The

School Subdivision, etc., in said county. case came by appeal into the circuit court of Cook county, and the parties proceeded to trial before the court and a jury. After the parties had presented the evidence in their behalf, respectively, the court, on motion of the defendant in error, instructed the jury to return as their verdict that the plaintiff in error was guilty of unlawfully withholding the possession of the premises. In obedience to this direction of the court, the peremptory verdict was returned in favor of the plaintiff below, and judgment was entered thereon. The record was brought into the Appellate Court for the First District by writ of error, and the cause was assigned to the Branch Appellate Court for decision. The judgment of the circuit court was affirmed. This writ of error challenges the correctness of the judgment of affirmance.

The errors assigned are that the trial court erred in excluding testimony offered in behalf of the plaintiff in error and in directing a peremptory verdict in favor of the defendant in error. It appeared from the proof produced in behalf of the defendant in error (plaintiff below) that he, as the owner of the premises in question, entered into a verbal agreement with his father (who bore the same name as himself) that his father might occupy the residence which stood upon the premises as his home, and use and possess the premises so long as he should live; that in pursuance of the agreement the father and the plaintiff in error (his wife and the stepmother of the defendant in error) entered into the possession of and lived on said premises from thence during the lifetime of the father; that the father died December 5, 1900; that the plaintiff in error was thus left in the possession and occupancy of the premises, and claimed she was entitled to an estate of homestead therein, and refused to surrender the possession thereof to the defendant in error after lawful demand in writing had been made therefor. The defendant in error also produced in evidence the bill, answer, exhibits, and the decree entered in the circuit court of Cook county in a cause in chancery wherein one William C. Fricke, as trustee, was complainant, and Louis Merki, Jr., executor of the last will of said John Merki, Sr., the plaintiff in error, and others, were defendants. It appeared from the record in this proceeding that said plaintiff in error and her husband had, by a written contract entered into between them, agreed that the husband should put the sum of $2,000 in the custody of the said William C. Fricke, as trustee, to be invested by him during the lifetime of the said husband, and, in the event of the death of the husband before that of the wife, said fund should be paid to the wife, the plaintiff in error, in full satisfaction of all of her rights and interest in the estate of her husband, including her right to a widow's award, and all rights and interest, by way of dower or homestead, in any of the

real estate of the husband; that after the death of the husband the plaintiff in error insisted upon the fulfillment of the agreement, and that the court found she was entitled thereto, and ordered and decreed payment of the said trust fund to be made to her in accordance with the terms and conditions of the said agreement and the fulfillment thereof.

The plaintiff in error sought to prove that her husband had paid the purchase price for the title to the lot in controversy, and had paid the cost of constructing the dwelling house thereon; that there was at one time among his papers a deed, or an instrument in writing in the nature of a deed, purporting to convey the title to the premises from the defendant in error to the father, and that the instrument had been lost or destroyed. The theory upon which it was urged this evidence was admissible was that the plaintiff in error, as widow of the father, was entitled to an estate of homestead in the premises, and that she was therefore entitled to retain the possession thereof during her lifetime. The court excluded this proffered testimony.

The action of the court may be sustained for either of two reasons. The right of the plaintiff in error to an interest, by way of an estate of homestead, in the property of her husband was adjudicated adversely to her contention in the chancery proceeding hereinbefore mentioned. She did not appeal from that decree, but accepted the said sum of $2,000 in pursuance of its provisions. There were no minor children interested in the estate of homestead, and it was therefore competent for the husband and wife, by agreement, to bar the dower of the wife and relinquish the interest of the wife in the homestead estate. Zachmann v. Zachmann, 201 Ill. 380, 66 N. E. 236, 94 Am. St. Rep. 180. Even, therefore, if the husband had had title to the premises, the plaintiff in error had no homestead interest therein. But it was not competent to enter into an investigation of the contention that the defendant in error had executed a deed of the premises to his father and that the same had been lost or destroyed. Such evidence might have been availed of in a proceeding in chancery had one been instituted for the purpose of establishing the execution of the deed, but not in a statutory proceeding in forcible detainer. Nor could the plaintiff in error, in such a proceeding as this, be permitted to show that the name of John Merki, Jr., as grantee in the deed for the premises, should have been John Merki, Sr. The correction of such an error is within the jurisdiction of courts of chancery only. Duggan v. Uppendahl, 197 Ill. 179, 64 N. E. 289; 24 Am. & Eng. Ency. of Law (2d Ed.) 647, 648.

We need not pause to consider whether the prior institution and the then pendency of a suit in ejectment would abate a subsequent action of forcible detainer between the same parties to recover possession of the same

premises, for the reason that it appears that the action of forcible detainer was instituted before the action of ejectment, which it is urged should operate to abate it.

The evidence in behalf of defendant in error warranted a judgment in his favor, and there was no competent evidence tending to establish a defense; hence the court properly directed a peremptory verdict.

The judgment of the Appellate Court is affirmed. Judgment affirmed.

(212 111. 88.)

WATTS v. SANGAMON COUNTY. (Supreme Court of Illinois. Oct. 24, 1904.)

MANDAMUS-JURISDICTION OF APPEALS. 1. Under Hurd's Rev. St. 1899, c. 87, 10, relating to mandamus, and providing that "appeals and writs of error may be taken and prosecuted in the same manner, upon the same terms, and with like effect as other civil cases," an appeal in such proceedings lies to the Appellate Court rather than to the Supreme Court, where the validity of no statutory or constitutional provision is involved.

Appeal from Circuit Court, Sangamon County; Jas. A. Creighton, Judge.

Petition by Thomas Watts for mandamus to Sangamon county. A demurrer to the petition having been sustained, petitioner appeals. Dismissed.

George A. Sanders, for appellant. W. E. Shutt, Jr., State's Atty., for appellee.

RICKS, C. J. Appellant, Thomas Watts, presented his petition to the circuit court of Sangamon county for a writ of mandamus against Sangamon county praying for an order on the county treasurer to pay his bill of costs incurred in a certain criminal proceeding wherein appellant was convicted and sentenced to the penitentiary from said county, setting up in the petition that the Supreme Court of the state of Illinois reversed and remanded said cause, alleging that the judgment entered by said Supreme Court provided that said appellant should have and recover from said defendant in error his costs by him in his behalf expended, etc. A demurrer having been filed and sustained to the petition, appellant appeals direct to this court.

A writ of mandamus being nothing more than an action at law, an appeal should be taken in the same manner and to the same court as other actions at law. Section 10 of chapter 87 (Hurd's Rev. St. 1899), under the bead of "Mandamus," provides: "Appeals and writs of error may be taken and prosecuted in the same manner, upon the same terms, and with like effect as in other civil cases." Under this statute we think the appeal should have been taken to the Appellate Court.

While appellant, in his brief, has discussed and directed the attention of the court to certain provisions of the Constitution of 1870 and to prior Constitutions, which he asserts

have some application to this case, and also discusses certain statutory enactments in reference to the payment of costs in criminal cases, we are unable to see that any question that might call for the construction of the Constitution is raised that has not already been passed upon in Carpenter v. People, 3 Gilman, 147; Wells v. McCullock, 13 Ill. 606; McArthur v. Artz, 129 Ill. 352, 21 N. E. 802; and Anderson v. Schubert, 158 Ill. 75, 41 N. E. 853. The validity of no statute is questioned, and one or the other of such questions must be involved to give this court jurisdiction. The appeal will therefore be dismissed, and appellant will be permitted to withdraw his record filed in this court.

Appeal dismissed.

(212 III. 97.)

ANDREWS ▼. KINGSBURY.

(Supreme Court of Illinois. Oct. 24, 1904.) CONTRACTS IN RESTRAINT OF TRADE-VALIDITY -VIOLATION-INJUNCTION.

1. In a suit to restrain defendant from engaging in the newspaper business in a certain town in violation of a contract not to do so made upon the sale of another paper to plaintiff, defendant contended that the paper sold belonged to his wife, and that his agreement was without consideration. All negotiations for the sale were made with defendant. Nothing was said as to his wife's ownership, and the bill of sale was signed by defendant, expressly warranting his title to the property, and the purchase money and notes and mortgage securing an unpaid balance were paid and delivered to him. Ĥeld to show that as between the parties the property belonged to defendant, so that his agreement was binding.

2. A contract not to engage in the newspaper business in a certain town for a period of five years is reasonable and valid.

3. In a suit to enjoin the violation of a contract not to engage in the newspaper business in any way whatever, evidence that a newspaper operated by defendant is not of the same character as that sold by defendant to plaintiff, and does not draw its patronage from the same source, is immaterial.

4. The rule that an injunction will only issue where irreparable injury will be suffered and there is no adequate remedy at law has no application to a suit for injunction to restrain the violation of a contract not to engage in a certain business: but in such case injunction will issue, though the violation of the contract will occasion no substantial injury, and though there be an adequate remedy at law.

Appeal from Appellate Court, Fourth District.

Suit by Edwin C. Kingsbury against Harry B. Andrews. From a decree of the Appellate Court (112 Ill. App. 518), affirming a decree for plaintiff, defendant appeals. Affirmed.

At the April term, 1903, of the circuit court of Richland county the appellee, Edwin C. Kingsbury, filed his bill to restrain the appellant, Harry B. Andrews, from engaging in the newspaper business in the city of Olney, either as proprietor, editor, man

2. See Contracts, vol. 11, Cent. Dig. § 555,

ager, or in any way whatever, either for himself or any one else, for a period of five years, as provided in a certain alleged contract executed between the parties. A temporary injunction was issued as prayed, and upon a hearing it was made perpetual for the period of five years from November 2, 1901. An appeal was prayed to the Appellate Court for the Fourth District, where the decree of the circuit court was affirmed, and a further appeal has been prosecuted to this court.

On November 2, 1901, the appellant made a bill of sale of the printing plant of a certain newspaper known as the Olney Advocate to appellee, and on the 6th of the same month executed the following instrument: "I, Harry B. Andrews, having sold the Olney Advocate, a weekly newspaper published at Olney, Illinois, and transferred all my right, title, and interest to the same, including good will, to E. C. Kingsbury, I hereby agree not to engage in the newspaper business in the city of Olney, either as proprietor, editor, manager, or in any way whatever, either for myself or any one else, for the period of five years from the date of this agreement, provided that E. C. Kingsbury remains in the newspaper business in Olney for that length of time." Until about December 2, 1902, Andrews kept the terms of said contract, but on that date purchased an interest in a newspaper in the city of Olney known as the Olney Times, and shortly thereafter an article appeared in that paper stating that "with this issue of the Olney Times the business and editorial management of the Times Printing Company will be under the direction and control of H. B. Andrews."

Immediately after the appearance of that article, and after Andrews had taken charge of the Olney Times, this bill for an injunction was filed. Appellant, in his answer to the bill, set up that he was not the proprietor or owner of the Olney Advocate at the time of the sale to the complainant, but that it was owned by his wife, and that he was merely the manager for her; that the sale of the paper was negotiated by one H. H. Kingsbury, acting as complainant's agent, and that after the completion of the sale and transfer of the property the said agent wrote the contract above set forth and appellant signed it; that it was not part of the sale of the property, and was signed by the defendant without the knowledge of his wife; that the newspaper known as the Olney Times occupied a different field from the Olney Advocate, and they were in no sense competitors.

John Lynch, Jr., H. G. Morris, and W. F. Foster, for appellant. Allen & Fritchey and S. J. Gee, for appellee.

WILKIN, J. (after stating the facts). The first ground of reversal insisted upon is that at the time of the sale the Olney Advocate belonged to the wife of appellant, and his

agreement not to engage in the newspaper business had nothing to do with the sale, and was therefore without consideration. It is not denied that the bill of sale was signed by him, and by it he expressly warranted his title to the property. The name of his wife does not appear in the instrument. The money paid for the plant was paid to him, and the notes and mortgage executed to secure the deferred payments were made to and delivered to him. The appellee testified that about the 28th day of August, 1901, he had a conversation with appellant, in which he proposed, for the consideration of $4,000, to sell his paper and agree not to go into the newspaper business again in the city of Olney, and that on the following day he made the same proposition, and again in the latter part of October submitted a written proposition to appellee making a similar offer. He also testifies that the same negotiations continued from the 29th day of August, 1901, to the final consummation of the sale and purchase, and that it was the distinct understanding between the parties that appellant would not engage in the newspaper business in Olney for a period of five years; that when asked to sign the agreement he did so promptly, without any conditions or objections. This testimony is not overcome by any counter proof. It clearly sustains the allegations of the bill, and proves beyond all question that as between these parties the property belonged to the appellant, and that the agreement was executed as a part of the consideration for the sale of the same, and is binding upon appellant.

It is next insisted that the contract is invalid because it is an unreasonable restraint of trade and against public policy. The law is well settled that contracts in total restraint of trade are void, for the reason that they are injurious to the public, depriving it of the industry of the party restrained, and also because of the injury to the party himself by being deprived of the opportunity to pursue his avocation for the support of himself and family; but a contract which is only in partial restraint of trade, and is reasonable in its provisions as to time and place, and supported by a sufficient consideration, is valid, and the restraint is held to be reasonable whenever it is such, only, as affords a fair protection to the interests of the one in whose favor it is made. 3 Am. & Eng. Ency. of Law, 882; Hursen v. Gavin, 162 III. 377, 44 N. E. 735; Union Strawboard Co. v. Bonfield, 193 Ill. 420, 61 N. E. 1038, 86 Am. St. Rep. 346; Consolidated Coal Co. V. Schmisseur, 135 Ill. 371, 25 N. E. 795. In this case the contract provided that the appellant would not engage in the newspaper business in the city of Olney for a period of five years. It was thus limited as to time and place, and appears to be reasonable in all its terms and conditions. We see no sufficient reason for holding it unreasonable.

It is next urged that the court erred in re

The

fusing to admit competent testimony offered by appellant. It is said that on the hearing he offered to prove the distinctive characters of the Olney Advocate and the Olney Times to to their respective classes of business and sources of patronage, and therefore no financial injury would result to appellee, which evidence the court refused to admit. record does not sustain the contention, except as to an offer to prove the politics of the papers. But, in any view, the evidence was wholly immaterial. Appellant entered into a contract not to engage in the newspaper business in the city of Olney for five years. The Olney Times was a newspaper published in the city of Olney, and the management of that paper by appellant was therefore in open violation of the terms of the contract, which was the only material issue in the case. The testimony was therefore properly excluded.

The general rule that a writ of injunction should only issue where there is an unquestionable right, and where irreparable injury will be suffered, and there is no adequate remedy at law, either on account of the insolvency of the defendant or for some other cause, is not applicable to this case. Courts of equity will, and frequently do, interpose by injunction, thereby indirectly enforcing the performance of negative covenants by prohibiting their breach; and where there is an express negative covenant, courts of equity will entertain bills for injunctions to prevent their violation, even though the same will occasion no substantial injury, or though the remedy be adequate at law. Consolidated Coal Co. v. Schmisseur, supra; Hursen v. Gavin, supra. Nor is the position that the decree below is broader than the terms of the contract, for the reason that appellant is enjoined from engaging in the newspaper publishing or printing business in the city of Olney, while the appellant only agreed not to engage in the "newspaper business" in the city of Olney, sustained by the abstract of the record. The terms of the injunction are that "the injunction in the above entitled cause be, and the same is hereby, decreed to be in full force, etc., as prayed in complainant's bill." The abstract as presented to this court does not show that the injunction ordered is in its terms broader than the contract. If that fact appears from the record, counsel for appellant should have shown it by the abstract.

It is finally insisted that the decree continues the injunction in force for one year longer than the terms of the agreement authorized. In the decree there is a manifest clerical error; the injunction being continued until the expiration of five years from November 2, 1902, instead of 1901. This is made manifest by the recital of the decree, "date of sale," immediately following the figures 1902, and the language, "as prayed in complainant's bill." The decree may be modified by simply changing the date "1902"

to "1901," thus making the injunction continue until November 2, 1906.

There is no reversible error in this record, and the decree of the circuit court will be affirmed, with the above slight modification. Decree affirmed.

(212 11. 206.)

SAUNDERS v. CITY OF CHICAGO. (Supreme Court of Illinois. Oct. 24, 1904.) MUNICIPAL CORPORATIONS-PLATS-VACATION

VALIDITY.

1. Laws 1847, pp. 166, 167, provided in section 1 that where persons had laid out towns or additions thereto, and the plats had been recorded, they, at any time before making sale of any lot, by executing and recording a writing might declare such plat to be vacated, and that, where any lots had been sold, the plat might be vacated by all the owners of lots joining in the execution of the writing; and section 3 authorized the vacation of a part or parts of a plat under the provisions and subject to the conditions contained in section 1. Held, that while such statute was in force the proprietor of a plat who had not invested other persons with title to lots therein had power to vacate the plat, or any portion thereof, as he might desire, and, after he had sold lots in the plat, the power to vacate the whole, or any part thereof, rested in the proprietor of the plat and the owners of all the platted property.

Ricks, C. J., and Wilkin and Cartwright, JJ dissenting.

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

Proceedings by the city of Chicago for the confirmation of a special assessment on the property of Ella A. Saunders. From a judgment confirming the assessment, Ella A. Saunders appeals. Affirmed.

Robert E. Pendarvis, for appellant. Robert Redfield and Frank Johnston, Jr. (Edgar Bronson Tolman, Corp. Counsel, of counsel), for appellee.

BOGGS, J. This was a proceeding in the county court of Cook county to confirm a special assessment for paving Loomis street, from Garfield Boulevard to Sixty-Third street, in the city of Chicago. The appellant, whose land was sought to be assessed, appeared and filed objections to the confirmation of the assessment. The objections were overruled, the assessment was confirmed, and appellant has prosecuted an appeal to this court.

On the 8th day of April, 1870, one Joshua Bell subdivided the west half of the southwest quarter of section 17, town 38 north, range 14 east, of which he was the owner, into lots, blocks, streets, and alleys, and executed and acknowledged a plat thereof, and on May 2, 1870, caused the plat, with the certificate of the surveyor, to be recorded in the office of recorder of deeds in and for Cook county. On the 20th day of February, 1871, said Bell sold and conveyed blocks 1 and 10 of said subdivision or addition to the city of Chicago to one Henry Mueller. On March 5, 1871, Bell executed, acknowledged,

and filed for record an instrument purporting to vacate all that part of the plat north of Sixty-First street. On the 6th day of August, 1872, Bell executed a deed purporting to convey to one Henry Saunders the east half of the northeast quarter of the northwest quarter of the southwest quarter of section 17, being a part of that portion of the said subdivision described in the instrument which purported to be a deed of vacation of a portion of the plat. Said Henry Saunders, by his last will and testament, devised the same tract conveyed to him by said Bell to the appellant. The following map shows the subdivision as originally platted (except that the lots into which the blocks were subdivided are not shown), the blocks (9 and 10) which were sold by Bell to Mueller, and the portion of the plat attempted to be vacated:

streets of the city. It is conceded by the appellant that Loomis street, throughout its length and breadth, is one of the public streets of the city, unless the instrument executed and filed for record by said Bell, the proprietor of the plat, bad legal operation to divest the municipality of the right and title thereto which had passed from him to it by the execution and recording of the plat.

Neither the whole nor any portion of a statutory plat can be vacated except in compliance with the provisions of the statute authorizing plats, or portions of plats, to be vacated. This plat was executed in 1870, and the instrument relied upon to vacate the porItion of it which is here involved was executed and recorded in 1871. The right to vacate a plat, or a portion thereof, was then governed by the act of the General Assem

The ordinance provided that the roadway of Loomis street should be paved with blastfurnace slag and crushed limestone and be curbed with sandstone curbstones, and that the cost of the improvement should be paid by special assessments on the property benefited by the improvement.

The premises, as described in the conveyance from Bell to Saunders and in the devise in the will of Saunders to the appellant, includes block No. 1 on the plat, that part of Loomis and Fifty-Ninth streets on which block 1 abutted, and the east half of that part of Bishop street and the north half of that part of West Sixtieth street on which the block abutted. The appellant insisted the deed of vacation was effectual to divest all rights that had been created by the execution and recording of the plat, and that she was the owner of the territory alleged to constitute all that part of Loomis street from the northern limits of West Fifty-Ninth street to the center line of West Sixtieth street, and that the city of Chicago had no power to improve this territory as one of the public

bly approved February 16, 1847 (Laws 1847, pp. 166, 167), which reads as follows:

"Section 1. That in all cases where persons have heretofore, or may hereafter, lay out towns, or additions to towns, or subdivisions of town lots, and the plats or maps thereof shall have been recorded, they, their heirs, assigns or grantees may, at any time before making sale of any single lot or lots, by executing a writing and causing the same to be recorded in the office in which the plat or map was recorded, declare such map or plat to be vacated; and the execution and recording of such writing shall operate to destroy the force and effect of the recording of the plat or map so vacated, and to divest all public rights in the streets, alleys, commons and public grounds laid down or described in such plat or map; and in cases where any single lot or lots have been sold, the plat or map may be vacated as herein provided, by all the owners of lots joining in the execution of the writing aforesaid: Provided, that no such writing shall be recorded until the execution thereof shall have been