order of the court, various other sums of money, aggregating nearly the entire amount of money in his hands as such receiver; that the greater portion of said payments was made on account of taxes on said property, ground rent for leasehold, and interest upon the indebtedness due and owing upon the above-mentioned Open Board of Trade Building, and all of said payments, including said $50,000, were made on account of the indebtedness incurred and owing by said Gore & Heffron, and for which the said Heffron and the estate of said Gore were liable; that pending said appeal, and until the 6th day of December, 1894, the said Laughlin, as receiver, continued in possession of said property, and continued to conduct said hotel in the same manner as he had done, as such receiver, prior to the sale of said property under said decree; that on the 6th day of December, 1894, said receiver, pursuant to the order of this court, and upon the petition of the complainants, joined in a lease of said hotel, and the furniture and fixtures thereof, to Messrs. Summerfield & Bedard, and that said Summerfield & Bedard entered into possession of said hotel, and of the furniture and other property thereof, and continued to conduct said hotel business until July 1, 1895, and on that date said complainants took possession of said property, and sold and transferred said hotel and said furniture and other personal property to one Frank Sayre Osborne; that said complainants never paid over to the receiver of this court any money derived from said sale, and that said furniture and other personal property above described are now out of the possession of said complainants and beyond their control; that on the 15th day of July, 1895, there was no money in the hands of the receiver in this cause, all of the money in the hands of the said receiver having been paid out prior thereto, pursuant to the orders of the court; and that there is not now, and never has been in the possession of the receiver in this cause, since said 15th day of July, 1895, any money or property whatsoever.

"The court further finds that Emma Benes, the intervener herein, was on or about the 8th day of May, 1891, employed by Nicholas D. Laughlin, as receiver as aforesaid, to work in the laundry of said hotel, and on the 29th day of May, 1891, while she was in the exercise of ordinary care, her right hand and arm were, without her fault, drawn into one of the steam mangles used in said laundry, and her arm was thereby so crushed that it became necessary to amputate the same about five inches below the shoulder joint, and it was so amputated; that on the 10th day of September, 1891, she commenced suit in this court against said James J. Gore and Patrick H. Heffron to recover damages for said injury, and afterwards, to wit, on the 1st day of June, 1892, she commenced suit to recover dam

ages for said injury against John J. Knickerbocker, George G. Newbury, and Ellis Hagenbuck, as executors and trustees of the estate of James J. Gore, deceased; that said Nicholas D. Laughlin, as such receiver, was made a party defendant to said suit May 28, 1894; that said suit was tried, and a verdict was rendered for the plaintiff, and a new trial was granted on motion of the said receiver, Nicholas D. Laughlin, and said John J. Knickerbocker, George G. Newbury, and Ellis Hagenbuck, as trustees as aforesaid, and while said suit at law was still pending in this court, on the law side thereof, said Emma Benes, on the 27th day of March, 1895, by leave of this court, filed her intervening petition herein, and filed therewith a copy of her amended declaration in said cause, and asked in her said intervening petition that the said copy of her said declaration be taken and treated as a full statement of her claim; that on the 17th day of November, 1898, said Emma Benes, by leave of the court, filed an amendment to her said original intervening petition; that the injury to the intervening petitioner, as set forth in her declaration, was caused by the negligence of the defendant, Nicholas D. Laughlin, as receiver as aforesaid, as alleged in her declaration, and without any fault of the said intervening petitioner; that the evidence sustains the declaration of the intervening petitioner, and sustains her claim as set forth in her intervening petition as amended, and that she has sustained damages, by reason of the injury aforesaid, in the sum of $4,500; that her said claim for damages, having accrued while said Nicholas D. Laughlin was in charge of said hotel as such receiver as aforesaid, became and was, and should be treated and regarded as, one of the operating expenses of said receivership, and therefore became, and is hereby declared to be, a lien upon said hotel and hotel business, and upon all the furniture and fixtures thereof, and all the proceeds thereof, from and after the date of said injury, to wit, from the 29th day of May, 1891; that said suits at law were commenced by said Emma Benes during her minority, by her next friend; and that she attained her majority on the 20th day of April, 1893.

"The court further finds that the $50,000 so paid out of the funds in the hands of said receiver as aforesaid, on said mortgage indebtedness of said Gore & Heffron, was mostly accumulated from the proceeds of the said hotel and hotel business, and that said hotel and hotel business, and the furniture and other property aforesaid thereof, were purchased by said complainants herein, and that said payment of said $50,000 on said mortgage indebtedness was reduction, by so much, of the mortgage indebtedness, and was equivalent to a payment to and for the benefit of the estate of said Gore, represented by the complainants

herein; that complainants at the time of said payment of said $50,000 had actual notice of the demand and claim of said intervening petitioner; that said complainants purchased said hotel business, furniture, and other property aforesaid, subject to the aforesaid lien of said intervening petitioner arising out of her said claim for damages, and is a part of the operating expenses of the said Nicholas D. Laughlin in operating said hotel and hotel business; that the reasonable value of the furniture and other property above described, of said hotel, on the 1st day of July, 1895, when they were taken by said complainants out of the hands of the receiver herein, was the sum of $9,250, and that said sum is now in the hands of said complainants, less the sum of $1,170.40 paid out by complainants, pursuant to the orders of the court, on claims adjudicated against said receiver herein, leaving a balance of that fund still in the hands of said complainants, subject to the order of the court as aforesaid, or $8,079.60; that said intervening petitioner, Emma Benes, ought not to be barred from recovering herein by reason of anything contained in the plea of the statute of limitations filed herein January 30, 1899, and reserved by the court, by its own order of February 1, 1899, for further hearing on final argument, and the said plea is by the court overruled; that said Patrick H. Heffron received no portion of the said furniture and other property above described, taken from the possession of the receiver as aforesaid, and has derived no benefit from the $50,000 paid out by the receiver as aforesaid for the benefit of the real estate of the said complainants, wherefore it is ordered, adjudged, and decreed that said intervening petition be dismissed as to the said Patrick H. Heffron. It is further ordered, adjudged, and decreed that the said John J. Knickerbocker, Ellis Hagenbuck, and Willis Smith, as trustees of said James J. Gore, deceased, pay to Emma Benes, or to Jones & Lusk, her solicitors, within three days from the entry of this decree, said $4,500, and the same is hereby declared to be a lien upon the said hotel and hotel property, and leasehold interests pertaining thereto, and upon the furniture and fixtures thereof that may now be in the possession or control of said complainants as trustees of the estate of said Gore, deceased, or the title to which may yet remain in said complainants as such trustees; that if the said John J. Knickerbocker, Ellis L. Hagenbuck, and Willis Smith, trustees under the last will and testament of said James J. Gore, deceased, shall fail to make the said payment within three days after the entry of this order as aforesaid, then this court will, upon proper application, make such further order for the enforcement of this order as may be necessary or proper, and, for the purpose of enforcing payment of said $4,500, this court does 63 N.E.-12

hereby retain jurisdiction of all of the parties hereto."

John W. Smith, for appellants. Jones & Lusk, for appellee.

CARTER, J. (after stating the facts). We are of the opinion that the facts in this case, as found by the decree set out in the statement of the case, were established by the evidence. No question is raised as to procedure, and it only remains to be determined whether, upon the facts found, there is any error of law in the decree.

In Knickerbocker v. Mining Co., 172 Ill. 535, 50 N. E. 330, 64 Am. St. Rep. 54 (a case growing out of the same receivership), this court said (page 546, 172 Ill., page 333, 50 N. E., and page 57, 64 Am. St. Rep.): "When Gore, whom appellants represent, procured the appointment of a receiver over the property, he created a charge thereon for the expenses of the receivership; hence the appellants cannot relieve the property of that charge by purchasing it at a foreclosure sale under an incumbrance created by Gore, and for the payment of which he and his representatives are liable." And in that case it was held that the appellants, as representatives of Gore, were liable for coal purchased and used by the receiver in running the hotel. That case differs from this in the nature of the liability, and perhaps in other respects which will be mentioned in another place; but the same facts appeared in that case as in this, establishing the liability of appellants, as such trustees of the property in question, for the expenses of the receivership.

It appeared that Gore's estate received the benefit of $50,000 derived from the rents and profits received by the receiver, and also received the furniture and furnishings of the hotel, amounting in value to upwards of $8,000,-in other words, that the appellants, as such trustees, had received from the fund in the hands of the receiver, and which was burdened with the expenses and liabilities of the receivership, an amount of money and property largely in excess of such liabilities. In Bartlett v. Power Co., 177 Ill. 68, 52 N. E. 339, 42 L. R. A. 715, 69 Am. St. Rep. 206, we held that damages for injuries to persons or property during the receivership, caused by the torts of the receiver's agents and employés, are classed as a part of the operating expenses, and are payable out of the income, or, if necessary, out of the corpus. See cases there cited. We are of the opinion that the injury to appellee was caused, as found by the decree, by the negligence of the receiver in operating the laundry where said appellee was hurt, and that the income and property which he received, and which, to a large amount, was used to pay Gore's debts, or was received by his trustees, was burdened with the liability to satisfy whatever damages appellee should recover for such injury. It was adjudged that

she should recover $4,500, and no reason is perceived why Gore or his trustees should not, to the extent of the money and property of which they received the benefit from the receiver, be required to pay these damages to appellee. It appears that there is nothing now in the hands of the receiver with which to pay them. It is immaterial that successive receivers had been appointed. The receivership continues, though the personnel of the receiver may be changed. High, Rec. (3d Ed.) § 395b. See, also, McNulta v. Lockridge, 137 Ill. 270, 27 N. E. 452, 31 Am. St. Rep. 362, where it was held a receiver is liable, as receiver, for the negligence of his predecessor as receiver, whereby another is injured, and that the judgment is in the nature of a judgment in rem, and is payable out of the trust fund.

This brings us to the point upon which appellants chiefly rely for a reversal of the decree, and that is that appellee's claim was barred by the statute of limitations. The plea alleged and the record shows that the appellants were not named as parties to appellee's intervening petition until more than seven years after the injury, and two years after appellee came of age. The amended and supplemental petition was filed November 17, 1898, and then for the first time she named appellants, the trustees, as parties. But she had intervened in a cause to which they were parties, and filed her petition to compel payment out of a fund which was bound for such payment, in apt time, and these trustees received the benefit of such fund. They were not made parties as persons originally liable for her injury, but only as persons who were already parties to the original cause in which she had intervened, and who had acquired the fund or property pendente lite out of which she was entitled to have her claim paid. We are of the opinion that the statute does not apply. The proceeding was a continuous one, and the case is not governed by the principle that, as to a new party added to a pending case, the cause is to be considered as first commenced when he is made such party. And we cannot regard as applicable the many cases at law cited by appellants to the point that if the plaintiff. by amendment, adds a new cause of action or a new party after the statute has run, such new cause of action is barred, and the whole cause is barred as to such new party. No new cause of action was added by the supplemental petition, and no new parties were added to the pending cause. Appellants became parties on the death of Gore, and had notice of appellee's claim through her intervening petition filed in the case, containing a copy of her declaration which she had filed in her action at law against the receiver.

We are of the opinion that appellants have not sustained their assignments of error, and the decree will therefore be affirmed. Decree affirmed.

(195 III. 502)

MANN et al. v. LEARNARD et al.1 (Supreme Court of Illinois. Feb. 21, 1902.) TRIAL INSTRUCTIONS-TIME OF SUBMISSION. 1. Under Practice Act (Hurd's Rev. St. 1899, p. 1289) § 41, providing that on trial of cases by the court either party, "within such time as the court may require,' may submit written propositions to be held as the law of the case, propositions of law may be submitted after argument and before the final judgment is rendered, in the absence of any requirement that they be sooner presented.

2. Though a rule of court requires propositions to be submitted before argument, the court should, in its sound legal discretion, receive propositions submitted after argument, where couusel states he thought the rule required the propositions to be submitted before judgment.

Appeal from appellate court, First district. Action by Jonas Learnard and others against Henry Mann and others. There was a judgment for plaintiffs, and from a judgment of affirmance by the appellate court defendants appeal. Reversed.

Alexander S. Bradley and Henry M. Shabad, for appellants. Alden, Latham & Young, for appellees.

WILKIN, C. J. The appellees in this case brought an action of assumpsit against the appellants in the circuit court of Cook county on the common counts, with a bill of particulars, by which they claimed $1,460.78 as due them for lumber and building materials theretofore sold and delivered. Several pleas were interposed, to the effect that the plaintiffs had failed to comply with the contract under which the lumber and material were purchased, both as to the time in which they were to be delivered and the quality of the same, resulting in damages to the defendants. Issues were formed upon these pleas. and by agreement of the parties the case was submitted to the court, both upon issues of law and fact, without the intervention of a jury. Judgment was rendered for the plaintiffs for the amount of their claim, with interest, to which the defendants excepted and prayed an appeal to the appellate court for the First district, but that court affirmed the judgment below, and we are now asked, upon this appeal, to reverse that judgment of affirmance.

As the record is presented here, no propositions of law were passed upon by the trial court, but it is assigned for error that "the court erred in refusing to receive the propositions of law on behalf of the appellants,

filed in court on June 4, 1900, and marked 'Offered,' but refused as not being offered in time," etc. It appears from the bill of exceptions that several propositions of law were asked by the defendants, some of which, at least, we regard as presenting questions of law properly involved in the case,at least, they were such as the defendants had a right to have passed upon if presented 1 Rehearing denied April 5, 1902.

in time. After each one of these there is the indorsement, "Offered to court, but refused, as not being offered in time." It is admitted that these propositions, as well as those offered by the plaintiffs, were not submitted to the court until after the argument of counsel had been concluded and the court had made some remarks preliminary to his final decision in the case, but before the final decision, or any intimation as to how it would be decided. Upon the submission of the propositions the judge said: "Gentlemen, under the rules those propositions ought to have been handed up before the argument commenced. Mr. Bradley (one of appellants' counsel): I thought the rule was, before the court had announced his opinion. The Court: These propositions came too late. I decline to receive them." Thereupon counsel for the plaintiffs withdrew their propositions, but the defendants, upon the entering of the judgment, duly excepted. In our view of the case, the question whether the court erred in refusing to pass upon the propositions of law is vital to the case. We have many times held that, where the issues of law and fact are both submitted to the court without a jury, and no written propositions to be held as the law of the case are submitted to the court to be passed upon, and no question arises as to the rulings of the court upon the testimony or other matter during the progress of the trial, no question of law will be presented for our determination. It is true that in this case there are some assignments of error upon the admission and exclusion of testimony, but they are, we think, without substantial merit. The testimony is somewhat conflicting, though we think it clearly sustains the findings and judgment of the trial court, unless there was some error by that court in the application of the law to the facts; and therefore, if the court properly refused to consider and pass upon the propositions of law, its judgment was right, and the appellate court did not err in affirming it. If, upon the other hand, the court should have ruled upon those propositions of law, the judgment of the appellate court must be reversed, and the cause remanded for further proceedings. The question is one of importance, not only to the parties to this case, but to the courts and profession generally throughout the state.

Section 41 of the practice act (Hurd's St. 1899, p. 1289) provides: "In all cases, in any court of record of this state, if both parties shall agree, both matters of law and fact may be tried by the court; and upon such trial either party may, within such time as the court may require, submit to the court written propositions to be held as law in the decision of the case, upon which the court shall write 'Refused' or 'Held,' as he shall be of opinion is the law, or modify the same, to which either party may except as to other opinions of the court." It is clear that under

the statute the propositions of law must be submitted to the court upon the trial and before the final judgment is rendered. The language is, "upon such trial," etc.; and we held in Allman v. Lumsden, 159 Ill. 219, 42 N. E. 797, that even permission by the court to submit propositions after the trial and after the rendering of the judgment was nugatory, and that the propositions submitted and passed upon in pursuance of that leave could not be considered in the case. But the case here presented is entirely different. The propositions were offered before the final judgment, and, in the absence of anything in the record to show that they were not presented within the time required by the court, it was the duty of the judge to receive them, and pass upon them; otherwise the parties would be deprived of an important right without any notice that the propositions were presented too late and would not be passed upon. It will be seen that by the language of the foregoing section the time within which the propositions may be submitted is left to the court, the language being, "within such time as the court may require"; but, in the absence of any requirement whatever in that regard by the court, we think they may be offered at any time before final judgment. It is true that the bill of exceptions in this case shows that the court stated that under the rule (which we assume meant a general rule of the court) the propositions ought to have been handed up before the argument commenced, but no such rule is shown by the bill of exceptions. Conceding that such a general rule might be made and construed as a requirement by the court that in every case propositions should be submitted or handed up to the judge before the argument, in the condition of this record no such question can be considered.

It is said that the propositions, being submitted after the argument of counsel, could not aid the court in making its decision. Ordinarily, the court would be better prepared to pass upon propositions after the argument than before; and while we do not think it unreasonable to require them to be submitted before, so that the judge may have them before him during the argument, in the absence of some rule or requirement of the court informing counsel that they must be presented at some particular point in the trial, we think the court should receive and pass upon them if presented before judgment. In this case, even if the rule announced by the court had existed, it seems to us, upon the statement of counsel, "I thought the rule was, before the court had announced his opinion," in the exercise of a sound legal discretion they should have been received and ruled upon.

The judgments of the circuit and appellate courts will accordingly be reversed, and the cause remanded to the former for another trial. Reversed and remanded.

(195 Ill. 353)

PHILLIPS v. TOWN OF SCALES MOUND.1 (Supreme Court of Illinois. Feb. 21, 1902.) CEMETERIES CONDEMNATION OF LANDSTATUTES-PETITION -- DAMAGES-INSTRUC

TIONS-VERDICT-IMPEACHING VERDICT-AFFIDAVIT-JURORS — EVIDENCE-ADMISSIBIL

ITY.

1. Rev. St. c. 21, § 15, relative to cemeteries, enacts that any city, village, or township may acquire lands for cemetery purposes by condemnation. Section 5 of the act in regard to township organization (3 Starr & C. Ann. St. [2d Ed.] p. 3916) authorizes the division of a county into towns, so that they shall conform to the townships according to government survey; and section 7 enacts that towns shall be named in accordance with the express wish of the inhabitants. Held, that where an unincorporated town, organized under section 5 of the township law, petitioned to condemn land for cemetery purposes, a contention that it had no authority so to do, under the statute, because the authority was conferred on townships, and not on towns, was without merit, since a mere governmental, geographical subdivision could not institute condemnation proceedings, and it was the intention of the township act to create townships which should be designated as towns.

2. It was not necessary that the petition should aver that the county in which the town was situated had adopted township organization, since the court would take judicial notice of such fact.

3. An incorporated town and a village being the same thing, section 5 of the statute gives an incorporated town the same right to condemn land as a village.

4. A petition by a town for a condemnation of land for an addition to a cemetery need not allege that the cemetery is to be for the use of the public, where the petition shows that the cemetery has been in existence for 40 years, and belongs to the town.

5. Where, on condemnation proceedings for the taking of land for cemetery purposes, the testimony of witnesses for the town fixed the value of the land at from $60 to $65 per acre, while the owner's witnesses fixed it at $70, and there was some testimony to show a higher value than $70, a verdict for $80 an acre will not be disturbed.

6. On proceedings for the condemnation of land for cemetery purposes, the court instructed that the jury were not to consider the price which the property would sell for under special or extraordinary circumstances, but its fair cash market value if sold in the market for cash, and not on time. Held, that the instruction was proper.

7. On proceedings for the condemnation of land for cemetery purposes, the court instructed that while it was proper for witnesses, in making their estimate of damages, to consider any use to which they believed the property in question might be profitably appropriated, yet they were not bound to base their verdict on the supposition that it would be appropriated to a use other than that to which it was then devoted. Held, that the instruction was not erroneous.

8. On proceedings for the condemnation of land for cemetery purposes, the court instructed that "just compensation for the land taken" means the payment of such sum of money as would make the defendant whole, so that, on receipt by defendant of the damages awarded, he will not be poorer by reason of his property being taken or damaged. Held, that the instruction accurately stated the law.

9. On proceedings for the condemnation of land for cemetery purposes the court refused to instruct that if the jury believed that, by

1 Rehearing denied April 4, 1902.

the taking of the land in question, the owner's interest in a road running alongside of the land would be damaged, then, in making up their verdict as to what damages should be awarded him as to the land not taken, they would have a right to consider his interest in the land used for the road. There was no evidence showing that the road would ever be abandoned, or showing to what extent the interest of the owner would be damaged. Held that, in the absence of any such evidence, it was not error to refuse the instruction.

10. On a motion for a new trial on proceedings for the condemnation of land, the owner introduced his affidavit to the effect that the verdict of the jury was the result of chance, but affidavits of five jurors were introduced denying the charge. Held that, if it were proper to introduce the affidavit of the jurors, the statement in the owner's affidavit was overborne by the opposing ones.

11. Affidavits of jurors after trial will not be received to impeach their verdict.

12. An affidavit as to statements made by jurors may not be received to impeach their verdict.

13. On a motion for a new trial, an affidavit to the effect that the verdict of the jury was the result of chance, which affidavit is on information, is of no avail.

14. On proceedings for the condemnation of land for cemetery purposes, counsel for the owner in his cross-examination of certain witnesses, brought out testimony relative to a portion of the contents of certain by-laws of the cemetery, and of a certain plat; and subsequently the court permitted the by-laws and plat to be introduced in evidence, in order to show all the contents thereof. Held, that the owner having proven the contents of a part of the by-laws and plat, and such evidence also tending to show that the petitioner was maintaining a cemetery at that time, it was not error to admit it.

Appeal from circuit court, Jo Daviess county; J. S. Baumer, Judge.

Petition by the town of Scales Mound against James Phillips for the condemnation of land for cemetery purposes. From a judgment of condemnation, defendant appeals. Affirmed.

This is a petition filed on May 16, 1901, in the circuit court of Jo Daviess county by the appellee, the town of Scales Mound, in said county, against the appellant, James Phillips, to condemn two acres of his land in said town for cemetery purposes. The appellant filed a motion to dismiss the petition upon certain grounds, which motion was overruled. A jury was inpaneled, and awarded appellant the sum of $160 as compensation for the property taken and damaged by the acquiring by the petitioners of the two-acre tract described in the petition. A motion for new trial was overruled, and the court ordered and adjudged that the petitioner, the town of Scales Mound, should enter upon the property described in the petition, and upon the use of the same, upon payment of the compensation and damages ascertained as aforesaid, to wit, the sum of $160, within 30 days from the date of the order,— payment of compensation to be made to the appellant, or to the county treasurer of Jo Daviess county for the use of appellant,and that said county treasurer should, on demand, pay the same to the appellant, tak