NEGLIGENCE. CONTRIBUTORY NEGLIGENCE.

Continued.

as a matter of law, that if, from the evidence, they believe that the injury
to the plaintiff was caused by his attempting to climb upon the train in
question while the same was in motion, then he is not entitled to recover."
The court refused to give the instruction as asked, but modified it by
inserting after the word "motion," the words, "and that he was injured
in consequence of his own negligence," and gave it as modified: Held,
that the court erred in refusing to give the instruction as asked, and in
modifying the same. Chicago, Rock Island and Pacific Ry. Co. et al.
v. Eininger, 79.

NEGLIGENCE AS A QUESTION OF FACT.

5. Injury to child rolling hoop along defective sidewalk. Whether
a child ten and a half years old, who is injured while rolling a hoop along
a sidewalk in consequence of its unsafe condition, was guilty of negli-
gence on its part or not, is a question of fact, to be determined by the
jury from all the evidence in the case, and not one of law, to be deter-
mined by the court. The law neither infers negligence, nor its absence,
from the fact of the child rolling a hoop. City of Chicago v. Keefe,
Admr. 222.

TWO CORPORATIONS ACTING TOGETHER.

6. Death by negligence-when the servants of one corporation to
be regarded as also the servants of the other. In an action to recover
for the death of the plaintiff's intestate, occasioned, as was alleged, by
the wrongful act of the servants of the defendant company, a railway
and transit company engaged in transferring, with its own motive power,
trains of cars over the St. Louis bridge across the Mississippi river, it
appeared this service was performed under a private arrangement between
the defendant company and another corporation-the bridge company-
for a compensation paid by the latter company, the two companies thus
acting together in the transportation of passengers over the bridge, and
in that regard there was concert of action between them. The collector
of fares for the bridge company was on the trains crossing the bridge,
by the consent, and certainly with the knowledge, of the defendant com-
pany, and it permitted that servant of the bridge company to control the
movements of its trains. On the occasion in question, the plaintiff's
intestate was a passenger on one of defendant's trains, and while the train
was passing over one of the approaches to the bridge it was stopped in
obedience to a signal given by the collector of fares for the bridge com-
pany, and by his direction the passenger was put off the train upon a
trestle, from which he fell and was killed. It was held, as affecting the
question of the liability of the defendant, that the collector of fares for
the bridge company, while he was the servant of that company, was to
be considered, for the time being, at least, and while so engaged on the
train, as the servant of the defendant also. Union Railway and Transit
Co. v. Kallaher, Jr., Admr. 325.

INJURY FROM DEFECTIVE SIDEWALKS.

7. Liability of the city—injury to child rolling hoop. A city incor-
porated under the general law is liable in damages to the next of kin of a
child, who, while rolling a hoop along a sidewalk out of repair, is injured
in consequence of the defective state of the sidewalk, and who dies from
such injury, when such child, at the time of the accident, was not guilty
of negligence in failing to use the care for its safety required of one of
its age, and when the city had notice of the unsafe condition of the walk
before that time, or might have known its condition by ordinary care and
diligence. And it makes no difference that such child was rolling a hoop
at the time of the injury, when there is no ordinance prohibiting or regu-
lating the rolling of hoops upon the sidewalks. City of Chicago v.
Keefe, Admr. 222.

8. Imputing negligence to a minor in the use of a sidewalk. In
determining whether a boy, a little over ten years of age, was or was not
guilty of negligence in rolling a hoop over a defective sidewalk, where
he is injured, all the circumstances in evidence, including his age, should
be considered. If he exercised such care for his safety, as, under the
circumstances, might be expected from one of his age and intelligence,
it will be sufficient. Ibid. 222.

9.

Corporate duty and liability—in respect thereto-as to the char-
acter of use allowable. See MUNICIPAL CORPORATIONS, 9, 10, 11.
AS BETWEEN MASTER AND SERVANT.

10. Fellow-servants-injury to one from the negligence of another—
liability of common master-burden of proof-negligence of master.
See MASTER AND SERVANT, 7 to 10.

11. Negligence of master-injury to servant-liability, when ser-
vant takes the hazard of his employment. Same title, 6.

ABSENCE OF COUNSEL PENDING TRIAL.

12. Whether the defendant chargeable with negligence. See NEW
TRIAL, 1.

NEW TRIAL.

ABSENCE OF COUNSEL.

1. Negligence. On account of the sickness of defendant's counsel,
the cause in which he was employed was set at the foot of the September
calendar by consent, and after the death of the counsel so employed, the
defendant employed other counsel in February following, who, suppos-
ing the cause was placed at the foot of the February calendar, in which
case it would not be called for trial at that term, so informed the defend-
ant, and directed him to wait for notice, and while such attorney was
absent trying a cause in another county, the case was tried, and a verdict
rendered against the defendant, and the court refused to set aside the
verdict and allow a new trial: Held, that as the defendant was charge-

NEW TRIAL.

ABSENCE OF COUNSEL.

Continued.

able with some negligence, it could not be said the court abused its dis-
cretion in refusing to open the case and allow a new trial. Walsh v.
Walsh et al. 655.

NONSUIT.

DIRECTING A NONSUIT. See PRACTICE, 4.

NOTICE.

UNDER THE RECORDING LAW.

1. Notice of lien as to prior incumbrance - by recitals in deed.
Where a vendor of land states in his deed that it is subject to an indebt-
edness of his, naming the amount and to whom it is owing, and that the
grantee, as a part of the consideration of his deed, assumes the payment
thereof, such deed will create an express lien or charge on the land for
a distinct portion of the purchase money; and the recording of the same
will be notice of such lien to all persons claiming under the grantee.
Such a lien will have all the efficacy of a mortgage. Sidwell v. Wheaton,
267.

ORDERS MADE IN PROGRESS OF CAUSE.

2. To what extent parties are chargeable with notice thereof. Par-
ties are bound, at their peril, to take notice of all orders regularly made
in the progress of a cause. So if the cause is placed upon the trial
docket, it is the duty of the parties to be present when it is reached on
the call for final disposition; and if they are not, in the absence of a
reasonable excuse, they must suffer the consequences. Cleaver v. Smith
et al. 114.

DISSOLUTION OF PARTNERSHIP.

3. Of the notice required to protect retiring partner - mailing
notice-presumption. See PARTNERSHIP, 2, 3.

MUNICIPAL ORDINANCE.

4. Inhabitants of municipality chargeable with notice of the con-
tents and purposes of its ordinances. See MUNICIPAL CORPORA-
TIONS, 17.

ORDINANCE.

MUNICIPAL CORPORATIONS.

1. Special assessment for improvement of street-necessity for an
ordinance, and its requisites. See SPECIAL ASSESSMENT, 1 to 5.
2. Inhabitants of municipality chargeable with notice of the con-
tents and purposes of its ordinances. See MUNICIPAL CORPORA-
TIONS, 17.

PARK COMMISSIONERS.

CONSIDERED AS A MUNICIPAL CORPORATION.

1. Power to levy special assessments. The West Chicago Park Com-
missioners are a quasi public corporation for park purposes, and as such
have the power to take steps to cause property benefited by the estab-
lishment of a boulevard, to be specially assessed for the cost of the same.
Kedzie et al. v. West Chicago Park Commissioners, 280.

2. Effect of the act of 1873, as granting new powers, and of the
mode of procedure under the several acts on the subject. Section 12
of the act entitled "An act in regard to the completion, improvement
and management of public parks and boulevards, and to provide a more
efficient remedy for the collection of delinquent assessments," approved
May 2, 1873, relates to a new and entirely different subject matter not
provided in the original act relating to the West Chicago Park Commis-
sioners, and invests them with powers they did not before have. Ibid. 280.

3. The language of that section, to the effect that the cost and ex-
pense of acquiring title to land for a connecting boulevard or pleasure
way "shall be levied upon, and collected by special assessment upon, the
property deemed specially benefited by the location of such boulevard
or pleasure way, in the same manner as the cost of other lands for parks
and boulevards is assessed, under the several acts creating such boards,"
means that the same shall be done by and through the same agencies
or instrumentalities as were provided in such former acts. Section 4 of
the act of May 2, 1873, does not compel action in pursuance of its terms
in a proceeding under section 12, and does not repeal section 13 of the
act of February 27, 1869. Ibid. 280.

PARTIES.

ENFORCING A TRUST.

1. In favor of creditors-personal representations of a deceased
creditor-heirs as representing debts due the ancestor-in equity. A
conveyance of land was made in trust, to secure certain creditors, one
item of the indebtedness intended to be secured being described as a
claim of the estate of S. Seven years afterward, certain other creditors
secured, filed their bill against the trustee, to enforce the trust, making
the unknown heirs of S. parties. No objection was made in the court
below that the administrator or executor of S. was not made a party, but
this objection was first made in the Appellate Court: Held, that it would
be presumed the estate of S. was settled after so great a lapse of time,
and that this part of the estate had vested in his heirs, in the absence of
anything appearing to the contrary. In equity the title is treated as being
where, in good conscience, it ought to be. Rankin v. Barcroft & Co.
et al. 441.

2. After the settlement of an estate the heirs of the decedent will, in
equity, be treated as the owners of any uncollected claim due the estate;

and if they are made parties to litigation involving the collection of such
claim, the debtor will be protected in making payment to them. Rankin
v. Barcroft & Co. et al. 441.

ASSIGNMENT OF DOWER.

3. Lands held in severalty—against whom dowress may proceed.
See DOWER, 5.

PARTITION.

BY AGREEMENT.

1. Inequality of the division—estoppel. Husband and wife agreed
to divide a lot of ground so that the wife should receive one-third in
value of the whole lot, and they each selected a third person, who made
the division, which was satisfactory to them. In suit for partition the
court confirmed this division, without regard to the exact value of the
part set off to the wife: Held, that the husband, having acquiesced in
the division as made, could not be heard to allege that the wife received
more in value than one-third of the whole lot. McDowell v. McDowell,
255.

PARTNERSHIP.

INTEREST IN PROFITS.

1. Whether a partnership. A person may contract with a particular
member of a firm for an interest in his share of the profits, without
making himself a member of such firm and liable for its debts. Meyer
et al. v. Krohn et al. 574.

DISSOLUTION.

2. Of the notice required, to protect retiring partner. As to persons
who have never had any business transactions with a partnership firm,
notice by publication in a newspaper published at the place of business
of the firm, of its dissolution or the withdrawal of a member, is sufficient;
but as to those who have had previous dealings with it, actual notice or
its equivalent must be shown, to protect the retiring member from lia-
bility for debts subsequently incurred in the firm name. Ibid. 574.

3. Mailing notice-presumption. Proof of the mailing of notices of
the dissolution of partnership and of the retirement of certain members
thereof, properly addressed to persons having had prior dealings with the
firm, is prima facie evidence that the notices have been received by the
parties to whom they were addressed; but such presumption may be
rebutted by proof that they were not received. Ibid. 574.

ACCOUNTING BETWEEN PARTNERS.

4. How far assets of firm in hands of receiver are beyond control
of parties-creditors obtaining priority over each other. See RE-
CEIVERS, 1 to 4.