of the persons to whom he had sold and transferred the same. The circuit court found the issues in favor of the appellee, and entered a decree dismissing the bill.

The board of review had no right to punish the appellant by raising his assessment for bis refusal to disclose to it the names of the persons to whom he had sold and transferred said notes and mortgages. Neither had it the right to assess to appellant, for 1901, property of which he was not the owner on April 1st of that year. There is no law authorizing a board of review to impose a penalty upon a mortgagee who declines to disclose to it the name of his assignee, where the mortgage has been sold and transferred in good faith before April 1st, by raising his assessment to an amount equal to the amount of the said mortgage; neither has it the right to assess one man's property to another, and when such an assessment is made the same is made without authority of law, and a tax based upon such assessment will be enJoined. Irvin v. Railroad Co., 94 Ill. 105, 34 Am. Rep. 208; Searing v. Heavysides, 106 III. 85; Allwood v. Cowen, 111 Ill. 481. In Irvin v. Railroad Co., supra, property belonging to the Illinois Central Railroad Company was assessed to the Mississippi Central Railroad Company. A bill was filed to enjoin the collection of the tax, and it was held the assessment was made without authority of law, and the court enjoined the collection of the tax. In Searing v. Heavysides, supra, certain grain was assessed as the property of complainant, but in which he had no interest, and it was held the tax levied on such assessment was levied without warrant of law, and the court restrained the collection of the tax. In Allwood v. Cowen, supra. It is said (page 486): "The court has had frequent occasion to declare that chancery has jurisdiction to enjoin the collection of a tax when it is levied without authority of law."

The decree of the circuit court is reversed, and the cause is remanded to that court, with directions to enter a decree enjoining the col lection of said tax, Reversed and remanded, with directions.

(196 III. 594)

CONSOLIDATED COAL CO. v. LUNDAK.1 (Supreme Court of Illinois. April 16, 1902.) MINING EMPLOYE-PERSONAL INJURIES-FALLING ROOF-RULES OF MINE-EFFECT-DIRECTION OF VERDICT-INSTRUCTIONS.

1. In an action by a mining employé for injuries caused by the falling of the roof of the mine, evidence examined with respect to defendant's negligence in failing to reasonably secure the roof, and held proper to refuse to direct a verdict for defendant.

2. Notices posted by a mining operator to the effect that persons accepting employment do so with full notice that the danger from falling roofs is one of the usual risks; that the manager does not assume that the place to which an employé is ordered is not dangerous, but every place is dangerous, and the duty

1 Rehearing denied June 10, 1902,

of ascertaining and avoiding the danger is on the employé, and that no employé is authoriz ed to run any risks, relying on the timberman; and that the operator, by employing timbermen, does not agree to secure the roof, -are not rules, within Mining Law 1899, § 32, requiring the operator to post rules "which shall govern all persons working in the mine," but are mere attempts to make laws under the guise of rules, and, in so far as operating as a contract against the operator's negligence, are void, as against public policy.

3. A rule posted to the effect that timbermen should have no duty except to retimber places in the mine which have once been properly timbered, and should in no case assume the duty of securing the roof, except as therein provided, unless expressly directed to do so by the mine manager, could not exempt the mine operator from liability for negligently failing to properly secure the roof.

4. An instruction ignoring a statutory provision relieving the operator from securing the roof at a place where coal is being mined, and only requiring him to provide props, caps, and timber for the miner to use, was not erroneous, where the place of the accident was not one where miners were working, but was over a track where the miners were not called on to put up props.

Appeal from appellate court, Fourth district.

Action for personal injuries by Edward Lundak against the Consolidated Coal Company. From a judgment of the appellate court (97 Ill. App. 109) affirming a judg ment for plaintiff, defendant appeals. firmed.

Af

Charles W. Thomas, for appellant. Burton & Wheeler and W. E. Hadley, for appellee.

CARTWRIGHT, J. Appellee was employed as driver of a mule hauling loaded cars along a track in appellant's nine from the place where the coal was mined to the pit, and returning with empty cars. Не was injured by the fall of a section of slate and clod, mixed with rock, from the roof of the mine, upon the track along which he was driving the mule, and brought this suit to recover the resulting damages. He obtained a verdict and judgment, and the judgment was affirmed by the appellate court.

The argument is directed to the alleged error of the trial court in refusing to direct a verdict for the defendant on the ground that there was no evidence tending to prove any of the allegations of negligence contained in any count of the declaration. It is not contended that there was any evidence tending to prove a want of care on the part of the plaintiff, or that the evidence did not establish the exercise of proper care by him. There was no evidence tending to show that he assumed the risk of the manner in which the roof was supported, or that he was aware of the danger, or had any reason to suspect it. The declaration charged a neglect of the duty imposed by law upon the defendant to furnish plaintiff with a reasonably safe place in which to work, by failing to reasonably se

cure the roof of the mine by props, crossbars, or timbers. The evidence on that question was substantially as follows: There was a permanent track laid on cross-ties up to about 14 feet from the face of the coal that was being mined. From that point to the face of the coal there was a temporary track, consisting of T rails laid on their sides on the bottom of the mine, with no ties under them. There was a down grade from the permanent track to the face of the coal, and at the connection the temporary track was about an inch and a half below the permanent one. The hanging piece of slate and clod that fell was near the junction of the two tracks, and a witness said that it was over the permanent track two or three feet from its end. The day before the accident, defendant's timberman, who was employed to secure the roof, had his attention called to the dangerous condition at that place, and said that he could put a bar up. A loader at the face of the coal asked him not to put it up until after a shot had been fired, which he said would disturb it; and the timberman left it in that condition, trusting to the loader to secure it afterward. The timberman did not return to the place, or give any further attention to the matter, and was not at the mine the following day, when the accident happened. On that morning the loader put up a crosspiece under the hanging slate across the track, and supported it by a post at each end. He was an experienced miner, but was not employed for that kind of work; and he called a machine runner to see if he thought the timbers were all right. They concluded that it was safe and left it. Plaintiff began work about 7 o'clock in the morning, and had made six trips before he was hurt, at about 11 o'clock. When he was injured, he started from the face of the coal, walking close at the side of the mule. The mule had sore shoulders, and when the car struck the sudden rise from the temporary to the permanent track, or at about that place, the sore shoulders were hurt, and the mule flinched and balked; and plaintiff stepped back to the car, and tried to hold it and assist the mule. The car ran back, and in some way a prop was knocked down, letting down the crossbar; and the slate, weighing several tons, fell on the plaintiff, between the mule and the car, cutting the chain by which the car was drawn, and injuring plaintiff. The fact that the slate fell between the mule and the car shows that the car had reached the post, wherever it may have been located with reference to the end of the permanent track. There was evidence that the props were usually set about two feet from the rail, and that the prop knocked down was from a foot to a foot and a half from the rail. The car extended outside of the rail, and was old, and had a play of about six inches between the

axle and the wheels. There was no direct evidence as to how the prop was knocked down; the only testimony on that subject being that of plaintiff, which was hearsay, and was stricken out by the court.

We think it apparent that the ruling of the court was right, in refusing to direct a verdict for the defendant. Either the prop fell down of itself, or was knocked down by the car while on the track; and setting a prop in such a manner that either would occur was evidence tending to prove a want of reasonable care on the part of the defendant. The inference most favorable to the defendant is that the prop was knocked down by the car owing to the play between the axle and wheels, and the lurching of the car when the mule balked.

It is also argued that the rules of the company offered in evidence exempted it from liability to the plaintiff. Section 32 of the mining law of 1899 is as follows: "It shall be the duty of every operator to post, on the engine house and at the pit top of his mine, in such manner that the employés of the mine can read them, rules not inconsistent with this act, plainly printed in the English language, which shall govern all persons working in the mine. And the posting of such notice, as provided, shall charge all employés of such mine with legal notice of the contents thereof." Laws 1899, p. 324. By that section it is made the duty of the operator to promulgate and post rules for the conduct of his business and the government of his employés. The duty of the operator to establish and post the rules, and the duty of the miner to obey them, are reciprocal. What counsel call "rules," which were offered in evidence in this case, are merely notices and statements designed to relieve the defendant from its duties and liabilities to its employés. With one exception, they are not in the nature of rules contemplated by the statute, as to the manner of conducting the business, nor regulating the employés. They consist of a notice that the business is dangerous, and every employé must take constant care to avoid injury; that persons accepting employment do it with full notice that the danger to injury from falling roof and coal is one of the usual risks of the service; that the manager does not assume that the place to which an employé is ordered is not dangerous, but every place in the mine is dangerous, and the duty of ascertaining the danger and avoiding it is on the employé; and that no employé is authorized to incur any risks relying on the timberman, and defendant, by employing timbermen, does not agree to secure the roof of the mine. They are nothing but an attempt to make laws under the guise of rules, and, so far as they are claimed to operate as a contract against the negligence and dereliction of the defendant, they are void, as against public policy. 14 Am. & Eng. Enc. Law, 910. The eleventh

rule is the only one that purports to govern the duties of employés, and it provides that the timberman shall have no duty except to retimber places in the mine which have once been properly timbered and secured, and that in no case shall he assume the duty of securing the roof, except as therein provided, unless expressly directed to do so by the mine manager. The fact that it provides that the timberman shall not per form a duty resting upon the defendant furnishes no exemption to it. It was the duty of defendant to have the roof over the track where plaintiff was required to work prop erly timbered and secured, and we appre hend it would scarcely be claimed that de fendant could make a rule that it would not perform the duty, or furnish any one to do it. It was the duty of the defendant, whether discharged through the agency of the timberman or some other person.

In the course of the argument as to the propriety of directing a verdict, it is incidentally said that the second instruction given at the request of the plaintiff is erroneous, because it ignores a provision of the statute which relieves the operator of the coal mine from securing the roof at the place where coal is being mined, and only requires him to provide props, caps, and timber to the miner to secure the place where he is working. The dangerous 'roof in this instance was not where miners were working, but was where they were in no danger from it. It was over the track, where the miners were not called upon to put up props, and the instruction was right.

No other error is alleged, and the judgment of the appellate court is affirmed. Judgment affirmed.

(196 Ill. 599)

O'HARA v. MURPHY.1 (Supreme Court of Illinois. April 16, 1902.)

ASSUMPSIT-CONTINUOUS SERVICES-LIMITA

TIONS-NEW PROMISE-APPEAL-AGENCY.

1. The supreme court cannot reverse a judgment of the appellate court affirming a jury finding below on the ground of insufficiency of evidence to sustain it.

2. Where plaintiff's claim was for services, and there was no evidence of any other debt, defendant's promise "to pay every cent he owed" plaintiff identified the debt with sufficient certainty to take plaintiff's claim out of the bar of the statute of limitations.

3. Such promise did not apply only to the amount due for services within the last five years before it was made, but applied to the amount for the entire period, including the part barred; the latter part also being "legally due."

4. The amount being a matter of computation, uot yet made, it was properly submitted to the jury on this promise.

5. Where defendant sent for plaintiff's sister, and requested her to tell plaintiff that he would pay him every cent he owed him, she was defendant's agent for that purpose, and

1 Rehearing denied June 10, 1902.

the promise was not made to a stranger, so as to prevent its operating to remove the bar of the statute of limitations.

Appeal from appellate court, Third district. Assumpsit by John Murphy against James O'Hara. From a judgment of the appellate court (96 Ill. App. 577) affirming a judgment in plaintiff's favor, defendant appeals. Affirmed.

This was an action of assumpsit, brought by appellee against appellant in the circuit court of Christian county. The evidence showed that the appellee, John Murphy, came to this country from Ireland in 1873, and went to live with appellant, James O'Hara, who had married his (Murphy's) sister; that he lived with O'Hara, working for him on his farm, until 1899, when they had a disagreement, and appellee quit O'Hara's service. It appears that in 1880 they had a settlement, and that $50 was then due appellee; that they then made a contract by which O'Hara was to pay appellee as much per month by the year as other farm hands in the neighborhood were paid; that during the time appellee worked for appellant the latter promised appellee that he would purchase 40 acres of land for him; that no settlement had since been made between them; that appellee received about $50 each year in money and clothing from appellant, but that neither of the parties kept any books or accounts in regard to the matter; that appellee lived in appellant's family, and that his washing and mending were done there; that at the time they had their disagreement and appellee quit appellant told him he would pay him; that he would settle up with him, and pay him every cent he owed him; that he did not want a cent of his money, or anybody else's; that his word of honor was as good as his note; and that appellant made a similar statement about three years before to appellee. After this suit was brought, appellant sent for appellee's sister, Margaret Carney, and told her to tell appellee he would settle with him, and pay every cent he owed him. Appellant pleaded the statute of limitations, and denied the contract and the promise to pay. The jury found for appellee, and rendered a verdict for him, assessing his damages at $2,691, which verdict was set aside, and on a new trial a verdict for $2,355 was rendered, and judgment entered on the same. On appeal to the appellate court for the Third district the judgment was affirmed, and appellant has further appealed to this court.

Hogan & Drennan and James B. Ricks, for appellant. J. C. & W. B. McBride, for appellee.

CARTER, J. (after stating the facts). The appellant insists that the judgment should be reversed on the grounds that the contract alleged by the appellee is not supported by sufficient evidence, that the claim is barred by the statute of limitations, and that the trial

court erred in giving and refusing instructions.

It is said by counsel that appellee lived with appellant as a member of his family, and that his special contract for pay for his services was not proved. There was sufficient evidence to go to the jury on this question, and we have no power to reverse the judgment of the appellate court affirming the finding below.

Appellant offered an instruction containing the statement "that there is no sufficient evidence to take this case out of the statute of limitations as to that part of the account or demand claimed to have accrued or been earned five years or more before the bringing of this suit," and directing the jury not to consider any services for such period, which instruction was refused. The point is argued at length by appellant, and we have examined the authorities cited in support of the argument, but they do not sustain his contention. Appellant's statement that he would settle up with appellee, and pay him every cent he owed him, identified the debt with sufficient certainty, as there was no proof that there was any other debt or account running be tween them other than the one sued on, and was sufficient to authorize the jury to find the new promise alleged.

Appellant insists that, even if it be conceded that he said he would pay every cent he owed appellee, that could be construed to mean only such a debt or amount as was legally due, and would apply only to the portion not barred by the statute. We do not understand the rule of law to be that, before a new promise can avail to renew a debt barred by the statute the attention of the debtor must be called to the fact that the debt is barred. Nor can it be said that a debt barred by the statute is not a legal debt. It is not enforceable if the debtor plead the statute, but the statute does not make it illegal. If it were illegal, it would not be a consideration for a new promise. A new promise is sufficient although the amount to be paid is not fixed. Schmidt v. Pfau, 114 Ill. 494, 2 N. E. 522. The amount could not be stated in the promise in this case, because it was a matter for computation, and the computation had not yet been made. On this promise it was proper to submit all matters in dispute to the jury to ascertain what was the amount owing to appellee, which amount appellant had promised to pay. Nothing was said or done at the time rebutting the presumption of a promise to pay, and Wachter v. Albee, 80 Ill. 47, Norton v. Colby, 52 Ill. 198, and Ennis v. Palace-Car Co., 165 Ill. 161, 46 N. E. 439, cited by appellant, are therefore not in point. It is true appellant denied the new promise, but the jury and the appellate court have found the facts against him. Nor was the promise testified to by Mrs. Carney a promise made to a stranger. She testified that appellant sent for her, and told her to tell appellee that he would pay him every cent he owed

him; thus making her appellant's agent for the purpose of communicating this promise to appellee. The question whether or not there was a new promise was for the jury. Miller v. Cinnamon, 168 Ill. 447, 48 N. E. 45.

The instructions, taken together as a whole, state the law on the subject with sufficient accuracy, and what was proper in the refused instructions was embodied in those given. The judgment must be affirmed. Judgment affirmed.

RICKS, J., having been of counsel in this case in the court below, took no part in its decision here.

(196 Ill. 626) SNELL v. CLINTON ELECTRIC LIGHT, HEAT & POWER CO.1 (Supreme Court of Illinois. April 16, 1902.) ELECTRIC LIGHT COMPANY-RIGHTS OF CUSTOMER-UNJUST DISCRIMINATION CHARGE

FOR TRANSFORMER-MANDAMUS.

An electric light company, authorized to supply the inhabitants of a municipality with electricity for lighting purposes, refused, without pay therefor, to furnish a customer with the use of a transformer, necessary to protect his house from fire. No extra pay therefor was demanded from other customers, and it was its general practice to furnish them free. Held an unjust discrimination, and that the company was properly compelled by mandamus to furnish the same without an additional charge.

Appeal from appellate court, Third district.

Petition for mandamus by R. Snell against the Clinton Electric Light, Heat & Power Company. A judgment awarding the writ was reversed by the appellate court (95 Ill. App. 552), and the petitioner appeals. Reversed.

This was a petition for mandamus, filed in the circuit court of De Witt county, to compel appellee to furnish appellant with electricity for lighting his house, as is alleged, upon the same terms and conditions that it required from its other consumers. The petition alleged that appellee refused to connect its wires with appellant's house unless he would pay for a transformer or converter, in addition to the usual charge for electric lighting, which payment appellant refused to make, on the ground that appellee did not require it of its other consumers, but furnished them a transformer without any additional charge. A jury heard the evidence and found the facts specially. On the findings by the jury and on the propositions of law afterward submitted and held, the court awarded the writ of mandamus. Appellee appealed to the appellate court for the Third district, which court reversed the judgment of the circuit court, and the petitioner appealed to this court. The facts as found by the jury are, substantially, that appellant applied to appellee to furnish electricity for

1 Rehearing denied June 10, 1902.

lighting his residence upon the same terms and conditions required by it from other consumers, and that appellee refused to do so; that appellee had not required other persons to pay for the use of transformers for dwellings, and that it was its general practice and custom to furnish the use of them free of charge for its customers; that it refused to furnish the use of a transformer to appellant because it had not been employed to wire his house, he having had such wiring done by one not connected with appellee; that appellee refused to connect with appellant's house, on the ground that his residence was not properly wired, but the jury also found that such residence was properly wired; that appellee had furnished transformers free of cost to consumers in cases where it had furnished the wires and had done the wiring of the building for compensation, and that it considered the profits accruing to it therefrom to justify it in furnishing the use of transformers without a specific charge for them; that the object and purpose of a transformer are to protect the house from destruction by fire caused by too great a voltage of electricity, and the consequent destruction of the wires in the house. A number of propositions to be held as law were offered by appellee, some of which were held as law by the court and some refused. One refused was, "Upon the findings of the jury the peremptory writ should be denied, and judgment rendered against the petitioner (the appellant) for costs."

E. J. Sweeney, for appellant. Warner & Lemon, for appellee.

CARTER, J. (after stating the facts). The trial court evidently held that the law applicable to the facts as found by the jury justified the awarding of the writ, for it refused to hold the proposition of law submitted on that question by appellee, while the appellate court was of the contrary opinion, for it made no finding of facts different from those found by the jury and the court below. The only question here is, therefore, whether or not, upon the evidence as found, the appellee made an unjust discrimination against appellant in charging him for a transformer in addition to the regular rates for electric lighting.

There is no statute regulating the manner under which electric light companies shall do business in this state. They are therefore subject only to the common law and such regulations as may be imposed by the municipality which grants them privileges. At common law, whether or not a difference in the treatment, accorded to different patrons amounts to a discrimination must depend upon the surrounding circumstances. A mere difference does not, of necessity, constitute unlawful discrimination. Appellee, in its answer to appellant's petition, avers that the

purpose and office of a transformer is chiefly for the protection of the house or building connected with the electrical system; that it prevents an excessive number of volts of electricity from passing from the main street wire into the building to be lighted; that the wires usually used inside a building are much smaller than the street wires, and incapable of safely carrying so many volts of electricity as pass along the street wires; that if all the voltage carried on the street wires were turned into the residence the natural consequence would probably be that the house wires would melt, and the heat from the excessive voltage would cause a fire; that it is to prevent this result that a transformer is necessary. A transformer or converter is described by counsel as a coil of copper wire contained in a sheet-iron box, and is usually placed on a pole outside of the building. Its office is to reduce the current from the main line, or, rather, to induce a lesser current in the wire leading to the house for house use. In this case the voltage would have been reduced from 1,000 volts to 50 or 100 volts. It appears that without the use of a converter the effect of turning this large voltage into a house would be to burn up the wires, and in the formation of short circuits there would be great danger of fire, and that the object of the converter is the protection of the house. It is a necessary appliance for the safe lighting of houses. The appellee had been in the habit of furnishing transformers, as needed, without any extra charge, for all houses which were wired for electricity by it, but claimed the right to charge for transformers in cases where it did not do the wiring, as it made no profit on the wiring in such cases. The transformer is just as much a necessary appliance in lighting houses as the pole on which it is fastened, or the wire that carries the electricity, or the boilers and dynamo used in generating it. It is entirely immaterial who does the wiring of the house,the electric light company or some other party; the transformer is necessary in either case. If the company does the wiring, that is a business distinct from that of furnishing electricity for lighting purposes, just as the putting in of gas and water pipes into a house is a distinct business from furnishing the gas or water to flow through them.

The jury found that the appellee had not demanded extra pay for the use of a transformer from any one else, and that it was its general practice and custom to furnish them free to its consumers. Appellee, being organized to do a business affected with a public interest, must treat all customers fairly and without unjust discrimination. While it is not bound, in the absence of statutory enactments, to treat all its patrons with absolute equality, still it is bound to furnish light at a reasonable rate to every customer, and without unjust discrimination. In 29 Am. & Eng. Enc. Law, 19, it is said: "The