and under the laws of Florida the note was void. The original bill was dismissed for want of equity and the injunction prayed for in the cross-bill was granted, and it was ordered that the note and trust deed should be surrendered to be canceled. Shelton C. Burr appealed to the Appellate Court for the First District, and that court, upon a consideration of the errors assigned, concluded, as appears from the opinion filed, that the note was accommodation paper, which, when made in one State to be used in another, is governed by the laws of the latter as to its validity, and if the security was good against Ednah J. Tobey in the hands of Charles H. Tobey, as trustee of the Ludington estate, it was good in the hands of the actual holder by delivery, leaving the question of consideration and transfer between the Ludington estate and Burr to be settled between them, and in that view of the nature of the paper it was unnecessary to consider or discuss the very unsatisfactory and confusing condition of the evidence concerning the consideration for and the circumstances of the alleged assignment of the note from Charles H. Tobey, as trustee of the Ludington estate, to Shelton C. Burr. The court also concluded that the note and trust deed were not invalid because made in Florida while the maker was temporarily in that State, and because the note was dated at Chicago, Illinois, and secured by real estate in this State, and the trust deed recited the residence of the grantors as Chicago, and therefore the Appellate Court reversed the decree and remanded the cause, with instructions to enter a decree of sale on the original bill and to dismiss the crossbill for want of equity. The Appellate Court granted to the appellant a certificate of importance and an appeal to this court.

The note was not accommodation paper, which is a loan of the maker's credit without restriction as to the manner

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of its use. (Miller v. Larned, 103 Ill. 562; 7 Cyc. 723.) Charles H. Tobey represented to his wife that he could

borrow $5000 from the Ludington estate of which he was trustee if she would execute the note and trust deed, and she executed them for the purpose of procuring the loan. The transaction was not different from any other loan of money upon a note and trust deed. If the note had been accommodation paper it would make no difference in this suit, because the facts alleged in the bill were inconsistent with that theory. The bill alleged that Ednah J. Tobey was indebted to Charles H. Tobey, trustee of the Ludington estate, and being so indebted, in consideration thereof made. the note, and a party cannot make one case by his bill and another by his proofs. Rice Co. v. McJohn, 244 Ill. 264; Chicago, Peoria and St. Louis Railway Co. v. Jacksonville Railway Co. 245 id. 155.

The record contains evidence strongly tending to support the findings of fact in the decree, and as to the fraudulent representations inducing the execution of the note and trust deed it is conclusive. On the question of the bona fides of the alleged assignment the evidence was that Shelton C. Burr was president of the corporation of Burr Bros., dealers in oil and mining stocks and promoters of such schemes, and Charles H. Tobey was vice-president of the same corporation, and the stock had no market value. They had their offices in the same suite in the Flatiron building, in New York City. Their relations were very intimate, and the alleged assignment was after the demand that Tobey should comply with the decree which was of record in Cook county. One hundred and fifty shares of the capital stock of Burr Bros. was transferred, but not to Charles H. Tobey, trustee of the Ludington estate, or to the estate, but the transfer was to Helen Tobey, the then wife of Charles H. Tobey. The Cornell mortgage, which was alleged to be part of the consideration, bore no assignment from Burr Bros. While this was the state of the evidence respecting the assignments, if the note was void because executed in

the State of Florida, the decree of the chancellor was in accordance with the law regardless of all other questions.

The validity, construction, force and effect of instruments affecting the title to land depend upon the law of the State where the land lies. (Harrison v. Weatherby, 180 Ill. 418.) But if the note was void, the trust deed, which was incidental and intended to secure a performance of the obligation created by the note, could not be enforced. It is a universal rule that the validity of a contract is to be determined by the law of the place where it is made, and if it is not valid there it will not be enforced in another State in which it would have been valid if made there. Stacy v. Baker, 1 Scam. 417; Sherman v. Gassett, 4 Gilm. 521; Schuttler v. Piatt, 12 Ill. 417; McAllister v. Smith, 17 id. 328; Roundtree v. Baker, 52 id. 241; Evans v. Anderson, 78 id. 558; Mineral Point Railroad Co. v. Barron, 83 id. 365; Gay v. Rainey, 89 id. 221; Forsyth v. Barnes, 228 id. 326; Scudder v. Union Nat. Bank, 91 U. S. 406; Kanaga v. Taylor, 7 Ohio St. 134; Union Nat. Bank v. Chapman, 169 N. Y. 538; Story on Conflict of Laws, sec. 103; Minor on Conflict of Laws, secs. 72, 168; Westlake on Private Int. Law, sec. 401.

A note takes effect from the time of its delivery and not from its date. Until the maker of a note parts with the possession and control of the instrument he may cancel it or dispose of it as he pleases, and a note is not executed until delivered. The note in this case was made in Florida, and the trust/deed was signed at the same time and acknowledged before a notary public of the county of Dade, in that State. Charles H. Tobey had designated the United States mail as the means of transmission of the note and trust deed to him, and Ednah J. Tobey, in compliance with his request, deposited them in the mail in the State of Florida. When the note and trust deed were so deposited, Ednah J. Tobey, the maker, parted with the possession of and lost all control over the papers and all right to re-take

or reclaim them. Under such circumstances the delivery was complete in Florida when the note and trust deed were placed in the mail, directed to Charles H. Tobey, trustee of the Ludington estate. (Barrett v. Dodge, 16 R. I. 740; Mitchell v. Byrne, 6 Rich. L. 171; Kirkman v. Bank of America, 2 Coldw. 397; Canterbury v. Sparta Bank, 91 Wis. 53; Garrigue v. Kellar, 164 Ind. 676; 3 Ruling Case Law, 860.)/The fact that the domicile of Ednah J. Tobey

was in Illinois did not enable her to execute a note in the State of Florida contrary to the laws of that State, under which she was not competent to enter into a contract. Lin Forsyth v. Barnes, supra, a man and his wife domiciled in the State of Illinois made in Ohio a note and warrant of attorney authorizing the confession of a judgment. Judgment was taken in Ohio and an action of debt brought on the judgment in Illinois. It was held that the judgment entered on the warrant of attorney was void as against the wife, and subject to attack either directly or collaterally, because she was a feme covert, incapable at common law of executing the warrant, and in the absence of proof it would be presumed that the common law was in force in Ohio. The note was payable in Ohio, but that is not a ground of distinction, because the place where the contract is made determines its validity and the place of performance affects only the time, mode and extent of the remedy. The law of the State of performance will govern in determining the rights of the parties and the effect of the contract, but if a party is not competent to make a contract the contract is not valid and will not be enforced anywhere. The application of the rules of law to this case leads to the conclusion that the note was void.

The judgment of the Appellate Court is reversed and the decree of the circuit court affirmed.

Judgment reversed.

MOLLIE JENKINS, Defendant in Error, vs. THe LaSalle COUNTY CARBON COAL COMPANY, Plaintiff in Error. Opinion filed June 16, 1914–Rehearing denied October 7, 1914.

1. Negligence—question whether there is any evidence that the negligence charged was the proximate cause is one of law. Where there is any evidence fairly tending to show that the negligence charged was the proximate cause of the injury the question is one of fact for the jury, but whether there is any such evidence is a question of law, which is raised by a motion for a directed verdict.

2. SAME-what is necessary to constitute proximate cause. To constitute proximate cause the injury must be the natural and probable consequence of the act of negligence charged in the declaration and be of such a character as an ordinarily prudent person ought to have foreseen might probably occur as a result of the negligence, although it is not necessary that the person guilty of the negligence should be able to foresee the precise form of injury.

3. SAME when negligence charged is not the proximate cause of injury. Alleged negligence by the owner of a coal mine in permitting a dump car to be and remain in an unsafe condition, in that no linch-pin was provided to prevent one of the wheels from coming off the axle, is not the proximate cause of an injury to an employee who, when the wheel came off the car at the bottom of the shaft and rolled into the other side of the shaft, stuck his head and arm into that side of the shaft to pull out the wheel, when he was struck on the head and injured by a rock or piece of coal falling down the shaft.

WRIT OF ERROR to the Branch "D" Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. WILLIAM E. DEVER, Judge, presiding.

ROBERT J. SLATER, for plaintiff in error.

JAMES C. MCSHANE, for defendant in error.

Mr. JUSTICE COOKE delivered the opinion of the court: Defendant in error, Mollie Jenkins, conservatrix of the estate of William Jenkins, recovered a judgment against plaintiff in error, the LaSalle County Carbon Coal Com