Rice v. Curtis, 32 Vt. 460, 464. Thus, in the last case, the assignment was made in New York and valid, but not in conformity to the laws of Vermont, where the property was situated. The assignee took actual possession. It was held the title of the assignee was not effectual. And in Philson v. Barnes, 50 Pa. St. 230, the assignment contract was made in Maryland, and operated on property in Pennsylvania. It was valid in Maryland, but not in conformity with the laws of Pennsylvania, because not recorded in the county where the property was located. The property was attached by a Pennsylvania citizen, and his title was sustained. But in Ockerman v. Cross, 54 N. Y. 29, a different rule was laid down. The assignment was executed in Canada, and valid there, but not in compliance with the laws of New York, because not "prepared, acknowledged and recorded." The assignee got possession of the property. It was held that the assignee's title to the property was complete. And a like ruling is made by the Supreme Court of California, in Forbes v. Scannell, 13 Cal. 242. The property was located in California, and owned by citizens of the United States residing and doing business in Canton, China. The assignment was executed in China, but was not good by the laws of California. The assignee took actual possession, and his title was held good. BALDWIN, J., in giving the opinion, said (p. 277): "The truth is, we do not consider this question as one of comity at all. It is a pure question of property. By our general laws we recognise the duty of government to protect property, and that is, property which is acquired by contract, lawful and effectual to pass title in the place where it is made. It might as well be said, that if a man made his money by usury in California, and carried it into Pennsylvania, the courts of that state would refuse to recognise his right, because usury is against the policy of Pennsylvania. Or if won at cards, in Mexico, where no law exists against gaming, it would cease to be his property whenever brought into this state." Transfer Valid by Lex loci Contractus and Lex fori.-If the assignment is good by the laws of the state of the assignor's domicile where the assignment is made, and also valid where the property is situated, it will be upheld as against an attaching creditor in the courts of the latter state. Miller v. Kernaghan, 56 Ga. 155. In answer to the contention that the domestic tribunals will hold assets against foreign assignment, the court said: "Certainly this would be done if the assignment were not comformable to our own laws, but there would be no inconsistency in recognising the assignment as perfectly valid here, and then refusing to yield to it. There may be decisions in other states or countries on that erratic line, but we are sure sound principle is the other way, and so we believe is the weight of authority. *** An assignment, whether foreign or domestic, that presents no conflict with any law, is to have full effect on all assets to which its terms apply." This case fully accords with the principal case. And it was held, in Ockerman v. Cross, 54 N. Y. 29, that such an assignment, not invalidated by any law of New York, would pass title of personal property of the debtor, situated in that state, to the assignee. To same effect, see Walker v. Whitlock, 9 Fla. 87, 103. After reviewing the authorities, the court said: "This assignment being a voluntary one, by deed, formal and irrevocable, containing no provisions repugnant to our laws, nor to the policy and positive institutions of this state, and there being nothing to prohibit the assignors, who are citizens of other states, from a free disposal of their personal property situated here, we must, upon the principles of comity between sister states, hold the assignment valid here, and that it operated at its execution to vest the title in the assignee and divested all the interest of the as signor, unless void for want of delivery of the chose of action assigned to the assignee." In Gregg v. Sloan, 76 Va. 497, debtors of North Carolina conveyed their property in trust to secure the payment of their debts, including a debt due them from a citizen of Virginia. The deed was properly recorded in North Carolina, but before it was recorded in Virginia, a Virginia citizen attached the debt, and the land securing it. It was held that the assignee had the prior title. See Richardson v. Rogers, 45 Mich. 591. The recent case of Atherton v. Ives, 20 Fed. Rep. 894, fully sustains this principle. In that case the deed of assignment was legally executed in New York, by residents of that state, and included personal property in the state of Kentucky. After the assignment was made, this property was attached by a citizen of Kentucky. It was insisted that the assign ment should not be sustained against a resident attaching creditor, because it was invalid by the laws of Kentucky, inasmuch as it gave preferences, and that whether invalid or not, comity did not require that it should be sustained against a citizen of Kentucky. The assignee's title was held to prevail over that of the attaching creditor, and it was held that the assignment was not invalid by Kentucky's laws because of preferences, and would have been valid if it had been made in Kentucky, and that comity required that assignments made in other states should be respected, unless contrary to some positive law of Kentucky. The court was also of the opinion that no distinction should be taken between “home creditors" and non-resident ones, unless compelled by legislative will, clearly expressed. EUGENE MCQUILLIN. St. Louis, Mo. ABSTRACTS OF RECENT DECISIONS. SUPREME COURT OF THE UNITED STATES.1 SUPREME COURT OF ARKANSAS." SUPREME COURT OF ILLINOIS. COURT OF CHANCERY OF NEW JERSEY. SUPREME COURT OF RHODE ISLAND.5 ACTION. Damages to Adjacent Property Owners from Public Improvement in a Street-Liability therefor, upon whom it Rests-Contribution of Railroad Company to Cost.-The mere contributing of material aid by a private individual to a city, to enable the latter to execute a public work not unlawful in itself, is not necessarily attended with liability on the part of him who extends such aid, for injury that may thereby 1 Prepared expressly for the American Law Register, from the original opinions filed during Oct. Term 1884. The cases will probably appear in 114 U. S. Rep. From B. D. Turner, Esq., Reporter; to appear in 44 Ark. Rep. From Hon. N. L. Freeman, Reporter; to appear in 111 Ill. Rep. 4 From Hon. John H. Stewart, Reporter; to appear in 39 N. J. Eq. Rep. 6 From Arnold Green, Esq., Reporter; to appear in 14 R. I. Rep. result to private rights: Culbertson and Blair Packing and Provision Co. v. City of Chicago, 111 Ill. So, where a railway company entered into a contract with a city, by which the former agreed to pay a given sum on the cost of a viaduct proposed to be constructed in a street, there being no illegal motive in tendering such aid to the city, it was held, that the railway company could not be held jointly liable with the city in tort for a private injury to adjoining property caused by the viaduct Id. A city alone has authority to construct a viaduct in a street, and when one is so constructed by the city, even when done under the joint superintendence of a public official of the city and a chief engineer of a railroad company, and the company paid a part of the price of the improvement, it was held, that the viaduct was still public property belonging to the city alone. The aid furnished by the railway, in such case, may be treated as a mere private donation: Id. ARBITRATION. Submission to Two Arbitrators and Disagreement-Necessity of a New Hearing on Selection of a Third Arbitrator.-Where a controversy is submitted to two arbitrators, under an agreement for the selection of a third one in case the two are unable to agree, and after a hearing and disagreement the two first appointed select a third man, an award made by two of them, without giving the party against whom it is rendered an opportunity of being heard, is void, and no recovery can be had upon it: Alexander v. Cunningham, 111 Ill. Award-Extent of Items not considered.-An award cannot be extended beyond the things submitted; and even if the language of the submission be broad enough to cover a claim subsequently sought to be enforced, yet, if it be clearly made to appear that the claim was not before the arbitrators, and was not passed upon by them, the award will not bar it: Exec. of Lee v. Admr. of Dolan, 39 N. J. Eq. ASSIGNMENT. Unrecorded Mortgage-Validity against Assignee.-A. executed a mortgage to B. of certain personalty. The mortgage was made and received in good faith. The mortgagee never recorded the mortgage nor took possession of the property, but there was no collusion between the parties nor design to give the mortgagor a fictitious credit. A. subsequently made an assignment" of all his estate and property" for the benefit of his creditors; on a bill of interpleader brought by the assignee: Held, that the mortgagee was entitled to the proceeds of the mortgaged property: Held, further, that the creditors were entitled only under the assignment, and that the assignee succeeded only to the rights of the assignor: Held, further, that Pub. Stat. R. I., cap. 176, § 9, which provides that "no mortgage of personal property hereafter made shall be valid against any other person than the parties thereto, unless possession of the mortgaged property be delivered to and retained by the mortgagee, or unless the said mortgage be recorded," must be construed in accordance with the above holding: Wilson v. Esten, 14 R. I ATTORNEY. Contract for Conditional Fee.-Under the statute authorizing the assignment of counsel to indigent suitors, the complainant was assigued to assist the defendant in a suit to recover from a life insurance company the amount of a policy on her husband's life. The complainant thereupon made an agreement with her to prosecute the claim, and, if successful, to receive one-half of the amount recovered, and if not successful, to receive nothing. He did prosecute the suit, paid the costs incurred, and recovered the amount of the policy, $1000, besides $339.27 interest thereon: Held, that he was entitled to one-half of this whole amount: Hassell v. Vun Houten, 39 N. J. Eq. BANKRUPTCY. See Debtor and Creditor. CONSTITUTIONAL LAW. Commerce between the States-Tax on.-The state of Pennsylvania having attempted to collect a tax on the capital stock of a New Jersey corporation, running a ferry between the two states, on the river Delaware, on the ground that the corporation was doing business in Pennsylvania, Held, that such tax was illegal and void as an attempted exaction upon inter-state commerce: Gloucester Ferry Co. v. Pennsylvania, S. C. U. S., Oct. Term 1884. Sidewalk-Removal of Ice and Snow-Public Burden laid on Citizen -Police Power.-A city has not the constitutional power to require the owner or occupant of premises to keep the sidewalk and gutters in front thereof free from snow and ice, or to sprinkle the same with ashes or sand where the snow and ice cannot be removed without injury to the pavement, and inflict a fine on him for a neglect or failure to do so. The ruling in Gridley v. City of Bloomington, 88 Ill. 554, adhered to: City of Chicago v. O'Brien, 111 Ill. A sidewalk in a city, though devoted to the use of pedestrians, is nevertheless a portion of a public highway, as much so as the street. They are both free to be properly used and enjoyed by the entire public, and are constructed alike for their use: Id. The police power of a state, comprehensive as it is, has its limitations. It cannot be held to sanction the taking of private property for public use without just compensation, however essential it may be for the public health, safety, &c. Upon the like principle, a purely public burden cannot be laid upon a private individual except as authorized in cases to exercise the right of eminent domain, or by virtue of proper proceedings to enforce special assessments or special taxation: Id. Statute compelling Owners of Dams to place Fishways therein.-The legislature may impose a duty on owners of dams to place therein suitable fishways, in order that the free passage of fish may not be obstructed. And the owner of the dam cannot by occupancy or user for any length of time, acquire a prescriptive right as against the public, so as to prevent the enforcement of the provisions of the statute against him: Parker v. The People, 111 Ill. Sidewalks-Ordinance requiring Owner to keep in Repair.-A city cannot, by ordinance, prescribe a fine or penalty to be imposed on the owner or occupant of a lot for a failure to repair the sidewalk in front of the same. Keeping sidewalks in repair is referable to the same power as for constructing new improvements, and cannot be required to be done by the abutting owner or occupant, at his own expense, either by the exercise of the police power, or by fines and penalties prescribed by ordinance, or by direct legislative action: City of Chicago v. Crosby, 111 Ill. CONTRACT. See Sunday. Subject to Approval-Failure to Approve.-A statute provided that the Board of Public Works in the city of Providence might hire such employees as it deemed needful," and agree with them for their compensation, provided, however, that when such compensation shall exceed the sum of $1000 per annum, such compensation shall be subject to the approval of the city council *** which said compensation shall be paid out of the city treasury:" Of the employees so hired, the city council approved the compensation of all except two, who were hired at more than $1000 per annum, and in regard to whom the council took no action: Held, that these two were entitled to the pay agreed on with the Board of Public Works: Held, further, that the city council could disapprove the compensation agreed on by the Board of Public Works or approve it with a reduction in amount, but could not, by mere non-action, defeat the agreement made by the board: Mathewson V. Tripp, 14 R. I. But By Letter or Telegraph-When completed-A contract by letter is completed the instant the letter accepting the offer is mailed, and is valid and binding whether the letter of acceptance is received or not. where anything else is left to be settled in respect to an offer by mail or telegraph, the acceptance of the offer by telegraphing will not compiete the contract where the dispatch does not reach its destination: Haas v. Myers, 111 Ill. A. and B. contemplated making a large purchase of cattle in the West, and it was agreed that A. should go to see the cattle, and telegraph back to B. the price per head if a purchase was made, when B. was to reply by telegraph, without delay, saying "yes," if he was willing to take a third interest in the purchase, and then A. was to telegraph back to B. the estimated amount required to pay a third interest, which B. was to place to the credit of A. and his brother, in a Chicago bank, so that the latter might draw on the same, and cause the bank to telegraph that fact to A. A. bought the cattle for $55,000, and telegraphed B. the price per head, and he answered "yes," which dispatch never reached A. Later, B. sent another dispatch to A., saying if the cattle were good there was no danger in buying them, which was received on the same day that A. and another had concluded the purchase by paying the necessary advance. On the next day B. arrived, and offered to pay his. share of the price, which was declined: Held, that under the circumstances the sending of the first dispatch accepting a share in the purchase, which never reached its destination, did not complete the contract and make A. and B. partners in the purchase, there being something else to be done besides a mere acceptance, to carry out the contract, and also that B.'s offer to pay on the day after the purchase, and payment of the price, was too late: Id. |