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place where the injury occurred was admitted to be in the city limits, and the admission that the company had for many years prior to that time been operating a street railway at that place, justifies, in my opinion, the inference that it was operating by virtue of the license granted and the terms imposed by the ordinance.

It seems to me the criticism of the sixth instruction given for plaintiff is far-fetched and unsound. It is perhaps awkwardly worded but contains no erroneous statement of the law, nor are the propositions in it so stated as to confuse or mislead the jury. The instruction embraces two propositions of law: (1) That the jury must believe, from the evidence, that plaintiff was in the exercise of ordinary care for his safety; and (2) that as a matter of law he had a right to presume the street was in a reasonably safe condition for travel. It is the second proposition which the court holds erroneous. I had not supposed the correctness of the proposition open to question. In his work on Municipal Corporations (vol. 4, 5th ed. sec. 1698,) Judge Dillon states the rule to be that streets and sidewalks are for the benefit of the public, and all have the right, in using them, to asume that they are in an ordinarily good condition and to regulate their conduct on that assumption. That statement of the rule has been approved by this court in City of Spring Valley v. Gavin, 182 Ill. 232, City of East Dubuque v. Burhyte, 173 id. 553, City of Beardstown v. Smith, 150 id. 169, and City of Chicago v. Babcock, 143 id. 358. The opinion of the court says those cases are not applicable; that in two of them the injury occurred at night and in another it was caused by the breaking of a defective board in a sidewalk, and that none of them are in point here because in those cases the actions were brought against cities, which are primarily charged with the duty of using reasonable care to keep their streets in safe condition for travel. I confess my inability to comprehend the distinction made. True, it is primarily the duty of a city to exercise reasonable care to keep its streets safe for ordinary travel, but where it permits the use of its streets for street railway purposes and imposes the duty upon the railway company of keeping in repair and safe condition those parts of the streets occupied by the railway tracks, a traveler over the streets has as much right to assume that the railway company will perform its duty in this respect as that the city would perform its duty. It does not seem to me reasonable to say the presumption in such cases will obtain against the city but not against the railway company. Certainly the Illinois cases cannot be distinguished because in some of them the injury occurred in the night time. The same presumption obtains in the daytime as in the night time, but there may be a difference as to what conduct will constitute reasonable care in daytime or in night time. In Pettingill v. City of Yonkers, 116 N. Y. 558, (15 Am. St. Rep. 442,) it was held a person using a public street in the daytime or night time may rely upon the assumption that the city has performed its duty in keeping its streets in a safe condition. In a note to Learner v. Philadelphia, 21 L. R. A. (N. S.) 614, will be found a large number of cases from various States in which the rule has been applied as laid down by Judge Dillon. The right to presume that the street was in a reasonably safe condition for travel did not absolve plaintiff from the duty of exercising reasonable care for his safety, and this is so stated in the instruction. It seems to me that upon this question the opinion unsettles, or at least casts doubt upon, a rule of law never heretofore questioned in this State.

Upon the whole record no meritorious reason appears to me which justifies a reversal of these judgments, and I think they should be affirmed.

Mr. JUSTICE CARTER: I concur in the foregoing dissenting opinion of Mr. Justice Farmer.

EDWARD F. Trego, Trustee, Plaintiff in Error, vs. The

ESTATE OF JAMES A. CUNNINGHAM, Deceased, et al. Defendants in Error.

Opinion filed February 17, 1915Rehearing denied April 9, 1915.

1. CONTRIBUTION-general rule as to contribution from sureties. Where there are sureties for the same principal debtor and for the same debt or obligation, and one or more of them have paid or satisfied more than his or their proportionate share of the debt or obligation, he or they are entitled to contribution from the other sureties in order to equalize the common burden.

2. SAMEthe doctrine of contribution originated with courts of equity. The right to contribution is based on the principles of equity and natural justice, and although contribution may be enforced in a court of law on the theory of an implied contract, the doctrine originated with courts of equity and they still have jurisdiction.

3. SAME-court of equity will apportion loss among the solvent sureties. The contract implied by law when one becomes a surety is that he engages to contribute his proportion according to the number of the sureties, without reference to the solvency or insolvency of either of his co-sureties, but a court of equity, applying the fundamental rule that equality is equity, will apportion the loss among the solvent sureties.

4. Courts—what calls for exercise of equitable jurisdiction by probate court. Where a claimant against an estate in the probate court alleges the insolvency of the principal maker of notes on which the deceased was surety and of certain of the sureties and asks for contribution from the estate to the other sureties who have paid the notes, an exercise of equitable powers by the probate court is called for, and that court will proceed as though a bill in chancery had been filed, and will hear evidence, investigate the claim and apply equitable rules in determining the judgment.

5. SAME-section 60 of Administration act, relating to trial by jury, construed. The provision of section 60 of the Administration act with reference to the right to demand a jury of six or twelve men to try the issue, has reference to such claims as would give rise to an action at law and not to claims which call upon the probate court for the same relief, upon the same equitable principles, as would be the case had a bill in chancery been filed.

6. Same—when provision of statute as to propositions of law does not apply. In a case calling for the exercise by the probate court of purely equitable jurisdiction the court will act substantially as a court of equity, disregarding mere matters of form and looking to the substance to determine the rights of the parties, and in such case there is no right to a jury trial, and, in consequence, the statutory provision for propositions of law does not apply.

7. BILLS AND NOTES—when equity will not hold that giving a new note paid the old one. Although the giving of a new note is prima facie payment of the old one, yet the probate court, administering rules of equity, will not hold that an insolvent corporation doing a losing business, with liabilities several times its assets, paid its debt by exchanging for its old note a new one having the same indorsers except one, who was dead; and the fact that the estate of the deceased indorser may be discharged from liability to the creditor does not preclude requiring contribution from his estate to the solvent indorsers, who subsequently paid the new note.

8. Same-placing a note in the mail, addressed to the payee, constitutes a delivery. Where the parties are at a distance from each other, placing a note in the mail, addressed to the payee, constitutes a delivery of the note, and if an indorser was living on the day the note was so deposited and the authority of the agent mailing the note to make use of notes bearing the indorsement is proved, it is not incumbent upon one asserting a claim against the indorser's estate to prove that the indorser was alive at the time of day the agent deposited the note in the mail.

9. SAMEwhen contribution cannot be compelled. Contribution by the estate of a deceased indorser of the notes of a corporation cannot be compelled by co-sureties as to such of the notes as are not clearly shown to have been paid by them, but which, under the evidence, may have been paid by the corporation, as the burden of proving payment by the co-sureties is upon the trustee acting in their behalf in seeking contribution.

10. SAME—what does not affect right to compel contribution. The right to compel contribution from the estate of a deceased indorser on the note of a corporation is not affected by the fact that after the death of such indorser the other indorsers executed notes as principal makers with which they took up the notes of the corporation, upon which all the parties were indorsers, which new notes were subsequently paid by the surviving solvent indorsers.

11. Same-effect of section 68 of Negotiable Instruments act. Section 68 of the Negotiable Instruments act, which provides that, as respects one another, indorsers are liable, prima facie, in the order in which they indorsed but that evidence is admissible to show that as between or among themselves they have agreed otherwise, merely applies to all notes the doctrine which formerly applied in this State to notes payable to the order of the maker, that the person writing his name on it in blank undertook the obligation of a second indorser.

12. SAME—when order in which indorsers sign is not conclusive. Where the indorsers of the notes of a corporation made payable to its own order constitute the entire body of the stockholders of the corporation and are also its directors, and the indorsement is for the benefit of all in keeping the corporation running, the order in which the names are signed is not conclusive in determining the right of those indorsers who were obliged to pay the note to contribution from the estate of a deceased indorser.

13. SAME-verbal agreement of indorsers to be equally liable need not be proved. Section 68 of the Negotiable Instruments act, providing that, as respects one another, indorsers are liable, prima facie, in the order in which they indorsed but evidence is admissible to show that as among themselves they have agreed otherwise, does not require that a verbal agreement that the indorsers shall be equally liable be proved but an inference of such agreement may be otherwise established.

WRIT OF ERROR to the Appellate Court for the Third District;-heard in that court on appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. KimBROUGH, Judge, presiding.

J. B. MANN, H. M. STEELY, and H. M. STEELY, JR., for plaintiff in error.

FRANK LINDLEY, J. H. DYER, and G. F. REARICK, for defendants in error.

Mr. CHIEF JUSTICE CARTWRIGHT delivered the opinion of the court:

Plaintiff in error, Edward F. Trego, trustee for the use of William Moore and Alfred H. Trego, filed in the probate court of Vermilion county two claims against defendant in error, the estate of James A. Cunningham, deceased, for contribution to the amounts alleged to have been paid by the claimant on notes made by the Hoopeston Horse Nail Company, a corporation, payable to itself, and indorsed by the corporation and James A. Cunningham, William

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