City of East St. Louis v. Lockhead.

continuously fall and blow from said bridge to and upon said hotel building; that the travel is continuous and disagreeable, and renders the occupancy of the premises uncomfortable and unhealthy, and the same were and still are violently shaken, and the building directly and violently damaged, and the property lessened in value.

Appellant contends, that as the lot and hotel do not front or abut on Crook Street, upon which the approach is constructed, the damages suffered are necessarily so remote, contingent and consequential, that no compensation can be allowed. We do not understand the fronting or abutting of the lot is the test of liability. The law only requires there should be a direct, immediate physical injury. In Stone v. F. P. & N. W. R. R. Co. 68 Ill. 394, it was held that if smoke and cinders were cast and thrown from the engines and locomotives of the company, in and upon the residence of Stone, by means whereof his property was damaged, he was entitled to a recovery. The circumstance in that case-the residence fronted on the street over which the railroad was constructed-was altogether fortuitous, and not at all controlling. If the premises are adjacent, and lie so close or near as that a direct physical injury is done them, this is all the rule requires. We think, however, the verdict and judgment in this case are not supported by the evidence, and that the damages assessed are grossly excessive. That in a proper case the city as well as the bridge company would be responsible for resulting damages, is decided in City of Pekin v. Brereton, 67 Ill. 477, and City of East St. Louis v. Hackett, 85 Ib. 382. But it must be understood that when the appellant city authorized the bridge company to construct this approach, it only rendered itself liable for the necessary, usual and natural consequences of its act, such as it might reasonably foresee would probably result from the license it granted. In the suit against the City of Pekin, the injuries were of this character, and in Hackett's case the averment was the falling of dirt and dust was caused by teams and wagons passing over the bridge approach.

In the case at bar, the testimony of Livingston is that "baskets full of dust are thrown by the employes of the

City of East St. Louis v. Lockhead.

bridge company from the approach, and much of this dust and dirt is taken by the wind north on to my property; the flying dust fills the houses and windows." The city cannot be held for the injury thus occasioned, as it was not a probable and natural result from the building of the bridge. The city could not have anticipated this willful and reprehensible conduct of the employes of the bridge company, in their disposing of the dirt and dust accumulating on the roadway of the bridge, instead of gathering it up and carting it off. So far as the premises are damnified by dust blown from the roadway of the bridge, appellant is answerable. But the injury thus occasioned is probably insignificant, as the distance is quite considerable, and the evidence shows there is a battened railing four and a half feet high on the outside of the wagon-track, and Phillips, who lived in the house from July, 1872, to to June, 1877, testifies that dust from the bridge never attracted his attention, and he and Mitchell both testify most of the dust on the premises comes from Front street; and, we may add, there is no evidence whatever in the record as to smoke and cinders from the bridge.

The evidence of damage to the premises from the shaking of the building, is still more unsatisfactory. It is true, it appears that heavy teams and coal-wagons over the upper roadway, and heavy coal, freight and cattle trains over the lower roadway, occasion vibrations, which extend to and can be felt in the building; but it does not appear from the testimony, either the walls or plastering of the hotel have been cracked thereby, or other tangible injury done.

The hotel property has greatly depreciated in value since the building of the bridge, possibly from $35,000 or $40,000 to $10,000. As we read the testimony, this has been occasioned almost or quite altogether by the general depreciation in the values of real estate, caused by the business depression all over the country, and by the fact that before the building of the bridge, this hotel was directly in the line of travel, and in the immediate neighborhood of a large transfer business, which travel and business have now availed themselves of the superior facilities for communication with St. Louis, afforded by this

Ledford v. Weber.

great bridge. It is plain, depreciation in value thus occasioned cannot be considered in awarding damages.

We are of opinion the points made by appellant in its motion for a new trial, that the verdict was not warranted by the law and the evidence, and that the damages were excessive, should have been allowed, and that the Court erred in overruling that motion, and in rendering judgment on the verdict. The judgment is reversed, and the cause remanded. Reversed and remanded.

JAMES LEDFord et al.

V.

HERMAN G. WEBER, use, etc.

1. REPLEVIN-SUIT ON BOND-DEFENSES.-In a suit upon a replevin bond for failure to return property, where the defendants claim title by purchase under an execution sale, it is necessary, in order to support such title, for them to prove a valid judgment and an execution issued thereon.

2. VOID JUDGMENT-FAILURE TO SERVE SUMMONS IN TIME.-A summons issued by a justice must be served at least three days before the trial; and where the return of the constable showed a service only two days before the trial, the justice had no jurisdiction, and the judgment was absolutely void. 3. AMENDING RETURN ON SUMMONS.-In a collateral issue in the Circuit Court, as upon replevin of goods levied upon, it is error to allow an amendment of the return upon the summons in the original suit before the justice upon which judgment had been rendered. The Circuit Court has no authority to amend a return upon process issued from another and different tribunal, in a suit between other parties, which has been finally disposed of.

4. EVIDENCE-HUSBAND AND WIFE.-A husband is a competent witness in behalf of the administrator of his deceased wife in proceedings relating to her separate property.

5. EVIDENCE OF FRAUD.-Evidence that a conveyance of land, and the execution of a certain chattel mortgage, were made for the sole purpose of hindering and delaying creditors, if otherwise competent, is admissible.

6. NOTICE OF TRIAL OF RIGHT OF PROPERTY-WAIVER OF IRREGULARITIES IN SERVICE.—A notice by a claimant, of trial of the right of property, where no trial is had, is not an admission of the validity of the judgment, and antecedent proceedings, in another or subsequent suit.

7. ESTOPPEL.-The fact that the plaintiff in this action has received the proceeds arising from a constable's sale of the goods replevied, does not estop

Ledford v. Weber.

him from recovering damages for a failure to return the property; but the amount so received should be deducted from the judgment for the value of he property recovered in this action.

APPEAL from the Circuit Court of St. Clair county; the Hon. F. H. PEIPER, Judge, presiding. Opinion filed August 13, 1880.

Messrs. NOETLING & HALBERT and Mr. THOMAS QUICK, for appellants; that the conveyance was fraudulent as to creditors, cited Rev. Stat. Chap. 59, § 4; 86 Ill. 74; 12 Ill. 387.

This was not a judicial sale: England v. Clark, 4 Scam. 486; Rorer on Judicial Sales, Chap. 1.

Instructions which assume facts as proven are erroneous; Durham v. Goodwin, 54 Ill. 469; Collins v. Waters, 54 Ill. 485.

Notice of trial of right of property is an admission of regularity in the antecedent proceedings: Dexter v. Parkins, 22 Ill. 143; Thompson v. Wilhite, 81 Ill. 356.

Evidence to show that the conveyances were made to defraud creditors, was competent: Boies v. Henney, 32 Ill. 130; Phelps v. Curts, 80 Ill. 109; Hampton v. Obright, 49 Ill. 150; Hackett v. Bailey, 86 Ill. 76.

The husband of deceased was not a competent witness: Rev. Stat. Chap. 51, § 5.

The court should have allowed the return on the summons to be amended: Kinney v. Knoebel, 47 Ill. 417; Brown v. Brown, 59 Ill. 315; Owens v. Ranstead, 22 Ill. 161; Hickey v. Stone, 60 Ill. 458; Howell v. Albany Ins. Co. 62 Ill. 50; Terry v. Trustees, 70 Ill. 236.

The sheriff being a party to the suit, could not act officially in service of venire and taking charge of the jury: Rev. Stat. 1877, 280; Woods v. Gilson, 17 Ill. 218; Reed v. Moffat, 62 Ill. 300; Cook v. Chicago, 57 Ill. 268.

Mr. W. C. KUEFFNER and Mr. W. S. UNDERWOOD, for appellee; that proof of a judgment to support the execution under which defendants claimed was necessary, cited Pickett v. Hart

Ledford v. Weber.

sock, 15 Ill. 279; Johnson v. Adleman, 35 Ill. 265; Kinney v. Knoebel, 47 Ill. 417.

The burden was upon plaintiff to prove his title: Stevison v. Earnest, 80 Ill. 513.

The husband of deceased was a competent witness: Rev. Stat. Chap. 57, § 5.

Where service is by summons, parol evidence cannot be received to aid it: Harris v. Lester, 80 Ill. 307; Botsford v. O'Connor, 57 Ill. 72.

A record can be amended only by the court to which the the record belongs: Bergen v. Riggs, 40 Ill. 61; Ballance v. Leonard, 40 Ill. 72; Wilder v. House, 40 Ill. 92.

After a case has been finally disposed of, notice of an amendment is necessary: Mass. Mut. Life Ins. Co. v. Kellogg, 82 Ill. 614.

Service of summons, should be made at least three days before the trial: Rev. Stat. Chap. 79, § 17; Johnson v. Baker, 38 III. 99.

Where the bill of exceptions does not purport to contain all the instructions, error cannot be assigned for refusal to give a particular instruction: England v. Selbey, 12 Chicago Legal News, 185.

A stranger cannot take advantage of an estoppel: Massure v. Noble, 11 Ill. 531; 7 Bac. Abr. 620.

Generally as to what constitutes an estoppel: Davidson v. Young, 38 Ill. 146; Cook v. Hunt, 24 Ill. 535; Mills v. Graves, 38 Ill. 455; Flower v. Elwood, 66 Ill. 438; Smith v. Newton, 38 Ill. 230; The People v. Brown, 67 Ill. 344; Chandler v. White, 84 Ill. 435; Ball v. Hooten, 85 Ill. 161; Hefner v. Vandolah, 57 Ill. 520; Thomas v. Bowman, 29 Ill. 426.

In the absence of fraud, the maxim caveat emptor applies in all judicial sales: Holmes v. Shaver, 78 Ill. 578; Roberts v. Hughes, 81 Ill. 130; Bishop v. O'Conner, 69 Ill. 434; Bassett v. Lockard, 60 Ill. 164; McManus v. Keith, 49 Ill. 388.

On a motion for new trial on the ground of newly discovered evidence, it must appear that such evidence is material, and that due diligence to discover it had been exercised: Schlencker v. Risley, 3 Scam. 483: Crozier v. Cooper, 14 Ill.