Vol. IV.] PITTSBURG, FT. WAYNE, AND CHICAGO R. W. Co. v. HAZEN. [No. 2. to be this: Can the company shield itself from the unlawful acts of its employees, for the reason, that after the trains are stopped on account of the refusal of the laborers to perform their duty, the company notify them they are discharged? We apprehend the excuse offered cannot avail. The unlawful acts done after they are notified of the discharge are but a continuation of what was done before, and are a part of the same act; and those that the employees induced to join them in the raid upon the company's trains, while they would be personally liable to the company for all unlawful acts, yet so far as the rights of the public are concerned, what they did must be referred back to the original cause, the difficulty between the company and its servants. The assaults appellants sought to prove may have been provoked by the servants of the company who were in charge of the trains, and it would be manifestly unjust to involve the appellee in an issue of this character. It would be an issue foreign to the one really involved in the case, and one, too, which it would be difficult for appellee to meet. If appellants were damaged by the unlawful acts of their employees and others, acting in concert with them, they must look to those that did the wrong for redress. On the other hand, if appellee has suffered a loss in his goods by the failure of appellants to transport them without unreasonable delay, they must be held liable for the loss. It is, however, urged by appellants that the court erred in refusing to give to the jury certain instructions prepared by them. It appears by the record that the court gave instructions on behalf of appellee, but none of those instructions are contained in the record, and we must decline to pass upon the instructions refused, unless we had before us those that were given. De Clerg v. Mungin, 46 Ill. 113. For aught that we may know or can learn from the record, the law involved in the case may have been properly given to the jury. Had the appellants desired us to pass on the refused instructions, they should have incorporated in the record those given. It is said the damages are excessive; upon a careful examination of the evidence we do not find the judgment to be larger than the testimony war rants. The last point relied upon is, that the record does not show the Cleveland, Columbus, and Cincinnati, and Indianapolis Railroad Company made any contract for the transportation of the goods; the heading to the bill of lading, introduced in evidence, described appellants as Pittsburg, Fort Wayne, and Chicago, C., C. & C. and Lake Shore R. R. Co.'s Express Freight Line, via Crestline. As we understand the record, that part of the freight line described as the C., C. & C. is the Cleveland, Columbus, and Cincinnati Railroad Company. This part of the freight line was sued as the Cleveland, Columbus, Cincinnati, and Indianapolis Railroad Company. If, therefore, any part of the freight line was sued by a wrong name, which seems to have been the case, appellant could only take advantage of the misnomer by a plea in abatement in the superior court. This was not done, and the objection comes too late, when made for the first time in this court. The judgment of the superior court will therefore be affirmed. Vol. IV.] PITTSBURG, FT. WAYNE, AND CHICAGO R. W. Co. v. HAZEN. F. H. Winston & George Willard, for appellants. [No. 2. The final opinion of the court was delivered by DICKEY, J. On the 10th of December, 1870, Hazen shipped by the freight line of the railway company a quantity of cheese from Chicago to New York. The cheese was delivered to the consignee at New York on the 28th of December, eighteen days after the shipment, the proofs tending to show that the usual period of such transit, at that time, did not exceed twelve days; that the weather from the 10th to the 23d was not severely cold, but that severe cold occurred between the 23d and 28th, and that the cheese when delivered in New York was frozen, and thereby damaged to the amount of $1,100.55, and for this amount was the verdict and judgment in favor of Hazen, from which the railway company appeal. As an excuse for this delay beyond the usual period of such transit, the defendant, at the trial below, sought to prove that the sole cause of the delay was the obstruction of the passage of trains in the neighborhood of Leavitsburg, resulting from the irresistible violence of a large number of lawless men, acting in combination with brakemen, who up to that time had been employed by the railway company. That the brakemen refused to work, and were discharged, and other brakemen promptly employed; but the moving of trains was prevented by the threats and violence of a mob. This evidence was objected to by the plaintiff, and excluded by the court. This, we think, was error. It is doubtless the law that railway companies cannot claim immunity from damages for injuries resulting in such cases, from the misconduct of their employees, whether such misconduct be wilful or merely negligent. If employees of a common carrier suddenly refuse to work, and the carrier fails promptly to supply their places with other employees, and injury results from the delay, the carrier is responsible; such delay results from the fault of the employees. The evidence offered in this case, however, tends to prove that the delay was not the result of a want of suitable employees to conduct the trains, for the places of the "strikers" were (according to the proof offered) promptly supplied by others. The proof offered tends to show that the delay was caused by the lawless and irresistible violence of the discharged brakemen, and others acting in combination with them. These men, at the time of this lawlessness, were no longer the employees of the company. The case supposed is not distinguishable, in principle, from the assault of a mob of strangers. All the testimony on this subject should have been submitted to the jury for their determination of the question, whether, under all the circumstances, the period of transit was unnecessarily long. For the delay resulting from the refusal of the employees of the company to do duty, the company is undoubtedly responsible; for delay resulting solely from the lawless violence of men, not in the employment of the company, the company is not responsible, even though the men whose violence caused the delay had but a short time before been employed by the company. Where employees suddenly refuse to work and are discharged, and delay results from the failure of the carrier to supply promptly their places, such delay is attributable to the misconduct of the employees in refusing Vol. IV.] NEWELL v. HOMER. [No. 2. to do their duty, and the misconduct in such case is justly considered the proximate cause of the delay; but when the places of the recusant employees are promptly supplied by others, competent men, and the "strikers" then prevent the new employees from doing duty, by lawless and irresistible violence, the delay resulting solely from this cause is not attributable to the misconduct of employees, but arises from the misconduct of persons for whose acts the carrier is in no manner responsible. The judgment is therefore reversed, and the cause remanded for a new trial. WALKER, CRAIG, and SCHOLFIELD, JJ., dissented. The burden of proof is on a party, seeking to establish a lost will by parol evidence of its contents, to prove the contents by evidence strong, positive, and free from doubt. If a will, once known to exist, is not found at the death of the testator, it is presumed to have been revoked. On an appeal from a decree of the judge of probate refusing to approve and allow an instrument alleged to be a copy of a will, the original being alleged to be lost, suppressed, or destroyed since the death of the testator, issues were framed for the jury, covering these questions. Held, that an issue proposed by the appellant, and which the judge who tried the case refused to submit to the jury, as to specific parts of the alleged will, was immaterial. If this court has power, on a probate appeal, to revise the discretion of the judge presiding at the trial of issues of fact before a jury, in refusing to grant a delay in the trial on account of the absence of a witness, no affidavit of the testimony expected nor any statement of the grounds of such expectation having been made, it will only do so where the circumstances connected with the absence of the witness, and his alleged relation to the case, are so peculiar as to require that the ordinary rule should be dispensed with. To establish by copy a will alleged to have been destroyed or suppressed by parties having an adverse interest thereto, evidence of a conspiracy by such parties to suppress the will is immaterial, unless accompanied with evidence sufficient to justify a jury in finding the execution and contents of the will, and its loss since the testator's death. A party cannot, under the St. of 1869, c. 425, contradict his own witness, by showing that he has made at other times statements inconsistent with his testimony, without first calling his attention to the circumstances and occasion of the supposed state ments. APPEAL from a decree of the judge of probate, refusing to approve and allow certain instruments alleged to be copies of the last will, and of three codicils thereto, of William H. Bordman, the original will and codicils being alleged to have been lost, suppressed, or destroyed since the death of the testator. In this court, the following issues of fact were framed for the jury: Vol. IV.] NEWELL v. HOMER. [No. 2. "1. Whereas the said appellant affirms and said respondents deny that the said Bordman deceased leaving a will duly executed, of which the paper annexed to or embodied in the appellant's petition is a true copy: 2. And whereas the said appellant affirms and said respondents deny that said will was concealed, suppressed, or destroyed by the respondents, or by some of the heirs at law of said deceased, or by Frederic O. Prince, or some one else acting in their behalf : "3. And whereas said appellant affirms and said respondents deny that said Bordman deceased leaving a codicil duly executed by him, of which the paper marked B, annexed to said petition, is a true copy: "4. And whereas the said appellant affirms and said respondents deny that said codicil was concealed, suppressed, or destroyed by the respondents, or by some of the heirs at law of said Bordman, deceased, or by Frederic O. Prince, or by some one else acting in their behalf : "5. And whereas said appellant affirms and said respondents deny that said Bordman deceased leaving a codicil duly executed by him, of which the paper marked C, annexed to or embodied in the appellant's petition, is a true copy: "6. And whereas the said appellant affirms and said respondents deny that the said codicil was concealed, suppressed, or destroyed by the respondents, or by some of the heirs at law of said deceased, or by Frederic Ó. Prince, or by some one else acting in their behalf: "7. And whereas the said appellant affirms and said respondents deny that the said Bordman deceased leaving a codicil duly executed by him, of which the paper marked D, annexed to or embodied in the appellant's petition, is a true copy: "8. And whereas the said appellant affirms and said respondents deny that the said codicil was concealed, suppressed, or destroyed by the respondents, or by some of the heirs at law of said Bordman, deceased, or by Frederic O. Prince, or by some one else acting in their behalf: "And whereas the said respondents affirm and the said appellant denies that if the said Bordman did decease leaving any such codicil as is alleged in the appellant's petition, he, at the time of executing the same, was not of sound mind: 66 Now, therefore, it is ordered that a jury be empanelled to try said issues." The appellant requested that further issues be framed, so much of which as were not substantially the same as those submitted to the jury were as follows: "Did the will of William H. Bordman, executed in the presence of Stedman, Mills, and Thayer, contain a bequest to Anna Tilton, now Anna Newell, this petitioner, of an annuity of eighteen hundred dollars a year during her lifetime, the same to be paid to her by his executors? "Did William H. Bordman, by a codicil made to his last will and testament, executed in the presence of Cushing, Brooks, and Prince, on or about the thirteenth day of March, 1872, give and devise to Anna Newell, this petitioner, the house on Mount Vernon Street in the city of Boston, then owned by said Bordman, to have and to hold the same to her sole and separate use, free from the control of her husband, and to her heirs and assigns forever? Vol. IV.] NEWELL v. HOMER. [No. 2. "Did William H. Bordman, by a codicil made to his last will and testament, executed in the presence of Cushing, Brooks, and Prince, on or about the thirteenth day of March, 1872, give and devise the sum of five hundred thousand dollars, to be applied to the establishment and support of an institution in the form of a home for the benefit of the working women of Boston, and charge Anna Newell, this petitioner, with the trust and duty of carrying out the same in her sole judgment and discretion, recommending her to seek the advice of Henry C. Brooks in respect to the same? "Did said Bordman, by a codicil to his last will and testament, executed in the presence of Cushing, Brooks, and Prince, on or about the thirteenth day of March, 1872, give and bequeath the remainder of his estate, both real and personal, to Anna Newell, this petitioner, and to her heirs and assigns forever, free from the control of her husband? "Specify each and every one of the legacies, bequests, gifts, grants, and devises which you find to have been made and contained in the last will and testament made and left by said Bordman, and in the codicils. thereto." Devens, J., refused to submit these questions to the jury, and the appellant excepted. The case was then tried, and at the close of the appellant's evidence the judge directed the jury to return a verdict for the appellees. The issues submitted were answered in the negative; and the appellant alleged exceptions, the substance of which appear in the opinion. J. F. Pickering, for the appellant. E. D. Sohier & C. A. Welch, for the appellees. COLT, J. This is an appeal from the refusal of the probate court to allow the probate of a lost will and three codicils to it, copies of which are annexed to the original petition, and which are alleged to have been lost, suppressed, or destroyed, since the death of the testator. The burden is on the appellant to prove the execution of these testamentary papers, and to establish their contents by evidence strong, positive, and free from doubt. Davis v. Sigourney, 8 Met. 487; Durfee v. Durfee, 8 Met. 490, note. It must appear also, upon the allegations made in this petition, that the instruments were in existence uncancelled and unrevoked, at the time of the death of the testator, in order to control the presumption of revocation, which always arises when a will once known to exist is not found at the death. Davis v. Sigourney, ubi supra; 3 Redfield on Wills, 15; Brown v. Brown, 8 El. & Bl. 876, 886; Idley v. Bowen, 11 Wend. 227; Eckersley v. Platt, L. R. 1 P. & D. 281; Finch v. Finch, L. R. 1 P. & D. 371. In the present case, issues to the jury were framed in advance of the trial, under that provision of the statute which declares that this court, as the supreme court of probate, may submit to a jury any question of fact proper for such trial, upon an issue framed under the direction of the court. Gen. Sts. c. 117, § 18. When the trial came on, the appellant requested a modification of and certain additions to the issues framed, and excepted to the refusal of the presiding judge to grant her request. In the matter of framing issues, proceedings in probate appeals are conducted in accordance with the rules and practice in equity. The find |