text:
    Mollie De Vries, Appellant, v. United Employers’ Corporation and American Employers’ Insurance Company, Appellees.
    Gen. No. 9,620.
    Opinion filed April 12, 1941.
    Victor P. Michel and Knobloch & Sloan, both of Peoria, for appellant; John F. Sloan, Jr., of counsel.
    Dent, Weichelt & Hampton, of Chicago, for ap-pellee, American Employers’ Ins. Co.
   Mr. Justice Huffman

delivered the opinion of the court.

On August 27, 1936, appellant’s husband was killed in the course of his employment with the Illinois Corrugated Culvert Company of Peoria. In September following, appellant filed her application for adjustment of claim under the Compensation Act with the Industrial Commission. The Illinois Corrugated Culvert Company, the employer, was named as the sole respondent in said petition. Hearing was set for October 13, 1936, at Peoria, and notice given to the petitioner and respondent. On the day of the hearing the respondent made motion before the arbitrator that the United Employers’ Corporation be joined as a corespondent. Without notice to such corporation, the arbitrator granted the motion of the culvert company, and hearing was subsequently had upon the petition for adjustment of claim. It appears that the facts necessary to establish the petitioner’s claim for compensation were stipulated, except as to dependency, upon which there was no contradictory evidence. The United Employers’ Corporation was not present or represented. Following the hearing before the arbitrator, and on November 28, 1936, an award was granted against both the culvert company and the United Employers’ Corporation (appellee herein). Notice of the award was sent to the petitioner and to the culvert company, but no notice thereof was sent to the United Employers’ Corporation.

The culvert company filed its petition for review of the decision of the arbitrator. On February 17, 1937, the United Employers’ Corporation having learned of the award entered against it, filed a petition with the Industrial Commission to vacate such award on the ground of lack of jurisdiction because of the failure to give notice as required by statute. On May 25, 1937, the Industrial Commission affirmed the award as to both the culvert company and the United Employers’ Corporation. Thereafter, the United Employers’ Corporation sued out a writ of certiorari from the circuit court of Peoria county. In connection therewith, it filed its bond in the sum of $4,500, which bond was executed by it and the American Employers ’ Insurance Company (appellee). The bond was usual in form, providing that if those boundén thereunder should not successfully prosecute said writ, that they then must pay the award and the costs of the proceeding.

The circuit court reversed the decision of the Industrial Commission as to the United Employers’ Corporation, and remanded the cause to the Industrial Commission for such further proceedings in connection therewith as the parties might see fit to pursue and provided that in the event such proceedings were further prosecuted that an arbitrator be appointed by the Industrial Commission to hear and determine the issue against the United Employers’ Corporation in accordance with the provisions of the statute. This order and judgment was entered on May 25, 1938. Thereafter, the petitioner (appellant herein) moved to have the United Employers’ Corporation joined as a party respondent to her petition for adjustment of claim. Notice was then given by the Industrial Commission to said corporation. Appellant thereafter proceeded to a hearing before an arbitrator against the corporation, and an award was entered against it in the same amount as had previously been entered against the culvert company. This award was subsequently affirmed by the Industrial Commission.

On January 4, 1940, appellant herein (petitioner in the Industrial proceedings) filed her suit at law in the circuit court of Peoria county against appellees upon the bond which was given at the time the United Employers’ Corporation sued out its writ of certiorari to the circuit court. The cause was tried by the court who found the issues for appellees. Appellant brings this appeal from the judgment rendered.

The only question involved in this appeal is whether such bond has been performed and is discharged by the reversal of the decision of the Industrial Commission against appellee. The objection raised by said appellee on its certiorari proceeding was based upon lack of jurisdiction on the part of the Industrial Commission to enter any award against it. This is the ground upon which the circuit court reversed the award. The adjudication by that court was final and wholly abrogated the award as made by the Industrial Commission against appellee. Such subsequent proceedings were entirely independent from those originally had.

The bond in this case provided that the United Employers’ Corporation must successfully prosecute its review of the award made against it as set out in the body of the bond, and upon failure so to do, those bounden thereunder were obligated to pay said award together with the costs of the proceedings. A general reversal extends to every part of a judgment and such judgment is forthwith vacated and no longer remains in existence. It is treated as at an end. The party prosecuting such review or appeal is restored to the position in which he was before the judgment was pronounced against him, and the party whose judgment has been reversed relinquishes all advantages obtained by it. Therefore, on general principles, -it is obvious that if the entire judgment is reversed, no action will lie on the appeal bond. Crozier v. Freeman Coal Mining Co., 363 Ill. 362, 390, 392; Kinney v. Lindgren, 373 Ill. 415, 420.

Appellant urges the case of Cooke v. Groveland Coal Mining Co., 276 Ill. App: 521, in support of its position that the trial court erred in entering judgment for appellees. That case presents a different state of facts than the instant case. The order of the circuit court in that case was not final in character and not subject to review. Each step taken by the parties in that case was either to defeat or sustain the award that had been granted. In the present case, the award against appellee corporation was reversed by the circuit court. That was a final adjudication. Thereafter, appellant returned to the Industrial Commission where she obtained leave to make appellee corporation a party to her petition for adjustment of compensation, and thereafter due notice was given appellee. Appellant’s second award against appellee was entered in a new and different hearing, which in legal effect was not begun until after the circuit court had reversed the award originally granted. The second award obtained against appellee is in no way related to the first award.

We do not consider that any obligation under the original award of the Industrial Commission against appellee, United Employers’ Corporation, remained to be performed after its reversal by the circuit court.

■ The judgment is therefore affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Huffman

license: Public Domain

text:
    John J. Meyer et al., Appellants, v. August Meyer et al., Appellees.
    Gen. No. 9,624.

      Opinion filed April 12, 1941.
    Glen J. Cameron, Samuel M. Friedlander and George W. Hunt, all of Peoria, for appellants.
    Eugene Leiter and Todd, Arber, Pendarvis & Anderson, both of Peoria, for appellees.
   Mr. Justice Huffman

delivered the opinion of the court.

This is a suit in partition brought by three of the children of Hermann Meyer, deceased. Such plaintiffs are the appellants in this appeal.

Each of appellants held a note executed by their father, at the time of his death. They each filed a claim in the probate court of Peoria county against his estate, which claims were allowed. In their complaint for partition, they set up their respective claims, against the real estate involved in this suit. Appellees (defendants below) by their answer charged that such claims were unjust and fraudulent, allowed without any notice to them, and not valid against the real estate involved in this partition proceeding. Appellees filed a counterclaim in which they charged that appellants had been in the possession of the premises involved and had rendered no accounting of the rents and issues arising therefrom; and prayed that an accounting might be had.

The cause was referred to the master who found adversely as to the claims of appellants, finding that they were based upon the promissory notes; that the notes were not given to discharge any legal obligation owing to them by their father, bnt were gifts without any legal consideration and failed for lack of completion prior to the death of the maker; that such claims were allowed long after the adjustment day fixed for the filing of claims in said estate, and upon waiver of service by appellant administrator, and without any notice to the other heirs; that the. action of the county court thereon was not res judicata of the question of their validity as liens against the real estate involved in these proceedings; that appellees were not precluded from contesting the validity thereof in this suit; and that the circuit court as a court of general chancery jurisdiction, had power to hear and determine all issues relative thereto between the parties.

Appellants claimed the notes were delivered to them by their father for services rendered. As seen, the master found adversely to this contention. They filed objections to the master’s report, which were overruled, and stood in the circuit court as exceptions. The circuit court rendered its decree in conformity with the findings and recommendations of the master. Plaintiffs below bring this appeal. They assign three grounds' for reversal. First, that appellees did not sufficiently set up the charge of fraud as against the notes; second, that want of consideration was not sufficiently set up; and third, that the notes were not gifts.

It does not appear that the jurisdiction of the circuit court to determine the issues relative to the notes was in any way challenged. It is generally considered that a court of chancery is invested with power to set aside judgments or liens obtained by fraud or collusion, and that such power includes the right to grant relief against those arising in the county court which were obtained by fraud. Elting v. First Nat. Bank of Biggsville, 173 Ill. 368, 391; Mettler v. Warner, 249 Ill. 341, 347; Moore v. Sievers, 336 Ill. 316, 322; Green v. Hutsonville Tp. High School Dist. No. 201, 356 Ill. 216, 222.

We find no assignment of error that the court’s finding is against the weight of the evidence. The first two grounds assigned for error go to the sufficiency of appellees’ answer to raise the points indicated. An examination of the abstract discloses that appellees' charged that the claims allowed in the county court were unjust and fraudulent, and did not constitute valid liens against the real estate involved in this proceeding. The master and the trial court found that the father owed appellants nothing; that the notes were attempted gifts which were never completed; that they failed because the money provided for therein was not paid during the father’s lifetime; and that they did not constitute a lien upon the property involved in this suit.

It appears that the claims were not presented against the estate until long after the adjustment day fixed by the court, that appellant administrator waived service and that appellees had no notice or knowledge of such action. We are not disposed to disturb the finding of the trial court, that the notes were given without any consideration, were an attempted gift by the father, to take effect after his death, and thus intended to take the place of a testamentary disposition. The testimony of the party who drew the notes for the deceased supports such finding.

The master recommended partition and the court so decreed. Pursuant to such decree, the master made sale of the premises and they were purchased by appellants. It appears that the purchase price has not yet been paid, but appellants are no doubt awaiting the outcome of this appeal. The decree of the court granting partition is not involved in this appeal. Only that part of the decree relative to appellants’ claims, is involved. The claims totaled $5',467.50. Appellant administrator charges himself with having received the sum of $5,150.50 in cash, and having paid out the sum of $2,898.57, thus leaving a balance of cash in his hands of $2,251.93. Appellants’ attempt to have their claims paid from the sale price of the land in the partition suit, is in effect but an attempt to subject the deceased’s lands to the payment of their claims. It is generally considered that claims against an estate are not liens upon the land belonging thereto and may be questioned by the heirs, in a proceeding to subject the same to sale for the payment of debts. Noe v. Moutray, 170 Ill. 169; Ford v. First Nat. Bank of Stuart, Iowa, 201 Ill. 120, 128, 129; Atherton v. Hughes, 249 Ill. 317, 326; Ward v. Durham, 134 Ill. 195, 199.

We are of the opinion that the decree of the court as appealed from is correct and should be affirmed.

Decree affirmed.


author: Justice Dove.

text:
    Ella Schumacher, Appellee, v. City of Naperville, Appellant.
    Gen. No. 9,572.
    opinion filed April 12, 1941.
    William R. Friedrich and Rathje & Woodward, for appellant; William R. Friedrich, John S. Woodward and Alfred E. Woodward, of counsel; Thomas & Schumacher, for appellee; Kenneth D. Thomas, of counsel.
   Opinion by

Justice Dove.

“Not to be published, in full.’’


author: Justice Huffman.

text:
    Theresa Chase, Appellee, v. Blaine H. Tomlin, Appellant.
    Gen. No. 9,645.
    opinion filed April 12, 1941.
    Clarence W. Heyl, for appellant; Champion & Gaskins, Edwin V. Champion and F. J. Lee, for appellee.
   Opinion by

Justice Huffman.

“Not to be published in full.’’


text:
    Albert O. Engbert, Executor of Last Will and Testament of Mary Arnold, Deceased, et al., Appellants, v. Samuel Martz, Appellee.
    Gen. No. 9,647.
    opinion filed April 12, 1941.
    Ascher & Ellis, for certain appellant; Manus &• Manus, for certain other appellant; Hunter & Hunter, for appellee.
   Opinion by

Justice Huffman.

“Not to be published in

full.’’


text:
    Charles Conkrite, Appellant, v. Ward T. Miller, Appellee.
    Gen. No. 9,652.
    opinion filed April 12, 1941.
    Dixon, Devine, Bracken & Dixon, for appellant; Robert L. Bracken and Sherwood Dixon, of counsel; Warner & Warner, for appellee; Henry C. Warner, of counsel.
   Opinion by

Justice Huffman.

“Not to be published in full.”


text:
    Charlene Drummond, Administratrix of Estate of Verl O. Drummond, Deceased, Appellant, v. Harry Gleim and Elsie Gleim, Appellees.
    Gen. No. 9,655.
    opinion filed April 12, 1941.
    Dixon, Devine, Bracken & Dixon and Bobert Can-field, for appellant; Sherwood Dixon and Bobert Canfield, of counsel; Warner & Warner, for appellees; Henry C. Warner, of counsel.
   Opinion by

Justice Huffman.

“Not to be published, in full.”


author: Wall, P. J.

text:
    Edson Keith & Company v. Mary L. McDonald.

      Attachment—Gift—Concealment of Money—Fraud.
    1. The gift of a piano to a daughter will not sustain an attachment by a subsequent creditor.
    2. The act complained of must be injurious to the attaching creditor, though it is sufficient if the affidavit charges, in the language of the statute, that it operated to delay and hinder creditors.
    3. A denial by the debtor that he has money in his possession, although he has enough in hand to pay part of the claim of the creditor in question, which he subsequently pays to other creditors, does not amount to a fraudulent concealment or disposition of property within the meaning of the statute.
    [Opinion filed February 21, 1889.]
    Appeal from the County Court of Mason County; the Hon. William E. Nelson, Judge, presiding.
    Mr. W. C. Outten, for appellants.
    When the facts and circumstances brand a transaction as fraudulent, the statement on oath of the party charged with the fraud, that such transfer was made in good faith, should avail but little. Reed v. Noxon, 48 Ill. 323; Strohm v. Hayes, 70 Ill. 41; Bell v. Devin, 96 Ill. 217; Thorne v. Crawford, 17 Ill. App. 395.
    As money is simply “stamped coin,” with a value fixed by authority, or some “ substitute usually and lawfully employed in buying and selling as an equivalent of such coin,” it would seem that no one would question the fact that it is “ property.”
    If there should be such question, however, we would refer to Stahl v. Webster, 11 Ill. 511, where the court say, “ The word c property,’ embraces money, debts and choses in action.” That remark is made in reference to the attachment act.
    In Powell v. Matthews, 10 Mo. 49, an attachment was sued out upon the ground, among others, that defendant had fraudulently concealed his property and effects so as to hinder and delay his creditors. The truth of the ground of attachment was put in issue. On the trial it appeared defendant had been furnished goods to sell, and make weekly account of sales and turn over the proceeds, and that he bad made a considerable sale of goods for cash, and made no return of the proceeds. The lower court instructed thó jury that “ the concealment contemplated by the statute means secreting goods, and not concealment of circumstances, or misrepresentation of facts, and that this last mentioned conduct is no ground for issuing an attachment.” The Supreme Court held this to be erroneous. The court say: “ That instruction declares that the concealment referred to in the statute must be a concealment of goods, and not of facts and circumstances. This distinction we confess ourselves unable to appreciate. If the defendant had packed away in his cellar goods to the value of one thousand dollars, with a view to defraud his creditors and prevent them from collecting their debts, this is conceded to be a fraud within the meaning of the statute ; but if he sells the same goods and puts the money in his pocket, with the same intent of cheating his creditors by the operation, it is regarded as a mere concealment of circumstances, we suppose, and therefore not such a concealment as is reached by the attachment law. The statute uses the phrase ‘ goods and effects.’ The money fur which the goods were sold by the defendant was as capable of being concealed as the goods were, and the concealment of the money is surely not less a fraud, because it was accompanied with a concealment and misrepresentation of facts and circumstances.”
    In the case at bar the appellee converted her goods into money, then received the money from her collector, and took it from the bank. How much- she may have collected and concealed prior to the 14th of June, 1888, we can not know, ■but we do know that she on that day received from her collector $14 or more, and from the bank $274.23, and that of this she had only paid out $60.55, so that, if she had no money before, she then had more than $227 in money, at the time she falsely stated to the representative of appellants that she had no money.
    It would certainly be a very bad construction of the law for honesty and for the business interests of the community, for our courts to hold that it is fraudulent to conceal the goods, but if you convert them into money and not only conceal it, but in addition to concealing it, you falsely state that you have not got it, you are not guilty of any fraudulent concealing, and your property can not be attached on account of it, and you will be allowed to go on and convert all your property into money and conceal it in like manner, and your creditors will be helpless.
    Messrs. J. C. Hostetler and I. D. Walker, for appellee.
   Wall, P. J.

The appellants sued out a writ of attachment against the appellee, on the 14tli day of June, 1888, alleging an indebtedness of $854.79, and that the debtor had within two years fraudulently conveyed or assigned a part of her effects, so as to hinder or delay her creditors, and that she had within two years fraudulently concealed or disposed of her property, so as to hinder or delay her creditors. The defendant, by sworn plea, traversed the facts stated in the affidavit, and the issue thus made was tried by the court, a jury being waived, and found for the defendant.

It is insisted the court erred in so finding and refusing to hold the second proposition of law submitted by the plaintiffs, The first ground for the writ, as alleged in the affidavit, viz., fraudulent conveyance of property to the injury of creditors, was very clearly not supported by the proof.

This charge rested wholly upon the gift of apiano and some furniture by the defendant to her minor daughter, in October, 1887. It does not appear that there was any fraud in fact attending this gift, nor are the circumstances such as to make it fraudulent constructively.

The piano had been intended for the daughter when purchased, and a part of the furniture was bought with the money of the daughter—-money that had been given her in small sums at various times. The gift was not unreasonable under all the circumstances. Moreover, it could not have been to the injury of these creditors as respects the debt now in suit, which debt was not contracted until several months thereafter.

The act complained of in the affidavit must be injurious to the attaching creditor, though it is sufficient if the affidavit charges, in the language of the statute, that it operated to delay and hinder creditors, without the particular specification of injury to the plaintiff, which is to be implied. Zeigler v. Cox, 63 Ill. 48.

The second charge of fraudulent concealment or disposition of property to the delay and hindrance of creditors, was predicated upon the defendant’s refusal to pay the debt, and the denial that she had money with which to pay, which denial was untrue. The facts as to this part of the case are, in substance, that an attorney of the plaintiffs called on the defendant and requested payment of the account. The defendant, who was conducting a millinery establishment, said she had no money nor anything, except her stock and outstanding accounts, amounting to $500; that she would go out and collect some money and see him at the hotel at ten o’clock. She sent out an agent who collected some . $14 or $15 only, and reported it to her.

She did not go to the hotel as she had promised, but went to the bank where she kept her account, and drew out her balance, amounting to about $275, and paid two small debts due to local creditors, amounting to about $80, when she was met or overtaken by the attorney, who had been following her and observing her movements, and when he reminded her that she had not called at the hotel and again urged payment, she told him she could not pay, because she had not collected any money and had none.

He replied that he was advised she had money, when she answered that she had no money, and could not pay him until she got it. He thereupon swore out the writ. She proceeded to payout about $112 more on her local indebtedness before the writ was served.

This amounted to no more in effect than a refusal to pay the money she had, being about one-third of the p’aintiff’s claims, and using the same for other purposes, coupled with a denial in general terms that she had money. Had this denial been omitted it can not be supposed that there was such concealment or disposition of property, fraudulent and to the injury of the creditor, as is intended by the statute. She had the right to prefer one creditor to another, and so doing, (while carrying on her business and not being about to yield dominion of her property for the benefit of creditors) was not fraudulent, nor in a legal sense was it such hindrance or delay of creditors as might furnish ground for attachment by those who were unpaid. Then, what legal significance is there in her denial % She was not bound to tell the attorney how much money she had. There were no such relations between them as entitled him to a truthful answer on that subject. She was unable to pay the entire claim. It was not long past duo, and there may have been very good reasons for using what money she then had in payment of her home creditors. That was her business.

She was perhaps annoyed by his persistence, and made a reply which was not literally true, though in the sense that she was unable to pay him, it was substantially true. The denial, whether true or false, did not injure the creditor, and the whole act falls far short of the statute. We think the court properly found the issue for the defendant as to this branch of the case.

It is not necessary to liold whether money is property within the meaning of the statute, or whether the concealment of money may not, under some circumstances, furnish ground for attachment.' We hold merely that the facts of this case are not sufficient.

The proposition of law tendered by the plaintiffs, which in substance justified and required a finding for plaintiffs on the facts stated, was properly refused.

The ease of Powell v. Matthews, 10 Mo. 49, referred to by appellants, and which is cited in Drake on Attachment, is not in point. There the defendant was under obligation by the arrangement with his creditors, to make weekly accounts of sales and turn over the proceeds, but he had sold a considerable quantity for cash and made no return of the proceeds.

This was held a fraudulent concealment within the meaning of the Missouri statute. It is very unlike the case at bar.

We find no error in the record and the judgment will be affirmed.

Judgment affirmed,.


author: Per Curiam.

text:
    John D. Hart v. Lucy A. Burch.

      Jurisdiction—Freehold—Dowei—Practice.

    1. Dower, being an estate of freehold, a proceeding involving it is not within the jurisdiction of this court.
    2. Where this court is without jurisdiction of the subject-matter of an appeal, it will dismiss the same on its own motion.
    [Opinion filed February 21, 1889.]
    Appeal from the Circuit Court of Morgan County; the Hon. Cyrus E. Epler, Judge, presiding.

      Messrs. Morrison & Whitlock, for appellant.
    Mr. M. T. Layman, for appellee.
   Per Curiam.

This was a proceeding in chancery, to assign the dower of Elizabeth Hart as the widow of David Hart, deceased, and for partition of the other real estate of the deceased among the heirs.

Benton Hart, one of the heirs, died after his father, leaving a widow and children, and though the rights of his widow were stated in the bill, she was not made a party, and no notice of her dower interest was taken in the decree. The dower of Elizabeth Hart was allotted and the other lands were ordered sold. After the sale, Lucy, the widow of Benton Hart, by deed, sold her interest in all the lands to John D. Hart, who had purchased the lands at the sale. Subsequently she filed her cross-bill, as it was termed, seeking to set aside this deed and asking that she might be allowed to claim her dower in the share of the lands inherited by her deceased husband. John D. Hart answered, setting up the deed, and asserting its validity for the purpose of releasing the dower interest of said Lucy Hart, now Burch.

A decree was rendered declaring the deed null and void, and fixing the value of the dower at one-seventh of the net proceeds, the widow ha ving filed a stipulation in writing to accept such sum out of the proceeds of the sale as the court might order. From this decree an appeal is prosecuted by John D. Hart, and error is assigned upon the decree.

The controversy involves, primarily, the right of the appellee to dower in the lands of her deceased husband. The question is, whether she still holds the right, or whether she released it by her deed to John D. Hart. The fact that she elected to take its value in money does not affect that question, and the question remains as to her right of dower.

Dower is an estate of freehold, not of inheritance. This court has no jurisdiction where a freehold is involved, and in such cases the appeal should be taken directly to the Supreme Court. Having no jurisdiction of the subject-matter of the controversy, we must dismiss the appeal on our own motion. Carter v. Penn, 8 Ill. App. 299; Wright v. The People, etc., .92 Ill. 596; Carter v. Penn, 99 Ill. 890.

The appellant will have leave to withdraw his record, abstracts and briefs. Appellee’s brief may also be withdrawn.

Appeal dismissed.


author: Per Guriam.

text:
    George D. Corwine v. Benjamin S. Talbot.

      Evidence—Interview—Exclusion—False Representations.

    The exclusion of evidence of a conversation, if erroneous, is cured by its subsequent admission in connection with evidence, which is denied, that it was communicated to the adverse party.
    [Opinion filed February 21, 1889.]
    Appeal from the Circuit Court of Logan County; the . Hon. George W. Herdman, Judge, presiding.
    Messrs. E. Lynch and R. C. Maxwell, for appellant.
    , A party procuring another to accept an agency of an insurance company will not be liable to the latter, from the mere fact that his written representations as to what the company would do, turn out to be untrue. It must appear that he knew their falsity, and the other party relied on the same, and sustained damages in consequence thereof. Wharf v. Roberts, 88 Ill. 426.
    To render a representation fraudulent, it must not only be false, but the party making it must know it to be such. To recover, in an action for deceit, the statement must be untrue, the party making it must know it to be false, and the person ■ seeking to recover must have relied on the statement as true and have been induced to act upon it, and the statement must be in relation to a matter material to the transaction. Merwin v. Arbuckle, 81 Ill. 501; Wheeler v. Randall, 48 Ill. 182; Hines v. Richter, 51 Ill. 299; McBean v. Fox, 1 Ill. App. 177; Grier v. Puterbaugh, 108 Ill. 602; Rockford Ins. Co. v. Warne, 22 Ill. App. 19.
    Messrs. Beach & Hodnett and Blinn & Hoblit, for appellee.
   Per Guriam.

Appellee recovered a judgment below against appellant for alleged deceit in the sale of the agency for Logan county of the Security Live Stock Insurance Company, of Bloomington. The price paid was $400. The company failed within thirty days thereafter, and the damages recovered were $300.

It was conceded that some material representations made by the defendant respecting the solvency, business and expectations of the company were untrue, but denied that defendant knew them to be so and that plaintiff relied on them.

It appears that, shortly before the sale was effected, defendant was told by two agents of other companies that the ‘‘Security” would soon have to suspend, and some specific matters of fact of a suspicions character were asserted in support of that conclusion. He claimed that he' thereupon went to Bloomington to see the vice-president and acting secretary of the company about it, and was by him assured that these statements were false; that the financial condition of the company was go d, and that it was going to increase its capital stock to $100,000. Being asked, as a witness, to state what this officer had told him, the court, on objection made, refused to allow it, which is the only ruling complained of except the denial of a motion for a new trial.

It further appears, however, that afterward, in the course of his testimony, he stated that before the sale he informed the plaintiff of what the vice-president had told him, and was then permitted to state what it was.

But it is argued that the error of refusing to admit that matter independently of the alleged communication of it to plaintiff, was not cured by its subsequent admission in that connection, because the plaintiff denied that he informed him that the vice-president had said the company was going to increase its capital stock to $100,000, and the contradiction upon that point tended to discredit his statement that the vice-president had so told him.

We do not perceive any force in this argument. The contradiction and the case would have been just what they are, if the matter had been admitted as first offered.

It is useless to discuss the evidence. The jury doubtless did that, and the only complaint made of them is that they thought Jt warranted their verdict.

Judgment affirmed.


author: Pleasants, J.

text:
    Addie Rohn et al. v. Ann Harris and Mary F. Byers.

      Jurisdiction—Ferry—Franchise—Title—Practice.

    1. "This com t is without jurisdiction of an appeal involving a ferry right which is a franchise.
    2. A proceeding for partition of a ferry right involves title.
    3. Where this court is without jurisdiction of the subject-matter of the appeal, it will dismiss the same on its own motion.
    [Opinion filed February 21, 1889.]
    Appeal from the Circuit Court of Cass County; the Hon-Cyrus Epler, Judge, presiding.
    Messrs. Morrison & Whitlock, for appellants.
    Messrs. Henry Phillippa and G. Pollard, for appellees.
   Pleasants, J.

This was a bill filed by appellees for a partition, or if that should be found impracticable, a sale of the ferry property, consisting of the franchise and its appurtenances, at Beardstown.

Complainants claimed an undivided half interest therein, setting forth in full their chain of title, and that defendants or some of them owned the other half. The other defendants defaulted, but Addie Bohn and Katherine Bohn answered, denying that complainants had any interest, and claiming the whole of record and by limitation for said Addie. They also claimed that the property was chattel, and therefore not susceptible of partition by this proceeding.

On final hearing upon the pleadings and proofs, the court finding that complainants owned one, and defendant Addie Bohn the other undivided' half interest, and that partition could not be made without injury, ordered a sale of the property and distribution of the proceeds according to the rights of the jiiarties as found, directing the value of boats, etc., to be ascertained, and requiring complainants to pay said defendant one half thereof. .Defendants appealed. The arguments filed here are very elaborate, but confined to the consideration of the nature of the property and the conflicting claims thereto of the respective parties. Though it is recognized by both as a franchise, the question of the jurisdiction of this court is not raised. Yet we can not ignore it.

That a ferry right is a franchise is beyond doubt. People v. Hotz, 92 Ill. 426. And that a proceeding for partition necessarily involves title is also settled. Carter v„ Penn, 99 Ill. 390; Johnson v. Johnson, 7 Ill. App. 521.

A franchise being involved, the appeal should have been taken directly to the Supreme Court. This court has no jurisdiction of such a case. B. S. 1887 (Hurd), Ch. 37, Sec. 25, and Ch. 110, Sec. 89.

This appeal will therefore be dismissed, with leave to appellants to withdraw the record, abstracts and briefs, to be filed in the Supreme Court, if ¡hey shall so desire.

Appeal dismissed.


text:
    Henry Jayne, Executor, etc., v. James L. Murphy et al.

      Administration—Gift Causa Mortis—Wills—Revocation.

      . i AL gift causa mortis may be revoked by the donor before death. A will jluUsequently made amounts toa revocation.
    [Opinion filed February 21, 1889.]
    Appeal from the Chancery Court of Christian County; the Hon. J. J. Phillips, Judge, presiding.
    Messrs. H. M. Vandeveer and John G. Drennan, for appellant.
    Messrs. J. C. McBride and G. L. Zink, for appellees.
   Wall, P. J.

This was a bill in chancery by Julius C. Maeliler, administrator of Bridget Foran, deceased, to- foreclose a mortgage.

The mortgage was executed by James L. Murphy, to secure payment of a certain bond for §700, also executed by said Murphy, dated October 8, 1884, payable to said Bridget Foran three years thereafter, bearing interest at eight percent. per annum.

The bill made said Murphy and Henry Jayne, executor of Matthew C. Long, deceased, parties defendant. Murphy answered, admitting the indebtedness, and his willingness to pay when it should be ascertained who was entitled to the money. Jayne answered, claiming that the bond and mortgage belonged to said Long, and that he, as executor, had the right to collect the debt. He filed a cross-bill also, asking that the mortgage be foreclosed for the benefit of said estate. On a final hearing the cross-bill was dismissed, and a decree was entered according to the prayer of the original bill.

The present appeal was prosecuted by Jayne, and the on question is as to the ownership of said bond and mortgage..

It appears from ihe evidence that said Bridget For an had for several years, worked in the capacity of a domestic servant for the said Matthew C. Long, who was the keeper of a public house. She had accumulated the money in question, and it had been in the charge of ih r, .Long, by whom it was loaned ¿o said Murphy.- For some time prior uJ the loan Miss Foran had be\n in poor health, and had not been ah'1- to work since about the 1st of- April, 1S84-. She mmr -xi to be much attached to Mr. Long and his wife, who hac, been very kind to her while she lived with them, in frvqv.enfc msu, ces of sickness, when she was suffering with a disease of a peeuiu.vlyl distressing nature. It was proved that she sahi, ol severer occasions, that they had treated her better than her vv i relatives had, and that she intended to give them all Er...'possessed. Shortly after the mortgage was made she was at Mr. Long’s house, and, at her request, he showed her the bo.id ami mortgage, and after giving it some examination she handed the papers back to him saying, in substance, that she wanted him to -keep them, and if she died that he must see that she was decently buried, and what was left should he hi=„

We do not attempt to state in detail the testimony oí the witnesses as to the language used by her. It is apparent from the examination and cross-examination that they can not give the precise words, but in substance, it was as stated. There was no assignment of the bond or the mortgage. ^fte$ward she made her will, in which, after providing for her funeral expenses, she made various bequests, amounting to §810. The will contained the following final clause: “With the understanding that the majority of my property is in money loaned, and that the bequests herein made are to be paid as soon as the money can he realized from the persons to whom it is loaned.” This will was drawn by the priest who attended her j in her last illness.

It does not appear that she had any considerable sum of money aside from that loaned to Murphy, which was eviently the matter referred to in the clause above quoted. %3 died on or about December 1, 1884.

t is now contended that she gave, i represented

this bond to Mr. Long. We are clear! • of opinion it was a gift inter vivos. It can hardly ad-,.It of a doubt that she did not intend to divest berso' Í unconditionally of this chose in action, which was all ?lv' possessed, and without which she would be a pauper., and by reason of her failing health, unable to gain her support.

Probably she tin-a Intended, in case of her death, to give Mr-Long what should remain alter pajnnent of burial ex’ uses.

A gift eavea, 7f07'tie may be defined as a gift of personal estate, made in prosject of death at no remote period, and which is dependent upon death occurring substantially as expected by the donor, and that the same he not revoked 1 'ore death. It must be accompanied by delivery. 2 Kent’s nu. ííí; liodfield on Wills, Part 2, p. 297. t may be doubted whether there was in this case such ... poeta tion of death as contemplated by the law, or whether de: ;!i occurred substantially as expected ; but whether the^e conditions were present or not, there was unquestionably a re ío cation.

The will, made five or six weeks after the supposed gift, indicated the clearest purpose to change the disposition of the property. The suggestion that the will was designed to operate upon other estates, finds no support in the proof. She had nothing else, and the reference in the clause above quoted, was beyond question to this, the only such property she had.

It follows that the relief prayed in the cross-bill was properly denied, and the decree should be affirmed.

Decree affirmed.


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    William T. Lutterell v. Louisa Caldwell et al.
    Í Instructions—Division' Fence—Trespass.

    It is error to give an instruction which has no basis in the evidence.

      [Opinion filed February 21, 1889.]
    Appeal from the Circuit Court of Morgan County; the lion. Cyrus Epler, Judge,.presiding.
    Messrs. Morrison & Whitlock, for appellant.
    Messrs. Brown & Kirby, for appellees.
   Per Curiam.

This suit grew out of a contention between the parties hereto as to the true location of the line dividing their farms, and consequently whether Lutterell was a trespasser in plowing up a hedge claimed by one to be on such line, and by Lutterell as being entirely on his land.

The court gave the following instruction:

“ That if they believe, from the evidence, that the old fence, moved by the plaintiffs to make room for the setting of the hedge in question, was placed there by the defendant Lutterell as a temporary fence, to remain only until Mr. or Mrs. Caldwell should set a hedge upon the line between their lan.Is, and that such fence was never recognized or admitted by the plaintiffs or those under whom they claim title to be the true line, then plaintiffs were not estopped thereby to place tlicir hedge upon the true line between said lands, although the true line might differ from the line of the old fence.”

We fail to find any evidence in the record upon which this instruction could be based. It was misleading, for it tended to make the jury suppose that the court was referring to the original fence as built by the ancestor of appellant, and there was no evidence to show that it was built for a temporary purpose.

This was an important question in the case, and we think this instruction tended to mislead-the jury upon it, and therefor- there should be a new trial.

The judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.


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    David S. Dempsey v. Jesse Whiteside.

      Money Sad and Received—Conflict of Evidence—Trial without a Jury —Finding—Discretion—Evidence:

    1. In an action for money had and received, alleged to have been left with the defendant to be applied in the payment of certain promissory nob s. this court, upon a review of 'the evidence, which is sharply conflicting, sustains the finding of the court below for the plaintiff.
    2. The finding of the court, when acting without a jury, is to be accorded the same weight as the verdict of a jury, and to be judged by the same rules.
    3. This court can neither reverse because the evidence is conflicting, no? because it seems to be equally balanced. .
    4. It is not a sufficient ground for reversal that a leading question was asked the plaintiff in rebuttal, the objection at the time being general. Such matters are largely in the discretion of the trial court.
    5. In the case presented, certain evidence was properly excluded as too remote.
    [Opinion filed February 21, 1889.]
    Appeal from the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.
    Mr. Isaac N. Phillips, for appellant.
    Messrs. John E. Pollock and A. J. Barr, for appellee.
   Wall, P. J.

This was an action of assumpsit on the common count for money had and received, brought by the appellee against the appellant. The cause was tried by the court, a jury being waived, and a judgment was rendered for the plaintiff for §572.50, from which an appeal has been prosecuted to this court by the defendant.

■ The claim of the plaintiff was, that the money sued for had been left with the defendant, to be applied on the'payment of two promissory notes, one of §100, to Anna L. Ewing, the other of §445, to Maggie E. Ewing. These notes were for money loaned, and had been transmitted to the payees therein, who resided in Pennsylvania, through the defendant, who was a merchant at Armington, in Tazewell county, Illinois, and through whom the loans were negotiated.

It wTas claimed that the first payment of §472 was made on the 9th of June, 1884, to cover the larger note, which then amounted to something over §460, and some other items, and that the second payment was made on the 16th of June, 1886, to cover the smaller note. The money, if received by the defendant, was not applied by him to the payment of the notes. The plaintiff claimed that these payments were made through or by the agency of his son, James, who is the chief witness for the plaintiff, and who produced on the trial certain receipts purporting to have been signed by the defendant, specifying that the money was received for the purpose alleged. The defendant denied that the receipts were genuine in the condition then appearing, although he was compelled to admit that the signatures were his, or were so much like his that he could not deny them. The theory of counsel is that the receipts were probably given for some other purpose in the course of the numerous deahngs between the parties, and being written in pencil, had been altered, the signatures traced in ink and the body of the instruments filled up as they now are. There was no expert or other evidence aliunde as to the character and genuineness of these writings, and the evidence on this point consisted of the testimony of the parties, upon which, and the inspection of the writings, the court must have reached the conclusion they were genuine.

There was much other testimony, some corroborating each side, and it must be said the proof is in a state of hopeless conflict. One side or the other has sworn falsely as to these receipts and the payments. There is no room for mistake or misapprehension.

It is not worth while to attempt a statement of all this proof. The case was argued orally, and we have read carefully the entire body of the evidence as it appears in the record, the stenographic report having been copied in full in the bill of exceptions, and we are unable to say on which side is the greater weight. Convinced that there must be perjury on one side or the other, it is impossible for us to determine, with any degree of confidence, which is the guilty party.

It is one of those cases where it would be of great assistance to see and hear the witnesses, observe their manner, and note the various circumstances of corroboration or impeachment which can not be put upon paper.

Our attention is called by the respective counsel to various discrepancies in the details of the testimony of the principal witnesses, and, after giving these all due consideration, we do not feel at liberty to say that the finding of the court is so palpably against the weight of the evidence as to justify a reversal. That finding is to be accorded the same weight as the verdict of a jury, and to be judged by the same rules. ¡Remembering what advantage the court possessed for reaching the truth, in that it had the witnesses personally before it, we can not hold that the conclusion arrived at is erroneous.

Perhaps the judgment does great wrong to the appellant, but if so it is because the evidence is of such a character as to successfully baffle all effort to expose its falsity. It is the common experience that in such a conflict of testimony, when we have seen the witnesses face to face, and heard them through long examinations and cross-examinations, we usually feel confident in our conclusions as to which is true and which is false; and so here, it is to be presumed, there were in this evidence such badges and indications as to lead the mind of the judge who heard it, to a result which he was satisfied with. We can not reverse because the testimony was conflicting, nor because there is the same quantum of proof on either side; for since it is in conflict, one is right and the other is wrong; and so it was the province of the trial court to reconcile it, if possible, and if not, to believe that side which seemed, in view of all the evidence, direct and corroborating, to be the more worthy of credit.

It is urged by appellant that the court erred in refusing to permit proof that James Whiteside, son of the plaintiff, was “broke” before he negotiated the draft of $472 to appellant, Dempsey, and afterward he was “flush.” This was not very important. It appeared that the $472 draft was part of a loan of $2,000 which plaintiff had just negotiated through the defendant, by whom the other part of the loan, consisting of drafts for $1,500, was received by plaintiff, and if James was “ flush” he might have got the money from the proceeds of the other drafts. The offered evidence was too remote to throw any effective light upon the case.

It is also objected that the court refused to permit proof that there was no bank at Armington, and that the defendant was accustomed to cash drafts for parties at his store. This was also quite remote; nor can we see how it could have helped the case of defendant, as he was not claiming that he cashed the draft, in the sense suggested by the offered proof.

“ He claimed that he took the draft from James Whiteside, and after giving credit upon his books for what was then due him from James and his father, the plaintiff, gave him the, balance in money.”

It is also urged the court erred in refusing to permit the witness Guy to answer questions which went to prove that James Whiteside was in the habit of signing his father’s name to commercial paper; and, in support of the point, counsel say there was a dispute between James Whiteside and Dempsey, as to which of them indorsed the name of Jesse Whiteside, the plaintiff, on the $472.50 draft.

How it was not pretended that the name of Jesse Whiteside was indorsed on this draft, although it was really payable to him. The names indorsed on that draft are those of James Whiteside and D. S. Dempsey.

On turning to the testimony of Guy as it is set out in the record we find it does not appear what paper was being shown the witness, but it was a draft on which James had, in July of last year, written in the name of Jesse Whiteside, and when the witness was asked what James said at the time of writing it as to how he happened to do that, an objection was interposed and the court remarked that nobody was disputing what James did, but they claimed he was acting for his father. It must be apparent this objection is not well taken, and that the court would not have been affected by the proof offered, even if, as does not appear, it was what counsel seem in the brief to suppose it was, and éven if, as was not the fact, the name of Jesse Whiteside is upon the back of the draft.

It is also objected the court permitted counsel to ask the following leading question of the plaintiff when called in rebuttal: “ But there was a receipt shown you as in payment of that note?” to which the reply was “Yes, sir.” This question was but a mere statement or repetition, in the form of an interrogatory, of what the witness had more fully stated in the preceding answer. While the question was objected to, there was no suggestion that the objection was on account of the form. Had it been urged the question was leading, the court would probably have required the form to he changed. Such matters are too much in the discretion of the court to justify a reversal, unless the discretion has been palpably abused to the manifest injury of the party complaining.

That was plainly not so in this instance, and the point made must he overruled.

Ho other points are presented in the argument, and the judgment of the Circuit Court must be affirmed.

«Judgment affirmed.


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    Chicago and Alton Railroad Company v. Theodore Fisher.

      Railroads—Injury fo Passenger—Excursion—Extraordinary Demand-—Notice—Evidence—Instructions.

    I. In an action against a railroad company to recover damages for a personal injury alleged to have resulted from the negligence of the defendant in failing to furnish sufficient accommodations for excursionists, it is held: That (he verdict for the plaintiff is not well supported by the evidence; (hat evidence of the general understanding in the vicinity as to the crowd expected, and to the effect that printed invitations had been issued and posters seen in public places, was improperly admitted to charge the defendant with notice; and that the court below erred in giving certain instructions.
    2. Where passengers present themselves in extraordinary numbers for transportation, the carrier is only required to use reasonable diligence in furnishing accommodations in view of the special circumstances of the case.
    3. Where a witness has been contradicted merely, evidence of his general character is inadmissible.

      4. Questions of fact are to be determined by the jury. What is or is not negligence is such a question.
    5. " In the case presented, instructions touching the weight of the testimony of the witnesses were improperly given.
    [Opinion filed February 21, 1889.]
    Appeal from the Circuit Court of Menard County.
    Mr. William Brown, for appellant.
    Messrs. Cameron & Hughes and C. Nusbaum, for appellee.
    It is no defense where a carrier is negligent, that the negligence or even the trespass of a third person contributes to the injury complained of. Easton v. Boston R. R., 11 Allen, 500; Angell on Carriers, p. 433, Sec. 521, note.
    Tne contract of a carrier with his passengers is to provide for their safe conveyance, so far as human care and foresight will go. 2 Kent’s Com. 600, 601 ; Sir Jas. Mansfield in Christie v. Griggs, 2 Camp. 79.
    Proof that the plaintiff was a passenger, the accident and the injury made a prima facie case. When this was done the burden of explaining was on the carrier. Galena & C. U. R. R. Co. v. Yarwood, 15 Ill. 468.
    In this case the defense that plaintiff voluntarily stepped off, obtained no credence, not the slightest even, with either' of the juries who tried the case.
    Carriers must have and keep their platform safe. Hutchinson on Carriers, Sec. 516, 517'; McDonald v. Railroad, 26 Iowa, 124; Penn. R. R. v. Henderson, 51 Pa. St. 315.
    The highest degree of care and diligence is the rule as to all carriers of passengers, and public policy demands that it should not be reduced; nor do the cases show any tendency in the courts toward its relaxation, but, on the contrary, a-disposition to increase its rigor, especially in its application to carriers wherever steam is employed as the motive power. Hutchinson on Carriers, Sec. 501, note.
    While the carrier is not regarded as an insurer of his passengers’ safety against every possible source of danger, he is bound to use all such reasonable precautions as human judgment and foresight are capable of, to make his passengers’ journey safe and comfortab'e. Hutchinson on Carriers, Sec. 596; Goddard v. Ry. Co., 57 Me. 202.
    If the carrier has not room for the passenger he should not contract to carry him, and if it be uncertain whether he will have the necessary room, he should make his contract conditional with reference to that uncertainty. Hutchinson on Carriers, Sec. 609; Great N. R. Co. v. Hawcroft, 8 Eng. L. & E. 362; Lafayette, etc., R. R. v. Sims, 27 Ind. 59.
    A passenger who can not obtain a seat in a car is not guilty of negligence if he stand on a platform outside of the car. Mor can he be required to encounter the danger of going from car to car while the train is in motion in order to find a seat. Willis v. R. R., 34 N. Y. 670, and 13 Barb. 398 ; Colegrove v. E. R., 20 N. Y. 492.
    Though riding on the platform of a moving car is ordinarily negligence in a passenger, yet if there be no room inside the car, and pay is received or a ticket taken up for the privilege of occupying such a position, it may amount to an invitation to ride in that place, and an implied assurance that it is a suitable place to occupy, and that he will, while there, be carried safely. 2 Rohrer on Railroads, 1103, 1104; Clark v. Eighth Ave. Ry., 36 N. Y. 135.
    Nor is it necessarily negligence in a passenger if a part of the body protrudes from the car. C. & C. R. R. v. Pundrom, 51 Ill. 333.
    The railroad company, as carrier, is under an implied obligation to have a safe road, with proper engines and cars, to employ persons of competent knowledge and skill to conduct their business and operate their trains, and are bound to use the utmost care and diligence for the comfort and safety of their passengers, not only in the management of their trains, but likewise in all their subsidiary arrangements. 2 Rohrer on Railroads, 590-1.
    The jury are the sole judges of the weight of the evidence, and of the credit to be given to each witness. Cohen v. Schick, 6 Ill. App. 280.
    The instruction as to mere numbers, not necessarily determining the preponderance of the evidence, was correct. Gowen v. Kehoe, .71 Ill. 66; Meyer v. Mead, 83 Ill. 19.
   Wall, P. J.

The appellee recovered a judgment against the appellant in an action on the case, in the sum of five thousand dollars.

The declaration contained three counts. The first alleged that on the 18th of August, 1886, the defendant ran an excursion train between Petersburg and Ashland, and plaintiff became a passenger thereon; that on the return journey defendant negligently permitted the train to become overcrowded, and by reason thereof the plaintiff, while exercising due care, was, by the pressure of the persons on the platform and steps of the car, unavoidably crowded off and thereby injured. The second count substantially states the same condition of the car, and alleges that by reason thereof plaintiff was unable to stand on the platform, and unavoidably fell off and was thrown against a heavy truck, etc.

The third avers the defendant had notice that an unusual number of persons would take the train, and advertised it would carry all persons at reduced rates; that plaintiff became a passenger, that defendant failed to provide adequate room for the passengers, and suffered the train to be overcrowded, and also carelessly permitted a heavy truck to be on the depot platform at Petersburg, directly in the way of persons who might alight from the train, and that by reason of the overloaded condition of the train, the plaintiff, while exercising due care, was thrown from the car and was dragged against the said truck, whereby he was injured.

The occasion was a soldiers’ reunion at Ashland, which is the second station south of Petersburg. The defendant sold excursion tickets from the latter to the former station and return, but it does not appear that extra cars were provided, and the passengers going from Petersburg to Asli'and were very much crowded.

On the return the crowd was groat, so much so that the platform and isles were filled on some, if not all the cars, except the sleeper and dining car. At Tallulla, a station between Ashland and Petersburg, about one hundred got off, and the train proceeded to Petersburg. The plaintiff made an effort at Ashland to get on the front end of a coach, probably the second from the baggage car, and finding that coach was filling rapidly, went forward and got on the front end of the smoker where, as he states, he remained, because lie could see no chance to get a seat inside. This platform was crowded, as was the platform of the baggage ear in front of him.

He sat on one of the steps a part of the time and stood a part of the time. As the train approached Petersburg he rose to his feet, holding with one hand to the railing of the ear and with the other to the railing of the car platform. He does not know, as he states, how he got off, but he was seen to be running along on the depot platform holding on to'the car until he struck against the truck, which was standing near the track with a trunk upon it, when he was thrown down and very seriously hurt. He was unconscious for several days, and though no bones were broken, he received injuries which confined him to his room for six weeks, and for which he had not fully recovered at the trial.

The train consisted of three pas-enger cars, besides the s’eeper and dining car. The three passenger cars were overcrowded, and though about one hundred persons alighted at Tallulla, there was on the forward car, where plaintiff rode, no apparent relief, according to the testimony of some of the witnesses, though, as to this, there is contradiction. The theory of plaintiff is, that as the train whistled for Petersburg there was a rush of persons to get out, and that he was thus pushed off. It is remarkable that no witness swears that lie was pushed off, the nearest approach to such proof being found in the testimony of McHenry, who swears that he was standing next to plaintiff, and that he felt a pressure from persons back of him, and (hat he was pressing somewhat against the plaintiff; that he felt plaintiff give way, and as he looked around, he saw plaintiff strike the truck. He did not see him as lie left the car, and he evidently does not know how he left, for lie did not look around until just as plaintiff struck the truck.

According to the great weight of the proof, and indeed according to all of it on the point, the plaintiff ran along the platform a considerable distance, not less than sixty feet, before he reached the truck.

Some of the witnesses described him as holding on to the car with both hands—though the most of them say with one, tiie right—he being on the west side of the car and going north.

It was manifestly incumbent upon the plaintiff to satisfy tiie jury that he was unavoidably forced from the car by reason of the overcrowded condition thereof, and it was perhaps tiie chief point of inquiry to ascertain whether he ic-ft the car of his own volition or by reason of the pressure from the crowd.

As already stated, bnt one witness, McHenry, testifies that there was any such pressure as might have forced him off, and that pressure was not sncli as to materially change the position of the witness himself.

All the other testimony is to the effect that lie voluntarily stepped off, or that the witnesses did not see him in the act of passing from the car, and they were nnab'e to say what induced his going. Some ten or twelve witnesses testify that he stepped off as any person would in alighting from a train, holding on with his right hand and placing his left foot on the depot platform ; and that he then ran along, holding- on, until he came to tiie truck. Other witnesses did not see him until he was off, running along.

One witness for the plaintiff, Kleinan, who was sitting in a bus on the other side of the depot, says he saw him come off backward, holding on with both hands to the railing, and going along in this mode, sideways, taking steps of ten or fifteen feet at a time until he reached the truck, but he is not well corroborated as. to the attitudes of plaintiff, and was probably in error as to this.

There was testimony to the effect that plaintiff said that he intended to get off ahead of the crowd, so that he could get into the bus and ride up town. Four or five persons so testified, and that after he had partially recovered he accounted for his misfortune in the same way, and admitted that he had acted incautiously in trying to get off while the train was in motion. He denies these statements and admissions, but the testimony comes in such a form as that it might ordinarily be expected to receive credit from the jury; though, of course, there is such contradiction, as that if the issue rested wholly on these statements and admissions, it would hardly do to say that the finding of the jury is without warrant.

Taking the evidence as a whole, as it appears in this record, we are strongly impressed with the belief that the plaintiff was not poshed or forced from the train, but that he stepped off, miscalculating the speed of the train, and finding he was going faster than he supposed, and to avoid falling, he held on to the car until he collided with the trucks. Indeed, we may say there is really no conflict in the evidence, since all the proof in the ease may be harmonized consistently with this theory. We do not forget that in the testimony of the various witnesses there is more or less discrepancy on some points. They do not all agree as to. which car he was on, nor as to his position; but such discrepancies will be noticed invariably among witnesses who have not been trained. Men do not all see alike, nor is it usual that all of several wetnesses see the entire transaction. Some well see more, and when the act inquired of occupies hut a short space of time, some will comprehend more than others, and from the testimony of all, differing though they may in details and minor particulars, the whole truth will appear. The proof being in this condition, and there being.no positive evidence that the plaintiff was forced from the train, unless it may be found in the testimony of McHenry, it is difficult to see how the jury, if properly advised of the law, could have reached the conclusion they did.

We are not to be understood as saying, however, that we would reverse the case, were there no errors in the rulings i upon evidence and instruction.

Appellant urges that the court erred in permitting proof as to the position of the truck, as it was usually placed, and a statement of the difference in distance between that position and the position at the time in question. We see no valid objection to this proof.

It is insisted the court erred in permitting proof of the general understanding in the vicinity, as to the crowd that was expected at Ashland, and that printed invitations had been issued by a committee to all ex-soldiers, and that printed posters had been seen in public places about the town of Petersburg.

The object of this evidence, of course, was to bring knowledge to the company of the extent of the crowd to be expected.

We think it was too remote, and ¡ hould have been excluded, unless it was also shown that the company, or its agents, knew of the invitations or the posters.

The company, however, must have known of the reunion, for we find its agents were selling excursion tickets at special rates, and the real point in this respect is whether it had such knowledge (or notice that would have led to knowledge) of the numbers likely to go, as to require preparations that were omitted.

The proof thus admitted was not of the definite character that would bring such notice; first, because the company was not shown to know of the posters etc., and second, it does not appear what they contained or indicated. It can hardly be said that a railroad company is bound to beep track of such advertisements, and make arrangements accordingly. It may well suppose that when special rates for excursions are desired, it will in some more certain and definite way receive information of the number of persons likely to go, and of the extra accommodations required; if it is not justified in relying upon such information, then it is subject to the duty, at its peril, of forming a proper opinion based on newspaper rumor, public advertisements and the like, which would be unreasonable.

It is urged the court erred in refusing to permit the appellant to support one of its witnesses, Mrs. Stewart, by proof of general character.

Tills witness had testified to declarations made by plainfiff as to the manner in which lie received his injury, and had been contradicted by other witnesses, who were present at the conversations, or some of them referred to by her. She had not been impeached by proof of bad reputation. She had been contradicted merely. It was not proper to support her by the offered proof. The authority cited in Greenleaf does not sustain the objection.

The appellant urges that it was error to give the following instructions at the instance of the appellee.

“ 1. That the law requires of a common carrier of passengers for hire, that such carrier shall exercise extraordinary care, and (consistent with the means and mode of locomotion employed) the carrier shall do everything reasonable and practicable that human foresight would suggest, to guard against and prevent injury to the passenger, and shall not omit to do anything reasonable and practicable which human foresight would suggest ought to be done to guard against and prevent injuries to the carrier’s passengers.

“2. The degree of care required by our law from a carrier of passengers for hire, is not common prudence or ordinary care, but is what is known as the highest degree of care, and for any omission or failure to exercise that highest degree of care, which causes an injury to the carrier’s passenger, such carrier can be held liable.”

The only negligence alleged against the railroad company aside from leaving the truck so near the track, was the failure to provide accommodation for the unusual number of passengers on the occasion in question, and these instructions were understood to refer to such failure. As applied to such matters as are under the exclusive control of the carrier, e. y., the construction of road bed, bridges, cars, engines and other appliances, the rule announced is correct; but with reference to the duty of lurnishing room for passengers in extraordinary numbers, it is too broadly stated. When an unusual, extraordinary demand for transportation occurs, the carrier should be held only to such diligence as may be reasonably exercised in view of the peculiar circumstances of the case. C. & N. W. R. R. Co. v. Carroll, 5 Ill. App. 201; Quinn v. I. C. R. R. Co., 51 Ill. 495.

In determining what was reasonable diligence, it would be proper to consider the notice had by the carrier of the probable requirement, the time in which it might act and the means at hand. Pei haps other considerations might be involved.

Under the rule stated in these instructions, the jury would ' necessarily find there was negligence, for it was certainly possible, by the exercise of “the highest degree of care,” and by doing “everything reasonable and practicaje that human foresight would suggest,” to have furnished the requisite room. ,

The carrier should not be held to so strict a rule in regard to matters over which it has no control. It was impossible to know with certainty how many extra passengers there would be, many changing their minds at the last moment one way or the other, and where the power of control is imperfect or wanting, the duty can not be absolute.

It must be the rule, therefore, that the duty is relative, and depends upon the special circumstances of the case.

The same measure of diligence would not be required in every instance, nor is there an absolute duty of providing for all who may come in any case. It does not appear what notice the company received in this instance of the extra number to be provided for, and these instructions must have had an important effect upon the jury.

Objection is taken to the following instructions given for plaintiff.

“10. That the preponderance of evidence does not depend1' entirely upon the number of witnesses testifying on either side of the case.

“11. The testimony of one credible-witness may be justly entitled to more weight and credit than the testimony of many others, if the jury, as to other witnesses, have reason to believe, and do believe from all the evidence, that such other witnesses have knowingly testified untruthfully and are not corroborated by other credible evidence, or by circumstances proved in the case.”

The last instruction, taken in connection with the 10th, was quite significant when applied to the evidence, and of course would be taken to refer to the supposed conflict between the testimony of McHenry, for the plaintiff, and a large number of witnesses for defendant. The latter clause of the last has no foundation in the evidence as we read it, and as the jury may have inferred that the court supposed there was foundation for it, they were likely to be misled by it. The instruction should have been refused.

The following, given for plaintiff, is objected to:

“ 12. Even if the jury believe, from the evidence, that there was ample room for Fisher in the Pullman sleeper, yet if you further believe from the evidence the sleeping car was closed to passengers when at Ashland,- and that Fisher took as good a place to ride as he reasonably could under all the circumstances at the time, and that he had no notice or knowledge of the fact that the sleeper was opened for the use of the excursionists, then he is not chargeable with negligence for continuing in such place so taken by him.”

It is a familiar rule that the jury should be left free to determine questions of fact, and that what is or is not negligence is such a question.

Whether, under a given set of circumstances, one should, in the exercise of due care, do or refrain from doing a particular-tiling, is for the jury.

Technically, at least, the defendant had the right to take the opinion of the jury, whether the action referred to was negligent, under the circumstances, and the instruction was faulty; but in view of the facts involved, we would not be inclined to reverse if the record contained no other errors.

Counsel have urged upon us as erroneous the action of the court in modifying a number of instructions asked for defendant. After a very careful examination of the instructions as modified, in connection with those given as asked, we deem it necessary to say merely that we find no material error in respect thereto. For the reasons given the judgment will be reversed and the cause remanded.

Reversed and remanded.


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    Lake Erie & Western R. R. Co. v. Max Rosenberg.

      Carriers—Stock—Delay in Unloading—Authority of Station Agent— Evidence—Instructions—Practice—Amendment.
    1. It may be assumed that a railroad station agent has authority to contract with reference to the shipment and prompt, unloading of live stock.
    2. In an action brought against a railroad company to recover damages for the sickness and death of horses, arising from failure to unload the same as agreed, this court holds that the evidence sustains the verdict for the plaintiff.
    3. The court below properly admitted evidence as to the condition of the stock immediately after liberation from the car, and also as to their subsequent condition.
    4. An objection to an instruction to the effect that the plaintiff might recover for death of two horses, only one being claimed in the declaration, can not be first raised in this court.
    [Opinion filed February 21, 1889.]
    Appeal from the Circuit Court of McLean County; the Hon. Alfred Sample, Judge, presiding.
    Mr. A. E. De Mange, for appellant.
    Messrs. Neville & Lindley, for appellee.
   Wall, P. J.

The appellee recovered a judgment against the appellant in the sum of §252.52, for damages occasioned by delay in unloading a car of horses shipped by appellee from Paxton to Bloomington over the railroad of appellant.

The evidence on behalf of appellee tended to prove that Allen, his agent, applied to Abbott, agent of appellant at Paxton, for a car in which to ship the horses, intending to load them the next day, and that Abbott suggested they could be shipped that night, which Allen said he would like-if they could be unloaded when they got to Bloomington, and that Abbott said he would telegraph Merwin, the agent at Bloomington, and there would be no trouble about that; and upon this assurance the horses were loaded and sent forward that night. The evidence also tended to prove that the stock reached Bloomington at 12:45 a. m., and were warm and steaming. They had not been used to such mode of travel, and their condition on arrival is thus accounted for, it being not unusual for animals to get excited and overheated when making such a trip for the first time.

The agent of appellee, who accompanied the stock, asked the conductor to have the car placed at the chute, so that the horses could be unloaded. He said this was not his duty but the yard-master’s. After being informed by the night operator that Merwin, the station agent at Bloomington, had give n no orders about it, appellee’s agent went to Merwin and got an order to. the yard master to unload the stock, but he refused to comply. Tliis was on the 20th of October. It turned cooler after midnight, and when the horses were finally unloaded at 7 o’clock in the morning, they were shivering and coughing.

Several of them were sick and two died afterward, as a consequence, it was claimed, of cold taken by reason of remain ing in the open car after having become heated by the trip.

There is sufficient evidence in the record to support the appellee’s theory, not only as to the agreement and assurance of the Paxton agent that the stock should be promptly unloaded, but as to the damages occasioned .by the failure in this respect. It is true the agent at Paxton denies that he gave such assurance, but it appears from the evidence of the operator and of the agent at Bloomington, that it was known the stock was coming, and the jury were not without warrant in accepting the version of appellee’s agent. There is, of course, some room for controversy as to whether the injury sustained by appellee was caused by the delay in question, but the jury were justified in the conclusion reached upon this point.

Complaint is made that the court, instead of confining appellee to proof of the difference in market value between the time the horses reached Bloomington, 12:45, and the time they were unloaded, 7 a. m., permitted proof of the condition when unloaded, arid the subsequent condition of sickness, etc. We are unable to appreciate the point thus made. The question was as to the effect of the delay, and there was no better way to ascertain this than to prove the appearance, symptoms and condition of the animals immediately thereafter, and let the jury from this proof form their opinion.

To prove the difference in market value between the hours of midnight and 7 A. m., would, of course, be wholly impracticable. It is objected the court permitted witnesses to be asked the effect of allowing warm, sweating horses to stand in a car five hours, when no witness had sworn they were warm and sweating.

Allen, the agent of appellee, who was in charge of the horses, swore they were warm and “steaming,” by which he no doubt meant and was understood as saying, that they were warm and sweating. We think this objection untenable, and that there is nothing in the point made in this connection, that it was error to instruct that the jury might “ assess plaintiff’s damages at the amount he has sustained, as shown by the evidence,” this expert evidence being before the jury.

It is urged that the carrier is not liable for loss caused by the inherent vitality of the animals, and that if they got overheated by fright and excitement, it was no reason why the carrier should have a crew of men in readiness to unload promptly in the night time.

The answer to this is that appellee would have waited until the next day, when the delay in unloading would have been obviated, but for the suggestion of the Paxton agent and his promise to telegraph the agent at Bloomington, and the assurance there would be no delay. The court properly told the jury that it was sufficient if the agent was apparently authorized to do this. The company can not be heard to say that such a matter could be authorized only in some special way. Any ordinary business man might reasonably suppose, from the nature of things, that there was authority to give an assurance of this sort. It was within the scope of the power he was exercising—so apparently, as that those dealing with him might act upon the presumption it was authorized.

It is urged the court erred in instructing that plaintiff might recover for two horses that had died, when the declaration alleged the death of but one. There was proof, without objection, of two dying, and it does not appear that the attention of the court was called to the point of the averment in the declaration. The objection might have been obviated by an amendment, under section 24 of the practice act, at any time before final judgment, and should have been made to the trial court. It comes too late here. I. & St. L. R. R. Co. v. Estes, 96 Ill. 470; Driggers v. Bell, 94 Ill. 223.

The second instruction refused by the court, so far as it contained anything necessary or proper, was embodied in the first given for appellant, and there is no error to be based upon its refusal. The main question in the case was one of fact, and we think there was enough to support the verdict, and that no substantial error was committed by the rulings upon evidence or instructions. The judgment will be affirmed.

Judgment affirmed


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    Edward Seymour v. James A. Edwards et al.

      Administration—Conspiracy to Defraud Legal Heirs—Jurisdiction— Evidence—Admissions—Parties—Unknown Heirs—Practice.

      1. A bill charging conspiracy to defraud legal heirs and alleging that the complainants were in ignorance thereof until after the settlement of the estate in question, will justify the intervention of a court of chancery.

      2. To an action of this character all known heirs must be made parties, and, as to unknown heirs, summons must issue in conformity with the statute.
    3. Persons whose names and places of residence are easily obtainable can not be made parties as unknown heirs.
    4. It is sufficient if the facts upon which a decree is based appear in the record.
    [Opinion filed February 21, 1889.]
    Appeal from the Circuit Court of Morgan County; the Hon. Cyrus Epler, Judge, presiding.
    Messrs. Morrison & Whitlock, for appellant.
    We urge that under the facts as disclosed by the evidence there is nothing in this case to give a court of chancery jurisdiction. The bill alleged a conspiracy, and we may concede, in argument, that if the conspiracy had been proven the court would have assumed jurisdiction ; but the decree fails to find the conspiracy, and if it had, the evidence would have failed to justify the finding. The decree simply found that the allegations in the amended bill are true, and that Edward Seymour is indebted to the estate of Mrs. O’Brien in the sum of §1,230.46. This is, then, like any other debt due to the estate of the decedent, and could have been reached in the regular and ordinary course of administration in the Probate Court of the county, and if Spires, the administrator, having been discharged, could not act, what was there to prevent a supplementary administration, in the nature of administration de bonis non, being resorted to? It is only in extraordinary cases that chancery will assume the jurisdiction of administration. Freeland v. Dazey, 25 Ill. 294; Henstis v. Johnson, 84 Ill. 61.
    The decree is defective in not finding facts upon which to base the judgment of the court. The decree simply says that the court finds the allegations in the amended bill to be true. What facts? The decree is silent. We understand that the finding part of the decree should set out - the facts as found by the court, to justify the ordering part thereof.

      We also urge as error the decree of the court directing the payment of the money to the clerk of the court.. This decree, in fact, assumes the administration of the estate of Mrs. O’Brien, takes it from the Probate Court, and the clerk of the court, by the decree,is made the de facto administrator. This is done without bond or without any obligation as administrator. Heither does the bond of the clerk bind him with regard to money so paid to him. The Supreme Court of the State has decided that the payment of money to the clerk does not bind the securities on his bond. Seymore v. Haynes, 104 Ill. 175.
    Messrs. M. T. Layman, G. W. Smith and O. A. DeLeuw, for appellees.
    In the case of Freeland v. Dazey, 25 Ill. 294, the executor had not rendered a final account to the Probate Court and been discharged, as in the case at bar, and the Circuit Court only took jurisdiction of a part of the administration, and the court expressly say: “We will not question that a court of chancery may, in the exercise of its general jurisdiction, take upon itself the administrations of estates, and thus, in the particular case, supersede the jurisdiction of the Probate Court. In doing this, it will take the whole administration into its own hands, and administer according to the statute of wills, modified possibly in some cases by the principles of equity.”
    The rule announced in this case goes to sustain the jurisdiction of the Circuit Court.
    In the case of Heustis v. Johnson, 84 Ill. 61, cited by appellant, the court say: “The County Court has full power to grant relief in the case made by the bill.” The County Court still had jurisdiction of the estate in the above case, and there was no charge in the bill of a conspiracy to cheat and defraud, like there is in the present case, which the evidence fully sustains.
    In the case of Jennings, v. McConnell, 17 Ill. 148, the court say: “Courts of equity have general power in the matter of administration of estates, concurrent with the County Court ip many respects, and to a large extent in general, as embracing trusts, equitable assets, marshaling assets, and especially in matters regarding the realty, matters of discovery, fraud, and in the payment of legacies and the distribution of the surplus.” Story Eq. Juris., Secs. 530 to 545.
    Courts of equity have paramount jurisdiction' in cases of administration and settlement of estates, and may control courts of law in their action in the settlement and distribution of assets. Grattan v. Grattan, 18 Ill. 167; Townsend et al. v. Radcliffe, 44 Ill. 446.
    Where the County Court approves the account of an administrator and discharges him, an appeal by the heirs is not the proper remedy; they should proceed by bill in equity. Howard v. Slagle et al., 52 Ill. 336.
    Where a party takes possession of property under claim of heirship a court of chancery has jurisdiction at the suit of' another, claiming the property, to determine the true succession, and to decree an account. It is one of the usual grounds of equity jurisdiction to discover and compel an account of funds wrongfully concealed and withheld from the real owner. Russell et al. v. Madden, 95 Ill. 485.
   Wall, P. J.

This was a bill in chancery charging conspiracy by the defendants to defraud the heirs of Elizabeth O’Brien by so administering her estate as to enable the defendants to appropriate to themselves the chief part of the same. It was alleged that defendant Spires, who was the administrator, knowing that defendants William and Edward Seymour were indebted to the estate, corruptly filed his inventory, omitting all reference to their indebtedness, and that the matter was so managed as to enable the defendants to divide among themselves the moneys held by the Seymours, which should have been, but were not, collected or accounted for. It was alleged that complainants, who were the only heirs, had no knowledge of said' conspiracy until the final report of the administrator had been approved, and he had been discharged. A demurrer to the bill was overruled and the defendants answered, denying the charges of fraud and conspiracy, averrng that the deceased, being very old and having no kindred of her own blood willing to care for her, arranged with defendant William Seymour that his minor daughter, Wilmath Seymour, should live with her, and that for the society and service of said Wilmath the deceased would, at her death, give said Wilmath all her property, and that if the deceased left any property it of right belonged to said Wilmath. Defendants also filed a plea setting up the administration and the settlement of the estate and discharge of the administrator as a bar to the bill. ' The plea was set down for hearing and disallowed. The bill was amended to show that Jordan Edwards, one of complainants, had died since the filing of the bill, and that prior to his death he had assigned to James A. Edwards all his interest in the estate; also that there were persons who were interested in the estate whose names were unknown to complainants, and asking that the unknown heirs of Elizabeth O’Brien might be made parties defendant. An affidavit was filed that there were such unknown parties and publication of notice was made as to them, but no process was issued against them. The cause was heard upon evidence which is fully preserved in the record, and a fina] decree was entered finding the allegations of the amended bill to be true and requiring defendant Edward Seymour to pay to the clerk of the court $1,320.46, and referring .the cause to the master to take proof as to who are the heirs of Elizabeth O’Brien.

From this decree Edward Seymour has prosecuted an appeal and urges the following errors as grounds for reversal:

1. The facts alleged and proved give no jurisdiction to a court of equity.

2. The cause was tried without having all the parties in interest before the court.

3. Incompetent evidence was admitted on behalf of complainants and competent evidence offered by defendants was excluded.

4. Ho facts are set out in the decree upon which to base the order requiring appellant to pay said sum of money to the clerk of the court.

As to the question of jurisdiction, we are of the opinion that the allegations of the bill charging fraud and conspiracy to cov-er up and divide the estate between the defendants, and that complainants had no knowledge thereof until the formal proceedings in the County Court were all done, furnished sufficient ground for the interposition of a court of equity, and that the facts proved support those allegations.

There is no doubt that de fen dan; Edward Seymour had at least $1,000 of the money of the deceased, and while there is some reason for the contention of counsel that the money was given to him, yet there is enough to justify the conclusion that he was a mere custodian, that the fact was well known to Spires and William Seymour, and that there was an understanding between all three of the defendants substantially as charged in the bill. Here, we may notice the cross-error urged by appellee, that the judgment should have been larger, and in respect thereto we only care to say that we see no just ground in the proof upon which a greater sum could be allowed. True, there is some evidence, but it is not sufficiently definite, and we think the decree in this respect accords with the proof.

Here, also, we may notice the point made by appellant that the facts proved are not specifically recited in the decree; and as to this it is only necessary to say that it is sufficient if the facts upon which the decree is based appear in the record. They may be preserved by certificate of. the judge, by report of the master, by depositions and exhibits, or by recitals in the decree.

It is not essential that the decree should recite the facts if they otherwise appear in the record. White v. Morrison, 11 Ill. 361. Many other cases in our reports upon this point might be cited, but it is unnecessary.

The evidence contained in this record under the certificate of the judge, and in the form of depositions, is properly preserved, and being thus made a part of the record there was no occasion to recite it in the decree.

The complaint as to the admission of incompetent evidence rests upon the proof allowed in behalf of complainants, that Spires and William Seymour had stated that, on the day of the funeral, Edward Seymour admitted to them he had money belonging to deceased, which he would pay over to the proper authorities. This was competent, because it tended to prove they knew Edward owed the estate, and tended to show concert of action to perpetrate the fraud alleged. The court properly permitted them to deny that they ever made such admission, but would not permit them to go further and prove that he had not told them so.

It is not perceived that in this any substantial error was committed. The point was whether they had made the alleged admission, and when they were permitted to prove they had not made it they met all that was requisite in that regard.

As to the remaining point, that the heirs of Mrs. O’Brien were not made parties, we think there was error. She had no direct descendants, but there were a large number of persons descendants of her brothers and sisters, who were known, and there were others whose names and residence were easily obtainable, and who might, by a little care and effort, have been brought into court in the due and regular mode provided by law. The seventh section of our chancery code was not intended to apply to such parties, and it is a perversion of the statute to permit such persons as these, whose names and residence might have been obtained, and especially those wdiose names were known in a general way, to be made parties under the designation of unknown heirs. Wellington v. Her-mans, 110 Ill. 564. Another objection is that no summons wras issued for' the unknown parties.

The section seven referred to, in express terms provides that “ process shall issue against all such parties by the names and description given as aforesaid.”

As the whole proceeding is statutory, the requirements of the statute must be substantially complied with, and where this is not done, the court gets no jurisdiction of the parties and its decree will not bind them.

Had they been properly brought within the jurisdiction the decree would have been conclusive against them if not set aside, and in collateral proceedings they could not complain of errors and irregularities in the record subsequent to the service.

It is, of course, a general rule that errors not.affecting the appellant can not be urged by him, but this is not of that character.

He has the right to insist upon such a decree as will protect him against subsequent claimants, and he may well ask that before he is required to pay this money, all persons who have a right to it or to any part of it, shall he brought regularly into court.

For this error the decree will be reversed and the cause remanded.

jReversed and remanded.