a fee conditional at common law, which will be defeated by her remarriage. If she conveys the fee, her grantee takes it also subject to being defeated by her remarriage; but, if she dies without having remarried, the fee descends to her heirs, and the devise over is defeated."

The estate taken by the appellee widow is a fee, because, in the absence of remarriage, it will endure forever in her and her heirs. The restriction against her remarriage qualifies her estate, and it is therefore a qualified or base fee. Until determined by her remarriage, she has the same rights and privileges over the estate as if it were a fee simple absolute, save that the determinable quality of the estate will follow any conveyance thereof by her. Wiggins Ferry Co. v. Ohio & Mississippi Railway Co., 94 Ill. 83; Lombard v. Witbeck, 173 Ill. 396, 51 N. E. 61; Chapman v. Cheney, 191 Ill. 574, 61 N. E. 363; Gannon v. Peterson, 193 Ill. 372, 62 N. E. 210, 55 L. R. A. 701; 11 Am. & Eng. Ency. of Law (2d Ed.) 368, 369. It did not appear from the bill that the appellant had any present interest in the real estate. The contingency upon which he may succeed to an interest in the real estate has not happened, and may never happen.

The demurrer was properly sustained. The decree is affirmed. Decree affirmed.

KNICKERBOCKER ICE CO. v. BENEDIX. (Supreme Court of Illinois. Dec. 16, 1903.) STREET RAILROADS-VEHICLE APPROACHING CAR-RIGHT OF WAY-ACTION FOR PERSONAL INJURIES INTOXICATION OF DEFENDANT'S SERVANTS MODIFICATION OF INSTRUCTION.

1. Where a street car going at a reasonable speed will reach a point where its line of travel is intersected by that of an approaching vehicle before the vehicle does, the street car has the right of way, which those in charge of the car have the right to assume the drivers of the vehicle will regard; and they are not negligent in failing to stop the car so as to avoid a collision.

2. In an action for personal injuries occasioned by collision between a street car and an ice wagon driven by intoxicated persons, the defendant ice company's requested instruction as to the effect of the intoxication of its servants was modified by the court adding that the jury had a right, in arriving at their verdict, to consider whatever the evidence might show as to intoxication. This modification was criticised as permitting the jury to consider the evidence of intoxication in estimating the amount of damages. Held that, as no punitive damages were sought, the objection was untenable.

Appeal from Appellate Court, First District. Action by Emil Benedix against the Knickerbocker Ice Company. From a judgment of the Appellate Court, First District, affirming a judgment for plaintiff, defendant appeals. Affirmed.

This is an action on the case, brought by appellee in the superior court of Cook county to recover damages for a personal injury occasioned through the alleged negligence of

appellant. A trial before a jury resulted in a verdict for $2,000 in favor of appellee. Judgment was entered on the verdict, and an appeal was taken to the Appellate Court for the First District, where the judgment of the superior court was affirmed, and the case is now before this court on appeal from the Appellate Court.

Appellee received the injuries complained of in this suit on May 30, 1900, in the city of Chicago, while engaged in the performance of his duties as a street car conductor for the Chicago Union Traction Company. The car was running west on North avenue, in that city, and when about 100 feet from Leavitt street, an intersecting street, the appellee rang a bell on the car as a signal to the motorman to stop at Leavitt street for the purpose of allowing passengers to get off the car. The car commenced to slacken speed. It had almost crossed the intersection of the streets, when an ice wagon belonging to the appellant, drawn by two horses, coming south on Leavitt street, ran into the car, and the pole of the wagon struck the plaintiff's leg with sufficient force to break it and seriously injure him. The car contained no aisle running lengthwise, and it was necessary for appellee, in performing his duties as conductor, to pass from one end of the car to the other along a footboard running outside the car its entire length, and provided for that purpose. Appellee, immediately prior to the time of receiving the injury, was on the north footboard of the car, with his face turned south, collecting fares. He testified that he heard the rumbling of a wagon, and, looking backward, saw the wagon, about 20 feet away, coming rapidly south on Leavitt street toward the car; that he tried to jump forward out of the way, but was struck just as he jumped. The evidence tends to show that the horses were being driven so fast that the driver was unable to stop them in time to avert the injury; that, just before reaching Leavitt street, the motorman sounded a gong on the car to give warning of the approaching car, and that the car was moving slowly when struck by the wagon pole. The wagon weighed 3,700 pounds, and the ice it contained weighed 2,200 pounds. Three employés of appellant, one of whom was driving the horses, were in the wagon at the time it collided with the car, and the evidence tends to show that these employés were intoxicated.

Wilfred H. Card and Quinn O'Brien, for appellant. Gemmill & Foell, for appellee.

SCOTT, J. (after stating the facts). Defendant below, at the conclusion of plaintiff's evidence, and again at the conclusion of all the evidence, moved the court to instruct the jury to return a verdict for the defendant. Both motions were overruled, and appellant presents to this court, as a matter of law, the question whether the evidence sustaining the

cause of the plaintiff below, with the reasonable inferences to be drawn therefrom, is sufficient to warrant a verdict for the plaintiff.

A considerable portion of appellant's brief and argument is devoted to establishing the fact that either appellee or the motorman could have seen the approaching wagon and stopped the car, and thereby avoided the accident. It may be conceded that this is true; but this fact does not in any way tend to show that appellant was not guilty of negligence, or that appellee was guilty of negligence. As the car approached the point where the line of travel it was following would intersect the line of travel the appellant's team was following it was traveling at a reasonable rate of speed, as shown by the evidence. Traveling at that rate of speed, it reached the intersection first. There was nothing to prevent appellant's driver seeing the car and perceiving that it would reach the point of intersection first. Under these circumstances it was the duty of the driver of the team, and not the duty of those in charge of the car, to stop; and the failure of the driver to stop his team under the circumstances is the negligence of appellant.

A large number of cases are cited in reference to the duty of those in charge of a street car to look ahead as they approach the street crossing, for the purpose of avoiding accidents to persons or vehicles using the crossing. These are all cases where the street car company has been made defendant, and have no application here. None of them go to the extent of holding that it is the duty of the conductor or motorman to stop a car for the purpose of permitting a vehicle traveling at right angles with the car to pass over the intersection first, when the car, by reason of its nearness to the point of intersection, has the right of way. The evidence tended to show that immediately preceding the collision the team of the appellant was traveling at a higher rate of speed than was the car. Those in charge of the car had the right, however, to assume that those in charge of the team would recognize the superior right of the car and stop the team before it ran into the car. The court properly refused the peremptory instruction to find for the defendant.

The only other error presented was the modification of appellant's ninth instruction. This instruction, as requested, read as follows: "The jury are instructed that the mere fact, if it is a fact, that the servants of the ice company were intoxicated, would not make the defendant liable, provided you believe from the evidence that at and just before the time of the accident said servants were using ordinary care in driving the team in question. And even though you should believe that said servants were intoxicated, you should find the defendant not guilty if you also believe from the evidence that the plaintiff himself failed to exercise reasonable care to prevent the accident, and that, if he

had exercised such care, the accident would not have occurred." The court modified it by adding thereto the following: "But in arriving at your verdict you have a right to consider whatever the evidence may show as to whether or not the servants of the defendant were intoxicated, together with all the other evidence in the case." The objection made to this modification is that it tells the jury that in arriving at their verdict they may consider the evidence of intoxication. This is said to be too broad; that the instruction at least should do no more than advise the jury that in determining, defendant's liability they had a right to consider the evidence on that subject, the reasons assigned being that determining the amount of damages to be allowed was a part of the process of arriving at a verdict, and that the jury were therefore improperly told that they might consider the evidence of intoxication of appellant's driver in fixing the amount of damages. If this were a case in which punitive damages had been claimed, we can see that this instruction might have this effect; but a careful examination of the record shows that it was tried by both sides on the theory that the jury could award to the plaintiff only the actual damages sustained by him. So far as appears from the record, the question of punitive or vindictive damages was not suggested in the course of the trial. We do not think, under these circumstances, that the jury would understand from this instruction, as modified, that they were authorized to increase the amount of their verdict if they found from the evidence that appellant's driver was intoxicated. While the consideration of the evidence on the subject of intoxication might well, by the language of the instruction, have been limited to the deliberations of the jury in determining defendant's liability, we do not think the jury, under the circumstances of this case, could have given it any weight in fixing the amount of their verdict.

The judgment of the Appellate Court will be aflirmed. Judgment aflirmed.

PEOPLE ex rel. SMITH, Treasurer, v. CHICAGO & A. RY. CO.

(Supreme Court of Illinois. Dec. 16, 1903.) TAXATION BRIDGE TAXES EXTRA ASSESSMENT BOARD OF AUDITORS CONSENT STATUTORY REQUIREMENTS-COMPLIANCE.

1. The statute entitled "Roads" (section 1 ), as amended 1901 (4 Starr & C. Ann. St. 1902, p. 1180, c. 121, par. 6), provides that if, in the opinion of the highway commissioners, a greater levy than 60 cents on each $100 of property is needed, they may certify the same to the board of town auditors and the assessor, and with the consent of a majority of them in writing, "definitely and specifically directing the particular purpose for which the same shall be applied." an additional levy at a certain rate may be made. Section 14 prior to the amendment authorized the commissioners, if in their opinion a greater levy was needed, "in view of

some contingency," to certify the same to the board, and authorized the additional levy if a majority of them should consent in writing. Held, that a certificate and consent referring to an additional levy, "in view of the contingency of floods, that building and repairing bridges," was insufficient to authorize the additional levy.

Appeal from McLean County Court; R. A. Russell, Judge.

Objections by the Chicago & Alton Railroad Company to the application by the people, on the relation of the treasurer of McLean county, for judgment against objector's property for road and bridge taxes. From a judgment sustaining the objection, the treasurer appeals. Affirmed.

Welty, Sterling & Whitmore, for appellant. F. D. Tracy and A. E. DeMange, for appellee.

BOGGS, J. The appellee company filed objections to the application of the treasurer of McLean county for judgment against its property for all road and bridge taxes levied in the town of Lexington for the year 1902 above the levy of 60 cents on each $100. The objections were sustained, and the treasurer has appealed.

The amount which may be levied for road and bridge purposes and for outstanding orders is restricted by the provisions of section 13 of the statute entitled "Roads," etc., to 60 cents on each $100 of taxable property. Section 14 of the same chapter, as amended at the session of the General Assembly of 1901 (4 Starr & C. Ann. St. 1902, p. 1130, c. 121, par. 6), authorizes an additional levy of 40 cents on each $100 to be made by the highway commissioners, and is as follows: "If, in the opinion of the commissioners, a greater levy is needed, they may certify the same to the board of town auditors and the assessor, a majority of whom shall be a quorum, and with the consent of a majority of this entire board given in writing, definitely and specifically directing the particular purpose or purposes to which the same shall be solely applied, an additional levy may be made of any sum not exceeding forty cents on the $100 of taxable property of the town. If the commissioners shall use any part of the funds so authorized by said written consent for any other purpose than that therein specified without the further written consent of said board, they shall be deemed to have illegally appropriated the same, and shall be liable accordingly."

The making by a majority of the body composed of the board of auditors and the assessor of the written consent set forth in section 14 is jurisdictional, and a condition precedent to the right to levy the tax, and, in the absence of strict compliance with the requirements of the statute as to such consent, any special road tax levied will be void. Chicago & Northwestern Railway Co. v. People, 200 Ill. 141, 65 N. E. 705. The certificate of the highway commissioners and the consent of the board of town auditors and the assessor, relied upon as authority,

under said section 14, for the additional tax levy of 40 cents on each $100 of the property of the appellee company and other taxpayers in said town of Lexington, in 1902, were as follows:

"State of Illinois, McLean Co., Town of Lexington, ss. Board of Com'rs of Highways. It is hereby certified to the board of town auditors and the assessor of the town of Lexington, that it is the opinion of the commissioners of highways of said town a greater levy than sixty cents on each $100 is needed in said town in view of the contingency floods, that building and repairing bridges, not exceeding one hundred cents. Given under our hands this 30th day of August, A. D. 1902. William Edwards, D. D. Ralston, Howell Rowland, Commissioners of Highways."

"State of Illinois, McLean Co., Town of Lexington, ss. It having been certified to us, the board of town auditors and assessor of the town of Lexington, by the commissioners of highways of said town, that a greater levy than sixty cents on each $100 is needed in said town in view of the contingency of floods, that building and repairing bridges, consent is hereby given for an additional levy on the property of said town for the purpose aforesaid, not exceeding one hundred cents. Given under our hands this 2d day of September, 1902. L. B. Strayer, M. F. Bray, J. P., Wm. N. McNaught, Board of Town Auditors. Joseph Enoch, Assessor."

The county judge correctly held the certificate of consent of the board of town auditors and the assessor did not definitely and specifically direct the particular purpose or purposes to which the levy should be applied, as required by said section 14, as amended in 1901. The certificate of consent recites that the additional levy is needed "in view of the contingency of floods, that building and repairing bridges." Section 14, as it existed prior to the amendment in 1901, authorized the commissioners of highways, if in their opinion a greater levy than 60 cents on the $100 is needed "in view of some contingency," to certify the same to the board of town auditors and the assessor, and authorized the additional levy to be made if the board of town auditors and the assessor, or a majority of them, should "consent in writing." The amendatory act required, not that it shall appear to the commissioners of highways "that in view of some contingency" an additional levy was desired, as did the prior act, but that the levy should only be made for a "particular purpose or purposes," to be definitely and specifically set forth in the written consent of the board, composed of the town auditors and the assessor, or a majority of such board. In view of the statute as it existed prior to the amendatory act and the change effected by the amendment, the evil intended to be remedied by the latter enactment is unmistakably manifested. The legislative intent in adopting the amendatory act was to require the auditors and the as

sessor to consider and determine that an ad'ditional levy was necessary in order to proride a special fund needed to be expended for the accomplishment of some particular, definite purpose or purposes, and to require that the auditors and the assessor should not only consent, in writing, to the levy of the additional tax, but should, in such written consent, definitely and specifically direct the particular purposes to which the fund produced by the additional levy should be "solely applied." The certificate of consent to the additional tax states that consent is given "in view of the contingency of floods, that building and repairing bridges." The phrase not only falls short of that definite and specific direction as to the purposes of the taxation required by the statute, but seems to be incomplete, and, if not meaningless, still uncertain instead of definite, and general instead of specific.

The judgment of the county court is affirmed. Judgment affirmed.

1. In the absence of legislation regulating the compensation of a receiver, the court appointing him has the right to determine his compensation.

2. The court, in fixing the amount of a receiver's compensation, may, in connection with the evidence on the subject, take into consideration its personal knowledge of the nature, character, and value of the services.

3. On appeal from an order fixing the compensation to be allowed a receiver, the appellate court will ordinarily defer to the judgment of the court appointing the receiver, and not disturb it unless manifestly wrong.

4. Where a receiver had charge for about 18 months of the business of a medical and surgical association, the business of which was the treatment of the crippled and deformed, and disbursed about $26,000, and managed the busiDess honestly and economically, an order allowing him 10 per cent. on the disbursements as compensation was not so manifestly wrong as to justify an appellate court in disturbing it.

Appeal from Appellate Court, First District.

Action by Frank H. Culver against the H. R. Allen, Sr., Medical & Surgical Association. From a judgment fixing plaintiff's compensation as receiver, he appeals. Affirmed.

Henry W. Leman, for appellant. Frank Lynch, for appellee.

HAND, C. J. This is an appeal from a Judgment of the Appellate Court for the First District affirming a decree of the superior court of Cook county fixing the compensation of appellant as receiver in the case of Max Frost against the H. R. Allen, Sr., Medical & Surgical Association. The only evidence before the court at the time the compensation

1. See Receivers, vol. 42, Cent. Dig. §§ 391, 396.

was fixed was the reports of the receiver before that time filed and the petition asking the court to fix the receiver's compensation, which on the hearing seem to have been conceded to correctly state the facts therein set forth, from which it appeared that the appellant acted as such receiver for about 18 months; that he had devoted his entire time to the business of the association; that the business of the association was the treatment of the crippled and deformed; that he disbursed $26,073.52; and that the business of the association was successfully, honestly, and economically managed by the appellant. He asked $5,400 for commissions, and the court allowed him $2,607.35, or 10 per cent. on the disbursements.

The rule of law governing this case is that, in the absence of legislation regulating the compensation of a receiver, the court in which a receiver is appointed has the right to determine the amount that shall be paid to him for his services; that the court, in fixing a receiver's compensation, may, in connection with the evidence before it, take into consideration its personal knowledge of the general nature and character and value of the services alleged to have been rendered; and that a court of review will ordinarily defer much to the judgment of the court that made the appointment, and will not disturb its action in fixing a receiver's compensation unless the decree is manifestly wrong. Heffron v. Rice, 149 Ill. 216, 36 N. E. 562, 41 Am. St. Rep. 271; Olson v. State Bank, 72 Minn. 320, 75 N. W. 378; 23 Am. & Eng. Ency. of Law (2d Ed.) p. 1103; 17 Ency. of Pl. & Pr. p. 843. We are unable to say, from the evidence found in the record, that the decree of the superior court fixing the receiver's compensation is manifestly contrary to the weight of the evidence. The judgment of the Appellate Court will therefore be affirmed.

Judgment affirmed.

CORNING & CO. v. WOOLNER et al. (Supreme Court of Illinois. Dec. 16, 1903.) STREETS-VACATION-ESTOPPEL-DEDICATION

-USE BY PUBLIC-EVIDENCE

-SUFFICIENCY.

1. Evidence considered, and held to support a finding that a certain street had been constantly used by the public as a public street from the time it was platted.

2. Where, after a street is laid out, and all the lots abutting thereon are conveyed by metes and bounds, the grantees, though they own all the lands abutting on both sides of such street, cannot, on failure of acceptance by the proper authorities or the public of the dedication of such street, lay claim to the fee thereof.

3. Where a street was by the original owner designated on the plat with reference to which subsequent lots and tracts have been sold, and private rights would be affected by its vacation or obstruction, there is an implied covenant that such street shall be forever open to the public, and free from any claim or interference by the original owner and author of the plat.

and those claiming under him, as between him or his privies in estate, and those buying lots on the faith of such plat, or with reference thereto.

4. A plat manifesting an intention of the author to dedicate to public use the designated streets thereon, whether a good statutory plat or not, is sufficient, as a common-law plat, to estop such original owner and author of the plat, and those claiming under him, from denying or rescinding such dedication, though it was not accepted by the public authorities.

5. Where one who plats a tract of land, designating streets thereon, and thereby causes others to act on the presumption that the streets designated are to be used by the public, he and his privies in estate are estopped from afterwards denying that such streets are for the use of the public, and claiming the right to obstruct or vacate them to the injury of any persons who have been led to act on the faith of that position.

Appeal from Circuit Court, Peoria County; T. N. Green, Judge.

Bill by Adolph Woolner and another against Corning & Co. From a decree for plaintiffs, defendant appeals. Affirmed.

Stevens, Horton & Abbott and Winslow Evans, for appellant. Page, Wead & Ross, for appellees.

STREET

་

2

3 4

36

36

5

YWIDE

6 7 8 9 10 11 12 13

36 36 36 36 36 36 36 36 36 37 CENTRE STREET

PLAT OF PART OF BLOCK 7.

STONE

STORE

JACKSON

STREET "

STONS

STREET STONE

100

700

100

28 3

29

3

56

2

27

55

3

26

25

24

Cowell, in making his plats, in no way changed or altered the streets indicated on the Moffat plat. He did, however, widen the alley in block 3, and designated it as Seneca street, and located an alley midway between that street and Center street. After such platting, Cowell proceeded to sell the lots, and in 1860, by two separate deeds, Cowell and wife conveyed to complainant Christian Tuefel, by the name of Christian David, lots 11, 12, 16, and 17 in Cowell's subdivision of block 7. The grantee immediately entered into possession of said premises, built upon and improved the same, and they have ever since been occupied by him and his family as a homestead.

On December 9, 1875, Aquilla Moffat conveyed to said complainant Christian Tuefel, by metes and bounds, a piece of ground containing about 12 acres, and directly south of the southeast portion of his plat of Lower Peoria, the location of which tract, with reference to the Moffat plat of Lower Peoria, is illustrated by the following map: