1882, the Huron Iron Company was in debt to the Portsmouth National Bank, the Iron Bank, and the First National Bank of Jackson, in the amounts and in the manner claimed by said banks, in their respective cross-petitions; and the said William Vaughn, Lot Davies, John J. C. Evans, Adam Bauer, and C. F. Bertsch, who, while, in form, parties as makers or indorsers to some of the paper held by said banks evidencing their said claims, yet were, in fact, mere accommodation sureties for the Huron Iron Company. Second. That the Huron Iron Company, for about a year prior to the appointment of the receiver as hereinafter mentioned, was much embarrassed pecuniarily, and, although its general commercial credit remained good, it endeavored to borrow money to reduce its indebtedness to the banks, but failed to do so. The banks were pressing for security for their claims, and at the instance of the First National Bank of Jackson and the Iron Bank a meeting of the directors of the Huron Iron Company was called for the 27th day of September, 1882, to consider the request of said banks for mortgage security. Pursuant to this call, five of the seven directors of the Huron Iron Company met on said 27th day of September, 1882, at Jack son, those present being William Vaughn, J. D. Clare, Lot Davies, J. J. C. Evans, and Robert G. Hunter, and at once proceeded to consider the financial condition of the company and the propriety of giving mortgage security to the banks, and ascertained its financial condition to be bad, and that its indebtedness was about $85,000.00. After considering, it was resolved to give mortgages upon the company's real estate to secure the claims of all three of the banks, and a resolution was duly adopted by the aforesaid five directors for that purpose, and to continue business under the management of Lot Davies if they could do so. The mortgages mentioned in the cross-petition of said banks were thereupon prepared by the attorneys of the banks, and duly executed by the officers of the company and placed on record. At the same time, in view of the contingency of the unsecured creditors moving against the company upon learning of its action in securing the banks, it was determined in such event to place the business and property of the company in the hands of a receiver, and the person was then agreed upon who, in such case, should institute the necessary suit, and also the person who should act as receiver; Mr. E. T. Jones, who was afterwards appointed receiver, being the person then agreed upon for that place, and Mr. Linn Bentley as the person to bring the suit, and who, in fact, was applied to for that purpose, but declined to act. Third. The said mortgages conveyed all the real estate belonging to the Huron Iron Company, and were made and executed upon no other consideration than the pre-existing indebtedness of the company to said banks, set forth in their crosspetition; but the said mortgages by their terms were made to secure the gross indebtedness, and not the notes evidencing the same. Fourth. At the time said mortgages were executed, the said J. D. Clare was not only a stockholder and director of the Huron Iron Company, but was also a stockholder and director, and was vice-president, of the First National Bank of Jackson; and the said Lot Davies was also a stockholder and director in both the Huron Iron Company and the First National Bank. Fifth. At the time of the execution of said mortgages, said banks, and each of them, knew that the Huron Iron Company was financially embarrassed. Sixth. On the 28th day of September, 1882, the next day after the mortgages were executed, the said John J. C. Evans and David Davis, who was the secretary of said company, and attorney of the Iron Bank, in view of the insolvency of said company, and on the ground that Lot Davies had left the furnace and refused to manage it, procured the plaintiff, John D. Jones, to bring this suit, the said Linn Bentley having refused to do so; and on the morning of the 29th day of September, 1882, procured the appointment of E. T. Jones as receiver, who at once took charge of the business and property of said company, and afterwards converted all the assets of the company into money, which was brought into court, and is now here for distribution. Seventh. The said mortgages were executed on the 27th day of September, A. D. 1882, and were delivered and recorded as stated in the pleadings, all three of the mortgages being delivered for record at the same time; that the mortgage to the Portsmouth National Bank was executed by the Huron Iron Company, and delivered by it to the recorder of Jackson county without the knowledge of said bank or any of its officers or agents, but that, at the time it was so executed, W. A. Hutchins, although without any authority to do so, assumed to represent the bank, and on its behalf accepted said mortgage, and authorized the recording thereof, and on the next day submitted his action to Samuel Reed, then the cashier of said bank, by whom it was fully ratified and confirmed; that Reed acted for the bank in his capacity of cashier; that neither the action of Hutchins nor the matter of the acceptance of said mortgage was ever submitted to the directors of said bank at any meeting of the board, or did they as a board ever take action upon it in any way, but after Reed was so informed by Hutchins that the mortgage had been taken, Reed, in his capacity as cashier, informed John G. Peebles, the president of the bank, of the fact, who was entirely satisfied therewith; and that he also informed M. R. Tewksbury, one of the directors of the bank, of the fact, who, although not very well satisfied therewith, acquiesced therein, the said Reed, Peebles, and Tewksbury constituting at the time three of the five directors of the bank; and, in addition thereto, the teller of the bank, W. C. Silcox, was sent by Reed, the cashier, to Jackson, Ohio, to examine and see that the mortgage had been left for record, and he accordingly made the examination and ascertained that it had been so left. Eighth. At the time of the execution of said mortgages, the Huron Iron Company | was in fact actually insolvent, but the fact of such actual insolvency was not known to said bank. The property of the company was in the hands and under the control of its officers and agents. Its furnace was in blast, its business was being carried on as a going business, and was in active operation under the exclusive management and control of its officers, as it had previously been. The company had not taken action to abandon or discontinue business, but expected to continue the same as before. Ninth. In giving and taking said mortgages, all parties acted in good faith, aiming to give and accept security for a bona fide indebtedness. The said Lot Davies and J. D. Clare, though stockholders and directors of the First National Bank, yet acted in good faith as regarded their duty as stockholders and directors of the Huron Iron Company. And as its conclusions of law upon the above found facts the court find that, by the execution and delivery of said mortgages, the said banks each acquired a lien upon the real estate of the Huron Iron Company to secure the amount of their respective claims, next in order of priority after the mechanics' liens of Benoni Gray and the Portsmouth Foundry & Machine Works, and that there is now due them thereon from the Huron Iron Company, from which they have a lien, the sums following, being the principal of each claim, with interest to the 23d day of May, 1883, being the day of the sale of said real estate, to-wit: To the Portsmouth National Bank...... $30,365 00 To the Iron Bank... 2,619 90 To the First National Bank of Jackson.. 20,850 60 And that they are entitled to a pro rata distribution of the balance of the proceeds of the sale of said real estate remaining after paying therefrom a proportionate share of the costs of the action and the prior liens upon said real estate as herein determined. And the court, coming now to distribute the moneys now in the hands of the sheriff, do find and order that the costs of this action, taxed to $ — be paid out of the proceeds of the personal property and the real estate of the Huron Iron Company in the proportions following, viz.: Out of the proceeds of the personal property.. And out of the proceeds of real estate..... And it is further ordered and adjudged that the proceeds of said real estate now in the hands of said sheriff, amounting to $30,666.00, be paid and distributed as follows, viz.: (1) Upon costs of this action.... (2) To Benoni Gray (3) To the Portsmouth Foundry & Machine Works... (4) To the Portsmouth Nat'l Bank.. (5) To the Iron Bank... (6) To the First National Bank of Jackson $And it is further ordered and adjudged that the proceeds of the personal property now in the hands of the sheriff, amounting to $19,436.22, be paid and distributed as follows, to-wit: (1) Upon the costs of this action....... (2) To John D. Davis..... $5,459 20 (3) To the following named creditors of the Huron Iron Company, equally in proportion to their respective claims as heretofore and herein found by the court, or allowed by the receiver; and as to them, and all the other creditors, that the residue of such fund, after the payments herein before provided for, be distributed to the general creditors upon the basis of the amounts due them on the first day of this term as follows, to-wit: The Portsmouth National Bank.... The First National Bank of Jackson.... $- $19,512 57 2,104 30" To these findings, both of fact and of law, Damarin & Co. and other unsecured creditors excepted at the time, and asked that they should be set aside and a new trial granted, which was overruled and judg ment entered on the findings. A. C. Thompson, for Damarin & Co. E. W. Strong and Moore & Moore, for E. L. Harper & Co., plaintiffs in error. Wells A. Hutchins, A. T. Holcomb, and Tripp '& Davis, for defendants in error. PER CURIAM. There is some question as to what this suit should be regarded, whether as in the nature of an assignment, or as a suit to dissolve a corporation on the ground of insolvency, or for the appointment of a receiver in aid of a creditor only. We shall treat it, however, as a suit to dissolve a corporation, because, upon the facts as found, such proceeding might have been instituted, and a dissolution must necessarily result from awarding the relief to which the creditors are entitled. The company, being indebted largely in excess of all its corporate property and assets of every kind, cannot, for the want of capital, continue business after its creditors have been satisfied. The question then arises whether, under the provisions of section 5661, Rev. St., these mortgages, executed at the time and under the circumstances that they were, are valid or not. The section reads as follows: "All sales, assignments, transfers, mortgages, and conveyances, of any part of the estate, real or personal, including things in action, of every descrip. tion, made after the petition for dissolution of the corporation is filed, in payment of or as security for any existing or prior debt, or for any other consideration, and all judgments confessed by such corporation after that time, shall be absolutely void as against the receiver appointed on such petition, and as against the creditors of the corporation. The petition in this case was filed on the day following the execution and record of the mortgages to the banks; but, upon the principle of Rouse v. Bank, 46 Ohio St. 493, 22 N. E. Rep. 293, there can be no question but that, if at the time of the execution of these mortgages the intention were to procure the institution of a suit on the next day for the dissolution of the corporation and the appointment of a receiver, the execution of the mortgages and the commencement of the suit should be regarded as one transaction; and to give effect to the mortgages would, under such circum stances, amount to a plain fraud on the law. This, however, is a question of fact upon which the court below, after hearing the evidence, found differently. It, in substance, found that, though the corporation was insolvent to the knowledge of its officers, "its general commercial credit remained good," and that it was in the control of its property, actively prosecuting its business, and expected to continue to do so as before; and that all parties acted in good faith. There can be no doubt that all such transactions between a company and a part of its creditors, after insolvency is known to exist, should be closely scrutinized by a court, and the adoption of no mere device or form of proceeding should be permitted to frustrate the equitable provisions of the statute, applicable to the dissolution and winding up of insolvent corporations. Still, the right of a company, though embarrassed, to continue its business and to retrieve its fortunes, if possible, must be conceded to it as well as to natural persons, and this right necessarily carries with it the power to obtain an extension of credit by giving a mortgage upon its property to such of its creditors as are unwilling to give further time unless so secured. When this power is fairly and honestly exercised, with no purpose at the time of immediately abandoning business or making an assignment, the validity of a security so obtained cannot well be questioned. We might, upon the evidence in this case, have arrived at a different conclusion from the court below as to whether there was any actual intention on the part of the company or its officers to continue business after the execution of these mortgages. There are a number of things in the evidence that might be regarded as casting a doubt upon this question. Still, it is not the practice of this court to weigh the evidence, but to accept the facts as they have been found by the court in which the evidence was heard. And, for this reason, the judgment is affirmed. HYMAN et al. v. BOGUE et al.1 (Supreme Court of Illinois. Nov. 1, 1890.) JUDICIAL SALE-REDEMPTION-MORTGAGE. 1. Under Rev. St. Ill. c. 77, § 18, which provides for redemption from judicial sales by payment to the purchaser or the officer who made the sale of the purchase price, with interest, a bill to redeem which does not allege that the complainant has paid or tendered the redemption money to any one authorized to receive it is demurrable, even though the sale was made under a decree directing a sale without redemption, since the right to redeem and the mode of doing so are governed solely by the statute. 2. Rev. St. Ill. c. 77, § 16, which gives the right of redemption from sales made "by virtue of an execution, judgment, or decree for foreclosure of mortgage, or enforcement of mechanic's lien or vendor's lien, or for the payment of money," does not give redemption from a judicial sale made in execution of a trust, where such execution can be accomplished only by converting the trust-estate into money. 3. A transfer by a cestui que trust to his creditor of his interest in the proceeds of land held Reported by Louis Boisot, Jr., Esq., of the Chicago bar. in trust for himself and others does not constitute a mortgage of the land. Appeal from circuit court, Cook county; OLIVER H. HORTON, Judge. Bisbee, Ahrens & Decker, for appellants. Smith & Harlan and Lyman & Jackson, for appellees. BAILEY, J. This was a bill in chancery, brought by S. L. Hyman, Mary M. Bender, Edward H. Green, and Hetty H. R. Green against George M. Bouge, R. Suydam Grant, and the New York Life Insurance Company, to redeem section 21, township 39 N., of rang 13 E. of the third P. M., in Cook county, from a sale under a decree of the circuit court of said county. The bill prays that, upon payment by the complainants of the redemption money, defendants Bogue and Grant be required to convey said premises to the complainants; that said insurance company be required to convey said premises to the complainants; that said insurance company be required to release a certain mortgage thereon executed to the company since said sale; and that the defendants be decreed to surrender and deliver up said premises to the complainants. A demurrer to said bill for want of equity having been sustained, and the complainants having elected to abide by their bill, a decree was entered dismissing said bill at the complainant's costs, and they now bring the record to this court by appeal. The facts out of which the litigation arose have already been twice before this court, first in Barling v. Peters, 131 Ill. 78, 21 N. E. Rep. 809, which was an appeal from the judgment of the appellate court affirming the decree under which said sale was subsequently made, and again in Barling v. Peters, Ill. 25 N. E. Rep. 765, in which the order of the circuit court confirming said sale was brought up for review. Said decree having directed the sale of said premises absolutely and without redemption, and a deed having been executed to the purchaser in accordance with its terms, the complainants seek by the present bill to assert a statutory right to redeem from said sale, under the provisions of chapter 77 of the Revised Statutes. The bill is quite voluminous, but, as all of the material facts involved in the controversy, except such as have transpired since the confirmation of the sale, are sufficiently stated in the opinions filed in the former cases, it will be unnecessary to repeat them here. The present bill sets out, in substance, the bill, answers, replications, decree, the master's report of sale, and the proceedings thereon resulting in a confirmation of said report, which were presented by the former records, and also alleges that on the 6th day of March, 1890, the master in chancery executed a deed conveying said section 21 to R. Suydam Grant, the $602,000 purchase money, less the 20 per cent. deposited at the time of the sale, having been paid into the Metropolitan National Bank of Chicago; that, on the same day, said Grant borrowed of the New York Life Insurance Company the sum of $350,000, and secured the same by mortgage upon said premises, it being provided, in pursuance of an order of court, that, if said sale should be set aside or vacated, said loan should be repaid to said insurance company out of the fund so deposited in said bank. The bill further alleges that complainants S. L. Hyman and Mary M. Bender are the heirs at law of Robert W. Hyman, deceased, and as such are interested in said section 21; that the complainants have always, since said conveyance to said Grant, been ready to redeem said premises from said sale, and they insist that they are entitled to redeem the same, because, as they aver, the claim of said Peters upon the land was and is in the nature of a mortgage upon the undivided half of said land which equitably belonged to said Hyman in his life-time, and which descended to his heirs, subject to the prior lien in favor of said trustees for the advancements made by Robinson, in his life-time, and by said trustees, after his death. And said complainants, by their bill, offered to pay into court the amount for which said premises were sold, with 8 per cent. interest thereon from the date of said sale, but they allege that the defendants insist and claim that such redemption cannot be made, and that they take the fee to said property absolutely without right of redemption. Taking the averments of the bill as true, there are two grounds upon which the decree of the circuit court may be affirmed: First. The right of redemption of which the complainants are seeking to avail themselves is that given by the statute, and it does not appear from the bill that they have attempted to exercise that right in the mode the statute prescribes. "One who seeks to redeem must comply fully and strictly with the statute, or he gains nothing." Ex parte Bank of Monroe, 7 Hill, 177. "The right of redemption is statutory, and must be exercised in pursuance of the statute; otherwise, it will be ineffective." Littler v. People, 43 Ill. 188; Durley v. Davis, 69 Ill. 133; Silliman v. Wing, 7 Hill, 159; Ror. Jud. Sales, § 1148 et seq. Section 18, c. 77, Rev. St., provides that any defendant, or any person interested in the premises through a defendant, may, within 12 months of a sale from which redemption is given by law, redeem the real estate so sold "by paying to the purchaser thereof, his executors, administrators, or assigns, or to the sheriff, or master in chancery, or other officer who sold the same, or his successor in office, for the benefit of such purchaser, his executors, administrators, or assigns, the sum of money for which the premises were sold or bid off, with interest at the rate of eight per centum per annum from the time of such sale." The bill contains no averment that the complainants have paid or tendered the redemption money to any person authorized to receive it, or that they have taken any of the steps prescribed by the statute to effect a redemption from said sale. They merely allege their readiness to make a redemption, and, by their bill, offer to pay the redemption money, but no money is tendered or even brought into court. This cannot be said to be in any sense a pursuance of the statutory requirements. Nor does the fact that the decree directed an absolute sale without redemp tion, or that the sale was madein pursu. auce of the decree, and a deed executed by the master to the purchaser or his assignee, constitute any obstacle to a redemption, in the mode prescribed by the statute. As we said in Fitch v. Wetherbee, 110 Ill. 475: "It is the statute that gives the right of redemption, and not the decree of court. In a case where the statute authorizes a redemption from a sale, a clause in a decree ordering the sale that declares the sale shall be absolute will not bar that right. That portion of the decree will be regarded as inoperative, and a redemption will be allowed as in other cases. See, also, Brine v. Insurance Co., 96 U. S. 627; Orvis v. Powell, 98 U. S. 176; Swift v. Smith, 102 U. S. 442; Burley v. Flint, 105 U. S. 247; Mason v. Insurance Co., 106 U. S. 163, 1 Sup. Ct. Rep. 165. There was no occasion therefore to resort to a court of chancery for the purpose of establishing a right to redeem, before paying or tendering the redemption money. But, secondly, the sale is not one from which the statute gives a right of redemption. The land which was the subject of the sale was a trust, held by the trustees of the Robinson estate, to be sold and converted into money, and distributed to the beneficiaries of the trust. The money by which said land was purchased and which was afterwards required to pay the taxes thereon, was advanced partly by Robinson, in his life-time, and partly by his executors and trustees, after his death. By the terms of the contracts, in pursuance of which said land was purchased, it was to be held for the joint benefit of Robinson and Hyman, or their legal representatives, and at the proper time was to be sold, and the proceeds, after repaying the advances made by Robinson and his executors, and interest thereon, were to be divided equally between the beneficiaries of the Robinson estate and the legal representatives of Hyman. Hyman's interest in said trust property had been assigned by him to the Exchange National Bank of Norfolk, Va., to the extent of his indebtedness to said bank, and, upon the insolvency of said bank, the interest so assigned passed into the hands of Peters, its receiver. The bill which resulted in the decree under which the sale in question was had was brought by Peters, as such receiver, to compel an execution of said trust by a sale of said land, and a distribution of the proceeds according to the terms of the trust. The sale was therefore a mere conversion of the trust property into money for the purpose of distribution, as contemplated by the contracts under which said land was purchased and said trust created and declared. The right of redemption from judicial sales being purely statutory, it can be exercised only in those cases where the statute gives it. The cases where it is given are enumerated in section 16, c. 77, Rev. St., and are the following, viz.: Sales "by virtue of an execution, judgment, or decree for foreclosure of mortgage, or enforcement of mechanic's lien, or vendor's lien, or for the payment of money." It is clear that a judicial sale made in execution of a trust, where such execution can The be accomplished only by converting the land held in trust into money so as to effect a proper distribution, is embraced in neither of these specifications. only specification as to which any possible question can arise is the last, viz., sales "for the payment of money," but that very plainly embraces only those cases where the direct object of the sale is the payment of money due by sale of the property of the debtor. But it is insisted that the transfer by Hyman to the bank of his interest in the proceeds of said land was in the nature of a mortgage of his interest, and that the bill by the receiver was a bill to foreclose said mortgage. This clearly is a misapprehension. The interest which Hyman purported and undertook to assign to the bank was, in terms, the right, upon sale of said land, to the one-half of the net profits, as provided by the agreements under which said land was purchased. Without pausing to inquire whether such assignment constituted a hypothecation or mortgage of Hyman's interest in the net profits, it is clear that it constituted in no sense a mortgage on the land. The trust under which the land was held was recognized, as well as the right of the beneficiaries to have the trust executed by a sale of the land, and the only right pledged or mortgaged was the distribution which would be made to Hyman upon the execution of the trust. We are of the opinion that the sale was one from which the statute gave no right of redemption, and that for that reason, as well as for the reason first above stated, the decree of the circuit court must be affirmed. CITY OF WABASH V. CARVER.1 (Supreme Court of Indiana. Nov. 25, 1890.) MUNICIPAL CORPORATIONS-DEFECTIVE STREETSBRIDGES. A city is not liable for injuries through the giving way of a bridge maintained by it as part of a highway, caused by the injured person driving upon the bridge a steam traction-engine with water tank and threshing-machine attached, where it is not alleged that the structure was designed to carry loads equal in weight to that under which it gave way, or that it was being used in the ordinary method when it gave way; and it is for the person contemplating such use to himself ascertain the probable sufficiency of the bridge. Appeal from circuit court, Wabash county; J. D. CONNER, Judge. Alvah Taylor and Harry Pettit, for appellant. Cowgill, Shively & Cowgill, for appellee. of MITCHELL, J. The administrator Joseph Carver, deceased, instituted this action against the city of Wabash, to recover damages for wrongfully causing the death of the intestate. It is averred in the complaint that the plaintiff's intestate, without any knowledge of the unsafe condition of a bridge, within the limits of the city, which formed part of a constantly used public highway leading to and from the city, and without any fault or negligence on his part, believing that it was entirely safe to do so, attempted to pass 1 Petition for rehearing pending. | over the bridge described, seated upon and driving or guiding what is known as a "steam traction-engine," to which was attached a water-tank and threshing-miachine; and that, while so attempting to pass over, in a careful and prudent manner, the timbers which supported the bridge, on account of their neglected and decayed condition, gave way, causing the engine and the intestate to be precipitated into the canal below, in such a manner as to result in the death of the latter. The question is whether it appears from the facts pleaded in the complaint that the city was guilty of actionable negligence, and whether the facts pleaded overcome the averment that the intestate was not guilty of contributory negligence. It is settled by the decisions of this court that a city is responsible for an injury sustained by one in the lawful and proper use of a bridge within the jurisdiction and charge of the municipality, in case the injury results from the neglect of the city to keep the bridge in repair, and safe for ordinary travel. City of Goshen v. Myers, 119 Ind. 196, 21 N. E. Rep. 657; Lowrey v. City of Delphi, 55 Ind. 250. Bridges are constructed, however, to facilitate the transportation of persons and property according to the usual, known, and ordinary modes of travel; and the municipality must be deemed to have discharged its duty to the public if it has constructed and maintained bridges reasonably safe and convenient for the carriage of such animals and vehicles. and for the sustaining of such loads, as are customarily driven and transported over the public highways of the state. It is not incumbent upon cities or counties to construct or maintain all the bridges within their respective jurisdictions so as to be safe or convenient for those who undertake to use them in an unusual or extraordinary manner, or for those who travel by methods involving peculiar and special hazard. While it is true that municipali ties, upon whom is laid the duty of keeping bridges in repair, and reasonably safe for use by the public, are bound to take notice of all the improved means of locomotion as they come into customary use, and of the application of steam as a motor in propelling or driving heavy vehicles over public highways, and while the duty rests upon them to afford reasonably safe and convenient facilities for transportation and travel by any and all methods, as soon as those methods become customary, it by no means follows that the dimensions and strength of all the bridges in a city or county must be accommodated to new, exceptional, and extraordinary The rule applicable is well stated in the following language: "The duty to maintain a bridge in a safe condition requires that ordinary care be used to keep the bridge in such a condition as that it can be crossed safely by persons traveling in the ordinary mode, and by vehicles carrying ordinary loads. There is no liabil ity where the vehicle is overloaded, or loaded in an extraordinary mode." Elliott, Roads & S. 49, 50. uses. We know judicially that there is more than one public highway leading out of the city of Wabash across the canal and river upon the bank of which the city is |