Opinions of the Court. Syllabus.

navigable from the sea by vessels of ten tons burden and upward. The lakes were not so navigable.

The important saving in the act of 1845 "saving any concurrent remedy which may be given by the State laws, when such steamer or other vessel is employed in such business of commerce, and navigation" is omitted from the consideration of the court. It is not decided Congress was incompetent to enact such a clause. It would seem if that body could provide a saving of one kind it could another, and here it is provided, in the record, in express terms.

The record contains no bill of exceptions preserving the evidence. Every intendment, therefore, must be indulged in favor of the finding of the court as in the case of the verdict of a jury. We will presume, in the absence of the evidence, that every fact requisite to bring the case within the jurisdiction of the court, and establish a cause of action under the statute, was proved upon the trial.

The proceedings have no resemblance to those in courts of admiralty, but are of the same character as in an ordinary attachment under the statute, requiring notice to be given of the pendency of the suit, and no prior liens are interfered with. Germain v. Steam Tug Indiana, 11 Ill. 535; The Belfast, supra. For the reasons given the judgment is affirmed.

Judgment affirmed.

THE PROPELLER HILTON

V.

THOMAS E. MILLER et al.

1. ATTACHMENT OF VESSEL-setting aside default. After judgment by default against a vessel in a proceeding by attachment for supplies, and, at the same term of court, a party applied to the court to have the default set aside and permit him to come in and defend the action as owner of the vessel, based upon his affidavit of ownership acquired by purchase on a sale of the vessel under a mortgage, which was a prior lien. In the attachment procceding no owner of the vessel was named in the affidavit, statement of the

Syllabus. Opinion of the Court.

claim, or warrant, and there was no published notice to any one of the pendency of the suit. The court refused the application: Held, that the court erred in the refusal.

2. LIEN on boat for supplies-priority. A prior mortgage on a vessel, duly recorded, has precedence of a lien of a material-man subsequently acquired.

APPEAL from the Superior Court of Chicago; the Hon. JOSEPH E. GARY, Judge, presiding.

Mr. E. G. HOOKE, for the appellant.

Messrs. RAE & MITCHELL, for the appellees.

Mr. JUSTICE BREESE delivered the opinion of the Court:

We have nothing to add on the general question of jurisdiction in cases like this, to what has been said by this court in Williamson v. Hogan, 46 Ill. 504; Tug Montauk v. Walker, 47 id. 335; Schooner Norway v. Jensen, 52 id. 373; and Tug Boat Dorr v. Waldron et al., ante.

We have confined our examination of the record to one point only made upon it, and that is the refusal of the court to set aside the default on motion and affidavit of Staples, and permit him to come in and defend the action as owner of the vessel.

In the affidavit, statement of the claim, and warrant, no owner is named, and there was no published notice to any one of the pendency of the attachment. Under such circumstances, where the proceeding is in rem, any one who may, by affidavit, show a right to the res, should be permitted to defend, and thus protect his title.

It is a right, of which a party can not be deprived.

It is true, in the præcipe, Horatio Hill is named as the owner, and a summons issued against him, but it does not follow he was the true owner. Staples had a right to come in and contest the fact at the threshold of the proceeding, and not be forced to resort to an action of replevin or to a bill in chan

cery.

Syllabus. Opinion of the Court.

For this error the judgment is reversed and the cause remanded, with instructions to the Superior Court to admit Staples as defendant.

That a prior mortgage on a vessel has precedence of the lien of a material-man, subsequently acquired, is settled by the case of the Barque Great West No. 2 v. Oberndorf, 57 Ill. 168.

Judgment reversed.*

ALFRED GREGORY

v.

LEGRAND L. WELLS.

1. TENDER-after suit. In a suit to recover unliquidated damages for breach of contract, the defendant filed a plea averring a tender of money after suit brought, to which the court sustained a demurrer: Held, that the plea was not a good defense, either at common law or under our statute.

WRIT OF ERROR to the Circuit Court of Iroquois County; the Hon. CHARLES R. STARR, Judge, presiding.

Messrs. ROFF & DOYLE, for the plaintiff in error.

Mr. JUSTICE THORNTON delivered the opinion of the Court:

This suit was instituted upon a written contract to deliver corn, and damages are claimed for its breach.

A plea of tender was interposed, averring a tender of money after the commencement of the suit, to which a demurrer was sustained.

*THE PROPELLER HILTON v. ELLIS et al.

BREESE, J.: This case is, in all respects, like the next preceding case, Propeller Hilton v. Miller et al., and must be decided in the same way.

The judgment is reversed and the cause remanded, with the same instruction as in that case.

Opinion of the Court. Syllabus.

The damages to be recovered were for a breach of the contract, and were unliquidated.

In such case this court has decided, in Cilley v Hawkins, 48 Ill. 309, that a plea of tender is not a good plea, either at common law or under our statute.

The demurrer was properly sustained and the judgment is affirmed.

Judgment affirmed.

TOLEDO, PEORIA & WARSAW RAILWAY COMPANY

บ.

HENRY B. HEAD.

1. NEGLIGENCE-contributory. The plaintiff, working upon a bridge across defendant's railroad track, with knowledge of an approaching train, called to his little boy, eleven years old, to lead his horse across the track. In doing so the horse, through fright, escaped and got upon the track and was killed by the train. The proof failed to show negligence in the company: Held, that a verdict against the railroad company for the value of the horse could not be sustained; that the plaintiff was guilty of great negligence on his part, and that the law did not require a railroad company to ring a bell at such a place, it being only a farm crossing.

APPEAL from the Circuit Court of Woodford County; the Hon. S. L. RICHMOND, Judge, presiding.

Messrs. BRYAN & COCHRAN, for the appellant.

Messrs. BURNS & BARNES, for the appellee.

Mr. JUSTICE THORNTON delivered the opinion of the Court:

The testimony in this case is too uncertain and unsatisfactory to justify an affirmance of the judgment.

Opinion of the Court.

One witness only was cognizant of the circumstances attendant upon the killing, and we can not ascertain from his statements that any negligence is to be attached to the company.

age, to

This witness and appellee were at work upon a bridge across the railroad track when the latter, with knowledge of the approaching train, called to his little boy, eleven years of age, lead the horse across the track. In doing so the horse became frightened, escaped from the boy, got upon the track, and was killed by the train.

The witness further testified that the boy had crossed the track of the road and was taking the horse south when he was killed.

We are not informed whether the horse was on the right of way, when he broke loose, nor the distance between the approaching train and the place of crossing.

From such proof we can not infer negligence against the company; but rather very great negligence on the part of appellee.

The order to the boy, in view of the train, and, for aught that appears, so near to the crossing as to render it impracticable to check its impetus before reaching it, was extremely reckless.

The evidence does not show that the accident happened by reason of the neglect to fence the road; and the negligence of appellee exculpates the company from liability on account of such negligence.

The corporation is not chargeable by failure to ring the bell or sound the whistle. The crossing was a farm crossing, and at such place the law imposes no such duty.

The inhumanity and barbarism depicted by appellee's counsel on the part of appellant do not appear in the record.

The judgment must be reversed and the cause remanded. Judgment reversed.