is only of importance to settle that, be the rule good or bad, the proprietor had the right to make it, and to enforce it.

"The pursuer here has been in the habit for many years of carrying on respectably, and apparently not without profit, a trade which leads him to frequent markets and sell refreshments in a tent or booth. On the occasion in question he had set up his tent within the prescribed boundary of the horse market. About this matter of fact the evidence leaves no room for doubt. He either broke or removed the dividing wire, and taking the most favourable view for him, namely, that he acted under a misapprehension, his mistake was pointed out to him before he had finished putting up his tent; and the illegality of his act was insisted upon emphatically more than once before the tent was removed.

"I have already indicated the grounds upon which I am unable to sustain the pursuer's claim to put his tent where he did as a matter of right. But he pleads alternatively that he had got no warning that it was a regulation of the market that only one tent was to be allowed in the horse market; and also that the site on which he pitched his tent had been let to him by the subtacksman. The pursuer's case, however, fails on both these grounds also. It is true that there were no printed or published regulations to guide the tentowners; but the afternoon before the market had been fixed as a time when the stances would be allocated, and the pursuer failed to attend on that occasion, although invited to be present. Had he been there he would have heard a distinct prohibition by the tacksman against erecting a tent beyond the boundary wire. Besides, it is incredible that what was well known to the other tent-owners should not have been known by the pursuer, both from the general understanding of the market and from what had occurred in the previous year. On that occasion the pursuer had occupied a portion of a stance which he had not taken, and to which he had no right, although the tacksman seems to have tolerated him; and an attempt by another publican to put a second tent in the horse market was stopped.

"But even supposing the pursuer was honestly ignorant that he was breaking a rule, the fact remains that he was occupying a place to which he had no title. It had not been let to him. He was a mere intruder or squatter, asserting a right to put his tent where he chose. He says, it is true, that there had been let to him the same stance as he had had the previous year. Now, what happened in the previous year was this: Stance No. 10 was let to him, but he did not like it, and did not occupy it, and he put his tent up without permission in a part of No. 1 stance, which the tenant of that stance did not require; or (to put it otherwise) on a blank space which had not been let to anybody, lying between No. 1 stance and the boundary of the two markets. He pushed himself in there, and no one seems to have thought it worth while to put him out. But on the present occasion No. 1 stance was pinned off, close up to the boundary wire, so that the pursuer could not put his tent between No. 1 and the horse market. He gained his point, however, by stretching the boundary, or in other words, by breaking or moving the wire. that any place was actually assigned to the pursuer, it was stance No. 10; because that was the stance which he had taken, although he had not occupied it, in the previous year. It cannot be that the place which he had actually occupied without taking it in the previous year was let to him this year, because no such place was in existence, that is, there was not space between No. 1 and the wire. Therefore, in no possible view can it be held that he ever had acquired a right to the place on which he chose to put up his tent. "Thus, neither by the common law, nor by contract, had the pursuer right to occupy with his tent any part of the market whatever, unless it were No. 10 stance, and that stance he himself repudiates.

If it be true

"The only remaining question, therefore, is whether the defender was entitled to expel the pursuer in the manner that he did. I am of opinion that he was. Of course, there is a very important sense in which no man is allowed to take the law into his own hands. But there are some exceptions to

that rule, generally occurring in cases where a wrong is being suffered, for the prevention of which the movements of the law are too slow. If a man is found in the garden of another stealing fruit, the owner, if he is physically capable of turning out the intruder, is entitled to do so, without waiting for an officer of the law or a magistrate's warrant. He must, of course, use no more violence than is necessary to effect his purpose. In the present case the most ample warning was given to the pursuer, and he had abundant opportunities of taking down his tent. But he took up a position of defiance. The defender was not only bound by his undertaking to the proprietor of the market to observe certain regulations, but he was under a tacit obligation to the publican who had got the monopoly of the horse market refreshment, and to all the other tent-owners, to keep the pursuer and everybody else from erecting his tent beyond the boundary line. There was no course open to him in the fulfilment of these obligations and undertakings except the course which he adopted. His conduct was unaccompanied by any violence, and the trifling damage sustained by the pursuer must be laid at the door of his own obstinacy. J. C. T."

Act.-M'Lennan.--Alt.-Duncan.

DEBTS RECOVERY COURT OF BANFFSHIRE.

Sheriff SCOTT MONCRIEFF.

DALLAS' TRUSTEE v. BOW.

Compensation.-Circumstances in which held that there was concursus debiti et crediti so as to support the plea of compensation.

In this case the following interlocutor was pronounced:

"Banff, 17th March 1879.-Having heard parties' procurators on the proof led and whole cause, and made avizandum: Finds that the defender has incurred to William Dallas, merchant in Macduff, the amount of the account sued for, being £17, 3s. 10d.: Finds that the pursuer is the trustee upon the sequestrated estate of the said William Dallas: Finds that there falls to be deducted from said sum the sum of £15, 18s. 34d., being the amount of a counter account due by the said William Dallas to the defender: Therefore sustains the pleas stated for the defender, and decerns against him for the sum of £1, 5s. 61d., being the balance of the amount now sued for after deducting the said sum of £15, 18s. 31d. Further finds the defender entitled to expenses of process, and decerns at his instance against the pursuer as trustee foresaid for the sum of £6 of taxed expenses of process.

"Note. The circumstances in this case are rather peculiar, and the point raised one of some difficulty. The accuracy of both accounts is admitted, but to the defender's plea of partial compensation the objection is raised by the pursuer that there is here no concursus debiti et crediti, because the counter account is due not by the bankrupt, but by his father, Mr. Alexander Dallas. The bankrupt succeeded his father in what was his principal business some years ago. Since that time he has lived in his father's house, and, according to his statement when examined in bankruptcy, the household has been almost maintained out of his business. Mr. Alexander Dallas was a customer of the defender, but for years back the accounts for the Dallas household due to the defender have been settled by the son William Dallas, and since 1876 they appear in the books, and have been made and sent out in his name. No objection was ever taken to this. The defender was never told that William Dallas would not hold himself responsible for these accounts. On the contrary, they were always settled by him in precisely the same way as the defender now maintains the present account should be settled, viz. by squaring them with accounts due by the defender to William Dallas personally. Further, during this period the defender had one separate transaction with Mr. Dallas senior,

and what took place upon that occasion certainly must have led the defender to believe that young Mr. Dallas was the person to whom to go for the settlement of his ordinary accounts. But, indeed, the bankrupt himself does not deny that had he continued solvent he would have recognised the present counter claim. If so, I do not think that, in the circumstances proved, the trustee is entitled to reject it. No doubt, as the items which form the counter account went to a house of which Mr. Dallas senior was the nominal master, there is a presumption that he is responsible for them, but such a presumption may be overcome by proof, and I think it has in this ease. It may be observed that in point of fact neither the father nor son ordered the goods, Miss Dallas having taken charge of the household.

"The pursuer takes a special objection to compensation being pleaded against the two last items in the account sued for. It is true that these items were obtained by the defender from William Dallas on the eve of his bankruptcy. But surely this fact, even along with the defender's admission of having heard some rumours of Dallas' insolvency, is not sufficient proof of an attempt to secure an illegal preference. There is nothing to show that the defender and bankrupt are acting in concert. On the contrary, the bankrupt did not give up the defender as one of his creditors. If he had done so this action might possibly have been avoided."

as a

Notes of English, American, and Colonial Cases.

SUPREME COURT OF ILLINOIS.

GRIDLEY v. CITY OF BLOOMINGTON.

A city ordinance imposing a fine upon any one permitting snow to remain on the sidewalk abutting premises owned or occupied by him beyond a specified time, held, invalid. Such an ordinance is not a proper exercise of municipal police power. Complaint under oath was made charging that defendant permitted snow to remain upon the sidewalk abutting upon premises occupied by him "wood and stable lot," contrary to an ordinance of the city, which provides that, "whoever being the occupant of any occupied premises, or the owner of any vacant premises, shall suffer any snow to remain on any sidewalk or footway adjacent thereto, longer than six hours from the time the snow ceases falling, or if the cessation be in the night time, then longer than six hours after sunrise on the next morning, shall be fined five dollars, and be subject to a like penalty for each day such snow so remains after the first penalty has been incurred."

Proof was made that the defendant, on the 16th day of February 1875, owned and occupied lot three in White's addition to Bloomington, as a wood and stable lot; that there was a sidewalk on the south side of the lot which abutted on Grove Street; that defendant did not remove the snow that had fallen on the sidewalk two or three days before to the depth of several inches, within six hours after sunrise on the day mentioned in the complaint; and that the sidewalk in question was within the corporate limits of the city.

It was admitted for the defence that White's addition to Bloomington was laid out by James White on the 7th day of April 1856. On the trial the defendant was found guilty and fined in the sum of three dollars; and from the judgment rendered against him defendant prosecutes his appeal to this Court.

Scott, J.-The ordinance under which defendant was prosecuted imposes

a fine upon any one who shall permit snow to remain on the sidewalk abutting premises occupied or owned by him longer than a period of six hours after it ceases to fall; or if the cessation is in the night time, then longer than six hours after sunrise the next morning.

The validity of that ordinance is the only question made on the argument. It was admitted the lot occupied by defendant was one of an addition to Bloomington that was laid out in 1856, and hence it follows, under the decisions of this Court, the fee of the street in front of the premises was either in the original proprietor or in the Corporation.-I. B. & W. R. R. Co. v. Hartley, 67 Ill. 439; Gebhardt v. Reeves, 75 id. 301.

The public had an easement over the street in front of the lot owned and occupied by the defendant, and it makes no difference, so far as this decision is concerned, whether the fee of the street passed by the plat and dedication to the Corporation, or whether it remained in the original proprietor. It is plain defendant has no other interest in the street in front of his property than any other citizen of the municipality. The same is true of the sidewalk. It is a part of the street set apart for the exclusive use of persons travelling on foot, and it is as much under the control of the municipal government as the street itself.

The owner of the adjacent lot is under no more obligation to keep the sidewalk free from obstructions than he is the street in front of his premises. He may not himself obstruct either so as to impede travel on foot or in carriages. It will be conceded the citizen is not bound to keep the street in front of his premises free from snow or anything else that might impede travel. Then upon what principle can he be fined for not removing snow or other obstruction from the sidewalk in which he has no interest other than what he has in common with all other persons resident in the city. It is certainly not upon the principle under which assessments are made against the owner for building sidewalks in front of his property. The cases are not analogous. Such assessments are maintained on the ground the sidewalk enhances the value of the property, and to the extent of the special benefits conferred they are held valid. It would be absurd to suppose that assessments for benefits for local improvements could be enforced by fine or penalties as in the ordinance under which defendant was fined.

Nor do we think this ordinance can be upheld as an exercise of the police power inherent in all municipal governments. It was expressly decided by this Court in City of Ottawa v. Spencer, 40 Ill. 211, that local improvements of either sidewalks or streets cannot be compelled under the general police power. The Legislature must afford the necessary power for constructing all needful improvements, subject to constitutional limitations, and when one mode of making such improvement is sanctioned by the Constitution, no other can be adopted.

Keeping streets and sidewalks in repair and free from obstructions that impede travel or render it dangerous, is referable to the same power as for constructing new improvements. The sidewalk, as was declared in the case cited, is as much a public highway, free to the use of all, as the street itself, and upon principle it follows, the citizen cannot be laid under obligations under our laws to keep it free from obstructions in front of his property, at his own expense, any more than the street itself, either by the exercise of the police power, or by fines and penalties imposed by ordinance or by direct legislative action.

Our conclusion is, the ordinance in question is invalid, and the judgment must be reversed and the cause remanded.

Judgment reversed.

THE

JOURNAL OF JURISPRUDENCE.

RECENT DECISIONS RELATING TO INSOLVENCY.

The trustee.-During the interval between sequestration and the appointment of a trustee it is competent to appoint a judicial factor for the management of a bankrupt estate. Power to appoint such a factor is conferred by the 16th section of the Act 19 and 20 Vict. c. 76. In the case of Partridge v. Baillie (December 9, 1873, 1 Ret. 253) it was held in the Sheriff Court that their appointment could only be made prior to the award of sequestration, but the Court of Session refused to accept this narrow con-' struction of the Act. As Lord Cowan remarked, "such an appointment may be especially necessary after sequestration."

Election of trustee.-The case of Wiseman v. Skene (March 5, 1870, 8 Macph. 661) raises the question, "whether when a person is nominated as a trustee, and supported by a body of creditors, and he does not choose to compete with the candidate of another portion of the creditors who has at the meeting for the election of a trustee obtained an apparent majority of the votes, his supporters may enter into a competition on their own behalf, and have him declared elected if they can satisfy the Sheriff that he was supported by a majority of creditors entitled to vote." The Sheriff in this case had sustained their title to do so, and the Court held that he was right. The Lord President observed, "The statute contemplates that the creditors are the parties to conduct the competition. It is to them that the statute refers, when in the 69th section it provides that the Sheriff shall hear parties viva voce, and declare the person or persons trustee or trustees in succession whom he shall find to have been duly elected." The 71st section of the Act provides that the judgment of the Sheriff declaring a trustee elected "shall be final, and in no case subject to review in any Court or in any manner whatever." In the case of Brown v. Lindsay (March 2, 1869, 7 Macph. 595) we see an attempt to VOL. XXIII. NO. CCLXX.-JUNE 1879.

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