Opinion of the Court.

WRIT OF ERROR to the Circuit Court of Marion county; the Hon. SILAS L. BRYAN, Judge, presiding.

Mr. B. B. SMITH, for the plaintiffs in error.

Mr. H. C. GOODNOW and Mr. W. W. WILLARD, for the defendant in error.

Mr. CHIEF JUSTICE LAWRENCE delivered the opinion of the Court:

This case has already been before this court, on the original bill, and is reported in 39 Ill. 62, under the title, Atkin v. Merrill. The facts are there stated, and it is unnecessary to repeat them. It was then said by the court, that Atkin could assert his alleged equitable rights in the premises only by a cross bill. He has since filed his cross bill, and the court has given him the relief asked. The decree, however, rests substantially on his own testimony, which was objected to on the hearing, and a reversal of the decree is now asked, because of its admission.

We can not consider him a competent witness. Under the act of 1867, a party is not a competent witness where the adverse party sues or defends as executor, administrator, heir, legatee or devisee of a deceased person, with certain exceptions enumerated in the act, in none of which does the present case fall. Atkin testified as to certain transactions between himself and Nelson C. Merrill, now deceased. The plaintiff in error, Minerva Merrill, not only claimed dower in the premises as widow of Nelson C. Merrill, which claim was admitted by Atkin, the defendant in error, but she also claimed four ninths of the premises in fee. Atkin set up a

lien paramount to this last claim. The plaintiff in error claimed the four ninths as the heir of two of her deceased children, who had inherited from their father, her husband. It is said she is not claiming as heir of her husband, and, therefore, the case does not fall within the prohibition of the second section of the statute. It is true, she does not claim as

Syllabus.

the immediate heir of her husband, but she does claim as his heir through her children. She claims under him by inheritance. Under the word heirs are comprehended the heirs of heirs, ad infinitum. Bouvier's Law Dic., where the authorities are cited.

The case, then, falls not only within the letter, but the spirit, of the second section of the statute, the evident intent of the legislature being to make the right of a party to testify a mutual right, and not to grant it where the adverse party claims in a representative capacity under a deceased person, with certain exceptions not applicable to the case at bar. The necessity of such a restriction is too apparent to need comment, and applies as well in favor of the heir by one remove as in behalf of the immediate heir.

The decree is reversed and the cause remanded.

Decree reversed.

WALDON BIVENS et al. SCHOOL DIRECTORS, ETC.

บ.

JOSEPH HARPER.

GARNISHEE-money in the hands of School Directors. Certain garnishees answered that they were School Directors; that the judgment debtor was employed by them as the teacher of the common school in the district; that there was due him a certain sum of money but that he had not made out his schedule; that previously the directors and teacher had entered into a special agreement, that the directors should make the schedule payable to a third person; that they had no property, means or effects belonging to the teacher, in their hands except the money earned for teaching, and nothing as individuals: Held, upon the facts, on the authority of the ruling in Millison v. Fisk, 43 Ill. 112, the money thus in the hands of the directors was not liable to garnishment.

WRIT OF ERROR to the Circuit Court of Johnson county.

Opinion of the Court.

Mr. O. A. HARKER, for the plaintiffs in error.

Mr. W. J. ALLEN, for the defendant in error.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was a proceeding instituted for the purpose of reaching moneys in the hands of school directors, to which Hill would be entitled, on the return and proper certificate of his schedule, as the teacher of a common school. It appears that defendant in error recovered a judgment for the sum of $119.18 against Hill, in the Johnson Circuit Court; that an execution was issued and returned no property found, and the affidavit required by the statute was filed. A garnishee summons was issued and served on plaintiffs in error. They appeared, and answered that they were school directors; that Hill was teaching a school in the district, employed by them as directors, at $40 per month; that he had kept school about three and a half months, and that there was due to him near $140; that he had not made out his schedule; that in the previous month of November the directors and teacher had entered into and made a special arrangement or agreement that the directors should make the schedule payable to one Roland; that they had no other property, means or effects of Hill in their hands or possession, and they owed him nothing unless the money earned for teaching, but nothing as individuals. On a hearing on interrogatories and the answer, the court below rendered judgment against plaintiffs in error, for the amount which had been earned by Hill as such teacher. We are asked to reverse the judgment, on the ground, that the law does not warrant a judgment against the garnishees, on the facts disclosed on the hearing below.

The case of Millison v. Fisk, 43 Ill. 112, was similar to this, in all its material features. It was there held, that money thus in the hands of school directors or their treasurer, was not liable to garnishment. That case must control this, and the judgment of the court below is reversed and the cause remanded. Judgment reversed.

Syllabus. Opinion of the Court.

ST. LOUIS & MEMPHIS PACKET COMPANY

v.

JAMES F. PARKER.

1. AGENT-act of, whether binding on his principal. Although an agent's authority may be special and limited, yet if the principal permits such agent to advertise his name as agent generally, without noting such limitation, and the agent acts outside of his authority, the principal will be bound thereby, unless the party with whom he deals had notice of the limitation.

2. Although the act of an agent, outside of the scope of such agent's authority, is not binding upon his principal, yet the principal may ratify such act and thus render it obligatory upon him.

APPEAL from the Circuit Court of Alexander county; the Hon. DAVID J. BAKER, Judge, presiding.

Messrs. ALLEN, WEBB & BUTLER, for the appellant. Messrs. MULKEY, WALL & WHEELER, for the appellee. Mr. JUSTICE BREESE delivered the opinion of the Court: This was an action of assumpsit in the Alexander circuit court, by the plaintiff, Parker, against the St. Louis and Memphis Packet Company.

The declaration alleges, that the defendant was a common carrier of freights, from the city of Memphis to the city of St. Louis and to intermediate points by water, and was possessed of divers boats running between those points, and that the plaintiff, at the request of the defendant, delivered to defendant divers goods and merchandise, describing them, to be taken and safely carried from a certain designated point on the route to St. Louis, consigned to certain named commission merchants in St. Louis. The breach is, that they did not safely carry and deliver.

The contract to receive and carry this freight, it appears, was made by the plaintiff with Charles T. Hinde, who represented himself to the public and to the plaintiff as the agent of the defendant company.

Opinion of the Court.

About one half of the lumber was taken under this contract with the agent, and the balance swept away by the rising flood of the Mississippi, it having been piled on the bank of that river, ready for shipping, under the contract with Hinde.

The only question in the case arises upon the instructions. Appellant insists that the court should have given the fifth instruction asked by him, without qualification or modification.

That instruction was as follows: The defendant had the authority and right, in selecting Capt. Hinde as its agent at the city of Cairo, to limit his authority to bind or contract for them to said city of Cairo.

This instruction announces a principle which this court has always approved, and may be considered settled law, but if given as asked it could not have failed, with the testimony before the jury, to have misled them. The extent of Hinde's agency was a principal question before the jury, and on that there was contradictory evidence. The instruction implies Hinde's agency was special and limited. The court modified it in this way: But if you find from the evidence that the defendant employed Capt. Hinde as agent at Cairo, and permitted him to advertise his name as agent, without noting such limitation, the plaintiff would not be bound by such limitation, unless you find, from the evidence, that he had notice that the power of said Hinde was so limited.

This modification was proper and presented the point to the jury in its true aspect. 1 Pars. on Con. 44.

Appellant also complains of the refusal of the court to give the sixth, seventh and eighth instructions, asked by him.

The sixth and seventh are objectionable, as they include the proposition, that an agent for a public common carrier, published to the world as a general agent of such carrier, may set up in defense of his principal any private instructions he may have received, or limitations upon his supposed general powers, imposed by such principal. Such a proposition is inadmissible.

The eighth instruction is a mere repetition of the fifth, which the court properly refused.