There is no objection made to the deed of trust from Benjamin Newman to Jesse T. Newman and John B. Duncan, except want of title in B. Newman. This we have shown to have no foundation. B. Newman acquired an absolute title in fee, and he may have disposed of the lands, a matter about which the appellant cannot possibly have the least concern. We refrain, therefore, from going into that portion of the case. The lands were disposed of by their owner to pay his debts by agreement with the most, if not all, of his creditors, and by a good and valid deed the title to the premises in controversy has become vested in appellees. After the conveyance to Benjamin Newman, the appellants ceased to have any interest in the lands, and if Newman squandered them, his creditors, not appellant, have cause to complain. This is not a creditor's bill. He was fairly divested of his title by his own voluntary deed, and the lands, or their proceeds, were appropriated according to the deed. They discharged his debts, and if they have not discharged Newman's also, if his creditors are losers by the improper conduct of his trustees, with them lie the demand for a remedy.

We cannot see the slightest ground of defense to this action, and nothing to justify any claim set up by the appellant. Selling the lands en masse was his own act, and he can, therefore, allege no fraud therein. The deed was an absolute deed -the sale under it was irredeemable. To no act done by the owner of them by the purchase at this sale can the appellant take any exception, or claim any right as against the appellees. There being no error on the record, the judgment is affirmed. Judgment affirmed.

SETTING ASIDE SALE OF LAND SOLD EN MASSE INSTEAD OF IN SEPARATE PARCELS: See Lay v. Gibbons, post, p. 487, and note. The principal case is cited to the point that it is only on the ground of fraud, or that some one may have been prejudiced by a sale of lands en masse, that the sale will be set aside in equity, because it was not sold in separate parcels: Prather v. Hill, 36 Ill. 404; Fairman v. Peck, 87 Id. 163.

EVIDENCE SHOULD BE OBJECTED TO WHEN OFFERED: See Clauser v. Stone, ante, p. 299, and note. The rule that objections to evidence must be specifio, applies only to such objections as can be obviated by other evidence or by the act of the party or the court: Clauser v. Stone, supra, and note. The principal case is cited to the point that objections to the evidence which might have been obviated if made at the trial cannot be raised for the first time in the appellate court: Board of Education v. Greenebaum & Sons, 39 Ill. 615; Graham v. Anderson, 42 Id. 517; Clevenger v. Dunaway, 84 Id. 370; Howell v. Edmonds, 47 Id. 85.

TRUST DEED AS DISTINGUISHED FROM MORTGAGE: See Koch v. Briggs, 73 Am. Dec. 651, and note 656.

TRUSTEE MAY EMPLOY AUCTIONEER TO MAKE SALES: Gibson's Case, 17 Am. Dec. 257; McCready v. Lansdale, 58 Miss. 877, citing the principal case.

PLEAS CONCLUDING TO COUNTRY NEED ONLY SIMILITER TO COMPLETI ISSUES, and there is no necessity for a rule to add it, as it may be added by the defendant if he choses to do so, and a trial may be had without it: Nieman ▼. Wintker, 85 111. 469; Hazen v. Pierson, 83 Id. 242, citing the principal case.

OHIO AND MISSISSIPPI R. R. Co. v. MÜHLING,

[30 ILLINOIS, 9.]

ONE WHO HAS BEEN EMPLOYED BY RAILROAD COMPANY, but who, in pursuit of his private business, takes passage on the cars of the company, is a passenger, though no fare is collected from him.

LIABILITY OF PASSENGER CARRIER IS NOT AFFECTED BY FACT THAT NO FARB IS COLLECTED from the injured passenger; the only inquiry is, whether or not he was lawfully on the train.

RAILROAD COMPANY CARRYING PASSENGERS ON CONSTRUCTION TRAINS must be held to the same degree of diligence as when regular passenger coaches are used.

ACTION by Muhling against the plaintiff in error for injuries sustained while riding on one of the trains of the company. The road was in course of construction, and the plaintiff boarded a construction train for the purpose of being carried to a town on the road, and of purchasing there a sack of flour, and while the train was crossing Shoal Creek the trestle bridging gave way, precipitating the cars to the ground below, and thereby injuring the plaintiff. The evidence showed that the plaintiff had been in the employ of the company as an axeman, and had worked in leveling the roadway, and two days before the accident had been engaged in this work. Verdict for the plaintiff. Motion for a new trial overruled, and errors assigned by the defendant.

William Holmes, for the plaintiff in error.

Gustavus Kærner, for the defendant in error.

By Court, WALKER, J. The evidence shows that defendant in error, when he received the injury, was going from his residence to Trenton or Summerfield, to purchase flour. He was in the pursuit of his own business, and not that of the company. Whatever might have been his former relations with

337 the company, he was then engaged in his own business. He was at that time in the situation of any other stranger to or passenger upon the road, liable to no greater burdens nor entitled to more privileges than any other passenger similarly situated. He had no control over the running of the train, was not then engaged in the business of the company, and was, as far as this record discloses, free from all negligence, and was in no wise responsible for the injury, nor did his connection with the road in the remotest degree contribute to the misfortune.

The evidence clearly shows that this trestle-bridge was imperfectly and insecurely constructed. This is not controverted. It must then follow that, as the injury was produced by the insufficient structure made by the company, and without any fault of plaintiff in error, the company should be responsible.

It is, however, urged that the plaintiff had paid nothing for his passage. This can make no difference, as the company had the right to demand the fare at the time he came upon the road, and upon failing to pay might have put him from the cars. Or they might have afterwards collected it, or if the company was indebted to him, as the evidence tends to show, they could have deducted it from that indebtedness. But even if they were carrying him gratuitously, it could make no difference: Gillenwater v. Madison and Indianapolis R. R. Co., 5 Ind. 339 [61 Am. Dec. 101]; Philadelphia etc. R. R. Co. v. Derby, 14 How. (U. S.) 468. When a person is upon a train under such circumstances, the only inquiry is, whether he was lawfully there, and not whether he had paid his money for the privilege. So that, in point of fact, it can make no difference in this case whether plaintiff in error had paid for his passage, or whether he was there by permission, to be carried without compensation, as it does not appear that it was unlawful. The evidence shows that the road had been carrying passengers for pay on their construction trains, and they must be held to the same degree of diligence with that character of train as with their regular passenger coaches, for the safety of the persons, and lives of their passengers: Chicago and Burlington R. R. Co. v. Hazzard, 26 Ill. 373.

In view of the whole of the evidence in this case, the company must be held liable for the injury. The evidence warrants the verdict, and as no error is perceived in this record, the judgment must be affirmed.

Judgment affirmed.

AM. C. VOL. LXXXI-22

DEGREE OF CARE EXACTED OF CARRIERS OF PASSENGERS: Tuller v. Talbot, 76 Am. Dec. 695, note citing prior cases 698; with respect to road, vehicles, and appliances: Curtis v. Rochester etc. R. R. Co., 75 Am. Dec. 258, and note 268.

PAYMENT OF FARE AS AFFECTING LIABILITY OF PASSENGER CARRIER: Nolton v. Western R. R. Corp., 69 Am. Dec. 623, note 628; see Lucas v. New Bedford etc. R. R. Co., 66 Id. 406; Galena etc. R. R. Co. v. Yarwood, 65 Id 682. In Toledo etc. R'y Co. v. Brooks, 81 Ill. 249, it is held, distinguishing the principal case, that no recovery can be had of a railroad company for a personal injury to a passenger on its train of cars or for his death, caused by mere negligence when he knowingly and fraudulently induces the conductor to disregard his duty and defraud the company out of the amount of his fare for his own profit.

BEST V. ALLEN.

[30 ILLINOIS, 80.]

EXEMPLARY DAMAGES MAY BE AWARDED IN TRESPASS FOR ENTERING PLAINTIFF'S PREMISES and willfully damaging his goods, notwithstanding the defendant made the entry in good faith under the belief that he had a right to enter. A willful injury to goods is as much a ground for exemplary damages as a willful entry. HOMESTEAD LAW OF ILLINOIS MAKES RELEASE OF HOMESTEAD RIGHT BY WIFE NECESSARY to the validity of all conveyances of the homestead, and a deed of trust or mortgage of the premises, and a sale thereunder, is invalid without such release.

TRESPASS by Allen against Best and Snell for entering plaintiff's house and injuring the furniture. The defendant pleaded not guilty, and that he was the owner of the house and entitled to the possession, and that he and his servant Snell entered the premises and removed the goods and chattels of the plaintiff without unnecessary damage. Best claimed title under a mortgage of the premises executed to him by the plaintiff Allen, with the power of sale in case of default of payment of the note as security for which the mortgage was given. Best sold the premises under this power to one Sparks, and executed to him a deed. Afterwards Sparks quitclaimed to Best. Defendants excepted to the instructions given. The verdict was for the plaintiff for $134. Motion for new trial overruled, and appeal by the defendants.

Gilbert and Rinaker, for the appellants.

C. A. Walker, and Stuart, Edwards, and Brown, for the ap pellee.

By Court, CATON, C. J. We think both of the instructions given for the plaintiff are correct. In the first, the jury are told that if the defendant entered the plaintiff's premises and willfully damaged his goods, they may give exemplary damages. It is argued that if the defendant entered in good faith, and under the belief that he had a right to enter and eject the plaintiff's family, that his willful injury of the goods in doing so should not subject him to smart money. We do not so understand the law. A willful injury of the goods is as much a ground for exemplary damages as a willful entry when the party knows he had no right of entry.

The second instruction is this: "That if they believe, from the evidence, that the plaintiff in this cause was in possession of and occupying the said premises as a homestead at the time of the execution of the mortgage from plaintiff to defendant, and that Frances E. Allen is the wife of said plaintiff, and was so at the date of the mortgage, and that she still continued to occupy the same as a homestead, the possession of the said Frances E. Allen is the possession of the plaintiff; and that plaintiff, under the act of the legislature entitled 'homestead,' in force July 4, 1851, is entitled to retain possession of said premises, notwithstanding said mortgage, and the jury must find for the plaintiff."

As this mortgage was in effect a deed of trust, containing a power of sale, and under which the property was sold, it is insisted that it is not affected by the homestead law of 1851. That may be true; but this mortgage was executed in 1860, and consequently comes under the operation of the amend ment of 1857, which, as we have decided at this term, in the case of Patterson v. King, 29 Ill. 514, applies to all conveyances, and makes the release of the homestead right by the wife necessary to the validity of all conveyances of the homestead. Under this decision this instruction was undoubtedly right. The plaintiff was prima facie the owner of the land.

We shall not review the evidence on the motion for a new trial. We are entirely satisfied with the verdict. Here was an unwarrantable attempt by the defendant to take the law into his own hands, in a case where he had no right to take the possession, and even if his title had been good he should have brought ejectment to obtain the possession. And in removing the plaintiff's goods, we agree with the jury that the