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work from the boss, and that the latter refused to pay him for the same. It is true that other testimony furnished by the appellant tends to show that the day and night managers of the mine made examination of the roof and pronounced the same safe. These managers deny that they had any notice of its unsafe condition. But the testimony upon this subject was conflicting, and it was a matter for the jury to determine. Certain rules established by the company were posted in different places, where it was supposed they could be seen by the workmen. These rules warned the workmen against risking themselves near or under loose coal or bad roofs, and required them to ascertain whether the places where they were required to work had been made safe before entering them. So far as the deceased was concerned, it is shown clearly that he was unable to read, and therefore the rules furnished him no guide for his action in the matter. The appellant company, however, could not escape liability under the law by printing and posting rules in and about the mine. These rules were nothing but attempts to make laws, and, so far as they are claimed to operate as a contract against the negligence and dereliction of the appellant company, they were void, as against public policy. 14 Am. & Eng. Enc. Law (1st Ed.) p. 910. "A master cannot, by a contract with a servant, in consideration of the employment, exempt himself from liability to the servant for injuries sustained through his negligence. Such a contract is void, as against public policy." Id.

3. The appellant finds fault with the second instruction given by the court in behalf of the appellee. We see no objection to this instruction. It announced the doctrine that it was the duty of the appellant to provide a reasonably safe place for its servants to work in, and that, if it failed to provide such a reasonably safe place for appellee's intestate to work in, and by reason of such failure the deceased, while engaged in the performance of his duties as appellant's employé, and while in the exercise of due care and caution for his own safety, was injured by the falling of the roof of the mine, by reason of the absence of sufficient props or other means of making it safe, so that he died from the effect of such injury, then the plaintiff was entitled to recover. The evidence tended to show that the appellant failed to furnish props and cross-pieces at the place of the accident to support the roof, a portion of which fell upon the deceased. Whether or not the roof could have been made secure by the use of such props and cross-pieces was a matter in reference to which much testimony was introduced by both sides, and in reference to which there was much conflict between the witnesses. The whole subject, however, was for the consideration of the jury, and, being a question of fact, it is settled by the judgments

of the lower courts. Counsel for the appellant refer to a number of instructions, asked by it and refused by the trial court, and insist that such refusal was error; but the respects in which such instructions are alleged to have been erroneous are not pointed out in the argument of counsel, and therefore cannot be considered. The fourth instruction, asked by the appellant, told the jury that the appellee was bound to show that the deceased was in the exercise of ordinary care for his own safety, and that the accident was the result of the negligence of the appellant, and that the burden of proof was upon the appellee to establish these two facts by testimony. The substance of this instruction was embodied in many other instructions given for both sides by the trial court, and therefore its refusal could have caused no harm to the appellant. Appellant also complains that the court erroneously refused to give the third instruction asked by it. There was no error in refusing this instruction, because it required the jury to draw a distinction between a state of facts which would make an individual liable for such an injury as occurred to the deceased if this suit had been against an individual, and the state of facts which would authorize a recovery against the appellant company. Instructions should direct the attention of the jury to the facts established by the evidence, and not to some different state of facts, which might be proven in case of a suit against some other defendant than the defendant actually sued in the cause on trial.

4. This case, as originally commenced in the circuit court, was tried, and the trial resulted in verdict and judgment in favor of the plaintiff. Upon appeal to the appellate court the judgment was reversed, and the cause was remanded to the circuit court "for such further proceedings as to law and justice appertain." After the reversal in the appellate court and the redocketing of the cause in the circuit court, leave was granted to file a new and amended declaration. This leave was granted and the new declaration filed on October 15, 1900. Subsequently, on March 14, 1901, a motion was made by the appellant to tax the costs to the present appellee from the time of such redocketing up to the time of filing such new and amended declaration. This motion was overruled, and to the overruling thereof appellant excepted. The overruling of said motion is assigned for error. There was no error in overruling the motion to tax these costs to the appellee, for the reason that the motion came too late. No such motion was made at the time leave was granted to file the new declaration. After the filing of the new declaration, appellant made a motion for a continuance of the cause, which was sustained by the court, and the cause was continued. Subsequently appellant filed a demurrer to the declaration, which demurrer

was argued and overruled by the court. Still later, to wit, on March 14, 1901, appellant filed a plea of not guilty. It was not until after all these steps were taken that the motion to tax these costs was made by appellant. Section 23 of the practice act provides that, at any time before final judgment in a civil suit, amendments may be allowed on such terms as are just and reasonable. Section 1 of the act in relation to amendments and jeofails provides that the court shall have power to permit amendments in any pleading, either in form or substance, for the furtherance of justice, on such terms as shall be just, at any time before judgment rendered therein. Here the court permitted the amendment without requiring any terms from the plaintiff below. The making of amendments in such cases is largely within the discretion of the court. Misch v. McAlpine, 78 Ill. 507. The terms are ordinarily imposed as a condition precedent to the granting of leave to make the amendment. In other words, the imposition of terms generally precedes the granting of leave. The appellant made no objection to the granting of leave to file the amended declaration, and did not ask that terms be imposed upon the plaintiff below as a condition to the granting of such leave. The failure to make the motion until after the cause had been continued at appellant's request, and a demurrer had been filed to the declaration and overruled, and a plea of the general issue had been filed, amounted to a waiver of the right of appellant to insist upon the imposition of such terms. There is nothing to show that the court abused its legal discretion by permitting the amendment to be made without requiring the plaintiff below to submit to terms. The judgment of the appellate court is affirmed. Judgment affirmed.

(197 Ill. 48)

JOHNSON V. PEOPLE. (Supreme Court of Illinois. June 19, 1902.) ASSAULT WITH INTENT TO RAPE -CONFESSIONS-EVIDENCE- INSTRUCTIONS - ERROR NOT CURED-CHARACTER OF PROSECUTRIX. 1. On prosecution for assault with intent to commit rape, there was evidence that defendant had offered one witness a bribe to testify that he had overheard a conversation between defendant and prosecutrix nearly contemporaneous with the alleged assault; another, that he had told defendant he heard defendant "had a little fight with the girl." and defendant answered, "Yes; she kicked and fought like a wild cat," and that defendant had offered a third witness money to testify that he had had sexual intercourse with prosecutrix, and had told a fourth that he intended to swear that he had intercourse with prosecutrix twice on the occasion of the alleged assault. Held, that an instruction that a free and voluntary confession of guilt is the highest order of evidence had no foundation in this testimony.

2. The error of giving such instruction was not cured by the giving of another to the effect that verbal admissions should be received with

caution, and were often the most unreliable of all evidence.

3. On a prosecution for assault with intent to rape, where there was no evidence that prosecutrix was of bad character for chastity, an instruction permitting the jury to consider the question of her chastity was erroneous.

4. An instruction that it matters not what may have been the previous character of the woman was not erroneous.

5. Where prosecutrix in a prosecution for assault with intent to rape is contradicted by defendant, prosecutrix need not necessarily be corroborated, to justify a conviction.

6. Consent by a woman to familiarities with her person, and persuasions and requests for sexual intercourse, do not deprive an attempt to have forcible carnal connection with her of the character of an assault.

7. In a prosecution for assault with intent to rape, an instruction that, if defendant and prosecutrix went buggy riding with a mutual design and understanding to have sexual intercourse, the jury had a right to conclude that she consented to whatever was done, was er

roneous.

S. An assignment of error based on the overruling of a motion in arrest of judgment in a criminal case on the ground that the indictment was insufficient cannot be sustained where the abstract does not show the contents of the indictment.

9. It cannot be said that the court erred in allowing the record in a criminal case to be amended, in the absence of the evidence on which the court acted.

Error to circuit court, Shelby county; Samuel L. Dwight, Judge.

Grant Johnson was convicted of an assault with intent to commit rape, and brings error. Reversed.

Anthony Thornton, for plaintiff in error. H. J. Hamlin, Atty. Gen., J. K. P. Guder, State's Atty., Clark & Richardson, and Geo. B. Gillespie, for the State.

CARTWRIGHT, J. Plaintiff in error was convicted in the circuit court of Shelby county of the crime of assault upon Myrtle Carter with intent to commit rape, and was sentenced to the state reformatory. At the time of the alleged assault the defendant was a school teacher, 18 years old, and Myrtle Carter was about 17 years old, and they both lived in the village of Tower Hill. On that occasion he took her for a ride in his buggy in the evening, and drove south from the village about three miles, where he stopped; and they both testified that she then jumped out of the buggy, and began screaming and shouting for help. She testified that he told her on the road that he had brought her out for a certain purpose, and attempted to take improper liberties with her without her consent; that when she jumped out there was a struggle and forcible attempt, from which he desisted only when she told him it was her sick time, and promised to do as he wished at another time. His testimony was that she went with him upon an express agreement and understanding that they were to have sexual intercourse; that she made no objection to his advances in the buggy; that, when she jumped out and screamed, she said it was her sick time, and

he asked her why she did not tell him before; that he used no violence; and that they then got back in the buggy and went home. They both testified that they sang and talked on different subjects going home. As soon as they got back, she swore out a warrant for his arrest. This was the only direct evidence as to the transaction. A wit

ness testified that defendant offered him a bribe to testify falsely that he heard a conversation between the parties in the buggy, and that defendant was awful scared about the affair. Another testified that he told defendant he heard he had a little fight with the girl, and defendant said, in a joking way, "Yes; she kicked and fought like a wild cat." There was also evidence that defendant offered another witness $25 to testify that the witness had sexual intercourse with the girl, and told another witness that he was going to swear that he had sexual intercourse with her twice that night. The defendant denied these conversations, but they constituted the only evidence to which the following instruction, given at the request of the people, could possibly be applied: "The court instructs the jury that a free and voluntary confession of guilt is the highest order of evidence." Relating to the same evidence, the court gave the following instruction at the request of defendant: "The court instructs the jury that verbal admissions should be received with caution, and are sometimes the most unreliable of all evidence, and the jury should carefully consider all the evidence and the circumstances proved in the case in determining the weight to be given to such admissions." The instructions related to the same identical evidence, and in one his alleged statements were characterized as confessions and the highest order of evidence, and in the other as the most unreliable of all evidence. They were irreconcilable, and the jury were left to take their choice. Regardless of the question whether the instructions would be proper in any case, it was error to give the first one, for want of any evidence on which to base it. It was an abstract proposition of law, not applied to the case in any way, and it could not be. While it is not error to give an abstract proposition of law to the jury as an instruction, if it will not mislead them, it is not error to refuse one. This one was misleading, and of the most hurtful kind. The evidence of defendant's statements tended to prove his guilt, but they could not be distorted into confessions of guilt. A confession is an acknowledgment of guilt. 1 Greenl. Ev. § 170. It is a voluntary admission or declaration by a person of his agency or participation in a crime. It is an acknowledgment of guilt, and not of facts criminating in their nature. 6 Am. & Eng. Enc. Law (2d Ed.) 521. The corpus delicti cannot be proved by confessions alone (Williams v. People, 101 Ill. 382), but a confession may be sufficient, with independent

proof of the crime, to warrant a conviction (Gore v. People, 162 Ill. 259, 44 N. E. 500). The error was not cured by telling the jury in the other instruction that the evidence of admissions should be received with caution, or that it might be the most unreliable of all evidence. The jury would be as liable to follow one as the other.

Objection is made to an instruction given at the request of the people to the effect that, in case of an assault of this kind, it matters not what may have been the previous character of the woman. It is urged that the character of Myrtle Carter was in question, and that the instruction was in conflict with one given at the instance of defendant, by which the jury were permitted to consider the question of her character. There was no evidence tending to prove that she was of bad character, and the court ought not to have submitted that question to the jury. Defendant was allowed to prove that when she was a child 12 years old she lived with her mother in a place of bad repute, but there was nothing whatever against her character for chastity, and the instruction asked by defendant and given ought to have been refused. The error was against the people on that subject. In fact, many errors were committed in favor of defendant, and, if we were to set off errors, there would be a balance against him. In one instruction the court advised the jury that when the woman testifies to the charge, and the man denies it, the woman must be corroborated. In another, the jury were told the law was that consent by a grown woman to familiarities with her person, such as kissing and the like, and persuasions and requests for sexual intercourse, would deprive the conduct of the defendant of the character of an assault. Another was that if Myrtle Carter agreed to take the ride with defendant, and there was a mutual design and understanding between them to have sexual intercourse, the jury had a right to conclude that she consented to whatever was done. None of these instructions stated the law. A woman might, from her appearance, conduct, and manner of testifying, impress the jury with the absolute truthfulness of her testimony, and the defendant show that he was utterly unworthy of belief. Consent to familiarities is not, as matter of law, consent to carnal intercourse; and it is not the law that, if defendant and Myrtle Carter left home with a mutual design of the kind mentioned, defendant had a right to assault her and make an attempt by force. Notwithstanding the errors in favor of defendant, we cannot say that the result must necessarily have been the same if the erroneous instruction, by which alleged statements were treated as confessions of guilt, and accorded the highest place in the scale of proof, had not been given. The instruction was of a very prejudicial character, and the error was not remedied by the errors against the people.

The court overruled a motion in arrest of judgment, based on the ground that the indictment was insufficient. The abstract merely shows the word "indictment," without any clue to its contents. The ruling is presumed to be right, and the abstract affords no means of determining otherwise. That is also true as to the assignment of error that the court erred in allowing the record to be amended. The abstract does not show on what evidence the court acted.

The judgment is reversed, and the cause remanded. Reversed and remanded.

(197 Ill. 391)

QUICK v. COLLINS. (Supreme Court of Illinois. June 19, 1902.) SALE OF LAND BY MASTER-NOTICE-INADEQUACY OF PRICE.

1. Report by a master of a sale of land under a decree should show compliance with the terms of the decree, as to the giving of notice thereof.

2. Mere inadequacy in the price obtained on a sale of land by a master under a decree will not justify the court in refusing to approve the sale unless so gross as to raise a presumption of fraud.

3. Where land worth $90 or more per acre was sold by a master, under a decree, for $83.81 per acre, the inadequacy in price was not so great as to raise a presumption of fraud.

4. A decree directing the sale of land by a master required the publication of newspaper notices for 4 weeks prior thereto and the posting of notices in 10 of the most public places in the neighborhood. On objection to the sale, made immediately thereafter, it appeared that notice was published 4 times prior to the sale in a weekly newspaper, but that the first publication was only 24 days before the sale, and that, though several notices were posted, none of them were posted for the required length of time or in the neighborhood of the property. Held, that the sale should be set aside.

Appeal from circuit court, Piatt county; W. G. Cochran, Judge.

Partition by Florence Ida Collins against Wm. D. Hancock and others. There was a decree for plaintiff, pursuant to which the land involved was sold by a master, and plaintiff filed objections to the confirmation of the sale. From a decree refusing to confirm the sale James F. Quick, the purchaser thereat, appeals. Affirmed.

Eckhart & Moore and James L. Hicks, for appellant. E. J. Miller and W. G. Cloyd, for appellee.

CARTWRIGHT, J. On November 4, 1901, the circuit court of Piatt county entered a decree in a suit for partition pending in said court, in which the appellee, Florence Ida Collins, was complainant, directing the master in chancery to sell 183 acres of land in said county. On December 28, 1901, the master in chancery filed in said cause his report, stating that, after having duly advertised the land according to the requirements of said decree, he had on that day sold 160 acres of the land to the appellant, James F. Quick,

and also sold the remaining 23-acre tract to another purchaser. Complainant filed her objections to the report of sale as to the 160 acres on the grounds that the land was sold for an inadequate price and that the master in chancery did not comply with the requirements of the decree in publishing and posting notices of the sale. That land was sold for $83.81 per acre, subject to the taxes for the current year, and she tendered a bond in the sum of $10,000, with securities, conditioned that it would bring at least $90 per acre on a resale. No objection was made as to the 23-acre tract, and the report was confirmed as to that tract. Notice having been served on appellant as purchaser, he was admitted, on his motion, as a party defendant for the purpose of resisting the objections. The court heard the evidence of the parties and sustained the objections, and ordered the master to readvertise and resell said 160 acres. Appellant excepted and prosecuted an appeal from the order.

The decree directing the sale made the following provisions as to notice: "The said master shall first give public notice of such sale and the time and place, and the terms thereof, by publication in some public newspaper printed and published in said county, for at least four weeks prior to such sale, and by posting written or printed notices thereof in at least ten of the most public places in the neighborhood and in the county where said premises are situated." The notice was published by the master in chancery in a newspaper on December 4, 11, 18, and 25, 1901, and gave notice of a sale to be held, and which was held, December 28, 1901; the first publication being 24 days prior to the sale. The master's report did not show that he posted any notices. The burden was on the master to show that he had complied with the decree, and if he posted the notices the report should have shown that fact and where they were posted, or, if they were posted by others, it should have been accompanied by affidavits proving the posting. The report did not show anything on that subject, but it was proved on the hearing of the objections that the master posted only one notice, which was on December 3, 1901, on the north door of the court house in Monticello, 17 miles distant from the land. It was also proved that he had 50 notices printed, and on December 4, 1901, delivered them to other parties and mailed them to other places to be posted. Some of these notices were afterward posted up in towns or cities not in the neighborhood of the land to be sold. There was also evidence that before the sale notices were seen posted in the neighborhood of the premises, but there was no evidence when they were posted. The notice was not published 4 weeks before the sale, and no notice was posted for that length of time. There was no irregularity at the sale, and the master made every reasonable effort to obtain the full value of the property, but the

land was proved to be worth $90 or more per was of notices which were not posted in the

acre.

Under the facts of this case the court would not have been justified in refusing to approve the sale merely because the land was worth more than it brought at the sale. Appellant was not guilty of any fraud or misconduct in the purchase, nor was the master in chancery in making the sale, and mere inadequacy in price will not justify a court in refusing to approve a sale and depriving a purchaser of the benefit of his purchase unless the inadequacy is so gross as to raise a presumption of fraud. Barling v. Peters, 134 Ill. 606, 25 N. E. 765; Connely v. Rue, 148 Ill. 207, 35 N. E. 824; Quigley v. Breckenridge, 180 Ill. 627, 54 N. E. 580. There was no such inadequacy in this case.

The other objection, that notice was not published and posted as required by the decree, was fatal to the sale. In ordering the sale the court exercised its judicial discretion as to the time and manner in which notice of the sale should be given, and the master had no discretion, but was bound to execute the decree as made. It was essential to the validity of the sale that the notice should be given as directed, and a court is not authorized to approve a sale where the master has not given the notice required by the decree. The decree constituted the sole authority of the master in chancery to make the sale, and unless he followed the authority the sale could not be approved. Jacobus v. Smith, 14 Ill. 359; Reynolds v. Wilson, 15 Ill. 394, 60 Am. Dec. 753; Sowards v. Pritchett, 37 Ill. 517. A court of equity, having regard to the stability of judicial sales, will not always interfere to vacate them for want of a strict compliance in the matter of notice, after the lapse of a considerable time; and, in a case where no objection was made to the manner in which notice was given of certain judicial sales for ten years and nine months after the sales were approved, it was held that the court should not set aside the sales or vacate them unless positive injury was shown. Garrett v. Moss, 20 Ill. 549. But where the objection is urged on the filing of the master's report, before confirmation, the sale will not be approved if notice has not been given as required by the decree. Wilson v. Ford, 190 III. 614, 60 N. E. 876. The decree in this case required notice to be published for at least four weeks prior to the sale and written or printed notices to be posted in at least ten of the most public places in the neighborhood and in the county where the land was situated. The plain meaning of the decree was that notice should be published at least four weeks prior to the sale, and that was not done. The notice was published four times, but the first publication was not four weeks before the sale. The master posted only one notice and knew nothing about any other being posted. All that he did was to deliver or mail them to other parties with directions to post, and all the evidence of actual posting 64 N.E.-19

neighborhood. None of the notices were posted for the requisite length of time, and there was no evidence when those seen in the neighborhood were posted. It was necessary for the master to affirmatively show that he had given notice as required by the decree. Not only was there a failure to make such showing, but it was proved that the decree was not complied with. Appellee had a right to make her objections to the confirmation of the report, and did nothing to estop herself from exercising that right. The decree is affirmed.

Decree affirmed.

(197 Ill. 179)

DUGGAN v. UPPENDAHL et al. (Supreme Court of Illinois. June 19, 1902.) DEEDS-DESCRIPTION OF LAND-MISTAKEPAROL EVIDENCE-SETTLEMENT OF DISPUTED BOUNDARY.

1. In ejectment, where defendant claimed the tract in controversy under a deed which specifically described a tract other than that in controversy, evidence that, before the execution of the deed, defendant and his grantor had the land surveyed, and formulated the description with the intention of conveying the tract in controversy, was inadmissible.

2. The doctrine that where parties orally agree on a disputed boundary, and occupy accordingly, they are bound thereby, has no application to a case where land is conveyed by a deed definitely describing the land, and by mutual mistake the grantee occupies another tract, and, in ejectment by a subsequent grantee for the land actually occupied, does not render parol evidence admissible to show that the land occupied was that intended to be conveyed.

Appeal from circuit court, Macon county; Edward P. Vail, Judge.

Action by Mary Duggan against Henry Uppendahl and others. From a judgment for defendants, plaintiff appeals. Reversed.

T. F. Drew and A. G. Webber, for appellant. Mills Bros. and Mills & Fitzgerald, for appellees.

BOGGS, J. The appellant instituted an action in ejectment against the appellees to recover a small parcel of land 25 feet and 4 inches in width, and 518 feet in length, situate adjacent to the right of way of the Peoria, Decatur & Evansville Railroad, in the village of Dalton City, in Moultrie county, more particularly described by metes and bounds in the declaration. Trial by jury was waived, and the cause was heard before and submitted to the court for decision. The finding was that defendants (appellees here) were not guilty, and judgment was entered in accordance with such finding. The plaintiff below has brought the record into this court by appeal.

Appellees Henry and John Uppendahl held possession of the disputed premises as tenants of the appellee W. H. Taylor. The appellant and said appellee Taylor each sought to trace title from a common source, namely, the title

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