in the case at bar, I. F. Laing & Co., in consideration and in payment of an indebtedness due from them to Charles A. and John H. Laing, made to them an absolute bill of sale of goods and chattels, and delivered possession; and, pending the negotiations, George Laing said to Charles A., "I know all you folks want is what we actually owe you," and Charles A. answered, "Yes. All we expect to get is what you owe us, and we would be perfectly willing to pay over the surplus," and shortly afterwards George said to John H. that he hoped the business would turn out better than was expected, and that there would be a surplus over and above the indebtedness due them, which he was satisfied they (Charles A. and John H.) would be willing to turn over to the creditors, and John H. made like answer to that which had been made by his father. If there was any assignment here for the benefit of creditors, it was plainly a constructive assignment; and we must adhere to what we have heretofore said,-that such an assignment is not within the statute.

Appellants seem to place reliance upon the case of Farwell v. Cohen, supra. That case was quite different from this. There the assignment was by deed, and a trust for the benefit of creditors was declared therein in direct and express language; and we there declined to consider, because not involved in the case, the questions whether parol assignment of property or a constructive voluntary assignment of property for the benefit of creditors were within the contemplation of the assignment act. It results from the views we have expressed that the judgment of the appellate court must be affirmed, and it is ordered affirmed.

THOMAS v. CITY OF CHICAGO.1 (Supreme Court of Illinois. Oct. 29, 1894.) MUNICIPAL CORPORATIONS-SPECIAL ASSESSMENTLOST ASSESSMENT ROLL-RESTORATION.

1. Where an assessment roll is lost after objections to its confirmation have been filed, it is proper to allow a certified and sworn copy to be filed as of the date of the filing of the original.

2. Where it is contended by a landowner that his land, being most valuable for gardening purposes, is not benefited by opening a street along one side of it, it is not reversible error to allow a witness, who has testified as to the benefits, to state as the reason for his opinion that land in that locality, when rented for gardening, is rented by the acre, and the acreage computed to the center of the street.

3. An instruction that "it makes no difference whether the property assessed is used at present for such purpose that it will not be especially benefited by the proposed improvement, or is put to any use to which the market value of the same is at present unimportant," is not objectionable as not submitting to the jury the question of the effect of the proposed improvement upon the present fair cash value of the property.

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

4. The objection that the ordinance, the verdict, and the judgment all fail to describe the assessed property sufficiently cannot be made for the first time on appeal.

Appeal from superior court, Cook county; Theo. Brentano, Judge.

Petition by the city of Chicago for confirmation of a special assessment. George C. Thomas filed objections, which were overruled, and judgment of confirmation entered. Objector appeals. Affirmed.

L. E. Dow and C. A. Allen, for appellant. Harry Rubens, for appellee.

BAKER, J. This was a special assessment proceeding to raise money to pay the compensation and damages awarded to property owners for the opening of North Fiftieth street, from West Forty-Eighth street to West Fifty-Second street, in the city of Chicago. On December 12, 1892, appellee filed its supplemental petition, as provided by the statute, setting forth the previous condemnation proceedings, and praying that an assessment might be made of property benefited by the improvement to pay the condemnation money allowed. On January 7, 1893, an assessment roll was filed in the superior court of Cook county by the commissioners thereto appointed, describing the real estate deemed by them to be specially benefited by the improvement, showing the amount assessed against each piece of property, and the names of the respective owners. To that assessment objections were duly filed. On June 14, 1893, it was shown to the superior court that the assessment roll had been lost, and could not be found. On motion of counsel for the city, leave was granted to file a certified and sworn copy of the same nunc pro tunc as of the date of filing the original, and a rule was entered upon the attorneys for the objectors to file their objections. The assessment roll being accordingly supplied by copy, and the objections again filed, the case proceeded to a hearing, upon which the assessment was confirmed, and appellant, one of the objectors, appealed.

The first ground of reversal urged is admitting in evidence on the trial the copy of the original assessment roll. In such a proceeding the assessment roll is a part of the record, and, when lost or destroyed, may be restored by proper order of the court as may other files in a case. When the copy was introduced in evidence, it had become a part of the record, and stood in the place of the original, and became to all intents and purposes the assessment roll in the case. The practice adopted in the superior court was in conformity with that suggested in Morrison v. City of Chicago, 142 Ill. 660, 32 N. E. 172. There was no error in admitting the copy after it had been filed by order of the court to take the place of the original.

It was contended by appellant, under his objections, that his property was not bene

fited by the improvement. The basis of this contention was that the property is more valuable for gardening than any other purpose, and that the opening of the street which would run along one side of it would in no way benefit it. The superior court, against his objection, permitted Charles N. Roberts, a witness for the city, to state "that in the locality of the land in question, when land was rented for gardening purposes, that it was rented by the acre, and the acreage usually figured to the center of the street"; and it is insisted that this was error. It appears that the witness was being asked for his opinion as to whether objector's land would be benefited by the improvement for gardening purposes, and the foregoing answer was given merely as a reason for his opinion. We do not see how it could have resulted in any substantial injury to appellant, even though it was irrelevant.

The next error insisted upon is that the court below refused to permit one Hill, a witness for objector, to answer whether, in his opinion, there was any demand that would justify a subdivision of objector's land at the present time for business and residence purposes. It is sufficient to say of this point that the witness had already fully answered the question in his preceding testimony. He has said: "In that particular locality there is little or no demand for lots; because we can sell lots nearer the depot so much cheaper, that there is no particular demand there. The opening of the road, as contemplated, would not enhance the value of lot 10 any. It is not any good as a subdivision." To have repeated this testimony would have added nothing to its weight, and amounted to no more than a useless waste of time. The objection to the question was therefore properly sustained.

An objection to the sixth instruction on behalf of the petitioners is urged, but it is based on the assumption that the copy of the assessment roll was improperly admitted in evidence. We have already seen that the copy, being filed by order of the court, became the assessment roll in the case, and there was therefore no error in the instruction referring to it as such.

The seventh instruction on behalf of the petitioner is as follows: "You are instructed that it makes no difference in this case whether or not the property assessed is used at present for such purpose that it will not be especially benefited by the proposed improvement, or is put to any use to which the market value of the same is at present unimportant; and, in determining your verdict, you may take into consideration the present use to which the lots or tracts are put, and you shall consider whether or not the market value of said lots or tracts, or both, for any legitimate purpose for which the same may be used, will be increased by reason of the construction of the proposed improvement." It is contended by counsel

for appellant "that this instruction does not submit to the consideration of the jury the question whether or not the present fair cash market value of the lots will be increased or decreased by the proposed improvement." We are unable to see the force of this objec tion. No intelligent jury could have understood the language here used to refer to the past or future value of the property.

The only other error suggested in argument of counsel is that the ordinance under which the proceedings were had, as well as the ver dict and judgment in the condemnation proceedings, fails to sufficiently describe the land of objector. The record shows no objection to the assessment on that ground. and no exception to any ruling made by the court below in that regard, nor is there any assignment of error raising the question of the sufficiency of the description. Clearly. the question of the claimed insufficiency cannot, in this condition of the record, be raised here. Railway Co. v. Miller, 55 III. 448; Wright v. Wheeler, Id. 528.

The judgment of the superior court will be affirmed. Affirmed.

HANEWACKER v. FERMAN.1 (Supreme Court of Illinois. Oct. 29, 1894) INTOXICATING LIQUORS-CIVIL DAMAGE SUIT-INSTRUCTIONS-DAMAGES.

Where, in an action for damages under the dramshop act, the evidence is conflicting. and much improper evidence is admitted on behalf of the plaintiff, and afterwards ruled out, it is reversible error to instruct the jury that "the law, as it stands upon the statute book of this state, should be enforced, and it is the sworn duty of the jury, in a proper case. to enforce it"; since the jury would infer that it was their duty to award exemplary damages. Appeal from appellate court, Second district.

Action on the case by Harriet Ferman against Charles Hanewacker. Plaintiff obtained judgment, which was affirmed by the appellate court. 47 Ill. App. 17. Defendant appeals. Reversed.

J. L. Haas and W. H. Gest, for appellant. J. T. Kenworthy and M. M. Sturgeon, for appellee.

MAGRUDER, J. This is an action brought by appellee, under section 9 of the dramshop act, to recover damages for injury in her person, property, and means of support, caused by the sale of intoxicating liquor to her husband, William Ferman, by the appellant. Charles Hanewacker. Verdict and judg ment in the trial court were for plaintiff, and the judgment, which was for $1,200, has been affirmed by the appellate court, whence the case is brought here by appeal.

This was evidently an exceedingly close case upon the evidence. The appellate court

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

says in its opinion: "Appellant and his bartender denied on oath that Ferman had obtained liquor there, and they were corroborated by Ferman himself. It was a very serious matter for the jury to disbelieve this | positive testimony, and find from the circum. stances alone that Ferman had procured liquor there; but it was their peculiar province, in view of the inharmony between the positive evidence, on one side, and the circumstantial evidence, on the other, to decide where the truth was." The declaration contained allegations of injury to plaintiff in her į person. Upon special demurrer to these allegations, they were stricken out by the court, but much evidence upon this subject was allowed to come in. It is conceded that all testimony as to injury arising from the loss of the husband's wages was ligitimate and proper; but much testimony was admitted upon the subject of the wages earned by the wife, and the disposition made by her thereof, for the purpose of showing injury to her in her property. This testimony the trial court, after its admission, held to be improper, and finally ruled out. Much evidence was also allowed to be presented to the minds of the jury as to the inconvenience the plaintiff labored under, as to the hardships she suffered, as to the sickness of her children, as to the injury sustained by one of them in falling from a shed while the defendant was absent, etc. This class of proof was condemned by this court in Flynn v. Fogarty, 106 Ill. 263.

Instructions were given which confined the attention of the jury strictly to injury to the plaintiff in her property and means of support. The following instruction also was given in behalf of the defendant: "(11) The only ground upon which the plaintiff can recover actual damages in this case is her alleged support from the wages, earnings, and labor of her husband, William Ferman. The jury are not authorized to award any sum as actual damages, by reason of any evidence before them as to the labor of the plaintiff or the spending by her of any means of her own for herself or her family." It is claimed that these instructions so far cautioned the minds of the jury against the objectionable evidence which was admitted that no injury could have resulted to the defendant. It has been held by this court that the evil effect of allowing evidence of injury not embraced within the allegations of the declaration to be introduced in an action under the dramshop act may not be cured by an instruction excluding it from the consideration of the jury. Hackett v. Smelsley, 77 Ill. 109. Undoubtedly, cases may and do arise where the reviewing court can see that the admission of some item of improper testimony has been robbed of its power to do harm by a subsequent instruction which directs the jury not to consider it. In the present case, however, so much objectionable evidence, which was calculated to unduly arouse the

sympathies of the jury in favor of the plaintiff, and to create a corresponding prejudiceagainst the defendant, was permitted to be introduced in the hearing of the jury, that the mind is left in doubt upon the question whether these particular instructions had the effect of remedying the evil. Flynn v. Fogarty, supra. In view of the considerations thus presented, and without deciding that such considerations by themselves would be sufficient to authorize a reversal of this judgment, we are of the opinion that the circumstances were such as to require the other instruction to be correct and accurate. The third instruction given for the plaintiff is as follows: "(3) The court instructsthe jury that it is not for them, in this case, to inquire into or consider the propriety of the law now in force, relating to the sale of intoxicating liquors, under which this action is brought. The law, as it stands upon the statute book in this state, should be enforced, and it is the sworn duty of the jury, in a proper case, to enforce it; and if the jury believe from the evidence in the case that the defendant, within five years prior to the bringing of this suit, contributed to the intoxication of the plaintiff's husband by selling or giving to him intoxicating liquors, and that the husband was a person in the habit of getting intoxicated, and that. in consequence of such intoxication, the plaintiff has been injured in her means of support, as charged in the declaration, then the jury must find their verdict for the plaintiff, and assess her damages at such a sum as the evidence shows, if any, she has thereby sustained, and this, without any regard to the policy or the propriety of the law relating to the sale of intoxicating liquors in this state." We doubt the propriety of instructing a jury in any civil action that it is their duty to enforce the law; but such language is too strong in a suit under section 9 of the dramshop act. We have held that, in this proceeding, exemplary damages. will not be awarded, unless there is a finding of actual damages. McMahon v. Lankey, 133 Ill. 636, 24 N. E. 1027; Roth v. Eppy, SO Ill. 283. We have also held that there is no distinction between exemplary damages and damages allowed as a punishment; that exemplary damages, punitive damages, or damages recovered as a punishment, all mean the same thing. Lowry v. Coster, 91 Ill. 182. When the jury were told that "the law as it stands upon the statute book of this state, should be enforced, and it is the sworn duty of the jury, in a proper case, to enforce it," they must have understood that it was their duty to award such damages as are allowable as a punishment, or, in other words, vindictive or punitive damages. They were told in other instructions that plaintiff must have sustained actual damages in order to justify a finding of vindictive damages. But they were not bound to give the plaintiff vindictive

damages. A jury will be permitted to award such damages if they "shall believe from all the circumstances that the plaintiff ought to recover vindictive damages." Hackett v. Smelsley, supra. In the recent case of Coal Co. v. Haenni, 146 Ill. 614, 35 N. E. 162, in discussing an instruction whose language was much less positive and emphatic than that of the instruction here, we said: "Exemplary damages are given as a punish. ment where torts are committed with fraud, actual malice, or deliberate violence or oppression, or where the defendant acts will fully, or with such gross negligence as to indicate a wanton disregard of the rights of others. * The amount of 'smart money,' which the plaintiff is thus allowed to recover, in addition to his compensation for the injury suffered, is left to the discretion of the jury, as the degree of punishment to be inflicted in this way must depend upon the peculiar circumstances of each The province of the jury in determining the allowance of the punitive damages would be too much invaded if they were instructed that it was their duty to allow such damages, instead of being told that they might allow them, or were at liberty to allow them." This language is precisely applicable here.

case.

*

*

For the error in giving the third instruction of the plaintiff under and in connection with the circumstances herein referred to, the judgments of the appellate and circuit courts are reversed, and the cause is remanded to the former court. Reversed and remanded.

HUTCHINSON v. HUTCHINSON et al.1 (Supreme Court of Illinois. Oct. 29, 1894.) WILLS-TESTAMENTARY CAPACITY-COSTS-GUARD

IAN AD LITEM.

1. Evidence that a testator was in impaired health, and was peculiar, eccentric, dissipated, and melancholy, is not sufficient to show want of testamentary capacity.

2. Rev. St. c. 22, § 6, which declares that a guardian ad litem shall "be allowed a reasonable sum for his charges as such guardian, to be fixed by the court and taxed in the bill of costs," does not authorize the solicitor's fees and other expenses of the guardian ad litem to be taxed as costs.

Appeal from appellate court, First district. Bill by George Hutchinson against James A. Hutchinson and others to contest the will of Thomas Hutchinson, deceased. Defendants obtained a decree, which was modified by the appellate court. 50 Ill. App. 87. Complainant appeals. Affirmed.

Thomas Hutchinson died in Chicago on December 2, 1887. He left, him surviving, no widow, or children, or descendants of children. His next of kin were two brothers, George Hutchinson and James A. Hutchinson, and each of these brothers had children. One of the children of James A. Hutchinson

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

was named Thomas Hutchinson, and he had been named for the decedent. The deceased left a last will and testament, dated September 8, 1886, by which provision is made for the purchase of a cemetery lot and the erection of an appropriate monument, and for the payment of debts. The will then bequeaths $5,000 to his brother George Hutchinson, and $5,000 to his brother James A. Hutchinson, and another $5,000 to his friend John R. Walsh, in trust for Minnie Mae Knapp. All the remainder of the testator's estate is bequeathed to the Fidelity Insurance, Trust & Safe-Deposit Company of Philadelphia, in trust for his nephew and namesake, Thomas Hutchinson. The will contains particular directions as to the manner in which the trust estate shall be handled, provides for the payment to the father or legal guardian of the said Thomas Hutchinson of an amount sufficient to support. maintain, and educate him in a manner befitting his station in life, and authorizes and directs the trustee, when his nephew Thomas Hutchinson shall arrive at the age of 25 years, to pay over the whole trust estate to his nephew, but, in case his nephew dies before reaching the age of 25 years, then he directs the trust estate to be divided equally between his brothers, George Hutchinson and James A. Hutchinson, or, in case of their decease, then among their lawful issue. A codicil to the will was made and properly executed on June 11, 1887, which provides that the trust created in favor of Minnie Mae Knapp in the will shall be set aside, and that the $5,000 therein provided to be held in trust for her shall be paid to her directly by the executor as her absolute property. The codicil expressly affirms, ratifies, and approves all the other terms and conditions of the will. On December 23. 1887, the will and codicil were admitted to probate. The will appointed John R. Walsh executor, and he qualified as such. The testator had died seised of no real estate, but he left stocks, bonds, notes and mortgages, and cash in bank to the amount and value of over $58,000. On June 18, 1890, George Hutchinson, the now appellant, filed in the circuit court of Cook county this bill to set aside the will and codicil, on the ground "that the said Thomas Hutchinson, at the time of executing said instrument in writing purporting to be his last will and testament and codicil thereto, was not of sound mind and memory, but, on the contrary, was so weak and feeble in mind and memory as to be incapable of making any just and proper distributions of his estate." Answers were filed, and replications thereto, and an issue was made up and submitted to a jury. The jury, by their verdict, found that the papers purporting to be the last will and testament of Thomas Hutchinson, deceased, and the codicil thereto, were the last will and testament and codicil thereto of Thomas Hutchinson, deceased, and that Thomas Hutchinson

was of sound and disposing mind and memory when he executed the papers. The circuit court entered a decree in accordance with the verdict of the jury, and dismissing the bill of complainant for want of equity, at the costs of the complainant; and it further ordered and decreed that the complainant should pay the sum of $2,500 as compensation for the services of the solicitors of the guardian ad litem of the infant defendant, Thomas Hutchinson, and the sum of $270.71 in reimbursement of the expenditures of said solicitors, and the sum of $450 as compensation for the time and services of the two physicians who were expert witnesses for said guardian ad litem, and the further sum of $25 as compensation for the services of the guardian ad litem; and that each and all of said amounts should be taxed against the complainant as a part of the costs of suit, and that execution should issue therefor against the complainant. Upon appeal to the appellate court of the First district, the decree of the circuit court upon the merits of the case was affirmed, as was also the order allowing $25 to the guardian ad litem, and taxing the same against the complainant as costs; but the orders allowing the $2,500, the $270.71, and the $450, and awarding execution therefor, were reversed, and the cause was remanded to the circuit court with directions to set aside the orders taxing such sums against appellant as costs of suit. George Hutchinson, complainant in the circuit court and appellant in the appellate court, now brings the case here by this further appeal, and assigns numerous errors; and two of the appellees, the guardian ad litem and the Fidelity Insurance, Trust & Safe-Deposit Company, trustee, assign as cross error that the appellate court erred in holding that the sum of $2,770.71 paid to the solicitors employed by the guardian ad litem for their services and disbursements, and the sum of $450 paid to the experts engaged as witnesses by the said guardian ad litem, were, and each of said sums was, improperly taxed against the complainant as a part of the costs of the suit, and in directing that the order taxing such sums against appellant as costs of suit should be set aside.

The

BAKER, J. (after stating the facts). testimony produced by the contestant of the will and codicil to establish the mental incapacity of the testator, is exceedingly weak and unsatisfactory, so much so that even if the case stood alone upon the evidence so produced, with a verdict of a jury to support it, it is matter of grave doubt whether a decree invalidating the will and codicil could be sustained. But, when the testimony introduced by the proponents of the will and codicil is considered along with that a

was

bove mentioned, it seems to us that the testamentary capacity of the testator, and that he was of sound mind and memory, within the meaning of the law, are established even beyond a reasonable doubt. The law does not require that a man, in order that he may make a will and dispose of his property, should have a perfectly well-balanced mind, entirely free from all blemishes and angularities. That which is regarded in the eye of the law as "a sound and disposing mind" is not inconsistent with a very considerable degree of eccentricity. Where there is capacity to transact the ordinary business of life, and an ability to comprehend in respect to the objects and subjects of bounty, and a freedom from insane delusion specially affecting testamentary capacity, there the power and the right to make a will exists. In this case the testator, until he was 54 years of age, spent a busy and active life, devoted to the earning and the accumulation of money. He was a bachelor, and had lived a life aloof from the pleasures of a home and of society. At the age above indicated his health became somewhat, but not seriously, impaired, and he disposed of his business, with the intention of taking a rest, and enjoying the fortune that he had gathered together. He had been long accustomed to a solitary life, was set in his ways, had his peculiarities and eccentricities, and somewhat dissipated in his habits, and he, moreover, had little or nothing to occupy his time and attention, was wholly unfitted for social life, and became unhappy and dissatisfied; but the instincts and habits of a lifetime of money-getting and money-saving adhered to him, and he was as sensible, cautious, and close in respect to business and money matters as ever. He finally died suddenly from the effects of a stroke of apoplexy, that was the result of the bursting of a blood vessel in his brain. If the verdict and decree herein had been otherwise than they are, upon the issues whether the writings produced at the trial were the will and codicil of the testator or not, the verdict and the decree could not have been allowed to stand; and, even if a new trial was now awarded for technical error, such trial could result only as did this. Appellant insists that the circuit court committed errors in permitting certain questions to be propounded to witnesses, and certain answers to go to the jury, and in sustaining objections to questions asked by him, and in various of its rulings upon the instructions, and in other ways during the progress of the trial. In that behalf he makes some 27 different assignments of error. We are inclined to the opinion that none of these alleged errors are well assigned; but be this as it may, and even assuming that the court committed errors, yet appellant was not injured thereby, the substantial merits and the truth of the controversy being so manifestly against him; and so it would be a waste of