One of the special pleas avers that Phillips was a special officer or agent of the defendant, and was a special police officer, duly licensed and authorized hy the Board of Police and Fire Commissioners of the City of Champaign, a municipal corporation; that plaintiff was unlawfully loitering and trespassing on the station grounds of defendant; that Phillips, as such special officer of defendant and police officer of the City of Champaign, requested the plaintiff to leave; that plaintiff inquired of Phillips if he was a police officer and was informed that he was; that said plaintiff still refused to leave; that thereupon Phillips arrested the plaintiff and the plaintiff resisted arrest and with force and arms assaulted Phillips, and that Phillips resisted such assault and took plaintiff into custody, etc. Two other special pleas are substantially similar to the foregoing. The fourth pleads a certain ordinance of the City of Champaign providing a penalty for persons unlawfully trespassing on the property of another, and that plaintiff was unlawfully on the grounds of defendant, etc.

The appellee is a man sixty-six years of age, who had been a farmer in Ford county but had lived in Champaign for about eight years. The depot of the Illinois Central Bailroad in Champaign is on the west side of its tracks. The railroad runs north and south. Main street extends west from the west side of the depot. East of the depot and east of the tracks a footpath sixteen feet wide extends across the right of way of appellant. One hundred feet east from the depot there is an iron railing on each side of this path.

It is stipulated that Phillips, who is alleged to have made the assault and false arrest, was an employee of the appellant, employed as a railroad detective to guard the property of appellant; that his wages were paid by the appellant and that he was acting as a special policeman under the appointment of the authorities of the City of Champaign, without pay.

On the evening of January 15, 1912, Busick, who had been drinking some, was sitting on the iron railing by the path across the right of way east of the depot. Busick testified that Phillips, not in uniform, came up to him and said to him, that he would have to move along, that this is Illinois Central property; that he, Busick, said he had seen men sitting there before and he was not bothering anybody; that Phillips said it was against the rule for any one to sit there and he would have to move; that he asked Phillips what authority he had to have him moved, and that Phillips said he was a trackman, and he told him to go and look after his track. Phillips testified that he said to Busick and some others sitting on the rail that they would have to move, and Busick asked him if he was an officer and he replied yes, and showed him his star; that he asked Busick if he was waiting for any person and Busick said no; that Busick then talked profanely and he, Phillips, told him he must move on and after his refusal to move, he took him by the arm and started towards the police station, Busick going without any resistance at first. On the way he determined not to go further with Phillips and thereupon there was a scuffle and both fell, when another policeman came up and the two took Busick to the police station. At the station Busick was asked his name and, although he had been arrested and fined several times in his right name for intoxication and disorderly conduct, he replied that his name was John Brown, whereupon Phillips took him by the wrist and twisted his arm, either to make him tell his right name or because he was resisting being searched. The arm was broken at the elbow, either in the fall, at the scuffle and fall or by the twisting at the police station.

It is argued that the court erred in refusing to admit in evidence (1) an ordinance of the City of Champaign; (2) a release and covenant not to sue the City of Champaign, executed by appellee; and (3) in sustaining objections to questions asked of appellee in his cross-examination. None of these questions can be raised in this court for the reason that neither in the motion for a new trial nor in the assignment of errors is any mention made of any ruling concerning the admission or rejection of evidence.

It is contended that no recovery for appellee can be sustained under the evidence and that the court erred in refusing to direct a verdict for the appellant at the close of all the evidence. The evidence shows, in addition to the stipulation, that at the time Phillips was appointed special policeman, the secretary of the police and fire commission gave him directions as to his duties and instructed him that he would be' expected to render service with the regular police force. The secretary of the police and fire commission also talked to him about complaints that had been made concerning persons loitering and loafing around the Illinois Central depot.

From the evidence of Busick, although he was arrested on the depot grounds, he was not injured on the grounds of appellant but in the police station while he was being searched. Phillips testified that at the time appellee was injured, he was employed as a watchman for the Illinois Central Railroad Company, “to look after the interests of the property, to see that nothing was stolen and people were not trespassing or loafing around the depot.” “I had orders from the superintendent of the railroad not to allow anybody to sit on the fence. ’ ’ He was watching and looking after the railroad property in compliance with orders given him by the officials of appellant. What Phillips did was done while he was in the employ of appellant, and in removing appellee from appellant’s property he was acting under the direct instructions of the superintendent of appellant not to allow any person to sit on the railing, as well as in the capacity of a policeman of the city. It was a question for the jury whether what Phillips did was within the scope of his employment and instructions from appellant.

“No trespass to property is a crime at common law unless it is accompanied by or tends to create a breach of the peace.” 38 Cyc. 1175. What appellee was doing, as shown by the evidence in the record, at the time Phillips arrested him does not come within any of the statutory definitions of trespass contained in the Criminal Code of Illinois (Hurd’s St. Crim. Code,, sections 266-269, J. & A. ¶¶ 3958-3961), and while an ordinance of the city concerning trespassing was offered in evidence, it was not admitted, and the ruling of the court on that question is not assigned for error. It does not appear necessarily that appellee had committed a criminal trespass. If he was on the premises of appellant without right there, it had the right to use necessary force to remove him, but anything beyond that was wrongful. There was no error in refusing the peremptory instruction.

Error is assigned and argued upon the giving of two instructions at the request of appellee. The first of these tells the jury that if under either count it believes from a preponderance of the evidence that plaintiff was assaulted by Phillips as charged, then it is a question for the jury to determine whether Phillips in making the assault was acting as the agent of defendant and within the scope of his authority as such agent. The gist of the second count is a false imprisonment. False imprisonment is a form of assault. That count charges that appellant beat, bruised and imprisoned appellee without warrant of law. We see no error in the instruction. The other given instruction complained of is concerning punitive damages. Appellant contends that “punitive damages cannot be allowed in an action against a railroad company for assault and'false imprisonment by one of its watchmen, who is also a special policeman of a municipality serving without pay.” No authority is cited sustaining such contention and the rule in this State appears to be contra. Chicago Consol. Traction Co. v. Mahoney, 230 Ill. 562.

The court refused to give the eighth instruction as asked by appellant. The instruction as asked might have been properly refused for the reason it told the jury, among other things, that “Phillips had a right to arrest on sight any person or persons who might be guilty of violating any statute, ordinance or breach of the peace”; and there was no ordinance creating any offense in evidence. The instruction also calls attention to the fact that appellant was required to give bond. The court, however, after modifying the instruction, gave it. The instruction as asked ended by telling the jury that if it believed, from the evidence, certain things, then the plaintiff could not recover. The last sentence of the instruction as modified and given is: “And if you believe from the evidence in this case that the plaintiff was trespassing upon the property of the defendant company, that he refused to leave the property upon the request of Phillips, then the said Phillips had a right to arrest the said plaintiff for trespassing, and if you believe from a preponderance of the evidence that Phillips did attempt to arrest the plaintiff for trespassing, and that the alleged injuries claimed to have been received by the plaintiff were received and sustained while the plaintiff was resisting such arrest, and were received in the exercise of reasonable and necessary force in making the arrest, and if injuries were received and inflicted by an employee of defendant while ostensibly acting in discharging duties within the scope of the purposes of the defendant because of the wrongful and vindictive act of such agent, and plaintiff had suffered actual pecuniary damages, then and in that case, only, may the jury impose punitive or exemplary damages.”

All that part of the instruction after the words “resisting such arrest” was inserted by the court after erasing the conclusion of the instruction as it was presented. It has no logical connection with the preceding part of the instruction. No other instruction was given that attempted to state the law applicable to appellant’s theory of the case. The instruction as given is very misleading and confusing, in telling the jury that if it believed all the different facts stated in the last sentence then only may punitive damages be imposed. For the error in giving this instruction, the judgment is reversed and the cause remanded.

Reversed cmd remanded.


text:
    The People of the State of Illinois, Defendant in Error, v. Louis Nordine, Plaintiff in Error.
    (Not to he reported in full.)
    Error to the County Court of McLean county; the Hon. Homer W. Hall, Judge, presiding. Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 13, 1915.
    Statement of the Case.
    Prosecution by information by the People of the State of Illinois, plaintiff, against Louis Nordine, defendant, for illegal sale of intoxicating liquors. To review a judgment entered on a verdict of guilty, the defendant prosecutes a writ of error.
    The judgment of the court was in part as follows:

      “ And now the said defendant, Louis Nordine, is committed to the custody of the sheriff of McLean County, and it is further ordered and adjudged by the court that the said defendant, because of said judgment of guilty, be further sentenced to pay to the clerk of this court, to be by said clerk disposed of according to law, a fine in the sum of $30 on each of the first, second * * * and twentieth counts of the information herein, making in all a fine of $600, and also the costs of this suit, taxed at $55.75, and in default of said payment of said fine and costs, it is ordered that the said defendant, Louis Nordine, after the expiration of said terms of imprisonment, stand committed in said county jail until said fines and costs shall have been paid, or until said defendant * * * shall have been discharged according to law. ’ ’
    Abstract of the Decision.
    1. Criminal law, § 372

      —When judgment not reversibly erroneous. The totaling up in a judgment, of the sentences inflicting penalties by fine and imprisonment on various counts of an information, held a technical informality or surplusage and not harmful to the defendant.
    2. Criminal law, § 485*—what should be pointed out and argued in brief. A mere technical informality in a judgment entered on a verdict of guilty, assigned as error on appeal but not pointed out and argued in the reviewing court, held not reversible error.
    3. Criminal law, § 521*—what is function of court on appeal in passing on conflicting evidence. A court of appeal should not usurp the functions of a jury in a criminal case by substituting its judgment for theirs in passing on the weight and credibility of conflicting evidence.
    4. Criminal law, § 520*—when verdict set aside on appeal as unsupported by evidence. It is only where the verdict in a criminal case is so palpably and manifestly against the weight of evidence as to indicate that the verdict is based on passion and prejudice that a verdict and judgment therein will be set aside by an Appellate Court.
    5. Intoxicating liquors, § 151*—when evidence insufficient to sustain conviction. Evidence held sufficient to sustain a conviction for selling intoxicating liquors in anti-saloon territory.
    M. A. Brennan and B. J. Heffernan, for plaintiff in error; W. W. Whitmore, of counsel.
    Miles K. Young and W. B. Leach, for defendant in error.

      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 Thompson

delivered the opinion of the court.

6. Intoxicating liquors, § 148 —how guilt or innocence of defendant accused of illegally selling intoxicating liquor determined. The guilt or innocence of one accused of illegally selling intoxicating liquors is to be determined from the nature of the goods sold and not from the name under which they are ordered.

7. Intoxicating liquors, § 75*—what constitutes. A fermented malt liquor called “Temp Brew” held within the Local Option Law (J. & A. ¶ 4,637 et seq.), prohibiting the sale of intoxicating liquors and defining them as including “all distilled, spirituous, vinous, fermented and malt liquors,” though claimed to be nonintoxicating.

8. Criminal law, § 556*—when misconduct of juror harmless error. An assignment of error, on appeal from a conviction for illegally selling intoxicating liquors, that a person supposed to be pushing the prosecution had talked to a juror concerning his duties before he was called into the jury box, where no such occurrence is contained in the record and it is stated in the argument that such juror was excused for cause, held there is no basis for such assignment.

9. Criminal law, § 583*—when assignments of error deemed waived. Assignments of error in a criminal case not argued are deemed waived.


text:
    The People of the State of Illinois, Defendant in Error, v. Jack Colberg, Plaintiff in Error.
    (Not to be reported in full.)
    Error to the County Court of Vermilion county; the Hon. Lawrence T. Allen, Judge, presiding. Heard in this court at the April term, 1915.
    Reversed and remanded.
    Opinion filed October 13, 1915.
    Statement of the Case.
    Information by the People of the State of Illinois, plaintiff, against Jack Colberg, defendant, for illegal sale of liquor to a minor. To review a judgment entered on a verdict of guilty, the defendant prosecutes a writ of error. The court on its own initiative instructed the jury that: “If you believe from the evidence beyond a reasonable doubt that the defendant * * * sold intoxicating liquor to -Virgil Chapman, a minor, * * * it is your duty to return a verdict of guilty; unless you further believe from the evidence, beyond a reasonable doubt, that said minor had a written order of a parent, guardian or family physician of such minor, and * * * the burden of proving such written order is upon the defendant. ’ ’
    Abstract of the Decision.
    1. Intoxicating liquors, § 161

      —when alternative judgment sentencing defendant convicted of unlawfully selling liquor to minor erroneous. An alternative judgment sentencing a defendant, convicted of unlawfully selling liquor to a minor, to pay a fine of fifty dollars and costs, and, in default of such payment, to be confined in jail for a period of thirty days, held not authorized under the statute, J. & A. ¶ 4605, or the Criminal Code, secs. 452, 168b (J. & A. ¶¶ 4152, 3795).
    2. Intoxicating liquors, § 158*—when instruction on amount of proof to avoid conviction erroneous. In a prosecution for illegal sale of liquor to a minor, an instruction requiring the defendant, in order to avoid a conviction, to prove beyond a reasonable doubt that the minor had a proper written order therefor, held reversible error.
    Charles Troup, for plaintiff in error.
    John H. Lewman, for defendant in error; David Allison, of counsel.

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

   Mr. Justice Thompson

delivered the opinion of the court.


text:
    Anna Schultz, Appellee, v. George Sohrt, Appellant.
    1. Limitation of actions, § 60

      :—what are tests for determining whether two declarations state same cause of action. The recognized tests of whether each of two declarations states the same cause of action are (1) would the same evidence, not objected to, support a judgment rendered upon either declaration; and (2) could a judgment under one of the declarations be successfully pleaded as a former adjudication against the cause of action set out in the other declaration.
    2. Libel and slander, §. 111*—what constitutes variance between pleading and proof. In an action for slander, proof of words equivalent to those alleged in the declaration to have been spoken is not admissible.
    3. Limitation of actions, § 67*—when declaration in action for-slander states new cause of action. Where a declaration in an action for slander alleged that on a certain date certain slanderous words were spoken in the English language, held that a demurrer to a plea of the statute of limitations to an amended declaration, filed after the running of the statute of limitations, alleging that such words were spoken in the German language, was erroneously sustained as such amended declaration stated a new cause of action.
    4. Witnesses, § 31*—when wife not competent witness as to conversation of husband with third person. In an action for slander, testimony of the plaintiff as to words spoken by the defendant in a conversation with the plaintiff’s husband in her presence, held inadmissible under section 5 of the Evidence Act (J. & A. ¶ 5522).
    Bldredge, P. J., dissenting.
    Appeal from the Circuit Court of Douglas county; the Hon. Franklin H. Boggs," Judge, presiding. Heard in this court at the April term, 1915.
    Reversed and remanded.
    Opinion filed October 13, 1915.
    John H. Chadwick, for appellant; O. B. Dobbins, of counsel.
    Perry M. Moore and W. Thomas Coleman, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.

This is an action brought by Anna Schultz, appellee, against George Sohrt, appellant, to recover damages for slanderous words averred to have been spoken of and concerning the plaintiff to the plaintiff’s husband and others. Plaintiff recovered a verdict and judgment against the defendant for four hundred dollars.

The suit was begun May 5, 1914. The original declaration, consisting of three counts, was filed September 1, 1914. The first count charges the appellant with uttering certain words to Henry Schultz, husband of appellee, on February 25, 1914. The second count charges that appellant made substantially the same statement on October 15, 1913, in the presence of the minister of the church of which appellee was a member. The third is the same as the second except that the time is averred to be in the autumn of 1913, the exact date being unknown.

The words spoken of the appellee were all averred to have been spoken in the English language. On the 23rd day of November, 1914, appellee filed an amended declaration in which the words spoken and alleged in the different counts are all averred to have been spoken in the German language, in the presence of the same parties named in the original declaration, and who it is averred understood that language. Each amended count sets forth the English translation of the alleged slanderous words and shows their application to the appellee. The appellant filed a plea of the general issue and a plea of the statute of limitations to the second and third amended counts, averring that the appellant did not utter the words set forth in said counts within one year prior to the filing of the amended declaration. A demurrer was sustained to the plea of the statute of limitations.

It is contended by appellant that the amended declaration sets forth a new cause of action and one that is not stated in the original declaration. The original declaration declared only upon the words spoken in the English language. The amended counts aver the words to have been spoken only in the German language, “which said words signified and meant in the English •language, as follows, that is to say:” the identical words averred to have been spoken in the original declaration.

The usual recognized tests of whether the counts state the same cause of action are (1) would the same evidence not objected to support a judgment rendered upon either statement; and (2) could a judgment under one declaration be successfully pleaded as a former adjudication against the cause of action set out in the other declaration. (Carlin v. City of Chicago, 262 Ill. 564.) The rule in this State is well settled that proof of equivalent words is not admissible. (Schmisseur v. Kreilich, 92 Ill. 347.) If the allegations and proof do not substantially correspond there is a fatal variance and the plaintiff must fail. 13 Encyc. Pl. & Pr. 62. A verdict will not aid a count failing to set forth the words spoken. 25 Cyc. 472. There would be a fatal variance between words alleged in English and proof of words spoken in German. On the second proposition we cannot see how a judgment recovered for slander for words spoken in English could be a bar to damages for words spoken in German. We are constrained to hold that the amended counts of the declaration set forth a new and. different cause of action from that contained in the original declaration and that the court erred in sustaining the demurrer to the plea of the statute of limitations.

It is also contended that appellee was not a competent witness to a statement made by appellant to the husband of appellee. She was first asked if she remembered a conversation had between her husband and Sohrt, the appellant. After an objection that she was not a competent witness to such conversation had been overruled she replied, “I do.” Questions were then asked whether she remembered the words used by Sohrt and what language they were in, which were answered over objections. She was then asked to “give the words in German as he said them.” An objection that she was an incompetent witness to a conversation between her husband and a third party was overruled after which she told what Sohrt said in German: “You have, with her your second wife, whored around, before your first wife died, or was dead.” From the testimony given by appellee’s husband and introduced before appellee testified, and also from the questions asked appellee, it appears that the slanderous statement was but a part of a conversation between appellee’s husband and appellant. The proviso in section 5 of the Evidence Act (J. & A. ¶ 5522) is, that this section shall not be construed to authorize such husband or wife to testify to any admissions or conversations of the other to third parties except in suits between the husband and wife. In Stephens v. Collison, 256 Ill. at page 242, this proviso was held to deny the right of a husband to testify to a conversation between his wife and a third party. The court in that case said: “Under this construction of the proviso to said section 5 Stephens was not a competent witness to testify to any conversation between his wife and the executors, Collison and Karr, and this would include statements made by either Collison or Karr to Mrs. Stephens as well as statements made by her to them.” The same rule is held in Goels v. Goels, 157 Ill. 33, and Donnan v. Donnan, 236 Ill. 341. The proviso to section 5 of the Evidence Act was passed in 1874. Decisions made before the enactment of the proviso are not authority on the construction of the present statute. This proviso was passed as a matter of public policy that a husband or wife may not be called to corroborate the other as to a conversation had between the other and a third party. It was error to permit appellee to testify concerning the words spoken by appellant to her husband.

The judgment is reversed and the cause remanded.

Reversed and remanded.

Me. Presiding Justice Eldredge dissents.


text:
    National Trust & Credit Company, Appellant, v. Ross C. Kiningham, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the April term, 1915.
    Reversed and remanded.
    Opinion filed October 13, 1915.
    Statement of the Case.
    Action by National Trust & Credit Company, plaintiff, against Boss C. Kiningham, defendant, on a promissory note. From a judgment for defendant, plaintiff appeals.
    As a defense the defendant claimed that the plaintiff orally consented to be bound by an agreement which by its terms was between Boss C. Kiningham, debtor, “and the several persons, companies and firms whose names and seals are hereinafter signed and affixed respectively, being creditors of said debtor, and all other creditors of said debtor acceding thereto, hereinafter called the creditors, party of the second part” and C. N. Kiningham, trustee, party of the third part, and by which the defendant was to be released of his indebtedness in execution of a bill of sale of his property to the trustee. Such bill of sale was executed.
    John W. Creekmur, Donald J. De Wolfe and Oliver D. Mann, for appellant.

      Abstract of the Decision.
    1. Bills and notes, § 451

      —when evidence insufficient to show release from liability. In an action on a promissory note where the defense was that the plaintiff had, by parol, entered into an agreement to release the defendant on his making an assignment for the benefit of his creditors and that such assignment had been made, evidence held to show that the plaintiff had never acceded to such an agreement.
    2. Fraudulent conveyances, § 15*—when assignment for benefit of creditors invalid. An assignment for the benefit of creditors not being or purporting to be for the benefit of all creditors, but only for such as might accede thereto and making no pretense of compliance with the Bulk Sales Act [Cal. Ill. St. Supp. 1916, ¶ 10021 (1) et seq.], held in violation of such statute and void.
    Lindley, Penwell & Lindley, for appellee; Walter C. Lindley, of counsel.

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

   Mr. Justice Thompson

delivered the opinion of the court.


text:
    Malcom J. Neer, Defendant in Error, v. Edward B. Pryor, Receiver, Plaintiff in Error.
    (Not to be reported in full.)
    Error to the Circuit Court of Champaign county; the Hon. Franklin H. Boggs, Judge, presiding. Heard in this court at the April term, 1915.
    Reversed and remanded.
    Opinion filed October 13, 1915.
    Statement of the Case.
    Action by Malcom J. Neer, plaintiff, against Edward B. Pryor, receiver of the Wabash Railroad Company, defendant, for personal injuries. To review a judgment for plaintiff, defendant prosecutes a writ of error.

      Abstract of the Decision.
    1. Railroads, § 587

      —when negligence of defendant in blowing off steam near horse on highway question for jury. In an action for personal injuries alleged to have resulted from the plaintiff’s horse, while being driven. along a public highway parallel to the right-of way of the defendant railway company, becoming frightened by steam allowed to escape from a passing engine onto the highway and enveloping the horse, the question whether the defendant was either negligent or wilful in blowing off steam in the manner and place alleged, held for the jury.
    2. Railroads—when liable for personal injuries resulting from frightening of horses. A railroad is responsible for personal injuries caused by the frightening of horses by unnecessary noises made in the negligent and reckless running of trains, or when such noises are made in a wanton, wilful or malicious manner in disregard of a traveler’s right on the highway.
    3. Railroads, § 582*—when evidence sufficient to sustain verdict for plaintiff in action for personal injuries due to frightening of horse. In an action for personal injuries alleged to have resulted from the plaintiff’s horse, while being driven along a public highway parallel to the right of way of the defendant railway company, becoming frightened by steam allowed to escape from a passing engine on to the highway and enveloping the horse, evidence held sufficient to sustain a verdict for the plaintiff.

      4. Evidence, § 436*—when objection to question put to expert witness properly sustained. In an action for personal injuries alleged to have resulted from the plaintiff’s horse becoming frightened by steam blown from a railroad locomotive, an objection to a question, addressed to an expert witness, as to whether, in his experience, the amount of steam, which was shown by the plaintiff’s testimony to have been blown out was any more than ordinarily necessary in the operation of trains, where it becomes necessary to blow off steam frequently, held properly sustained, since it could not be known on what the answer of the witness would be based, as that would depend on how much of the plaintiff’s evidence he had heard and his recollection and construction thereof.

      Thomas J. Smith and N. S. Brown, for plaintiff in error.
    Green & Palmer, for defendant in error; Oris Barth, of counsel.

      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 Thompson

delivered the opinion of the court.

5. Trial, § 91 —when general objection to question put to witness insufficient. In an action for personal injuries, on the issue as to whether steam had been negligently blown off from the defendant’s engine at a certain time and place, a general objection to questions put to the engineer as to the condition of the pipes and engine with reference to the necessity of blowing off steam in order to successfully operate the engine, and as to his recollection with respect to the condition of the engine for proper and safe use at the time in question, and as to the quality of the water taken into the engine shortly prior thereto, held improperly sustained.

6. Railroads, § 593*—when instruction in action for personal injuries not improper as being inapplicable to evidence. In an action against a railroad company for damages for personal injuries due to frightening plaintiff’s horse, under a complaint alleging a wilful, intentional, and malicious act of the defendant as the cause of the injury sustained, an instruction as to defendant’s liability on such issue, held not improper because there was no evidence of malice shown, since malice does not necessarily mean an intention to injure but may be a reckless disregard of the rights of others.

7. Railroads, § 593*—when requested instruction on degree of care proper. In an action for personal injuries alleged to have resulted from the negligent act of a railroad company’s locomotive engineer in blowing steam from his engine so as to frighten the plaintiff’s horse, being driven on a highway adjacent to the company’s right of way, held that a requested instruction that, in determining the liability of the defendant, it should be treated not as a common carrier but as an ordinary owner of land and subject to no greater degree of care than would be a private owner of land abutting on the highway under the same circumstances, was correct and should have been given, although stating an abstract proposition of law.


text:
    Thomas Hart, Appellee, v. R. E. Bradbury, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Master and servant, § 81

      —when presumed that parties assented to continuance of services under same terms as expiring contract. Where a contract is entered into by which one person agrees to perform services for another for a definite time and at a stated salary and such services are continued after the term without objection by the employer and without any new agreement, the law raises a presumption that the parties have assented to a continuance of the services for another term of the same length and at the same salary.
    2. Master and servant, § 75*—what is remedy of servant working after expiration of contract for recovery Of wages. Where a servant agrees to work under a contract for a stipulated time and a definite salary, and he continues to work after the expiration of such period and the salary is not changed, the recovery for wages accruing after the expiration of such period must be on an implied contract and for the compensation presumed to have been fixed by the parties and not on quantum meruit.

    Appeal from the Circuit Court of Ford county; the Hon. Thomas M. Harris, Judge, presiding. Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 13, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Thomas Hart, plaintiff, against E. E. Bradbury, defendant, to recover for wages. From a judgment for plaintiff, defendant appeals.
    Schneider & Schneider, for appellant.
    Cloud & Thompson, 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 Thompson

delivered the opinion of the court.

3. Master and servant, § 65 —when duty of employer to give servant notice of change in compensation. It is the duty of the employer to give the servant notice of a change in compensation after the expiration of a contract for a stipulated term and salary, so that the employee may leave if not satisfied.

4. Master and servant, § 85*—when instruction on right to recover compensation properly refused. In an action by an employee to recover wages accruing after the expiration of a contract for a stated period and salary, a requested instruction stating that if the jury believed from the evidence that plaintiff was hired for the working season of a certain year at a stipulated salary and that the working season was eight months long and no agreement was made thereafter for the succeeding years, then the jury should only allow plaintiff at the agreed rate for each working season thereafter, held erroneous, especially as it ignored the fact that plaintiff continued to work for defendant the entire year.

5. Master and servant, § 82*—when evidence as to value of services inadmissible. In an action by an employee to recover wages accruing after the expiration of a contract for a stated period and salary, where no change was made in the salary after the expiration of the term, evidence as to the value of the services rendered is inadmissible.


text:
    F. J. Traut, Appellee, v. Horace L. Winslow Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Schuyler county; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the April term, 1915.
    Reversed and remanded.
    Opinion filed October 13, 1915.
    Rehearing denied December 11, 1915.
    Statement of the Case.
    Action on the case by F. J. Traut, plaintiff, against the Horace L. Winslow Company, defendant, to recover for damages to a barge owned by plaintiff loaded with crushed rock consigned to defendant. From a judgment in favor of plaintiff for five hundred dollars, defendant appeals.
    Abstract of the Decision.
    1. Bailment, § 26

      —when instruction on measure of damages for negligent injury to personal property erroneous. In an action by the owner of a barge to recover damages for injury to it, alleged to be due to negligence in unloading it and in failing to pump water from it by the consignee of a shipment of crushed rock, an instruction that the measure of damages, if the jury should find for plaintiff, was the difference between the fair cash value of the barge before and after the alleged injury, held erroneous where it appeared that the barge had been repaired.

      The only evidence concerning the" measure of damages was testimony of the value of the barge when it was delivered to defendant and its value after it was unloaded; an objection to this evidence as not the proper measure of damages was overruled. The court instructed thé jury that the measure of damages, if the jury should find for plaintiff, was the difference between the fair cash value of the barge before and after the alleged injury. Error was assigned on the admission of evidence on the measure of damages and the instruction on that question. The evidence shows that the barge had been repaired. Plaintiff’s fourth instruction informed the jury that where personal property is placed in the hands of a bailee in good condition and is returned in a damaged condition, then the law presumes that the injury was due to the negligence of the bailee, and the owner would be entitled to recover unless the bailee has shown by a preponderance of the evidence that it exercised such care as was reasonably necessary to care for the property.
    L. W. Felker and Glass & Bottenberg, for appellant.
    B. O. Willard, 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 Thompson

delivered the opinion of the court.

2. Bailment, § 28*—what is measure of damages for injury to personal property. The correct measure of damages for an injury to personal property, where the same can be repaired, is the necessary cost of making the repairs and the value of the use of such property while the owner is necessarily deprived of it, while it is undergoing repair.

3. Bailment, § 26*—when instruction on liability of bailee returning personal property in damaged condition correct. In an action by the owner of a barge to recover damages for injury to it, alleged to be due to negligence in unloading it and in failing to pump water from it by the consignee of a shipment of crushed rock, an instruction that where personal property is placed in the hands of a bailee in good condition and is returned in a damaged condition, then the law presumed that the injury was due to the negligence of the bailee and the owner would be entitled to recover unless the bailee has shown by a preponderance of the evidence that it exercised such care as was reasonably necessary to care for the property approved.

4. Bailment, § 27*—when presumed that property returned by bailee in damaged condition injured by negligence of bailee. Where personal property is placed in the hands of a bailee in good condition and is returned in a damaged condition, the law presumes that the injury was due to the negligence of the bailee, and the owner will be entitled to recover unless the bailee shows by a preponderance of evidence that it exercised such care as was reasonably necessary to care for the property.


text:
    Lawrence Purvis, Appellant, v. Irving Shuman, Appellee.
    Covenants, § 18

      —what is personal covenant not running with land. A covenant in a lease, whereby the lessor of land agrees to purchase at the expiration of the lease improvements made on the land by the lessee at a certain percentage of the original cost is a personal covenant, and does not run with the land so as to bind the lessor’s grantee.
    Appeal from the Circuit Court of Moultrie county; the Hon. Franklin H. Boggs, Judge, presiding. Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 13, 1915.
    Statement by the Court. This is a suit in assumpsit brought by Lawrence Purvis against Irving Shuman. The declaration consists of a special count and avers that on April 9, 1907, Sam T. Miller, being then the owner of certain described lands: “In consideration that the plaintiff, at the request of Sam T. Miller, the then owner of * * *” (certain described lands) “would let to the defendant the certain tract of land above described with the appurtenances there situate, to hold the same to the defendant, as tenant thereof to the plaintiff, from the 1st day of March, 1907, to, towit, the 1st day of March, 1912, the said Sam T. Miller promised the plaintiff that he, the said Sam T. Miller, would purchase from the plaintiff, at the expiration of the said lease, any and all improvements that may be put upon the said premises by the plaintiff for the purpose of carrying out the provisions of the said lease, at seventy-five per cent, of the original-cost of the said improvements; that the said lease so entered into between the said Sam T. Miller and the plaintiff was in words and figures as follows” (The lease is inserted at length, the material provisions are): “This Indenture made this 9th day of April, 1907 between * * *. That the party of the said first part in consideration of the covenants of the second party hereinafter set forth does by these presents lease to the said second party the following described real estate * * * to have and to hold to the said second party for the period of five years from the first day of March, 1907, and the said second party in consideration of the leasing of the premises as above set forth covenants and agrees to pay * * * the sum of two hundred dollars per annum * * * that said second party will not sublet, etc. * * *. It is further mutually agreed between the parties that the party of the second part has leased said premises as an amusement park and that the party of the second part is entitled to all rents and privileges that he may be able to receive from parties desiring to use the same for a ball park, race meetings or other similar forms of amusement.
    “It is further agreed between the parties hereto that any and all improvements that may be put on said premises by the party of the second part for the purpose of carrying out the provisions of this lease, will at the expiration of this lease be purchased by the party of the first part at seventy-five per cent, of the original cost of said improvements. * * * party of the second part is to have the option of purchasing said premises at any time within the period covered by this lease at such price as may be agreed upon * * * The covenants herein shall extend to and be binding upon the heirs, executors and administrators of the parties to this lease.”
    It further avers that the lease was recorded on March 6, 1909; that plaintiff entered into possession of said premises under said lease; that for the purpose of carrying out the provisions of said lease he constructed extensive improvements at the original cost of $8,255.95; that said Miller, while plaintiff was so in possession and after the recording of said lease, sold vand conveyed said premises in 1909 and 1910, to defendant by warranty deeds in which the consideration is stated to be $1, subject however to a mortgage of $8,000 (part of the premises being conveyed through a third party); avers that defendant, by virtue of said conveyance to him, became the owner of said premises subject to the rights of plaintiff, and that under the provisions of the lease and section 15 of chapter 80 of the Statute of Illinois (J. & A. ¶ 7053), it became the duty of defendant on March 1, 1912, to purchase said improvements, but notwithstanding said duty, defendant on March 1,1912, notified plaintiff to remove said improvements within a reasonable time and thereupon plaintiff demanded of defendant the payment of seventy-five per cent, of the original cost of said improvements which defendant refused to pay, and after-wards, having obtained a judgment against said Miller, caused an execution to be levied on said improvements as the property of Miller, and caused the said improvements tó be sold, and defendant has refused to pay to plaintiff seventy-five per cent, of the cost of said improvements or any part thereof, to the damage, etc. A general demurrer was sustained to the declaration and the plaintiff, abiding by the declaration, judgment was rendered for the defendant. The plaintiff appeals.
    Frank M. Harbaugh, Edward C. Craig and Donald B. Craig, for appellant; James W. Craig, of counsel.
    Whitaker, Ward & Pugh and Simmons & Irving, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.

The question involved is whether the appellee, who purchased and accepted a deed of the premises described in the lease from Miller to appellant, can be held under the lease and the law applicable thereto for the payment of seventy-five per cent, of the cost of the improvements placed on the premises by appellant during the term of the lease.

It is averred in the declaration that a judgment was obtained against Sam T. Miller and that said improvements were sold as the property of Miller under an execution issued on said judgment. Appellee in argument states that the said judgment was in favor of one John Miller, while appellant asserts it was in favor of appellee. The declaration is somewhat uncertain in that regard, but we do not regard such averment as material. It is also immaterial, that in the first part of the declaration the draftsman became confused and inserted the word “plaintiff” when the word “defendant” should have been used and vice versa, inasmuch as the demurrer is general and the lease and deeds are set up in haec verba, followed by proper averments. There is no provision in the lease requiring appellant to make any improvements on the land. The matter of making improvements was left optional with the appellant, and whatever improvements were placed on the premises by appellant were placed thereon after the execution of the lease.

The lease provides that all the covenants therein shall extend to and be binding upon the heirs, executors and administrators of the parties to the lease. It does not by its terms make the covenant of the lessor to pay seventy-five per cent, of the cost of the improvements to appellant at the termination of the lease, nor any other covenant therein, a covenant binding upon, or one that extends to the grantees or assignees of the parties, or either of them. There is therefore nothing in the wording of the lease under which of itself appellant can be held or required to carry out the covenants of Miller to pay said percentage of cost.

Appellant bases his right to recover on section 15 of chapter 80 of the Statute of Illinois (J. & A. ¶ 7053) which is: “The lessees of any lands, their assigns or personal representatives, shall have the same remedy, by action or otherwise, against the lessor, his grantees, assignees or his , or their representatives, for the breach, of any agreement in snch lease, as such lessee might have had against his immediate lessor; Provided, this section shall have no application to the covenants against incumbrances, or relating to the title or possession of the premises demised.”

This statute was enacted in 1873. There has been in force in this State, from its organization as such, a statute which provides: “That the common law of England, so far as the same is applicable and of a general nature, and all statutes or acts of the British parliament made in aid of, and to supply the defects of the common law, prior to the fourth year of James the First, excepting the second section of the sixth chapter of 43 d Elizabeth, the eighth chapter of 13th Elizabeth, and the ninth chapter of 37th Henry Eighth, and which are of a general nature and not local to that kingdom, shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority.” Chapter 28, Hurd’s St. (J. & A. ¶ 2222); Statute 1845, page 337; Sess. Laws, 1819, page 3; Virginia Act 1776.

Section 15 of chapter 80 is a re-enactment of section 2 of chapter 34 of the English Statute of 32nd Henry VIII. Section 14 of chapter 80 of the Statute of Illinois (J. & A. ¶ 7052), which gives to grantors of demised lands or assignees of lessors the same remedies as the grantor or lessor might have had, if such reversion had remained in the lessor or grantor, is a re-enactment of section 1 of the Statute of 32nd Henry VIII. A comparison of sections 14 and 15 of the Illinois statute and of sections 1 and 2 of the Act of Henry VIII shows that they are identical in substance, the Illinois act simply omitting much of the verbiage of the old English act. The Illinois act is nothing more than a codification of the previously existing law in force in Illinois.

Before the enactment of sections 14 and 15 of chapter 80 of the Illinois statute, it was held in Fisher v. Deering, 60 Ill. 114, that section 1 of chapter 34 of 32nd Henry VIII was in force in Illinois, and that the Legislature in adopting it will be presumed to have intended to adopt the judicial construction that had been placed on that statute. In Hansen v. Meyer, 81 Ill. 321, a lease of a storeroom, on the first floor of a hotel building, provided that the tenant was to put in counters and shelving, which the lessor agreed to buy from the tenant at a reasonable price at the end of the first year. During the term of the lease the lessor sold the building and the tenant at the end of the year brought suit against the grantee of the lessor for the value of the improvements. The lease there, as in this case, mentioned heirs and executors, and nowhere mentioned assignees or grantees. The Supreme Court held that the covenant relating to things not in esse at the time the lease was made does not bind assignees not named in the covenant, and followed Spencer’s case, 5 Coke 16, which construed the English act a few years after its passage. That construction became a rule of property which has been consistently followed in Illinois and other states.

In Diederich v. Rose, 228 Ill. 610, a lease provided-that at its expiration, if the tenant should not succeed in obtaining a renewal, the party to whom the lessor may next make a lease shall be required to pay for the buildings on said premises. The lessor sold the premises, and in a suit against the purchaser to recover from him the value of the structures placed thereon by the tenant, it was held: ‘‘ The right of a tenant to receive payment from a landlord for improvements placed on the demised premises during the term arises from no right or duty from the relation of landlord and tenant, but is always a matter of express contract, and the tenant only has such rights as are given him by his contract. (Gardner v. Watson, 18 Ill. App. 386; Watson v. Gardner, 119 Ill;. 312; Mathes v. Dobschuetz, 72 Id. 438.) The vendee cannot be held to pay for these improvements, as the lease does not so provide.”

The rule seems to be clear that ‘‘ all covenants relating to a subject-matter not in esse, such as for the erection of buildings upon the premises demised, are personal covenants and do not run with the land so as to bind the assignees unless they are expressly named therein.” Spencer’s case, 5 Coke 16; Dewan v. Goodman, [1908] 1 K. B. 94; Kerr on Real Property, sec. 1218; Grey v. Cuthbertson, 2 Chit. 42; Taylor L. T., sec. 260; Washburn on Real Property, sec. 680; Woods L. T. 500; 1 Smith L. C. 53; Thompson v. Rose, 8 Cow. (N. Y.) 266; Norman v. Wells, 17 Wend. (N. Y.) 136; Etowah Min. Co. v. Wills Valley Min. & Mfg. Co., 121 Ala. 672; Willcox v. Kehoe, 124 Ga. 484; Bream & Co. v. Dickerson, 2 Humph. (Tenn.) 126; Brewer v. Marshall, 18 N. J. Eq. 337.

The covenant made by Miller to purchase from appellant all improvements he might place on the leased premises—the improvements not being in existence at the time the lease was executed—was a personal one and collateral to the demise and did not run with the land so as to bind the lessor’s grantee. The assignees or grantees of Miller are not mentioned in the lease and are not bound by the covenants that are personal to Miller. There was no error in sustaining the demurrer. The judgment is affirmed.

Affirmed.


text:
    John Kerr, Conservator, Appellee, v. City of Danville, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal corporations, § 994

      —what care required to keep streets and sidewalks in condition. A city can only be required to exercise reasonable care to keep its streets and sidewalks in a reasonably safe condition for the use of travelers, and is not an insurer against injuries by reason of defects therein.
    2. Instructions, § 151*—when properly refused. A requested instruction covered by given instructions is properly refused.
    3. Municipal corporations, § 1107*—when contributory negligence of pedestrian injured by defective sidewalk question for jury. In an action by the conservator of an incompetent person to recover for'personal injuries sustained by the ward catching her foot at the edge of a hole of considerable size in the sidewalk, on a dark night, where it appeared that the hole had existed for more than a year, but there was evidence that the ward, who was accompanied by another person, knew nothing about such hole and had-passed over the walk only once before the accident, held that it was a question for the jury whether the ward was guilty of contributory negligence.

      Appeal from the Circuit Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 13, 1915.
    Statement of the Case.
    Action by John Kerr, conservator of Martha E. Kerr, plaintiff, against the City of Danville, defendant, to recover for injuries sustained by Martha E. Kerr by reason of a defective sidewalk. From a judgment for plaintiff, defendant appeals.
    H. A. Swallow, for appellant; R. R. Bookwalter, of counsel.
    Duffin & Duffin and Charles Troup, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.


text:
    William Von Boeckmann, Appellee, v. Corn Products Refining Company, Appellant.
    1. Appeal and error, § 1238

      —when defendant estopped to claim error in hearing evidence on demurrer. A defendant who makes a motion for leave to withdraw rejoinders to special pleas and for leave to refile demurrer to a replication, and to require plaintiff to make proof of matters contained in the replication, is estopped on appeal to claim any error in hearing evidence on the demurrer.
    2. Pleading—when hearing of evidence on demurrer proper. The hearing of evidence on a demurrer to replication to special pleas, held proper.
    3. Pleading, § 183*—when special demurrer necessary. Where special pleas confess that the plaintiff in a personal injury action has sustained injuries and seek to avoid liability by pleading new matter, a special demurrer is necessary to point out formal defects.
    4. Pleading, g 211*—when demurrer not carried hack to defective declaration. A demurrer should be carried back to the first defective pleading, but a demurrer to a plea or replication cannot be carried back to a defective declaration when the plea of general issue has been filed.
    5. Appeal and error, § 198*—when cause involving constitutional question transferred to Supreme Court. Where, under the pleadings, in an action by an employee for personal injuries, it is necessary for the Appellate Court to pass upon the constitutionality of the Workmen’s Compensation Act, the case will be transferred to the Supreme Court, as the Appellate Court has no jurisdiction of constitutional questions.
    Appeal from the Circuit Court of Tazewell county; the Hon. John M. Niehaus, Judge, presiding. Heard in this court at the April term, 1915.
    Transferred to Supreme Court.
    Opinion filed October 13, 1915.

      Page, Hunter, Page & Dallwig and Calhoun, Lyford & Sheean, for appellant.
    Jesse Black, Jr., and James P. St. Cerny, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.

This is an action in case brought by appellee against appellant to recover damages for an injury sustained by him while in the employ of appellant. The declaration consists of an original and four additional counts. It is averred in each count that appellant, a corporation, on May 11, 1913, was operating a factory in Tazewell county, Illinois, for the manufacture of starch and other products; that in the starch house of said factory were various shaftings, cog wheels, pulleys, belts, boxings and gearings driven by electric motor power; that appellee was employed in said starch house working under the direction of appellant; that there were certain machines known as reels where appellee was employed; that said reels were fed from the floor above by a six-inch pipe, which brought wet products to said reels; that when in operation moisture and water from said pipe fell on the floor whereby the floor where appellee was required to work became wet and slippery; that at the head end of each reel was a bevel gearing composed of a sixteen-inch beveled wheel which meshed with a beveled gearing on the reel shaft one foot from the reel; that said feed spouts came into said reels in a slanting position over and two feet above said gearings; that the damp products in the feed pipe would sometimes choke it; that it was the duty of appellee when said pipes choked to hammer on said pipes, and in hammering on said pipes it was necessary to extend the arm over the shaft and gearing; that on May 11, 1913, while appellee was attending to his duty as directed by appellant, using due care for his own safety, a certain feed pipe began to choke, whereupon appellee began to strike said feed pipe, when his clothing was caught in said bevel gearing and appellee was drawn into and between said gearings and permanently injured; that before said time said bevel gearing was unguarded, unfenced and unprotected, and was highly dangerous to employees near said reels; that it was the duty of appellant, as provided by statute, to properly inclose, fence or otherwise protect said gearings so as to prevent injury to appellee while working around said reels. The first count further avers that appellant “wilfully and intentionally neglected to inclose, fence, guard or otherwise protect said bevel gearings whereby,” etc. In the first additional count the negligence to guard said gearings is averred as simple negligence. In the second additional count it is averred that it was practical to guard said gearings and that in violation of the statute appellant wilfully, recklessly, etc., omitted, etc. The third and fourth additional counts are very similar to the second.

Appellant filed a plea of the general issue and two special pleas. The special pleas aver that at the time the alleged injuries were sustained, appellant and appellee were operating and working under the Workmen’s Compensation Act of 1911 (J. & A. ¶ .5449 et seq.). Appellant filed three replications to the special plea. The first replication avers that the Compensation Act of 1911 was not passed in the proper manner, in that the bill and the amendments thereto were not printed before the vote, was taken in the General Assembly of the State of Illinois on the final passage of said bill, and said statute is void and was never in force. The second and third replications aver in detail that the act was not passed as required by the Constitution of the State. Appellee filed a general demurrer to the replications to the special pleas. On motion of plaintiff the demurrer was stricken from the files. Bejoinders were then filed to the replications, on which issues were joined.

Afterwards defendant moved the court for leave to withdraw the rejoinders to the special pleas and for leave to refile the demurrer to the replications “and that the court'will require proof by plaintiff of the matters and things contained in said replications of plaintiff before passing on said demurrer, and after plaintiff has adduced his proof under said replications that the court will take into account the said proof together with the said replications in passing upon said demurrer.” This motion was sustained. Thereupon the rejoinders were withdrawn and the demurrer to the replications was refiled and the plaintiff introduced in evidence certified copies of the journals of the legislature bearing on the passage of the act. "Whereon the court overruled the demurrer to said replications and the appellant elected to stand by its demurrer. The evidence offered in the hearing on the demurrer is preserved by a bill of exceptions.

The case was then tried before a jury on the declaration and the plea of the general issue, resulting in a verdict for $10,000 in favor of appellee, on which judgment was rendered.

It is contended that the court erred in overruling the demurrer to the replications to the special pleas. The demurrer was overruled after evidence was heard on the motion of appellant on the facts.involved in the passage of the act. The hearing of evidence on a demurrer is very unusual, but there is authority for such procedure. 6 Encyc. of Pl. & Pr. 297. The party upon whose motion the demurrer was heard in that manner is estopped from taking any advantage of it, even if it was irregular, as a party may not take advantage of error induced by himself. While the hearing was on a demurrer, the evidence was heard on a question, which it was the province of the court to pass upon. The hearing was the same on the demurrer before the court as on an issue of fact found on a matter proper for the court to decide.

The appellee contends (1) that the averments of the declaration and each count take the cause of action out of the provisions of the Compensation Act under the proviso of section 3 of that Act (J. & A. ¶ 5451), in that the omission to guard the machinery was intentional; and (2) that the pleas were bad in that they are neither in bar nor do' they confess and avoid the cause of action declared upon, and therefore the demurrer should have been carried back to the pleas.

The special pleas confess that appellee has sustained injuries and seek to avoid liability by pleading new matter. If there is any defect in the pleas it is a matter of form only, and a special demurrer would be required to point out the defect.

Section 3 of the Act is: “No common law or statutory right to recover damages for injury or death sustained by any employee while engaged in the line of his duty as such employee other than the compensation herein provided, shall he available to any employee who has accepted the provisions of this act, or to any one wholly or partly dependent upon him or legally responsible for his estate: Provided, that when the injury to the employee was caused by the intentional omission of the employer, to comply with the statutory safety regulations, nothing in this act shall affect the civil liability of the employer. If the employer is a partnership, such omission must be that of one of the partners thereof, and if a corporation, that of any elective officer thereof.” The declaration avers that appellant is a corporation. The first count avers “the defendant, in violation of the statute, wilfully and intentionally neglected to inclose, fence, guard,” etc. The remaining counts aver that defendant negligently or wilfully, recklessly, negligently, etc. No count avers that the intentional omission of the employer was that of an elective officer of the corporation, and only the first count avers intentional omission of appellant. If the statute is a valid statute, and the omission to guard said gearings was not the intentional act of an elective officer, then appellee is remitted to his remedy under the Compensation Act, for the reason that appellant had not filed any notice with the Bureau of State Labor Statistics that it elected not to provide and pay compensation according to the provisions of the statute, and appellee did not within thirty days after entering the employment of appellant file a notice to the contrary with the Secretary of the State Bureau of Labor Statistics. There is no evidence in the case tending to show the omission to guard said machinery was the intentional act of any elective officer of appellant, and there is no attempt in four of the counts of the declaration to plead any facts which would reserve to appellee his common law or statutory right to recover damages at law. A demurrer should be carried back to the first defective pleading, but a demurrer to a plea or replication cannot be carried back to a defective declaration, when the plea of the general issue has been filed. 6 Encyc. of Pl. & Pr. 332, and Illinois cases cited.

Appellee further contends that “there is no evidence in the Senate Journal of any kind that the original bill as amended in the House was printed in the Senate before its passage by the Senate and that it was upon this showing that the court overruled the demurrer to the replication which alleged that the Compensation Act of 1911 was not in force and effect.” The burden was on appellee to show that the law was invalid.

If the right of appellant to recover at law depended solely upon whether appellant intentionally omitted to guard the machinery, this court would have jurisdiction to dispose of the case on appeal.

The appellant contends that it did not intentionally omit to guard the machinery, and that the only remedy appellee is entitled to is the compensation allowed under the Workmen’s Compensation Act. Under the Act of 1911, if the parties cannot agree on any question of law or fact, then the question in dispute can only be settled by a board of arbitrators under section 10 of the Act (J. & A. ¶ 5459), which appellee contends was not properly passed and is invalid. Four of the counts do riot attempt to plead any fact which takes the case out of the provisions of the Compensation Act. The validity of the act must therefore be passed upon on this appeal, and jurisdiction to pass on that question is in the Supreme Court alone, if the statute involved is either the foundation of some right asserted or some defense made. Illinois Cent. R. Co. v. Chicago & G. W. R. Co., 246 Ill. 620. The question of the validity of the statute is argued by both parties, appellant insisting it is valid because the Supreme Court has held it valid in three cases, and appellee insisting it is invalid on a ground never before presented to the Supreme Court. We are of the opinion that the validity of the act is involved, and that this court has not jurisdiction of the cause. It is therefore transferred to the Supreme Court.

Transferred to Supreme Court.


text:
    M. A. Rowe and Ella Rowe, Appellees, v. Paul Kuhn, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Clark county; the Hon. E. R. E. Kihbbough, Judge, presiding. Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 13, 1915.
    Statement of the Case.
    Action by M. A. Rowe and Ella Rowe, plaintiffs, against Paul Kuhn, defendant, to recover rent due on an oil lease. From a judgment for plaintiff, defendant appeals.
    Abstract of the Decision.
    1. Appeal and error, § 367

      —When defense not considered on appeal. A defense that is not raised in the trial court cannot be raised on appeal for the first time.
    2. Frauds, Statute of, § 122*—how defense of not raised. The defense of the Statute of Frauds is not raised by a motion to direct a verdict.
    3. Landlord and tenant, § 310*—when lessor need not prove ownership. Where a lessee, defendant in an action for rent, has accepted the lease and paid rent upon it, the failure of the lessors to prove ownership is immaterial.
    4. Landlord and tenant, § 325a*—when instruction in action for rent properly refused. In an action to recover rent under an oil lease, instructions requested by defendant that if the jury believed from the evidence that the payments made by the defendant or his agent were optional then they should find for defendant, held properly refused where, while defendant held the lease, he prevented any contract being made with other parties to prospect for oil, and he had the right under the lease to reconvey and release any rights under the lease and thus prevent the accumulation of rents.
    Samuel B. Scholeield and John J. Arney, for appellant.
    Harry J. Buxbaum and Everett Connelly, for appellees.

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

   Mr. Justice Thompson

delivered the opinion of the court.


text:
    George A. Roberts and L. H. Parker, Appellants, v. George M. Barbee et al., Appellees.
    (Not to be reported in full.)
    Abstract of the Decision.
    Mortgages, § 208

      —when evidence sufficient to show that subsequent purchaser had no knowledge of existence of unrecorded mortgage. Where in a proceeding to foreclose a mortgage it was shown that the mortgage, although executed and recorded, in favor of a third person, was in fact the property of the complainant and known by the parties as such, no assignment being recorded, however, and subsequently another mortgage was executed in favor of the complainant, covering the same property, but not recorded, the evidence was held sufficient to show that a subsequent purchaser under a deed, expressly reciting that the purchaser assumed a mortgage in favor of complainant, had no knowledge of the existence of the unrecorded mortgage, and where he paid an amount in excess of that due on the recorded mortgage in the mistaken belief that he was in fact paying such mortgage, which payment the mortgagee applied to the payment of the unrecorded mortgage, he was entitled to be reimbursed pro tanto.

      Appeal from the Circuit Court of Shelby county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 13, 1915.
    Statement of the Case.
    Bill by George A. Roberts and L. H. Parker, complainants, against George M. Barbee, Mattie A. Widick, William Baum, T. C. Dove and others, ‘defendants, to foreclose a mortgage executed by defendants George M. Barbee and Sarah J. Barbee, and cross-bill praying that such mortgage be released of record and that complainant Roberts pay to the defendant Baum and the defendants Dove the amount paid by Baum in excess of the amount due on the mortgage, together with legal interest. From a judgment for defendants, complainants appeal.
    Whitaker, Ward & Pugh, for appellants.
    W. C. & T. M. Headen, for appellees.

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

   Mr. Justice Thompson

delivered the opinion of the-court.


text:
    F. R Dennis, Appellee, v. Charles R. Jones, Appellant.
    (Not to he reported in full.)
    Appeal from the City Court of Mattoon; the Hon. John McNutt, Judge, presiding. Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 13, 1915.
    Statement of the Case.
    Action by F. B. Dennis, plaintiff, against Charles B. Jones, Dudley G. Hayes, and George Hoffman, defendants, on a joint promissory note of the defendants. From a judgment against him, the other defendants not having been served, Charles B. Jones appeals.
    The plaintiff brought suit as indorsee of the payee for accrued interest. After the introduction of the note in evidence by plaintiff, appellant called plaintiff as a witness. He testified that he did not know the makers but that he bought the note after his bankers had investigated them; that he did not ask the payee what it was given for but that the payee told him it was given for some of his mausoleum interests; that he paid $1,500 in cash and transferred $3,000 of stock at 50 cents on the dollar for the note on July 16, 1913. One of the joint makers of the note testified that in a conversation with plaintiff a few weeks before the trial, plaintiff told him that he held the note as collateral security for a loan. Appellant introduced in evidence a contract between the payee and the appellant under which the payee agreed to procure certain mausoleum rights for a corporation to be organized, and which was the consideration for the note sued upon, and other notes.
    Abstract of the Decision.
    1. Pleading, § 432

      —when data of note need not be proved as alleged. Where, in an action for interest on. a promissory note, the declaration correctly alleged the date on which such interest accrued, held that the date of the note, laid under a videlicet, need not be proved as alleged.
    2. Bills and notes, § 56*—when failure to perform contract does not constitute failure of consideration for note. Failure of the payee of a note to perform a contract, the promise to perform which was alleged by one of the makers to have been the consideration for which the note was made, held not a defense to an action thereon, against a maker, by a holder in good faith before maturity, where it was not alleged that the contract had been canceled'or attempted to be canceled.
    3. Bills and notes, § 448*—when evidence sufficient to show that plaintiff is an indorsee in good faith before maturity. Evidence introduced by a defendant in an action on a promissory note, held to show that the plaintiff was an indorsee in good faith before maturity.
    4. Pledges, § 10*—when indorsee holding note on collateral security not affected by defenses. In an action by an indorsee before maturity of a negotiable promissory note against a maker thereof held that though the plaintiff held the note merely as collateral security for a loan made to the payee, that would not be a defense unless the plaintiff knew of or had notice of such facts as would put a reasonably prudent man on inquiry concerning defenses to the note.

      Andrews & Real and Archibald Cattell, for appellants.
    John B. King, Leo G. Hana and Vause, Hughes & Kiger, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.


text:
    James White and William J. Brown, Executors, Appellants, v. John S. Lewis, Appellee.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Christian county; the Hon. Aíbert M. Rose, Judge, presiding. Heard in this court at the April term,' 1915.
    Reversed and remanded.
    Opinion filed October 13, 1915.
    Statement of the Case.
    Final report in settlement of an estate filed by James White and William J. Brown, executors of the estate of Eliza J. Lewis, deceased. Objections thereto filed by John S. Lewis. From an order approving the report and ordering distribution, John S. Lewis appealed to the Circuit Court, and from an order of that court, sustaining some objections and overruling others and ordering the executors to restate the account, the executors appeal.
    Taylor & Taylor, for appellants.
    George T. Wallace, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.

Abstract of the Decision.

1. Witnesses, § 218 —when cross-examination of party proper. Where an objector to executors’ accounts was examined as a witness on behalf of the executors as to what occurred when he gave a certain note to the testatrix, cross-examination, by his counsel, as to whether the testatrix assented to the surrender to him of one of his notes, held proper, as the executors had made him their witness as to such matter, but that the question was objectionable in form as calling for a conclusion.

2. Executors and administrators, § 92*—when proceedings by citation not exclusive remedy to obtain note owed estate. On a hearing in the Circuit Court on appeal from an order entered in the County Court in proceedings on objections to an executors’ report, held that the executors could require the objector, who was in court and had possession of a note, the amount of which they claimed he owed the estate, to produce such note in evidence without filing an affidavit, and citing him in accordance with section 81 of the Administration Act (J. & A. ¶ 130).

3. Executors and administrators, § 359*—when executor may deduct amount of note due estate from distributee’s share. In proceedings on objections to an executors’ report, an objector’s contentions that an executor has no right to deduct from the amount due a distributee any sum that may be due from the distributee to the estate, and that the statute of limitations was a defense to a note against the estate claimed to be due it, of which estate he was a distributee, held untenable on the facts.

4. Executors and administrators, § 532*—when executors properly not charged with interest. Where a delay by executors in filing their report was caused by an objector thereto, in not paying a claim he owed the estate, held that the executors were properly not charged with interest.

5. Executors and administrators, § 561*—when allowance to executors for settling estate not excessive. An allowance of $700 to executors in settling an estate amounting to $21,000, held proper.


text:
    Illinois Talley Bank, Appellee, v. D. L. Harshman, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Pike county; the Hon. Habby Higbee, Judge, presiding. Heard in this court at the April term, 1915.
    Reversed and remanded with directions.
    Opinion filed October 13, 1915.
    Rehearing denied December 11, 1915.
    Statement of the Case.
    Action by Illinois Valley Bank, plaintiff, against D. L. Harshman, defendant, on promissory judgment notes signed by plaintiff. From a judgment by confession in favor of plaintiff, defendant appeals.
    The notes contained warrants of attorney authorizing any attorney at any time thereafter to confess judgment in favor of the holder of the notes for such amount as might appear to be unpaid thereon, together with costs and ten per cent, attorney’s fees.
    An attorney signed a cognovit in which the defendant waived service, and said he could not deny “that he owes and is indebted to the said plaintiff in the sum of $2,682.47; and that plaintiff has sustained damages on occasion of the nonperformance of the several agreements in said declaration mentioned, including-the sum of $268.24 for reasonable attorney’s fees for entering up this judgment over and above its other costs and charges in this behalf expended to the amount of $5.”
    The clerk entered up a judgment in favor of the plaintiff for $2,950.71, being the amount of the notes and including attorney’s fees.
    Anderson & Matthews, for appellant.
    Williams & Williams, for appellee.

      Abstract of the Decision.
    1. Judgment, § 48

      —when judgment for attorney’s fees not authorized under cognovit. Where a warrant of attorney authorized confession of judgment in favor of the holder of promissory notes for such amount as might appear to be unpaid thereon at the time, together with costs and ten per cent, attorney’s fees, a cognovit stating that the defendant owed a certain sum, the face value of the notes and interest, and that the plaintiff had sustained damages, including a certain sum as attorney’s fees, etc., to the amount of $5, held not to authorize the entry, by the clerk, of a judgment for the total of such sums, as the damages confessed were only the $5.
    2. Cheeks of courts, § 4*—what is nature of powers of a clerk of court. A clerk of a court has no judicial powers but acts as a ministerial officer only.
    3. Judgment, § 43*—when clerk of court improperly exercises judicial powers in entering judgment. A clerk in entering a judgment for an amount not authorized by a plea of confession is exercising judicial powers, and such judgment is void.

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

   Mr. Justice Thompson

delivered the opinion of the court.