text:
    City of Bloomington v. Linus Graves.

      Municipal Corporations — Excavation and Obstruction of Street- — Penalty under Ordinance — Possession—Evidence.
    1. In a prosecution under an ordinance by a municipal corporation to recover a penalty for excavating and obstructing a street, wherein the plaintiff’s claim rests solely upon the extent of actual possession shown, its proof of such possession of the strip of ground in question is not so convincing as to require the reversal of the judgment for the defendant.
    2. In such cases title deeds, maps and plate are admissible in evidence to show the extent of the defendant’s possession, but not to show the title which is not involved.
    [Opinion filed May 25, 1888.]

      Appeal from the County Court of McLean County; the Hon. C. D. Myers, Judge, presiding.
    Mr. A. E. DeMange, for appellant.
    If the city was in such possession of the street, no matter whether that part of it sought to be taken by appellee was legally a part of it or not, it was bound to keep the whole street clear of obstructions and in a safe condition for public travel, aud would have been liable for all damages caused by the excavations or obstructions placed there by appellee. Dillon on Munic. Corp. (3d Ed.), Vol. 2, Sec. 1009, and cases cited.
    Such a liability certainly implies the corresponding right to protect such possession with all the police power at its command. City of Chicago v. Wright, 69 Ill. 322.
    In addition to its police power it seems clear that its possessory rights must be equally as strong as those of a natural pei'son, upon whom no public duty rests. City of Chicago v. Wright, supra.

    It also seems clear that when the burden of liability is imposed on municipal corporations for all damages caused by obstructions on ground in their possession used as public streets, that in prosecutions like this, for placing such obstructions thereon, such corporations should be protected by the same rules of evidence as pertain to actions of forcible entry between individuals.
    In such cases the law is well established that the defendant can not interpose evidence of title in defense. Dillon on Munic. Corp. (3d Ed.), Vol. 2, Sec. 639; McCartney v. McMullin, 38 Ill. 237; Smith v. Hoag, 45 Ill. 250; Thompson v. Sornberger, 59 Ill. 326; Doty v. Burdick, 83 Ill. 475.
    Messrs. Fifer & Phillips and Mr. E. M. Prince, for appellee.
    Title deeds may be read in evidence in actions of forcible entry and detainer for the purpose of showing the extent of possession; and proof of boundaries is competent for the same purpose. Brooks v. Bruyn, 18 Ill. 539; Huftalin v. Misner, 70 Ill. 205; Pearson v. Herr, 53 Ill. 144.

      If the city, instead of prosecuting Graves under its ordinances for a penalty, had brought its action of forcible entry and detainer for an invasion of its possession, which would, we concede, raise the same legal question, it would then be incum-* bent on the city (it having no paper title covering the place) to show an actual possession of the place Avhere Graves put the obstruction, and a mere constructive possession would not be sufficient. Thompson v. Sornberger, 59 Ill. 326; McCartney v. McMullen, 38 Ill. 237.
    ' “If a party does not make the entry under a paper title, his possession is adverse only to the portion actually occupied. * "x" * But where a party enters under a conveyance of a single tract of land, his actual occupation of a part, with a claim of title to the whole, Avill inure as a possession of the entire tract. In such case the possession is regarded as coextensive with the description in the deed.” Turney v. Chamberlin, 15 Ill. 271; Dills v. Hubbard, 21 Ill. 328.
    The same principle of law applies in determining what manner of possession Avill sustain an action of trespass, which this action against Graves virtually is. If one oavus 160 acres of land in a body, holding a deed therefor, his actual possession of forty acres of the land under his deed, Avill, if the- other three forties are unoccupied and vacant, draAv to him the possession, in law, of the whole. Whitford v. Drexel, 118 Ill. 600.
    But if the party has no deed to the 160 acres, then he could only sustain an action of trespass to the part of Avl'iich he shows himself in actual possession. I. C. R. R. Co. v. I. & I. C. Ry. Co., 85 Ill. 211; C. & N. W. Ry. Co. v. Hoag, 90 Ill. 339.
   Pleasants, J.

Appellee had charge of the grounds of the cemetery association, which lie north of and adjoining Lincoln street in the city of Bloomington. Having dug a line, of post holes and begun to erect a fence six or seven feet south of the old south fence which had been standing for about eighteen years, he Avas fined by the police magistrate, on a complaint under the ordinance, for excavating and obstructing “ a public street” of said city without permission. On appeal to the County Court the verdict was for the defendant in each of two trials, on the last of which judgment was entered, and from that judgment this appeal is prosecuted.

Appellant relied wholly on alleged actual possession up to the old fence. It claimed that these post holes were dug in a gutter cut by the city, in grading up the street, at a proper distance from the fence to admit of a sidewalk of the usual width between them, and that this strip was so used, though no artificial walk had been laid thereon.

Appellee claimed they were not in the gutter, but north of it, though very close, and that the gutter was the limit of the city’s actual possession.

The proof of actual possession of this strip by the city, apart from the fact that people passed over it, is to our minds by no means convincing. Several witnesses say, in general terms, it did some grading there for a sidewalk, but none of them identify the persons who did it, and the only work specified was a little filling at a low point where a box culvert crossed the street, which appellee and his hired man say they did, and with a view to making a fence. One says it dug out some stumps, but on cross-examination admits he did not see it done, and does not know it was done under direction of the city. Some of appellant’s witnesses testified that nothing was done on it; that it was as nature left it. Defendant testified that he had been in charge of the cemetery grounds ever since 1861, and had known Lincoln street from the time it was. first laid out; that the first fence on the south side of the cemetery was built in 1831 or 1832; that it was a few feet south of the present fence at its west end; that its location was changed in 1889 under his direction, and that the city never did any work upon the strip in question. That for many years persons and animals had passed over it as they had occasion, and so had made a narrow, crooked path thereon, was proved and admitted; but appellant made no claim of dedication or estoppel against the association, and defendant insisted that this use was made of it only because the land south of the cemetery was all open, and the part along the fence was the higher and better pathway in muddy times. In the summer of 1884, or between that time and the commencement of this suit, the city had put in cinders and laid a brick walk on the south side of the street, since which time passage over this strip has been almost entirely discontinued.

It is said it was “ left for a sidewalk; ” that the street was' graded up and the gutter cut with reference to ” that use of it. But we apprehend the city could not acquire actual possession of it by leaving it for any purpose, or by any dealing with other land with whatever reference to this. And we think that upon all the oral testimony on the subject the jury might well have believed that the city never did any work upon it, and that under the conditions shown, the use made of it as a passage way would have been just the same if there had been no street nor any pretense of one including it.

Besides the oral evidence, however, appellee was permitted, over objection, to introduce certain maps and plats in connec-' tion with the testimony of surveyors, to prove that according to the recorded and accepted plat of the city the north line of Lincoln street along the cemetery grounds was the half section line, which was also the south boundary of those grounds, and that the gutter spoken of was on that line.

From these it wrould appear that J. E. McClan formerly owned the land immediately west, and extending south, and also that immediately south of the cemetery; that his second addition to Bloomington was laid out in 1858, on the land west and extending south, with Lincoln street fifty feet in width, and having its north line north of the half section line; that in 1869 he laid out his third addition on the land immediately south of the cemetery, through which Lincoln street was continued east, of the same width, but with its north line coincident with the half section line, thus making a jog at the southwest corner of these grounds; and that the gutter mentioned is on that line.

The admission of this evidence and the instruction given to the jury in reference to it are the principal errors here alleged.

In an action of trespass guare clausum fregit or of forcible entry and detainer, to .which this is likened, the question of title, as such, is not involved, bat only that of possession.

Where the land is entirely vacant at the time of the alleged trespass or forcible entry, either party may introduce his title papers, because in such case title draws to it a constructive possession; and so also where it is actually occupied in part, the party so occupying may introduce them, because in such case they fix by conclusive presumption the extent of his actual possession, which in either case is sufficient for all the purposes of the action. But where the plaintiff rests his chum of right solely upon actual possession, it will be established only to the extent of such possession shown, without the aid of presumption from title; and therefore the introduction of his title papers by the defendant would be useless and improper. If there is no evidence tending to show it, there is nothing for him to overcome. If there is any, his title papers —serving in any case to show only constructive possession, or by presumption the extent of his actual possession — -would have no tendency to overcome it; for there can be no constructive, or presumptively actual possession where there is in fact actual possession. All this is too well settled and known to require the citation of any authority.

But it will be observed that in this case the defendant did not introduce his own title papers. It was conceded on the one hand that the cemetery association owned the land next north of the street, wherever the dividing line might be, and on the other that the street included whatever was actually occupied as such without regard to paper title. The question made was not one of title, or of constructive or presumptively actual possession, but of the location and extent of what was in fact actually occupied as a street.

It is to be further observed that the case is somewhat peculiar if not exceptional. As already stated, the actual possession to he proved by the appellant was of a participar and limited bind, or for a particular and limited purpose, as a street. This might be shown, not only as in other cases by any work done on the land by the city, but also, as not in others, by the mere passage over it of those who, as between these parties, were third persons, without explanation; and although evidence of the latter kind might he wreab from the infrequency of such passages or from the uncertainty whether the passers so used it as of public right or only because it was open, convenient and unforbidden ground, it would still be admissible for what the jury might consider it worth, and would be hard to explain. Being unnamed, it would be impossible for the defendant to produce all such persons and show by them directly how they regarded and used it.

He must, therefore, allow the fact to go without explanation or resort to other evidence for that purpose. Any circumstance which of itself or in connection with others in evidence would tend to show they did not consider it a street or use it as of public right, would be competent.

Then if it appeared that until the street was improved as at the commencement of this suit, all the land south of the cemetery fence was open and passed over by all who saw fit; that the part next to the fence was naturally better adapted to such use than the other; tliat the city had worked up to and including the north gutter, but no further, although there was no material obstacle to prevent, and had laid a brick sidewalk south of the other, it seems to us the fact that the north gutter was the boundary in that direction of the street as platted, would tend to characterize the use shown to have been made of the strip in question and rebut the effect of it as evidence that the strip was actually occupied as part of the street. It would more fully and clearly expose the situation with reference to this question, and yet without introducing the element of title; for its effect would be the same if the city owned the land, since the complaint here is not for trespass upon its land, but for excavating and obstructing its street. Having in fact a title of record, the city should not be allowed, by wilfully ignoring it, to deprive the defendant of the benefit of the evidence of its location and limits as fixed by its own deed. These would throw some light upon the character of the tise made by individuals of adjoining open land.

The jury were fully advised by instructions on both sides that title was not involved and its determination should not influence their verdict; that the plats were to be considered only as bearing, in connection with the other evidence, upon the extent or limit of the city’s actual possession for the purposes of a street. This issue has been twice found for the appellee, and we see no such error in the record as would require a reversal of the judgment. It will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Wall, J.

license: Public Domain

text:
    Harriet Chaney v. The Home, Frontier and Foreign Missionary Society of the United Brethren in Christ.

      Wills — Construction—Joinder of Wife — Sec. 2, Chap. 148, R. S. — Evidence — -Res Gestes.
    1. A will signed by’a husband and wife, the latter signing merely to show her consent to .the disposition of property thereby made, is the will of the husband alone.
    2. In making the proof required to establish the validity of a will, it is proper to show all that transpired at the time of its execution. The acts and declarations of the parties participating are admissible as of the res gestee.

    [Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of Coles County; the Hon. ' James F. Hughes, Judge, presiding.
    Messrs. F. K. Dura and S. M.. Leitch, for appellant.
    Mr. Horace S. Clark, for appellee.
   Wall, J.

The appellee presented to the County Court for probate, as the last will of Samuel liix, deceased, the following .instrument in writing:

“ Charleston, Ill., August 14, 1885.

We give and bequeath to the Home, Frontier and Foreign Missionary Society of the United Brethren in Christ, organized by the general conference of said church, May 20, 1853, and incorporated in Butler county, Ohio, September 23, 1854, the sum of one thousand dollars ($1,000), and the receipt of the treasurer of the society shall be a sufficient discharge thereof to my executors and administrators.

Samuel Bix,

“Attest: i “Elizabeth Bix.”

“ Samuel Mills,

Iter

“ Elizabeth N. H Brown.”

mark.

Probate was refused by the County Court and an appeal was taken to the Circuit Court, where, at the hearing, it was admitted by the parties (and the admission was taken in lieu of the formal proof) that the said Samuel Mills and Elizabeth Brown would each testify that said Samuel Bix signed the writing in their presence on the 14th day of August, 1885, he then being of full age and of sound mind and memory and under no constraint, and that they attested the writing at his request and in his presence, and in the presence of each other. It was also admitted that the said Samuel Bix and his wife, Elizabeth Bix, whose name is signed under his, were members of the. church of the United Brethren in Christ; that they had no children; that Samuel died in August, 1886, leaving as his only heirs, his wife, Elizabeth, and liis sister, Harriet Chaney, the appellant, leaving property, real and personal, worth $4,000. and that said Elizabeth had no property of her own. It was further admitted in lieu of formal proof, that said Elizabeth and the attesting witnesses, Mills and Brown, would testify that she, the said Elizabeth, signed said wilting at the time it was signed by the said Samuel at his request, for the purpose of showing her willingness that he should make the bequest, and that she signed it for no other purpose. Tin's evidence was objected to by the appellant, but was admitted by the court, and upon consideration of the facts it was found by the court that the writing produced was the last will and testament of the said Samuel Bix, and the same was admitted to probate accordingly.

The record is brought to this court by the appellant and error is assigned upon the ruling and judgment of the Circuit Court.

By our Statute of Wills, Chap. 148, Sec. 2, it is provided that all wills, testaments and codicils, whereby any property, real or personal, is devised, shall be reduced to writing and signed by the testator or by some person in his presence and by his direction, and attested in the presence of the testator, by two or more witnesses, two or more of whom dec’aring on oath or affirmation that they were present and saw the testator sign the same in their presence, or that he acknowledged the same to be his act and deed, and that they believed him to be of sound mind and memory at the time of signing or acknowledging, shall be sufficient proof of the execution of the instrument to admit the same to record.

The mere production of the paper with the signature of the testator is not enough. The witness must attest in the presence of the testator, and the will must have been signed by him or acknowledged to be his act and deed in their presence. These proofs are necessary to establish the validity of the will. In making this necessary proof, all that transpired on the occasion may properly be shown as part of the res gestes. This will, of course, include the act and declaration of every person who participated in what was there done, and inevitably, the true relation of every such person will be made known. It will thus be ascertained who was the testator whose act and deed is the paper produced.

In this case it appeared that the deceased, Samuel Bix, executed the will in the presence of the two witnesses, and that they thereupon attested in his presence, and, while the name of his wife Elizabeth was also subscribed, it was not done in execution of the paper, nor did they attest as to her signature. On the contrary, it appears as part of the res gestes that there was no purpose or intention on her part to sign as a testator. We see no difficulty in the admission of the proof, and it being admitted, the conclusion reached by the court was unavoidable.

It thus clearly appeared that the instrument was executed by Samuel Bix and by no one else. There is nothing in this to contradict or impair the terms of a writing by parol. It is simply this: that in making the necessary proof as to execution of the paper, it is shown by competent evidence that Samuel Rix alone made the will.

It is unnecessary to consider the question discussed by counsel, whether two or more persons may make a joint will, or what would be the effect of such a will, or how it should be proved. 1 Hedfield on Wills, 182. Nor is it necessary to support the position by reference to the supposed analogy of cases where it is competent to prove that one of several joint makers of an obligation is a surety merely, or of cases where it is competent to show that one signing in a representative capacity intended to bind, not himself, but the body or corporation represented by him. La Salle Nat. Bank v. Tolu, etc., Co., 14 Ill. App. 141.

The judgment of the Circuit Court will be affirmed.

Judgment affirmed.


author: Conger, P. J.

text:
    John Meister v. Nicholas Lang.

      Real Property — Injury Caused by Water — Gutter—“ Ordinary Rain"— Instructions.

    1. In an a'tion on the case, brought to recover damages caused by the overflow of water from a gutter on the defendant’s buildings, this court declines to interfere with a second verdict for the defendant, the verdict being supported by the evidence and there being no error in the instructions.
    2. Ordinary rains are all such, whether heavy or light, as are usual and always to be expected in certain seasons, annually.
    [Opinion filed May 25, 1888.]
    In ebeoe to the Circuit Court of Logan County; the Hon. George W. Hebdman, Judge, presiding.

      Messrs. Beagh & IIodnett, for plaintiff in error.
    Messrs. Bunn & IIoblit, for defendant in error.
   Conger, P. J.

This was an action on the case brought bv plaintiff in error against defendant in error for damages caused, as it is alleged in the declaration, by defendant in error allowing the gutters upon his building to he out of order, thereby allowing the water to drip near to and against plaintiff in error’s brick building and injuring the walls.

Upon the merits of the controversy two juries pave found adversely to the claim of plaintiff in error, and we can not say that their finding is hot supported by the evidence.

It is insisted that it was error to give the following instruction:

“For defendant the court instructs the jury that the law does not require the owner of a building to keep and maintain a gutter that will always, under all circumstances, carry off the water. If the jury believe from the evidence that the gutter on Lang’s building was sufficient to carry off the water that would fall on the roof of Lang’s building in the usual and ordinary rainstorms, that would be a compliance with the law.”

By ordinary rains are meant all usual and always to he expected rains, in certain seasons in each and every year; and by extraordinary rains, such as do not occur, nor are reasonably to be expected, annually. McDoy v. Danby, 20 Pa. St. 85; Bell v. McClintock, 9 Watts, 119; Sprague v. City of Worcester, 13 Gray 193; Ill. Cent. R. R. Co. v. Bethel, 11 Ill. App. 23.

This instruction is criticised as being misleading because it did not define what an ordinary rain was: and counsel say that heavy rains were those spoken of by the witnesses as causing the damage.

All rains, whether heavy or light, that may reasonably he expected to fall at certain seasons, would clearly come within the language and meaning of the instruction. If plaintiff in error desired the jury to have a legal definition of ordinary and extraordinary rains, it was his privilege to ask for it; and because he did not, we see no reason why the court should not use the word ordinary, in the instruction complained of, without stopping to define its meaning.

The judgment of the Circuit Court will he affirmed.

Judgment affirmed.


text:
    Henry J. Houston et al. v. Corben B. Workman.

      Trust Deed — Foreclosure-Statute of Limitations — Sec. 11, Act of 1872 —Death of Grantor — Partition and Sale — Privity—Practice—Demurrer.
    1. Sec. II of the statute of limitations of 1872, prohibiting foreclosure of a mortgage or trust deed, unless within ten years after the cause of action accrues, is construed with reference to Sec. 16 of the same act, which provides for extensions by means of payment or new promise. The right of foreclosure extends until the indebtedness secured is barred.
    2. A purchaser of land under a decree of partition and sale, procured bv the widow and children of the maker of a trust deed, may avail himself of the defense of the statute of limitations in foreclosure proceedings.
    8. Where it appears on the face of the bill that the debt secured is barred by the statute of limitations, advantage may be taken of the bar on demurrer.
    [Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of Schuyler County; the Hon. William Marsh, Judge, presiding.
    Mr. John S. Winter, for appellants.
    Messrs. W. L. Yandeventer and S. B. Montgomery, for appellee.
   Conger, P. J.

This was a bill in chancery filed by appellants against appellee to foreclose a deed of trust. The principal facts as shown by the bill are, that on December 10, 1873, one Hartwell Lancaster executed a note for 8316.29, payable twelve months after date, to one Dray, and upon the same day Lancaster and his wife executed to one John G. Bag by as trustee, the trust deed in question upon certain real estate, to secure the note aforesaid. The note was afterward assigned by Dray to said Bagby, and by him to appellant Houston.

The trust deed also passed with such assignment, as security for the note.

That at various times after the maturity of the note, begining March 10, 1875, and continuing from time to time thereafter until December 28, 1882, said Lancaster made partial payments upon said note. That Lancaster died intestate on June 22, 1884, leaving his wife and five children surviving him as his heirs at law. That at the October term, 1886, in the Circuit Court of Schuyler county, the widow and heirs procured a decree of partition and sale under which, on the 10th day of January, 1887, the said real estate was sold, and appellee Workman became the purchaser, and received a deed therefor.

The bill concludes with a prayer for a foreclosure of such trust deed, unless the amount due upon said note is paid. The bill was filed September 22, 1887.

To this bill a demurrer, both general and special, was interposed, the special cause alleged being that the right of foreclosure was barred by virtue of Sec. 11 of the Limitation Act of 1872, which demurrer was sustained by the court, and a decree entered dismissing the bill.

That appellee as a purchaser was in such privity to the maker of the trust deed that he could avail himself of the defense of the statute of limitations, is clear. Wood on Limitations, p. 79.

He could also properly raise the question by demurrer to the bill, when the facts showing the bar appear on the face of the bill. Ilett v. Collins. 103 Ill. 74.

The decision upon the demurrer involves the construction of Sec. 11 of the Limitation Act of 1872, and as the opinion of the Supreme Court in the case of Schifferstein v. Allison, reported in the N. E. Reporter of March 9, 1888, page 275, is upon this precise point, it is only necessary to say that accorffing to the doctrine therein announced, the ruling of the Circuit Court was erroneous and the decree of that court will therefore be reversed and the cat~se remanded.

Reversed an~d reQnctncled.


text:
    W. F. Hoyle v. B. F. Warfield.
    ffusband and Wife-Liability for Family Expenses-Sec. 15, Chap. 68 R. S.
    Where two persons live together as husband anct wife and are recognized and treated as such, the reputed husband is liable for family supylies, although the credit was extended to the reputed wife.
    [Opinion filed May 25, 1888.]
    IN Error to the County Court of Logan County; the Hon. J. T. Hoblit, Judge, presiding.
    Mr. S. L. WALLAOE~ for plaintiff in error.
    Mr. A. D. OADWALLADEn, for defendant in error,
   Conger, P. J.

Appellee furnished one who passed as the wife of appellant, groceries to be used in appellant's family to the extent of $22.95. The principal ground of defense relied upon is that, at the time the goods were purchased, there was a special contract between appehlee and the supposed wife that they were to be charged to her. Upon this question the evidence is conflicting, but conceding that appellant's theory is the true one, we do not think it relieves him from liability.

The parties were living together as husband and wife and were recognized and treated as such in the community where they lived; and as to all who furnish them the necessaries of life which come under the head of family expenses, under the belief that such relation existed, when such belief is justified by the conduct of the parties, as it clearly was in this case, we think the provisions of See. 15 of Chap. 68, R. S., apply.

That section provides that “the expenses of the family * * shall he chargeable upon the property of both husband and wife, or of either of them, in favor of creditors therefor, and in relation thereto they may be sued jointly or separately.”

Under the provisions of this section we think it makes no difference to which of the parties the credit is originally given; they are both liable.

In Smedly v. Felt, 41 Iowa, 591, the court say: “Can a party, who does in fact sell an article within the contemplation of these sections, to the husband, upon his individual credit, and receives his note therefor, afterward maintain an action against the wife?” And they answer the question in the affirmative.

We think the judgment below was right and it will he affirmed.

Judgment affirmed.


text:
    Trustees of Lincoln University v. Lapsley C. Hepley.

      Endowment Fund — Note—Evidence—Character of Educational Insfiaition — Instructions.
    1. In an action brought upon an endowment, fund note given for the benefit of an educational institution, it is held: That the struggling condition of the institution and its failure to take the position expected, constitute no defense; and that the attempt to show a failure of consideration failed.
    2. An instruction having no substantial basis in the evidence is improper.

      [Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of Coles County; the Hon. James F. Hughes, Judge, presiding.
    Messrs. Wiley & Heal, for appellant.
    If the party making the promise gets nothing, or receives no benefit, then he will not he convinced that there can be any consideration. Tet, as a matter of fact and of law, it is perfectly well settled that there may he a good consideration for a promise without any benefit accruing to promisor, and I know of no better illustration of such consideration than the case at bar. Colleges, seminaries and churches all over this land are built and maintained by voluntary contributions, ánd there is no proposition more firmly established than that where money is expended or liabilities incurred upon the faith of such promise to donate, such expenditure of money or incurring of liability constitutes a good consideration for the promise to give. Griswold v. Trustees of Peoria University, 26 Ill. 41; Pryor et al. v. Cain, 25 Ill. 292; Trustees of M. E. Church of Indianapolis v. Garvey, 53 Ill. 401; Trustees of Kentucky Baptist Educational Society v. Carter, 72 Ill. 247.
    Messrs. Chakles Behhett and J. W. Ckaig, for apjiellee.
   Wall, J.

This suit was brought by appellant against the appellee upon the following instrument in writing:

“Lincoln UravEnsiTY Endowment Fund Hote.

“ Lincoln, Ill., October 23, 1874.

l£ I, L. C. Henley, of the county of Coles and State of Illinois, do bind myself, my heirs, executors and administrators, to pay to the Trustees of Lincoln University at the office of their treasurer in Lincoln, Illinois, the sum of one hundred dollars in ten annual payments of ten dollars, on the first day of October of each year hereafter, three-fifths of which shall become a part of the permanent endowment fund of said university; two-fifths may be appropriated to such other purposes as the interests of the University may require, with interest on each payment after maturity at the rate of ten per cent, per annum. The payment of this note, or the lifting of the same by a ten per cent, interest-bearing note, will entitle the giver to a one hundred dollar scholarship in said University.

66 L. 0. IIekley.55 [seal.]

A trial by jury in the Circuit Court resulted in a verdict for appellee, and a motion for new trial having been overruled, judgment was rendered against appellant for costs. The record is brought to this court, and errors are assigned upon various rulings of the Circuit Court, in the admission of evidence, the giving and refusing of instructions, and in refusing a new trial. The appellee was permitted to testify that he was induced to sign the instrument by reason of the solicitations of Mr. Crider, a minister, who, representing the institution and urging the importance of a school in the interest of the church, stated that it was the intention to build up one of the best institutions of the country for the education of church people and others who might go there.

He further testified that he was afterward told by the president of the board that, a while it was a very good school, it had not reputation enough to prepare a young man for professional study, or that if he was intending that his son should study for a profession, he would send him elsewhere.”

In rebuttal it was proved by appellant that the instrument sued on, with many others like it, had been accepted by the institution and had been made thé basis of various liabilities incurred in conducting the school. The interest on all endowment fund notes was carried on the books as an interest fund and was devoted to the payment of salaries due to the faculty.

There had been failures to collect interest on other notes and corresponding failures to meet the liabilities of the institution.

It is probable that the school was not very successful financially or in point of attendance, and that it was in the struggling condition of many such institutions when dependent upon a small and uncertain endowment, but there is no doubt that there was an honest effort to carry out the design of its founders and all those interested in its welfare, and to build up a useful agency of education under the auspices of the church to which appellee was attached, and it is apparent that many substantial liabilities were incurred and much important work was done upon the faith of this and similar subscriptions.

In such cases it is the settled rule in this State that the suheription may be enforced. Trustees Baptist Education Society v. Carter, 72 Ill. 247, and cases there cited. In this instance there was the additional consideration of a scholarship to which appellee was entitled and there can be no question that the undertaking was binding upon him.

The effort to show a failure of consideration because of the character of the school, was not successful. There was no warranty that any particular standard of excellence or reputation should be reached. It was proposed and intended, no doubt, to attain as much as possible in these respects, but of course this -would depend mainly on the support and patronage received, and the prompt payment of promised aid. Without money there eouhl he no rapid development, and so it was highly necessary that all who subscribed should meet their obligations as they matured.

The defense suggested is without merit and there was not sufficient evidence upon which to predicate the following instruction, given at the instance of the appellee:

c‘The court instructs the jury that, if they believe from the evidence that at the time of the execution of the note in controversy the plaintiff or its agent represented to the defendant, Henley, as a material inducement to sign said note, that the plaintiff had established or would establish or build up) a first class institution of learning, and if the jury believe that such representation was the material inducement that caused said Henley to sign said note, and if the jury believe from the evidence that the plaintiff has substantially failed to make good such representation, then the phaintiff can not recover.”

For this, and for the refusal to grant a new trial, the judgment will be reversed and the cause remanded.

Reversed and remanded.


author: Pleasants, J.

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    William F. Walters v. Anna Walters.

      Fraudulent Conveyances — Collusion—Creditor's Bill — Claim for Personal Services — Judgment by Default — Secret Trust.

    1. Upon a creditor’s bill to set aside a conveyance made without consideration. as fraudulent, clear proof to impeach the judgment on which the proceeding is based for fraud, is required. Mere suspicion because of the amount of the judgment is insufficient.
    2. In the case presented, it being sought to subject the lands conveyed to a judgment obtained three years thereafter, chiefly for personal services covering many years, the conveyance in question having been made without consideration to defeat a claim that was apprehended but never asserted, and in secret trust for the benefit of the grantor, this court declines to interfere with the decree for the complainant, the evidence being in uffieient to show collusion, or that the judgment is excessive.
    [Opinion filed May 25, 1888.]
    In error to the Circuit Court of Sangamon County; the Hon. J. A. Creighton, Judge, presiding.
    Messrs. John M. and John Mato Parmer, for plaintiff in error.
    The conveyance made by Pollard Keen Walters to the defendant below is valid as between the parties, whether supported by a consideration or not. The complainant below attacks it in her alleged character of creditor. In order to her success, it must appear from the evidence that she is a creditor of the grantor under whom the defendant claims, and was so at the time of the execution of the deed.
    A fraudulent deed is conclusive as to the grantor and his heirs. Horner v. Zimmerman, 45 Ill. 14; Lyon v. Robbins, 46 Ill. 276.
    To impeach a voluntary conveyance successfully, it lies upon the complainant to aver and prove that he was a creditor at the time the conveyance was made. Moritz v. Hoffman, 35 Ill. 553; Merrell v. Johnson, 96 Ill. 231.

      We have said that the complainant below attacks the deed in her alleged character as creditor; but it will he seen, upon examination, that the bill contains no averment of the date of the account, or of the nature or amount of her alleged demands against Pollard K. Walters. The only averment of the bill which refers to the existence of the claim is, “that on the 16th day of Hay, 1882, after the greater amount of the indebtedness upon which the judgment was rendered had accrued, the said Pollard K Walters made a pretended conveyance,” etc.
    The averment quoted, whatever other meaning it may have, contains a distinct admission that some part of the indebtedness for which the judgment was rendered, accrued after the date of the conveyance under which defendant claims.
    Referring to the rule which makes it necessary, in order to impeach a voluntary conveyance, to aver and prove that the complainant was a creditor at the time the conveyance was made, it seems to us that the averments of this bill are not only insufficient, but the one found in the hill makes it absolutely impossible that the decree of. the court below should be sustained. If the bill precisely averred an amount to be due at the date of the defendant’s deed, the deed could only he held void as to the amount due.
    A deed, even if made to defraud, hinder or delay creditors, is, in the contemplation of the statute, void as to creditors who were such at the time of the execution of the deed, but not as to subsequent creditors. Ward v. Enders, 29 Ill. 519. And the authorities are numerous in support of the rule, that a creditor who blends in one suit debts accruing before and after a conveyance alleged to be fraudulent, and who recovers a judgment for the whole demand, will be regarded as a subsequent creditor. Usher v. Hazeltine, 5 Me. 471; 17 Am. Dec. 254; Miller v. Miller, 23 Me. 22; 39 Am. Dec. 597 and note; Reed v. Woodman, 4 Me. 100; Moritz v. Hoffman, 35 Ill. 553.
    Messrs. Pattost & Hamilton, for defendant in error.
    “In cases where fraud is established, the creditor does not claim through the debtor, hut adversely to him, and by a paramount title which overreaches and annuls the fraudulent conveyance or judgment by which the debtor himself would be estopped.” Waite’s Fraudulent Conveyances, Sec. 74.
    When the conveyance is to hinder and defraud creditors, it is void as against existing and subsequent creditors. Getzler v. Saroni, 18 Ill. 511; Morrill v. Kilner, 113 Ill. 318.
    When a conveyance is merely colorable and a secret trust and confidence exist for the benefit of the grantor, it is void as against both pre-existing and subsequent creditors. Jones v. King, 86 Ill. 225; Annis v. Bonar, 86 Ill. 128; Moore v. Woods, 100 Ill. 451; Gordon v. Reynolds, 114 Ill. 118; Lawson v. Funk, 108 Ill. 502; Bump’s Fraudulent Conveyances, Sec. 319; Mitchell v. Sawyer, 115 Ill. 650.
    The grantee of a voluntary or fraudulent conveyance may show the judgment was fraudulently obtained, or that the debt has been paid, but the right to impeach the judgment does not extend so far as to give him the right to re-try an issue which has been litigated and determined between the parties in accordance with the forms and principles of law. Bump’s Fraudulent Conveyances, 540; Sidensparker v. Sidensparker, 52 Me. 481; Ferguson v. Kummler, 11 Minn. 104.
    lie can not defend on the ground that the debtor might have interposed a good defense against the judgment had he chosen to assert it. Dewey v. Moyer, 9 Hun, 479.
    “A court of equity can not and ought not to take upon itself to enter anew into the merits of the case. It is bound to presume that all things have been rightfully done.” Story’s Eq. Pl., Sec. 782.
   Pleasants, J.

This was a creditor’s bill filed by Anna Walters July 18, 1885, to set aside a deed of May 10, 1882, from Pollard K. Walters to his brother, the plaintiff in error, and subject tlie lands therein described to her judgment against the grantor, of June 18, 1885, for §10,000.

Pollard was defaulted, and on the pleadings and proofs as to William F., a decree was entered setting aside said deed. Though prior .to her judgment, she charged that it was executed “ after the greater part of the indebtedness on which it was rendered had accrued,” which is deemed a sufficient averment that she was at the time a creditor of the grantor. The bill went further, however, and charged that it was “ not real, but a sham, made with the intention of defrauding ” complainant and his other creditors; and in Jones v. King, 86 Ill. 229, the court said: “We understand the rule to be settled that where the conveyance is colorable merely, and a secret trust and confidence exists for the benefit of the grantor, the conveyance will be held void both as against precedent and subsequent creditors.” In Gordon v. Reynolds, 114 Ill. 127, also expressly distinguishing such a conveyance from those held to be fraudulent only against existing creditors, the language above quoted is repeated and approved. The descriptions in the bill and in the opinion cited are substantially equivalent.

It sufficiently appears that this deed was made without valuable consideration, to defeat claims that were apprehended but never asserted, and in secret trust for the benefit of the grantor, and that he had not then and has not now any other property subject to execution.

But it is said Mrs. Walters can not complain, because her judgment is no less tainted; that it was obtained upon a purely fictitious claim, by collusion and for a fraudulent purpose; and furthermore that the deed was made upon her advice or with her consent.

It was a judgment by default, and the damages were assessed by the court upon the testimony of five or six witnesses, who testified in this case also, and to the following effect:

Twenty-one or two years before, she came, a stranger, from Missouri, to the house of Pollard K. Walters, a bachelor, with whom were living his mother, an invalid sister and a younger brother, and entered upon what has been the work of her life ever since, (save the time of a few visits to her daughter in Nebraska, the longest of which was five or six months,) and which is supposed to be the foundation and principal part of her claim.

It consisted of both management and manual labor, in every department within the house, and not a little without. Excepting the first few years, she was almost entirely unassisted. Pollard, having lost a leg, growing old and in impaired healths could do but little; his mother, who died about 1871 at an advanced age, was long disabled; the sister, still living on the place with him and the defendant in error, was a fleshy, heavy woman, hard of hearing, almost totally blind, and without the use of her lower limbs. The farm comprised about two hundred and thirty acres, of which nearly one hundred and sixty were under cultivation. With those conditions the cares and labors of this unaided woman may be more easily imagined than described. Her duties as nurse alone, were such as few would undertake, except, from necessity or natural affection. Many witnesses testified to her performance of them, some of whom were adverse in interest and unfriendly in feeling, yet not one made a question as to her faithfulness, efficiency or kindness. She served, besides, as housekeeper, manager, and woman of all work, including much that was properly a man’s only, and her ability in all these lines appears to have been remarkable. For all this service she had received but little, if anything, more than her living. The small sums of money she got from time to time may well have been for her use as manager, and expended for the family. Pollard says he had paid her nothing on account of her services. There was no express contract nor ever any settlement between them. But these facts are explained, in part at least, by their evident illiteracy and the expectation that she would be paid out of the land. Coming to him a stranger, as she did, she sustained no such relation as would warrant the presumption that her services were rendered gratuitously or as a member of the family. She did not become a member until about five years ago, when she was married to David, the younger brother referred to, a few weeks before his death.

She had, then, an honest claim, on which she might have had a righteous judgment and been well entitled to protection against this fraudulent conveyance.

But for how much? It appears to have been ascertained by a judgment regularly obtained. Did she and those who wore authorized to represent her, present it in good faith as to the amount?

If it was wholly or mainly for wages, it must be conceded that the sum recovered, $10,000, was extraordinarily large; even for twenty years of service, all unpaid; and if it depended upon the evidence produced in this case, exclusive of the judgment. it would be difficult, in the light of our common knowledge, to sustain it. What we all know of wages paid to hired women, even for services of the character here indicated, would discredit to some extent, in respect to their honesty or their intelligence, any opinions of the reasonable market value of hers tliat would make up that sum. The only direct evidence of their value came from the side of the plaintiff in error. Two or three of his witnesses estimated it at from one to two dollars per week. They were not entirely disinterested and unprejudiced, and from all the evidence and our common knowledge, we should think this unreasonably low.

On the part of the defendant in error it was testified, somewhat incidentally, that seven or eight years ago she loaned to Pollard Walters about §700, which she had received from David before their marriage, and Pollard himself said, generally, that he had borrowed money from her at different times, and that he justly owed her more than the amount of the judgment. But she did not attempt to re-try her claim or show the justice of the finding. She relied on the judgment itself, as sufficient of its own force. The record introduced showed a summons, proper and timely service thereof, default taken, assessment by the court on hearing evidence and final judgment for the amount assessed — all in the usual form; but not the declaration, nor the account filed with it, if any there was.

This was conclusive against Pollard and prima facie sufficient as against the plaintiff in error to establish the existence and amount of her debt. Hoi' would the mere fact, if shown, that it was erroneous as to the amount or otherwise unjust to Pollard, avail the plaintiff in error, for the reason that such fact, of itself alone, would not affect the presumption of good faith on the part of defendant in error in obtaining it Through errors of counsel, courts and juries, such judgments are constantly being obtained. He is not authorized to re-try the claim or investigate the judgment for the purpose of correcting error and injustice against Pollard. He presented no such issue, nor could he have well presented it, by his pleading. He has no equity in the land. He paid nothing for it. His deed, though valid as against Pollard, is void even as to his subsequent creditors. Against such he can not contend, lie is permitted to contend against this apparent creditor because he alleges that she is nota real creditor; that the judgment which gives her the appearance of a real creditor was collusive and fraudulent, and so no judgment at all. He must therefore show it was so erroneous, so unjust, or so obtained as to overcome the presumption of good faith in obtaining it.

The question, then, is whether there is evidence in the case of an amount and character sufficient to overcome such presumption arising from the judgment itself and the circumstances of its rendition, and it is a question not free from difficulty. This arises almost entirely from the magnitude of the amount. If it had been two or three thousand dollars, we should have little or no hesitation about it; but we can not entirely rid our minds of suspicion that some fictitious claim, some guess by witnesses as to the amount, or some fraudulent or careless admission by the defendant therein, was used to arrive at, the large amount found. And yet it is hardly more than suspicion and based as much on ignorance and assumption as on knowledge of real facts. What is known is, that though a judgment by default, it was not by confession; that the assessment was made not upon mere computation, nor upon the testimony of either party, but of a number of witnesses who seem to have had no interest in the question, and that the amount assessed was precisely that laid in the ad dammum in the writ.

What is unknown is, what were the items of plaintiff’s claim and what was the testimony of the witnesses on the assessment. It was for the plaintiff in error to make these appear if they would tend to show fraud. Gan he insist, on any rule of law or reason or logic, that the amount of the judgment shall he considered as a circumstance bearing on the question of its fairness, in the absence of all proof as to the evidence on which it was obtained? Can he ask this court to hold, abstractly, that Mrs. Walters could not have a just claim to that amount against Pollard Eh Walters? Can it be assumed or inferred from anything in this record that her claim was limited to wages for her services and §700 of money loaned? Can tlie opinion of witnesses in this case as to tlie value of her services impeach the credibility of testimony that is unknown? Can we assume that this testimony included an admission by Pollard as to the amount he owed, and further, that such admission was fraudulently made to he proved, in lien of other evidence which could not he produced of the reality and amount of her claim? And what effect shall be given to the presumption of intelligence and integrity to which the judge who heard the evidence and rendered the judgment is entitled?

On the hearing of this cause the complainant swore that she brought that suit in good faith to secure what Pollard Walters owed her, and he, that he made no defense because lie had none, and that he justly owed her all she recovered. Neither was cross-examined. There is no other creditor of Pollard to be affected by this judgment; and we think, notwithstanding suspicion, that clearer proof to impeach it for fraud should be required of the plaintiff in error, than he lias here produced.

It is not shown by a preponderance of evidence that tiie deed to him was made upon the advice or with the consent or knowledge of Mrs. Walters.

The decree of the Circuit Court will be affirmed.

Decree affirmed.


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    Nathan Yelton v. J. H. Handley.

      Divorce — Alimony — Lien upon Personal Property— Replevin — Secs„ 44, 45. Chap. 22, R. S.

      1. A covrt of equity has no power to make a decree for alimony a lien on personal property.
    2. An execution under a decree for alimony can not be levied upon personal property which has been previously sold to a third person.
    [Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of Edgar County; the Hon. C. B. Smith, Judge, presiding.
    Mr. Henry S. Tanner, for appellant.
    •There was no lien against the personal property of John W. Lewis until the execution was placed in the sheriff’s hands; plaintiff therefore bought the horse in controversy free from any lien under the decree. A decree for the payment of money only, where no other act is required to be done, can not be made a lien on personal property. Sections 44 and 45, Chap. 22, Revised Statutes; Eames v. Germania Turn Verein, 74 Ill. 54; Karnes v. Harper, 48 Ill. 527.
    Mr. Daniel B. Dechert, for appellee.
   Pleasants, J.

On the 28th or 29th of June, 1887, appellant bargained for "a horse of John W. Lewis, for $130, and on the following day took possession, without notice of any adverse claim to or lien upon it. On the 2d of July appellee, who was sheriff of the county, received an execution, issued on the same day, against said Lewis, which he levied on said horse. Thereupon appellant brought this suit in replevin to recover it,in which be failed below.

It appears that the only warrant for this writ of execution was a decree of divorce against Lewis at the March term, 1887, of the Edgar Circuit Court, awarding to the complainant therein, for alimony, the sum of $400 per annum, to be paid in equal quarterly installments on the first day of April, July, October and January, respectively, declaring it a lien therefor on the real and personal property of the defendant, and authorizing execution in default of such payment, as upon a judgment at law. It was for the second installment that the writ in question, under which appellee claimed, was issued.

The only question for our determination is whether this decree was a valid lien upon the horse in controversy. Since the statute neither itself declares nor authorizes the courts of equity to declare the lien of decrees in all possible cases, we think the lien, or the power of the court to declare it, must in every case depend upon the statute, and neither is to be ascertained or limited by reference to the general powers or practice of courts of chancery, independent of tire statute. Every decree against any party must respect real estate, or require such party to pay money, or to perform some other act, or to refrain from performing some act, one or more or all of these, and the Legislature has made express provision as to the lien of each class.

Section 44 of the chancery act, Chap. 22, R. S., of itself makes every decree for money ” a lien on the “ lands and tenements of the party against whom it is entered, to the same extent and under the same limitations as a judgment at law.”

Section 45 provides that all decrees shall be a lien on all “real estate” respecting which they shall be made; and that “ whenever, by any decree, any party to a suit in equity shall he required to perform any act other than the payment of money, or to refrain from performing any act, the court may^ in such decree, order that the same shall be a lien upon the real or persona1 estate, or both, of such party, until such decree shall be fully complied with.”

The decree here in question is for the payment of money only, and is therein ordered to be a lien for no other purpose than to secure and enforce such payment. It does not require the defendant to perform any other act or to refrain from performing any act. Thus it is of the c'ass which the statute itself expressly makes a lien on “lands and tenements,” not including “personal estate,” and is not of either class of which, and no other, the statute also expressly declares “the court may order” that it shall be a lien upon “ personal estate.”

A proper c<>nstruction<of these provisions, it seems to ns, requires the application of the rule that exjyressio unius exclusio alternes est.

We therefore hold that power to so order, in such a decree, is absolutely withheld from the court. It follows that the attempt to exercise it is something more than mere error, or mistaken action within the scope of rightful power. That portion of this decree was inoperative. The execution came to the hands of the sheriff and was issued after the title to the horse and its possession had passed to appellant. It never was a lien of itself, and it derived no force from the decree.

The judgment will be reversed and the cause remanded.

Reversed and remanded.


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    Thomas Walker v. J. F. McDonald.

      Landlord and Tenant — Parol Lease — Contract of Purchase — Distress— Attornment.

    1. Payment of rent is a sufficient attornment.
    2. In a proceeding by distress for rent alleged to be due under a parol lease, this court declines to interfere with the judgment for the plaintiff, the evidence being conflicting.
    [Opinion filed May 25, 1888.]
    Appeal from the County Court of Moultrie County; the Hon. H. A. Miner, Judge, presiding.
    Messrs. W. G. Cochran and Meeker & Jennings, for appellant.
    Messrs. Eden & Titus, for appellee.
   Pleasants, J.

Appellant was tenant of Elder under a parol lease, renewed from year to year, and commencing on the first of March, for grain rent. After he had so occupied for several years, in April, 1886, appellee contracted with the lessor to purchase the premises;'and the deed therefor was made in June and left in a bank for the grantee, who, on August 9th, got it and put it on record. Afterward he issued the distress warrant herein, which -was amended by leave of court to charge that appellant was about to sell and remove, without his consent, so much of the grain raised on the place that it would endanger his lien for rent. The proceedings thereon resulted in a judgment on verdict for appellee for 8161.80.

Appellant insists that he never attorned to appellee. "Whether Sec. 14 of Chap. 80 of the [Revised Statutes does or does not dispense with the necessity of attornment in such a case — which we do not now decide — there is evidence in the record that after notice of the conveyance by Elder, he ¡laid a portion of the rent, being the proceeds of the rent oats, to appellee, and on divers other occasions recognized his relation as landlord; and this is sufficient. Flagg v. Geltmacher, 98 Ill. 293; Hayes v. Lawver, 83 Ill. 182; Fisher v. Deering, 60 Ill. 114.

He further claimed that nothing wmuld bo due to appellee for that year because of a claim he had against Elder for improvements -made, amounting to more than the year’s rent? which Elder, before the conveyance to appellee, agreed should be retained out of the rent. His own testimony falls short of proof to that effect. He says he was owing Elder for a wagon and for borrowred money and proposed to settle, but Elder said he hadn’t time to look at the improvements and would settle for them at some future time, and that for whatever improvements appellant had put or might put on the place, he should take his pay out of the rents the coming year if he, Elder, did not pay him. He gave his note for the wagon and borrowed money and there was never any settlement between them for the improvements. His claim is also somewhat discredited by his first offering to Elder the proceeds of the rent oats, which he afterward, on being advised of the conveyance, paid to appellee. Furthermore, Elder denied the alleged agreement, and it was for the jury to determine which should be believed.

He contends, lastly, the proof failed to sustain the charge in the distress warrant-; that it showed there was in the place at the time of levy twelve hundred bushels of corn, being the full amount of the landlord’s share, and that the proceeds of the rent oats had been paid to him. He admits, however, that he claimed the right to dispose of that corn to satisfy his claim against Elder, and threatened to exercise it, Elder -having in the meantime failed in business. On all these points there was conflicting evidence, but we think the finding was warranted.

The instructions, which were numerous, are not abstracted, nor is any question made upon them. The judgment will be affirmed.

Judgmeut affirmed.


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    J. T. N. Walton and Adaline Walton v. The People of the State of Illinois.

      Criminal 'Law — Scire Facias — Forfeited, Recognisance — Surrender— Statute — Evidence.
    1. In a proceeding by scire facias on a forfeited recognizance, evidence to show that, before the forfeiture, the principal had surrendered himself to the sheriff, is admissible.
    2. Where the surrender is voluntary and by the principal, a certified copy of the recognizance is unnecessary, particularly where the sheriff, acting upon his own acquaintance with the party and his own knowledge of the circumstances, accepts the surrender.
    [Opinion tiled May 25, 1888.]
    In error to the Circuit Court of Coles County, the Hon. C. B. Smith, Judge, presiding.

      Mr. Chables Bennett, for plaintiff in error.
    Mr. S. M. Leitoii, for defendant in error.
   Wall, J.

This was a proceeding by scire facias on a forfeited recognizance. There was judgment for the people. Various errors are assigned, but the only point we deem it necessary to consider arises upon the refusal of the court to admit certain evidence offered by the appellant. That offer was to prove that before the forfeiture of the recognizance the principal had surrendered himself to the sheriff of the proper county, and that the fact was made known to the sureties. The offer was rejected, and the ruling of the court is now defended upon the ground that a surrender can not be made efficient until the sheriff shall be furnished with a certified copy of the recognizance, and that to discharge the sureties the sheriff must in writing acknowledge the surrender.

The provisions of the statute relating to the subject will be found in Div. 3, Chap. 38, R. S., as follows:

“ Section 11. In all cases of bail for the appearance of any person charged with a criminal offense his sureties, or any of them, may at any time before default upon the bond or recognizance surrender the principal in their exoneration, or the principal may surrender himself to the proper officer.
“Section 12. For the purpose of surrendering the principal, the sureties, or any of them, may arrest the .principal at any place, or may authorize any other person to make the arrest.
“ Section 13. These sureties, or any of them, may require the sheriff, coroner or any constable of the county where the principal may be found, to make the arrest within his county, by producing a certified copy of the recognizance, and in person or by agent accompanying the officer to receive the person arrested, and upon tender to such officer of like fees as are allowed for executing capias in criminal cases.
“Section 14. The surrender shall be made to the sheriff of the county where the principal is required to appear, or to the warden of the penitentiary, when so required.
“ Section 15. On such surrender, and the delivery to him of a certified copy of the recognizance, the sheriff or warden shall take such person into custody, and, by writing, acknowledge such surrender, and thereupon the sureties shall be discharged from such recognizance, upon payment of all costs occasioned by any pro eedings upon the recognizance.3’

It is not disputed that the sheriff was the “proper officer '3 to whom the surrender should he made, but it is contended that whether the surrender is voluntary, by the principal, or involuntary, and at the instance of the sureties, the mode prescribed by Secs. 13 and 15 must be followed. We are inclined to hold that when the surrender is voluntary, by the principal, there is no necessity for the certified copy of the recognizance. True, the sheriff may not know the person offering to surrender himself, or he may not know that such person has ever entered into the recognizance and may therefore decline to accept the custody so offered until the necessary facts are known; but we have no doubt that a surrender would be perfectly good in such a case if the sheriff, acting upon his own acquaintance with the party and his own knowledge of the circumstances, should accept the surrender and take the person into his custody.

To hold otherwise would be to deprive sureties of a valuable right in cases where the principal is willing to surrender himself, hut by reason of absence or other causes the sureties are not able, at the time, to furnish the certified copy or to , receive the written acknowledgment of the officer.

Section 11 contains no limitation or conditions. It declares merely that sureties may surrender the principal, or he may surrender himself.

The subsequent sections, 12, 13 and 15, are applicable where the sureties are moving for their own protection, and presumably against the will of the principal, in which case the officer should he secured against mistake by some proper and fit means; but they are not appropriate in the other case where the principal proposes to surrender himself. The judgment will be reversed and the cause remanded.

Haver sed and remanded,>


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    Ann Beers v. Leonard Myers, Administrator.

      Administration — Guardian’s Estate — Claim—Statute of Limitations— Trusts — Classification of Claims — Practice—Error without Prejudice.

    1. A trust, to be exempt from the operation of the statute of limitations, must be direct and exclusively'within the jurisdiction of equity, and the question touching it must arise between the trustee and the cestui qtie trust.

    2. A claim presented against the estate of a deceased guardian thirteen years after the claimant became of age, to charge the estate for funds, most of which were received by the deceased before his appointment as guardian, is barred by the statute of limitations.
    8. In the case presented, the trust, if any, was neither direct nor within the ex iusive jurisdiction of equity.
    4. An objection to the classification of a claim allowed against an estate can not be first raised in this court.
    5. An error without prejudice to the. appellant, is not sufficient ground for reversal.
    [Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of Vérmilion County; the Hon. C. B. Smith, Judge, presiding.
    Mr. W. It. Lawrence, for appellant.
    It is a well settled rule that the statute of limitations does not apply in case of an express continuing trust, uutil there has been some open, express denial by the trustee of the right of the cestui que trust. Hill on Trustees (2d Am. Ed.), 372, note 2 and authorities cited; Wood on Limitation of Actions, 414; Albrecht v. Wolf, 58 Ill. 189; Bond v. Lockwood, 33 Ill. 218.
    A guardian appointed upon his own application by a court, becomes, under the language of the statute and by the principles of the common law, the trustee of an express trust. His powers and duties are specifically defined by the statute. And while his control of the person of the ward ceases at majority and his right of possession of his ward’s property also ceases, yet he can not benefit by his neglect and failure to settle with his ward at. this time and be released from his trust by the court appointing him. The trust continues until such release, Schouler on Domestic ¡Relations, Sec. 321; Bond v. Lockwood 33 Ill. 218; Rev. Statutes, 1874, Chap. 64, Sec. 15; Davis v. Harkness, 1 Gilm. 180; Farman v. Brooks, 9 Pick. 212; In re Steele, 65 Ill. 322.
    Should it be urged that the relation of trustee and cestui qua trust ceased when the wmrd became of age, yet in a case very much like this, Scheel v. Eidman, 77 Ill. 301, where the wards, after majority, filed a claim against the estate of their deceased guardian for money received by him as guardian, and the statute of limitations was interposed by the administrator, the court hold that the statute of limitations did not run so long as a suit could be maintained on the bond of the guardian. In this case the cause of action could not be said to have accrued, in any view of it, until the majority of the ward, which was October 28, 1873. Her guardian died February 9, 18S6, and she filed the claim February 5, 1887. But it is said by the Supreme Court in Gilbert v. Guptil, 31 Ill. 139, that the relation of guardian and ward subsists until he has fully accounted and paid over the balance against him. This is a very just view, otherwise the guardian could acquire the right to Ms ward’s property by means of his own neglect of duty.
    It may be said that if the rule we contend for be true, then we are limited to a recovery of the amount of the bond. And this is evidently the view taken by the court below, when it gave judgment for §56. In the case of Scheel v. Eidman, above cited, the amount of the bond is not shown, yet the ward’s estate was shown to have been at date of appointment, §621, and it is presumed the bond was double this sum — §1,218 —while the amount of the judgment affirmed was §1,522. Had appellant’s claim been based upon the bond, then it is clear her recovery would have been limited to the amount of the penalty of the bond. It would have been purely a. legal action in its character, in such case, and the question of limitation could not have arisen. This remedy would have been entirely inadequate; hence the necessity to resort to equitable relief, being in the nature of a bill for an accounting, by filing a claim against the estate. And it does not lie in the month of the guardian’s administrator to say our remedy is upon a bond given by him in the inadequate sum of one-tenth of the estate of his wards, actually in his hands at the time he gave it, which he wrongfully withheld from the knowledge of the court that appointed him. As held by the Supreme Court in Davis v. Harkness, 1 Gilm. 180, one is held to account as guardian, although he did not receive the estate as the regularly appointed guardian. And this guardian in the recitals of his bond and in his oath of office, assumed to faithfully preserve the property of his ward then in his possession, and that might thereafter be received by him, and his administrator is now estopped from assuming a different position.
    But we insist that the guardian’s bond, or amount of it, cuts no figure in this case, except so far as it was one of the incidents in the creation of the character of the trust. The trust assumed by the guardian was express and direct, and one belonging exclusively to the jurisdiction of a court of equity; and in this case the question arises between the trustee’s representative and the eestui que trust, thus being within the rule approved in Hayward v. Greene, 82 Ill. 289.
    An action upon the bond, in this case, would be utterly inadequate, as already shown. And an action at law for money had and received could not be maintained because the trust is still open. In order for this action to lie there must have been a settlement of the account and balance struck. Perry on Trusts, Sec. 843; Hill on Trustees (2d Am. Ed.), 758.
    We admit that under one view of the ease the deposit of the money of the wards in a bank, at or about the time of their majority, may be a circumstance in favor of the good faith of the guardian at this time; yet it appears to have been deposited in his own name, and that he invested it in a certificate of bank stock in his own name. Ho investment of the money was made under the approval of the court as the statute provided, hence he undertook the management of the estate at his peril. McIntyre v. People, 103 Ill. 146; Hughes v. People, 111 Ill. 460; Winslow v. People, 117 Ill. 158.
    Hr. J. B. Mann, for appellee.
   Wall, J.

The appellant presented a claim against the estate of Joseph L. Shepherd, deceased, for the sum of §2,371.80, alleged to have been received by deceased as the guardian of the appellant. The County Court allowed the sum of §1,555 as a seventh-class claim, from which allowance the administrator prosecuted an appeal io the Circuit Court, where an allowance was made for the sum of §56, from which an appeal is prosecuted to this court.

On the 24th of June, 1862, the deceased was, on his petition, appointed guardian of his three infant daughters, appellant being one of them.

In said petition he stated that the three infants were entitled to property from the estate of Joseph Davis, deceased, estimated at §56, due them as heirs of their mother, then deceased, who was one of the heirs of the said Joseph Davis. He was accordingly appointed and was required to give bond and surety in the sum of §112. which was done. It does not appear that he ever made a report of his acts as guardian nor that any further order was ever made in respect to the matter by the court which so appointed him. The evidence tends to prove that the deceased, Joseph L, Shepherd, received a considerable sum of money from the proceeds of land inherited by his wife, the mother of these girls, from her father, Joseph Davis. This money was received by him at different times between the death of his wife, which occurred in 1857, and the year 1860, the last receipt being two years or more before he was appointed guardian.

The whole sum thus received was something near §1,000. Whether he then regarded this money as belonging to his children or whether he considered it his in whole or in part does not very clearly appear, but when he applied for letters of guardianship he did not seem to think it was his. Thei e is evidence, however, which tends to prove that at a later period he deposited in the bank of John C. Short & Co., of -Danville, a sum of money which at the time of the failure of the bank, in 1S73, amounted to about §2,600. This money, before and after the failure, he spoke of and referred to as “ the girls’ money.”

On one occasion, soon after the failure, he was requested by one of the girls, Elizabeth, to settle, when he said that he had lost the money belonging to her and appellant (the other sister having died without issue) in Short’s Bank; that he was working hard to accumulate the amount, and when lie did, he would put it in land and fix it so the girls could have the benefit of it when they were old ; that they were young and able to work but when they got old they would need it. He seemed to be angiy about it and Elizabeth never spoke to him on the subject aftenvard. The two girls wrere then of age. There is also some evidence, though quite unsatisfactory, as to a recognition of the same state of facts as late as 1884, some two years before his death, but the statement made by the witness is rather indefinite and leaves the impression that there is great doubt as to what was actually said — so much so that the Circuit Court evidently gave it but little weight and it is not much pressed by counsel. It appears that the deceased had married his second wife before he was appointed guardian; that by this wife he had seven children; that the appellant and her sister Elizabeth lived with him until they married, and that, when he died, in 1886, he left an estate consisting of some four hundred acres of land, the value not given, besides personal property valued at §15,000; that he was prompt in the payment of his debts and that but very few claims had been presented against his estate.

From these facts thus briefly stated it is probable he did not consider himself under any legal obligation to account for the money lost in the bank, either because he supposed he was not bound to bear the loss and make it good, or because he did not regard the money as really belonging to the girls, though no doubt intending that they should have it. It is reasonably certain that the girls knew what were his views as to this, and that the delay of nearly thirteen years after the younger one. the appellant, came of age, to press their claims, was not due to any want of information as to the facts. The question presented is, whether the claim is barred by the statute of limi tations. The Circuit Court held that it was, except as to the amount that might be recovered upon the bond, and accordingly allowed appellant $56, being one-half of the penalty of the bond. The appellee, while not admitting the propriety of this allowance, assigns no cross-error in respect thereto, and we are therefore to consider only whether the statute of limitations was properly applied to the residue of appellant’s demand.

It is insisted on behalf of appellant that this is an express 'or direct trust and not barred by the statute of limitations. To exempt a trust from the bar of the statute, it must be, first, a direct trust; second, it must be of the kind belonging exclusively to the jurisdiction of a court of equity; and third, the question must arise between the trustee and the cestui que trust. Angell on Limitations, Sec. 166; Hayward v. Gunn, 82 Ill. 385.

Angelí also says, Sec. 174, that where the trustee denies the right of the cestui que trust, he abandons his fiduciary capacity, and the statute will apply. School Directors v. School Directors, 16 Ill. App. 654.

It is not easy to determine what is the character of the trust, if there was any in this case. The money came to the hands of the deceased before he assumed the duties of a guardian, and whether he had the right to claim it as his own, in law, or whether he felt bound to pi-e-serve it for his children, he did not seem to consider it any part of the estate which he was to handle as guardian. If, then, the character of a trust is to be impressed upon it at all, it would seem to arise by operation of law, .and it would therefore belong to the classof implied trusts, and in that view the statute of limitations will be applicable. But if, as appellant argues, it is a direct trust because of the subsequent appointment as guardian, then we must hold that it is not of that cHss of trusts which belong exclusively to the jurisdiction of a court of equity.

There is no reason why the appellant might not have urged her claim in a court of law during the lifetime of her father with as much propriety as to present it for allowance against his estate after his decease. It must therefore be subject to the statute.

Again, there seems but little doubt that soon after the failure of the bank, he denied his liability in a legal sense, though admitting and avowing a purpose to make a provision, in his own way and in his own time, for the benefit of the girls. In this they seem to have acquiesced, and probably because they were conscious that they had no legal claim upon him. ■

We are impressed with the belief that in this case, as in most cases, the statute of limitations, if successfully interposed as a bar, will work no injustice. Had the claimant pressed her demand while her father was yet alive, it is to be presumed, .from what is even now disclosed, that be could have shown he was not liable. He was solvent, prompt in the payment of his debts, and no reason is apparent for withholding a valid claim until after his death.

It is urged the Circuit Court erred in not classifying the allowance made as of the sixth class.

It does not appear that the court was asked to do this, and no such ground is set out in the motion for a new trial. It should not be presented here for the first time. O. & C. R. R. Co. v. McMath, 91 Ill. 104.

We consider it not important, however. The estate is large and the claims against it are inconsiderable in amount, so that it is not material in what class the allowance is placed. II ence, if the omission were error, it should not work a reversal The judgment of the Circuit Court will be affirmed.

Judgment affirmed,.


text:
    Chicago & Alton R. R. Co. v. Catherine Kelly, Administratrix.
    Railroads-Person~Z Injuries- J?ellow_Servunts_Coji rib~ttory Neg 71-gence-Diinages-Instructioms.
    1. The question of contributory negIi~ence upon the part of an employe of a railroad cowp~tny, injurel in the course of his euip~oyui~nt, should be lift to the jury.
    2. A railroad section hand i~"not a feUow-s~rvant ol iun in charge of a construction train, unless they are together co-operating in furthering a particular business of the common master.
    3. In the case presented, the co-operation of the section hands and the crew of the construction train in placing ba1Ia~t upon the road-bad ceased when they returned to their former and separate duties.
    4. It is proper to refuse in~truc1ions which tend to mislead, or seek improperly to take a que4ion from the jury.
    5. It was not the duty o~ the court to give the jury an instruction as to what facts would constitute the etuployes of the defendant fellow-servants, there being no request of that nature..
    6. In the abs~nce of evi lenee of passion or prejudice on th~ part of the jury in the ease presented, this court declines to interiere with the verdict for the plaintiff for $2,500 as excessive.
    [Opinion filed May 25, 1888.]
    APPEAL from the Oircuit Ooiirt of McLean County; the lion. C. B. SMITH, Judge, presiding.
    Messrs. FIFEn & PHILLIPS and WILLIA~1s & OAPEN, for the appehhant.
    No recovery can Tega1~y be had in this case for the reason that Patrick Kelly was the fellow-servant of the men who operated the train by which he was struck, Abend v. T. H. & I. R. R. Co., 111 Ill. 202; C. & E. I. R. R. Co. v. Geary, 110 Ill. 383; Voltez v. O. & M. Ry. Co., 85 Ill. 500; C. & A. R. R. Co. v. Murphy, 53 Ill. 336; T. W. & W. Ry. Co. v. Durkin, 76 Ill. 395; St. L. & S. W. Ry. Co. v. Britz, 72 Ill. 256; C. & A. R. R. Co. v. Keefe, 47 Ill. 108; I. C. R. R. Co. v. Cox, 21 Ill. 20; C. & N. W. R. R. Co. v. Moranda, 93 Ill. 302; C. & A. R. R. Co. v. Hoyt, 16 Ill. App. 237; C. & A. R. R. Co. v. O’Bryan, 15 Ill. App. 134.
    There was no conflicting testimony as to what relation Kelly bore, in the service, to the men whose conduct is in question. The degree of association of Kelly with them, the nature of their respective employments, what they had all been doing on that day and what they were doing respectively at the particular time Kelly was hurt — all these things appear from the perfectly harmonious account of the different witnesses. The men being employed by the same master,- the presumption would be they were fellow-servants until the contrary was made to appear from the evidence; and, unless such a state of facts was shown as would remove this presumption, and serve to ground a verdict that the men were not fellow-servants, it was error to submit the question to the jury at all. We contend the court should, on the state of facts proved, have instructed the jury the men were fellow-servants and that no recovery could be had.
    “Whether there is any evidence upon a given question or not, is a' question of law for the court, and it is error to submit that question to a jury.” C., B. & Q. R. R. Co. v. Warner, 108 Ill. 538.
    An instruction which assumes there is evidence of a fact when there is none, is misleading and erroneous, and serves only to furnish the jury a pretext to find against the real facts. C. & A. R. R. Co. v. Bragonier, 119 Ill. 51.
    We think, under the principle of the above cases-and in the light of the evidence, the relation of 'the men to each other resolved itself into a pure question of law, and should have been so treated by the Circuit Court. This court in the case of O’Bryan, 15 Ill. App. 134, held, as a proposition of - law under the evidence, that O’Bryan was the fellow-servant of the offending employes.
    Messrs. Stevenson & Ewing, for appellee.
    Kelly and the train crew in charge of the freight train -were not fellow-servants. Ryan v. C. & N. W. R. R. Co., 60 Ill. 171; C., M. & St. Paul Ry. Co. v. Ross, 112 U. S. 377; C. & N. W. R. R. Co. v. Moranda, 93 Ill. 302; P., F. W. & C. Ry. Co. v. Powers, 74 Ill. 371; C. & A. R. R. Co. v. May, Adm'x, 108 Ill. 288; C. & N. W. R. R. Co. v. Bliss, 6 Ill. App. 411; Rolling Mill v. Johnson, 114 Ill. 57; T. W. & W. Ry. Co. v. O’Conner, 77 Ill. 391.
    Imprudent conduct from sudden fright is chargeable to the original wrong-doer. Collins v. Davidson, 19 Fed. Rep. 88; Stokes v. Staltonstall, 13 Pet. 189; Jones v. Boyce, 1 Starkey 493; C., R. I. & P. R. R. Co. v. Dignan, 56 Ill. 487; C. & A. R. R. v. Garney, 58 Ill. 83; Galena & C. U. R. R. Co. v. Yarwood, 17 Ill. 609.
    It is negligence in a railroad company to make ££ running" or “flying” switches. C., B. & Q. R. R. Co. v. Triplet, 38 Ill. 482; C., R. I. & P. R. R. v. Dignan, 56 Ill. 478; I. C. R. R. Co. v. Backes, 55 Ill. 379.
    It is negligence in a railroad company to run cars in on a side track, where other cars are standing and persons working about them, without giving notice of an intention to do so. I. C. R. R. Co. v. Hoffman, 97 Ill. 287; Rolling Mill Co. v. Johnson, 114 Ill. 57.
   Conger, P. J.

This was a suit brought by appellee as administratrix of her deceased husband, Patrick Kelly, against appellant, in which she recovered a judgment for §2,500.

The principal facts are as follows: Patrick Kelly was a section hand, employed by appellant upon a section of the road about seven miles in length, including the village of Ilopedalo. lie worked under one James Mehan, foreman.

His duties were, as given by his foreman, as follows:

Mehan says: “I was his'foreman; I had six men working under me; the men under me had to do all necessary work ; anything that was ordered to bo done under my control; the men under me were doing track repairing; it was our business to keep the track in repair; I had seven miles under my control; the men under me threw up embankments, raised up the track, put in rock and tiled under it, attended to the fences along the track and the ballasting, and any other thing we had to do in the line of repairs. It sometimes becomes my duty to shove cars from one place to another with my men; I take hold of them to shove ; do not get on the engine to run them; simply shove the cars from one place to another on the track; that is all I have to do with the cars.” After Kelly had been in the employ of the company a few days, and on the 5th day of January, 1886, a freight or construction train started out from Bloomington for the purpose of hauling a load of ■rock to be distributed along the track two or three miles southwest of Hopedale for the purpose of bal lasting the track. The train consisted of twenty-two flat cars, a caboose, and an engine. It was managed by a crew consisting of a conductor, engineer, fireman and two brakemen. The section force, including Kelly, had boarded the construction train as it passed Hope-dale, and assisted in unloading the stone, or ballast, which work occupied them until the middle of the afternoon. The train had returned to Hopedale at noon to enable the men to get their dinner, and upon two or three other occasions to let other trains pass. When the unloading was completed and about three or four o’clock in the afternoon, the train with the men returned to Hopedale.

The train men began to prepare the train for returning to Bloomington and the section men were ordered by Mehan, their foreman, to take some old iron, which had been gathered up along the road at some former time and placed on the depot platform, and carry it across the main track and place it on a flat car standing on the side track, just opposite the platform. This car was no part of the construction train.

After some time.spent by the trainmen in switching and arranging their train for its return to Bloomington, they desired to transfer the engine from the southwestern end of the train to the other, and they did this by a running or flying switch.

The train was backed up on the main track toward Bloomington, a sufficient distance for the purpose intended, and then started back, and after having acquired a speed of some eight miles an hour, the engine was cut loose from the train and; increasing its speed, ran in upon the side track, where three or four ears were standing, upon one of which the old iron was being loaded by Kelly and others.

The engine did not go far enough upon the side track to let the train pass it without a collision, hut the tender of the engine was struck by the caboose, breaking off the cross-beam and steps of the caboose and injuring the tender. The engine was at once moved forward by the engineer, striking one of the cars standing on the side track with such force as to break off the cowcatcher, break the headlight and the cast iron heading of the boiler, knock the trucks from under the car in front and throw it forward against the car upon which the iron was being loaded and which, from the force of the blow, was moved forward about its length. It produced considerable noise and confusion. Kelly, with another man, was at this moment placing a large piece of iron upon the car, and they had to step along with the moving car to keep it from falling to the ground. As soon as they could let go of it they did so, and turned to go across the main track to the platform. The train with the caboose in front was coming down the track at the rate of about eight miles per hour; Kelly’s companion succeeded in reaching the platform, but Kelly was struck and killed by the train.

The errors assigned by appellant are, first, that Kelly was killed by his own negligence. It is insisted upon the one hand, there was great noise and confusion when the engine struck the car in front of it, amply sufficient to cause Kelly to lose, his presence of mind, and, under the excitement of the moment, excuse him from what is claimed was negligence; while this is denied by appellant, and it is claimed there was nothing in the occurrence to excuse Kelly from such care and caution as a reasonable man would be expected to exercise. The determination of this question, under the circumstances, was one for the jury. It was for them to say, under the evidence, whether Kelly’s conduct in attempting to cross the main track at the time, was careless and imprudent, and if it was, whether it was done under the excitement of sudden peril and alarm caused by the acts of appellant’s servants.

As said in C., R. I. & P. R. R. Co. v. Dignan, 56 Ill. 487, “ The question of negligence can be measured by no fixed and unbending rule. Each case must be tested by its own peculiar facts. An act which might justly be regarded as inexcusably careless, if done coolly and deliberately, and with nothing to disturb the ordinary action of the brain, may, on the other hand, be pardoned as not unnatural if done under the excitement of sudden peril and alarm.”

The second error assigned is that Kelly was a fellow-servant with the train men.

During the time Kelly was upon the train, going to and returning from the place of unloading, and while the stone was being unloaded, he and the train men were clearly fellow-servants. Abend v. T. H. & I. R. R. Co., 111 Ill. 202. Prior to that time and after the train left Hopedale, they would not have been.

We think when the train returned to Hopedale, and the section men quit it, and began to load the old iron upon a car in no way connected with the train, the co-operation and association in furthering a particular business of the common master, in which they had been engaged up to that moment with the train men, ceased. The particular work of placing the ballast along the sides of the road, which had required their joint labors, had been accomplished; and each set of men returned to their former employment.

While it may be said the switching and arranging the train at Hopedale, preparatory to returning to Bloomington, was a part of the particular work of hauling ballast, as to the train crew, it was not as to the section men, for their joint duties with the train men had ceased as completely as though a day had intervened between the return to Hopedale and the accident.

The co-operation in the particular work of placing ballast upon the road-bed must have ceased at some time, and we hold it did cease at the moment when each set of men returned to their former and several duties; the train men to running their train, or preparing it to leave, and the section men to other and independent labor, under the direction of their foreman, in no way connected with the labor in which the train men were then engaged, or that had j ust before occupied the attention of both.

The fourth refused instruction of appellant was properly refused, for the reason that it sought to take the question of whether Kelly was a fellow-servant with the train men from the jury. I. & St. L. R. R. Co. v. Morgenstern, 106 Ill. 216. The first, second and third refused instructions were not accurate and would have tended to mislead the jury, and hence were properly refused.

It is insisted that the court erred in not giving to the jury a proper definition of what facts would constitute fellow-servants. We do not understand it to be the duty of the court to do so, unless asked.

The fourth assignment of error is that the damages are excessive. We see no evidence of passion or prejudice upon the part of the jury, and feel no disposition to interfere with their deliberate judgment as to the value of Kelly’s life to his wife and family.

There is no fixed standard by which damages can be determined in cases like this, and when a jury, without passion or prejudice, have determined the amount, it should not be disturbed unless so high as to strike a court at first blush as unreasonable.

The judgment of the Circuit Court will be affirmed.

Judgme7it ajjh'med.