text:
       Union Insurance Company v. Frank F. Cole.
    1. Marine insurance.—As between the parties liable to contribute under the law of general average the expenses of paying and maintaining the crew while the ship is seeking the port where the repairs are to be made, and while necessarily in that port, are among the expenses for which such contribution may be enforced.
    2. Limitation as to liability.—The right of the insured to indemni'y is purely a matter of contract, and it is competent for the parties in making their contract to limit the liability assumed by the insurer in any respect they deem proper. As the policy in question expressly excepts from the liability assumed all claims for wages or provisions to officers or crew while the property insured is detained by any disaster, etc., such claim can not be allowed.
    Appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed March 8, 1886.
    Messrs. Schuyler & Kremer, for appellant.
    Mr. John C. Kichberg, for appellee.

      The case of Thames and Mersey Marine Insurance Co. v. Frank F. Cole, being in most of its features like the above, is reversed for the same reason.

   Bailey, P. J.

This was a suit in assumpsit, brought by Frank F. Cole against the Union Insurance Company, of Philadelphia, upon two policies of marine insurance, one for §1,000 and the other for §3,000, upon the schooner J. B. Ponfield, employed in the navigation of the waters of the great lakes. Said policies contained, among other things, the following provisions:

“ Touching the adventures and perils which the said insurance company arc content to bear and take upon themselves by this policy, they are of the lakes, rivers, canals, jettisons, that shall come to the damage of the said vessel or any part thereof : Excepting all perils, losses or misfortunes, consequent upon and arising from or caused by the following or other legally excluded causes, viz.: * * * Any claim for wages or provisions furnished to officers or crew, while the property insured may be detained by any disaster, or during subsequent repairs; excepting always services rendered in protecting, recovering and securing the vessel or property covered by this policy.

“In all cases of loss or damage, one third new for old shall be deducted from the amount of actual cost of repairs, or estimate for same (except on anchors), and no partial loss, or particular average shall in any case be paid by the insurers, unless its amount of the whole of such damage or loss (after deducting one third new for old) equals or exceeds eight per cent, of the valuation aforesaid. E tch passage from port to port shall be subject to its own separate average.

“It is also agreed and understood, that in case of loss or damage under this policy, the assured, in claiming and accepting payment therefor, hereby and by that act, assigns and transfers all his or their right to claim for such loss or damage as against any person or persons to this company to inure to its benefit; however to that extent only of the amount of the loss or damage and attendant expenses of recovery, paid or incurred by this company. And any act of the assured waiving or transferring or tending to defeat or decrease any such claim against any person or persons shall be a cancellation of the liability of this company for or on account of the loss or damage claimed, and the expense of recovery or otherwise (if any), paid or incurred by the said company,- shall be a lien upon and shall be recoverable against the said vessel, tackle, apparel and other furniture, or any part thereof, or against the insured at the option of the insurer.”

The vessel insured, with its tackle, apparel, etc., was valued in the policies at §9,333. The total .amount of insurance permitted was §7,000, and the evidence shows that the plaintiff held,,another policy concurrent with those in suit, issued to him by the Thames and Mersey Marine Insurance Company, for §3,000.

On the 13th day of June, 1883, said schooner, while navi, gating Lake Michigan, at a point about 120 miles northeast of Milwaukee, and being light, was injured by a collision with the schooner David Yance, then in tow of the steamer Siberia. She was thereupon towed by the Siberia to Milwaukee, where? after being detained some twelve days for repairs, she resumed her voyage. The total loss to the owner occasioned by the collision, as claimed by the plaintiff, was $1,348.28, of which $820 was a general average loss, and $528.28 a partial loss or particular average. It is admitted that the particular average was less than eight per cent, of the valuation of the vessel insured as fixed by said policies, and therefore, by the terms of the policies, not recoverable. The general average claimed consisted, among other items, of a charge of $450 by the steamer Siberia for towing the vessel insured, from the place of collision to off the port of Milwaukee, and the master’s account for wages and provisions of himself and crew from the time of the collision to the date of resuming the voyage, seven men for twelve days, amounting to $246.

On the 23d day of August, 1883, said vessel, while navigating Georgian Bay laden with a cargo of 21,669 bushe's of corn consigned .to Goon & Knowles, at Midland, a port on Georgian Bay, was stranded within eight miles of her destination. She was lightered and her cargo saved with the loss of only 244 bushels. She was then gotten off and taken to the port of Oollingwood for repairs. The loss by this disaster, as is claimed, amounted to $2,924.20, of which $1,818.37 was a general average loss, $1,105 a particular average. This general average contains an item of $43 for wages of master and crew from time the vessel was stranded until it was released, two days, and one of $205.75, for the wages of master and crew on repairs, nine days. At the trial the court, among other instructions, gave to the jury, at the instance of the plaintiff, the following:

The jury are instructed, as a matter of law, that expenses of wages and provisions of crew during and on repair in a port of necessity are recoverable by ship owner from underwriters (provided, with other proper charges on repair, the total amounts to the percentage specified in the policy of insurance) in accordance with the limitations and stipulation therein contained, and among such proper charges as made in the adjustment of the loss on the voyage of August 18, 1883, as noted for a partial loss, are those of 0. G-. Barth for his expense account, as agent of the owner, actually paid on account of said disaster, provided such expenses were necessary, and the proportionate charge of $22.50 for expense of survey.”

The jury found the issues for the plaintiff and assessed his damages at $1,170.20, a result which could only he reached by allowing in full said charges for the wages and provisions of the master and crew during the time the vessel was being repaired, and also the charge of the steamer Siberia for towing the vessel from the place of collision.

It seems to be settled in this country that, as between the parties liable .to contribute under the law of general average, the expenses of paying and maintaining the crew while the ship is seeking the port where the repairs are to be made and while necessarily in that port, are Among the expenses for which such contribution may be enforced. 2 Parsons on Insurance, 257. And it should perhaps he held that the liability of an insurer, in the absence of any express limitation in that behalf, also covers expenses of that character. It should be remembered, however, that the right of the insured to indemnity is purely a matter of contract, and that it is competent for the parties, in making their contract, to limit the liability assumed by the insurer in any respect they deem proper. The present policy contains a limitation in this very respect. It expressly excepts from the liability assumed all claims for wages or provisions furnished to officers or crew, while the property insured is detained by any disaster, or during subsequent repairs, save only where the services are rendered in protecting, recovering and securing said property. This provision seems to ub to be very plain, and under it a very considerable portion of the accounts for the, wages and provisions of the crew which the jury have allowed are clearly excluded.

We are also inclined to the opinion that, under the evidence as it appears in this record, the item of $150, charged by the owner of the steamer Siberia for towage, was improperly allowed. The evidence seems to show not only that the plaintiff has not paid that item but also that he will never be called upon to pay it. After the collision with the schooner in tow of the Siberia it was claimed by the plaintiff that the Siberia was at fault, and that Davidson, the owner of the Siberia, was liable to him for the damages thereby caused to his vessel. Under these circumstances Davidson, in order to save himself all controversy and trouble, proposed to the plaintiff to cancel his charge for towage in settlement of the plaintiff’s claim for damages, and the evidence seems to show that the plaintiff, through his attorney, subsequently made a settlement with Davidson on that basis.

It is now admitted, at least by the counsel for the plaintiff, and the evidence seems to show, that the collision was an inevitable accident, for which neither party was to blame, and that, consequently, as between the colliding vessels, the loss should fall on the party which suffered it. If this is true, the plaintiff had no claim for damages against Davidson, and has surrendered and paid nothing in satisfaction of Davidson’s charge for towage, and we see no ground upon which he can include that charge as an element of the damages recoverable under insurance policies.

But if he had a valid claim against Davidson for damages and has compromised and surrendered it, it is difficult to see how he can recover at all under the conditions of his policies, at least so far as the loss by said collision is concerned. If Davidson was liable to the plaintiff at all as claimed, he would seem to be liable for the entire loss, but the plaintiff has seen fit to discharge him from his liability on satisfying only a small portion of the loss. By the policies, the insurance company became entitled to the benefit of said claim for damages as an assignee of the plaintiff, and it was expressly provided in the policies that any act of the assured waiving or transferring or tending to defeat or decrease any such claim should be a cancellation of the liability of the insurer for or on account of the loss or damage claimed.

Various other questions are presented by counsel which we do not deem it necessary for ns to consider, but for the reasons above given the judgment will be reversed and the cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: Bailey, P. J.

license: Public Domain

text:
    Chicago & Eastern Illinois R. R. Co. v. Isaac W. Holland.
    1. Negligence—Collision.—The court is of opinion that the employes in charge of defendant’s train were guilty of a want of ordinary care in that they placed their train on the Bock Island track not only in violation of the express rules of that company, but under circumstances which manifestly exposed the two trains to imminent danger of collision.
    2. Damages.—Damages for $25,000 held, not excessive, where the preponderance of the evidence showed that plaintiff, in consequence of his injury, had become a hopeless and almost total wreck.
    Appeal from the Superior Court of Cook county ; the Hon. Joseph E. Gaby, Judge, presiding.
    Opinion filed March 8, 1886.
    Mr. William Armstrong, for appellant.
    Messrs. G. W. & J. T. Kretzinger, for appellee.
   Bailey, P. J.

This was an action on the case, brought by Isaac W. Holland against the Chicago & Eastern Illinois Bail-road Company, to recover damages for a personal injury, caused, as is alleged, by the negligence of the defendant’s servants. The plaintiff, at the time he was inj ured, was in the employ of the Chicago, Bock Island & Pacific Bailway Company, as a conductor in charge of a suburban passenger train running on one of the lines of that company between the city of Chicago and South Chicago. It appears that from South Chicago west for several miles the track of the Chicago & Western Indiana .Railway Company over which the defendant runs its trains to and from Chicago, is parallel with and but a few feet distant from the track of the Bock Island Company, and that at a point some two miles west of South Chicago, both tracks are intersected, nearly at right angles, by the track of still another railroad running to Pullman, the last mentioned track being also used by the defendant for rurning its trains to that place. About a quarter of a mile east of the Pullman crossing is a side track of the Western Indiana Company turning off and running a considerable distance to the north to certain stone quarries* and known as the quarry track. The Pullman track was connected with the track of the Bock Island Company by a side track known as a “Y,” but had no such connection with the Western Indiana track. That track, however, was connected with the Bock Island track by a side track or cross-over,” running easterly from the switch communicating with the quarry track. It thus became possible for the defendant’s trains to reach the Pullman track by crossing over on the Bock Island track, running thence west to the Pullman “Y,” and over that to the Pullman track.

For a year or more prior to the plaintiff’s injury, the defendant had used the Bock Island track in the way above indicated for transferring its freight trains to and from the Pullman track, under a license from the Beck Island Company, such license being granted upon the express condition that the defendant’s trains should be kept out of the way of the Bock Island passenger trains, the defendant’s trains and the men in charge of the same being subject to a rule of the Bock Island Company, which provided, in substance, that passenger trains should not be delayed, and that freight trains should not be moved out onto the main track in advance of passenger trains due or in sight, and in the event of their occupation of the main track when passenger trains were delayed, they should, on the appearance of such trains, be run to the nearest siding, or, if necessary, onto the other main track, and that in all cases such freight trains should be properly protected.

The usual trip of the plaintiff’s dummy train was, from Chicago, past the Pullman crossing, to South Chicago, thence returning about half a mile to a “T” communicating with a track running south, thence by that track to Irondale, thence back to South Chicago, thence west, past the Pullman crossing, to Chicago. The time usually occupied -in making that part of the trip east of Pullman crossing was thirty-five minutes.

On the 16th day of February, 1883, the date of the injury, the plaintiff reached Pullman crossing on his way east a few minutes late. The day was dark, there being a dense fog which rendered it impossible to distinguish objects at a distance of more than one hundred or one hundred and fifty feet. One of defendant’s freight trains, consisting of between twenty and thirty cars, was standing on a side track, awaiting an opportunity to go over to the Pullman track, the engine of that train being on the “cross-over” within about fifty feet of the Bock Island track. After the plaintiff passed, the defendant’s train was moved out onto the Bock Island track, and started back toward the Pullman crossing. No precautions were taken to warn those in charge of the dummy train that the track was being thus obstructed. While the defendant’s train was being thus moved, the conductor of the train was met by employes in charge of a Bock Island freight train then standing on a side track awaiting the return of the dummy train and expostulated with for attempting to get over to the Pullman track in advance of the dummy train, they telling him that the time was too short and that he -would get caught. He admitted that he had sent out no signal and did not think it would be necessary to do so, but remarked that if his engine had steamed properly he would already have been out of the way. The plaintiff being late, omitted, on his return from Ironda1e, to go back to South Chicago, which made his trip several minutes shorter than usual. He accordingly reached the place occupied by the defendant’s train just after that train had commenced moving back toward the Pullman crossing. The fog prevented his engineer from seeing the defendant’s train until within a few feet of it, and a collision thereupon took place by which the plaintiff, who at the time was in one of the passenger cars, was thrown against the back of a seat and, as is claimed, seriously and permanently injured.

We think the jury were clearly warranted in finding that the employes in charge of the defendant’s train were guilty of a want of ordinary care, and even of gross negligence. They placed their train on the Rock Island track not only in violation of the express rules of that company but under cir-cum-tances which manifestly exposed the two trains to imminent danger of collision. The least that could be required of them under these circumstances was, to send out proper signals to warn those in charge of the plaintiff’s train, which they knew would be due in any event in a very few minutes, of the danger of collision, and such precaution was especially imperative in view of the dense fog which prevented those in charge of the approaching train from seeing the obstruction in time to avoid it. The negligence of the defendant’s servants, in any light in which we are able to view it, was highly culpable, and the jury were justified in finding the defendant guilty.

The amount of damages assessed by the jury, and for which the pfiaintiff had judgment, was $25,000, and it is urged with great earnestness that - said damages are excessive. A very large piortion of the evidence contained in the voluminous record relates to the nature and extent of the plaintiff’s injuries, and there seems to be a very wide difference of opinion, especially among the pihysicians who were examined as witnesses, as to the nature, severity and permanence of said injuries. Several pihysicians, who are doubtless men of high respectability in their profession, and who had made personal examination of the plaintiff with greater or less care, express the opiinion that little, if any, piortion of the debility under which the plaintiff is laboring, is attributable to the injury complained of. A large amount of evidence was given, however, by both professional and non-professional witnesses, which tends to show that in consequence of said injury, the pilaintiff has become a hopeless and almost total wreck, both pihysically and mentally. The jury have believed the latter class of witnesses, and the judge who tried the case has lent his official sanction to their conclusion by denying the defendant’s m >tion for a new trial. After having attentively examined the entire record, we are inclined to adopt the same view as to the preponderance of the evidence on this question, and are of the opinion that the jury were justified in accepting the evidence of the plaintiff and his witnesses in rehition to the nature and extent of the plaintiff’s injuries as the truth.

The plaintiff at the time of his injury was a healthy robust man of the age of thirty years. He had been for several years in the employ of the railroad company, and by the sucsessful and satisfactory performance of his duties, he had risen through the subordinate grades of employment to that of conductor. He was a married man having a young wife, hut no children. The injury to his spine occasioned by the collision has resulted, according to the testimony of his witnesses in great and incurable nervous prostration and debility. This condition has manifested itself in continual suffering, in great nervous excitability and painful susceptibility to the least disturbance, in the loss of appetite and the power to digest and assimilate food, and great emaciation, and an almost complete and permanent loss of the use of his feet and lower limbs, in the destruction of his genital powers and the gradual failure of his mind and memory. This state of things is shown not only to be permanent, but progressive, and leaves no hope of recovery or even of amelioration.

While it is true that courts can not and should not attempt to adequately compensate injuries of this character, and that juries should be kept within reasonable limits, we are unable to say, in view of all the circumstances of this case, that the verdict of the jury should not he sustained. We know of no rale by which it can be held that the jury have been actuated by passion or prejudice, or that they have given to the plaintiff a measure of compensation which, in view of the nature and extent of the inj ury he has suffered, can be said to he unreasonable.

Several months prior to the trial the defendant moved for a rule on the plaintiff requiring him to submit his person to the examination of certain, physicians and surgeons, which motion was denied, and said decision is assigned for error. The rule seems to be settled in this State that in cases of this character the court has no power to make and enforce a rule compelling a plaintiff to submit his person to the examination of physicians. Parker v. Enslow, 102 Ill. 272. The motion was properly overruled.

But it appears that notwithstanding the denial of the motion, the plaintiff in fact afterward, on various occasions, voluntarily submitted to an examination of physicians employed by the defendant for that purpose, and that he never declined such examination except on one or two occasions, where the physician employed to make the examination was for some reason personally obnoxious to him. In this way the defendant has had all the advantage it could have had if its motion had been granted.

Other errors are assigned which we have duly considered, but do not find sustained. There being in our opinion no error in the record, the judgment will be affirmed.

Judgment affirmed.


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    Ira McCord, Trustee, etc. v. Lavinia A. Herrick et al.
    1. Party wall—Contribution.—Where one party erects a wall one half on his own ground and one half on that of the adjoining owner without any agreement either express or implied for a contribution by the latter to the former in relation thereto, and such adjoining owner subsequently builds and uses such wall for one wall of his building,: he can not be made to contribute any part of the cost of its erection. The bill filed in this case is defective in that there is no allegation of any agreement for such contribution.
    2. Same.—It is no sufficient answer that the alleged agreements were not in the complainant’s possession or accessible to him, and therefore that it was impossible for him to state their terms. It was incumbent on him to at least show by some proper averment that they contained provisions giving him some title to relief.

      Appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Opinion filed March 8, 1886.
    Messrs. Holden & Farson, for appellant;
    as to equitable contribution, cited Eno v. DeVecchis, 4 Duer, 60; Cubitt v. Porter, 8 B. & C. 257; Wiltshire v. Sidford, 8 B. & C. 259; Campbell v. Mesier, 4 Johns. 334; Day v. Caton, 119 Mass. 513; Huck v. Flentye, 80 Ill. 262.
    Mr. Melville W. Fuller and Mr. W. M. Booth, for appellees;
    cited Sherred v. Cisco, 4 Sandf. 480; Partridge v. Gilbert, 15 N. Y. 601; Preiss v. Parker, 67 Ala. 500; Automarchi v. Russell, 63 Ala. 356.
   Bailey, P. J.

This was a bill in chancery brought by Ira McCord, as trustee, under the last will and testament of John McCord, deceased, against Lavinia A. Herrick, both in her own right and as guardian of Elijah W. and Sarah L. Herrick, and against said Elijah W., and Sarah L. and Anna M. Herrick, to recover one half the cost or value of a party wall.

The bill alleges that, on the 12th day of. October, 1866, the defendants became the owners, by descent from Elijah W. Herrick, deceased, of a lot twenty feet front and one hundred and eighty feet in depth, known as Ho. 103 Lake street, Chicago ; that on the 6th day of April 1866, Jason McCord became the owner by purchase of a lot of like dimensions adjoining the defendants’ lot on the west, and known as Ho. 105 Lake street; that Jason McCord afterward died intestate, leaving John McCord his only heir at law, and that by the last will and testament of John McCord, the complainant, on or about January 1, 1876y became vested with the title to said lot 105, as trustee under said will; that prior to October 9, 1871, there was situated on said lots adjoining brick buildings which were on that day destroyed by fire; that for more than twenty years prior to that date, there had been on the line between said lots, a wall, that during all that period had been used as a party wall, except that for a small part of the time said wall had been removed in the first story of the buildings and iso its substituted therefor, and the first story of both buildings used as one store by a tenant of the respective owners; that said lots are long and narrow, and in a part of the city where they are suitable for business purposes only, and where great height is required in buildings to get space for merchandise, and also where wide buildings are more desirable than narrow ones, and where it has become customary and necessaiy to use party avails in order to make advantageous use of the property.

The bill further alleges that, since the destruction of said buildings by fire, and on or about September 1, 1876, the complainant erected a brick store on lot 105, having its east wall on the line between said lots and standing one half on each lot, such building being suitable for the only use to which said lots could be profitably put; that afterward and on or about January 1, 1878, the defendants erected a brick budding on lot 103, and in so doing made use of the party wall erected by the complainant, and refused to pay the complainant for any part of the cost or value of said wall;. that the cost and value of said wall at the time it was used by the defendants, was $1,511, and that in equity the defendants should pay the complainant one half of that sum; that prior to October 9, 1871, there existed of record or otherwise, a party wall agreement concerning the erection, maintenance and re-erection of a party wall upon the line between said lots, which is binding upon said lots and the owners thereof; that by said fire of October 9, 1871, the public records of Cook county were destroyed, and whatever agreement concerning said party wall shown by said records was destroyed, as also whatever agreement there might have been in the possession of the custodian of the tit'e papers and documents relating to said lot 103, and the complainant believes and charges that the defendants or some of them have some agreement concerning such party wall, and that if they would produce the same, it would appear that they should make fair and just recompense to the complainant for the use of said party wall; that among the agreements made between the owners of said lots, was an agreement contained in a certain deed dated August 5, 18-12, and recorded in the office of the recorder of Cook county, executed by Thomas Dyer to Sylvester Willard, the former then owning lot 105 and the latter lot 103, which deed was about and concerning the brick Avail upon the line between said lots; that the agreement therein contained provided that a brick Avail Avhicli Avas situated on said line should be a party wall, and also that the title to the land whereon the same was standing should not be conveyed by said deed; that said Willard is a.remote grantor of the defendants, and that the original deed should be found among the defendants’title papers; that the complainant is unable to state more fully the provisions of the agreements concerning said party Avail, and that the defendants should sIioav under and by virtue of what agreements the party Avail in existence prior to said fire Avas built and in use.

It Avas further alleged that defendant Lavinia A. Herrick is the guardian of Elijah A- and Sarah L. Herrick, and that at the time the party wall was built by the complainant, she Avas also the guardian of defendant Anna M. Herrick; that lot 103 was OAvned in part by said minors, and was susceptible of improvement so as to be made a source of income instead of a burden to said minors, and that said minors were abundantly able to contribute their shares toward the expense of improving the same; that on the 23rd day of October, 1877, on the petition of said guardian, an order was entered by the Probate Court of Cook county, authorizing said guardian to improve said lot 103 at an expense of not to exceed §11,000; that the use of said party Avail and the payment therefor is a part of the Avork of improving said lot, and there remains enough of said sum of §11,000 unexpended to pay the complainant the whole or a part of the sum due him in respect to the use of said party Avail by the defendants; that said guardian and the defendants intrusted the erection of said building to one Myers, who directed, managed and controlled the erection thereof on said lot 103, under the direction and authority of said guardian, and in the course of his conduct therein, licensed and permitted the erection of the east wall of the complainant’s building upon the line between said lots, and for a party Avail, and to be used as such by and between the OAvners of said lots; and promised that the defendants would pay the complainant one half of the value of such wall at the time the same should be used by the defendants, and thereupon and on the faith of such promise, as well as upon the other matters alleged, the complainant erected said party wall.

The bill prays for an answer by the defendants on oath, for an accounting in respect to the cost and value of said party wall, and for a decree requiring the defendants to pay the complainant one half of said cost or value'with interest; also that the court ascertain and declare the rights of the parties in'and concerning said party wall, and ascertain, dec'are and restore the evidence of any and all agreements respecting the same, and enforce such agreements, and a general prayer for relief. Defendant Lavinia A. Herrick appeared and demurred to the bill for want of equity, which demurrer was sustained by the court and the complainant electing to abide by his bill, the same was dismissed at his costs.

It is not easy for us to arrive at any very satisfactory conclusion as to the theory upon which the complainant has framed his bill. Whether he bases his title to relief upon some agreement in relation to the party wall entered into by the immediate or remote grantors of the present owners and running with the land, or upon an agreement, express or implied, between the complainant and defendants themselves, or upon some title in the nature of a prescriptive right, we are at a loss to determine. The bill seems to contain some allegations pointing to each of these several theories, but it is very clear that there is not sufficient averred to sustain either.

The rule is that where one party erects a wall one half on his own ground and one half on that of the adjoining owner without any agreement either express or implied for a contribution by the latter to the former in relation thereto, and such adjoining owner subsequently builds and uses such wall for one wall of his building, he can not be made to contribute any part of the cost of its erection. Huck v. Flentye, 80 Ill. 258.

There is no allegation in the bill of any* agreement for such contribution between the grantors of the present owners. There is an allegation of some agreement concerning the erection, maintenance and re-erection of a party wall, on record or otherwise, but as to what its terms were, or who was to build or re-build the wall,, or whether the agreement imposed any obligation to contribute any portion of the expense,- or whether it was so drawn as to be obligatory upon the grantees of the contracting parties, or whether the defendants took with notice of the agreement so as to be affected by its terms, the bill contains no averment or even a suggestion. The offiy agreement described with any degree of certainty, is the one contained in the deed from Dyer to Willard, which’ merely provided that a wall then situate upon the line between the two lots should be a party wall, while the title to the land on which it stood should remain in the adjoining owners in severalty. It does not appear, however, that the agreement thus described had any relation to anew wall that might be erected after the destruction of the one then in existence. Huck v. Flentye, supra. Nor does it appear that there was any agreement made by Willard, the defendants’ grantor, either for himself or his assigns, to contribute in any way to the expense of the then existing wall, and much less to that of one which might thereafter be erected in its stead.

It is no sufficient answer that the alleged agreements were not in the complainant’s possession or accessible to him, and that it was therefore impossible for him to state their terms. It was incumbent on him at least to show by some proper averment that they contained provisions giving him some title to relief. So far as the bill shows they were wholly immaterial to any right sought to be enforced, and can afford the complainant no title to either discovery or relief.

There is a no less signal failure to show any agreement either express or implied between the complainant and defendants. At the time the party wall was rebuilt and also at the time the defendants’ building was erected, the defendants were infants, so that ho agreement on their part to contribute to the expense of the party wall will be implied. Is an express agreement shown to have been made by any party authorized to contract on their behalf ? The only allegation is that Myers, while employed by the guardian to superintend the erection of the defendants’ building, and as part of his duties as such superintendent, licensed and permitted the rebuilding of the party wall and promised that the defendants should pay the complainant one half on its cost, and that it was in reliance upon such license and promise that the complainant built said wall. That this averment, in its most material features, is essentially untrue appears from the face of the bill itself. The bill shows that authority from the probate court to make the expenditures necessary to erect the defendants’ building was not given nor Myers appointed to superintend its erection until more than one year after the complainant’s building was finished. It was therefore impossible that such license should have been given or such promise made by Myers before the complainant built, or that the complainant should have relied upon the same on erecting his building.

When Myers was appointed superintendent, the wall had already been built, and that too under circumstances which imposed no obligation upon the defendants to contribute to the expense of its erection. It was not, then, within the purview of Myers’ employment as superintendent, to make any promise or assume any obligation in relation to the party wall. That was standing in part on the defendants’ land and they had an absolute right to use it as a part of their building without paying anything to the complainant therefor. Negotiations with the complainant for a right which the defendants already had and owned were clearly not within the line of Myers’ duty, and if he made the promise as alleged, such promise, upon any theory disclosed by the bill, can not be held to be binding upon the defendants.

Nor are we able to see that the complainant’s title to the relief sought by this bill is at all affected by the fact that the original party wall had been standing and in use by the adjoining proprietors for more than twenty years prior to its destruction in October, .1871. Had the question been as to the com- iainant’s right to erect and maintain a new wall in place of the one destroyed he might very likely have set up a prescriptive right to do so. But the mere fact that the original wall had been in use for twenty years neither shows nor tends to show a prescriptive right to build the wall at the ex. pense of the adjoining owners.

We think it clear that the bill showed no title to relief of any character, and that the demurrer was properly sustained. The decree will be affirmed.

Decree affirmed.


text:
    William Ripley et al. v. The People’s Savings Bank et al.
    1. Pleading—Interpleader—Traverse.—In an attachment suit, an interpleader tenders the simp'e issue of property in the property in controversy, and that question can only be met by a traverse; pleading property in any one else without specifically denying property in the party inter-pleading, is foreign to the issue tendered and a demurrer will lie thereto.
    2. Garnishment—Partnership assets.—Creditors can not by process of garnishment reach money in the hands of a garnishee which is due to the firm of which the debtor is a member.
    Appeal from the Superior Court of Cook county; ihe Hon. Joseph E Gaby, Judge, presiding.
    Opinion filed March 8, 1886.
    Messrs. Schuyler & Kremer, for appellants.
    Mr. David Sullivan and Mr. J. T. Keena, for appellees.
   Bailey, P. J.

In this case, William Ripley and Bradford W. Ripley, on the 4th day of September, 1884, sued out an attachment against the property of John Monaghan, anon-resident of the State, to recover an indebtedness of §2,342.25, and caused the firm of A. J. McBeau & Co. and Edward A. Ayer to be summoned as garnishees. Judgment was rendered against the principal defendant by default, and interrogatories having been filed, A. J. McBean & Co. answered denying that they had any effects or estate of the defendant in their possession, custody or charge, but admitting that on the 3d day of September, 1881, said firm purchased of one Frazier a cargo of cedar posts.

Ayer answered, admitting that at the time of the service of the writ he had in ■ his possession the sum of 81,010.15, which appeared on his books as a credit to the firm of Monaghan & Rothschild, of which the defendant purported to be a member ; that after the service of the writ there came into his possession the sum of 8432.25, which also stood to the credit of Monaghan & Rothschild; that he did not know of his own knowledge what interest the defendant or Rothschild had in said money, or whether any other person or corporation had any interest therein, but he was informed and had reason to believe, that said moneys belonged wholly or in part to the defendant; that said moneys were the proceeds of the sales of cedar posts and railroad ties consigned to the garnishee by said firm, both before and after the date of the service of the writ.

The People’s Savings Bank of Detroit thereupon filed its interpleader, alleging that said sum of 81)472.10 in the hands of said Ayer, being the proceeds of the sale of cargoes of railroad ties and cedar posts shipped by said bank to him, being the same property described in the answer of said Ayer, and the sum of 8482.89, in. the hands of A. J. McBean & Co., the s ame being the proceeds of the sale of a cargo of cedar posts so Id to said McBean & Co. by James Fraser, said cargo being shipped t o said Fraser by said bank, were at the date of the service of the writ and still are, the property of said bank and not of said defendant.

To said interpleader the plaintiffs filed six replications, the first alleging that the moneys in the hands of Ayer were not the property of said bank, the second that the moneys in the hands of A. J. McBean & Co. were not the property of the bank, the third making the same allegations as to all the property attached, and the fourth, fifth and sixth setting up in various forms that said property belonged to defendant Monaghan at the date of the attachment. To the last three replications the court sustained a demurrer, and the sustaining of the demurrer is assigned for error.

The question raised hy the interpleader was simply that of property in the moneys in controversy in the bank, and that question could only be met by a traverse. If the money did not belong to the bank it was wholly immaterial, so far as the interpleader was concerned, whom it belonged to. Pleading property in Monaghan or any one else, without specifically denying property in the bank, was foreign to the issue tendered. We think the demurrer was properly sustained.

At the trial, which was before the court, a jury being waived, the court found said bank entitled to the moneys in the hands of A. J. McBean & Co., and to $1,040.15 of the moneys in the hands of Ayer, and that the residue of the money in the hands of Ayer belonged to the firm of Monaghan & Rothschild; and it was thereupon ordered that the garnishees be discharged, and that the bank recover its costs.

The evidence of title to the railroad ties and cedar posts from the sale of which the money in question was realized is quite complicated, and we do not deem it our duty to review it at length. Suffice it to say that it shows a contract between Monaghan & Rothschild and the cashier of said bank, entered into by him for and on behalf of the bank, by which the bank was given alien in the nature of a mortgage on said ties and posts, to secure certain advances made by the bank to Monaghan & Rothschild; and it also appears, very satisfactorily, we think, that some time prior to the service of the attachment writ, the ties and posts from which the moneys awarded by the court to the bank were realized, were delivered into the possession of the bank in pursuance of said agreement, and by it shipped to said garnishees. The lien of the hank on the ties and posts, and the moneys realized therefrom, is thus shown to he superior to that of the attaching creditors.

The moneys found by the court to belong to the firm of Monaghan & Rothschild seem to have been the proceeds of certain ties and posts belonging to that firm and' shipped by them to Ayer. The proceeds arising from their sale of course belonged to the firm, and constituted an indebtedness from Ayer to them. The question arises whether such moneys can be reached by the writ of attachment in this case. The proceeding by garnishment which is here resorted to is a proceeding at law, and is subject to the same rules by which ordinary suits at law are governed. By it a creditor is enabled to recover money owing to his debtor for his own use, but such recovery must be had in what is in substance and legal effect a suit at law, in th e name of the debtor, against the party indebted to him. Shch proceeding can be maintained only where the debtor himself might sue and recover in his own name. It is manifest that Monaghan could not'sue for and recover at law a debt due to him and another in his own name. If he should attempt to do so, the nonjoinder of the other party in interest might be taken advantage of under the plea of non-assumpsit. If then he could not recover such indebtedness in his own name, no more can his creditors by process of garnishment.

Errors are assigned upon certain rulings of the court in relation to the admission of evidence, and also in refusing to hold certain propositions submitted by counsel for the plaintiffs as the law in the decision of the case. ■ We have examined the several matters complained of, and find no material error.

The judgment will be affirmed.

Judgment affirmed.


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    In the Matter of the Probate of the Will of Dorothea Bonse.
    1. Will—Witnesses.—As all the facts necessary to he established by the testimony of the subscribing witnesses to the will were fully and satisfactorily proved by evidence, entirely independent of the testimony of the deceased subscribing witness taken before the probate court, the admission of merely cumulative evidence, tending to prove the same facts, though incompetent, could not have prejudiced the contestant.
    2. Fraud and compulsion in execution of will.—Where the contestant of a will gave evidence tending to show that the testator at the time of the execution of the -will, was in a state of partial intoxication and had but an imperfect knowledge of the English language. Held, that to establish fraud, compulsion or other improper conduct, it is necessary to go further and show that the condition of the testator as to intoxication, or her ignorance of the language in which the will was written, was taken advantage of in some way, to induce her to sign the will.
    3. Witness—Interest.—Where a witness is interested as legatee in favor of and as heir adverse to a will, and the preponderance of her interest is in favor of defeating the will, she is, under the statute, incompetentas a witness;./. , ,
    Appeal from the Circuit Court of Coot county '; the Hon. John G-. Rogebs, Judge presiding.
    Opinion filed March 8, 1886.
    Messrs. Moses, FTewman & Reed, for appellant;
    that there was no sufficient proof of the execution of the will, cited Mitchell v. Mitchell, 16 Hun, 970.
    Mr. H. H. Andebson, for appellee.
   Bailey, P. J.

The will of Dorothea Bonse was admitted to prohate by the Probate Court of Cook county on the evidence of Leopold Wolf and William Berdell, two of the three subscribing witnesses, the other subscribing witness then being dead. From this order one of the parties in interest appealed to the circuit court, and pending the appeal, said William Berdell died. At the trial in the circuit court, Wolf, the only surviving witness, appeared and testified that he saw the testator sign the will; that both he and the other two subscribing witnesses were present; that he believed that the testator at the time of signing the will was of sound mind and ■memory ; that he signed as subscribing witness and that the signatures of the other subscribing ' witnesses were in the handwriting of said witnesses. Another witness who was the daughter of one and the sister of the other of the subscribing witnesses who were dead, testified to the death of said witnesses, and also that she was acquainted with the handwriting of both of said witnesses, and that their signatures to said will were genuine.

The foregoing evidence having been received, the court permitted the proponent of the will, against the objection and exception of the contestant, to read in evidence the testimony of William Berdell, taken before the probate court, at the time the will was admitted to probate, said testimony being in substance as follows:

“ My name is William Berdell; was twenty-four years old last June, and reside at Englewood. My occupation is that of painter and glazier. The signature to the paper now shown me, purporting to be the last will and testament of Dorothea Bonse, is mine. Mr. and Mrs. Bonse asked me to sign the paper. I do not Imow the first name of Mrs. Bonse; it was the lady who signed the will. I signed my name to said paper as a witness. I did not see Dorothea Bonse sign her name to said will, but she answered the question ; it was pointed out to her and she said she had signed it. She saw me sign my name to the paper. She asked me to sign it. Leopold Wolf, Mr. Bonse, ¡Nicholas Berdell and I were present, and the same persons were present when I signed my name to the paper. I couldn’t tell the date or how long ago it was; about three years ago. Dorothea Bonse at that time was a middle-aged lady. The condition of her mind and memory at the time she signed her name to said paper seemed to be all right. I believe she was of sound mind and memory at that time. I think she knew the contents of said paper before she signed it, because she said she did. She said she signed it. I don’t know whether it was read to her.”

The contestant thereupon gave evidence tending to show that the testator, at the time she executed said will, was in the habit of becoming intoxicated, and was then in a state of partial intoxication; also that she usually spoke the German language and had only a limited knowledge of the English, the language in which the will was written. On the question of her intoxication at the time of making the will, and also as to the extent of her acquaintance with the English language, the evidence was conflicting.

The jury by their verdict found that the paper produced, purporting to be the will of Dorothea Bonse, is the true last will and testament of said Dorothea Bonse, and the court after' denying the contestant’s motion for a new trial, rendered judgment on the verdict. The contestant brings the case to-this court by ajipeal.

The admission in evidence of the testimony of William Berdell, the deceased subscribing witness, taken before the probate court, is assigned for error, and is the principal ground upon which the contestant now asks for a reversal of the judgment. The objection urged to said testimony is, that it was taken in a proceeding purely ex parte, where there was no opportunity for cross-examination, and therefore that it does not fall within the rule which allows the testimony of a witness taken in a former jiroceeding between the same parties to be read in evidence after the death of the witness. We are inclined to the opinion that the evidence was not competent, but as we view the case, it will not be necessary for us to determine that question, since it is apparent that the contestant was in no degree prejudiced by its admission. •

In making' probate of wills, the facts to be established as well as the instrumentalities of evidence, are limited by the statute. Where the subscribing witnesses are living, the proof of all the facts necessary to establish prima facie the authenticity of the will must be made by the subscribing witnesses and by them alone. The second section of the Statute of Wills provides that two of the subscribing witnesses declaring on oath or affirmation before the county court, that they were present and saw the testator sign the will in their presence, or that the testator acknowledged the same to be his or her act and deed, and that they believed the testator to be of sound mind and memory at the time of signing or acknowledging the same, shall be sufficient proof to admit the same to record, provided that no proof of fraud, compulsion or other improper conduct be exhibited which, in the opinion of the court, shall be deemed sufficient to invalidate or destroy the same. Under this section it is held, that on appeal from an order allowing the probate of a will, the execution of the will and the fact that the testator was of sound mind and memory, must be proved by the subscribing witnesses, and that upon these facts no contest can be made by the production of evidence aliundeThe right to produce the testimony of other persons being limited to the matters named in the proviso, viz., fraud, compulsion or other improper conduct. Walker v. Walker, 2 Scam. 291; Andrews v. Black, 43 Ill. 256. Where a subscribing witness is dead, the substitute for his testimony, provided by the sixth section of the statute, is proof of his handwriting and such other secondary evidence as is admissible in courts of record to establish written contracts generally in similar cases. It thus seems, under the decisions above cited, that when the execution or acknowledgm ent of a will, and the sanity of the testator, is once established in either of the modes above mentioned, the only questions open to contest are those mentioned in the proviso in the second section of the statute.

In this case all the facts necessary to be established by the testimony of the subscribing witnesses were fully and satisfactorily proved by evidence entirely independent of the testimony of the deceased subscribing witness taken before the probate court. These facts being established and not open to controversy, we are unable to see how the admission of merely cumulative evidence tending to prove the same facts, though incompetent, could have prejudiced the contestaut. The result was and could have been in no way affected.

In looking through the evidence of said witness we find nothing which could have any material bearing upon the questions open to contest, and which were being contested. The only statement upon which any doubt can arise is the one in which the witness says he thought that the testator knew the contents of the will when she signed it, because she said she did. But it should be remembered that one of the facts to be established by the subscribing witnesses, and which for that very reason is not open to contest by the evidence of other witnesses, is, that the testator acknowledged the instrument to be her act and deed. Such acknowledgment implies, as a necessary element, an admission that the testator knows the contents of the instrument, for if she does not it can not be properly said to be her act and deed. Proof, then, of an admission by the testator that she knew the contents of the instrument, added nothing to her acknowledgment, and was really a part of it.

But we think it very doubtful, to say the least, whether the evidence introduced by the contestant was sufficient to raise any issue of fraud, compulsion or other improper conduct. All that was shown was, that the testator, at the time of the execution of the will, was in a state of partial intoxication, and that she had a very imperfect knowledge of the English language. But there seems to he no evidence that those circumstances were taken advantage of by any one, or that any attempt was made to deceive her as to the contents of the instrument or to obtain her signature through fraud, compulsion or other improper conduct. The soundness of her mind and memory, as we have seen, was not open to contest, and so far as evidence of her intoxication bore upon that question, it could not he considered. To establish fraud, compulsion or other improper con duct, it was necessary for the contestant to go further, and show that the condition of the testator as to intoxication, or her ignorance of the language in which the will was written, was taken advantage of in some way to induce her to sign the will. But, as we have said, there seems to be an entire absence of evidence tending to show anything of that kind.

Emma Bonse, a daughter of the testator, and a legatee under the will, was offered as a witness by the contestant, and on objection by the proponent, her evidence was excluded. We think her evidence was properly excluded. All the matters which the contestant proposed to prove by said witness related to facts occurring prior to the death of the testator. The witness was interested both as legatee and heir, hut her interest was by no means equally balanced. As legatee, her interest was in favor of sustaining the will, hut as heir it was adverse to the will. By the will the entire estate of the testator was devised to the testator’s husband for life, and at his death it was to be divided equally between the testator’s four children. The preponderance of the witness’ interest was in favor of defeating the will, since in that case she would take one fourth of the estate at once as heir, subject only to the dower interest of the testator’s surviving husband. Her interest, then, being adverse to the will, she was clearly incompetent under the statute.

As we perceive no error in the record, the judgment will be affirmed.

Judgment affirmed.»


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    Ira Tomblin v. Mary Irene Fish.
    Party -wall agreement.—Under the party wall agreement in this case. held, that the conveyance by the plaintiff of his lot prior to the appropriation or use of any portion of the party wall by defendant carried with it the entire wall, and the right to payment for the half of it when used by the defendant passed to the plaintiff’s grantees. Distinguished from the case of Holden v. Gibson, 16 Bradwell, 411.
    Error to the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Opinion filed March 31, 1886.
    This was an action of assumpsit, brought by Ira Tomblin against Mary Irene Fish, upon a party wall contract. The declaration alleges that on the 29th day of October, 1878, an agreement was made between said Ira Tomblin, of the first part, and Isaac B. Lyon, Betsey A. Lyon, his wife, and Butli C. Gunn, which said contract, after reciting that said Ira Tomblin was seized or possessed of a certain lot or piece of ground in the city of Chicago, known as 530 West Madison street, and that said Isaac B. Lyon, Betsey A. Lyon and Butli C. Gunn were seized or possessed of a certain other lot or piece of ground adjoining or contiguous to the lot above mentioned, and known as 528 West Madison street, and that it was the wish of said parties that a party wall sixteen inches in thickness for the basement, twelve inches for the first and second stories, and eight inches for the third story, should be built so that one half of such wall should stand on each of said lots, and that it was the intention of said Tomblin, party of the first part,' to r erect a building on his said lot, the east wall of which was to be used as a party wall by the respective parties, proceeded as. follows:
    “How, therefore, this indenture witnesseth, that-it is hereby mutually agreed by the said parties, in consideration of the premises, that the said party of the first part may so build and erect a party wall, as hereinbefore mentioned in thickness, on the east side • of the said ■ lot of the party of the first part, that the center of said party wall shall be on the division line of the said- lots hereinbefore mentioned, of the parties of the first and second parts respectively.
    “And this indenture further witnesseth that the said party of the first part does hereby covenant, promise, grant and agree, that the said parties of the second part, their heirs and assigns, shall and may at all times hereafter have the full liberty and privilege of joining to and using the corbel courses for bearings upon said partition above mentioned, as well below and above the surface of the ground, and along the whole length or any part of the length thereof, any building which he or they or any of them may desire or have occasion to erect- on the said Jot of the said party of the second part, and to sink the joists of such building or buildings into the said partition wall to the depth of said corbel courses and no further; provided always, nevertheless, and on this express condition, that the said party of the second part, his heirs and assigns as aforesaid, before proceeding to join any building to said partition wall, and before making any use thereof, other than using the chimney in said wall, or breaking into the same, shall pay or secure to -be paid unto the said party of the first part, his heiys and assigns aforesaid, the full moiety or one half part of the value of the said party wall, or so. much thereof as shall be joined to or used as aforesaid, which -value shall be the cost price at the time when such wall is to be used by the said party of the second part, and fixed, estimated and assessed by any competent architect or builder, upon whom said first and second parties may agree, and in case of a failure to agree upon any one person, then the parties hereto shall each select one person, and those two shall select a third person, the decision of two out of these three to be final and binding.
    And it is further agreed by and between the said parties, that if either of the above parties, their, or either of their, heirs and assigns, shall at any time hereafter desire to build a barn or extend the wall hereinbefore mentioned, the party so building may build and erect such wall or extension in the same manner as above specified, and the other party shall have the same liberty and privilege of joining and using such wall or walls, so built and erected as aforesaid, on complying with the same conditions as are hereinbefore required by the said party of the second part, as to the manner of joining to the wall above mentioned, and paying for the same.
    “And the said parties further agree and covenant, that if it shall hereafter become necessary to repair or rebuild the whole or any portion of the said wall or walls, the expense of such repairing or rebuilding shall be borne equally by them, their representatives, heirs and assigns, as to so much and such portion of said walls as the said parties, their heirs and assigns, shall or may use jointly.
    “ It is further mutually agreed between the said parties that this agreement shall be perpetual and at all times be construed as a covenant running with the land.”
    The declaration further alleges that, immediately after the making of said agreement and prior to January 24, 1883, the plaintiff erected a building upon his said lot, and in so doing, erected one wall of said building as a party wall upon the boundary line between said lots, in accordance with the terms of said agreement; that the interest of Ruth C. Gunn in said lot known as 528 West Madison street, which was a dower interest, afterward became terminated by her death; that on the 24th day of January, 1883, by an agreement in writing then entered into by Isaac R. Lyon and wife of the one part, and the defendant of the other part, the defendant agreed to purchase of said Lyon and wife the lot last mentioned, for the ' sum of $7,500, and to erect thereon a building of a specified description, making use of said party wall, the said Lyon and wife on their part agreeing to convey said lot to the defendant on the completion of said building, and to take back from her a mortgage for. the purchase money, together with the further sum of $2,500 to be loaned to her by said Lyon; that in pursuance of said agreement said Lyon and wife, on the 1st day of May, 18S3, conveyed said lot to the defendant; that since the 24th day of January, 1883, the defendant has been in possession of the last mentioned lot, and has used the whole of said party wall for the purpose of supporting said building erected by her on said lot; that one half the value of said party wall at the time it was used by the defendant was $715 ; that the plaintiff has always been ready and v illing and has offered and requested the defendant to have the value of said party wall estimated and assessed in the manner provided for in said party wall agreement, but the defendant refused and still refuses so to do, and denies that the plaintiff is entitled to any compensation whatever therefor.
    The defendants pleaded non-assumpsit, and also a special plea alleging, in substance, that after the erection by the plaintiff of his said building and said party wall on the line between said lots, to wit, on the 2nd day of October, 1879, the plaintiff conveyed said lot known as 530 West Madison street to Henry B eidler and Jacob Beidler, and that in March, 1883, and before the commencement of this suit, the defendant was compelled to pay and did pay said Henry Beidler and Jacob Beidler the sum of $713.50 for the right and privilege of joining to and .using said party wall, in pursuance and by virtue of said party wall agreement.
    To said special plei the plaintiff interposed a demurrer, wh ich being overruled, the plaintiff elected to abide by his demurrer, and judgment was thereupon rendered against him for costs.
    Messrs. Stiles & Lewis, for plaintiff in error;
    cited Gibson v. Holden, 16 Bradwell, 411.
    Mr. George P. Whitcomb, for defendant in error;
    cited Roche v. Ullman, 104 Ill. 11 ; Gibson v. Holden, 16 Bradwell, 411 ; Scott v. McMillan, 76 N. Y. 141; Cole v. Hughes, 54 N. Y. 444.
   Bailey, P. J.

This case, in our opinion, is clearly distinguishable from that of Gibson v. Holden, relied upon by counsel for the plaintiff in error. See 18 Chicago Legal News, 95; Also Holden v. Gibson, 16 Bradwell, 411. In that case the contract, as interpreted by the Supreme Court, constituted the owners of the adjoining lots joint proprietors of the party wall from the moment it was built. That interpretation resulted from various provisions which do not appear in the contract before us. It was there agreed that the wall which Holden proposed to build should continue to be a party wall forever, which the court held- to manifestly mean, from the time of its erection. It was further provided that said owners should share jointly in the expense of keeping, maintaining, repairing and rebuilding the wall, whether Armstrong, the other owner, made use of it or not. The amount to be paid by Armstrong was, not one half of the value of the wall at the time he chose to appropriate it, but one half of the cost of its erection. In the light of these provisions, the contract was held to be one in which Holden undertook to. advance the money and build a party wall for the joint benefit of himself and Armstrong, and of which Armstrong was to become at once invested, jointly with Holden, with the title and owneiship, one half of the cost to be repaid to Holden wdienever Armstrong or his grantee should make use of the wall, Holden in the meantime to have sole possession of the wall as security for such payment.

Hone of the foregoing provisions which so clearly distinguish the case of Gibson v. Holden from many of the cases involving party wall contracts, seem to be present in the contract now before us. This contract contains no language which constituted the owners of the adjoining lots joint proprietors of the party wall at the time of its erection. After reciting that it was the wish of both parties that a party wall of certain dimensions should be erected so as to stand one half on each lot, and that it was the intention of the plaintiff to erect a building on his lot, the east wall of which was to be used by said parties as a party Avail, the contract gives permission and license to the plaintiff to ¡)la.ce the center of the east wall of his building on the division line between said lots ; and it is then covenanted that the other party to the contract, his heirs and assigns, might use such Avail, upon the express condition, however, that before doing so, he or they should pay or secure to the plaintiff, his heirs or assigns, one half of the value of the wall or of so much of it as should be thus used. The amount to be paid for one half of the Avail Avas to be determined, not from its cost, but from- its value at the time of its appropriation by the adjoining owner. The liability r of such owner to contribute to the expense of repairing or rebuilding the wall was limited to so much or such portions of it as should be used by him, and consequently his liability to make • such contribution could not arise until after the appropriation of the wall, or some portion of it by him.

The distinctions here pointed out are fully recognized in Gibson v. Holden, in the following language: “Cases, therefore, where parties are, by the deed under which they take title, given one half of a wall as a party wall, when and upon condition of making payment, and cases in which the owner of one lot has licensed the owner of the adjoining lot to build a Avail for himself, resting one half of it on each lot, and reserving the privilege of thereafter purchasing one half of the wall as a party wall, are not analogous. In all such cases the title to the whole wall may be regarded as appurt enant to the lot of the builder, and so passing by every conveyance of it, until the severance of the half by the payment of the purchase money. The sale of the half of the wall does not occur, nor the title to it pass in those cases, until the jDayment is made, and so, necessarily, it is constructively a sale by the assignee of so much of the wall. His right to the purchase money is not because he is the assignee of a covenant running with the land, but because he is the vendor of so much of the wall.”

The present case comes clearly within the rule thus laid down. The pica, the truth of which is admitted by the demurrer, alleges a conveyance by the plaintiff, of his lot, prior to the appropriation or use of any portion of the party wall by the defendant. Such conveyance carried with it the entire wall, and the right to payment for the half of it when used by the defendant passed to the plaintiff’s grantees. It follows that the plea presented a good defense, and that the demurrer was properly overruled.

Judgment affirm,ed.


author: McAllister, J.

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    William H. A. Brown v. Carrie L. Brown.
    1. Bill for divorce—Bigamy.—In a bill for divorce brought on the ground that the appellant, had a wife living at the time of his marriage with appellee, it is proper for the court to make an order requiring appellant to pay temporary alimony and solicitor’s fees.
    2. Statute.—The court is of opinion that section 15 of the Divorce Act not only in terms applies to all cases of divorce, but that it was the intention of the legislature to confer upon the court the discretionary power to allow solicitor’s fees and temporary alimony in any case where a decree of divorce is authorized by section one.
    Appeal from the Superior Court of Cook county; the Hon. Hehrt M. Shepard, Judge, presiding.
    Opinion filed March 31, 1886.
    Messrs. Stiles & Lewis, for appellant;
    that the court had no power to award temporary alimony and solicitor’s fees, cited Bird v. Bird, 1 Lee, 621; Browning on Marriage and Divorce, 228.
    Mr. W. S. Johksos, for appellee;
    cited Schouler on Husband and Wife, § 529; Browne’s Dig. Divorce, Part 1.
   McAllister, J.

This was a hill for divorce brought in the court below by appellee against appellant, on the ground that the latter had a wife living at the time of his marriage to the former. The bill contains all the requisite allegations an d shows a good case for a divorce under the laws of this State. After answer by defendant and a full hearing upon affidavits by and on behalf of the respective parties, the chancellor made an order requiring defendant to pay complainant one hundred dollars as a reasonable fee.for her solicitor. This appeal is from that order. We have examined the proofs upon which that, order was based and think it shows a probable cause for a divorce. Complainant was not required to show to the satisfaction of the court that she was entitled to a decree for divorce. It was enough that she had a probable ground. Jenkins v. Jenkins, 91 Ill. 167. By section one of the Divorce Act, it is enacted : li That in every case in which a marriage has been or hereafter may be contracted and solemnized between any two persons, and it shall be adjudged, in the manner hereafter provided, that either party at the time of marriage was and continues to be naturally impotent, or that he or she had a wife or husband living at the timeof such ma/rriat e, etc., it shall be lawful for the injured party to obtain a divorce and dissolution of such marriage contract.”

Appellant’s counsel contend that the marriage being absolutely void, our statute confers no authority upon the court to allow either temporary alimony or solicitor’s fees. Under the first section, this is clearly a case for a divorce as made by the bill. Section 15 says: “ In all cases of divorce, the court may require the husband to pay to the wife, or pay into court for her use during the pendency of the suit, such sums of money as may enable her to maintain or defend the suit,” etc. The counsel say that the marriage alleged in the bill being absolutely void it created no such relation as husband and wife; hence it could not have been intended by the legislature to apply section 15 to such a case, and that this view is strengthened by the provisions of section 19, which expressly authorize the giving alimony when a divorce is granted to a woman who shall in good faith have intermarried with a man, having at the time of such marriage another wife or wives living.

We are of opinion that section 15, aforesaid, not only in terms applies to all cases of divorce, but that it was the intention of the legislature to confer upon the court the discretionary power to allow solicitor’s, fees and temporary alimony in any case where a decree of divorce is authorized by said section one. The words “ husband” and wife ” used in section 15, are words of designation. They are sometimes from necessity or convenience employed in that sense when there is no lawful? but only a defacto relation of husband and wife subsisting. It is so in the statute defining bigamy. “ Whosoever, having a former husband or wife living, marries another person or continues to cohabit with such second husband or wife in this State, shall be deemed guilty of bigamy.” We think the authority existed to make the order .and it should be affirmed.

Order affirmed.


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    Garfield Manufacturing Co. et al. v. John H. McLean.
    Negligence.—The rule of comparative negligence has no application and can not be properly invoked except in cases where the party injured observed ordinary care with reference to the particular circumstances involved for his personal safety.
    Appeal from the Superior Court of Oook county; the Hon. Hollín S. Williamson, Judge, presiding.
    Opinion filed March 31, 1886.
    This was an action by appellee, McLean, against the Garfield Manufacturing Company and the city of Chicago, to recover for personal injuries received May 6, 1884, by plaintiff, by reason, as it was alleged, of negligence on the part of defendants in not having sufficient guards around areas to a certain building in possession of said Garfield Manufacturing Company, which abutted upon a public alley. There was a trial resulting in a verdict and judgment against the defendants for fifteen hundred dollars besides costs, and they bring the case to this court by appeal.
    The evidence is preservéd by bill of exceptions from which it appears that the building in question is situated and fronting upon the north side of West Washington" street, in the city of Chicago, and extends north seventy-six feet, with a public alley eighteen feet wide running along the west side of the building north from said Washington street to Eandolph, upon which the west side of the building abuts, and that on that side of the building there Avere in all eight openings or areas for light and air, the north one of which was four feet dee p, three feet and nine inches in length, and' twenty-two inches wide. This was used for putting coal into the building; the- others, which were similar to it, Avere for light and air-It appears that at the time in question the plaintiff, who Avas engaged in taking his goods from a saloon which he had been occxipying, came with a load about eleven o’clock at night to be put into the rear of a Avarehouse situated clirectly north of the Garfield Manufacturing Co.’s building, the rear entranc e to which warehouse was from said alley, and that the wago n or truck stood near the rear of said Garfield building and not far from said north area, and having been partly unloaded some difficulty arose about paying the warehousemen, and this caused plaintiff to bestir himself to attend to it, and in moving about he fell into said north area and was hurt; that there was no barrier to prevent, or other guard about said area. The defendants introduced evidence tending to show that plaintiff was greatly under the influence of liquor, and that the injury was the result of his own carelessness. But upon that question there was a conflict of testimony.
    The corad at the instance of the plaintiff gave to the jury, among others, the following instructions:

      “ 5. Even though the jury should believe from the evidence that plaintiff was himself guilty of some degree of negligence at the time the injury occurred, that, of itself, does not prevent his maintaining and recovering in an action against the party or parties whose negligence (if there was such) directly occasioned the injury, provided the jury believ-from the evidence that in comparing the negligence of plaint iff with that of the defendants or either of them (if such there was), that the fault or negligence of plaintiff (if there was such) was slight, and that the fault and negligence of the defendants or either of them (if such there was) was gross.”
    “6. The jury are instructed that in this case two parties are sued. The grounds upon which each defendant party may be found guilty are given in the foregoing instructions, and acting upon those instructions, the jury may, if the evidence so warrants, find both parties guilty or only one of them guilty, or may find neither guilty. But if under those instructions and all the evidence in this case, the jury find both parties guilty, as alleged in the declaration filed in this case, then there should be one joint and entire verdict, and one and the same sum should be assessed as damages against both.”
    Error is assigned upon the giving those instructions and that the damages are excessive.
    Messrs. Lyman & Jackson and Mr. Hempstead Wash-burns, for appellants.
    Mr. John Lyle King, for appellee.
   McAllister, J.

The review of the cases in this State and the discussion which the doctrine of negligence in most of its phases received in the Supreme Court, in the elaborate and carefully prepared opinion of Mr. Justice Seholfield in the recent case of the Calumet Iron and Steel Co. v. Martin, Adm’x, Northwestern Reporter, Vol. 3, p. 456, seem to us to establish beyond doubt or question, the correctness of the proposition that the rule of comparative negligence has no application and can not be properly invoked except in cases where the party injured observed ordinary care with reference to the participar circumstances involved, for his personal safety; that the exercise of such care is an indispensable prerequisite to a right of recovery in any case upon the ground of mere negligence; that having exercised such care, that is, ordinary care, the party injured will not be defeated by mere slight contributory negligence on bis part, if that of the defendant when compared with bis shall be gross.

Tested by these rules, the fifth instruction given for plaintiff below, as emphasized by the sixth, was clearly erroneous and misleading. It contains no hypothesis as to the exercise of ordinary care by the plaintiff. Chicago & N. W. Ry. Co. v. Thorson, 11 Bradwell, 631, but invoked and applied the rule of comparative negligence.

The evidence being conflicting upon the question of such care, and it being extremely doubtful if it preponderated at all in favor of plaintiff, we would have been compelled to reverse even if the damages had been moderate. Bnt they are not; they are large in proportion to the injury or any fault on the part of the defendants claimed to have caused it.

The judgment will be reversed and the cause remanded.

Judgment reversed.