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that case is applicable to the case at bar. In the motion to remand, filed by plaintiff in error, no cause was assigned why the motion should be allowed. We fail to see wherein the trial court erred in denying that motion.

The next contention is that the trial court erred in giving the first instruction asked in behalf of defendant in error, complaint being made of the fourth and fifth paragraphs thereof. The fourth paragraph is said to be objectionable because it assumed certain propositions of fact to be true. It is as follows: "And if the jury further find from the evidence that said Haines did not exercise ordinary care, in so neglecting to direct such braces and guards to be used, and in so failing to furnish any appliance therefor, and that thereby said pole was caused to so fall upon and injure plaintiff." Were this paragraph not qualified by the one preceding, it would indeed be open to the objection charged against it. The third paragraph is as follows: "And if the jury further find from the evidence that said Haines directed said work to be so done, and did not direct said pole to be so braced and guarded, and did not furnish any appliances for such braces or guards." When, however, the two are read together, and in connection with the rest of the instruction, the meaning of the fourth paragraph is explained, and the complaint made against it is seen to be without merit. The fifth paragraph is as follows: "And if the jury further find that plaintiff was inexperienced in said work, and ignorant of the danger incident thereto, and that the plaintiff was exercising ordinary care in said work at the time of this injury, then the plaintiff is entitled to recover." Wherein it was materially wrong, we cannot see. The instruction, as a whole, was not substantially erroneous. We find no error in the record, and the judgment of the appellate court will be affirmed. Affirmed.

ST. LOUIS, A. & T. H. R. CO. v. BARRETT.1 (Supreme Court of Illinois. Oct. 22, 1894.)

TRIAL CUMULATIVE INSTRUCTIONS.

It is proper to refuse an instruction the substance of which is embodied in instructions already given.

Appeal from appellate court, Fourth district.

Action on the case by Newton C. Barrett against the St. Louis, Alton & Terre Haute Railroad Company. Plaintiff obtained judgment, which was affirmed by the appellate court. 52 Ill. App. 510. Defendant appeals. Affirmed.

R. W. S. Wheatley, for appellant. I. R. Spilman, for appellee.

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BAKER, J. This is an action on the case, instituted by appellee against appellant in the Perry circuit court, to recover damages for personal injury alleged to have been sustained by him through the negligence of appellant. The cause was tried before a jury, who found for appellee, and assessed his damages at $4,000. Judgment was rendered on the verdict. From that judgment appellant appealed to the appellate court, and from the judgment of affirmance there prosecutes this appeal.

By the judgment of the appellate court, the facts are conclusively settled in favor of appellee and against appellant. They are substantially as follows. That appellee, as conductor of a freight train of the Illinois Central Railroad Company, was ordered by the man in charge of the yards and station at Duquoin to back his train on track No. 4, in order to clear the way for a passenger train then past due; and that a switching crew of appellant, then engaged in taking cars from said No. 4 track, was also ordered to move back out of the way of appellee's train. That there were cars on No. 4, which the switching crew desired to take out, which were. between the two engines or trains when this order was given, and that the switching crew did not promptly comply with the order, but, with knowledge of the appellee's train backing up, and driving back the cars such crew was after, attempted to move away slowly, but only at such speed as would enable them to catch such cars, and then endeavor to couple them, as they were thus driven upon them, when finally, owing to such arrangement, appellee's train overtook the slowly receding train of appellant, resulting in the telescoping of the north loose car into the caboose of appellee's train, on the rear platform of which he was standing, causing the death of the rear brakeman and the serious injury of the appellee. That appellee when injured was obeying an explicit order of his superior to get out of the way of a passenger train then overdue, while the crew of the appellant was violating an explicit order of the same superior, who had directed them to move back out of the way and make room for appellee's train; and that, had they obeyed the order, no collision would have occurred.

The only question presented for our decision is whether or not the trial court erred in refusing to give the following instruction, asked in behalf of appellant: "The court instructs the jury that before you can find for the plaintiff you must believe from the evidence that the injury complained of was the result of the negligence of defendant's servants or employés, and that the plantiff was not guilty of negligence which contributed to the collision which produced the injury, unless you believe from the evidence that the negligence of defendant was gross, and the negligence of the plaintiff was slight in comparison with that of the defendant."

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Under Rev. St. c. 77, § 6, which provides that no execution shall issue on any judgment after seven years from the time the same becomes a lien, unless the judgment be revived, a creditor who has his claim allowed against the estate of his deceased debtor, and who, by section 27, is considered a judgment creditor for the purpose of redemption from execution sales, must issue the special execution provided for therein within seven years from the date of the allowance of his claim, or his right to redeem is gone. Wilson v. Schneider, 17 N. E. Rep. 8, 124 Ill. 628, followed.

Error to appellate court, Fourth district.

Action of forcible entry and detainer brought by James A. McIlwain against Fritz Karstens and Fritz Duensing. Defendants obtained judgment, which was affirmed by the appellate court. 41 Ill. App. 567. Plaintiff brings error. Affirmed.

G. & G. A. Koerner and R. G. Goddard, for plaintiff in error. H. Clay Horner, for defendants in error.

BAKER, J. One William Murphy, in his lifetime, executed a mortgage to Borders & Boyle on 160 acres of land in the east part of survey 205, etc. After his death, the mortgage was foreclosed against his widow and heirs at law; and on the 13th day of June, 1889, the lands were sold by the master in chancery, and purchased by James J. Borders for the sum of $2,268.17. A claim had been allowed by the probate court of Randolph county on the 19th of April, 1883, against the estate of Murphy, in favor of Hayner & Co., for $625.57. Hayner & Co. assigned the judgment to plaintiff in error about June 14, 1890; and he, on that date, caused a special execution to issue thereon. Under that execution, he made redemption from the foreclosure sale, and became the purchaser for $2,478.44, and obtained a sheriff's deed under the redemption sale, dated July 7, 1890. On July 31, 1890, plaintiff in error commenced suit of forcible entry and detainer before a justice of the peace against defendants in error, who were in possession of the land, as the tenants of the heirs of William Murphy, deceased. The judgment of the justice of the peace was for plaintiff in error; but, on appeal to the county court and trial de novo, judgment for the defend

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ants was entered, which has been affirmed by the appellate court.

The principal error relied on by plaintiff in error to reverse the judgment below is the refusal of the county court to admit the sheriff's deed to plaintiff in error in evidence. It will be seen that the special execution upon which the redemption was made and the land sold by the sheriff to plaintiff in error was issued more than seven years after the allowance of the claim in the probate court, and that was the ground of the objection to its being admitted in evidence, which was sustained by the trial court. Its ruling was clearly right. This precise question was presented and fully discussed in the case of Wilson v. Schneider, 124 Ill. 628, 17 N. E. 8. In that case we held that "the object of section 27, c. 77, of the Revised Statutes was to give a judgment creditor whose judgment was obtained after the death of his debtor, by the allowance of his claim in the probate court, the same right of redemption as was given to the judgment creditor who had recovered his judgment in the lifetime of the debtor, and to prescribe the same mode of effecting such redemption as had been prescribed for the latter." In either case, whether the judgment shall have been recovered in the lifetime of the debtor or not, it is essential to the right of redemption that an execution shall have been issued; and the limitation as to the time within which the execution must issue applies as well to the special execution named in section 27 as to the ordinary fieri facias mentioned in section 20 of the same chapter. So, when the owner of a claim allowed against an estate desires to redeem land of the deceased debtor, sold on execution or decree of foreclosure, he must take a special execution within seven years from the time his claim is allowed. His right to redeem does not exist outside of the statute, and he must follow the proceeding pointed out in the statute, and in the mode therein prescribed. The validity of a sheriff's deed depends upon the authority of the officer to make the sale, and his authority in all cases depends upon the character and validity of the process under which he acts.

The special execution being void, the deed made in pursuance of a sale under it was also void, not merely voidable. Meyer v. Mintonyne, 106 Ill. 414. It is contended that the heirs of Murphy cannot question the title of plaintiff in error, because they have lost all their rights under the foreclosure sale, that sale having been made more than 12 months prior to the commencement of this suit. They or their tenants are in possession. Plaintiff in error is seeking to dispossess them. He can only do so by showing title in himself, and right of possession. Certainly, the parties sought to be ousted may deny the right of the one attempting to dispossess them.

The judgment of the appellate court affirm

ing that of the county court is right, and will be affirmed.

PHILLIPS, J., having heard this case in the appellate court, took no part in its decision here.

CHICAGO, P. & ST. L. R. CO. v. LEAH.1 (Supreme Court of Illinois. Oct. 22, 1894.) REVIEW ON APPEAL-RAILROAD COMPANIES-DAMAGE TO ADJACENT PROPERTY.

1. The action of the court in permitting the jury to view the premises will not be reviewed on appeal, in the absence of any exception thereto preserved in. the bill of exceptions.

2. In an action against a railroad company for damage to property near which its trains run, it is proper to admit evidence in regard to the noise of passing trains, and the effect, on the property, of the passing trains.

3. An appellant cannot complain of the giving of an instruction asked by him.

Appeal from circuit court, Madison county; B. R. Burroughs, Judge.

Action on the case by George Leah against the Chicago, Peoria & St. Louis Railroad Company. Plaintiff obtained judgment, which was affirmed by the appellate court. Defendant appeals. Affirmed.

Dale, Bradshaw & Terry, for appellant. Travous & Warnock, for appellee.

BAKER, J. This is an action on the case, instituted by appellee against appellant in the circuit court of Madison county, to recover damages for the alleged injury resulting to him by the construction and operation of appellant's railroad. The jury found a verdict in favor of appellee, and assessed his damages at $1,200. Judgment was rendered accordingly. From that judgment, appellant appealed to the appellate court, and, from the judgment of affirmance in the appellate court, prosecutes this appeal.

It appears that appellee is the owner in fee of a fraction over 32 acres of land in the city of Edwardsville, on which are situated two frame residence buildings; that the land fronts on a small street, 20 feet wide, known as "Lynch street"; that appellant's railroad track crosses said Lynch street, diagonally, opposite appellee's premises, from which it is distant, at the nearest point, only 62 feet; that said Lynch street affords the only approach to the premises; and that, but a short distance therefrom, appellant constructed and operates a switch.

Appellant's first contention is that it was error in the trial court to permit the jury, over its objection, to view the premises. The action of the court in permitting such inspection by the jury does not appear to have been excepted to by anything set forth in the bill of exceptions. Had such an exception been taken, it could only have been made a part of the record by embodying it

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in the bill of exceptions. We cannot, therefore, consider this assignment of error. Martin v. Foulke, 114 Ill. 206, 29 N. E. 293.

It is next contended that it was error in the trial court to admit evidence in regard to noise made by appellant's trains in passing and repassing appellee's premises, and to permit witnesses to testify as to what effect the "passing and repassing of appellant's trains would have upon appellee's property, taking everything into consideration." Appellant argues this claim on the theory that damages can be recovered only on account of a direct physical injury to the corpus or subject of property. This is a misapprehension of the law. It was material and proper that appellee should be permitted to prove the special disadvantages and annoyances which interfered with the full enjoyment by him of that use and benefit of his property to which the law entitles him. Rigney v. City of Chicago, 102 Ill. 64; Railroad Co. v. Bowman, 122 Ill. 595, 13 N. E. 503; Railroad Co. v. Scott, 132 Ill. 429, 24 N. E. 78; Springer v. City of Chicago, 135 Ill. 552, 26 N. E. 514. We think the evidence complained of was properly admitted.

Appellant's last contention is in regard to an instruction which it claims was erroneously given in behalf of appellee. Upon examination of the record, however, we find that the instruction in question was asked by appellant, and was given in its behalf. Appellant, therefore, cannot be heard to complain. We find no error in the record, and the judgment of the appellate court will be affirmed. Affirmed.

BELL et al. v. CITY OF ALTON.1 (Supreme Court of Illinois. Oct. 22, 1894.) MUNICIPAL CORPORATION-STREET-PAVING ORDINANCE.

A provision in a street-paving ordinance that a street-car company shall pay for paving the part of the street lying inside its track and one foot on the outside edge of its rails cannot be complained of by the owner of abutting property. White v. City of Alton (Ill. Sup.) 37 N E. 96, followed.

Error to Madison county court; William H. Krome, Judge.

Petition by the city of Alton for confirmation of a special tax. James R. Bell and others filed objections, which were overruled, and the tax confirmed. Objectors bring error. Affirmed.

Levi Davis, Jr., for plaintiffs in error. John F. McGinnis, for defendant in error.

PER CURIAM. This was a proceeding in the court below to confirm a special tax levied by the city of Alton for the improvement of one of its streets. The grounds of reversal insisted upon are all based upon the alleged invalidity of the ordinance authorizing the

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

improvement, and levy of a special tax to pay for the same, in that it provides that "the Alton," etc., "Horse Ry. shall pay the cost of the improvement inside of its track and one foot on the outside edge of its rails." White v. City of Alton, 149 Ill. 626, 37 N. E. 96, is decisive of all the questions raised on this record, against plaintiffs in error. See. also, Lightner v. City of Peoria, 150 Ill. 83, 37 N. E. 69, and cases cited. The judgment of the county court will be affirmed.

METROPOLITAN WEST SIDE EL. R. CO. v. CLANCY et al.'

(Supreme Court of Illinois. Oct. 30, 1894.) EMINENT DOMAIN-DAMAGES TO PROPERTY NOT TAKEN-OFFSET OF BEnefits.

1. Land not taken for a railroad is not damaged, unless its market value is lessened by the construction of the road.

2. An instruction that benefits accruing to particular property by the construction of the railroad should not be considered in determining the damages thereto if such benefits are shared in common with the generality of property near the railroad is erroneous, since property may be specially benefited by an improvement, even though that benefit is shared by other property. Railway Co. v. Stickney (Ill. Sup.) 37 N. E. 1098, followed.

Appeal from superior court, Cook county. Petition for condemnation by the Metropolitan West Side Elevated Railroad Company against William Clancy and others. There was judgment of condemnation, and assessment of damages, from which the petitioner appeals. Reversed.

E. J. Harkness (W. W. Gurley, of counsel), for appellant. Elbert H. Gary, for appellees. Edward F. Comstock, for appellee Latcham.

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Appeal from appellate court, Third district. Bill by Robert B. Latham, John Park Gillett, Richard J. Oglesby, and David T. Littler, executors of the last will and testament of John D. Gillett, deceased, against Stephen A. Foley, Ira Davenport, Christian Fink, Peter Ophardt, and Wilford D. Wyatt. Defendants obtained a decree, which was affirmed by the appellate court. 46 Ill. App. 119. Complainants appeal. Affirmed.

E. D. Blinn, for plaintiffs in error. Beach & Hodnett, for defendants in error.

BAKER, J. This was a bill in chancery filed in the circuit court of Logan county by plaintiffs in error against defendants in error. Complainants (Robert B. Latham in his own right, and the others as executors of the last will of John G. Gillett, deceased) filed their bill and alleged: That said Latham and said deceased were sureties on the offcial bond of Wilford D. Wyatt, master in chancery of Logan county. That in an action by Polly Rommell et al. v. Catherine Rommell et al., in the circuit court of Logan county, for the partition of certain lands, a decree was rendered, ordering said Wyatt, as such master, to sell the premises sought to be partitioned, at public sale, for one-third cash in hand, and the balance in two equal payments, due in one and two years, with 7 per cent. interest, to be secured by the promissory notes of the purchaser or purchasers, with personal security and mortgage on premises sold. That said master, after the decree had been approved by the court, and without authority, added thereto the words: "It is further ordered that said master in chancery have, and leave is hereby given to sell, assign, and transfer the mortgage and notes executed to secure the deferred payments, at their face value, and distribute the proceeds." That decree, with such forged addition, was entered of record by the clerk of said court. That the master, by virtue of the decree, sold the land, and for the deferred payments received two notes of Peter Ophardt and Christian Fink, purchasers, each for $2,500, due in one and two years, secured by mortgage on the land. It is then alleged that the said master sold and assigned each of these notes to Stephen A. Foley and Ira Davenport, but paid only a portion of the money received therefor to the Rommell heirs, and embezzled the balance, and that John D. Gillett, deceased, and Robert Latham, as his sureties as master in chancery, were required and did pay to said Rommell heirs such remainder, and received from them an assignment of their rights and claims in the matter. The bill further alleged that Fink and Ophardt paid their notes to Foley and Davenport. The prayer is that complainants be subrogated to the rights of the Rommell heirs, "that the assignment of said notes and mortgage may be held and decreed to be entirely void, and

that the release of said mortgage of record may be canceled and held for naught; that the court will order and decree that said notes and mortgage are still in full force and effect, unpaid and unsatisfied; that your honor will find and order and decree the amount due to your orators out of the proceeds of said two notes so secured by mortgage, and that said Christian Fink and and Peter Ophardt pay to your orators such sum, together with interest at six per cent. from the date of payment, and that your orators shall have the right, in case of their failure so to do, to file a supplemental bill, and foreclose said notes and mortgage, to enforce the payment of said sum of money so found to be due; that your honor will also order and decree that, in the event said sum of money cannot be realized out of said lands, that a personal decree may be entered against Stephen A. Foley and Ira Davenport, compelling them to pay to your orators the amount of the proceeds of said notes, if said Foley and Davenport shall appear to have received the proceeds of said notes, to the extent that your orators may be entitled to receive said sum, as found by the decree of the court, and that orators shall be entitled to execution therefor." Defendants filed a general demurrer, which was sustained, and, complainants failing to amend, a decree was entered dismissing the bill at their cost. From a judgment of the appellate court affirming that decree, this writ of error is prosecuted.

The bill is certainly a very peculiar one, and strikes the mind at once as being without equity. It attempts to compel the defendants Fink and Ophardt to pay their notes a second time, not because of any wrong on their part, but because the party to whom they were made payable, and for whom the complainant Latham and the testator of the other complainants were sureties, embezzled the money received for the same. It is not claimed by the bill that the defendants were in any way connected with the forgery; that they derived any benefit whatever from it, or even had actual knowledge of it. That said defendants Fink and Ophardt executed their notes to the master in chancery in strict conformity to the decree of the circuit court is affirmatively shown by the bill. The complaint is that they did not see to it that the master had proper authority to transfer the notes to the subsequent holders to whom they made payment. If the question had been between the Rommell heirs and these defendants, the former would be concluded by the fact that it was their duty, and not that of the third parties, to see that the decree was properly recorded. Stevens v. Coffeen, 39 Ill. 148; Schneider v. Seibert, 50 Ill. 284. If the heirs had any rights against these defendants when this bill was filed, to which complainants could be subrogated, then the same rule ought to apply to them. But we are wholly

unable to perceive upon what principle it can be said the heirs had any such rights as are claimed for them, and hence attach little importance to the foregoing rule. In our view of the case, the forgery is of little importance. If the decree had been silent as to the right of the master to negotiate the notes, and if it be conceded that in the absence of such authority he could not lawfully assign them (which is conceded only for the argument), and the master had transferred them and received the money, and the makers had afterwards paid them in full to his assignee, without fraud, we know of no legal or equitable principle upon which a second payment could have been demanded. The argument offered in support of the bill seems to proceed upon the idea that an injury has been suffered by complainants through some wrong of the defendants, but no such wrong is shown. The loss sustained by complainants resulted, not from the manner in which their principal received the money due the heirs, but from his wrongful act in embezzling it after he had received it. He had a right to receive the money. It was his duty to collect it, and the time and manner in which he got it is of no consequence. There is in the bill no claim even that the master's opportunity to misappropriate the money was occasioned by his negotiating the notes; much less that the defendants in any way, directly or indirectly, aided him in committing the embezzlement. We are unable to view this case in any other light than that of an attempt by sureties on an official bond to visit losses sustained by them, by reason of the malfeasance of their principal, upon third parties, not shown to have been in any way responsible for such malfeasance. There is no equity in the bill. The circuit court properly dismissed it, and the judgment of the appellate court should be affirmed. Affirmed.

MAGRUDER, J., took no part in the decision of this case.

CHICAGO & A. R. CO. v. RAYBURN.1 (Supreme Court of Illinois. Oct. 30, 1894.) CARRIERS OF PASSENGERS-NEGLIGENCE-INSTRUC

TIONS.

1. Where a passenger on a freight train is injured while walking alongside the train, in order to close the door of a freight car, at the order of one of the trainmen, it is for the jury to determine whether he was rightfully where he was at the time of the accident.

2. When the negligence alleged in the declaration is the alleged wrongful order, in obedience to which plaintiff was injured, it is error to charge that plaintiff may recover on account of other negligence of the defendant.

Appeal from appellate court, Third district. Action on the case by William K. Rayburn against the Chicago & Alton Railroad Com

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