Volume 217 — Illinois Reports

<p>1. Street railways-—speed of car should be regulated if car is crowded. A street railway company whose servants have invited passengers to crowd upon the car, filling the seats, aisles and platforms, owes the duty of so regulating the speed of the car as to render the highest degree of care for the safety of the passengers, consistent with the mode of conveyance and the practical operation of the car.</p> <p>2. Same—whether it is negligence for a passenger to stand on step of car is for the jury. Whether it was negligence for a passenger to stand upon the step of a crowded car or whether it was negligence to board the car in its crowded condition, the conductor having urged passengers to “crowd on—this is the last car for the city,” are questions of fact for the jury.</p> <p>3. Instructions—instruction ignoring a material issue is properly refused. An instruction directing a verdict for the defendant street car company if the j-ury believed the plaintiff had failed to prove certain allegations by a preponderance of the evidence, but which ignores a material allegation of negligence which the evidence tends to prove, is properly refused.</p>

Writ of Error to the Circuit Court of Pike county; the Hon. Harry Higbee, Judge, presiding.

Writ of Error to the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. JESSE Holdom, Judge, presiding.

F. F. Dunne, Judge, presiding. This was an action of assumpsit commenced by H. O. Stone & Co. against Pirineas I. Mulvaine, in the circuit court of Cook county, to recover the amount of a check for $1400.13, bearing date November 8, 1895. The declaration consisted of the common counts, and the general issue and notice of set-off were filed. Mulvaine died subsequent to the commencement of the suit and his executrix was substituted in his stead as defendant.

<p>1. Carriers—when proof of collision without fault of passenger makes a prima facie case. Proof of a collision between two trains of the same carrier, resulting in injury to a passenger not shown to have been negligent, authorizes a recovery of damages unless the carrier can show that the collision was not the result of any failure to exercise the degree of care owing by it to its passengers.</p> <p>2. Same—effect of leaving a switch unlocked and unguarded. Whether or not a carrier’s failure to keep ,a main-track switch locked or to have it guarded by someone to prevent the switch from being improperly thrown constitutes actionable negligence, is a question which is properly left to the jury under instructions stating the rule as to the care required of a carrier for the safety of its passengers.</p> <p>3. Same—effect where collision is caused by the tortious act of a stranger. That a collision was caused by the tortious act of a stranger does not relieve the carrier from liability to an injured passenger if the carrier’s failure to do something which human foresight and forethought would have suggested presented the opportunity for the commission of the tortious act.</p> <p>4. Evidence—when proof of condition of cars after collision is proper. Proof of the badly broken condition of the cars after the collision in which the plaintiff was injured is proper, as tending to sustain an allegation of the declaration charging that the car was being driven at a dangerous speed, where the rate of speed is a contested question of fact.</p> <p>5. Same—variance—word "body” includes limbs. Proof that plaintiff’s injury consisted of a fracture of one leg and an injured elbow is not variant from an allegation charging that “divers bones of her body” were broken, since the word “body,” within the meaning of such an allegation, includes the limbs.</p> <p>6. Same—expert opinion should not be based on testimony as witness construes it. If the opinion of a medical expert is desired on the case made by the testimony the questions should be put hypothetically, and it is not proper to permit him to give an opinion based upon the testimony as he has construed and weighed it from having heard it.</p> <p>7. Same—when permitting evidence that neurasthenia may be caused by fright is not error. Where the defendant’s witnesses testify that neurasthenia, which the plaintiff claims was brought on by the collision in which she sustained her injuries, might have been occasioned by other causes than the collision, it is not improper to permit the plaintiff, on cross-examination, to show that it might be caused by sudden fright and terror, where the plaintiff’s physical injuries were received contemporaneously with the alleged fright and terror.</p> <p>8. Trial—when argument is not improper. Argument by the plaintiff’s counsel to the jury, based upon the alleged negligence of the defendant in failing to lock a switch or watch and guard it, is not improper, where the boy who improperly threw the switch testified that it was not locked and there is testimony that the switch-tender was away watching a ball game.</p> <p>9. Same—permitting jtiry to take pleadings is not commendable practice. While the practice of permitting the jury to take the pleadings to the jury room is not commended, yet it is not reversible error to permit such course; but counts in the declaration which have been, held bad on demurrer should not accompany the other pleadings.</p> <p>10. Appeals and errors—when a party cannot avail of error. Error in permitting the jury to take to the jury room the declaration, containing counts to which demurrers had been sustained, can not be availed of by the defendant, where his counsel declined the plaintiff’s offer to remove the objectionable counts, saying that they merely wanted the record to show that they had objected and taken exception to the overruling of the objection.</p>

<p>1. Appeals and Errors—allegation that an ordinance is unjust does not raise constitutional question. An allegation in a bill for an injunction that a certain ordinance is unjust, unreasonable and oppressive does not present a constitutional question.</p> <p>2. Same—how a constitutional question should be raised. A constitutional question is not presented to the Supreme Court unless it was raised in the lower court in some proper manner and is covered by the assignments of error.</p> <p>3. Same—effect where a proposed amendment alleges unconstitutionality of ordinance. An assignment- of error upon the court’s refusal to allow an amended bill alleging the unconstitutionality of an ordinance to be filed raises only a question of practice, and does not present a constitutional question which authorizes the Supreme Court to take jurisdiction of a direct appeal from a decree dismissing the original bill.</p>

M. Kavanagh, Judge, presiding. This is an action in assumpsit, brought on May 24, 1899, by William A. Pinkerton and Robert A. Pinkerton, partners, doing business as Pinkerton National Detective Agency, against the Grand Pacific Hotel Company, and Albert E. Glennie, to recover for services performed by the plaintiffs as detectives. The declaration consisted of the common counts only.

<p>Appeal from the Appellate Court for the Third District ;—heard in the court on appeal from the Circuit Court of Fulton county; the Hon. G. W. Thompson, Judge, presiding.</p>

<p>1. Evidence—when refusal to permit a question on cross-examination will not reverse. Refusal to allow a brakeman, whose hand was crushed while attempting to open a Janney coupler on a caboose, to answer the question whether he signaled the engineer, who was entirely under the brakeman’s control at the time, to stop or go .slower when he found that he must open the coupler with his hand, is error, but is harmless where the fact that he did not do so is shown by other evidence and is not controverted.</p> <p>2. Same—when an erroneous ruling is not ground for reversal. Error in not sustaining an objection to a question calling for a mere conclusion by the witness as to an ultimate fact which the jury was empaneled to try is not ground for reversal, where the witness, in answering the question, did not give his conclusion, but only stated facts which were proper for the consideration of the jury in deciding the issue.</p> <p>3. Railroads—notice of defect need not necessarily be given to the official designated by -rules. The duty of a railroad company to make proper inspection and repairs on its cars is a positive one, and it is not essential, in order to charge the company with notice of a defective car, that notice of its defective condition be given to the particular official designated by its rules.</p> <p>4. Same—when the question of a brakeman’s negligence is for the jury. The fact that a brakeman who, in making a coupling, is confronted with a situation which he had no reason to anticipate and which required immediate action might have adopted a safer course than the one he chose does not make the question whether his act was negligent one of law for the court, where there is evidence tending to show that he had reasonable ground to believe he had time to safely pursue the course chosen by him.</p> <p>5. Instructions—when giving improper instructions will not reverse. Giving instructions stating rules of law applicable in case the defect which caused the plaintiff’s injury was not discoverable by the use of ordinary care will not work reversal, even though erroneous as without basis in the evidence, where the plaintiff’s own testimony, which was uncontradicted, was that he knew of the defect and its effect upon the appliance, before the injury occurred.</p>

<p>Original information for disbarment.</p>

Appear from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. A. H. ChETrain, Judge, presiding. The appellant filed a bill in chancery in the superior court of Cook county to foreclose a trust deed in the nature of a mortgage upon premises situated in said county, known as Nos. 870 and 872 West North avenue, Chicago.

Wm. N. BuTlEr, Judge, presiding. This is an action of assumpsit, begun in the circuit court of Alexander county on January 28, 1903, and brought on an insurance policy, issued by appellant to appellee, bearing date July 5, 1902, insuring the property therein mentioned, being a saw-mill plant situated in Mississippi county, Arkansas.

<p>Appeal from the Branch Appellate Court for the First District;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. Elbridge Hanecy, Judge, presiding.</p>

<p>1. Appeals and errors—when freehold is not involved. A bill in aid of an execution for the purpose of subjecting real estate to the lien of a judgment and satisfying the execution does not involve a freehold, even though the bill seeks to have the legal title declared to be in the judgment debtor although it stands in the name of another person for the alleged purpose of defeating the claims of creditors.</p> <p>2. Same—when Supreme Court will dismiss appeal of its own motion. If it appears from an examination of the record that the appeal should have been taken to the Appellate Court, the Supreme Court will take notice of the question of jurisdiction and will dismiss the appeal of its own motion regardless of whether a motion to dismiss was made or not, or what action has been taken on such motion.</p>

<p>Appeal from the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Marion county; the Hon. Truman E. Ames, Judge, presiding.</p>

Appear from the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. B. R. Burroughs, Judge, presiding.

' Louis; the Hon. W. J. N. Moyers, Judge, presiding. This was an action on the case brought by the appellee against appellant in the city court of East St. Louis, to recover for personal injuries received while in the service of appellant as a molder’s helper. The cause was tried before a jury and a verdict rendered for $1999, and judgment was entered on the verdict.

<p>Mortgages—the time for redeeming from prior mortgage must be reasonable. The time to be allowed to the holder of a second mortgage to make redemption from a prior mortgage, in the foreclosure of which such holder was'not made a party, must be reasonable, although it rests largely in the sound discretion of the court; and if the time allowed is too short, the Supreme Court, on appeal, will extend it and affirm the decree in other respects at the appellee’s cost.</p>

<p>Appeal from the Circuit Court of Mercer county; the Hon. Emery C. Graves, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Champaign county; the Hon. Solon Philbrick, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.</p>

Emery C. Graves, Judge, presiding. This is an action on the case brought by appellee, against appellant, in the circuit court of Rode Island county, to recover for personal injuries sustained.

<p>Appeals and Errors—Supreme Court will not enter judgment if there is no assignment of error. An assignment of errors upon the record stands as the pleadings in the Supreme Court, and if the case has been submitted for final decision without such assignment the appeal will be dismissed.</p>

<p>Appeal from the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.</p>

Appear from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. E. E. Dunne, Judge, presiding.

Harry HigbeE, Judge, presiding. This is an action in case, brought in the circuit court of Cass county in March, 1902, by the appellee against the appellant company to recover damages for a personal injury. To the second amended declaration the plea of general issue was filed. The cause was tried before the court and a jury, and resulted in a verdict and judgment in favor of appellee for the sum of $1730.00.

<p>Appeal from the County Court of Cook county; the Hon. Orrin N. Carter, Judge, presiding.</p>

C. F. H. Carrithers, Judge, presiding. This is an application by the county treasurer and ex officio collector of Livingston county for a judgment of sale against the north-west quarter of the north-west quarter of section 28, town 26, range 8, in said county, owned by appellant as trustee of the estate of P. Stack, deceased, and returned delinquent for the non-payment of special assessments.

<p>1. Wills-—adverse opinions as to testamentary capacity cannot prevail against established facts. Opinions of witnesses that the testator was mentally incompetent to transact business or make a will, based largely upon the fact that the testator was near-sighted and feeble, are entitled to but little weight, where the evidence shows that at the times covered by the testimony of such witnesses the testator did transact business and fully understood the business in which he was engaged when making the will.</p> <p>2. Same-—evidence tending only to blacken reputation of testator for honesty is inadmissible. Evidence which tends to show that many years before the will was executed the testator had been guilty of the theft of small articles from his neighbors is not admissible in evidence in a proceeding to contest his will upon the ground of want of testamentary capacity.</p>

<p>Appeal from the Probate Court of Will county; the Hon. John B. Fithian, Judge, presiding.</p>

Writ of Error to the Circuit Court of Adams county; the Hon. Albert Akers, Judge, presiding.

<p>Appear from the Circuit Court of Cook county; the Hon. John L. Heary, Judge, presiding.</p>

Jas. W. Craig, Judge, presiding. This is an action in case, brought to the October term, 1903, in the circuit • court of Coles county by the appellee against the city of Mattoon to recover damages for a personal injury, resulting from a fall upon an alleged defective sidewalk in that city. The trial resulted in verdict and judgment in fayor of the appellee for $1000, which judgment, upon appeal to the Appellate Court, has been affirmed.

<p>Appeal from the County Court of Cook county; the Hon. Orrin N. Carter, Judge, presiding.</p>

Appear from the Circuit Court of McLean county; the Hon. C. D. Myers, Judge, presiding.

Thomas Mehan, Judge, presiding. This is an action of ejectment, commenced by the appellee against the appellant in the circuit court of Calhoun county on September 27, 1904, to recover a certain strip of land, described in the declaration as “a strip of land off the east side of the north-east quarter of the south-west quarter about fifteen feet wide at the south end, and about ten feet wide at the north end of said strip of land, in section 11, in township 13, south, range…

William N. Butler, Judge, presiding. Appellant, Bessie Cover, a minor, by her legal guardian, filed her bill in the circuit court of Union county against appellees, in which she sought to have canceled, set aside and declared null and void a certain certificate of purchase from the sheriff of Union county to the appellee Clark James covering certain lands which she claimed to own, and to have the title to the land decreed to be in her.

Emery C. Graves, Judge, presiding. This is an action on the case, brought in the circuit court of Rock Island county by appellee against appellant to recover damages, alleged to have been suffered by appellee on account of being put or thrown off of one of appellant’s cars by a conductor in the service of appellant. The ejection of appellee from the car took place on June 27, 1902, at about eleven o’clock in the night, which was dark and rainy.

<p>1. Trial—court cannot direct verdict if evidence is conflicting. The court cannot direct a verdict in a personal injury case where the testimony as to how the injury occurred is in direct conflict, that of the plaintiff tending to show negligence by the defendant.</p> <p>2. Instructions—when instructions may be supplemented by others. If an instruction is correct so far as it goes and does not assume to point out all the elements essential to a recovery and direct a verdict, it may be supplemented by other instructions and omissions therefrom supplied.</p> <p>3. Same—when instruction is not misleading. An instruction holding that a street railway company is chargeable with notice that the public may lawfully use the entire street, and that it must, in operating its cars, employ due care to avoid injuring persons rightfully using that part of the street occupied by its tracks, is not misleading, in failing to require such persons to be in the exercise of due care for their own safety, where that requirement is fully set forth in other instructions.</p>

Axel Chytraus, Judge, presiding. This is a petition for condemnation, filed on May 23, 1902, in the superior court of Cook county by the appellee railroad company against one John G. Cella, the owner of the property sought to be condemned. During the pendency of the proceeding, to-wit, in September, 1903, John G. Cella died, and, his death having been suggested, the appellants, his heirs, were made parties defendant to the petition.

Writ or Error to the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of Peoria county; the Hon. N. E. Worthington, Judge, presiding.

<p>1. Appeals and Errors—when questions are not preserved for review. The questions whether the plaintiff has failed to prove a cause of action and whether the evidence shows that the negligence causing plaintiff’s injury was that of a motorman who was a fellow-servant with plaintiff are not preserved for review, on appeal, where there was no motion made to direct a verdict for the defendant and no question raised in any manner concerning the relation between the plaintiff and the motorman.</p> <p>2. Same—when an error in modifying instruction is harmless. Error in modifying an instruction by limiting the burden of proof of a certain allegation to certain counts of the declaration, whereas it should have been required as to the entire declaration, is harmless, where another given instruction upon same subject covered all the counts of the declaration and fairly stated the same principle as was contained in the modified instruction.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.</p>

<p>1. Dram-shops—elements essential to recovery for injury to means of support. To authorize a recovery in an action of debt against a saloon-keeper for damages due to the death of the plaintiff’s father, who was shot by another person, it must be proved that the defendant sold intoxicating liquor to the slayer, who became intoxicated therefrom, and in consequence of such intoxication shot the father of plaintiffs and thereby deprived them of their means of support.</p> <p>2. Same—question of proximate cause is one of fact. If the evidence, with all its legitimate inferences, fairly tends to establish that the wrongful act of the defendant produced the injury complained of, a finding by the jury that the proximate cause of the injury was the act of the defendant, when approved by the trial and Appellate Courts, is conclusive upon the Supreme Court.</p> <p>3. Same—judgment against widow not res judicata of action by children. A judgment in favor of the defendants, in an action by the widow under section 9 of the Dram-shop act, cannot be pleaded in bar of an action against the same defendants by the children, since the right of action of the widow and that of the children are separate and distinct.</p> <p>4. Evidence—what competent for the purpose of impeachment. Where defendants in an action under the Dram-shop act are permitted to introduce as a witness the party who killed the plaintiffs’ father, who testifies that he acted in self-defense, it is proper for the plaintiffs to show that he stated to the several witnesses, after the killing, that he did the shooting because he was drunk.</p> <p>5. Variance—question of variance cannot be first raised on appeal. The question of variance between the pleadings and the proofs cannot be raised for the first time in a court of review.</p>

<p>1. Special assessments—when description is sufficient. A description in a special assessment ordinance, of catch-basin covers of a certain weight and “of the same size and pattern as those used in new work in the city of Chicago during the year 1902,” is sufficient. (Lanphere v. City of Chicago, 212 Ill. 440, followed.)</p> <p>2. Same—when the engineer’s estimate is sufficiently itemized. The engineer’s estimate of the cost of a local improvement to be paid for by special assessment is sufficiently itemized if it gives the property owners a general idea of the estimated cost of the substantial, component elements of the improvement.</p> <p>3. Same—when ordinance sufficiently' fixes grade. An ordinance which, by proper reference, fixes the grade for setting the curb at each of the streets intersecting the street to be improved is not defective in failing to fix the grade at points between such intersections, since the grade at intermediate points is a lino drawn ffOtn oiif intersection grade to the noxt one.</p> <p>4. Same—•court may correct description in an assessment roll. Under sections 47, 48 and 52 of the Local Improvement act of 1897, if it is proved that the subdivision by which certain lots were assessed has been annulled by a court of chancery, the county court may change the description in the roll from lots and blocks to acre property, and its action in confirming the original assessment under the new description cannot be complained of, where no motion was made to re-refer the roll for re-casting the assessment and no objection was made that the assessment was excessive.</p>

<p>Appear from the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Macon county; the Hon. E. P. Vair, Judge, presiding.</p> <p>This is a bill, filed in the circuit court of Macon county on the 9th day of December, 1902, by the appellee, David Hanks, against the appellant, Mary Alice Hanks, his wife, for an accounting. Answer was filed by the defendant, denying the material allegations of the bill, to which a replication was filed. The cause being at issue was referred to a master in chancery to take proofs, and report his conclusions. The master took testimony, and made a report, finding that the appellant was not indebted to her husband, and recommending that the bill be dismissed. The cause was heard before the chancellor upon exceptions to this report. The exceptions were sustained, and on May-13, 1903, the circuit court entered a decree, finding that the appellant was indebted to the appellee, her husband, in the sum of $2395.00, and ordering that she convey certain property, to which she held the title in the city of Decatur valued at $2000.00, to her husband within thirty days, and pay to him $395.00, in case of her failure to pay the whole amount of $2395.00. By the decree it was ordered that the parties each pay half the costs, and that appellee have execution after thirty days from the filing of the decree against appellant for $2395.00, and interest from date thereof. An appeal was taken from this decree to the Appellate Court. The Appellate Court has rendered a judgment affirming the decree, and the present appeal is prosecuted from such judgment of affirmance.</p>

<p>Information for disbarment.</p>

AxEL ChyTraus, Judge, presiding. This is an appeal from the affirmance by the Appellate Court of an order dismissing the amended and supplemental petition of intervention by appellants, filed in an action begun by the Northern Trust Company, a corporation, against the appellee, the Evanston Yaryan Company, a corporation, to foreclose a trust deed.

E. F. Dunne, Judge, presiding. Appellant, Albert C. Jones, began an action on a case in the circuit court of Cook county against one Frank H. Barmm. On March 11, 1903, after the commencement of the suit, Frank H. Barmm died. His administratrix was substituted as party defendant and a summons was issued against her. On July 21, 1903, she filed her plea in abatement, alleging the death of Frank H. Barmm, and that the cause of action set forth in the declaration did not survive.

<p>1. Plats—statutory plat must be accepted to vest title to streets in municipality. In order to vest the title to streets shown upon a statutory plat in the municipality there must be an acceptance by the municipality of the proposed dedication.</p> <p>2. Same—acceptance of part of streets is not an acceptance of all. An acceptance by a municipality of part of a street shown upon á statutory plat is not an acceptance of the entire street, nor is the acceptance of an entire street so shown an acceptance of the others.</p> <p>3. Same—acceptance necessary though platted tract is within the corporate limits. The fact that a tract of land platted under the statute lies within the corporate limits does not imply an acceptance by the municipality of the streets shown upon the plat.</p> <p>4. Same—when deed of vacation is invalid. A deed of vacation purporting to vacate certain blocks in a tract of land platted by the grantor under the statute is invalid where the grantor does not own all of the property which the deed purports to vacate.</p> <p>5. Municipal corporations—when principle of equitable estoppel will be applied. Acquiescence by a municipal. corporation for nearly fifty years in the occupation of a street, by the owner of the platted tract, for the purpose of mill-ponds, yards and.other improvements constructed at large expense, raises an equitable estoppel, which precludes the city from demanding the opening of the street.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. A. H. ChETlain, Judge, presiding.</p>

<p>1. Appeals and errors—Supreme Court will consider only errors urged in Appellate Court. Where the appellant’s brief and argument in the Appellate Court is filed, by leave, in the Supreme Court, only such points as appear therefrom to have been urged in the Appellate Court may be considered; and points made in the petition for rehearing in the Appellate Court which the Supreme Court has refused leave to file cannot be considered.</p> <p>2. Negligence—what tends to show negligence in managing a street car. Running a car in charge of an “extra” motorman so close to a preceding car and at such speed that it could not be stopped on the slippery rails before it collided with the preceding car, which had stopped at a street crossing, the motorman having failed to sound his gong although he hallooed ■ two or three times, tends to show negligence in managing the car.</p> <p>3. Same—what is not negligence per se by passenger. Standing on the rear bumper of a crowded street car to make room for passengers to get off and on at the crossing where the car had stopped, without notice that another car was approaching from the rear, is not negligence per se, it being a question for the jury whether the passenger was negligent in so doing.</p> <p>4. Instructions—when instructions are properly refused as ignoring material question. Instructions directing a verdict for the defendant street car company in case the collision was caused by unavoidable slipping of the rear car on wet rails or by the car becoming uncontrollable though the usual means were taken to stop it, are properly refused, as ignoring the question whether the motorman in charge of the car began his efforts to stop the car in proper time.</p> <p>5. Same—repetitions of instructions need not be given. The refusal of instructions will not work reversal if the matters embraced therein are fully covered by other instructions given at the request of the same party.</p>

<p>Appeal from the Branch Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. E. F. Dunne, Judge, presiding.</p>

<p>Appeal from the County Court of Union county; the Hon. Monroe C. CrawEord, Judge, presiding.</p> <p>This is a proceeding, commenced before the county judge of Union county in vacation on December 30, 1904, by the appellee company to condemn two parcels of land in the city of Anna, in order to establish thereon car barns and a power house. An amended petition was filed on January 6, 1905, and the parties defendant to the petition, as originally filed and as subsequently amended, were the appellants, William Eddleman and Dora E. Eddleman, and George W. Smith, and Edgar Mohler, and William Bruchliauser, Jr., but the petition was subsequently dismissed as to Smith and Mohler. A cross-petition was filed by the appellants, William M. and Dora E. Eddleman, on January 31, 1905. The cause was tried on January 31, 1905, and on February 3, 4, 6 and 7, 1905. The jury rendered their verdicts on February 7,1905. As to the first piece of property, called the creamery property, the jury found the fair cash market value thereof on January 9, 1905, to be $1400.00, and assessed the same to the appellant, William M. Eddleman; and they found, as to the second piece of property, called the Trent property, containing one acre, that the fair cash market value of the same on January 9, 1905, was $800.00, and assessed the same to the appellant, Dora E. Eddleman, and one Arnaud A. Fasig. Motion for new trial was overruled, and judgment was entered. By the judgment it was ordered and adjudged by the court that the petitioner, the appellee company, should enter upon and take the property, known as the creamery property, being one acre more or less, upon the payment to the defendant, William M. Eddleman, of the full compensation as ascertained by the jury, being the sum of $1400.00, said sum to be paid on or before March 7, 1905; and that the petitioner .should enter upon and take the property, known as the Trent property, containing one acre, upon the payment of the full compensation as ascertained therefor by the jury, being the sum of $800.00, to the county treasurer of the county of Union, said sum to be paid on or before March 7, 1905; “which said sum shall be held and paid out by said county treasurer upon the order and decree of the circuit court of the county of Union and State aforesaid, finding to whom said sum of money shall be paid, and ordering the payment of the same in a certain cause now pending in said court on the chancery side thereof, being general number 5722, entitled a bill to redeem, filed therein on the first day of November, 1901, wherein George W. Smith is complainant, and Ida M. Browning, and others, are defendants; to the action of the court in rendering said judgment the defendants William M. Eddleman and Dora E. Eddleman then and there except.” This appeal is prosecuted from the judgment so entered.</p>

<p>Appeal from the Circuit Court of Massac county; the Hon. William N. Butler, Judge, presiding.</p> <p>Appellant, Robert E. Kincaid, filed his bill against Margarette Anna Kincaid and Tyre S. Vickers in the circuit court of Massac county, in which he sought to partition a strip of land ten rods wide east and west, lying - along the boundary line between the north-east quarter and the northwest quarter of fractional section 1, township 19, north, range 6, east, in Massac county. The bill alleges that Robert E. Kincaid and Margarette Anna Kincaid were tenants in common, the former owning one-fourth of the land and the latter three-fourths thereof; that Tyre S. Vickers was in possession, and claimed to hold the open, notorious, adverse, exclusive and continuous possession of the same, under claim of ownership, for over twenty years immediately preceding the filing of the bill, whereas, in fact, the said Vickers had been in possession a much shorter period than twenty years. The prayer was °that the claim of title by Vickers be declared null and void and of no avail against the title of Robert E. Kincaid and Margarette Anna Kincaid, and that he be ordered to surrender possession of the premises, and that the same be partitioned. Appellee, Vickers, filed his answer, in which he alleged that he and his grantors had been in the open, adverse, notorious, exclusive and continuous possession of the premises, under claim of ownership, for over forty years immediately preceding the filing of the bill, and that the premises of which he had possession were not the premises described in the bill. The cause was referred to a master, who recommended a decree in accordance with the prayer of the bill. Exceptions were filed to his report, which were sustained by the chancellor and the bill was dismissed for want of equity. From the decree so rendered an appeal has been prosecuted to this court.</p>

<p>Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding.</p>

Charles Kellum, Judge, presiding. On December 27, 1891, Charles D. Bennett, late of DeKalb county, Illinois, died, leaving a last will and testament, which was duly admitted to probate in said county on January 9, 1892. The testator left surviving him the defendants, Mary A. Bennett, his widow, and Ernest A. Blake, a grandchild, and the complainant, Charles W. Bennett, his only surviving child.

James W. Craig, Judge, presiding. This was an action on the case -by appellee, against appellant, in the circuit court of Vermilion county, to recover damages for an alleged excessive levy on personal property. The original declaration contained three counts, but the second was dismissed and the case tried on the first and third.

<p>1. Special assessments—whether original proceeding is undisposed of is a question of fact. Upon application to confirm a new assessment, the question whether or not the original confirmation proceeding is still pending and undisposed of is one of fact, to be shown by the evidence.</p> <p>2. Same—when an objector is estopped to urge that proceeding was pending. One who states in his objections to the confirmation of a new assessment that “the original proceedings were not pending in any manner in any court” when the Improvement act of 1897 came into effect, is estopped to urge, on appeal, that the original proceeding was pending in court at that time.</p> <p>3. Sams-—when an assessment cannot include interest. If the vouchers issued by a city to -a contractor are non-interest bearing, the city has no authority, in making a special assessment to pay the unpaid vouchers, to include an amount for interest on the same.</p> <p>4. Same—when including interest renders assessment ordinance void. If the preamble of an ordinance to levy a special assessment to pay non-interest bearing vouchers shows on its face that the assessment illegally includes an amount to pay the interest on such vouchers but the ordinance nowhere discloses what that amount is, the ordinance must be held void as an entirety, because the legal and illegal portions of the assessment cannot be ascertained and severed. (City of Chicago v. Hulbert, 205 Ill. 346, distinguished.)</p>

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.</p>

- Writ or Error to the Circuit Court of Marion county; the Hon. William M. EarmRr, Judge, presiding. This is a bill in chancery filed in the circuit court of Marion county by the defendant in error, against the plaintiff in error, asking for a specific performance of an agreement in writing for certain underground crossings under plaintiff in error’s right of wayv as expressed in a certain agreement for a deed and the deed following said agreement.

F. A. Smith, Judge, presiding. This is an action of assumpsit, begun on October 30, 1900, in the circuit court of Cook county by the appellant against the appellee to recover the sum of $219.95, alleged to have been unlawfully exacted by appellee from appellant as a license fee for a certain basement saloon at 178 Quincy street in the city of Chicago from May 1, 1897, to October 8, 1897, by threatening to close up appellant’s business at once, unless he paid said license…

Appear from the Appellate Court for the Fourth District;—heard in that court on appeal from the Circuit Court of Jackson county; the Hon. W. W. Duncan, Judge, presiding.

Writ oE Error to the Circuit Court of Piatt county; the Hon. Soeon Phiebrick, Judge, presiding. This is a writ of error to reverse the judgment entered in the Piatt circuit court sustaining a demurrer to a declaration filed by the drainage district against the village in an action of debt and dismissing the action.

<p>1. Trial—fact that plaintiff contradicts herself does not justify directing verdict. The fact that plaintiff’s testimony as to having been injured in a railroad collision is alleged to be. discredited by her own contradictory statements is not ground for directing a verdict for the defendant upon the ground that no injury was proved, since the question of her credibility is one of fact for the jury.</p> <p>2. Same—what tends to show that signature to release of damages was obtained by fraud. Evidence that after the collision in which the plaintiff was hurt the defendant’s claim agent circulated papers containing formal releases of damages for the signatures and addresses of injured passengers, upon the representation that he would then answer telegrams from their friends, and that he afterwards distributed sums of one and two dollars among the parties so signing, including the plaintiff, for the alleged purpose of defraying their expenses caused by the delay, nothing being said about releasing damages, tends to show that the plaintiff’s signature was obtained to the release by fraud.</p> <p>3. Evidence—proof that a message was sent cannot be shown by proving statements of the messenger. The fact that a message was sent by one person to another, and what the character of such alleged message was, cannot be proved by the person receiving such message, where his testimony is based solely upon hearsay statements of the person delivering the message.</p>

<p>1. Railroads—when company is not liable for injury to passenger. A railroad company is not liable for injury to a passenger who declined a seat provided for him in the car and remained upon the platform, and who, when the train was approaching a station, instead of waiting until it stopped, swung his body out from the lower step, intending to alight and go ahead to the smoking car, but was struck by a cattle-guard fence, which he did not see in the darkness, and thrown from the train.</p> <p>2. Negligence—-when question of contributory negligence is one of law. If the facts are admitted and all reasonable minds would agree that the injury was the result of the plaintiff’s negligence, the court may, as a matter of law, find there was such contributory negligence on the part of the plaintiff as to defeat a recovery, and may so inform the jury by a peremptory instruction.</p>

<p>1. Appeals and errors—effect of general reversal and remandment. A general reversal and remandment, without specific directions, abrogates the judgment of the lower court, and either party, on a re-trial, may introduce testimony the same as on an original trial, save that no proceedings can be had inconsistent with the legal principle announced. in the opinion.</p> <p>2. Same—general reversal is not res judicata as to facts on a second trial. Reversal of a condemnation judgment and general remandment for new trial upon the ground that under the evidence then in the record the petitioner’s railroad and the one purchased by it were parallel or competing lines is not res judicata of that question, so as to bar further proof tending to show such lines were not competing or parallel.</p> <p>3. Railroads—what facts should be considered in determining whether lines are parallel or competing. In determining whether a railroad in Illinois purchased by a foreign corporation and the original railroad owned by such corporation are parallel or competing lines, within the meaning of the act of 1899, (Laws of 1899, p. 116,) the line which the local railroad company had power, under its charter, to construct, as well as the portion of the line constructed, must be considered.</p> <p>4. Same—when railroads are not competing lines. A foreign and a local railroad are not “parallel or competing lines” where the line of the former between the termini of the latter is much longer and more indirect, requiring a change of cars and ferrying, and where no through trains between those points are run on the foreign railroad, no through business solicited or encouraged and no terminal facilities provided for at one terminus of the local road, and no freight or passenger rates made to compete with the local road or the local competitors of the latter.</p>

M. W. Thompson, Judge, presiding. This is an action in case under the mining statute to recover for injuries, sustained by a fall of rock from the face of appellee’s working place, known as room No. 11 on the third west entry off the second south main entry in mine No. 2 of appellant, on January 19, 1903, at about 10:30 o’clock A. M. The declaration alleged the injuries to have been sustained through willful failure and neglect of appellant to comply with the statute.

<p>Appeal from the Circuit Court of Pike county; the Hon. Harry Higbee, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Cook county; the Hon. M. F. Tubby, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Second District ;—heard in that court on appeal from the City Court of Aurora; the Hon. John L. Healy, Judge, presiding.</p>

<p>Appeal from the County Court of Fayette county; the Hon. Josbph Story, Judge, presiding.</p> <p>This is an appeal from a judgment of the county court of Fayette county, entered on the 24th day of June, 1904, ordering that the appellee district pay to the appellant as and for his damages for lands taken for right of way for levee purposes the sum of $334.50, and that the cost of the proceeding be taxed against said district; and further ordering and adjudging that the assessment roll be confirmed as to the benefits assessed against the lands of appellant in section 22, town 7 north range 1, east of the third principal meridian in said county in accordance with the findings of the jury, and declaring the same to be a lien upon said lands respectively as assessed against the same, and ordering the cleric of said court to extend and spread the assessment so confirmed upon the records of the court; and that the payment of said assessment and the interest thereon should become due and payable at the time or times and in the manner provided by the court.</p> <p>The judgment was entered in a proceeding, begun by the filing in said county court on March 11, 1903, of a petition, praying for the organization of a special levee and drainage district by the name of the “Vandalia Levee and Drainage District in Fayette county in the State of Illinois,” the boundaries thereof embracing the lands mentioned in the petition; and also praying for the appointment of commissioners in accordance with the provisions of the statute in such case made and provided, and for the execution and completion of the proposed work, and for such other and further order and decree in the premises as shall seem meet, and the nature of the case may require.</p> <p>The proceeding is under the act of May 29, 1879, as amended in 1885, entitled “An act to provide for the construction, reparation and protection of drains, ditches and levees across the lands of others for agricultural, sanitary and mining purposes, and to provide for the organization of drainage districts.”</p> <p>The petitioners, describing themselves as the owners of lands in the proposed special levee and drainage district located in said county of Fayette, represent that they are each of lawful age, and together constitute a majority of the owners of lawful age of the land within the special levee and drainage district described in the petition, and proposed to be organized into a special levee and drainage district, and that the owners signing the petition own in the aggregate more than one-third of all the lands contained within said proposed district; that said lands are rich and suited for agricultural purposes, if suitably leveed and protected from the annual overflows and suitably drained, but that the same are mostly low, wet and subject to annual overflows and rendered nearly valueless for agricultural purposes, and producing malarial diseases and unhealthfulness therein, and over all the adjoining lands thereto; that it is necessary for agricultural and sanitary purposes that a levee or levees and drain or drains be constructed and maintained in and upon said proposed district on the lands described in the petition as embraced within the bounds of the proposed district, setting forth particularly a description of the lands embraced within the district. The petition further states that the lands within said bounds require a special combined system of levees and drainage, for their protection and drainage from wash and overflow; that the petitioners desire that a special levee and drainage district may be organized, embracing the lands in the petition described, for the purpose of constructing, repairing and maintaining all necessary and proper levees, embankments, grades, drains and ditches within said district that may be found to be requisite to render said lands suitable and available at all times for agricultural and sanitary purposes, and to preserve and protect the same by special assessments upon the property therein and benefited thereby; that the levee proposed is to consist of an embankment of earth four feet wide on top, etc., the earth for the construction of said levee to be taken from the ground on the river side, or outside of the enclosure of said embankment; all timber, brush, logs and debris, other than soil, clay or gravel, to be removed from the ground to be occupied by said embankment, so that the same will be a solid and durable embankment two and one-half feet above the high-water mark of 1875; the district containing about 13,000 acres, the main ditch and lateral ditches to provide drainage for the waters of certain lakes and creeks. The petition further alleges that all the lands, embraced within the boundaries of the proposed district, are affected beneficially by the same by protection from overflow and drainage in whole or in part, and that it is necessary to provide for an annual assessment upon the lands in the proposed district to pay for the necessary annual repairs and ordinary expenses in maintaining and preserving the improvements when made. The petition sets forth the names of the owners of land in the proposed district, together with their post-office addresses and their respective interests in the tracts of land embraced within the district, etc.</p> <p>On April 13, 1903, the court entered an order, finding that due notice had been given to all parties interested, that it had jurisdiction of the subject matter and of the parties, that the petition was signed by a majority of the land owners, owning more than one-third of the land within the proposed district, and that the proposed work was necessary and would be beneficial for agricultural and sanitary purposes to all the land in the proposed district, and appointing D. M. Clark, George F. Snerly and William E. Ryan as commissioners “in and for the said proposed levee and drainage district according to the bounds thereof, who shall qualify and organize as provided by the statute, and proceed thereafter under the law and make report to this court in accordance with the provisions of the statute in detail.”</p> <p>The commissioners qualified as' required by law, entered upon the discharge of their duties, and made their report to the court, which was filed August 3, 1903. A number of objections were filed to the report, and, by order entered on September 9, 1903, the report was referred back to the commissioners to correct the same and to report back to the court on September 18, 1903, on which latter day the objections were disposed of, and the court by its order declared the district duly organized. On the same day, to-wit, September 18, 1903, an order was entered by the court, directing the commissioners “to make the assessment of damages or of damages and benefits, faithfully and impartially to the best of their understanding and judgment; to which end they each shall respectively subscribe an oath and be sworn so to do; thence proceed to make such assessment, and upon completing the same they shall fix upon a day in this court for the correction of their assessment, and shall give at least ten days’ notice .of such time and place and the objects of such meeting by posting and publishing notices in the manner required by the statute under which this proceeding is had.” The commissioners fixed upon February 23, 1904, as the date upon which objections should be filed.</p> <p>The assessment roll was completed and filed on February 2, 1904. The report of the commissioners, making assessments for benefits and damages, recited that they had taken the oath, and examined the lands, and assessed to each tract damaged its proportionate share of the entire damage, and, if benefited, its share of such benefit, and carried the balance to the proper column and assessed to each tract benefited its proportionate share of the entire cost of such benefits. The assessment roll showed tracts, belonging to the appellant in section 22 above described, one containing 28.50 acres and assessment of the same at $3.35 per acre, a total assessment of the same of $95.48; showing land taken out of the same for levee or ditch to the amount of 3.90 acres, the value of the same at $25.00 per acre, malting the total value of the amount taken $97.50 and the net damage $2.02; no net benefits. The assessment roll also showed another tract, belonging to the appellant in said section 22, containing 68 acres, assessed at $3.35 an acre, total assessment $227.80; land taken for levee or ditch, 2.50 acres, valued at $25.00 an acre; total value of land taken $62.50; net benefits $165.30, etc. The roll also showed another tract in said section of 80 acres belonging to appellant, assessed at $3.35 per acre, total assessment, $268.00; net benefits $268.00; also showing another tract in the same section of six acres, assessed at $3.35 an acre, total assessment $20.10; land taken for levee or ditch, 4.50 acres, valued at $25.00 per acre, total value of land taken $112.50; net damages $92.40. There were some other tracts mentioned in the roll belonging to appellant, but the assessment of benefits thereto seems not to have been objected to.</p> <p>The appellant, by his attorneys, objected to the confirmation of the assessment against his lands, as thus reported by the commissioners, and made the following specific objections : “First, that the commissioners, heretofore appointed by this court to make assessments of benefits and damages, have no right under the statute, to make an assessment of benefits and damages, as directed by the order of this court; second, that the provision of the statute, empowering three commissioners to make an assessment of damages as against this objector .for land taken, and for land damaged by the construction of said levee and drainage district and the improvements thereof, are invalid and unconstitutional; third, that there is no authority in said district for commissioners to acquire any part of its right of way or other property, or any right therein, for ditch or other purposes in the manner attempted by these proceedings, or as directed by the court herein; fourth, that the lands of this objector, situated in section 22, town 7, north range 1 east, are assessed for benefits at a higher rate in proportion to the benefits received, than other lands similarly situated in the said district; fifth, there is no authority of law for three commissioners to agree to build bridges for farm purposes for this objector; sixth, that the said commissioners, in attempting to assess the damages to the lands in said section 22 taken for the right of way for said levee and ditches, and to the lands not taken, have made assessments which are not adequate; that the said commissioners have attempted to offset the damages to the said lands taken against the benefits accruing to the lands, and not paying for the said damages in money.”</p> <p>On February 23, 1904, the court entered an order that the assessment be confirmed, as reported by the commissioners, as to all parties excepting those appearing and defending, and as to all those parties appearing and objecting to the assessment roll, the cause was continued to March 7, 1904. On March 7, 1904, an order was entered, directing the clerk to docket each of the objections filed to the confirmation of the report of the commissioners as to the assessment of'benefits and damages, separately, and to this order the objectors by their attorneys excepted. The cause was continued until March 9, 1904, on which day the commissioners filed a reply to the objections of the appellant, and the cause was set for trial on Tuesday, March 15, 1904; and the clerk of the court was ordered by the court to issue a special venire for twelve jurors to act as petit jurors, returnable at ten A. M. March 15, 1904, to try. all cases wherein objections are filed to be tried at this term of court, and to this order for the issue of a venire the appellant by his attorneys excepted. On March 15, 1904, came the parties, and the jury was called and empaneled and sworn as jurors, and an order was entered in part as follows: “It appearing to the court that only nine jurors appeared, and it further appearing to the court that this jury was drawn under the Bminent Domain act, the court designated William Metz, Adam Fink and William Fouts as jurors to finish the panel; jury empaneled and sworn to try the issues,” etc. The trial was then commenced, and evidence was heard from day to day, and continued from time to time, until April 8, 1904, when the jury retired to consider of their verdict, and retired to view the premises in custody of a sworn officer; and before their retirement the jury were instructed by the court; and returned into open court with their verdict. The verdict of the jury returned findings under the head of “Damages for land taken,” consisting of six columns, reciting in the first the name of appellant, in the second the description of four pieces of property, in the third the number of acres in each piece of property, in the fourth the amount of land or number of acres taken out of each piece of property, in the fifth, the value per acre, and in the sixth, the damages, the damages being in the case of the first piece $97.50, in the case of the second, $62.50, in the case of the third, $112.50, in the case of the fourth, $62.00, (these figures being the same as those mentioned in the assessment roll already referred to,) and reciting as “total damages for land taken $334.50.” Under the head of “Damages to land not taken,” was the word “None.” Under the head of “Assessment benefits” were five columns, containing in the first, appellant’s name, in the second, descriptions of said four pieces of property, in the third the number of acres in each piece, in the fourth the amount of assessment per acre, being $3.35, in the fifth the total assessment, being for the first piece $95.48, for the second $268.00, for the third $227.80, and for the fourth $20.10; total $611.38, (being the same figures as are set forth in the assessment roll under the head of “Total assessments.”) Under the findings thus showing “damages for land taken,” “damages to land not taken,” and “assessment benefits,” the jury wrote and signed their verdict as follows: “We the jury find the above to be our verdict in cause of the Vandalia Levee and Drainage District vs. Moses Hutchins.”</p> <p>Appellant filed a motion for new trial, which was continued to the June term. On June 24, 1904, the motion for new trial was overruled, and the defendant by his attorney excepted thereto, and thereupon judgment was entered on June 24, 1904, as above stated, to which judgment appellant then and there excepted, and prayed an appeal to this court, which was allowed upon the filing of a bond of $500.00 and bill of exceptions within sixty days from June 24, 1904, the bond to be approved by the clerk. The defendant also made a motion to arrest the judgment and declare the verdict void, which motion was also overruled by the court, to the overruling of which the appellant by his attorneys then and there excepted.</p> <p>Among the written reasons, filed by appellant in support of his motion for new trial besides those to the effect that the court admitted improper and refused to admit proper evidence and gave improper and refused to give proper instructions, were the following: “5. The verdict is contrary to the law and the evidence in the case; 6. The jury in this case was not properly selected to try the issues in this cause; 7. The petition filed in this cause is not sufficient to sustain a judgment condemning private property for public use; 8. No petition has been filed in this cause asking to condemn the lands of this defendant.” Among the written reasons filed by the appellant in favor of his motion to arrest the judgment, besides those relating to the admission of improper and the refusal of proper evidence and the refusal of certain instructions, the following reasons were set up: “4. That the court erred in overruling the motion by the defendant for a new trial herein; 5. That there was no proper petition filed in said cause to condemn the land of this defendant; 6". That there was no petition to condemn the land of this defendant as required by law; 7. That the jury in this cause was not chosen in accordance with law.” The bond and bill of exceptions were filed within the time required by the order of court, and the bond was approved within such time.</p> <p>In the bill of exceptions immediately after the judgment of June 24, 1904, is the following statement or recital:</p> <p>“And the court refuses to either overrule or sustain the objections of the defendant herein filed, but rules that the calling of the jury herein disposed of all the objections filed herein, and that, after the verdict of the jury, the assessment of the commissioners was of no effect, but that a new assessment was made by the jury, and they were held to have made the assessment de novo; to which defendant excepts.”</p>

<p>1. Appeals and Errors—when question of sufficiency of the evidence is waived. The question whether the evidence fairly tends to prove the plaintiff’s case is not preserved for review on appeal, where the defendant introduces his evidence after his motion to direct a verdict was overruled and fails to renew such motion at the close of all the evidence.</p> <p>2. Corporations—corporation liable for property contracted for by promoters before its organisation. A telephone company which receives, after its complete organization, a telephone exchange and lines constructed under a contract made by the promoters during the organization of the company is liable for the value of the property so constructed.</p> <p>3. Evidence—when specifications are properly excluded. In assumpsit to recover for extra work not covered by the original contract it is not error to refuse to admit in evidence the specifications for the original contract.</p> <p>4. Same—what not undue restriction in cross-examination, Refusal to permit inquiry into the cost of constructing the work is not undue restriction of cross-examination of plaintiff’s witnesses in a suit to recover the specific contract price for the work, there being no direct examination upon the question of cost.</p>

<p>Appeal from the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Moultrie county; the Hon. W. C. Johns, Judge, presiding.</p>

<p>1. Deeds—when equity will cancel deed as to part of property conveyed. Where, by fraud or mistake, a deed executed in accordance with a contract of sale is made to cover property not mentioned in the contract nor intended by the grantors to be conveyed, and for which no consideration other than that fixed in the contract for the smaller tract was paid, a court of equity has power to reform the deed by decreeing that it be canceled as to the property not intended to be conveyed.</p> <p>2. Laches—delay of less than a year after discovering mistake is not laches. A delay of less than a year, after discovering the mistake, in filing a bill to reform a deed conveying property not intended to be conveyed under the contract in accordance with which the deed was executed, is not laches.</p> <p>3. Fraud—when rule requiring party to be put in statu quo does not apply. Where the only consideration for a deed is the exact amount fixed by a contract for the sale of a small tract of land, whereas the deed, by fraud or mistake, was made to also cover a larger tract, the grantor, on seeking cancellation of the deed as to the larger tract, need not offer to put the grantee in statu quo, since the rule has no application in such case, there being no consideration paid for the larger tract.</p>

Dorrance Dibell, Judge, presiding. The city of Joliet is organized under the City and Village act in force July 1, 1872, and the several amendments thereto. Its streets and avenues are laid off substantially east and west and north and south. The Chicago, Rock Island and Pacific railroad crosses in a north-easterly and south-westerly direction most of the streets it intersects.

<p>Appeal from the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Grundy county; the Hon. S. C. Stough, Judge, presiding.</p> <p>This is an action on the case brought by appellee, against the appellant, to recover for personal injuries alleged to have been sustained by reason of catching the heel of her shoe in a hole in the floor of appellant’s depot at Braceville, Illinois, causing her to fall out of the door onto the platform.</p> <p>On May 8, 1903, the appellee lived at Gardner, and purchased a round-trip ticket to Braceville for the purpose of visiting her brother. She intended to return to her home upon a train which left Braceville at 11 :o2 P. M. Her brother and two little girls accompanied her to the depot, which they found dark and locked. The train which she expected to take stopped only upon signal, and her brother had taken a lantern for this purpose. Shortly after their arrival the village marshal came to the depot and unlocked the door of the waiting room with a key which he had in his possession. The party entered the room and the marshal lit a lamp or lantern which was in the room. When the train whistled, the brother and the two children went out on the platform and were followed by the appellee and the marshal. There was a hole in the floor of the waiting room about two inches wide and several inches long, opposite and near the door, and as appellee passed out the heel of her left shoe caught in the hole and she fell through the door to the platform and was injured. Upon a hearing before the court and a jury, judgment was rendered in her favor for $4000, which has been affirmed by the Appellate Court, from which order of affirmance this further appeal has been prosecuted.</p>

<p>Writ of Error to the Circuit Court of Shelby county; the Hon. Truman E. Ames, Judge, presiding.</p> <p>This is a bill in chancery, filed on October 10, 1903, by the plaintiffs in error, Aaron B. Mansfield, Freeman Mansfield, David Nanney, Frank M. Shannon, Minnie E. Dush, Wilmay Torrence, Iva Brewer, Zimroad M. Elder, Sarah McMillen, George E. Shannon, Rachel Clark, Emaline Warren, William W. Mansfield, Bertha McGowan, Fenton Mansfield, Della Curlin, Sarah Riggs, Inez E. Shannon, A. Grover Shannon, Alen Presseler, Matty Wilcox and Sallie Popple, (the last three of whom were the heirs of Emily Presseler one of the defendants to the original bill who has since died), against the defendants in error William O. Wallace, John A. Tackett, Jacob Mansfield, John W. Yantis, W. E. Walker, Douglas Erailey, George A. A. Dieckmann, Martha Gubser, Ross R. Mattis and William R. Liston. The bill was subsequently amended in various particulars, and by making Jacob Mansfield a party complainant, instead of a party defendant. The object of the bill is to set aside a sale, made under a decree in a partition proceeding theretofore had and prosecuted to decree and sale. The charge in the bill is that the defendant in error, William O. Wallace, was the solicitor for the complainants in the original partition proceeding, and also undertook to act for and represent the interests of all the other owners of undivided interests in the property besides the complainants, and that, at the original partition sale, he purchased the property for himself, and for one John A. Tackett who was associated with him; that he violated his duty as attorney and obtained the property for himself, and in doing so was guilty of various acts of actual and constructive fraud, such as would justify a court of equity in setting aside the sale, and the deed or deeds executed in pursuance thereof, and all the other proceedings had thereunder. The prayer of the bill is that, upon a hearing, the report of the commissioners in the original partition proceeding be set aside and held for naught, and that new commissioners be appointed to partition the premises, and appraise the same, in case they cannot be partitioned and divided without manifest injury to the parties interested in the same; that the said pretended sale, made by the master in the original partition proceeding, be decreed to be void and of no effect, and that the premises be sold under the direction of the court; that, by reason of the betrayal of the trust of the said Wallace, a fee of $1200.00, allowed to him, be ordered to be refunded, and that an accounting be had of the rents, issues and profits of the premises, so held since the pretended sale to Wallace and Tackett and Yantis, for the use and benefit of the parties interested in the premises; and that the deed from the master to Wallace and Tackett, and the deed to Yantis, be canceled. The bill, as finally amended, charges that the execution and delivery of the deed by the master to Wallace and Tackett constitute in equity a mortgage in favor of Wallace and Tackett and against the owners of the premises, and, as such, secure to Wallace and Tackett the amount of money actually paid by them to the master with five per cent interest; that upon said mortgage the owners of the premises are entitled as credits to the proceeds derived from the sale of any part of the premises, conveyed by Wallace and Tackett to innocent purchasers without notice, as well as the rents, issues and profits received by Wallace and Tackett, less the taxes paid and improvements made, if any, by them, which amount, less said credits upon said accounting, the complainants offer to pay to Wallace and Tackett; that the premises are now held by Wallace and Tackett as trustees; that the defendants have no interest therein save as equitable mortgagees, and that an account be taken, and that Wallace and Tackett be charged with the rents, issues and profits, and the reasonable value of any parcel of the premises sold by them; that, upon the stating of said account, the amount, if any, which may be found to be due to Wallace and Tackett be decreed by this court to be secured by such equitable mortgage, and, if they have from the rents, etc., received an amount sufficient to pay such amount as may be found due them, then said mortgage may be canceled, and, if the amount so received by them be in excess of the amount so found to be due to them, then that they be decreed to pay over such excess to the master, and that the proceeds thereof be brought into court to be distributed under the direction of this court.</p> <p>All the proceedings in the original partition suit and the records and papers in said suit, as well as other documentary evidence and oral testimony, were produced before the court upon the hearing of the cause. The circuit court entered a decree dismissing the bill for want of equity, to which the complainants below, the present plaintiffs in error, excepted, and have prosecuted this writ of error for the purpose of reviewing such decree of dismissal.</p> <p>The material facts are as follows: One John B. Mansfield of Shelby county, Illinois, died intestate on February 5, 1901, leaving no widow or child or children, or descendants of such, and leaving him surviving, as his only heirs-at-law, eleven brothers and sisters and ten nephews and nieces, all of whom, with the exception of Emily Presseler who has since died, are plaintiffs in error herein. At the time of his death John B. Mansfield owned 724 acres of land in Fayette county, 60 acres in Shelby county, and 120 acres in Jackson county, besides some town lots and blocks in the city of Cowden in Shelby county.</p> <p>The original bill for partition was filed on April 17, 1901, a little more than two months after the death of John B. Mansfield, by Jacob Mansfield and Freeman Mansfield, two brothers of the deceased, as complainants, through William O. Wallace as their solicitor, and the other heirs were made defendants to the bill; and the bill set forth the interests of the parties in the premises, and alleged that Sarah Shellenberger, Ross R. Mattis, Wiliam H. Craig, George A. A. Dieckmann, Douglas F. Frailey, Martha Gubser, Louis L. Lehman, and the TEtna Life Insurance Company claim some interest in said premises. The bill also alleged that the defendants, A. Grover Shannon and Inez E. Shannon, were minors under age. The bill prayed for the appointment of a guardian ad litem, for the minors, for partition and division of the property, or, in case the same could not be divided, for a sale of the same. The guardian ad litem filed answers for the minors on June 4, 1901. George A. A. Dieckmann filed an answer to the bill for partition, alleging that he held a mortgage upon a part of the premises to secure $1500.00, and filed a cross-bill on June 3, 1901, for the foreclosure of his mortgage, to which cross-bill an answer was filed for the minors by their guardian ad litem on June 4, 1901. Mattis also filed an answer to the bill for partition, alleging that he held a mortgage on the premises to secure a note for $1300.00 and interest and attorneys’ fees. None of the defendants, who were heirs of the deceased John B. Mansfield, except the two minor defendants, answered the bill for partition, and defaults were taken against ail the adult heirs, who were defendants to the original bill.</p> <p>The cause was referred to a master in chancery, who found the facts in regard to the death of John B. Mansfield and the heirship of the parties named; that the said John B. Mansfield had executed a bond for a deed to Douglas F. Frailey in his lifetime for 120 acres of land situated in Fayette county; that certain premises in Fayette county had been sold by one Hunold to Sarah Shellenberger, and subsequently conveyed to John B. Mansfield.</p> <p>A decree for partition and appointment of commissioners was entered on June 4, 1901, which finds that John B. Mansfield executed the bond for a deed to Douglas F. Frailey, and that the Afína Life Insurance Company held a mortgage upon the property, sold to Shellenberger, whose interest in the same had been forfeited; that on May 15, 1899, the deceased executed a note and mortgage to Dieckmann, upon which there was then due $1657.33, and costs, and $100.00 solicitor’s fees; that on April 1, 1898, he executed a mortgage or trust deed to Mattis to secure $1300.00; that on June 25, 1900, the deceased and Frailey executed two notes to Martha Gubser for $350.00 each, and to secure the same mortgaged the premises, included in the bond for a deed executed by the deceased to Frailey; that Margaret Gubser owns said notes, upon which there is now due $700.00, and interest from June 25, 1900; that the rights of Frailey under said bond have been forfeited, and that the same should be canceled as a cloud upon the title. The decree of partition found that the interests of Frailey and Shellenberger had been forfeited, and that Mattis and Dieckmann and Gubser held mortgages upon portions of the property, specifically describing the same; that each of eleven brothers and sisters of the deceased John B. Mansfield was entitled to one-twelfth of the premises in question in fee simple, and that certain nephews and nieces were entitled to the other one-twelfth thereof.</p> <p>The commissioners reported that the premises were not susceptible of division and appraised the total value of the same at $19,020.00, valuing the property in Shelby county, including the lots and blocks, at $1850.00; that in Fayette, county at $16,330.00, and that in Jackson county at $840.00, including the 120 acres in Fayette county, sold by the deceased to Frailey, which was appraised at $2600.00. The report of the commissioners was filed on June 10, 1901, and on June 11, 1901, a decree of sale was entered, which directed that all the premises in the three counties named “be sold at public auction at the south door of the court house in the city of Shelbyville, in the county of Shelby and State of Illinois, to the highest and best bidder, free and clear of all mortgage liens of every nature and kind; all of said mortgages, liens and indebtedness to be paid out of the purchase price or assumed by the purchaser; and when such mortgage indebtedness is assumed by the purchaser, such amount as is assumed shall be considered as so much paid on the purchase price—and the bids on each piece or parcel shall (be) equal to at least two-thirds of the valuation put upon the same, as shown by the reports of the several sets of commissioners heretofore appointed by the court to make partition thereof; such valuation having been made as though no mortgage indebtedness existed, unless the other pieces will at the same time sell for enough to make the total amount of the sale equal to two-thirds the total amount of the valuation of all the premises to be sold; which said sale shall be made on the following terms, namely: one-half in cash on the day of sale; the other one-half in one year from the date of sale; the deferred payment to be secured by personal security and mortgage on the premises sold; the said deferred payment to draw interest at the rate of five per cent per annum until paid; that the said master in chancery of this court, John W. Yantis, be and is hereby directed to make said sale, and to carry into effect this decree; that the said master will first give public notice of such sale and the time and place thereof, by publication in the Shelby County Leader, a weekly newspaper published in the said county, for at least four successive weeks prior to said sale, and by posting written or printed notices thereof in at least five of the most public places in each (of) the said county of Jackson, the county of Payette, and the county of Shelby, where said premises are situated; and, upon the confirmation of the report of the said master, he shall execute and deliver to the purchaser or purchasers of the premises so sold a proper deed or deeds of conveyance thereof; the said master will bring the money realized from such sale into court to be distributed to the parties entitled thereto under the direction of the court; and out of the money realized from said sale the said master will pay all the costs of this proceeding.” The decree found that “W. O. Wallace is entitled to a solicitor’s fee herein of $1200.00.”</p> <p>The master published a notice of sale to the following effect: “Public notice is hereby given that, in pursuance of a decretal order entered in the above entitled cause in said court on the nth day of June, A. D. 1901, I, John W. Yantis, master in chancery of said court, on the 19th day of June, A. D. 1901, at ten o’clock in the forenoon of said day, have sold (will sell,) at public auction at the south door of the court house in said city of Shelbyville, and county of Shelby and State of Illinois, the following described real estate,” describing the several pieces of property in the three counties, and giving the appraised valuations thereof. The notice then states the terms of sale as follows: “The purchaser to pay one-half of the purchase money down on the day of the sale, and the balance in one year, vdth interest at the rate of five per cent per annum, secured with personal security and a mortgage on the premises so sold. No bid will be received unless it is equal to two-thirds of the. appraised value as above set forth.”</p> <p>On June 20, 1901, one William R. Liston filed'a petition, setting up that he was the owner of the premises above described as having been sold by Hunold to Shellenberger, and asking that the ownership of the same be vested in him. On June 21, 1901, the court entered an order that there be no sale of said last named premises until the rights of said Liston should be heard and determined. On July 27, 1901, the master filed his report of sale in which he states as follows: “The undersigned master in chancery of said court * * * respectfully reports that at the request of the complainant I proceeded to advertise the lands and -premises described in said decree, as therein directed, by causing a notice containing the time, terms and place of sale, and a particular description of the premises to be sold, to be inserted for four successive weeks previous to the day of sale, in the Shelby County Leader, a newspaper published weekly in the city of Shelbyville, in said Shelby county, a copy of which notice, with the certificate of publication thereof, is hereto attached, and also by causing similar notices to be posted in five of the most public places in said county for the same length of time, and on Friday, the 19th day of July, A. D., 1901, at ten o’clock A. M., at the south door of the court house in Shelbyville in said Shelby county, I offered the said premises for sale at public vendue to the highest bidder on the terms prescribed by said decree, and the same were struck off and sold as follows:” (Here follows a description of all the property, including the 904 acres in the three counties, and the lots and blocks) ; and the report of sale then proceeds as follows: “The same was sold to W. O. Wallace and John A. Tackett, they being the highest bidders; the total amount of said sale being the sum of $11,520.00, and being more than two-thirds of the appraised value of said premises; the said purchasers having paid me the one-half of said bids in cash, and executed notes and mortgages for the deferred payments, according to the terms and conditions of said decree, and said cash payment amounting in all to the sum of $5760.00; out of said cash payments I have paid the costs and charges of said suit and sale, being the sum of $1979.48, including attorney’s fees allowed by the court, and bring into court for distribution under order of the court the sum of $3780.52.” On November 25, 1901, Wallace and Tackett hied an intervening petition, stating that since said sale they had discovered that' the Laborers’ Loan Association of Shelbyville, was the owner of certain lots in Cowden in Shelby county, which had been sold by the association to other parties; that petitioners had paid for the same $433.97, and praying that they be allowed a credit to that amount, $216.98 on their note for the deferred payment, and $216.98 on their cash payment. In other words, praying for a rebate on their bid of $433.97. An intervening petition was also hied by Walker, the administrator, alleging the resignation of Graham, the former administrator, stating that certain claims had been allowed in the probate court, and asking that the master be required to pay over to the administrator the proceeds of the sale, if any should be left after paying off the mortgages, to apply on the claims probated against the estate.</p> <p>On November 25, 1901, the court rendered a decree confirming the sale of the master, reciting “that the said master, John W. Yantis, has, in every respect, proceeded in due form of law and in accordance with the terms of said decree, and that said sale was fairly made; and * * * that the proceeding, sale and report of said master, John W. Yantis, be and the same are hereby approved and confirmed; and it is further ordered that the said master *' * * execute and deliver to the said John A. Tackett and William O. Wallace, the purchasers at said sale, proper conveyances of the premises so sold,” etc. The decree allowed to the purchasers the credit theretofore prayed for of $433.97. A decree was also entered granting the prayer of the intervening petition of Liston.</p>