author: Mr. Justice Wright delivered

text:
    Mary Dillon v. Paul O. Moratz.
    1. Burden of Proof — To Show the Acceptance of Orders Sued Upon. —In an action to recover money due on an order given by one person upon another, the burden of proof is upon the plaintiff to show that the order was accepted in order to enable him to sue upon it in his own name, or at least to show that the amount of the order was due and owing.
    Assumpsit, on orders for the payment of money. Appeal from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge,
    presiding. Heard in this court at the May term, 1901,
    Reversed and remanded.
    Opinion filed September 11, 1901.
    A. E. DeMange and J. E. Hoffman, attorneys for appellant.
    Livingston & Bach, attorneys for appellee.
   Mr. Justice Wright delivered

the opinion of the court.

This was an action of assumpsit by appellee against appellant to recover for money alleged to be due upon the balance of two orders given by George Asher to appellee upon Isaiah Dillon, the husband of appellant. A jury was waived and a trial by the court ended in a finding and judgment against appellant for $304.65, to reverse which she brings her appeal to this court, and it is argued the finding and judgment are contrary to the law and the evidence of the case, and inconsistent with the propositions held by the court as the law in the decision of the case.

Isaiah Dillon, the husband and agent of the appellant, contracted with Asher to build a house for appellant. Asher sub-contracted with appellee and gave to him orders upon Dillon, one for $450, the other for $493.30. Dillon paid $200 upon the first order. The last order was for the balance of the first order, and the balance due from Asher to Moratz, as the latter testified. Appellant, however, claimed, and so testified, that the contract was not completed, nor the house finished, and insisted she had never accepted the orders, nor her husband for her. Asher testified the last order was given to appellee on the mistaken supposition that the arbitrators, to whom he and appellee had submitted their differences, had made an award by which he would owe the amount of the last order, but it turned out the arbitrators did not agree, and he denied he owed the amount of the order, or any amount.

The burden of proof was upon the plaintiff to show that the orders had been accepted by appellant, before he was entitled to sue upon them in his own name, or at least to show that the amount of the judgment was due from Asher to appellee. We think the evidence fails in this respect, and while we dislike to disagree with the trial court upon a question of fact, still, from all the evidence in the case, we feel compelled to believe that injustice has been done to appellant. If she did not accept the orders and did not Owe Asher, or if nothing was due Asher when the suit was begun, as the weight of the evidence proves, it would be an injustice to compel her, as the judgment does, to pay a debt she does not owe, and did not agree to pay.

The judgment of the Circuit Court will be reversed and the cause remanded for a new trial. Eeversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Wright

license: Public Domain

text:
    Phoebe Stone, Adm’x, etc., v. W. H. Haskins et al., Adm’rs, etc.
    1. Administration of Estates — Power of the County Court to Appoint an Administrator Pro Tem. — In the administration of an estate, where a claim against the administrator has been inventoried and he becomes prima facie chargeable with the amount of' the demand, upon his petition the County or Probate Court will be justified in appointing some competent person to act as administrator pro tem., with authority to bring suit against the administrator as an individual and prosecute it to final judgment.
    2. Estoppel — To Question the Appointment of an Administrator Pro Tem. — When a party is appointed administrator pro 'tem., at the instance and upon the motion of parties interested in the estate, by a court having general jurisdiction over the administration of the estate, and such appointment is improper or irregular, any of the parties interested in the estate may move the court to set aside the order of appointment; but if they fail to do so in apt time, they will be estopped to say that the appointment was not properly made.
    • Administration of Estates. — Appeal from the Circuit Court of Pike County; the Hon. Henry Van Seller, Judge, presiding. Heard in this court at the May term, 1901.
    Reversed and remanded.
    Opinion filed September 11, 1901.
    W. H. Crow and. William Mumford, attorneys for appellant.
    Jefferson Orr, Williams & Coley and Matthews & Grigsby, attorneys for appellees.
   Mr. Justice Wright

delivered the opinion of the court.

This was a claim presented in the Probate Court by Edgar A. Stone against the estate of Otis A. Haskins, of which latter estate the . appellees are the administrators, and it was there allowed and an appeal taken by the appellees to the Circuit Court, where the claim was rejected, and this appeal brought to reverse that judgment. Pending the litigation Edgar A. Stone died, and appellant was substituted as administratrix of his estate.

Prom the inventory of the estate of Otis A. Haskins, W. H. Haskins, one of the administrators, appeared to owe the estate $1,717.15, and neither he nor his co-administrator taking any steps to have such claim paid to the estate, or otherwise adjusted, two of the daughters of the deceased, being interested -in the estate, applied to the County Court and asked it to appoint an administrator pro tem. for the purpose of enforcing and collecting such claim against W. H. Haskins, one of the regular administrators. The County Court granted the application of the two daughters and appointed Edgar A. Stone as such administrator pro tern. of the estate of Otis A. Haskins. Stone employed attorneys, and upon their advice a suit was instituted against W. H. Haskins in the name of such administrator pro tem. for the purpose of enforcing and collecting such claim, and issues were formed therein and preparations made to try the case. Pending this suit, and before the trial was entered upon, the brothers and the two sisters, who were the only persons then interested in the estate, got together and effected a settlement, by which the women were paid $2,000, including their interest in the claim of the estate against their brother, W. H. Haskins, and some other matters, and at their instance and by their authority the suit of the administrator pro tem. against W. H. Haskins was dismissed, in accordance with the terms of such settlement. The present claim is for the compensation to the administrator pro tem., and to pay the expenses incurred by him in employing attorneys, and their services rendered in the prosecution of the claim against W. H. Haskins.

It is contended in support of the judgment of the Circuit Court, that the County Court had no power or jurisdiction to appoint the administrator pro tem., and therefore the estate is not chargeable with his compensation and the necessary expenses incurred by him in the discharge of his duties as such. This forms the principal, if not the only question, necessary to be decided upon this appeal. Although the statute in express terms does not confer the power upon the County Court to appoint an administrator pro tem. under circumstances like these, yet such authority has been upheld. It was held in May v. Leighty, 36 Ill. App. 17, under circumstances very similar to this case, after considering authorities outside of this State, that in this State the better practice would be to proceed in analogy to .the provisions of our statute providing for the appointment of an administrator -pro tem. when the administrator has a claim against the estate. Where a claim against the administrator has been inventoried, and he becomes prima facie chargeable with the amount of the demand upon his petition, the County or Probate Court would be justified in appointing some competent person administrator pro tern, with authority to bring suit against the administrator as an individual and prosecute it to final judgment. While we are indisposed to criticise the decision to which we have referred, believing it reaches the right conclusion,we feel that if the appointments of administrators under circumstances like these could be sustained upon plainer statutory grounds the reasoning would be more logical and satisfactory. Section 38 of the administration act provides that where the letters of one of several executors is revoked,- or one or more of the executors or administrators die, or become disqualified, the court may join others in their place, and require additional bonds from the new administrator or administrators, survivor or survivors, or such as shall not have their powers revoked, shall proceed to manage the estate.

The County Court being a court of general jurisdiction as to all matters within its limits, liberal intendments will be made in its favor, and the presumption as to its acts is, that they are rightly done. By section 38 of the statute to which we have referred, clear and explicit authority is given to the court; in case one or more of the administrators becomes disqualified, the court may join others in their place. It can not be denied that by reason of his interest, W. H. Haskins was disqualified as administrator, as regards the litigation by the estate of the claim against himself. Here, then, existed the conditions contemplated by the statute, when the court should -have the power to join another administrator in his'place. In whatever manner the court proceeded, here was the authority for its action. The court may have proceeded irregularly, and its order may have been defectively or erroneously entered, but it is not the rule in such cases, where the court is one of general jurisdiction, to declare the acts of such a court void because of irregular, defective or erroneous procedure. The order may have been such as that it could not be sustained on appeal, but for such reason it was not void. It may be also that S. T. Haskins, the co-administrator of W. H. Haskins, should have been joined as one of the plaintiffs with Stone in the suit against W. H. Haskins. That suit may have been subject to the objection that it lacked a necessary party plaintiff, but that was a question to be made1 by the parties to it, ' and for the court in which the suit was brought, but did not affect the authority to bring this suit. So far as we know or are advised, the point may have been waived, or the court may have decided it against the contention of the defendant in that suit, and, if the latter, the decision was binding unless reversed, however erroneous it might have been. Although Stone may have been inaptly styled administrator pro tem., he was not an intermeddler in the distribution of the estate, but was at the instance and upon motion of parties interested in the estate, appointed such administrator by the court having general jurisdiction over the administration of the estate, and if such appointment was improper, or irregular, any of the parties interested in the estate had the right to move that court to set aside such order, and upon its refusal might have had other remedy in the premises. Having done none of these things we think they are now estopped from being heard to say the appointment was not properly made.

Having the views as we have expressed them, we are of the opinion the administrator pro tem., so called, was entitled to have allowed to him out of the assets of the estate of Otis A. Haskins a reasonable compensation for his services, and for necessary expenses, and it was error for the court to disallow the claim as it did.

The judgment of the Circuit Court will be reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed. Reversed and remanded.


text:
    Wabash Railroad Co. v. Robert Smillie.
    1. Appellate Court Practice — Effect of a Verdict Where the Jury Specifies the Counts of the Declaration upon Which They Find.— When a jury specifies in their verdict the counts of the declaration upon which their finding is based, it is in effect a finding for the defendant on all the other counts, and none but the counts specified will beconsidered by the Appellate Court in reviewing the case.
    2. Railroads — Duty of Persons About to Cross the Track. — It is as much the duty of a person about to cross the track of a railroad to watch for and see and heed the signals and warnings which he claims in his declaration were not given, if, in fact they were given, as it is the duty to use ordinary care to otherwise ascertain if there is danger in the act of crossing such track at the particular time.
    3. Same — Keeping a Flagman Will Not Excuse the Want of Ordinary Care. — The mere fact that a flagman is kept by a railroad company at a crossing in a city, will not alone excuse the want of ordinary care in other respects by a person about to pass over its track, if the circumstances are such that an ordinary person would naturally use his sense of sight and hearing to observe other indications of the approach of a train in the absence of signals by the flagman.
    4. Evidence — When the Issues Are Such as to Require Accurate Rulings. — In an action against a railroad, company for personal injuries, where the issues are such as to require accurate rulings upon the admission of evidence, it is error to permit the plaintiff, over the objection of the defendant, to answer a question in a way that, in effect, puts him into the jury box to deciders own case.
    5. Personal Injuries — JTarei of Ordinary Care Precludes a Recovery. — On the trial of an action against a railroad company for personal injuries received at a street crossing, in the city of Springfield, witnesses testified that they saw the train by which the plaintiff was injured approaching at the time of the collision. It was held, that if, under the circumstances, the plaintiff, in the exercise of ordinary care for his own safety, upon approaching the crossing ought to have looked for the train but did not, it is to be presumed he would have seen what the others saw, and can not recover.
    6. Damages — Elements of, in Personal Injury Cases — Incapacity to Transact Business. — An instruction in an action for personal injuries which permits the jury to assess damages sustained by the plaintiff in his business is proper under general averments of the declaration.
    Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the May term, 1901.
    Reversed and remanded.
    Opinion filed September 11, 1901.

      C. N. Travous, attorney for appellant; Patton, Hamilton & Patton, of counsel.
    McGuire & Salzenstein, attorneys for appellee.
   Mr. Justice Wright

delivered the opinion of the court.

The declaration of the appellee against appellant alleging negligence of the latter whereby he, the appellee, was injured, contained two counts, to which was afterward added five additional counts. The verdict of the jury specified the first count of the original declaration and the second. additional count of the. declaration as those upon which the defendant was found guilty, and assessed the plaintiff’s damages at $4,000; and. the court, after having overruled appellant’s motion for a new trial, gave judgment upon the verdict for the amount of the damages so assessed, and to reverse this judgment appellant prosecutes this appeal, and has assigned and argued various alleged errors to effect such reversal, among which are, chiefly, that the court admitted improper evidence for the consideration of the jury, gave improper instructions and refused proper instructions, especially the one offered directing a verdict for the defendant, and that the verdict is contrary to the law and the evidence of the case. The jury having specified in their verdict the counts of the declaration upon which their finding is based is in effect a finding for the defendant on all other counts, and none, therefore, but the first count of the original declaration and the second additional count need to be considered in this opinion. Those counts, in substance, charge that at the crossing of the railroad with Adams street, Springfield, the defendant had been required to, and did, maintain a flagman for a long time prior to the injury, for the protection of persons and property against injury; that it was the duty of defendant to employ and keep a competent and careful man as flagman at such crossing and give notice and warning to persons on foot or in vehicles about to cross there, of the approach of engines and trains, and that while plaintiff, January 8, 1900, was driving in a buggy with due care and caution, toward the crossing, he received no notice or warning from the flagman, in consequence of which he was struck and injured. Also, defendant was backing its train south at a high and dangerous rate of speed toward the crossing without keeping proper Watch for persons about to pass or drive over the crossing, or to give such signals as would apprise the person, using due care, of the approach of the locomotive engine and train, by reason of which appellee was injured.

The evidence shows that on the evening in question, January 8, 1900, about half past five o’clock, and when it was dark, while in the act of crossing the railroad at Adams street, appellee was struck by a passenger train backing for the switch to allow another train to pass, and was so injured that he lost a leg. Appellee claimed the flagman gave him no warning of the approach of the train, and that he did not otherwise have knowledge of its approach. The evidence is conflicting upon this point and is neither clear nor satisfactory upon the point of the negligence charged in the counts mentioned in the verdict, nor as to the care of the appellee to avoid injury. It was as much the duty of appellee to watch for, see and heed the signals and warnings he claims by his declaration were not given, if in fact they were given, as it was his duty to use ordinary care to otherwise ascertain if there was danger in the act of crossing at this particular time. The mere fact that a flagman is maintained will not alone excuse want of ordinary care in other respects in the person about to pass over the railroad, if the circumstances are such that an ordinary person would naturally use his sense of sight and hearing to observe other indications of the approach of a train, in the absence of signals from the flagman. ■ Appellee testified — not that he was absent — but that he did not see the flagman, while there is the evidence of several witnesses that whether appellant saw him or not, the flagman vigorously used his lighted lantern in an effort to stop appellee before he reached the crossing, and we feel compelled to the conclusion that the jury were either misled in some way or obtained a misconception of the real issues of the case. At any rate, the issues were such as required accurate rulings upon the evidence, so that nothing of that nature, improper for their consideration, should be admitted. Over the objection and exception of appellant appellee was permitted to answer this question: “ What effect, if any, did the fact have on you that no signals were given, assuming for the purpose of the question that none were given % ” Answer : “I supposed there was no danger, of course.” This question and answer was, in our opinion, improper, misleading and prejudicial. It would, we apprehend, be a rare instance, if, under any circumstances of a personal injury, were the elements of the imputed negligence put to the injured person in negative form, as was here done, he would not answer the question in the same way. This is in effect putting the witness— and in this case the plaintiff himself — into the jury box to decide the case. And then it is decided minus the element of due care on his own part; for the answer, which also was objected to, implies there was no danger in attempting the crossing because the signals were wanting; when, if the circumstances were such, if he saw the train approaching dangerously near, or might by the use of due care have seen it, and then attempted the crossing, he would be guilty of a breach of ordinary care and could not recover in consequence of his failure to heed the portents of danger open to his own investigation. Neither was it a question what appellee himself supposed as to the danger; but the inquiry should be what an ordinary person under similar conditions, when in the exercise of ordinary care, would suppose, and this was for the jury to decide, and not for the witness. This point is made clear and potent, when it is considered that every witness in the case who testified that he looked to the north at all, at this critical juncture saw the train backing down to the crossing. If, therefore, under the circumstances, appellee ought to have looked, in the use of due cafe, and he says he did not look in that direction, and it is to be presumed he would have seen what others saw, then he could not recover, and the question and answer, with the objections and exceptions thereto, we think effectively led the jury away from, a proper consideration of this point. There was no dispute concerning the obligation of appellant to maintain a flagman at this crossing, for it had assumed to do so, thereby admitting its necessity; and therefore the admission of the order of the city council requiring it was harmless. It was probably immaterial.

Some criticism has been made of the instructions in the case and it would be unusual if some slight inaccuracies did not creep into them, but we are inclined to the opinion that there was no prejudicial error in that respect. It is said that the fourth instruction permitted the jury to assess damages sustained by plaintiff in his business when the declaration claims no such damages. In view of the damages returned by the jury we have no doubt they understood the instruction that if by reason of the injury the plaintiff was incapacitated from transacting his business, such condition might be considered in estimating damages, and this, we think, might be done under the general averments of the declaration. The instruction, however, is not apt in its expression in this respect, and might be misleading, although in this instance we do not think it did mislead the jury. We would be better satisfied with the instruction had this clause been stricken out or modified.

For the error indicated the judgment of the Circuit Court will be reversed and the cause remanded.


text:
    Grant W. Goodwine, by his Conservator, v. John J. Acton.
    1. Infancy — Burden of Proof on the Party Pleading it. — Where a party files a plea of infancy, he assumes the burden of proving his plea by a preponderance of the evidence.
    Assumpsit. — Appeal from the Circuit Court of Vermilion County; the Hon. Ferdinand Bookwalter, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed September 11, 1901.
    D. D. Evans and G. M. McDowell, attorneys for appellant.

      Keeslar & Acton, attorneys for appellee.
   Mr. Justice Wright

delivered .the opinion of the court.

This suit originated by the confession of a judgment upon a note and warrant of attorney against appellant for $2,600, and $200 attorney fee. Afterward upon appellant’s motion he was permitted by the court to defend against the note, and he then filed pleas of infancy, fraud, and part failure of consideration. A trial by jury ended in a verdict for $2,398.60, and upon overruling a motion for a new trial, the court credited the original judgment down to the amount of the verdict, and to reverse this, the appeal is brought here.

There are no valid objections to the instructions and no prejudicial rulings upon the evidence. Appellant assumed the affirmative at the trial to prove his special pleas by a preponderance of the evidence. The consideration of the note was three other notes, given by appellant to appellee, in the aggregate $2,600. If appellant’s testimony was believed, he owed but a little over- $800. Appellee remembered items going to make up the old notes of over $1,600; he did not remember the amount of interest that was figured into them, but knows that interest did enter into them. Upon the whole evidence we are not disposed to disturb the verdict. The three notes combined were alone prwna facie a sufficient consideration for°the new note, and the burden was upon the appellant to show by a preponderance of the evidence he did not owe them. The witnesses were before the jury, where their credibility could be tested in ways that are not open to us, and we are unwilling, in view of the whole evidence, to say that the jury were not warranted in their finding. There was no evidence to sustain the pleas of infancy or fraud and the judgment will be affirmed.


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    City of Mattoon v. Barnaby Worland.
    1. Sidewalks — What is Not a Want of Ordinary Care in Walking Upon. — Where a person in passing along a sidewalk of an incorporated city met other persons also upon the walk and stepped off of it upon the top of a catch-basin adjacent to the walk to let them pass, and one of the planksjon top of such basin broke near the center and his foot was precipitated into the basin, causing his injury, it can not be said that in so stepping off of the walk he was not in the exercise of ordinary care for his personal safety.
    2. Same — Notice of Defeats in Streets. — City officers whose duty it is to use ordinary care to keep the streets in a reasonably safe condition, can not shut their eyes to a condition of things that would be made plain to them by the use of their common faculties and the intelligence of ordinary men, and then be heard to say, when an injury occurs, that they had no notice and are therefore not liable.
    3. Damages — When $499 is Not Excessive. — A person in passing along a sidewalk in an incorporated city stepped off of it to the top of an adjacent catch-basin for the purpose of letting other persons also upon the walk pass him,' and iii doing so stepped upon a defective plank, of the covering of the catch basin, which broke, causing an injury which resulted in a broken leg; it was held that a verdict for $499 was not excessive.
    4. Pleading — Allegations of Constructive Notice. — In an action against a city for personal injuries resulting from a defective sidewalk, where the declaration alleges that the city wrongfully and negligently permitted the walk to be and remain unsafe and out of repair, such allegation implies notice, actual or constructive.
    Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Coles County; the Hon. Frank K. Dunn, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed September 11, 1901.
    John McNutt, Jr., and Anderson Stewart, attorneys for appellant.
    James W. and Edward 0. Craig, attorneys for appellee.
   Mr. Justice Wright

delivered the opinion of the court.

Appellee sued appellant to recover for injuries — a broken leg — caused, as he alleged, by the defective cover of a catch-basin located in a public street, wrongfully and negligently suffered to remain and be in bad and unsafe repair and condition, and divers of the planks were rotten and unsafe.

In the first instance the Illinois Central Railroad Company was a joint defendant to the action on the alleged ground that the catch-basin constituted a part of the approach to its crossing of the street in question, but the suit was dismissed as to such defendant before the jury retired, and was thereafter prosecuted against appellant alone. A trial by jury ended in a verdict against appellant for $499, and after overruling its motion for a new trial the court gave judgment against appellant for the damages so assessed, to reverse which this appeal is brought; and it has been argued that the court admitted improper evidence, gave to the jury improper instructions, the verdict is against the evidence, the court should have sustained the motion for a new trial, and the damages are excessive.

The manhole or catch-basin was situated about eight feet from the east track of the railroad and between four and six feet from a concrete walk, and in the lawn or parking between the curbstone and sidewalk. At the time of the injury to appellee the south side of the street, Broadway, on the railroad right of way, was excavated to be filled out with brick, and was filled with cinders. The cement walk was complete at this point. The catch-basin was of brick and had a cover of planks, between three and four feet wide at the top. In his testimony the superintendent of streets said the condition of the boards that made the covering was the same as any other plank that had been put down a few years, somewhat decayed, this being the result of his examination in December before the accident that occurred January 12,1900. At that time the superintendent nailed down some loose-boards on the top of the basin. While appellee was passing along the sidewalk, he met, as he testified, people who were also upon the walk, and to let them pass by he stepped off the walk upon the top of the catch-basin, when one of the planks broke near the center and his foot went down into the basin, causing his injury.

It is urged that appellee was nqt in the exercise of ordinary care. We see no force in this point. There may have been, room, and probably was, for him to avoid the other persons upon the street, without stepping upon the covering of the basin; but that being in the street and a part of it, and being an inviting surface, as compared to the surrounding cinders, he having no knowledge of its defective condition, and having a right to assume it was safe, it was but the natural act of an ordinary person, under the circumstances, to step upon the planks that others might be allowed to pass by. We think from all the evidence the jury were warranted in finding the appellee was in the use of proper care.

Then it is argued that appellant had no notice of the defective condition of the boards, if they were defective. The fact that one of the boards broke under the weight of appellee proves it was unsound. Did appellant know it was unsound, or by the exercise of reasonable care, or examination, could it have known of the defective board? Appellant’s own superintendent knew the boards, or some of them, were loose a few days before the injury, and he also knew they were somewhat decayed. At that time ordinary care demanded an investigation of the cause of the boards becoming loose, and had a proper examination been made appellant would have known the reason they were loose was because they were rotten. It is matter of common observation that boards will rot on the under side when laid over an excavation in which dampness collects and remains without the freedom of air circulation. A mere casual inspection of the boards at that time would, .we think, have disclosed the fact the boards were thin and weak from decay beneath, while remaining apparently sound on the tops of them. Common prudence and care demanded at that time a better inspection than was given, and if appellant did not know the dangerous condition of the boards, it was the fault of its own chosen officer or servant, for whose negligence it is liable. Those whose duty it is to use ordinary care to keep the public streets in a reasonably safe condition, can not shut their eyes to a condition of things that would be made plain to them by the use of their common faculties and the intelligence of ordinary men, and then be heard to say, when injury happens, they had no notice and are therefore not liable. We feel well warranted in the conclusion the jury were justified in finding that appellant was guilty of the negligence imputed to it.

Appellant complains of the refusal of the court to direct a verdict at its instance, and that it also erred in directing a verdict at the instance of it sco-defendant and in the latter’s favor. It follows from what we have already said that we are of the opinion the court properly declined to direct a verdict for the appellant, and as regards the other point, we think appellant has no right to complain of the discharge of the railroad company from the suit; that is a matter in which appellant has no concern. We find no prejudicial error in the rulings of the court upon the admission of evidence, nor do we think there is any merit in the contention that the damages are excessive.

It has been strenuously argued that the court erred in giving to the jury the first and second instructions requested by the plaintiff, which are to the effect that if the jury believe from the evidence that the plaintiff has proven his case as alleged in the declaration, or either count thereof, by a preponderance of the evidence, the jury should find for the plaintiff. The point made against these instructions is that they take from the jury the consideration of the question whether the appellant had actual or constructive notice of the alleged defective condition of the top of the catch-basin; inasmuch as the instructions refer to the declaration for its facts upon which the right to recover is predicated, and the declaration being found defective when looked into, that therefore the instructions must be necessarily erroneous, because, it is said, the important element going to make up the liability, that of notice, actual or constructive, is ignored.

Is the declaration defective in respect to the point made against it ? The averments of the declaration, and each count thereof, are, in. substance, that the defendant wrongfully and negligently suffered the cover of the catch-basin to remain and be in bad and unsafe repair and condition and divers of the planks wherewith the platform was built to be and remain rotten and unsafe. In City of Nokomis v. Salter, 61 Ill. App. 160, this court held that where the declaration avers that the city wrongfully and negligently permitted the walk to be and remain unsafe and out of repair, such averment implies notice, actual or constructive. We are still satisfied with this ruling, and hence, by the reference to the declaration contained in the instructions, the question of notice, actual or constructive, was not ignored, or taken from the jury, but the jury were told, in effect, that if the defendant wrongfully and negligently suffered the cover of the catch-basin to be and remain in bad and unsafe repair and condition, and divers of the planks rotten and unsafe, then the plaintiff was entitled to recover. Actual or constructive notice was implied in the language “wrongfully or negligently suffered,” as there could be neither wrong nor neglect until the defendant had actual or constructive notice of the defect to be repaired. Besides this it is difficult to discover how the jury could have been misled by these instructions, even if subject to the objections appellant has taken to them, in view of the other instructions given by the court, both at the instance of the plaintiff and defendant, specifically upon the point, where the jury were told that the defendant must have had either actual notice of the unsafe condition of the cover of the basin, or by the use of reasonable diligence could have known of such unsafe condition. It is unreasonable to expect that a jury would disregard the specific instructions of the court upon this point, and look into and search out and find that this special averment had been omitted from the declaration, and then reach the conclusion that for such reason it was immaterial whether the defendant had actual or constructive notice or not. While, as we believe, juries are always sincere and actuated by every laudable motive prompting justice, we doubt very much if they are given to such critical analysis as the argument of counsel would imply. There was no prejudicial error in the modification of the twelfth instruction, and after considering the series of instructions as a whole, given to the jury by the court, we feel free to say that the jury was unusually well instructed, and appellant had the benefit in those respects of all its rights demanded.

There was no error in denying the motion for a new trial on the ground of the absence of the witness Rose. He was present when the trial began, appellant knew of his testimony, and of its material nature. It was not, therefore, newly discovered evidence and was of a cumulative character. If the witness was discovered to be absent when his testimony was desired, it was the right of appellant to have made a motion for a continuance, and to have then preserved the ruling of the court upon it, and in that manner the point might properly have been presented to this court for review.

■ Finding no error in the record and proceedings of the Circuit Court its judgment will be affirmed.


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    Calvin H. Frew v. John Richardson.
    1. Pleading — A Familiar Rule. — It is a familiar rule of pleading that a bad replication is good enough for a bad plea, and a demurrer to it should be carried back and sustained to the plea.
    2. Same — General Rule of Constriction. — 4 pleading should always be construed most strongly against the party pleading it.
    3. Same — Unnecessary Prolixity in Pleading Not to be Encouraged. —To file a special replication to a plea, the abstract of the record of which occupies seven printed pages, where a general replication would have been sufficient, is an incumbrance to the files and records of the court and is a practice not to be commended.
    Assumpsit, for attorney services. Appeal from the Circuit Court of Ford Comity; the Hon: John H. Moffett, Judge, presiding. Heard in this court at the May term, 1901.
    Reversed and remanded.
    Opinion filed September 11, 1901.
    Kerr & Lindley, attorneys for appellant; M. H. Cloud, of counsel.
    McQuiston & Frederick, attorneys for appellee; C. H. Payson, of counsel.
   Mr. Justice Wright

delivered the opinion of the court.

This suit was by the appellant in assumpsit against the appellee to recover for services as an attorney rendered to the appellee in the collection of a claim due from Miller to Basmus. Defendant pleaded to the declaration specially, in substance, that Miller and Basmus had been adjudged bankrupts, and that appellant was their attorney and also the attorney for the assignee in his relation to the estate of the bankrupts; that the interests of appellee and the bankrupts were antagonistic, and that the plaintiff had' been allowed, out of the assets of the bankrupts, compensation for his services as solicitor to the assignee, and the same was paid to and accepted by him, and therefore, the plea concludes, the plaintiff can not recover for presenting said claim against the bankrupt estate, and collect and receive compensation from each of the parties representing hostile interests. To this plea a special replication was filed, which occupies seven printed pages of the abstract, containing a history of the case and the proceedings in bankruptcy, to which the court sustained a demurrer, and the plaintiff abiding by the replication, final judgment was given by the court in bar of the action, to reverse which this appeal is prosecuted. A general replication to the plea would, we think, have been sufficient and effective. . The special replication was unnecessary and an incumbrance to the files and record, but as bad as it was, it was as good as the plea. It is a familiar rule of pleading that a bad replication or plea is good enough for a bad plea or declaration. The plea states no facts by which it can be seen that the interests of the bankrupts and their assignee on the one side, and that of appellee on the other, were in conflict, or are in antagonism. In this respect the plea contains only the opinion or conclusion of the pleader. The plea imputes no improper motive nor does it appear that appellee was not fully cognizant of the fact of plaintiff having been the attorney for the other parties when he was employed by appellee, nor does it appear that he was defrauded in any respect, or prejudiced, or failed to receive his-just dues from the bankrupt estate, in consequence of such dual relation of his attorney. From all that is stated in the plea it does not follow that faithful services to appellee conflicted with the like services to the bankrupts and the assignee. The bankrupts, the assignee and other creditors of the bankrupts — all. the interested persons — may have admitted the justness of appellee’s claim, it not being reasonable to infer differently in the absence of averment to the contrary. The fund in the hands of the assignee, primarily,was to pay the debts of the bankrupts, and if appellee’s claim was just, and he is now estopped from claiming it was not, there could be no conflict of interest among any of the persons interested. In truth, unless there was dispute or contest' concerning appellee’s claim, and it does not appear any such existed, or unless appellee contested that of other claimants, which also does not appear, his claim was in amity with all other interested parties and there would therefore be no just reason why appellant could not represent all the parties together as their attorney. Hone of the numerous authorities cited by counsel have any application to a case like this. It is not unusual for counsel to represent all the parties to a suit whose interests are mutual and amicable. The most familiar illustration of this kind of proceeding sanctioned by the law are partition suits. ¡We can see little difference in principle between that kind of suits, and the one described herein. If the interests of the parties conflict, or become hostile, the case woúld of course be different; but here, as we have already said, that condition has not been made to appear; for by applying the familiar rule of pleading to the plea herein, that it should be most strongly construed against the pleader, for the want of sufficient averments to the contrary, it will be presumed there was no conflict of interest.

The demurrer should have been carried back and sustained to the plea, and for the error'in sustaining the demurrer to the replication and in rendering judgment, the latter will be reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed. ¡Reversed and remanded.


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    McLean County Coal Co. v. Robert Simpson.
    1. Hazards — Of aSeroiae, Which Are Not Assumed upon the Acceptance of an Employment. —Where a trestle used to supply coal to locomotive engines, extending from a coal shaft to the track of a railroad, had been constructed for nearly twelve years, and some of the boards out of which the floor upon it was made were half decayed, a jury will be justified in finding that such floor was rotten and dangerous, and had been so for a sufficient length of time for the proprietor, in the exercise of reasonable care, to learn of its dangerous condition and repair it; unless his employe knew of such defects and failed to report them to him, the hazard was not one which he assumed when he accepted the employment, for he had the right to rely upon the presumption that his employer had discharged his primary duty in using reasonable care to provide a safe .floor to the trestle for him to walk upon in using it.
    Trespass on the Case, for personal injuries. Appeal from the. Circuit Court of McLean County; the Hon. Golostin D. Myers, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed September 11, 1901.
    Ewing, Wight & Ewing, attorneys for appellant.
    Welty & Sterling and Barry, Morrissey & Fifer, attorneys for appellee.
   Mr. Justice Wright

delivered the opinion of the court.

The declaration of appellee against appellant charges, in effect, that the former was in the employ of the latter to coal engines on railroads in the night time, and that one of his duties was to remain upon a trestle above the railroads during the hours of the night; that it was the duty of appellant to keep the trestle in a safe condition, but it negligently suffered the boards upon the trestle to be in bad order, and a part of'them were rotten, with holes between them, and the nails were loosened, and there was no guard rail or other protection to the trestle, and that appellee, knowing nothing of the unsafe condition of the structure, while in the use of ordinary care, caught his foot in a hole in or between the boards, was thereby thrown off the trestle upon the ground, hurt and injured. A plea of not guilty having been filed to the declaration, a trial by jury of the issue thus formed ended in a verdict that appellant was guilty of the negligence charged against it, and the damages were assessed at $5,000. The court having overruled appellant’s motion for a new trial, gave judgment against it for the damages assessed, to reverse which this appeal is brought to this court, and the only question argued against the verdict, by which such reversal is sought, is that it is against the evidence of the case.

Appellee was employed by appellant to furnish coal to the locomotive engines of.railroads near which the shaft of its mine was located. For this purpose trestle work had been constructed leading from the shaft to the tracks of the railroads, the height of the same being about twenty feet above the surface at the mine and gradually ascending until the point above the railroad tracks was reached where the height was near twenty-four feet. The coal was hoisted to the trestle at the shaft of the mine and dumped into transfer cars, and from thence moved upon the trestle by horse-power to chutes, and from there was supplied to the engines as occasion might require. It was one of appellee’s duties to see that the chutes were kept supplied with coal broken suitably for use, and to deliver the same from the chutes, as demanded by the railroads. Appellee was put to this work January 24th, and on the-night of the following day, when he was filling the chutes, believing an engine was approaching for coaling, he went upon a walk constructed on the side of the trestle to take observation, and finding the engine was in the yards and not approaching the coaling station, he turned about to return to the chute, and, as he testified, the floor of the walk yielded to the heel of his foot, causing him to fall over the edge of the trestle and upon the tracks below; both thighs were broken, the knee-cap was cracked and the elbow, producing permanent injuries. The vital questions of fact upon the trial for the determination of the jury were whether appellant had been negligent in the particulars specified in the declaration, and whether appellee was in the exercise of ordinary care for his own safety when injured. There was evidence tending to prove that the trestle had been constructed for nearly twelve years; that some of the boards of the floor were half decayed; the edges of the boards were rotted and chipped off, and the nails rusted off and the boards loose; and this condition had been observed by some of the witnesses for a considerable time before the accident happened; and as the appellee had been employed on the trestle the day before he was hurt, it is not likely the jury believed he knew of these defects. If the jury believed the testimony of the witnesses, to which we have alluded, they were justified in finding, as they doubtless did, that the floor of the walk was rotten and dangerous, and had been for a sufficient length of time that appellant, in the exercise of reasonable care, should have known of its dangerous condition and repaired it. Unless appellee knew of such defects and failed to report them to the master, the hazard was not one that he assumed when he accepted employment, for he had the right to rely upon the presumption the master had discharged his primary duty of using reasonable care to supply a safe floor to walk upon; and so upon the whole evidence, we are of the opinion, the verdict of the jury was warranted upon both the questions of negligence of the appellant, as charged in the declaration, and the proper exercise of care on the part of appellee.

In its defense to the action in the trial court — and the same point is renewed in this court — the appellant insisted the evidence proved that appellee was subject to fits of epilepsy, and that it was in consequence of one of these spells that he fell and was injured. The evidence is neither clear nor satisfactory upon this point. Appellee denied that he was or had been so afflicted since he was twelve years of age. There is no direct testimony that on the occasion of his fall he was affected with epilepsy, and upon the whole evidence it can not be justly found that the fall was caused by such affliction. Such a finding could only be based upon mere inference — equivalent to mere conjecture or imagination — and we think the jury were justified in finding as they did, against appellant, upon this question.

No errors concerning the ruling of the court upon the evidence or the instructions of the court have been argued before us, and the assignment of errors in those respects are therefore regarded as abandoned. We feel compelled to . accept the verdict of the jury as decisive of the facts, and the judgment of the Circuit Court will be affirmed.


author: Mr. Presiding Justice Burroughs

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    Joseph C. Beam v. Cleveland, C., C. & St. L. Ry. Co.
    1. Recoupment— Tendency of the Doctrine. — The doctrine of recoupment tends to promote justice and prevent endless litigation by adjusting, in one, action, adverse claims growing out of the same subject-matter, thereby avoiding circuity of action and multiplicity of suits, and should be applied whenever it is appropriate.
    2. Same — Where Applicable. — The defendant’s brother died in Chickamauga, and his body was shipped to his home at Bloomington for burial, over the plaintiff's railroad, and the charges therefor paid. In order to get it to Bloomington at the time arranged for the funeral, it became necessary, by reason of delays, to bring it from Indianapolis by a special train, for the cost of which the railroad company brought suit. At the trial the defendant, a brother of the deceased, offered to prove that when the body was shipped his mother and brother started on the train with it and upon their arrival at Cincinnati they and their baggage were transferred to the plaintiff’s train and were told that the body would also be transferred, but later they found that it was not. A ticket had been purchased for the body with the defendant’s money and was taken up by the conductor of the plaintiff’s train. Upon the arrival of the train at Bloomington the body was so badly decayed, by reason of its being left so long at Cincinnati, that it was unfit for public view. But the court, on the objection of counsel for the plaintiff, refused to admit such proof. Held, error, for the reason that the plaintiff was claiming payment for transporting the body of the defendant’s brother from Indianapolis to Bloomington by special train, and the defendant should be permitted to show in defense by way of recoupment, that he, as such brother, had paid the plaintiff for transporting the body by regular train, which the plaintiff undertook to do, but was so negligent and dilatory in doing it, that the body was decayed to such an extent by reason of such delay, that it was unfit for view, and that he was damaged on that account.
    3. Same — What is a Proper Subject for Recoupment. — The claim of a party for damages occasioned to the corpse of his deceased brother while it was being transported by a railroad company to aplace where his body was to be buried is a proper matter of recoupment by him when he is sued by the company to recover for such transportation.
    4. Parties — Persons Interested in the Dead Bodies of Kindred. — A brother of a deceased person who undertakes to pay for the transportation of his body from the place of his death to that of his burial, has such an interest in the dead body as entitles him to damages for an injury to it by the negligent act of the carrier while transporting it for hire.
    5. Instructions — As to the Measure of Damages for Services of a Special Train. — In an action to recover for the services of a special train, where the evidence showed there was a special contract and a price agreed upon, it is error to instruct the jury that the measure of the plaintiff’s recovery is the reasonable price for the train. The price agreed upon must control the amount of the recovery.
    Assumpsit, for the services of a special train. Appeal .from the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1901.
    Reversed and remanded.
    Opinion filed September 11, 1901.
    Livingston & Each, attorneys for appellant.
    A. E. DeMange and J. E. Hoffman, attorneys for appellee.
   Mr. Presiding Justice Burroughs

delivered the opinion of the court.

This was an action of assumpsit, brought in the Circuit Court of McLean County by appellee against appellant. The case was there tried by jury, and resulted ■ in a verdict and judgment in favor of appellee for $90. Appellant moved for a new trial, which being denied, he excepted and has brought the case to this court by appeal to effect a reversal of the judgment upon the alleged grounds that the court excluded proper evidence offered by appellant, and gave improper instructions at the instance of appellee.

The declaration consisted of the common counts, among which was one for $300 for labor and services performed by appellee for appellant at his request. Appellant pleaded non-assumpsit and gave notice that under it he would offer evidence on the trial that the dead body of his brother, Fred Beam, was shipped from Chickamauga to Bloomington over appellee’s railroad, and the charges therefor paid; that appellee should have transported same promptly but failed to do so, and negligently left the body at Cincinnati an unreasonable length of time; that in order to get same to Bloomington at the time arranged for the funeral, it became necessary, by reason of such delay, to bring it from Indianapolis to Bloomington by special train, the cost of which constitutes the sole cause of action sued upon in this case; and that the body was so badly mutilated, by reason of such delay, that it was unfit for public view when it arrived at Bloomington upon such special train; and that thereby appellant was damaged $500.

The record shows that appellant went to appellee’s train, which arrived in Bloomington from Cincinnati at five o’clock Sunday morning, July 30, 1898, expecting to receive from it the dead body of his brother, Fred Beam, who had died in Chickamauga on J uly 28,1898, and was shipped from there to Bloomington that day, via appellee’s-railroad, from Cincinnati, and should have arrived in due course of trains at 5:30 the evening before, but did not, and he was informed by appellee’s agent at Bloomington, that it missed connections at Cincinnati and could be brought on the next train, which would be due at that time.

But the body did not come as expected, and appellant learned from appellee’s agent that their next regular train from Cincinnati, upon which it would come, would be due in Bloomington at five o’clock that afternoon. Appellant informed the agent that the funeral had been set for four o’clock p. m., and the corpse would be too late for it. The agent replied that the only way it could be gotten to Bloomington before five o’clock, was to bring it from Indianapolis by special train, and in order to get such train, appellant would be required to deposit $500 to cover liabilities therefor. Appellant gave the agent a check upon a bank in Bloomington for that amount,-telling him that he gave it to him under protest, to which the agent replied that appellant would only be charged the actual expense of the special train, and the balance would be returned to him. The special train brought the body from Indianapolis to Blooming-ton, where it arrived at 2:10 p. m.

The next day, appellee’s agent took the check to the bank to get it cashed, and was informed by the cashier that appellant had directed it not to be paid, so he refused to pay it.

The actual cost of the special train was §181.

Appellant offered to show that when the dead body was shipped, his mother and brother Charles started on the train with it, and upon their arrival at Cincinnati, they and their baggage were transferred to appellee’s train, and they were told that the corpse would be also, but later, they found it was not; that they arrived at Bloomington at 5:30 Saturday evening, July 29,1898; that a ticket was purchased for the corpse with appellant’s money, and same was taken up by the conductor upon appellee’s train; and that upon the arrival of the corpse, it was so badly decayed because of being left so long at Cincinnati, that it was unfit for public view. But the court, on objection of counsel for appellee, refused to admit it, and appellant excepted and insists in this court that it was error to exclude it.

We are inclined to that view also, for the reason that appellee, in the case at bar, is claiming payment for transporting the dead body of appellant’s brother from Indianapolis to Bloomington by special train, and appellant should be permitted to show in defense thereof, by way of recoupment, that he, as the brother of deceased, had paid appellee for transporting the body by regular train, which appellee undertook to do, but was so negligent and dilatory in so doing, that the body was decayed to such an extent by reason of such delay, that it was unfit for view, and that he was damaged on that account.

The doctrine of recoupment tends to promote justice and prevent needless litigation, by adjusting, in one action, adverse claims growing out of the same subject-matter, and thereby avoiding circuity of action and multiplicity of suits, and should therefore be applied whenever it is appropriate. Stow v. Tarwood, 14 Ill. 427; and Scott v. Kenton, 81 Ill. 96.

That appellant’s claim for damages occasioned to the corpse of his deceased brother while it was being transported by appellee from where he died to where it w'as to be buried is a proper subject-matter of recoupment by him when he is sued by appellee to recover for such transportation, we entertain no doubt; and we are also of opinion that appellant, as brother of the deceased, and the one who had undertaken to pay for such transportation, had such an interest in the dead body as entitled him to damages for an injury occasioned thereto by the negligent act of appellee while transporting same for hire. The court therefore erred to the prejudice of appellant, in not admitting the offered evidence.

At the instance of appellee, the trial court instructed the jury that the measure of appellee’s recovery was the reasonable price for the special train, and counsel for appellant insists that the evidence shows that the price for which appellee agreed with appellant to furnish the train, was the actual cost thereof, and the court erred in telling the jury that it could recover the reasonable price therefor, and in that view we concur, for the reason that the evidence shows there was a special contract and the price agreed upon must control the amount of recovery.

For the error of the trial court in not admitting the evidence offered by appellant, and in improperly instructing the jury as above indicated, we will reverse its judgment and remand this case for another trial, not inconsistent with the views herein expressed. Reversed and remanded.


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    Helen Sammis, Adm’x, etc., v. Chicago, B. & Q. R. R. Co.
    1.- Railroads — When Not Responsible for the Wrongful Acts of Employes. — Where a section hand in the employ of a railroad company who had in his possession a key to a handcar house and of the switch to its track, on a Sunday, while not engaged in the line of his duty, and for his own personal amusement or pleasure, opened the car house and took a handcar upon the track and went to “ the Meyer switch ” to fish, opened the switch there for the handcar but neglected to close it, and an engine of the company came along, ran into the open switch and the engineer was killed, it was held, that if the company had no notice of such use by the brakeman of its handcar and track it was not responsible.
    2. Evidence — Of Knowledge by Railroad Companies of Wrongful Acts of Employes. — In an action against a railroad company for causing the death of an engineer by the wrongful act of a section hand in its employ, in using its handcar and switches to go fishing upon a Sunday, and leaving a switch open, by reason of which the engineer on a passing engine was killed, evidence tending to show that the brakeman took the handcar to go fishing on Sundays so frequently and for such a length of time that the company in the use of ordinary care should have known of such practice and prevented it, is admissible in evidence, and its rejection, when offered, is reversible error.
    Trespass on the Case. — Death from wrongful act. Appeal from the Circuit Court of Adams County; the Hon. John A. Broady, Judge, presiding. Heard in this court at the Máy term, 1901.
    Reversed and remanded.
    Opinion filed September 11, 1901.
    Ball & Sparrow and Ingraham & Crewdson, attorneys for appellant.
    J. F. Carrott, attorney for appellee.
   Mr. Justice Wright

delivered the opinion of the court.

This was a suit by appellant against appellee for causing the death of her husband, Eb,enezer Sammis, by wrongful act, neglect or default. The declaration charges that the deceased was in the employment of the appellee as a locomotive engineer, and that as such, upon the occasion of the injury, it was his duty, and he was, with due care for his own safety, operating a locomotive engine with train of cars attached, over the railroad of appellee between the stations of Quincy and East Hannibal; that it was the duty of appellee to use proper care and caution to keep the railroad in proper condition and to keep the switches closed while the engine and train were passing the same, but appellee, not regarding this duty, carelessly and negligently failed to keep closed its switch, called Meyer’s switch, on its railroad, while the locomotive and train so operated by said engineer was approaching, and about to pass the said switch, and by and through the negligence, carelessness and fault of the defendant the locomotive engine and train, without fault or negligence of deceased or his fellow-servant, and while deceased was in the discharge of his duty and in the use of due care, was thrown upon a condemned and unsafe spur, in consequence of which he was injured and died. The trial was by jury, and after the close of appellant’s evidence, at the instance of appellee the court directed a verdict for the defendant, and after overruling appellant’s motion for a new trial, gave judgment in bar of the action, and to reverse the judgment appellant brings the cause here by her appeal. The errors relied upon and argued to effect such reversal are that the court rejected proper evidence offered by the appellant, and in its instructions to the jury directing a verdict for the defendant.

Thomas Tobin was one of the section hands in the employment of appellee. He had in his possession a key to a handcar house and of the switch in question. On a Sunday, the day of the accident, while not being engaged in the line of his duty or employment with appellee, but for his own personal pleasure or amusement, he opened the car house, took the handcar upon the railroad track, and with a companion, Tost, went to the Meyer switch to fish; he opened the switch there for' the handcar but neglected to close it, when the engine in control of the deceased ran upon the spur and the engineer was hurt and afterward died. In support of the ruling of the court in directing a verdict it is argued that inasmuch as Tobin was not in the line of his duty to appellee, that the defendant was not responsible for his wrongful act, done while in the pursuit of his own pleasure, any more than it would be liable for the unauthorized act of a stranger. This position, in the abstract,, is no doubt tenable. Appellant, however, charges in her declaration that the defendant did not use proper care to keep the switch closed, and offered to prove by Tost that Tobin frequently, on Sundays, took the handcar to this switch — so frequently and for such length of time that appellee in the use of ordinary care should have known of such practice and prevented it. The court sustained appellee’s objection to such evidence and appellant excepted. While it can not be said that Tobin was in the employ of appellee in such use of its car track and switch, still, if the defendant had actual or constructive notice of such use and then permitted or acquiesced in it, and by such use Tobin negligently left the switch open, in consequence of which the engineer was killed, appellee would be liable for such negligence. However, we are of the opinion the court erred in refusing appellant the right to introduce evidence upon this point, and for such error the judgment of the Circuit Court is reversed and the cause remanded for a new trial. Eeversed and remanded.


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    Marquardt Savings Bank v. Christ Sheppleman et al.
    1. Judgments in Bax. — Judgments in Replevin, When. — A bank received a promissory note for collection and brought a suit upon it, in its own name, before a justice of the peace, upon which the makers of the note sued out a writ of replevin and obtained possession of it. The real owner of the note authorized an attorney to appear for him and defend the action. The justice gave judgment in the replevin suit that the makers of the note were the owners of the note and rendered judgment in their favor for its possession, which not being appealed from, became final. Subsequently the real owner of the note brought suit upon it in the Circuit Court. It was held, that the judgment of the justice not being appealed from, became the final adjudication of the issue as to the ownership of the note and was a bar to any further litigation upon it.
    Assumpsit, upon a promissory note. Appeal from the Circuit Court of Ford County; the Hon. John H. Moffett, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed September 11, 1901.
    W. F. McBeth, attorney for appellant.
    A. L. Phillips, attorney for appellees.
   Mr. Justice Wright

delivered the opinion of the court.

This suit was brought by appellant against appellees upon a note for $100 given by appellees to A. H. Warren and by the latter assigned to appellant. Among other pleas filed to the declaration was one to the effect that the nóte having been sent by appellant to the Farmers and Merchants Bank of ti-ibson, Illinois, for collection, appellees sued out a writ of replevin against R. A. McClure & Co., they being, known as the Farmers and Merchants Bank, who then had the note in their possession, and upon service of the writ, the note was obtained by the officer and delivered to the appellees. Appellant was notified of the replevin suit before the justice of the peace and by its authority an attorney appeared at the trial of the case before such justice and there defended the action. The justice of the peace gave judgment that appellees were the owners of the note, and no appeal having been taken, it became final. The court overruled a demurrer to the plea and appellant abiding by its demurrer, the court gave final judgment in bar of the action, to reverse which this appeal is brought, and such action of the court has been assigned and argued as error, whereby such reversal is sought.

We have no doubt that the notice to appellant and the appearance by the attorney by its authority, as confessed by the demurrer, made the appellant privy to the judgment that was rendered by the justice of the peace (Crassey v. Kimmel, 78 Ill. App. 27; Drennan v. Bunn, 123 Ill. 175), and it was bound by such judgment to the same extent as if it had been named as party to the proceeding. The only question, therefore, that remains to be determined, is as to the force to be given to such judgment.

Mo doubt can be raised that the justice had jurisdiction of the subject-matter and the parties to the suit, and however erroneously the matter may have been decided, like any other judgment, if acquiesced in by the parties, and no appeal taken from it, it therefore becomes the final adjudication of the issue then before the justice of the peace. The judgment did determine that appellees were the owners of the note, and in legal effect awarded it to them and to their possession, as such owners, and if this was true, appellant did not own the note, and had no right of action upon it.

By permitting the judgment of the justice of the peace to be final appellant is estopped from maintaining this suit. The ruling of the Circuit Court upon the demurrer to the plea was right, and its judgment will be affirmed.


text:
    William H. Black v. Fred B. Churchill.
    1. Instructions — Properly Refused, When Contained in Others.— It is not error to refuse an instruction where the substance of it is contained in other instructions given.
    Assumpsit, for commissions. Appeal from the Circuit Court of Mc-Donough County; the Hon. John A. Gray, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed September 11, 1901.
    Elting & O’Habra, attorneys for appellant.
    Gamp & Holly,' attorneys for appellee.
   Mr. Presiding Justice Burroughs

delivered the opinion of the court.

Appellant, William H. Black, sued appellee, Fred B. Churchill, before a justice of the peace of McDonough county, to recover the sum of $50 which he claimed appellee owed him for procuring a purchaser for a farm which appellee had for sale. Appellant recovered a judgment for $5 before the justice, but being dissatisfied with the amount, appealed to the Circuit Court, where the case was tried by jury and resulted in a verdict and judgment in favor of appellee.

Appellant moved for1 a, new trial in the Circuit Court upon the grounds that the verdict was against the evidence and that the court refused proper instructions offered bv him, which being denied, he excepted, and prosecutes this appeal to effect a reversal of the judgment and a remanding of the case for a new trial.

Appellant and appellee are real estate agents, and both have their offices in the city of Macomb. Some time in the fall of 1898, appellee informed appellant that he had Mr. Sisson’s farm for sale, and would pay appellant $50 commission if he would sell it for him, or send him a purchaser for it. A short time afterward Mr. Clreenup was in appellant’s office and informed him that he intended to sell his farm and buy more and cheaper land for the same money, and inquired if appellant had any cheap land for sale. Appellant told him that he had the Sisson farm for sale, described it to him and gave him the price at which he could sell it.

Mr. Greenup went to the offices of other real estate agents in Macomb, making inquiries for cheap lands, and when at appellee’s office, learned that he also had the Sisson farm for sale.

Mearly a year afterward, Mr. Greenup sold his farm, and remembering that both appellant and appellee had the Sisson farm for sale, concluded he would go and see both of them, and after examination of the farm, if it suited him, he would buy from the one who would sell it to him the cheapest, and that he would not let either one know that he was trying to buy the farm from the other.

: When Mr. Greenup went to Macomb for the purpose of ascertaining the cheapest price at which-he could buy the farm, and to go and see it with appellant or appellee, whichever quoted him the lowest price, he first went to appellant’s office, but finding him out, went to appellee’s office, and finding him in, they together went and looked at the farm, and in a day or two afterward, he bought it of appellee.

Appellant and appellee quoted the farm to Mr. Ggeenup at the same price.

We are unable to conclude that the verdict is against the evidence and find that the court properly refused the three instructions which appellant insists ought to have been given, because all that was proper in the first two, is contained in those which were given, and the third is not based upon the evidence.

The Circuit Court, therefore, properly denied appellant’s motion for a new trial, and its judgment in this case will be affirmed.


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    Village of Bath v. Edmund Blake, by his Next Friend.
    1. Sidewalks — Use of , in This State. — The sidewalks and streets of incorporated cities and villages in this State are for the use of persons, whether passing over them for business, pleasure, or merely to gratify idle curiosity.
    2. Same — Children May be Lawfully at Play upon. — A child may be lawfully on a sidevvalk for play, and the city owes the same duty to have it in a reasonably safe state of repair in respect to such use by a child, that it does in respect to the use of it by persons passing over it in going to and from their places of business and abode.
    Trespass on tlie Case, for personal injuries. Appeal from the Circuit Court of Mason County; the Hon. Thomas N. Mehan, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed September 11, 1901.
    I. R. Brown, attorney for appellant.
    R. W. Mills and H. R. Nortrup, attorneys for appellee; Edward Clifford, of counsel.
   Mr. Presiding Justice Burroughs

delivered the opinion of the court.

This was ah action on the case by appellee against appellant, tried by jury in the Circuit Court of Mason county, and resulted in a verdict and judgment in favor of appellee for §500. Appellant brings the case to this court upon appeal and- urges us to reverse the judgment upon the alleged grounds that the court admitted improper and excluded proper evidence; gave improper and refused proper instructions, and that the verdict is not supported by the evidence.

The declaration charged the officers of appellant with negligently permitting a hole two or three inches wide, and two or three feet- long, to remain for a long time on one of the street crossings in the appellant village; and that appellee got his foot into it while passing over the crossing and fell and broke his leg.

The evidence shows that there was a hole on the crossing as claimed in the declaration, and that it had been there a long time, and that about twilight; appellee,- a boy about eight years old, was playing tag with another boy, and while running over the crossing got his foot into the hole, causing him to fall and break his leg.

Counsel for appellant’s chief contention is, that because appellee was playing tag on the street, he was not exercising suqh care as entitles him to recover, but in that we can not concur; for, as we held in City of Waverly v. Reesor, 93 Ill. App. 649, the sidewalks and streets of incorporated cities and villages in this State are for the use of persons, whether passing over them for business, pleasure, or merely to gratify idle curiosity; and “ a child may be lawfully on the sidewalk for play, and the city owes the same duty to have it in reasonably safe state of repair, in respect to such use by a child, that it does in respect to the use of it by persons passing over it in going to and from their places of business and abode.”

A careful examination of the rulings of the court upon the evidence and instructions convinces us that no prejudicial error was committed against appellant in any of them, and the record shows that the verdict and judgment are abundantly supported by the evidence, so the latter will be affirmed.


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    The Calumet Grain and Elevator Co. v. Joel H. Williams.
    1. Gambling Contracts — KTo Recovery upon. — Where a contract is entered into in which money is advanced upon purchases of grain made upon the board-of trade, and it is not intended or expected by either party that any of the grain shall be delivered, but when the time for delivery arrives the matters are to be settled by the payment or receipt of differences between the contract price and the actual market price of the grain at the time fixed for delivery, such is a gambling contract and no recovery can be bad upon it.
    2. Appellate Court Practice — Costs of Additional Abstracts. — An appellee, who is justified in furnishing an additional abstract, will be entitled to have the costs of it taxed to the appellant.
    Assumpsit, for money advanced. Appeal from the Circuit Court of DeWitt County; the Hon. Wtilliam G. Cochrane, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed September 11, 1901.
    Warren B. Wilson and E. B. Mitchell, attorneys for appellant.
    E. W. Dunham and Herrick & Herrick, attorneys for appellee.
   Mr. Justice Wright

delivered the opinion of the court.

This suit was brought by the appellant against appellee to recover for commissions and for money advanced upon purchases made by it for appellee on the board of trade in Chicago. The defense to the suit was that the contracts did not contemplate the delivery of the actual commodities, but were intended to be settled by the adjustment of differences between the contract price and the market price at the time the contract provided for delivery, and that this was known to appellant, and hence were but mere gambling transactions. A trial by jury ended in a verdict for the defendant and after overruling appellant’s motion for a new trial the court gave judgment against it in bar of action, and to reverse this, it prosecutes this appeal, and it has been chiefly argued to effect such reversal that the evidence is insufficient upon which to conclude the transactions in question were illegal.

Upon the whole evidence and the facts and circumstances disclosed by it, we are of the opinion the jury were warranted in finding that at the time" the contracts detailed in the evidence were entered into, it was not intended or expected by either party that any grain should be delivered, but when the time stipulated in the contracts for delivery should arrive, the matters were to be settled by the payment or receipt of the differences between the contract price and the actual market price of the commodity at the time fixed by the contract for such delivery. That appellant knew that such was the nature of all these transactions there can be no reasonable doubt, when all the evidence is considered. The verdict of the jury, therefore, in our judgment correctly exposed the facts.

There is no complaint about the instructions in the case, nor as to the admission or the rejection of the evidence, and the judgment of the Circuit Court will therefore be affirmed.

Appellee has moved this court to tax the cost of the additional abstract, furnished by him, to the appellant, on the ground of the omission in the appellant’s abstract of material portions of the record. We think appellee was justified in furnishing such abstract, by reason of some important omissions in appellant’s abstract, and the motion will therefore be allowed, and the clerk ordered to tax the cost of the additional abstract to the appellant. Judgment affirmed.


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    Chicago P. St. L. Ry. Co. v. Ellen Bastien.
    1. Injunctions. — To Restrain Encroachments upon Premises by Railroad Companies. — In a'proceeding to enjoin a railroad company from wrongfully encroaching upon the premises of an adjacent owner, to her annoyance, it is sufficient proof of ownership, in the absence of other evidence, to show that the complainant was in the peaceable possession of the premises. -
    Bill to Enjoin Encroachments. — Appeal from the Circuit Court of Mason County; the Hon. Thomas N. Mehan, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed September 1, 1901.
    Wilson & Warren afid Lyman Lacey, Jr., attorneys for appellant.
    I. E. Brown, attorney for appellee.
   Mr. Justice Wright

delivered the opinion of the court.

This was a bill in equity filed by appellee against appellant to restrain the latter from encroaching over the line of its right of way upon her lots with its switches and tracks. The bill was answered and the issues thus formed were heard; the court found for the appellee and gave its decree accordingly, making the injunction perpetual, to reverse which this appeal is brought; and to effect such reversal it is argued against the decree that it is not supported by the evidence, under two points: (1) the burden of proof was upon complainant to definitely establish her own boundary lines,‘which she did not do; and (2) the defendant did not recognize any right or title in the ground in question to be in the complainant. No question is made as to the jurisdiction of a court of chancery to entertain a bill of this nature.

We are of the opinion the evidence is sufficient to sustain the decree. There is evidence that appellee was in the exclusive possession of the strip of ground that appellant was moving its switch upon, and digging a trench there. Those in charge of the railroad had before that time requested permission of appellee to move a fence because of its proximity to and interference with appellant’s cars in the movement of them upon the track, or switch, and at that time appellee claims the appellant took advantage of her, and she testified that without her consent it moved upon her premises to a certain extent. Upon the whole evidence we think the court was warranted in finding as it did, and that appellant wrongfully encroached upon the premises of appellee to her annoyance, inconvenience and injury. The decree is right and it will be affirmed.


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    William H. Driggs v. Gilbert A. Roth.
    1." Exemptions — Description of Property in Schedules. — Persons scheduling property for the purpose of claiming their exemptions under executions, should describe it so that the same can be identified by the appraisers and the officer.
    Action to Recover Double tlie Value of Exempt Property Taken on Execution. — Appeal from the City Court of Canton; the Hon. John A. Gray, Judge, presiding. Heard in this court at the May term, l9(/i.
    Reversed and remanded.
    Opinion filed September 11, 1901.
    Chiperfield & Chiperfield, attorneys for appellant.

      0. L. Boyee, attorney for appellee.
   Mr. Justice Wright

delivered the opinion of the court.

This was a suit by the appellee against the appellant, a constable, to recover double the value of property seized under execution and claimed to be exempt from execution.

Appellee executed and delivered a schedule in. which, among other property, he described “ forty or fifty dollars worth of meat.” The appraisement showed more than that amount of meat. The officer requested the debtor to select forty or fifty dollars worth of meat, to which the latter objected, demanding all of it. Whereupon the officer set off to the debtor §62.57of the meat and took and sold the residue under the execution.' The court tried the case without a jury and found the issues against appellant, charged him with double the value of the property taken and gave judgment against him for §30.24, to reverse which he brings this appeal.

Persons scheduling property'for the purpose of claiming their exemptions under executions, should describe it so that the same can be identified by the appraisers and the officer. Here there was doubt, resulting from an indefinite description, concerning what the schedule covered. Reasonable minds might and would differ regarding the same. This suit being for a penalty, and the act of the officer not being unreasonable under the circumstances, we are unwilling to hold that he is subject to the penalty provided by the statute, and the judgment will therefore be reversed and the cause remanded.


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    W. T. Westbrook v. Gus Frederickson.
    1. Former Decisions — A the Same Cases, Govern. — When a case on being reversed and remanded is tried again upon the same issues and in accordance with the decision of the court remanding it, such decision will be binding upon the trial court and upon this court in future appeals.

      Trover. — Appeal from the Circuit Court of Ford County: the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed September 11, 1901.
    Cloud, Moffett & Thompson and C. E. Beach, attorneys for appellant.
    O. H. Wylie and Tipton & Tipton, attorneys for appellee.
   Mr. Presiding Justice Burroughs

delivered the opinion of the court.

This case was before us at a former term and for the reasons expressed in the opinion reported in 89 Ill. App. 193, the judgment which had been rendered in favor of W. T. Westbrook (present appellant) was reversed and the case remanded for another trial for the reasons therein stated.

After the case was remanded and had been reinstated, it was stipulated by the parties that it be tried by the court (jury being waived) upon the same evidence produced at a former trial, and the same was read to the court from the bill of exceptions on file in the case, and the court found for Cus Frederickson (present appellee) and rendered judgment in his favor for $183.83.

Appellant, W. T. Westbrook, now brings the case to this court by appeal, and to reverse the latter judgment, assigns and argues for error, that the Circuit Court refused improperly to hold as the law of the case, the second and sixth propositions submitted to it by him, and improperly rendered judgment in favor of the plaintiff (appellee) against him.

The finding and judgment of the Circuit Court which are now alleged to have been erroneously made, were upon the same issues and evidence which were in the record when the case was formerly before us and are in accordance with the decision which we then rendered in it, which was binding upon the Circuit Court and is also upon this court; therefore the judgment appealed from will be affirmed.


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    William H. Dooley v. James Vance.
    1. Estoppel— By Representations, — Where a person knowingly induces another to rely, in good faith, upon the existence of a certain condition of things, he will be estopped from afterward denying, to the prejudice of such person, that such a condition of things did exist.
    Trover. — Appeal from the Circuit Court of McLean County; the Hon. John H. Moffett, Judge, presiding. Heard in this court at the May term, 1901.
    Affirmed.
    Opinion filed September 11, 1901.
    DeMange, Peirce, Owen & Owen, attorneys for appellant.
    Welty & Steeling and Eaele D. Eiddle, attorneys for appellee.
   Mr. Presiding Justice Burroughs

delivered the opinion of the court.

The appellant sued the appellee in the Circuit Court of McLean County in an action of trover to recover the value of ten young steers which it is charged appellee obtained from one Samuel Hickman, but which, in fact, were the property of appellant.

Appellee claimed that said Hickman was the agent or partner of appellant, and that he had purchased the steers of Hickman and paid him for them. Appellant denied that Hickman -was his partner or agent. The jury found for appellee and the court entered judgment upon the verdict in bar of the action.

While counsel for appellant make some complaint about the rulings of the court upon the evidence and instructions, they fail to point out wherein such rulings were prejudicial or erroneous, and seek to obtain a reversal of the judgment principally upon the ground that the verdict is contrary to the evidence.

Appellant himself, while admitting that Hickman bought and sold cattle for him for some time before the steers in question were purchased by appellee, denies that he had authority to sell and receive the purchase price of the steers. But a number of persons testified that before and after the time in question, appellant permitted Hickman to buy and sell cattle for him, and to pay and receive the money for them, and that he frequently referred to Hickman as his partner, and at other times as his agent in such matters.

Under which circumstances, we fully agree with the jury and the trial judge, that appellee was justified in purchasing the steers from Hickman and paying him for them, notwithstanding he believed that appellant either owned them or had an interest in them with Hickman as his partner.

The judgment will therefore be affirmed.


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    J. S. Merchant et al. v. Edward Manion.
    1. Burden of Proof — Of Joint Liability. — Where a joint liability is alleged, the burden is upon the party alleging it to prove it. 2. Verdicts — In Actions ex Contractu against Joint Defendants.— In actions ex contractu the verdict must be against all of the defendants or none.
    Assumpsit, for work, labor and services. Appeal from the County Court of Moultrie County; the Hon. John D. Purvis, Judge, presiding. Heard in this court at the May term, 1901.
    Reversed and remanded.
    Opinion filed September 11, 1901.
    Whitaker & Thompson, attorneys for appellants.
    R. M. Peadro, attorney for appellee.
   Mr. Justice Wright

delivered the opinion of' the court.

In the first instance this was a suit in attachment by appellee against Merchant alone, and afterward by amendment M. J. Sullivan was added as joint defendant, and thereafter the suit proceeded jointly against both the appellants. The plea of the general issue, and a special plea denying joint liability, were pleaded to the declaration, which was in assumpsit for the work, labor and services of the plaintiff, done, performed and bestowed to appellants at their request, and for money lent, paid out and expended at the request of the defendants, and for goods, chattels and effects sold to them. The issues formed upon the attachment and the declaration were tried by a jury and resulted in a finding for appellee on both issues, and the damages were assessed against both defendants at $375. The court overruled appellants’ motion for a new trial, and gave judgment upon the verdict, to reverse which they bring their appeal to this court, and it is insisted various errors occurred upon the trial, but it is chiefly argued the verdict is contrary to the law and the evidence of the case, and the evidence fails to prove a joint liability of the defendants.

Appellee claims he was employed by appellant Merchant at $100 per month, to have charge of race horses then in the possession of Merchant; that in pursuance of such employment he took the charge of the horses, performed the services required of him, paid out money for shipping and entering the horses in several races, and for their feed and keeping. To these facts appellee testified upon the trial. Merchant denied that he employed appellee or that he rendered the services or paid out the money for him as claimed. Merchant claimed that appellee was but a tout, following the horses from place to place, in pursuit of his own business. And other witnesses testified, more or less, to the same effect, so that the evidence between appellee and Merchant was conflicting.

As far as we have been able to discover from the evidence, independently of the possession by Merchant, there is no exúdence of the ownership of the horses, and in the absence of such, it will be presumed from such possession, that Merchant oxvned them.

Upon examination we find no sufficient evidence to support a verdict against appellant Sullivan. It does not appear that there was any business relation between the two appellants or that Merchant had any authority as agent or otherwise to bind Sullivan in whatever relation or transactions he may have had with appellee. The burden of proof was upon appellee to prove that Sullivan was jointly liable with Merchant, and this, we think, he failed to prove, and hence the verdict that was returned is not supported by the evidence.

Complaint is made by counsel for appellants that the court did not instruct the jury that they might find against one and not both of the defendants. In this respect the court was right, for it is the familiar rule in actions ex contractu;, the verdict must be against all or none of the defendants; and if appellants desired the jury to have been correctly instructed upon this point they should have presented an instruction to the court, which doubtless would have been given if requested.

It is argued also bv appellant Sullivan, that the court erred in overruling his motion to quash the attachment writ that was issued and served upon him, after the original writ was issued and served upon Merchant. We find in the record an interpleader filed by Sullivan, claiming the attached property, the horses in controversy, as his property, and denying the same to be the property of Merchant.. As we have already said, no evidence is contained in the record as to the actual ownership of the horses, and Ave presume they Avere the property of Merchant merely from his- possession of them. Appellant Sullivan was entitled to have the issue tendered by his interpleader tried, if he had insisted upon it, notwithstanding he Avas afterward made a party defendant to the suit, but so far as we are able to see from the record, he Avaived this right. If the attached property belonged to Merchant the only office the alias writ of attachment performed against Sullivan Avas that of a summons, and if the issuance and service of such writ upon him was irregular, as contended by counsel, he, by pleading to the declaration as he did, Avaived this irregularity, and can not now avail himself of it as error in this court.

Because there was no joint liability proved against appellants the verdict is contrary to the law and the evidence of the case, and the judgment of the County Court is therefore reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed. Reversed and remanded.


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    Newton Hannaman et al. v. W. O. Wallace.
    1. Chancery Practice — Effect of Sworn Answers. — Where a complainant in chancery calls for an answer under oath, he gives to the defendant the advantage of a sworn answer, which is to be overcome by at least two witnesses, or what is equivalent to the testimony of two witnesses.
    Creditor’s Bill. — Appeal from the Circuit Court of Shelby County; , the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the May term, 1901.
    Reversed and remanded, with directions.
    Opinion filed September 11, 1901.
    Chafee & Chew, attorneys for appellants.
    T. F. Dove and Walter C. Header, attorneys for appellee.
   Mr. Justice Wright

delivered the opinion of the court.

This was a creditor’s bill filed by the appellee against appellants to set aside a conveyance of land made by Haney Hannaman to her son George Hannaman, for alleged fraud, and that such conveyance was made to hinder and delay the creditors of the mother.

The court heard the cause and the testimony of the witnesses in open court, found the conveyance to be fraudulent, set aside the same and subjected the property conveyed to the payment of a judgment against Newton and his mother for $190.40 and costs, and to reverse the decree appellants bring their appeal to this court.

The bill required of the defendants an answer under oath, and discovery, and in it certain interrogatories were propounded to the defendants. Answer under oath was filed, discovery obtained in response to the bill, and all the interrogatories were answered, among which was the inquiry what George had paid for the land, and where he got the money. He answered and likewise the mother, that the consideration for the deed was the assumption by the son of a mortgage on the land, and that certain indebtedness existed from mother to son for money lent to her from time to time, in all exceeding $2,500, which equaled the substantial value of the land, not estimating the mother’s homestead, which was still claimed by her, and George also was to keep his mother and minor sister. Against these answers another brother, Martin, testified that his mother did not owe his brother George, as far as he knew, at the same time admitting that he had feeling against his brother George. From his own testimony it is apparent that Martin did not know, nor profess to know, whether his mother owed her son George, although it was evident he wished to be understood that he knew that she did. not. We are unable to discover that the answers of the mother and son have been overcome by that degree of proof demanded by the law, and are constrained to believe the court erred in failing to accept the sworn answers of the defendants as true, and we therefore reverse the decree of the Circuit Court, and remand the cause with directions to dismiss the bill for want of equity. Reversed and remanded, with directions.