court was authorized to review the evidence and consider questions of fact upon appeal or writ of error. The statute concerning entering final judgment or remanding the cause remaining the same as before, it then became the practice of this court to review questions of fact as well as law, and to reverse without remanding, and this practice was continued up to the adoption of the present constitution. This power to reverse without remanding was exercised in a great number of cases from 1837 up to the adoption of the present constitution, as well on a consideration of the facts as in cases determined purely on questions of law. The following are a few of the cases so reversed without remanding: Sherman v. Smith, 20 I11. 351; Moss v. Johnson, 22 id. 633; Orne v. Cook, 31 id. 238; Phillips v. City of Springfield, 39 id. 83; Wells v. People, 44 id. 40; Toledo, Peoria and Warsaw Railway Co. v. Miller, 45 id. 42; Ohio and Mississippi Railroad Co. v. Shanefelt, 47 id. 497; Chicago and Alton Railroad Co. v. McLaughlin, id. 265; St. Louis, Alton and Terre Haute Railroad Co. v. Dorsey, id. 288; Chicago and Northwestern Railway Co. v. Merrill, 48 id. 425; Union Hide and Leather Co. v. Reissig, id. 75; Chicago and Alton Railroad Co. v. Fears, 53 id. 115.

The right of trial by jury at the time of the adoption of the constitution was understood to exist subject to the power of this court, subsequently extended to the Appellate Court, to review the judgments of trial courts on the facts, and to reverse such judgments without remanding the cause for a new trial, and it was this right of trial by jury as so enjoyed which was preserved and protected by the constitution. The practice of reversing judgments without remanding the cause was continued in this court, and a great number of cases were so reversed up to the organization of the Appellate Courts, as will appear from an examination of the Reports, and the power so exercised in this court was not questioned.

When the Appellate Courts were organized the power to determine questions of fact was conferred upon them,

Soon

and the provision for reciting facts was annexed to the power. It was said in Commercial Ins. Co. v. Scammon, supra, that this finding was required by the statute in order that those courts might not arrogate to themselves the exercise of arbitrary or capricious power in reversing cases. However that may be, the only new feature in the law was that requirement, and the power to finally determine causes upon a consideration and determination of the facts had long existed in this court. after this the provisions of the statute in that regard were considered in the case of Fitzsimmons v. Cassell, 98 Ill. 332. In that case it was found by this court that the suit turned upon a controverted question of fact, and the judgment of the Appellate Court was reversed, and the cause was remanded to that court with directions to affirm the judgment of the circuit court, or to recite the facts in its final judgment if found different from the facts as found by the circuit court. Section 87 was there held to apply to cases where "it appears from the record that there is a contrariety of evidence tending to establish two distinct and opposite states of fact, which would respectively require different and opposing judgments, as the one or the other might prevail." We think that this is the proper application of the statute, although the contention of plaintiff in error perhaps finds some support in the language used in Commercial Ins. Co. v. Scammon, supra, and Jones v. Fortune, 128 Ill. 518. Under that contention the Appellate Court could not find any fact concerning the matter in controversy, or recite in its final order, judgment or decree any fact as found, but could only find and recite a conclusion of law. Where a trial court acts upon a motion to direct any particular verdict, the question raised and passed upon is one of law, and not of fact. The trial court is limited to determining whether there is or is not evidence legally tending to prove a fact or to fairly raise an issue of fact. It cannot find or determine any fact, but only whether

there is evidence which, in law, fairly tends to prove such fact. It has been repeatedly held by this court that the question whether there is sufficient evidence to fairly raise an issue of fact before the jury or whether the evidence tends to support the verdict is a question of law. (Bartelott v. International Bank, 119 Ill. 259; Collar v. Patterson, 137 id. 403; Illinois Central Railroad Co. v. Nowicki, 148 id. 29; Post v. Union Nat. Bank, 159 id. 421.) Such a question may be re-examined on appeal or writ of error by this court after being passed upon by the Appellate Court. If the trial court acts upon a motion or instruction for a particular verdict, and that question is passed upon by the Appellate Court, the case may still be brought to this court, and the question whether the evidence introduced was legally sufficient to sustain a verdict is subject to review here. And in Brant v. Lill, 96 Ill. 608, it was held that where the Appellate Court found the facts in the same way as the trial court, and reversed without remanding, this court would still look into the evidence as on a demurrer to the evidence, and if it tended to prove a cause of action it would reverse the decision of the Appellate Court. Such questions have been reviewed in numerous cases in this court, and they are not questions of fact. It is plain that the statute does not refer to such questions, but is designed to confer upon the Appellate Court more extended powers than are possessed by the judge of the trial court, and to give to the former court the power, upon a consideration of the facts, to find them different from the finding of the court from which the cause is brought, provided it shall recite in its final order, judgment or decree the facts so found.

We have seen that the right of trial by jury as it was enjoyed at the time of the adoption of the present constitution was not the right of an indefinite number of jury trials in the same cause, where an Appellate Court, on a review of the case, should find that a recovery would be merely a perversion of justice. Such right of trial

by jury was never deemed to be invaded by the reversal of a cause without remanding it for another trial. Parties still have the right to submit controversies of fact to the consideration of a jury, and the successful party gains all the advantages and benefits following a verdict under the well established rules of the courts, arising from superior opportunities to judge of the credibility of witnesses. But when, with all the advantages accorded to them, it appears to the Appellate Court that there can not be a recovery which should be allowed to stand, no constitutional right is invaded by a refusal to remand the case for successive trials which must necessarily be followed by successive refusals.

It is insisted that under this construction the Appellate Court is invested with too great arbitrary power for the safety or security of litigants. But if the legislature had the power to make the statute, it cannot be invalid. because some court might so exercise it. The presumption is that it will only be exercised in proper cases.

The court is invested with the power, and its decision upon the facts being final, the question whether the exercise of that power in the consideration of the facts, in this particular instance, led the court to a correct conclusion is not subject to review in this court. The only question here is whether the facts as found by the Appellate Court justified the judgment entered by that court,-in other words, whether the law was properly applied to the facts so found. (Hawk v. Chicago, Burlington and Northern Railroad Co. 147 Ill. 399.) The court found that the plaintiff's injury was the result of his own carelessness and not of any negligence of the railroad company, and upon that finding of fact there could be no recovery, and the judgment was properly reversed without remanding. The judgment of the Appellate Court will be affirmed. Judgment affirmed.

Mr. JUSTICE MAGRUDER, dissenting.

HARRY S. HYMAN et al.

V.

GEORGE F. HARDING.

Filed at Ottawa March 28, 1896–Rehearing denied October 9, 1896.

1. WITNESSES-competency of wife in suit against her and her husband jointly. The testimony of a wife in a suit against her and her husband jointly, to recover the cost of resetting a ring with diamonds and a ruby, that the ring was her wedding ring, offered for the purpose of showing that such cost was an item of family expenses, is incompetent.

2. HUSBAND AND WIFE-what class of articles constitutes a family expense. The term "expenses of the family," as used in the statute, (Rev. Stat. 1874, chap. 68, sec. 15,) making such expenses chargeable upon the property of both husband and wife, is not synonymous with "necessaries," which may be personal and individual, and does not include business expenses incurred to secure the means to maintain the family, nor private or individual expenses which do not affect the household or family as a whole, but does include expenses for many articles used by individual members, if they affect the members of the family generally.

3. SAME-article which does not conduce to welfare of family not a family expense. An article is not a family expense, chargeable upon both husband and wife under the statute, if it in no way conduces to the welfare of the family generally, although at times it is used or displayed in the family by the one for whom it was purchased.

4. SAME--a finger ring is not a family expense. A ring is an article of personal adornment, whose primary and important use is for display in general society, although incidentally worn in the family, and does not constitute an item of family expense for which the statute makes both husband and wife chargeable.

Harding v. Hyman, 54 Ill. App. 434, affirmed.

WRIT OF ERROR to the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook county; the Hon. ABNER SMITH, Judge, presiding.

ROSENTHAL, KURZ & HIRSCHL, for plaintiffs in error: Questions of the wife's necessaries are more liberally construed than exemption laws. Hitchcock v. Holmes, 43 Conn. 528.