conditions were discovered the rock-men could have called upon him for more specific directions. They were, within the meaning of the term above set forth, under his general directions. He directed them when to enter the dangerous places and to remove the danger." Here the night boss or assistant mine manager of defendant was in the mine. He went to the place where the danger was found to exist and there found Paietta and Blow and directed them to remedy the dangerous condition by removing the rock, and the deceased, at the time he was injured, was, we think, within the meaning of the statute, clearly acting under the direction of the mine manager of the defendant.

We are of the opinion this case cannot be distinguished from the Kellyville Coal Co. case, as it is sought to be, on the ground that the dangerous place in the mine in that case was marked with a danger sign while the place which was dangerous in this case was not so marked. In that case a danger sign was necessary, while a danger sign was not necessary in this case. The law will not impose upon a mine manager or examiner the duty to mark a place as dangerous which was originally safe and only became dangerous by the act of the company-men in performing the work of blasting rock from the roof, which they had been directed to do by the mine manager.

It is further urged (1) that the mine examiner of the defendant failed to examine the mine; (2) that he failed to mark as dangerous the rock that fell and injured the deceased; and (3) that he failed to report the result of his examination, as required by the statute. These contentions may properly be considered together.

The evidence is undisputed that the mine was examined the day previous to the accident and reported as safe; that the dangerous condition in the entry-way was caused by the shot which had been fired by Paietta and Blow; that DuBois discovered the dangerous condition in the rock, and almost immediately after the shot was fired called the at

tention of Paietta and Blow to it and directed them to remedy it before they fired a second shot. The statute should receive a reasonable construction, and a mine examiner ought not to be required to do a useless or unnecessary thing and something that would not conduce to the safety of persons working in the mine over which he has supervision. In this case the roof in the entry was in a safe condition but was not high enough above the floor of the entry. The company-men were directed to blow off a portion of the roof. After the first shot was fired it was discovered that the shot had loosened a rock in the roof near where the shot had been placed, and the company-men were immediately notified by the assistant mine manager to remove the rock before the second shot was fired. To have marked the rock with a danger signal under such circumstances would have been a useless thing to do, and would not have added anything to the knowledge or safety of the company-men who were directed to remove the loosened rock. The company-men are presumably men skilled in caring for and keeping safe the mine, and when they are called upon by the mine manager to remedy a defect in the roof of the mine and in so doing they render the roof unsafe, it would be clearly unreasonable to require a mine examiner to be present at all times to mark the places which, while performing their work, the company-men have rendered unsafe. The company-men were performing their work under the direction of the assistant mine manager. He pointed out to them the dangerous condition in the rock, and it was not necessary that a danger mark be placed upon the rock as each new danger arose during the progress of the work.

We are of the opinion the trial and Appellate Courts properly held that there could be no recovery under the second and third counts of the declaration.

Finding no reversible error in this record the judgment of the Appellate Court will be affirmed.

Judgment affirmed.

257 2

NANCY E. MASON et al. Plaintiffs in Error, vs. SARAH L. TRUITT et al. Defendants in Error.

Opinion filed December 17, 1912.

1. EVIDENCE-Secondary evidence admitted without objection becomes a part of the case. Where the primary proof cannot be produced and secondary evidence is admitted without objection the secondary evidence becomes part of the case and must be considered, and the fact that no proper foundation was laid for its introduction cannot be urged, on appeal, as ground for not considering the evidence.

2. SAME when execution and delivery of deeds is established. In the absence of any objection to its introduction, uncontradicted secondary evidence that the holder of the legal title to land executed and delivered a warranty deed, in which his wife joined, to his son-in-law, and that the son-in-law and his wife executed and delivered a warranty deed to the wife of their former grantor, which deeds were never recorded, must be accepted as proof of such facts.

3. SAME it will not be presumed that a warranty deed contained a release of homestead. Mere parol proof that the holder of the legal title to land executed and delivered a warranty deed thereto does not raise any presumption that the deed contained a release of the grantor's homestead, and if possession of the land was never delivered, it can only be held, under such proof, that the deed conveyed to the grantee the excess, if any, above the homestead estate of $1000.

4. PARTITION when proof of value of land at time of conveyance is necessary. Where there is no proof that a deed to land contained a release of the homestead estate of the grantor, who never delivered possession of the land to the grantee, who subsequently deeded the land to the former's wife, proof of the value of the land at the time the conveyance was made is essential to the determination of the rights of the heirs of the wife, who died intestate, and the rights of grantor's second wife and her children.

5. SAME when limits and value of homestead premises must be determined as of time of partition. If the grantor in a deed, which contains no release of homestead, continues to reside upon the land until his death without having had his homestead estate assigned to him, the limits and value of the homestead premises, in case the value of the land at the time the deed was made exceeded $1000, must be determined, in a partition proceeding, as of the time of such proceeding.

6. INFANTS court will protect rights of infants though guardian ad litem claims no right to relief. The court, on its own motion, will protect the rights of infants where they are manifestly entitled to some relief, although their guardian ad litem may neglect to claim it in their behalf.

WRIT OF ERROR to the Circuit Court of Hardin county; the Hon. E. E. NEWLIN, Judge, presiding.

LEDBETTER & WATSON, for plaintiffs in error.

R. F. TAYLOR, and CHARLES DURFEE, for defendants in error.

Mr. JUSTICE COOKE delivered the opinion of the court:

Plaintiffs in error, Nancy E. Mason and Commodore A. Okerson, children of Albert Okerson and Mary Okerson, both deceased, on July 11, 1911, filed their bill of complaint in the circuit court of Hardin county against the defendants in error, who are the remaining children and the widow of Albert Okerson, for partition of eighty acres of land in Hardin county. Albert Okerson had been married three times. By his first wife, Mary Okerson, he had six children, two of whom were the complainants and the remaining four were defendants to the bill. He had no children by his second wife. His third wife was the defendant Mary E. Okerson, and by her he had two children, both of whom are minors, who were also defendants to the bill. The original bill alleged that Mary Okerson, the mother of complainants, was at the time of her death the owner in fee of the eighty acres in question; that upon her death intestate this land descended to her six children, subject to the homestead and dower of their father, Albert Okerson, and that upon his death the estates of homestead and dower were extinguished; that the children of Mary Okerson, being the two complainants and four of the defendants, are the owners in fee, as tenants in common, of said real es

tate, and that the widow of Albert Okerson and the issue of his third marriage have no right, title or interest therein. Mary E. Okerson and her minor children, by their guardian ad litem, answered the bill, denying the allegations thereof and setting up the Statute of Limitations. They also filed a cross-bill, alleging that Albert Okerson was at the time of his death, on December 8, 1903, the owner in fee of the eighty acres in question; that he died intestate, leaving him surviving his widow and her two minor children and the six children by his first wife as his only heirs; that Albert Okerson derived title to the premises by patent from the United States; that the six children of Albert Okerson by his first wife claim some interest in the premises other than that set out in the cross-bill, but that if they ever had any such interest the same has been barred by the Statute of Limitations; that Albert Okerson, about January, 1855, under title evidenced by patent from the United States, went into the actual, open, adverse and exclusive possession of the premises as a homestead and continued in such possession until his death, in 1903, paying all taxes assessed thereon, and that since his death his widow and minor children have continued such possession by residence thereon. The prayer of the cross-bill was for partition of the premises among the eight children of Albert Okerson, subject to the homestead and dower of Mary E. Okerson, his widow. The complainants in the original bill answered the cross-bill, denying the material allegations thereof. Replications were filed by the complainants and cross-complainants, and the cause proceeded to a hearing before the court, which resulted in a decree ordering partition of the premises in accordance with the rights of the parties as set forth in the cross-bill. The record has been brought here by writ of error.

The facts disclosed by the evidence are as follows: On May 1, 1850, Albert Okerson obtained from the United States a patent to the eighty acres in question. Soon there