attention to that fact. I never suggested, in all the talk about the sale, that there was any reason why he couldn't make it; that his deed was defective. He never knew it till he got the abstract. I am the same Felton who was co-complainant in the original bill, frequently mentioned in this case." It is manifest from his testimony that Felton instituted, not only the former suit, but also this one, and that it is for his sole benefit, and not that of Mrs. Gibson. It is also clear, that even if he had taken the second deed from Mrs. Hertel to himself, and filed this bill in his own name, he could not maintain it on his own testimony. He admits that the intention of all parties was to place the title in Whipple by the first deed from Mrs. Hertel, and that the mistake in the description of the property was a mutual one. Whether he consented to that conveyance for the purpose of placing the title in Whipple in trust for himself, as he claims, or to secure Whipple in the payment of indebtedness due him, he had no right to attempt to take advantage of the mistake in the manner he did, and then ask a court of equity to help him carry out his scheme by setting aside the former deed. On his own theory of the case, he has a plain and adequate remedy against Whipple, to compel him to perform his trust. The deed from Mrs. Hertel to Whipple conveyed the equitable title to him, and her subsequent deed to a party having full knowledge of the former conveyance, and the mutual mistake therein, is entitled to no consideration whatever in a court of equity. The original bill should have been dismissed for want of equity.

We cannot say the order dismissing the cross bill was not authorized by the evidence, but we are unable to see why the rights of Felton and Whipple, the real parties to this litigation, may not be adjusted upon the cross bill and answer thereto, especially if the parties are allowed to amend the same. By his own showing, Whipple is not the absolute owner of the property, but holds the title thereto in the nature of a mortgage. He claims that the deed from Trunkey to him for the Union Park Place property was upon the consideration of his surrendering to Felton his promissory note for $940, and the payment of $1,500 in money, and he says he at the same time gave Felton an agreement in writing as follows: "Goldy & Zurburg, Real Estate, Renting, and Loan Agency, 111 La Salle St. Chicago, March 16, 1888. I hereby agree to Ideed the house and lot known as 18 Union Park Place in the city of Chicago to the order of E. C. Felton on or before the first day of May, 1888, on said Felton paying me $2,500; the above place being the same I received deed of from J. H. Trunkey this day. Dated this 16th day of March, 1888. G. C. Whipple." He also says, speaking of the trade for the property in litigation: "I had been advertising the Union Park Place property a great deal. I wanted to get my money out of it. It wasn't a profitable property, and I had the incum

brance renewed on it twice. Felton brought in some property to trade for it, but I wasn't satisfied with it. About the last of February. he brought in this 83d street property. I told him I would investigate it, and I did so, and became satisfied it would be a good deal, and told him so. I told him to fetch in his man. He said Mr. Hertel, the son of the owner, was a young fellow, and he said he could handle him a good deal better than I could. I told him to go ahead, and I would make the deal. He brought in a contract on March 1st, and I signed it. Felton wanted to know what he was going to get out of it, and I told him if he would go ahead, take care of this piece of property, pay the taxes on it, see to the whole thing, and try to get a customer as quick as he could for it, after deducting the money which I had paid in, with interest and expenses, we would divide the remainder equally. I did this because my health was poor, and I had a great deal of real estate at the time. Felton said he was satisfied with it. Felton never claimed to be the owner of either piece of property up to this time." Of course all this is denied by Felton, his claim being that he received no consideration whatever from Whipple for the conveyance to him of the Union Park Place property, but that it was simply placed in his name in trust. A controversy of fact so bold and irreconcilable is seldom met with in the consideration of cases, and yet there is testimony in the record tending to support both contentions. If further proceedings are had in the cause, it should be referred to a master to state his conclusion upon the evidence, and either party should be allowed to introduce additional testimony, if he wishes to do so.

The decree below will be reversed, and the cause will be remanded to the superior court, with directions to dismiss the original bill, at the cost of the complainant therein, and for further proceedings upon the cross bill not inconsistent with this opinion. Reversed and remanded.

(157 III. 655)

HUGHES et al. v. BELL.1 (Supreme Court of Illinois. Oct. 11, 1895.) APPEAL-RECORD-BILL OF EXCEPTIONS.

Where exhibits attached to a bill of exceptions after the judge's signature are identi fied and referred to in the bill itself, and are stated in the judge's certificate to be attached thereto, the exhibits are to be treated on appeal as being incorporated in the bill of exceptions. 55 Ill. App. 379, reversed.

Appeal from appellate court, First district. Replevin by Ella M. Bell against Eugene A. Hughes and others. Plaintiff obtained judgment, which was affirmed by the appellate court. 55 Ill. App. 379. Defendants appeal. Reversed.

Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

Ela, Grover & Graves, for appellants. Coolidge, Lee & Lee, for appellee.

BAKER, J. This was an action of replevin, brought by appellee against appellants in the circuit court of Cook county. A jury was waived. At the trial the court found the issues for appellee, and rendered judgment accordingly. That judgment was affirmed by the appellate court, for the reason, as stated in its final order, that a number of exhibits follow, instead of precede, the certificate and signature of the trial judge to the bill of exceptions. The court, therefore, as further stated in said order, declined to consider any and all of the errors assigned in that court. We are now asked to reverse the judgment of the appellate court for the alleged error in having declined to consider the cause upon its merits, and having affirmed the judgment of the trial court for the reasons stated in its final order.

The original bill of exceptions, incorporated into the transcript of record by stipulation, consists of 103 pages, shown in the record as pages 1 to 103, inclusive. The first 91 pages consist of the oral testimony, offers of evidence, judgment, order, propositions of law, etc. Page 92 contains the signature and certificate of the trial judge, which certificate refers to the exhibits in question. Pages 93 to 103, inclusive, show nine exhibits, designated as Plaintiff's Exhibits A, B, C, and D, and Defendants' Exhibits A, B, C, D, and E (documentary evidence offered at the trial). Page 104 of the record contains the stipulation of counsel that the "foregoing bill of exceptions" may be incorporated and made a part of the transcript of the record without transcribing, etc. The first documentary proof offered at the trial was a bill of sale, which is referred to and identified on page 4 of the bill of exceptions in the following words and figures, to wit: "Counsel for plaintiff offers in evidence the bill of sale made by Edwin Bell, Jr., to Ellen M. Bell, dated May 27, 1893, bearing certificate of record of S. B. Chase, recorder, Cook county, state of Illinois, May 29, in Record Book 3539, page 261." "Said bill of sale is marked 'Plaintiff's Exhibit A,' and a copy thereof attached to this bill of exceptions, and made a part thereof." The other exhibits are referred to and described in the bill of exceptions in the same manner. All of these exhibits in every way correspond with the descriptions of and references to them in the body of the bill. The certificate of the trial judge, appearing on page 92 of the bill of exceptions, is as follows: "Forasmuch, therefore, as the matters and things aforesaid and above set forth do not otherwise appear of record, the defendants tender this, their bill of exceptions (including the exhibits hereunto attached), and ask that the same be signed, sealed, and approved by the said judge of the said circuit court of Cook county, which is done accordingly this

11th day of July, A. D. 1894. E. F. Dunne, [Seal.] Judge of the Circuit Court of Cook County."

In our opinion, the true test as to whether exhibits are properly a part of the bill of exceptions is not merely whether they precede the certificate and signature of the trial judge, but whether they are so identified by the bill of exceptions as to show conclusively that they are the ones submitted to the trial court. Legnard v. Rhoades (Ill. Sup.) 40 N. E. 964; Railway Co. v. Walsh, 150 Ill. 607, 37 N. E. 1001; 2 Am. & Eng. Enc. Law, p. 220, and authorities cited in note 7. It is manifest that the exhibits here in question were so identified. The appellate court should therefore have considered the errors assigned in that court. For this error the judgment of the appellate court will be reversed, and the cause remanded to that court, with directions to consider and determine the cause upon its merits. Re versed and remanded.

(157 Ill. 460)

LAKE SHORE FOUNDRY CO. v. RAKOWSKI.1

(Supreme Court of Illinois. Oct. 11, 1895.)

APPEAL-REview-Negligence.

The question of contributory negligence is one of fact not reviewable by the supreme court. Appeal from appellate court, First district. Action on the case by Adam Rakowski against the Lake Shore Foundry Company, Plaintiff obtained judgment, which was affirmed by the appellate court. 54 Ill. App. 213. Defendant appeals. Affirmed.

G. E. Read and W. N. Low, for appel lant. O'Donnell & Coghlan, for appellee.

PHILLIPS, J. This action was for per sonal injuries, in the superior court of Cook county, by appellee against appellant. The jury returned a verdict for plaintiff below for $3,000. Motion for new trial was overruled, and judgment entered on the verdict. On appeal to the appellate court this judgment was affirmed. From the judgment of the appellate court this appeal is prosecuted. No instructions were requested by either party in the trial court, and none were given. No error is urged in this court as to the admission or exclusion of evidence. The only question urged here is that the appellee was not, at the time of the injury, in the exercise of due care and caution. The question is one solely of fact, and has been settled adversely to appellant by the judgments of the trial and appellate courts, and they are conclusive. There are no questions of law in the case for this court to consider. Railway Co. v. Richards, 152 Ill. 59, 38 N. E. 773; Hawk v. Railroad Co.,

1 Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

VILLAGE OF RIVERSIDE v. WATSON.1 (Supreme Court of Illinois. Oct. 11, 1895.) APPEAL-JURISDICTION-FREEHOLD.

A bill to enjoin the erection of a bridge on land to which both complainant and defendant claim title in fee involves a freehold, within the meaning of the statute regulating appeals. 54 Ill. App. 432, affirmed.

Appeal from appellate court, First district. Bill by the village of Riverside against Alexander Watson. Defendant obtained a decree, and the appellate court dismissed an appeal therefrom. 54 Ill. App. 432. Complainant appeals. Affirmed.

The bill in this case was filed in the superior court of Cook county by the village of Riverside, setting up that it is a municipal corporation, and that it is the owner in fee simple, for the public use, of all public parks, grounds, streets, and commons in said village, and also certain other lands described in the bill; that appellee proposed to construct a bridge across the Desplaines river, which bridge, if constructed, will be wholly upon the public park and ground belonging to appellant. The bill prays, in substance, as follows: "That title of your orator to said premises may be established; that said premises be declared and decreed public park and commons; that title to the same vest in your orator in trust; and that defendants, their agents and attorneys, be perpetually enjoined from erecting said bridge," and for general relief and injunction. The abutments and approaches of the proposed bridge on the north side of the Desplaines river are intended to rest upon a strip of ground alleg

ed to be 25 feet off the east side of block 14 of that part known as "Second Division of Riverside," while on the south side they are proposed to rest upon what is known in a certain plat as "Columbus Boulevard." The answer of appellee denies that appellant was ever seised of any interest in block 14, but claims title to a 25-foot strip, being part of block 14, on the north side of the river, in himself, and sets forth that, while a plat was made by him of his lands on the south side of the river, on which was located Columbus Boulevard, parallel with and extending to the river, said plat was made merely for convenience, and that roads and streets were made subservient to rights of private owners, and that they have not been dedicated to public use, and that said plat was not approved by the village of Riverside. While, indirectly, part of the relief asked for in this bill is for an injunction to restrain the construction of this bridge, and indirectly, also,

1 Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

the question of the boundary line of Columbus Boulevard, and the portion of block 14, aforesaid, are involved, the main question presented by the pleadings in this cause is that as to whether title to this property is in appellant or appellee. The cause was referred by the superior court to the master in chancery, to take proofs and report the same to the court with his conclusions. The master reported that he found appellee to be the owner of the easterly 25 feet of block 14, and that the equity of the cause was with the defendant; that the temporary injunction should be dissolved, and the bill dismissed for want of equity. The superior court, upon a hearing, overruled all exceptions to the master's report, and dismissed the bill. An appeal was taken to the appellate court, and that court on motion dismissed the appeal, on the ground that a freehold was involved, and that it had no jurisdiction of the cause. The case comes to this court solely upon the question as to whether or not it was error of the appellate court to refuse to entertain this appeal.

F. F. Reed, for appellant. John A. Henry, for appellee.

PHILLIPS, J. (after stating the facts). The questions involved in this proceeding are only to be ascertained from the bill, answer, and replication, and an examination of these indicates very clearly that the true question at issue is as to ownership of the lands abutting on each side of the Desplaines river, on which it is proposed to construct this bridge. Adjudication must first determine that question, before the injunction would be permitted to stand. If title to this property is in the village of Riverside as public grounds, then the relief should be granted. It is not for us, however, at this time to determine that question, or pass any opinion upon the merits of this case. The pleadings show very clearly that a freehold is involved, and that the appeal should have been taken directly to this court. No briefs are filed by either appellant or appellee on the merits of the controversy. We have heretofore held that an appeal of this character only brings to this court such matters as might lawfully have been considered in the appellate court by virtue of an appeal to that court, and therefore only the question of jurisdiction can be considered here. If it be found that no freehold is involved, correct practice would require that the order of dismissal be reversed, and the cause remanded to the appellate court, with instructions to find upon the issues of fact, and render final judgment upon errors assigned. If a freehold is involved, the court is powerless to do more on this appeal than to affirm the order of the appellate court. Oswald v. Wolf, 126 Ill. 542, 19 N. E. 28.

Finding, as we do, that a freehold is here involved, and that the order of the appella te court dismissing the appeal to that court was

1. A city ordinance providing for a special assessment need not state that the proposed improvement is within the city limits. Stanton v. City of Chicago, 39 N. E. 987, 154 Ill. 23, West Chicago St. R. Co. v. People, 40 N. E. 599, 155 Ill. 299, and Young v. People, 40 N. E. 604, 155 Ill. 247, followed.

2. Where separate objections to a special assessment are filed by the owners of different lots, several distinct final judgments of confirmation may be rendered thereon. Browning v. City of Chicago, 40 N. E. 565, 155 Ill. 314, and Zeigler v. People, 40 N. E. 607, 156 Ill. 133, followed.

3. An order of the city council staying for one year a petition for confirmation of a special assessment does not deprive the court of jurisdiction to enter judgment of confirmation within the year. Wister v. People, 40 N. E. 574, 156 Ill. 180, followed.

Appeal from Cook county court; Frank Scales, Judge.

Application of the people, on the relation of Charles Kern, county treasurer, for judgment for delinquent taxes. Milo J. Andrews and others filed objections, which were overruled, and they appeal. Affirmed.

Taylor, Randolph & McWilliams and Woolfolk & Browning, for appellants. W. J. Donlin and Harry Rubens, Corp. Counsel, for appellee.

PER CURIAM. This is an appeal by several property owners from the judgment of the county court of Cook county rendered against the lands of appellants, upon the application of the county collector for judgment upon a delinquent special assessment of the city of Chicago, assessed for a system of main sewers in certain streets enumerated. The objection is made that the ordinance and the notices failed to locate the proposed improvement within the territorial limits of the city of Chicago; also, that, in the matter of the application by the city of Chicago for the confirmation of the said special assessment, there were several distinct final judgments of confirmation, on separate pieces of property, and that, therefore, there was no valid judgment upon which to predicate the application for judgment by the county collector of Cook county; and, also, that the city council of the city of Chicago had passed an order staying the said application for confirmation in the

1 Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

said special assessment case for one year, and that the said stay was never set aside, and that several of the orders of confirmation were entered subsequent to such stay order, and within the year. These questions have been decided by this court adversely to appellants' contentions in several recent cases, and it is unnecessary to restate here the grounds upon which they were so decided. See Browning v. City of Chicago, 155 Ill. 314, 40 N. E. 565; Stanton v. City of Chicago, 154 Ill. 23, 39 N. E. 987; West Chicago St. R. Co. v. People, 155 Ill. 299, 40 N. E. 599; Young v. People, 155 Ill. 247, 40 N. E. 604; Zeigler v. People, 156 Ill. 133, 40 N. E. 607; Wisner v. People, 156 Ill. 180, 40 N. E. 574. Following these cases, the judg ment must be affirmed. Judgment affirmed.

(157 111. 637)

LIGARE v. CITY OF CHICAGO.1 (Supreme Court of Illinois. Oct. 11, 1895.) EMINENT DOMAIN-EVIDENCE OF DAMAGES-AP PEAL MISTAKE IN JUDGMENT.

1. On appeal from condemnation proceedings, the entry of judgment of compensation for less than the sum awarded by the verdict may be assigned as error by the defendant, even though done through inadvertence; since it is not his duty to move in the trial court for a correction of the error.

2. Where the pleadings do not show that the defendant owned more than the lot of which part is to be condemned, it is reversible error to require him, in proving damages to the part not taken, to show the damage, on the theory that he also owned the adjoining lot, even though he admitted that he owned it.

Appeal from circuit court, Cook county; Frank Baker, Judge.

Petition for condemnation by the city of Chicago against George C. Ligare. There was judgment of condemnation. Defendant appeals. Reversed.

J. W. Waughop, for appellant. J. D. Adair, for appellee.

CARTER, J. Appellee filed its petition in the circuit court of Cook county, under article 9 of the act concerning cities and villages, to condemn the north 16 feet of lot 1 of R. S. Thomas' subdivision of part of the southeast fractional 4, section 27, township 39 N., range 14 E. of third P. M., for an alley. Appellee, the owner, filed his crossclaim or petition, stating that the lot had a frontage of 32 feet, and that the half of the lot not taken would be too small for any profitable use, and that the city should take and pay for the whole lot, and that the same was worth $150 per front foot, or the total sum of $4,800. The jury fixed the compensation to be paid for the north 16 feet at $1,770, and found that the remainder of lot 1 and lot 2 would not be damaged. After overruling the motion of appellant for a new trial, the court rendered judgment for $1,760.

1 Reported by Louis Boisot, Jr., Esq., of the Chicago bar.

Appellant prosecutes this appeal to reverse that judgment.

The entering of the judgment for a less amount than the verdict seems to have been a mere inadvertence, and might have been corrected on the motion of either party. Counsel for appellee seems to contend that it was the duty of appellant to move such amendment of the record in the court below as would make the judgment conform to the verdict, and insists that, because he has not done so, the judgment should stand. But this view is certainly an erroneous one. It was the duty of the petitioner to see that a correct judgment was entered. The respondent was not charged with any duty in that respect. His property was being taken from him for public use without his consent, and he was not bound to see that no mistake was made by those engaged in administering the law, whereby he was to be deprived of his property. This error, however, might perhaps be corrected without awarding a new trial, were it the only one; but, from a careful examination of the record, we are satisfied that the trial court erred in its rulings respecting the admission and exclusion of the testimony of certain witnesses.

There was no reference in the petition of the city, or in the cross claim or petition of the respondent, to lot 2, or to any tract, lot, or parcel of land other than lot 1; and it was proper for the respective parties, in the production of their testimony, to confine it to the allegations of the parties and to the point at issue. But during the production of the evidence on the part of the petitioner, it was shown that, by the admission of the respondent, he owned lot 2, which adjoined lot 1 on the south, and the court refused to permit the respondent to prove any damages to the 16 feet of lot 1 not taken for the alley, treated independently of lot 2, but required respondent to so frame his questions, both on direct examination of his own witnesses and on cross-examination of those of his adversary, as to compel the witnesses to treat lot 2 and the south 16 feet of lot 1 as one entire tract. This was clearly erroneous. The property had previously been divided into separate lots. Such division was recognized by the petitioner in its petition. No mention was made of lot 2 until made by the witnesses on the trial, and the respondent had the right, in examining and cross-examining the witnesses, to treat the lots as separate tracts. He had the right to show, if he could, that by the condemnation of the north 16 feet of lot 1 for an alley, the remainder of the lot was lessened in value in a greater degree than it was reduced in dimensions, without any regard in the first place to lot 2. It is equally true that it was competent for the petitioner to show that respondent owned lot 2, and that it was so situated and used that, by uniting it with the adjoining half of lot 1 not taken, such half of lot 1 would not be damaged, or, at least, not so much dam

aged as it otherwise would be. But the effect of the ruling of the court was, in the midst of the trial, when it could not have been reasonably anticipated by the respondent, to make him prove the petitioner's case in connection with his own. It might well be that lot 2 was so circumstanced, built upon, or used that the remaining half of lot 1 could not be joined to it, and both treated as one tract, without detriment to both. While these facts could be developed on the trial, the respondent should not have been required, in the first instance, to treat both lots as one, and denied the privilege of examining the witnesses as to them separately. Even if the conclusion were found to be the proper one, that they could be used advantageously as one tract, still, in eliciting the testimony, it was clearly proper for the respondent to treat the lots separately, and it would doubtless have been to his interest to do so. The trial court held that respondent should not be permitted to divide his property in adducing his evidence. The division, however, had been made previously, and was recognized by the petitioner in its petition, and the respondent was treating the property as it was then situated, but the court compelled him to ignore this division. While it would have been competent for the petitioner to show, as before stated, that the half of lot 1 not taken could be advantageously joined to lot 2, and, when so joined, would not be damaged, or so greatly damaged, still the question of damages should have been confined to lot 1, and the jury should have so confined it in their verdict.

It is also objected that the ordinance does not sufficiently locate the property and the improvement as being within the corporate limits of Chicago. This objection is without force, and the question raised has so often been decided by this court in recent cases that no further mention of it is necessary.

For the errors indicated, the judgment is reversed, and the cause remanded to the circuit court. Reversed and remanded.

(158 III. 36) DEMPSTER et al. v. PEOPLE ex rel. KERN, Treasurer.1 (Supreme Court of Illinois.

Oct. 11, 1895.) APPEAL-RECORD-SPECIAL ASSESSMENT.

1. Where the record on appeal from a judgment for a delinquent special assessment shows that the appellant filed an objection in the county court on the ground that the assessment had never been confirmed on his land, that the court overruled such objection, and that the appellant assigned that ruling as error, the question of the confirmation of the assessment is properly raised in the supreme court.

2. Lots in one addition to a city cannot be sold to satisfy a delinquent special assessment levied on lots in another addition, belonging to the same owner.

1 Reported by Louis Boisot, Jr., Esq., of the Chicago bar.