width of that shown by the evidence across a sidewalk necessarily rendered the sidewalk unsafe for night travel, and in such case it was under obligation to the public to see, either that guards were provided, or that the apron was replaced in such condition as to make it reasonably safe for pedestrians.

We think the action of the court in refusing the proffered testimony worked no injury to appellant, as it was immaterial, and that there was no manifest error in such action.

Complaint is also made of the refusal of the court to give the fourth, fifth, and sixth instructions tendered by appellant. These instructions all embody the principle that the village could not be held negligent on account of the defect in the sidewalk and apron, without it had either actual notice, or constructive notice from lapse of time, cf such defect. If a municipal corporation causes work to be done, which is, in its nature, dangerous to the public, it is bound to take notice of the character of the work and of the condition in which it is. left, whether safe or dangerous: City of Springfield v. Le Claire, 49 Ill. 476; City of Chicago v. Johnson, 53 Id. 91; City of Chicago v. Brophy, 79 Id. 277. Therefore, under the second and third counts of the declaration, which charge active misfeasance by the village, by negligent restoration and by negligent construction, respectively, of the cross-walk, it was unnecessary to prove notice. The said several instructions were not limited to the first count of the declaration, under which notice was a necessary element of the right of action, but applied to all three of the counts alike. The instructions were properly refused, and if given, they would likely have misled the jury. It is true that in City of Chicago v. McCarthy, 75 Ill. 602, these identical instructions were held to properly present the law; but instructions must always be based on the facts of the particular case on trial, and in that case, the sidewalk "was properly and safely constructed and laid down" not more than seven days before the accident, while here the cross-walk was not properly and safely replaced.

It was not error to refuse the seventeenth instruction. The only degree of care that the law imposed upon appellee was ordinary care; but what is ordinary care in one condition of circumstances might not be ordinary care under other and different circumstances; and it is a question of fact for the jury whether, in the particular case, the plaintiff was in the exercise of ordinary care.

It was not error to refuse the ninth instruction.

The negli

gences in respect to which a cause of action was claimed were in suffering the cross-walk to remain out of repair, in improperly constructing the cross-walk, and in improperly replacing the cross-walk. The evidence that there were no street-lamps at the crossing was not objected to, and, besides this, it was admissible as a part of the res gestæ, and was competent and material evidence upon the question of due care by appellee. The proximate cause of the injury was the defective apron, and this notwithstanding the fact that if there had been a light there appellee might have avoided the accident. Under the pleadings and the evidence, it would have been misleading to have set the jury afloat on a sea of conjecture, by instructing them that if the place was not lighted, and the injury resulted solely from a failure to light the street, then they should find for the defendant.

Instruction 10 did not properly state the doctrine of comparative negligence, and there was no error in refusing it. It is also claimed that the first instruction given at the instance of appellee was erroneous. It appears, however, from the record that no exception was taken, at the trial, to the giving of that or any other of the instructions submitted by appellee. Appellant is therefore precluded from now insisting upon this assignment of error.

The judgment of affirmance in the appellate court conclusively settles all the controverted questions of fact in the case, and that court, in their opinion, say that "the merits of the case are clearly with the plaintiff, and the verdict is well supported by the evidence." We now, in our examination of the record, find no such errors in the rulings of the trial court as require or would justify a reversal.

The judgment of the appellate court is affirmed.

NEGLIGENCE.

WHEN A QUESTION OF FACT FOR THE JURY, and when a question of law for the court: Chicago etc. R'y Co. v. Robinson, 127 Ill. 9; ante, p. 87, and note. What constitutes ordinary care must be determined by the facts surrounding each case: City of Kinsley v. Morse, 40 Kan. 597.

MUNICIPAL CORPORATIONS. It is the duty of a city to keep its streets and sidewalks in a reasonably safe condition for traveling purposes, and this duty cannot be evaded or cast upon others by any act of its own: Norton v. City of St. Louis, 97 Mo. 537.

MUNICIPAL CORPORATIONS - ACTS OF CONTRACTOR. A city is not absolved from its duty of keeping its streets in a safe condition because it has employed a contractor to do work thereon, and the streets become unsafe through his neglect, nor because it has not accepted his work: Turner v. City of Newburgh, 109 N. Y. 301; 4 Am. St. Rep. 453; compare Wright v. Holbrook, 52 N. H. 120; 13 Am. Rep. 12.

MUNICIPAL CORPORATIONS DUTY TO LIGHT STREETS. A city is under no obligation to light its streets, and its mere neglect to do so is not a ground of ability, unless the charter expressly imposes such duty; but inasmuch as a street partially obstructed or out of repair may be reasonably safe if ligated, but dangerous if unlighted, the fact that it was not lighted may be material upon the question of negligence: Miller v. City of St. Paul, 38 Minn. 134.

CLARK V. WILSON.

[127 ILLINOIS, 449.]

CONVEYANCE WILL NOT BE SET ASIDE AS A FRAUD ON THE CREDITORS O THE GRANTOR, if it appears that he had no title at the time of making such conveyance.

UNSIGNED CERTIFICATE OF ACKNOWLEDGMENT BY NOTARY PUBLIC IS VOID, though it is attested by his seal.

EVIDENCE ADMISSION OF GRANTOR. — Conveyance cannot be proved by admission of a person who has never been in possession of the property, but from whom the defendant has a conveyance, if the title of the defendant was perfect without such conveyance, and he has never relied thereon. EVIDENCE. IN AN ACTION TO SET Aside a CONVEYANCE AS FRAUDULENT, THE ANSWER OR CONFESSION of the grantor or grantee cannot be admitted as evidence against one who claims under them, if he has answered denying the material allegations of the bill.

ACTION to set aside certain conveyances. In the appellate court, the following opinion was delivered:

"LACEY, J. This was a bill brought by the plaintiffs in error, judgment creditors of defendants in error, Osman J. Wilson, in aid of the assignee, for the benefit of the creditors of said Wilson, the assignee neglecting and refusing to bring the suit. It was sought by the bill to set aside certain deeds, mortgages, notes, and acknowledgments of indebtedness, executed and made by the said Wilson to different parties shortly before the execution of the deed of assignment by him, as fraudulent and void, and as in fraud of the assignment. Upon final hearing, the circuit court rendered a decree in said cause, granting complainants certain relief, and refusing certain other relief asked for. Among the matters of relief asked for by the plaintiffs in error was the setting aside, as fraudulent, a certin supposed deed, executed by said Osman J. Wilson, the assignor, and wife, prior to his assignment, December 18, 1884, to Abram Wilson, in consideration of one dollar, as named in the deed, for the west half of lot 19, in Earlville; and also a deed on the same lot, executed by said Abram Wilson and wife to Henry Boozel, one of the respondents, December 20,

1884, for consideration, named in the deed, of three thousand dollars; and also a certain promissory note, executed by the said O. J. Wilson to his son, John T. Wilson, for the sum of one thousand dollars, executed December 18, 1884, just prior to the assignment. The court below refused the relief asked as to the above-named deeds and note, and dismissed the bill as to Abram Wilson and Henry Boozel, no relief being sought as to them, except as to said deed, but held and decreed, as regards the note of one thousand dollars given to John T. Wilson, that it be allowed as a claim against the estate of O. J. Wilson, to be paid pro rata, the same as other claims. The above ruling and action of the circuit court are sought to be reversed on this writ of error.

"It appears from the evidence that Abram Wilson was the owner of the said half-lot in Earlville as far back as April 18, 1883, by deed to him of that date, for said lot, from the legal heirs of Benjamin Reynolds. It therefore became indispensable for plaintiff in error to show that O. J. Wilson at the same time owned the said lot in question; otherwise, he never having owned the lot, and never having any interest in it, there could be no fraud in his conveyance to his son Abram by mere quitclaim deed. It appears from the evidence that O. J. Wilson never had possession of the lot, the possession always having been in Abram. In order to show that O. J. Wilson ever had title in the said premises, the plaintiffs in error offered what purported to be the record of a deed to said lot by Abram Wilson and wife to him, dated October 20, 1883. It appeared from an examination of the record that the deed purported to have been acknowledged before a notary public, and while the notary's seal was attached to the acknowledgment, the name of the notary was not signed to it. The reading of this record in evidence was objected to by Boozel, for the reason that the acknowledgment was not signed. We are clearly of the opinion that the deed was not properly acknowledged so as to make the record evidence of the execution of the deed.

"We are also of the opinion that there was no other competent evidence of the execution of the deed. Certain witnesses ---Kelley, Munson, Bliss, Poole, and Taylor-were introduced. to show, by admissions of O. J. Wilson, made out of the presence of Boozel, after he had acquired title to the lot from Abram, to the effect that O. J. Wilson had been the owner of the land at one time; also McDonald, to show that prior to the time that O. J. Wilson executed the deed to Abram, Octo

ber, 1884, and after the supposed deed from Abram to O. J., the latter claimed to own the lot. We hold that none of the above evidence was competent to prove the execution of the supposed deed from Abram to O. J. Wilson. Abram had had a complete chain of title to the lot without deraigning title through O. J. Wilson, and after the deed from Abram to Boozel, he also had a complete title to the lot, without reference to the deed from O. J. Wilson to Abram, unless it can be shown that the supposed deed from Abram to O. J. Wilson had in fact been executed. The law did not require him to claim title through O. J. Wilson. He might rely on his chain of title without the latter's conveyance to Abram Wilson. Defendant in error Boozel's title was not dependent on showing that O. J. Wilson had once title, as supposed by counsel, but it was sought to prove that O. J. Wilson had once the legal title, as a starting-point to attack the title of defendant in error Boozel. Such admissions are incompetent to show the execution of the deed, either made after or before the deed from O. J. Wilson to Abram Wilson. Conveyances cannot be proved by parol evidence, and the execution of a deed cannot be proved by the admissions of persons not themselves shown to have been in privity with the title under which the grantee claims. Evidence of possession is competent to show title, but in this case O. J. Wilson never had possession of the lot. Even if admissions of the holder of the title to real estate may be competent evidence to impeach title, when made by a person while the owner is in possession, against his subsequent grantees, under certain circumstances, a question we need not decide, yet this would be an exception to the general rule against hearsay evidence, based on the ground that such admissions are made against the owner's interests, and are res gestæ. But this ownership must in some way be shown by evidence other than the admissions. It would be just as competent to prove agency by the admissions of the supposed agent as to allow title to be shown by the declarations of the supposed grantee. We are clearly of the opinion that the execution of the deed cannot be proved by showing the state of the accounts between O. J. and Abram Wilson. That throws no light on the subject. The plaintiffs in error cannot invoke either the answer to the bill of O. J. Wilson or the default of Abram Wilson, as admitting the title against their co-respondent, Boozel, the latter not admitting in his answer title in O. J. Wilson at any time. The matter must be regarded, conform

AX. ST. REP., VOL. XI. — 10