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is doing the work, if he is exercising some chartered privilege or power of such corporation, with its assent, which he could not have exercised independently of the charter of such corporation." See Gas Co. v. Myers, 168 Ill. 139, 48 N. E. 66, where this question is fully discussed. See, also, Railroad Co. v. Dudgeon, 184 Ill. 477, 56 N. E. 796. It has been expressly held that lessee and lessor are both liable. Balsley v. Railroad Co., 119 IIL 68, 8 N. E. 859, and cases cited above.

A number of objections are made to the admission of evidence, going principally to the admission of oral testimony of the contents of certain papers and books not produced on the trial. Notice was served on appellant to produce these papers, but it professed to be unable to produce them; counsel stating that some were in New York, and some not in its possession. The foundation having been laid, oral testimony as to their contents was proper.

The defendant asked the court to give to the jury this instruction: "(12) The court instructs you that the defendant railroad company is not responsible for any growth of weeds or willows that may have been growing on Randolph street outside of its right of way at the time and place of the accident complained of in this case." But the court modified it by adding thereto the following: "If liable in this case, the defendant is responsible only if guilty of some one or more of the negligent acts charged in the declaration, and if, also, the deceased at the time of the accident in question was in the exercise of ordinary care for his own safety." The objections to the modifications are that the jury were referred to the declaration for a statement of the negligent acts complained of, and that the instruction as modified omits the necessary legal requirement of proof that the injury was caused by such negligent acts. As to the first objection, we have held that it is not sufficient to require a reversal. Powder Co. v. Tearney, 131 Ill. 322, 23 N. E. 389, 7 L. R. A. 262, 19 Am. St. Rep. 34. As to the second objection, we shall not consider it, inasmuch as it appears from the briefs filed that it was not made in or presented to the appellate court, and it cannot be raised here for the first time, even if it were regarded-❘ as it is not-as a serious error in the instruc tion.

It is next contended that there was error in refusing the following instruction: "The court instructs you that the defendant is not required to have a bell of at least eighty pounds' weight ringing on its engines, and at the same time sound a whistle. It is sufficient if the defendant did either at the time of the alleged accident." The instruction would have told the jury that it was sufficient if appellant either rang its bell or sounded its whistle at the time of the alleged accident. In view of the testimony given by appellee's witnesses, that the bell

commenced to ring just after the train struck the deceased, the instruction was incorrect, as the statute fixes the specified distance within which the bell must continuously ring or the whistle sound, and to ring the bell or blow the whistle just when the train was upon the crossing would be of no benefit to one about to cross the track.

We find no error in the record sufficient to justify a reversal of the judgment. The judgment of the appellate court will therefore be affirmed. Judgment affirmed.

(195 Ill. 540)

COLES COUNTY v. MESSER.1 (Supreme Court of Illinois. Dec. 18, 1901) PUBLIC OFFICERS-COMPENSATION-CONSTITUTIONAL ALLOWANCE NECESSARY EXPENSES.

1. A general objection to evidence was suffcient to raise the question whether the evidence was admissible for any purpose.

2. Where, on objection to evidence, the court stated that he would hear the evidence subject to the objection, and the defendant excepted to the ruling and the admission of the testimony, and the record showed that the court considered such evidence, the exceptions were sufficient.

3. Under Const. art. 10, 8 10, providing that the county board shall fix the compensation of all county officers, with the amount of their necessary clerk hire, stationery, fuel, and other expenses, and that in all cases where fees are provided for the compensation shall be paid out of, and shall in no instance exceed, the fees actually collected, and that all fees or allowances received by such officers in excess of their compensation shall be paid to the county, an officer cannot create a liability against the county, except within some limit already fixed by the county board, and the county cannot be made liable for any expenditure, unless the county board has fixed the sum for expenses, and the aggregate expenses are necessary and within that amount; and hence, where the county board fixed the compensation of a sheriff at $2,500 per annum, and he received fees covering that amount, he could not recover expenses incurred by him in the performance of his duties which the county board refused to audit and pay.

4. Though the sheriff was elected in 1894, and had his compensation fixed by the county board at a certain sum, a resolution of the county board in 1896 authorizing certain expense for office rent rendered evidence of the incurring of such expense admissible in the action by him to recover expenses incurred, in addition to his salary.

Wilkin, C. J., and Hand, J., dissenting in part.

Appeal from appellate court, Third district. Action by Amos H. Messer against Coles county. From a judgment of the appellate court (92 Ill. App. 432) affirming a judgment in plaintiff's favor, defendant appeals. Reversed.

A. J. Fryer and S. S. Anderson, for appellant. John H. Marshall and Neal & Wiley, for appellee.

CARTWRIGHT, J. Appellee was elected sheriff of Coles county for a term of four years from the first Monday of December,

Rehearing denied April 12, 1902.

1894. The board of supervisors of said county fixed his compensation by resolution as follows: "That the compensation of said sheriff, including all necessary deputy hire, be the sum of $2,500 per annum, and that said sheriff be allowed $1.50 per day for jailer." During his term of office he received $10,114.68 fees collected and bills allowed by the county board; being $114.68 in excess of what he claimed for compensation, including deputy hire, under the resolution. He brought this suit in assumpsit in the circuit court of Coles county to recover expenses incurred by him in the performance of his duties as sheriff, which the county board had refused to audit and pay. Appellant pleaded the general issue and set-off, and a jury was waived and the cause tried by the court. At the trial the plaintiff admitted that said sum of $114.68 collected by him above the amount allowed by the resolution was properly chargeable against him, and it was stipulated that he had earned fees to the amount of $1,611.02 against the county, over and above what had been paid him, which would constitute a fund to pay the expenses sued for, in case he was entitled to recover such expenses. The court found the issues for plaintiff, and, after allowing him to retain said sum of $114.68 in his hands to apply on expenses, entered judgment against the defendant for $1,611.02,-the entire balance of the earnings of his office which could be chargeable to the county, or constitute a fund out of which he could be paid. The appellate court affirmed the judgment.

Plaintiff offered evidence that he had incurred expenses in conveying pauper insane patients to the asylum at Kankakee of $166.50; expenses of conveying prisoners from the county jail to the courts and back to the jail, $58; for rent of office in Mattoon, $90; for livery bills paid, $58.50; for the use of his horses and buggy in the discharge of his duties, $1,460. The defendant objected to each item of this evidence as it was offered, and the admission of the evidence against such objections is assigned as error. On the other hand, it is insisted that the exceptions taken are not sufficient to raise the question as to the admissibility of the evidence.

When the evidence of the expenses of taking insane patients to Kankakee was offered, defendant objected. The court overruled the objection, and the defendant excepted. When evidence was offered as to the rent of the office in Mattoon, defendant again objected, the objection was overruled, and exception was again taken. There was the same objection. ruling, and exception as to the evidence of expenses in taking prisoners from the jail to the court and returning them to the jail. It is urged against the objections that they were not sufficiently specific to raise any question. The objections were sufficient to raise the question whether the evidence was admissible for any purpose. 8

Enc. Pl. & Prac. 228. If the objections had any force, they were such as could not be obviated, and in all such cases a general objection is sufficient. In Sidwell v. Schumacher, 99 Ill. 426, that rule was stated as follows (page 433): "There is no principle pertaining to the production of testimony better settled than that a general objection is sufficient to exclude evidence that is not admissible under any circumstances."

It cannot be doubted that the assignment of error is properly based on those exceptions, but we are also of the opinion that the exceptions taken to the evidence concerning livery hire and the use of the plaintiff's own horses and buggy were sufficient. When evidence concerning those matters was offered, defendant objected, and the court said, “I will hear the evidence subject to the objection," and the defendant excepted to the ruling and the admission of the testimony. The objections were repeated several times as the evidence was offered, and the court on each occasion made the same statement, and the defendant each time excepted. The court did not postpone a ruling on the question. If that had been done without objection a different question might have arisen, but the evidence was admitted without providing for a future ruling, and the record shows that the court considered it, and allowed the claims to which the evidence related. The livery bills paid by plaintiff amounted to $58.50, and the use of his horses and buggy to $1,460, and these items constituted the bulk of plaintiff's account and of the judgment. The judgment could not have exceeded $200 after deducting the amount in the plaintiff's hands without including the objectionable items. In fact, they constituted, as all the parties agree, the principal claim of the plaintiff.

The often-repeated provision of the constitution relating to the fees of county officers is found in section 10 of article 10, which provides that the county board shall fix the compensation of all county officers, with the amount of their necessary clerk hire, stationery, fuel, and other expenses; that, in all cases where fees are provided for, said compensation shall be paid only out of, and shall in no instance exceed, the fees actually collected; and that all fees or allowances received by such officers in excess of their said compensation shall be paid into the county treasury. An officer is not entitled to any compensation, except such as is given to him by law, and, when he accepts an office with a fixed salary, he is bound to perform the duties of the office for such salary, and cannot demand any additional compensation for any service within the line of his official duty. City of Decatur v. Vermillion, 77 Ill. 315; Throop, Pub. Off. § 478. The county board is required to fix the whole compensation of the officer, including clerk hire, stationery, fuel, and other expenses; and it is not necessary that this should be done by fix

ing a separate sum for the services, and an-
other sum for the expenses. It may be fixed
at a certain sum, which in such a case will
cover all,-both personal services and ex-
If
penses. Kilgore v. People, 76 Ill. 548.
the compensation, including the expenses, is
fixed at one sum, the officer is entitled to re-
tain that amount, if it is paid by the fees
of his office. If it is fixed in separate sums,
-one sum for the compensation of the officer,
and another sum for expenses,-the officer
can only retain out of the fees collected a
sufficient sum to reimburse him for moneys
actually paid out for reasonable and neces-
sary expenses of his office. He may retain
the whole compensation, but cannot retain
what is either unnecessary for expenses, or
what is not actually paid out for services ren-
dered. If the amounts are fixed separately,
the compensation, aside from the expenses,
cannot be changed during the official term,
but the expenses may be changed from time
to time by the county board as the necessi-
ties of the office may change. Compensation,
within the meaning of the constitution, is not
alone for the personal services of the incum-
bent of the office; and it makes no differ-
ence whether the board fixes one sum for the
services, and another for the expenses of the
office, or one sum for both. The compensa-
tion, including the expenses, can only be paid
out of the fees actually collected. The in-
cumbent takes the office cum onere, and no
responsibility rests upon the county to make
up a deficit after exhausting the fees collect-
ed. Wheelock v. People, 84 Ill. 551; Cullom v.
Dolloff, 94 Ill. 330; Briscoe v. Clark Co., 95
Ill. 309; Jennings v. Fayette Co., 97 Ill. 419.
The principle of all the decisions is that the
compensation, including the expenses of the
office, is to be paid, if at all, out of the fees
and emoluments of the office, and that there
is no liability and there can be no recovery
for expenses which have not been fixed in
advance by the county board. The plain in-
tent and meaning of the constitution are that
the county board shall have power to control
and limit the expenses of county officers, and
that the officers shall not be at liberty to
create a liability against the county, except
within some limit already fixed by the coun-
ty board. The allowance for expenses may
be changed from time to time, as varying cir-
cumstances may require, but there is no lia-
bility unless an allowance has been made.

Counsel rely upon the decision in County of Lasalle v. Milligan, 143 Ill. 321, 32 N. E. 196, to sustain their claim that the sheriff may create a liability against the county. In that case the county board fixed the salary of the sheriff and salaries of six deputies, with a provision that the sheriff be allowed the necessary traveling expenses of himself and his deputies, and requiring him to keep an accurate account thereof. The questions considered in that case arose upon propositions of law as to what were expenses. The court divided such expenses into two classes,

and passed upon the propositions as to what
would properly fall within an expense ac-
count. The question here involved was not
decided. In Wheelock v. People, supra, by
an order of the county board, and an order
explanatory thereof, the sheriff was allowed
a compensation of $1,500, and also his deputy
hire, fuel, stationery, and other expenses, if
enough could be realized from the fees and
emoluments of the office. In Briscoe v. Clark
Co., supra, the county board allowed the
county clerk for compensation $1,200, for
deputy $600, and for fuel and stationery
$200, and afterward made a bargain-held to
be invalid-by which he was to retain all
the earnings of his office. In both cases
there was an intention to allow for expenses,
and an attempt to do so by the orders made,
and the officer was allowed the actual neces-
Subsequently the
sary expenses incurred.
cases were reviewed in Brissenden v. Clay
Co., 161 Ill. 216, 43 N. E. 977. In that case
the county clerk brought suit to recover sums
necessarily paid out by him for clerk hire.
The county board had fixed his compensa-
tion, including clerks, at $1,200 per annum,
and it became necessary to employ clerks and
pay them the amount sued for. It was con-
tended that compensation is one thing, and
the expenses of the office another, and that
an officer is entitled to his necessary ex-
penses beyond his personal remuneration.
Our holding was that the county board is
required to fix the clerk hire and other offi-
cial expenses, and that it is not within the
power of the county officer to create any lia-
bility against the county beyond the amount
allowed; and we said (page 222, 161 Ill.,
and page 979, 43 N. E.): "If county officers
had the power to run up the expenses of
their respective offices to such sum as they
might determine to be necessary, and the
county board had no power over the matter
except to audit the amount at the end of
each year, it is not likely that any large
amount of fees collected by county officers
would find its way into the county treasury."
The county cannot be made liable for any
expenditure unless the county board has fix-
ed a sum for expenses, and the aggregate
the
and within
expenses
necessary
amount. The fact that nothing has ever
been fixed expressly for expenses does not
authorize a recovery for expenses, any more
than the failure to fix compensation would
authorize a recovery for reasonable compen-
sation. If a county officer can recover from
the county for expenses where no sum has
been fixed or allowed for such expenses, he
can recover any amount, within the fees
collected, which he necessarily expends, and
the provision of the constitution under which
the board has the absolute power to fix and
limit expenses would be nugatory and of no
avail. If plaintiff was not willing to take
the office of sheriff with the compensation
which had been fixed and desired an allow-
ance for expenses, he should have applied

are

to the board to fix some sum within which he would be authorized to incur expenses, payable out of the fees and emoluments of his office. It would have been within the discretion of the county board to withhold any allowance, or to make one and fix it at such a sum as they chose. The provision of the constitution and the power of the county board could not be abrogated or destroyed by failure to obtain the allowance.

The charge for money paid for the rent of an office in Mattoon was $90, and plaintiff proved that this expense was authorized by a resolution of the county board at the April term, 1896. The evidence concerning this item was properly admitted. The items allowed for expenses in conveying insane patients to Kankakee, and prisoners to and from the county jail, and for livery bills and his own horses and buggy, could not be recovered. Evidence that such expenses were incurred was not admissible, and the objections to them ought to have been sustained. Whether expenses of transportation or livery and use of horses and buggy in performing such official services could in any case be added to the fees allowed by law, and recovered as expenses, is not involved in this case, and we are not to be understood as holding that they are legitimate expenses in any case. The allowance of $2,500 per annum to appellee by resolution of the county board was not for his personal compensation alone, but included all necessary hire, and he was allowed $1.50 per day for a jailer. The subsequent resolution gave him $90 for office rent. With these allowances he must be content.

The judgments of the appellate court and circuit court are reversed, and the cause is remanded to the circuit court. Reversed and remanded.

WILKIN, C. J. I dissent from the above holding that a county official cannot create a liability against his county for the actual, necessary expenses of his office, except within some limit already fixed by the county board, and that a county cannot be made liable for any expenditure unless the county board has fixed a sum for expenses. The fixing of the compensation of the officer differs from the fixing of his necessary expenses, in that the former cannot be changed, whereas the latter must be changed from time to time to meet the actual, legal, necessary expenses of conducting the business of the office. The effect of this decision is that if the county board fixes, or attempts to fix, a separate amount for "necessary clerk hire, stationery, fuel, and other expenses," at any sum, however inadequate, the officer may recover all the actual necessary expenses of his office, but, if no sum whatever is fixed in advance, then he can recover nothing, no matter how urgent or absolute may be the necessity for the expenditure. This seems to me an unreasonable

construction of the constitution, and contrary to the spirit of our prior decisions.

HAND, J. I concur in the foregoing dissenting opinion.

(181 Mass. 139)

DOYLE v. AMERICAN FIRE INS. CO.
(Supreme Judicial Court of Massachusetts.
Berkshire. April 2, 1902.)
INSURANCE-INSURABLE INTEREST ESTATE

BY CURTESY-APPLICATION-MISREPRE-
SENTATION-INTENT TO DECEIVE.

1. Under Pub. St. c. 124, § 1, and Id. c. 147, §§ 1-6, prior to the enactment of St. 1900, c. 450, securing to a husband an estate by the curtesy covering all the real estate of his wife, he had, during her life, an insurable interest in buildings situate on her land.

2. Where a husband applying for insurance on his wife's real estate made a general statement that he was the owner, but with no intent to deceive, such statement did not invalidate the policy, under Pub. St. c. 119, § 181; Rev. Laws, c. 118, § 21,-providing that no misrepresentation made in obtaining a policy of insurance shall avoid the policy unless made with intent to deceive, or the matter misrepresented increases the risk.

3. Under a policy of insurance to a husband on the real estate of his wife, when a loss occurred prior to the enactment of St. 1900, c. 450, he is entitled to recover only such sum as will indemnify him for his loss estimated according to the value of his inchoate right as tenant by the curtesy at the time of the fire.

Report from superior court, Berkshire county; Elisha B. Maynard, Judge.

. Action on a fire policy by William P. Doyle against the American Fire Insurance Company. Findings were made for defendant, and the case was reported. Judgment for plaintiff.

Contract on a policy of fire insurance. The policy was issued to plaintiff, and the loss made payable to Richard Wood, mortgagee, as his interest may appear. The superior court ruled that the plaintiff could not recover, the title to the real estate at the time of the fire being in his wife, and the plaintiff having no interest therein other than an inchoate right of curtesy. The case was reported to the supreme judicial court.

A. Chalkley Collins and Herbert C. Joyner, for plaintiff. John D. Bryant and Loren E. Griswold, for defendant.

KNOWLTON, J. The important question in this case is whether the plaintiff had an insurable interest in his wife's real estate. The facts stated in the supplemental report are immaterial, and the other facts in reference to the changes in title and occupation do not affect the general question which arises whenever a husband, after the birth of a living child, seeks to obtain insurance in his own name on a building attached to his wife's land. The plaintiff's relation to the property was that of a tenant by the curtesy initiate. Until the enactment of St. 1900, c.

150, which took effect after the trial of this case, our statutes had carefully preserved the rights of husbands to have estates by the curtesy covering all the real estate of their wives. Pub. St. c. 124, § 1; Id. c. 147, §§ 1-6. But our law giving to married women the right to contract, and to hold property as if they were sole, has changed the rights of tenants by the curtesy initiate. A tenant by the curtesy no longer has a right of possession and control of his wife's property in her lifetime. Her control of it is absolute in every particular, except that she cannot deprive him of an estate by the curtesy which will become consummate at her death. His right as tenant by the curtesy cannot now be levied on by creditors as formerly it could. So long as she lives, his right is not a vested estate, and cannot be conveyed as a separate interest. It is an inchoate right, which cannot be taken from him, whose vesting is dependent only upon the contingency of his survival after the death of his wife. This subject has been considered by this court in a series of decisions. Bank v. Williams, 17 Pick. 438; Comer v. Chamberlain, 6 Allen, 166; Staples v. Brown, 13 Allen, 64; Walsh v. Young, 110 Mass. 396-399; Hayden v. Peirce, 165 Mass. 359, 43 N. E. 119. The effect of our statutes and decisions is to leave the right of a tenant by the curtesy initiate like an inchoate right of dower. Prior to January 1, 1902, when St. 1900, c. 450, took effect, the only difference between them was that the former covered the whole real estate of the wife, while the latter covered only onethird of the real estate of the husband, and accordingly the former took effect in possession immediately on the death of the wife, while the latter did not vest in possession until after it had been assigned. It is very plain on principle, and it has often been decided, that a tenant by the curtesy at the common law had an insurable interest in his wife's estate during her life. Whether a tenant by the curtesy before the death of his wife has an insurable interest under the statutes that govern this case is a question which it is not easy to answer. In Pennsylvania, under very similar statutes, a similar question has been answered in the affirmative. Harris v. Insurance Co., 50 Pa. 341. In Clark v. Insurance Co., 81 Me. 373, 17 Atl. 303, it was held that under the statutes of Maine, on the death of a wife, her husband takes an interest in her real estate by descent, and that prior to her death he has not an insurable interest in her property. He is treated like an ordinary heir at law, who has a mere expectancy, even though there are limitations upon the power of the wife to deprive the husband of his share by a will or deed without his consent. A similar decision was made in Indiana under a similar statute. Insurance Co. v. Newman, 120 Ind. 554, 22 N. E. 428; Rev. St. Ind. (Ed. 1881) §§ 2485, 5117. See, also, Insurance Co. v. Montague, 38 Mich. 548, 31 Am. Rep. 326. In the Massachusetts cases

there is no adjudication on the question, but there are strong intimations that it should be answered in the affirmative. Kyte v. Assurance Co., 144 Mass. 43, 10 N. E. 518; Oakes v. Insurance Co., 131 Mass. 161–166. It is well settled that a vested title to property, legal or equitable, is not necessary to give one an insurable interest in it. Eastern R. Co. v. Relief Fire Ins. Co., 98 Mass. 420, 423; Williams v. Insurance Co., 107 Mass. 377, 9 Am. Rep. 41; Wainer v. Insurance Co., 153 Mass. 335-341, 26 N. E. 877, 11 L. R. A. 598; Hayes v. Insurance Co., 170 Mass. 492, 49 N. E. 754; Redfield v. Insurance Co., 56 N. Y. 354, 15 Am. Rep. 424; Rohrbach v. Insurance Co., 62 N. Y. 47, 20 Am. Rep. 451; Hooper v. Robinson, 98 U. S. 528, 25 L. Ed. 219; Warren v. Insurance Co., 31 Iowa, 464, 7 Am. Rep. 160. We think that the tendency of the modern decisions is to relax the stringency of some of the earlier cases, and to admit to the protection of the contract all property standing in such a relation to the person seeking insurance that its loss would probably di rectly affect his pecuniary condition. Under the statutes that we are considering, a tenant by the curtesy initiate has an inchoate right, which is recognized and protected by law. Whether, in any case, it will become vested in a title, depends on a contingency. The existence of such a right in real estate which has been conveyed away by the wife is an incumbrance upon the property, within the meaning of the common covenant against incumbrances. A grantee holding such a covenant, who procures its release, may recover from his grantor any reasonable sum paid to remove the incumbrance. Harrington v. Murphy, 109 Mass. 299. That the vesting of the right in an absolute title depends on a contingency does not affect the fact that it has a prospective value. So long as the right is recognized by the statute, this ought not to prevent the holder of it from bargaining for indemnity against its loss. The statutes in Pennsylvania and Massachusetts differ from those in Maine and Indiana by distinctly recognizing the rights of a tenant by the curtesy by name, while in the latter states tenancy by the curtesy is abolished, and the. right of the husband depends on a statute of descent, and on a limitation of the wife's right of disposal of her real estate. Under the statutes of the two former states a husband's right by the curtesy cannot be taken by the wife's creditors, either before or after her death. In that respect it is like a wife's right of dower. We are of opinion that under our statutes and decisions a tenant by the curtesy initiate has an insurable interest in ordinary buildings on his wife's land.

It is contended that the value of such an interest in a building at the time of a fire cannot be estimated, and that, therefore, inasmuch as a contract for fire insurance is a contract for indemnity, and not for profit, the contract cannot be enforced, because the damages are incapable of assessment. This

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