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the appellee. The criticism made upon the first and second instructions is that they ignore the defense of assumed risk interposed by the appellant. Those instructions informed the jury that the appellee might recover, if he had proven his case as Stated in the Second count of his declaration (that count being the count upon which the case Was Submitted to the jury) by a preponderance Of the eWidence. The declaration in this case differs from the declaration in Illinois Terra Cotta Lumber CO. V. Hanley, 214 Ill. 243, 73 N. E. 373, and kindred cases relied upon by the appellant. Here facts were averred in the Second COunt Of the declaration which, if true, showed the appellee did not assume the risk which caused his injury, while such was not true of the declaration in the Hanley Case. The third instruction is similar to the Seventh instruction given on behalf of appellant, and the criticism made On that instruction is WithOut force.

It is finally urged that the attorney for the appellee, in his closing argument to the jury, traveled outside the record, and that the case should be reversed by reason of the misconduct of such attorney. The attorney for the appellee, in his closing argument, undertook to discuss certain evidence Which had been introduced under the first Count of the declaration, which Count WaS withdrawn before the argument to the jury Was begun. Upon objection being interposed to that line of argument by the attorney for the appellant, the Court promptly Sustained the Objection, and directed the attorney for the appellee to confine his argument to the evidence which tended to support the issues presented by the second Count Of the declaration. While the conduct of the attorney for the appellee in attempting to discuss issues not then before the jury was reprehensible, such misconduct was promptly rebuked by the trial court, and the jury were informed by that court that no recovery could be had under the first count of the declaration. We do not think the case should be reversed on account of the action of the attorney for the appellee during his closing argument.

Finding no reversible error in this record, the judgment of the Appellate Court Will be affirmed.

Judgment affirmed.

(222 Ill. 506)

CHICAGO UNION TRACTION CO. et al. v.
LOWENROSEN.
(Supreme Court of Illinois. Oct. 23, 1906.)

1. TRIAI.—QUESTIONS FOR JURY-CONFLICTING EVIDENCE. Where there is evidence fairly tending to prove the plaintiff’s case, its weight and sufficiency are to be determined by the jury, though the court may be of opinion that the weight of the evidence is for defendant. [Ed. Note:-For cases in point, see vol. 46, Cent. Dig. Trial, §§ 332, 333, 439–406.]

2. SAME – INSTRUCTIONS – ACTION AGAINST CARRIER—INJURY TO PASSENGER.

In an action against a carrier for injuries to a passenger, the court instructed that if the jury believed that defendant failed to use such care and diligence as required, and that “by reason thereof the plaintiff was injured as alleged in the plaintiff's declaration,” there should be a verdict for plaintiff. Held, that the instruction was not erroneous on the theory that the words “as alleged in plaintiff's declaration” referred to the character of the injuries, and hence that plaintiff’s right to recover was not limited to proof of the negligence charged in the declaration. 3. CARRIERS—INJURY TO PASSENGER—ACTION

—INSTRUCTIONS.

In an action against a carrier for injuries to a passenger, the declaration alleged negligence in managing and controlling the car and in causing it to start suddenly and violently, and the court instructed that in order to entitle plaintiff to recover he must prove by a preponderance of the evidence that he was in the exercise of ordinary care, and if the injury resulted from an accident, and not from the negligence of defendant, the verdict should be for defendant, and the court also instructed that it was the duty of defendant to do all that human care, vigilance, and foresight could reasonably do to prevent an accident to plaintiff. There was no evidence introduced to prove any negligence, except that charged in the declaration. Held, that the instructions were not erroneous, on the ground that the jury might have understood that they could find for defendant, if they believed the cable machinery was defective or out of repair.

Appeal from Appellate Court, First District.

Action by Leo LOWenrosen against the Chicago Union Traction Company and others. From a judgment of the Appellate Court affirming a judgment in favor of plaintiff, defendants appeal. Affirmed.

John A. Rose and Albert M. Cross (W. W. Gurley, of counsel), for appellants. I. B. Lipson, for appellee.

FARMER J. This is an appeal from a judgment of the Appellate Court affirming a judgment of the circuit court in favor of appellee for $5,000 damages for personal injuries. The appellant the Chicago Union Traction Company was operating a doubletrack street car line on West Madison street, in the city of Chicago, as lessee of the West Chicago Street Railway Company. Appellee and a married daughter, with her baby less than a year old, came to Madison Street and Hamlin avenue and took a position at the southeast corner of those two streets, which Was the proper place for persons desiring to board east-bound cars. Soon thereafter a train, consisting of a grip and two or three trailers, came along, east bound. When the train stopped to discharge and take on pasSengers, appellee's daughter got aboard, and appellee, with the babe in his left arm, stepped On the running board of one of the cars and handed his daughter the child. About that time the train started forward, and appellee Was thrown to the ground and injured. The declaration contains four counts. The first and third charge that appellee was a passenger on appellants' car; the second and fourth, that he was in the act of boarding the car for the purpose of becoming a passenger thereon. The first count charges appellants With negligence, generally, in managing and controlling the car; the second, with negligently and wrongfully causing the car to start and violently lurch forward while plaintiff was in the act of boarding it; the third and fourth, with negligently and wrongfully causing the car to start forward while plaintiff Was Stepping into and boarding it. It is first contended the court erred in not directing a verdict for appellants. It is claimed there was no evidence tending to prove that appellee was either a passenger On the car or that he was in the act of boarding it for the purpose of becoming a paSSenger; but it is a SSerted the evidence shows clearly and conclusively that he was not a passenger, nor intending to become Such, and Only Went to the car for the purpose of helping his daughter and her child aboard. It is true certain portions of the testimony of appellee, to which our attention is particularly called by the appellants, seems contradictory, and Standing alone would leave the matter in Serious doubt, to say the least. But, when all the evidence is considered, it tends to show he stepped on the car for the purpose of entering it as a passenger. Whatever of apparent contradictions there may be in appellee's testimony is reasonably attributable to his inability to speak the English language clearly and perfectly. The rule is not, as contended by counsel for appellants, that it is the duty of the trial court to direct a Verdict for a defendant, where, if one were rendered against it by the jury, the court would set the verdict aside. Where there is evidence fairly tending to prove the plaintiff's case, its weight and sufficiency are questions to be determined by the jury, even though the court may be of opinion the weight of the evidence is on the side of the defendant. Chicago City Railway Co. v. Martensen, 198 Ill. 511, 64 N. E. 1017; Mills v. Larrance, 217 Ill. 446, 75 N. E. 555; Chicago City Railway CO. V. Lannon, 212 Ill. 477, 72 N. E. 585 The only other grounds urged as cause for reversal are the giving of the first and Second instructions for appellee. The first inStruction is as follows: “If you believe, from the evidence, that the plaintiff got on the car in question for the purpose of riding on the said car, and was ready, willing, and able to pay his fare, then it was the duty of the defendant Chicago Union Traction Company to do all that human care, Vigilance, and foresight could reasonably do, consistently With the character and mode of Conveyance adopted and the practical prosecution of their business, to prevent an accident to the plaintiff while he was riding upon the said car

or going upon the same; and if you further believe, from the evidence, that the defendant Chicago Union Traction Company failed to use such care and diligence, and that by reason thereof the plaintiff Was injured, as alleged in the plaintiff's declaration, while the plaintiff was in the exercise of reasonable care for his own safety, then you should find the defendant Chicago Union Traction Company guilty.” The objection made to this instruction is that plaintiff's right to recover is not limited to proof of the negligence charged in the declaration. It is argued that the Words, “as alleged in the plaintiff's declaration,” in the latter part of the instruction, refer to the character of the injuries received by appellee, and not to the negligence charged in the declaration. The Appellate Court said on this question: “The phrase, as alleged in the plaintiff's declaration, relates back to the use of diligence by the defendant as Well as to the injury to the plaintiff. Any other interpretation is too technical for practical use.” We concur in that view, and it is sustained by Elgin, Aurora & Southern Traction Co. v. Wilson, 217 Ill. 47, 75 N. E. 436. It was well said in Funk v. Babbitt, 156 Ill. 408, 41 N. E. 166: “The test, then, is, not what the ingenuity of counsel can, at leisure, Work out the instructions to mean, but how and in what sense, under the evidence before them and the circumstances of the trial, would or-. dinary men and jurors understand the inStructions.” The Objections made to the Second instruction are of a similar technical Character.

It is argued that the jury might have understood from the instructions they were authorized to find the defendants guilty, if they believed the cable machinery was defective or out of repair. There was no evidence introduced to prove any negligence, except that charged in the declaration, and appellants do. not claim there Was. The Court instructed the jury, at appellants’ request, that in order to entitle plaintiff to recover he must prove, by a preponderance of the evidence, that he was a passenger on the car or was in the act of boarding it for the purpose of becoming a passenger; that he must also prove, by a preponderance of the evidence, that he was in the exercise of Ordinary care for his own Safety at the time; and that if the injury resulted from an accident, and not from the negligence of defendants charged in the declaration, the Verdict should be not guilty. We are unable to see how the jury could possibly have been misled, or how they could have misunderstood the instructions given for appellee.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.

(222 Ill. 510) McLEAN V. CITY OF EAST ST. LOUIS. Oct. 17, 1906.)

1. MUNICIPAL CORPORATIONS – CHARTERs – CONSTRUCTION.—MAJORITY OF CouncIL. City Incorporation Act, art. 3, § 13 (Hurd's Rev. St. 1905, c. 24, § 41), provides that the yeas and nays shall be taken on the passage of all ordinances, and on all propositions to create any liability against the city or for the expenditure or appropriation of its money, and requires the concurrence of a majority of all the members elected to the city council for the passage of any such ordinance or proposition, etc. Held, that such section was not limited to ordinances and propositions creating a liability against a city or providing for the expenditure or appropriation of its money, but required that the yeas and nays should be taken on the passage of all ordinances, and that a majority of the legislative body, as distinguished from a majority of a quorum, should concur in the passage thereof. [Ed. Note.—For cases in point, see vol. 36, # Dig. Municipal Corporations, §§ 206–208,

2. SAME—LOCAL IMPROVEMENT ACT-EFFECT. Though the local improvement act constitutes a complete code for the making of local improvements, it contains nothing excepting an ordinance providing for an improvement from the requirement of City Incorporation Act, art. 3, § 13 (Hurd's Rev. St. 1905, c. 24, § 41), requiring that a majority of the members of the city council shall vote therefor as a prerequisite to its passage; and hence does not authorize the passage of such an ordinance by a majority of a quorum. [Ed. Note.—For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, §§ 207, 208.]

3. SAME – CITY COUNCIL—VACANCY—MAJORITY. A city charter provided for a city council consisting of 14 aldermen and a mayor, to which was committed the legislative powers of the city with the requirement that the concurrence of the majority should be necessary to the passage of an ordinance. The aldermen were authorized to hold their office for two years, and until their successors were elected and qualified, and, if any vacancy should occur, it should be filled by election. Held, that where a vacancy occurred in the office of one of the aldermen which was not filled for more than five months, the council could not be treated as consisting of 13 aldermen only, so as to authorize the passage of an ordinance by a vote of seven.

[Ed. Note.--For cases in point, see vol. 36.

(Supreme Court of Illinois.

Cent. Dig. Municipal Corporations, §§ 206, 207.]

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and acted as such from May 1, 1905.

of complainant, objector appeals. Reversed and remanded.

C. E. Pope (Forman & Whitnel, Dan McGlynn, E. R. Davis, Charles B. Carroll, H. L. Browning, N. C. Lyrla, L. H. Hite, M. D. Baker, and J. J. Rafter, of counsel), for appellant. Freels & Joyce, M. Millard, and Keefe & Sullivan, for appellee.

CARTWRIGHT, J. Upon the application of the city of East St. Louis, appellee, for the confirmation of a special assessment levied to defray the cost of a sewerage pumping station and a system of sewers connected there

with, N. C. McLean, appellant, whose prop

erty was assessed, filed an objection that the ordinance providing for the improvement was not legally passed by the city council, and was therefore void and of no effect. The court overruled the objection, and, appellant waiving further controversy as to questions triable by jury, the court entered judgment confirming the assessment. Article 3 of the act for the incorporation of cities and villages relates to the city council. Section 1 (Hurd's Rev. St. 1905, c. 24, § 29) provides that the city council shall consist of the mayor and aldermen; Section 2 (section 30) that a city shall be divided into Wards and two aldermen shall be elected from each ward; section 3 (section 31) that aldermen shall hold their office for a term of two years and until their successors are elected and qualified; section 4 (section 32) that if any vacancy shall occur by death, resignation, removal, or otherwise, such vacancy shall be filled by election; and Section 13 (section 41) is as follows: “The yeas and nays shall be taken upon the passage of all ordinances and on all propositions to create any liability against the city, or for the expenditure or appropriation of its money, and in all other cases at the request of any member, which shall be entered on the journal of its proceedings; and the concurrence of a majority of all the members elected in the city council shall be necessary to the passage of any such ordinance or proposition: ProVided, it shall require two-thirds of all the aldermen elect to sell any city or school property.” - The city of East St. Louis is divided into seven wards, and the city council consists of the mayor and 14 aldermen. Charles B. Goedde, an alderman elected in the sixth ward, qualified as city treasurer of said city He presented his resignation to the city council, and a resolution was passed accepting it. No election Was called Or held to elect his successor, and, more than five months having elapsed after he ceased to act as alderman, the city council met on October 16, 1905. There were present at that meeting 12 aldermen, and the Ordinance in question was placed upon its passage. Seven aldermen voted “aye” and five voted “nay,” whereupon it was declared passed and the next day it WaS approved by the mayor. Appellant contends that the ordinance did not receive a majority of the votes of all the members elected in the city council, within the meaning of Said section 13, and appellee contends that all the section requires is an affirmative Vote of a majority of the aldermen elected Who remain qualified to act as aldermen. Fourteen aldermen were elected under the act providing that they should hold their Office for the term of two years, and until their successors were elected and qualified, but appellee's position is that there Was a vacancy which had not been filled by election, and therefore there were only 13 aldermen elected and composing the city council When the Ordinance Was Voted upon. Some of the counsel for appellee argue that section 13 relates only to ordinances and propositions creating a liability against a city or providing for the expenditure or appropriation of its money, and that all other ordinances may be passed by a majority of a quorum. They say that it is not unusual for courts, in the construction of statutes, to Substitute one word for another Where the plain meaning of the statute will justify it, and that, by eliminating some words and substituting others, this section will express what they think was the intention of the Legislature. It is the rule that, where the intention of the Legislature is ascertained with reasonable certainty and it appears that words have been used inconsistent with such intention, a word erroneously used for another may be eliminated and the proper word substituted. Where the context affords the means of correcting a mistake in the use of language, the correction may be made for the purpose of giving effect to the intention plainly manifested in the act as a Whole. But we do not agree with the theory that the Legislature, in this instance, intended to limit the requirement of a majority Vote to ordinances creating a liability or appropriating money. In our opinion, to make the changes suggested would be merely juggling with the words of the statute to give it a different meaning from that which was intended. The law requires that the yeas and nays shall be taken upon the passage of all ordinances, and the concurrence of a majority of the legislative body is necessary to their passage. We recognized that construction of the statute in Hibbard & Co. v. City of Chicago, 173 Ill. 91, 50 N. E. 256, 40 L. R. ...A. 621. If a proposition not in the form of an ordinance creates any liability, or provides for the expenditure or appropriation of money, the requirement is the same, while as to other propositions, whether the yeas and nays are entered upon the journal or not, the majority of a quorum is sufficient. Another proposition advanced by the same counsel is that Section 13 has no relation at all to this ordinance, because the local im

provement act constitutes a complete code for making local improvements and does not contain the requirement in question. There is nothing in the local improvement act Which excepts an ordinance providing for an improvement from the general provision, and We see no ground Whatever for Sustaining the claim that such an ordinance could be passed by a majority of a quorum. By the act which constitutes the charter of appellee a legislative body was created, consisting of 14 aldermen and the mayor. To that body are committed the legislative powers of the city, with the requirement that the concurrence of the majority shall be necessary to the passage of an ordinance, The act proVides that aldermen Shall hold their Office for the term of two years and until their Successors are elected and qualified, and if any Vacancy Shall occur in the Office Of alderman by death, resignation, removal, or otherwise, such vacancy shall be filled by election. The intention of the Legislature so expressed is that the legislative body shall alWays Consist of the full number of aldermen. Fourteen aldermen were elected, and, conceding that the acceptance by Goedde of the office of city treasurer created a vacancy, the law required that an election should be held to fill such vacancy. Over five months had elapsed and the law had not been complied with. We are asked to say that, under those circumstances, seven aldermen could legally pass the Ordinance in question. Such a construction Would enable less than a majority of the city council, who are in favor Of the passage of an Ordinance, to make it a law of the municipality in case of the death, removal, resignation, or disqualification of one or more members, and to possess themselves of a power which they would not otherwise have, by failing to perform the duty imposed upon them. The number might be depleted in that way to such an extent that a minority of the council might be enabled to pass ordinances, and no construction ought to be adopted which might lead to such results. It seems to us clear that Such Was not the intention Of the Legislature.

Counsel for appellee urge their construction of the statute upon us largely upon the ground that a different construction would be detrimental to the public interest. They say that to require a majority of the whole city council for the passage of an ordinance is giving to the minority more power than is consistent with good government, and enabling a few obstructionists to prevent wise and wholesome legislation. If the Legislature intended to require a majority vote of the whole council, it is not for the courts to authorize any other course. But we do not feel authorized to say that the requirement is unwise or contrary to a sound public policy. The ordinary course is to allow the will of a collective body to be expressed by a majority and not by a less number, and the provision certainly tends to prevent legislation which does not meet the approval of the people to be affected by it. The position of appellee is supported by the decision in State V. Orr, 61 Ohio St. 384, 56 N. E. 14. In that Case there Was a board Of ten aldermen, One of whom removed from the Ward in which he was elected, and it was held that the Council thereafter consisted Of the nine members who still remained qualified to act, and that five of the remaining aldermen constituted a quorum. We are not impressed with the reasoning of that case, and the Supreme Court of Michigan expressed their dissatisfaction with it in the case. Of Pollasky V. Schmid, 128 Mich. 699, 87 N. W. 1030, where the opposite conclusion was reached. There are several cases in California holding the same doctrine which we regard as correct. City of San Francisco v. Hazen, 5 Cal. 169; McCracken v. City of San Francisco, 16 Cal. 591.

The mayor is a member of the city council, but he is only the presiding officer, and is not entitled to vote except in case of a tie. He cannot be counted as a member to make a quorum, and the majority necessary to pass an ordinance is determined by counting those who are entitled to vote. The mayor in this case did not Vote, and Was not entitled to, and his SubSequent approval of the ordinance, which had not been legally passed, Was unauthorized and did not make the Ordinance legal.

In our opinion the construction given to the statute by the city court was erroneous, and its judgment is reversed, and the cause remanded.

Reversed and remanded.

(222 Ill. 371.)

MACREY v. KERWIN. (Supreme Court of Illinois. Oct. 23. 1906.) 1. DEEDS-CONDITIONS PRECEDENT - VESTING OF TITLE. A man conveyed land to his daughter shortly before his marriage, and subsequently, in a suit by the wife for separate maintenance, she charged that the land was held in trust for the husband. Pending the suit, an agreement was executed by the husband, wife, and the daughter, reciting the pendency of the suit, and that it was the desire of the parties to forever settle all claims of the husband and wife to any real estate held by the daughter, and providing that, in consideration of a quitclaim deed to the daughter and the dismissal of the suit, the husband should have the right to collect and use the rents and profits of the real estate during his life, and that, in case of his death prior to that of the wife, the daughter, her heirs, executors, assigns, etc., should pay within a specified time to the wife a certain sum, and that all right and title of the wife should cease upon the payment of such sum. A quitclaim deed was executed pursuant to the agreement. Held, that the payment of the sum of money specified within the time required after the husband's death was not a condition precedent to the vesting of title in the daughter. [Ed. Note.—For cases in point, see vol. 16, Cent. Dig. Deeds, §§ 294–302.] 78 N.E.—52

2. TENDER—OPERATION AND EFFECT.

Where a tender has been made before trial, but the tender is not relied on in the pleadings of the party who made it, nor the money brought into court, the tender is an admission of liability, but not conclusive.

[Ed. Note.—For cases in point, see Vol. 45, Cent. Dig. Tender, §§ 59–66.]

Appeal from Circuit Court, Cook County; J. W. Mack, Judge.

Partition by Michael S. Kerwin against Annie Mackey. From a decree in favor of plaintiff, defendant appeals. Affirmed.

E. J. Whitehead, for appellant. John S. Stevens (John E. Dalton, of counsel), for appellee.

SCOTT, C. J. The decree of the circuit court of Cook county, from Which this appeal is prosecuted, finds that Michael S. Kerwin, the appellee, who filed the bill in this cause for partition and accounting, is the owner in fee simple of an undivided onefourth of certain real estate in the city of Chicago, that James J. Mackey is the owner of the remaining three-fourthS, and that appellant has no interest in the land sought to be partitioned. It further finds that the appellant has received rents and profits from the premises, and that there is now due from her to the owners thereof, on account of Such rents and profits, the sum of $170.05. It awards partition between appellee and James J. Mackey, and adjudges that they recover of and from appellant said sum of $170.05, and that they have execution therefor. Appellant claims homestead and dower in said real estate, and denies that there is anything due appellee and James J. Mackey from her, but insists that, in case she is not entitled to homestead and dower, she is entitled to recover from the other two parties above mentioned the difference between $422 and the amount received by her as rents Subsequent to October 24, 1904.

The real estate in question was, on and prior to June 4, 1898, owned by John Mackey, then a widower, and now deceased. On that date he conveyed said real estate to Anna Davey, his daughter. He was thereafter, on September 23, 1898, married to appellant, and on February 8, 1899, she filed a bill against him for separate maintenance in the circuit court of Cook county. Anna Davey was also made a defendant to that bill, and it was therein charged that she held Said real estate in trust for John Mack

ey, and that he was the equitable owner

thereof. While that suit was pending the parties reached an agreement, which, on May 26, 1899, was reduced to writing and signed by John Mackey, Annie Mackey, Anna Davey, and the husband of the latter. This agreement, after reciting the pendency of the suit brought by Annie Mackey, the adjustment of the differences between appellant and her husband, and the desire of the parties to the agreement “to adjust and settle forever

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