We have already decided, in the Thatcher and Corwith Cases, supra, that the enabling ordinance of December 7, 1872, was not repealed by the ordinance of July 2, 1877, so far as the land between Forty-First and Forty-Second streets was concerned. That decision is res adjudicata. As to the owners of the land between those two streets, the original ordinance was still in force on June 16, 1887. We see no reason why the condemnation judgments rendered in favor of such owners could not be paid by special assessment under such original ordi nance. Section 48, art. 9, c. 24, Rev. St., which directs that, in a certain contingency, the board of trustees may direct a new assessment to be made "within five years after the confirmation of the original assessment," has no application here, because the original assessment was never confirmed. Nor do we understand how this proceeding, or any part of it, can be held to be subject to the bar of the five-years statute of limitations. The supplemental petition filed on December 5, 1873, for an order directing a special assessment to be made, was not dismissed by the order of February 16, 1878, so far as the property between Forty-First and Forty-Second streets was concerned. It was still pending when the new assessment was ordered. Nor has there been any abandonment of the special assessment proceeding, as to property between those two streets. People v. Village of Hyde Park, supra. The tax-deed introduced by plaintiffs in error in the court below should have been excluded. A cross-error has been assigned by the defendant in error in reference to the admission of the same. It was a deed to Asahel Gage, who is not a party to this proceeding. It was unaccompanied by proof of any judgment or precept as a foundation for the tax-sale. A tax-deed is only prima facie evidence, under section 224 of the revenue act, (Rev. St. c. 120,) of the facts therein mentioned, when the controversy or suit in which it is introduced has relation to the right of the purchaser, his heirs or assigns, to the real estate conveyed by the deed. No such right was involved in this proceeding. We find no error in the record. The judgment of the superior court is affirmed. (131 Ill. 388) LEMAN V. CITY OF LAKE VIEW.1 (Supreme Court of Illinois. Jan. 21, 1890.) STREET ASSESSMENTS-TITLE TO FEE. 1. The owner of land specially assessed for improving a street cannot object to the confirmation of such assessment because the municipality has not acquired title to the soil of the proposed street. Following Hunerberg v. Village of Hyde Park, 22 N. E. Rep. 486. 2. Under Rev. St. Ill. c. 24, art. 9, § 33, which gives the county court power to amend special assessments, an amendment stating that it was not intended to include as part of the property assessed the soil of the street to improve which the assessment was made, is proper. Appeal from county court, Cook county; RICHARD PRENDERGAST, Judge. 1 Reported by Louis Boisot, Jr., of the Chicago bai. Miller, Leman & Chase, for appellant Jonas Hutchinson and M. W. Robinson, for appellee. BAILEY, J. This was a petition to the county court of Cook county, by the city of Lake View, praying for the confirmation of a special assessment levied upon the property benefited, for the purpose of defraying the expense of improving and ornamenting a part of Diversey street in said city. On the 3d day of December, 1888, the city council of the city of Lake View passed an ordinance by which it was ordered that a certain portion of Diversey street should be improved and ornamented, by curbing, grading, macadamizing, the laying of stone sidewalks, the setting out of trees, and the erection of lamp-posts, in accordance with certain specifications in said ordinance contained, and providing that the cost of said improvement should be paid for by a special assessment to be levied upon the property benefited thereby, to the amount that the same might be legally assessed therefor, and that the residue of such cost should be paid by general taxation. Commissioners were appointed by the ordinance to make an estimate of the cost of said improvement, who duly made and reported such estimate, fixing said cost at $4,442.20. Said estimate having been approved by the city council, said city presented to said county court its petition, praying for the appointment of commissioners to make an assessment of the cost of the proposed improvement, in accordance with the provisions of said ordinance; and, commissioners having been appointed upon said petition, an assessment was made by them, and an assessment roll returned, by which the sum of $1,788.98 was assessed upon a certain lot of land belonging to the appellant having a frontage of 175 feet on said street. The present petition was thereupon filed, praying for a confirmation of said assessment, and in answer to said petition the appellant appeared and filed a number of objections to such confirmation, of which the only one now insisted upon was, in substance, that the city had not acquired title to the northerly half of the street proposed to be improved, consisting of a strip of land 350 feet in length and 33 feet in width; that one-half of said strip of land belonged to the appellant, and constituted a part of his lot upon which said assessment was made; and that the other half belonged to the board of Lincoln park commissioners. At the hearing the appellant offered evidence tending to support the above-mentioned objection, and to show that the title of the north half of the portion of said street to be improved was as therein stated, but said evidence was excluded by the court. The assessment was, however, amended by the court, on motion of the city, by inserting therein a statement that it was not thereby intended to include as a part of the property assessed the 33 feet in width lying immediately north of the center line of the street; and thereupon the court overruled the appellant's objections, and entered an order confirming the assessment. It is now insisted that the decision of the court excluding the appellant's evidence, and overruling the foregoing objec tion, and also the order amending the assessment, were erroneous. The rules of law applicable to the first of these assignments of error have been so frequently considered by this court that there can be no occasion to do more than refer to the following decisions: Village of Hyde Park v. Borden, 94 Ill. 26; Holmes v. Village of Hyde Park, 121 III. 128, 13 N. E. Rep. 540; Hunerberg v. Village of Hyde Park, 22 N. E. Rep. 486. In the case last mentioned the questions were precisely identical with those presented here; the objection there being that a portion of the land included within the street proposed to be improved was the property of the objector, and the trial court having there, as here, excluded all the evidence as to title offered by him. We there held that the corporate authorities of cities and villages may levy special assessments for the improvement of a proposed street, before acquiring title to the soil by condemnation or otherwise, and may afterwards take the necessary steps to condemn the land, and have the compensation and damages to be paid assessed, and that the owner of the property specially assessed for grading and paving such street cannot interpose the objection to the confirmation of such assessment, that the city or village had not acquired title to the soil to be graded and paved. It follows that, in the present case, the rulings of the court excluding the appellant's evidence, and overruling said objection, were proper. The question of title was not before the court, and was not a proper matter for consideration in this proceeding, and the evidence bearing upon that question was therefore wholly immaterial. We are unable to say that there was any impropriety in the order of the county court modifying the assessment roll. The proceeding was under the provisions of article 9 of the general law for the incorporation of cities and villages, (Rev. St. c. 24,) and by section 33 of that article ample power is given to the county court to amend an assessment. The only question is whether that power was properly exercised in this case. It should be observed that the modification was not in the amount of the assessment, but only in the description of the land assessed, and we think it plain that its only object and effect was to render more certain that which must be presumed to have been the intention of the commissioners in making the assessment. The ordinance upon which the proceeding was based directed the improvement of a street which would include within its boundaries a strip of land 33 feet wide to be taken from the appellant's lot. The commissioners were directed to assess the cost of improving the street upon the property benefited by the improvement, and it follows, therefore, from the very nature of the case, that the land to be taken for the street could not be included among the lands subject to assessment. sessment upon the land to be taken for a public use could be enforced only by sale of the land, which would have the effect of divesting the public of the very soil upon which the proposed improvement is to be made. It is clear, then, that the commissioners had no power to assess any por An as tion of the benefits upon the street itself, and it will therefore be presumed that, in assessing the sum of $1,788.98 upon the appellant's lot, they intended to assess that sum upon that portion of the lot remaining after the street should be laid out. This would have been, by fair consideration, the legal effect of the assessment roll if the amendment had not been made, and the effect of the amendment was only to express that legal effect with entire precision. We find no error in the record, and the judgment of the county court will therefore be affirmed. * * Under Rev. St. Ill. c. 74, § 2, which allows interest "for all moneys after they become due on any * instrument of writing, " rent due under a lease which provides for payment monthly in advance will bear interest from the first of each month, though the amount of rent is not stated in the lease. Appeal from appellate court, first district. Action of debt by Charles Stose against Jacob Heissler and August Junge. Plaintiff obtained judgment, which was affirmed by the appellate court. Defendants appeal. Wm. H. Barnum and Rubens & Mott, for appellants. William C. Wilson and David L. Zook, for appellee. CRAIG, J. This was an action brought by Charles Stose to recover rent alleged to be due on a written lease wherein certain premises in State street, Chicago, were leased to appellants. The lease was executed on the 4th day of December, 1877, and by its terms appellee demised to appellants the premises from the 1st day of May, 1878, until the 1st day of May, 1888, a term of 10 years. The clause as to payment of rent is as follows, to-wit: "And the said party of the second part, his heirs, executors, administrators, and assigns, to pay the said party of the first part, as rent for said premises, the sum of one hundred and ten dollars ($110) per month for and during the time from the 1st day of May, 1878, to the first day of May, 1879, and the sum of one hundred and twenty five dollars ($125) per month for and during the time from the 1st day of May, 1879, to the 1st day of May, 1884, and payable on the first day of each and every month. The amount for the remaining four (4) years, from May 1st, 1884, to May 1st, 1888, to be made and agreed upon by three disinterested parties owning and renting property in Chicago; each party of the first and second parts to select one man, the said two selected to agree upon a third party. The parties to this lease agree hereby to abide by the decision of the parties selected." All rent accruing under said lease up to the month of May, 1884, was duly paid according to the terms of the lease. As appears from the evidence, there was a failure to appraise the amount of rent to be paid 1 Reported by Louis Boisot, Jr., of the Chicago bar. per month during the said remaining four years, the appraisers selected not being able to agree, and the appellee, Stose, brought this action against the tenants, the appellants, for the rent as the same accrued by the month. The declaration contains four counts in debt, the second of which sets out a copy of the lease. The jury returned a verdict for Stose, $7,000 debt, and $1,044.09 interest, as damages. No fault is found with the amount of the recovery for the rental value of the premises, but appellants object to that part of the judgment allowing interest. The court instructed the jury that the plaintiff was entitled to recover interest, so that the question of law, whether interest should be received under the contract and evidence, is fairly presented, and that is the only question presented by the record. Section 2, c. 74, Rev. St. 1874, provides in what cases interest may be recovered as follows: "Sec. 2. Creditors shall be allowed to receive [interest] at the rate of six (6) per centum per annum for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing; on money lent or advanced for the use of another; on money due on the settlement of account from the day of liquidating accounts between the parties, and ascertaining the balance; on money received to the use of another, and retained without the owner's knowledge; and on money withheld by an unreasonable and vexatious delay of payment." If this case is embraced within the statute, it is apparent that it must fall within the first clause, which provides for the recovery of interest on moneys after they become due on any bond, bill, promissory note, or other instrument of writing; but it is strenuously insisted that this is not an action to recover money due upon an instrument in writing. It is, however, apparent from an examination of the record that the action is based on the written lease bearing date December 4, 1877. The second count of the declaration avers a demise for 10 years in writing, and sets out a copy of the lease as a part of the count. On the trial the written lease was read in evidence, and no other evidence was offered to establish the relation of lessor and lessee, and the fact that the occupation of the premises by appellants was under the lease was not a controverted question in the case. Indeed, the fact that the action is brought on the lease is manifest from the decision in Stose v. Heissler, 120 Ill. 433, 11 N. E. Rep. 161, a case between the same parties on the same lease, to recover a portion of the same rent. It is there said⚫ "There is no provision in the lease before us for the selection of other referees in case those first selected do not agree, and wecannot say, as a matter of law, that such an act is a condition precedent to the plaintiff's right to recover rent. The plaintiff has done all the written contract required him to do, unless we, by construction, annex terms and conditions thereto other than the parties saw fit to incorporate." On page 445, 120 Ill., 11 N. E. Rep. 166, it is further said: "It would seem, therefore, that when the plaintiff in this case had done all that he was required to do under the con # * * tract to fix the rental value of the premises, and failed, without fault on his part, his right to sue for and recover a reasonable rent as it should fall due is sustained both upon principle and by authority." And as to when such rent should fall due, the court, on page 446, 120 Ill., 11 N. E. Rep. 166, proceeds: "Taking the case as a whole, the conduct of the parties, and the nature of the property into consideration, we have no hesitation in holding that the rent for the entire term was intended to be payable monthly in advance." But to make the point plainer, it may be well to refer to the first part of the case cited. In the first sentence of the statement of the case it is said: "This was an action brought for the recovery of a month's rent, claimed to be due under a lease by the plaintiff to defendants of certain real estate in the city of Chicago." Again, in the second sentence of the opinion, this language will be found: "By the first count the plaintiff sought to recover $215, a month's rent, according to the terms of the written lease, and relying upon the finding of two of the three referees chosen under the provisions of the lease." The former suit was brought to recover for one month's rent, towit, the month of May, while this action is to recover for the remaining 35 months named in the lease, beginning with the 1st of June, 1884. We think, therefore, it is plain that the action is predicated on the lease, and, as heretofore stated, when the construction of the lease was before us in the former case of Stose v. Heissler, it was held that the rent named in the lease was due and payable monthly, in advance. The lease, in our opinon, was an instrument of writing, within the meaning of the statute, and after the rent became due the plaintiff, by the express terms of the statute, was entitled to recover interest thereon. It is true that the amount of rent to be paid monthly in advance was undetermined, but the statute has not made an exception of a case of this character. By the terms of the statute interest may be recovered for moneys after they become due on any instrument of writing. Here the money was due on an instrument of writing, and, while it had not been determined whether the amount should be $150 or $200 per month, yet the amount, whatever it was, being due on an instrument of writing, no reason is perceived why the true amount when ascertained should not bear interest from the time due. Under the third clause of section 2 of the statute interest is allowed on money due in the settlement of accounts from the day of liquidating accounts between the parties and ascertaining the balance; but, as this case does not fall within that provision of the statute, that clause of the statute does not apply. In this case there were no accounts to be settled and adjusted between the parties; on the other hand, there was a certain amount of money due monthly on a written lease for the rent of certain premises, and, as the statute has in plain words declared that interest may be recovered on such money, courts can do no less than enforce the statute. The judgment of the appellate court will be affirmed. (132 Ill. 377) PORTOUES v. BADENOCH et al.1 1. Under Rev. St. Ill. c. 82, § 5, which requires a petition for a mechanic's lien to contain a description of the premises subject to the lien, a decree giving a lien on more land than that described in the petition and the evidence is erroneous. 2. The fact that material-men claiming a me chanic's lien furnished to the owner materials not used upon the land does not bar their right to a lien, when it appears that their accounts show just what materials were furnished for the land on which they claim a lien. 3. Where a petitioner for a mechanic's lien subordinates his lien to that of a prior trust-deed, the holder of the note secured by such deed is not a necessary party to the proceedings to foreclose the lien. Appeal from appellate court, first district. David L. Zook and William C. Wilson, for appellant. Thornton & Chancellor, for appellees. MAGRUDER, J. This is a proceeding begun in the superior court of Cook county in 1884, for the enforcement of a mechanic's lien against certain property in the town of Lake, in Cook county. The original petition was filed by Henry Holmes and Elliot W. Sproal, composing the firm of Holmes & Sproal, to enforce a lien for work done and materials furnished by them as plasterers for two houses owned by the appellant, Andrew Portoues, and one Albert White, composing the firm of White & Portoues, contractors and builders. An intervening petition was filed by the appellees Joseph Badenoch, Jr., and J. G. Badenoch, composing the firm of J. Badenoch, Jr., & Co., lumber dealers, to enforce a lien for lumberfurnished. An intervening petition was also filed by the appellee William Johnston, a plumber, to enforce a lien for plumbing done in the houses, and for plumbing material furnished thereto. The original petition describes the premises as the north 49 feet of lot 5, in block 16, of Skinner and Judd's subdivision of part of N. E. of section 21, township 38 N., range 14 E., of third P.M. Holmes, one of the petitioners, testifies that he built the chimneys and did the plastering work, and furnished the material therefor, in the houses upon the north 49 feet of said lot 5. Both the allegations of the original petition and the proofs thereunder are limited to the north 49 feet of lot 5. But the decree rendered in the cause finds that Holmes & Sproal furnished the material and labor for the plastering and building of chimneys upon the north 49 feet of lot 5, and the south 19 feet of lot 6, in said block 16, etc., and that they are entitled to a lien upon the north 49 feet of lot 5, and the south 19 feet of lot 6; and it is ordered therein that they have a lien upon all of the premises last described; and the south 19 feet of lot 6, as well as the north 49 feet of lot 5, are ordered to be sold in case of the non-payment of the amount due the petitioners. The decree in favor of Holmes & Sproal is erroneous, because it declares a lien upon a larger amount of land than is named in the petition or referred to in the proofs, and orders a sale of the same. The first section of the lien law (chapter 82, Rev. St.) provides "that any person who shall, by contract with the owner of any lot or piece of land, furnish labor or materials # * * any house * * * # * in building on such lot shall have a lien upon the whole of such tract of land or lot, and upon such house, for the amount due to him," etc. Section 2 extends the lien to any interest which such owner may have in the lot or land at the time of making the contract. The lien can only attach to the premises with reference to which the contract is made. Section 5 requires the bill or petition to contain "a description of the premises which are subject to the lien." Here the petition sets up a contract with the owner of the north 49 feet of lot 5, and not with the owner of the south 19 feet of lot 6. The petition contains a description of the north 49 feet of lot 5 as being subject to the lien, but makes no reference to any other land. The decree grants more than the petition asks for, and more than the petitioners show themselves entitled to. The proceeding for the enforcement of a mechanic's lien is statutory, and must be conducted in strict conformity with the statutory requirements. Section 20 provides for "a sale of the premises on which the lien operates," manifestly referring to the premises described in the petition as being subject to the lien, and limiting the right of sale to such premises only. As to the intervening petitioners, we see no reason why they are not entitled to the liens asked for in their respective petitions. Under implied contracts with the owners of the property, they furnished the labor and materials for which they seek to be paid within the one year named in section 3 of the lien law. Such labor and materials went into buildings upon land belonging to the defendants, and were furnished for that purpose at the request of the defendants. Corey v. Croskey, 57 Ill. 251; Artesian Well Co. v. Corey, 60 Ill. 73. It is true that J. Badenoch, Jr., & Co. had a large account, amounting to some $6,000, with the defendants for lumber furnished to the houses in controversy in this suit, and to other houses not in controversy. But the proof is that the account was kept in such a way as to show what lumber was used upon the land described in the intervening petitions, and what was used upon other lands. The petitions aver and the answers admit that there was a trust-deed upon the land to one Chandler. Chandler, the trustee, was made a party defendant, and answered, but the cestui que trust or holder of the note was not made a party. The failure to make the cestui que trust a party is complained of by appellant. In this regard no error was committed in the court below. The holder of the note is not prejudiced by the decree, because the property is ordered to be sold subject to his incumbrance. The sale is to be made, not for the purpose of making the amount due upon the trustdeed, but the amounts due the petitioners. The purchaser under the decree rendered in this case will buy the land subject to the lien of the trust-deed. It is not perceived how the rights of appellant are prejudiced in any way by the fact that the holder of the note is not a party to the proceeding. Appellant can only urge such errors as affect his interests. Grier v. Puterbaugh, 108 Ill. 602; Worden v. Crist, 106 Ill. 326. It this was a controversy between the petitioners for mechanics' liens and the holder of the incumbrance, the latter would be a necessary party. But here none of such petitioners are complaining; on the contrary, they make no objection to the subordination of their liens to the lien of the trust-deed. Moreover, the appellant did not demur to either of the petitions in such a way as to point out to the petitioners the objection insisted upon, so as to enable them to amend by making the holder of the note a party. Story, Eq. Pl. (9th Ed.) § 543. A demurrer for the want of a proper party must show on its face that the cause of demurrer is the want of a proper party. Id. § 238. The answers of the defendant Portoues merely claimed, in a general way, the advantages of a demurrer. The decree made by the superior court was correct so far as it has reference to the intervening petitioners, but erroneous in permitting the original petitioners, Holmes & Sproal, to have a lien upon the south 19 feet of lot 6, or to participate in the proceeds of the sale of said 19 feet. For the error thus indicated the judgments of the appellate and superior courts are reversed, and the cause is remanded to the superior court. All the costs of this proceeding must be paid by the original petitioners, Holmes & Sproal. (131 Ill. 659) CHICAGO W. D. Ry. Co. v. INGRAHAM.1 (Supreme Court of Illinois. Jan. 21, 1890.) STREET RAILROADS-COLLISION WITH OTHER VE HICLES. 1. In an action for injuries caused by collision with a street-car, damages may be recovered both for injuries to plaintiff's person and to his horse and buggy, though they are both set up in the same count of the declaration, when no demurrer is filed, and no objection is made to the introduction of evidence as to such injuries. 2. In such an action, instructing the jury that mere omission to perform any duty is not suffi cient to render defendant liable, "unless such omission caused the injury complained of," is not reversible error, where other instructions explain the degree of care required of defendant, and state the doctrine of comparative negligence. 3. In such an action, an instruction that a street-car company is entitled to the track on meeting other vehicles, and that the latter should yield the right of the track to the car, is misleading, as indicating that a street-car company is not bound to exercise due care to prevent a collision. 4. In such an action, after a witness has testified regarding the accident, and has been asked on cross-examination, whether he did not say, shortly after the accident, that he could not see the plaintiff, evidence that he said he could not see "the accident" is admissible, where objection to the form of the statement is not made at the trial. Appeal from appellate court, first district. Action by Sereno W. Ingraham agairst the Chicago West Division Railway Company. Defendant appeals. The ninth in SHOPE, C. J. This was an action on the case by appellee, to recover damages to his person and property claimed to have been sustained through the negligence of appellant's servants, whereby a collision occured between a car on appellant's railway and the buggy in which appellee was riding. The declaration contained a single count. It alleged, in apt form, that appellee was riding on West Twelfth street, in Chicago, in a buggy drawn by a single horse; and, while in the exercise of due care and caution on his part, the servants of defendant, appellant, so carelessly and negligently drove and managed the horses by which a street-car upon defendant's tracks was drawn that the car struck the buggy of appellee with great force, whereby he was thrown to and upon the ground, and severely and permanently injured, his buggy and harness broken, injured, and damaged, and his horse hurt, damaged, and permanently deteriorated in value. The count, by apt averments, sets out the personalinjury to appellee, his expense in being cured, and loss of time, and also the damage to his horse, buggy, and harness, and seeks recovery of damage to his person and property. To this declaration the appellant filed the general issue. A trial resulted in a verdict and judgment thereon for appellee of $1,000. On appeal to the appellate court, the judgment was affirmed; and the railway company prosecutes this further appeal. All controverted questions of fact necessary to sustain the judgment are necessarily determined against appellant by the judgment of the appellate court. It is insisted that the trial court erred both in giving instructions and in the admission of evidence. The criticism of the second instruction given on behalf of appellee is that the jury were thereby instructed that, if they found for the plaintiff, then, in assessing his damages, they should take into consideration any damage shown to have resulted to the person of the plaintiff, and also to his personal property; the point made being that the damages to the person of the plaintiff, and the damages to his horse, buggy, and harness, were separate and distinct injuries, and hence could not be recovered for under a single count declaring for both. We are referred to Brunsden v Humphrey, L. R. 14 Q. B. Div. 141, as sustaining that view. The case, when properly considered, if it be accepted as a true exposition of the law, is not controlling. In that case the plaintiff recovered judgment for an injury to his cab caused by a collision with defendant's van, through the negligence of defendant's servants, and |