those claiming benefit from the election that such irregular conduct has not prevented an honest and fair election: Fowler v. State, 68 Tex. 30.

IN ELECTION CONTEST, BURDEN OF PROOF IS UPON PARTY WHO SEEKS to set aside the returns, and they cannot be invalidated by merely showing that the ballots, after being counted, have been so exposed to the public as to be unworthy of credit: Powell v. Holman, 50 Ark. 85. The ballots not having been so kept that they might not have been changed, the parol evidence of the judges of election as to the result of the ballot as counted and declared at the polls is admissible: Stemper v. Higgins, 38 Minn. 222; and see Dixon v. Orr, 49 Ark. 238; 4 Am. St. Rep. 42.

NICHOLS V. SARGENT.

[125 ILLINOIS, 309.]

GUARDIAN IS PERSONALLY BOUND BY PROMISE MADE ON SUFFICIENT CONSIDERATION TO PAY DEBT OF HIS WARD, although he expressly promises as guardian, and this principle applies to covenants in lease of ward's property to purchase at end of term improvements made by tenant, but a debt so paid may be recovered back from estate of ward. CONTROVERTED QUESTIONS OF FACT WILL NOT BE REVIEWED where submitted to jury and decided below.

APPROVAL OF PROBATE COURT OF AWARD BY APPRAISERS OF VALUE OF IMPROVEMENTS by lessee of ward's property is not required, where lease by guardian, made with approval of probate court, contains provisions relative to mode of appraisment.

Hutchinson and Partridge, for the appellant.

Dexter, Herrick, and Allen, for the appellee.

SCOTT, J. This was an action of covenant on that clause of the agreement to renew the lease that had formerly existed between the parties, which, it is said, obligates defendant personally to purchase, at the expiration of the lease, the improvements put upon the demised premises by plaintiff, "at the valuation of three persons," to be selected as in the lease provided. The renewal agreement is signed by defendant, Annie E. Nichols (formerly Annie E. Haven), “Annie E. Nichols, guardian." The premises seem to belong to defendant and her minor children, for whom she was guardian at the time of making the lease. It is recited in the original lease it is between "Annie E. Haven in her own right, and as guardian" for her three surviving children, and plaintiff, Homer E. Sargent. In the declaration, the covenants contained in the lease upon which breaches are assigned are declared upon as the personal covenants of defendant, and the first question presented is, Did defendant, by executing

the agreement to renew the lease, become personally liable to perform the covenant it contained for the purchase of the improvements made by the tenant on the demised premises?

The precise question made in this case was made in Sperry v. Fanning, 80 Ill. 371, and it was there held, if a person makes a contract, describing himself as guardian or trustee for another, and so signs the same, he will be personally liable, in the absence of an express provision showing clearly that both parties agreed to act upon the responsibility of the fund in his hands, alone, or upon some other responsibility, or there appear some other circumstances clearly indicating another party who is bound by the contract, and upon whose credit alone it is made. The principle of that case is, if a guardian promises, on a sufficient consideration, to pay the debt of his ward, he is personally bound by it, although he expressly promises as guardian. In such cases, where the guardian discharges the debt of his ward, he may have indemnity out of the estate of his ward, or if he has been discharged from his guardianship, he may have an action against the ward or his estate, as for money paid for his use. The facts in both cases are so nearly analogous, no reason is perceived why the case being considered is not controlled, in every respect, by the case cited. An effort is made, however, to distinguish this case from Sperry v. Fanning, on the ground that in the latter case the agreement made by the guardian was not made with the approval of the probate court, as was done in the case now before this court. In that respect there is no difference between the cases. It appears from the dissenting opinion, the contract made by the guardian in Sperry v. Fanning was made with the approval of the probate court, and that is persuasive evidence, at least, of the existence of that fact in the case.

The declaration seems to be framed upon the theory, defendant had refused to submit the valuation of the improvements to the appraisers, as is provided in the lease shall be done. Whether defendant did refuse to go on with the appraisement is a controverted question of fact, and as it was found against defendant by the trial and appellate courts, it is not subject to review in this court.

It is said there was an offer to go on with the appraisement, if plaintiff would consent the award should be subject to the approval of the probate court before it should be binding on the guardian or the ward's estate, and inasmuch as plaintiff

would not consent to that proposition, there was, in law, no refusal. Plaintiff was not bound to submit to the conditions imposed by the guardian. He very properly insisted his rights should be determined and ascertained by and under the lease. That was his clear right; and on the refusal of defendant to submit to the appraisement, as provided in the lease, it is but just and right plaintiff should recover as for the value of the improvements in controversy. In no other way could he obtain full damages for the breach of the covenants of the lease. The probate court had once approved of that mode of ascertaining the value of the improvements on the demised premises. Neither the law nor his contract required that plaintiff should submit the matter again to the probate court for any further action.

Most, if not all, of the other questions discussed in the elaborate arguments of counsel are controverted questions of fact not subject to review in this court, and of course need not be noticed.

The judgment of the appellate court will be affirmed.

GUARDIAN IS NOT PERSONALLY LIABLE ON CONTRACTS OF WARD without an express undertaking in writing to that effect: Overton v. Beavers, 19 Ark. 623; 70 Am. Dec. 610. Lease of ward's estate by guardian: Webster v. Conley, 46 Ill. 13; 92 Am. Dec. 234.

PARTY CONTRACTING WITH GUARDIAN TO ERECT BUILDINGS ON PROPERTY OF INFANT WARD has no equitable lien upon the property for the value of the improvements, if the contract was made without any legal authority on the guardian's part, and with full knowledge of the title and condition of the property on the part of the other party: Guy v. Du Uprey, 16 Cal. 195; 76 Am. Dec. 518.

CHICAGO, MILWAUKEE, AND ST. PAUL RAILWAY COMPANY V. WEST.

[125 ILLINOIS, 320.]

CONTROVERTED QUESTIONS OF FACT WILL NOT BE RECONSIDERED.

MASTER AND SERVANT-NEGLIGENCE. — RAILROAD COMPANY is not liable if servant in causing injury to another is not acting within the scope of his employment; but master is responsible, where servant acts within the general scope of his employment, for acts done while engaged in his master's business, with a view to the furtherance of that business, by which injury is caused to another, whether negligently or wantonly committed.

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RAILROADS. ENGINEER ACTS WITHOUT THE SCOPE OF HIS AUTHORITY IN INVITING A PERSON TO RIDE ON THE ENGINE, and if injury is suffered

by such person without further fault on the part of the engineer or other servants of the company, it is not liable. ENGINEER MUST USE REASONABLE CARE IN PUTTING PERSON OFF ENGINE; it is negligent conduct in engineer, for which his employer is answer. able to direct child only seven years old to get off engine while in motion, although such child was wrongfully there.

INSTRUCTIONS NOT APPLICABLE TO FACTS MAY BE REFUSED.

E. Walker, for the appellant.

Selden Fish, for the appellee.

SCOTT, J. This appeal is from a judgment of affirmance by the appellate court for the first district of a judgment rendered by the trial court in favor of Walter West, who sues by his next friend, Elizabeth West, against the Chicago, Milwaukee, and St. Paul Railway Company. The action was to recover for personal injuries to the beneficial plaintiff, occasioned by the improper conduct of defendant's servants in putting him off an engine, on which it is alleged plaintiff had been riding by the invitation of the engineer. Of course, evidence in relation to controverted questions of fact cannot be discussed, and the argument addressed to this court on that branch of the case will not be considered.

Among the controverted questions of fact made before the jury were, first, as to how plaintiff got on the engine,-whether by the invitation of the engine-driver, or otherwise; and second, whether he was on the engine at all. It is insisted on behalf of plaintiff that he got upon the engine by the invitation of the engine-driver, and that he was injured by the negligent conduct of the engineer in putting him off without first stopping the engine; and on the part of defendant it is claimed plaintiff was not on the engine at all, but that he was injured in attempting to get on a flat-car while the train was in motion, without any knowledge on the part of the train-men that he was trying to do so. There is testimony tending to sustain both positions. The jury, by their verdict, sustained plaintiff's theory of the case, and as there is testimony tending to support the verdict, since that finding has been affirmed by the appellate court, the finding of the latter court is conclusive on this court. It will therefore be assumed, in the consideration of the questions of law discussed, that plaintiff was on the engine by invitation of the engine-driver, and that the injuries sustained by him were caused by the negligent manner in which plaintiff was put off the engine while in motion. It is not necessary for this court to express an opinion whether

it would have found the same way, from the evidence, the trial and appellate courts did. The statute provides this court shall not reconsider controverted questions of fact. That is the appropriate work of the courts through which the cause has come to this court. It has now passed that stage where controverted questions of fact can be reviewed.

Undoubtedly the law is as counsel states it to be, that where the relation of master and servant exists between the railway company and the person whose act is the cause of injury to another person, the company is not liable if the servant, in causing the injury, is not acting within the scope of his employment; but, on the other hand, the law is equally well settled that the master is responsible, where the servant acts within the general scope of his employment, for acts done while engaged in his master's business, with a view to the furtherance of that business, by which injury is caused to another, whether negligently or wantonly committed. Applying these general principles of law, the case in hand will be found to present no serious difficulty. Conceding, as must be done, the engineer invited plaintiff to ride with him on his engine, he was acting without the scope of any duty he owed to his employer, and had any injury come to plaintiff on account of that act of the engineer itself, whether negligently done or not, the master would not be liable. If that were all there is of this case, it is plain the judgment would be contrary to law, and should be set aside. The action is not based on any such ground. It is sought to recover for a very different reason. It is because when plaintiff was on the engine, no matter how he got there, it was the duty of the engineer to put him off, and in doing so he was obliged to observe reasonable care. The rules of the company, in evidence, show it was unlawful for any one, other than certain employees, to ride upon the engine. Should any stranger get upon the engine, it would clearly be the duty of the engineer to put him off, and in doing so he would be acting within the general scope of his employment, and if, in the discharge of that duty, he negligently or wantonly injured such person, the master would be liable. In this case, it may be conceded plaintiff was wrongfully on the engine, whether he was there by the invitation of the engineer or by his own wrongful conduct, and it was the duty of the engineer to cause him to get off. At the time of the accident plaintiff was about seven years old, and of course was too young to observe much, if any, care for his personal safety.