present at least, unless the case should be carried into the House of Lords, of which we hear no intimation, and which we infer is not to be done. We must say, that to us, the opinion of the dissenting judges, both upon the ground that the assertion of an illegal claim must be regarded as an effectual estoppel upon the dominant owner afterwards reasserting his former legal claim; and also, that however this may be, it is certain that the servient owner having lawfully erected a permanent obstruction to the illegal assertion of claim, is not compellable to remove it, upon the dominant owner withdrawing his claim within legal limits, is more in consonance with equal moral justice, and also with legal principles as applicable to the acts of the several parties, than the opinions of the majority of the court of error. We trust the question may speedily be brought to the determination of the court of last resort, and that the judgment of the Exchequer Chamber will be reversed.

We are not aware that this precise question has arisen in this country, and we do not apprehend, if it should arise, that it would receive the same favorable consideration in behalf of the dominant owner, attempting to enlarge his rights by usurpation, as already stated. It is apparent, from a careful examination of the American cases, that there exists throughout the American States a very decided disposition to reject the doctrine of the English courts in favor of ancient lights. These will be found carefully analyzed in Professor Washburn's late work upon Easements and Servitudes, pp. 498-505.

In Massachusetts the last vestige of the English rule was abandoned in Carrigg vs. Dee, 14 Gray 583; see also Rogers vs. Swain, 10 Id.; Collier vs. Price, 7 Id. 18; Fifty Associates vs. Tudor, 6 Id. 255; Johnson vs. Jordan, 2 Met. 234; Atkins vs. Chilson, 7 Id. 398, 403.

In New York the same course of decision has been followed through a long succession of years: Mahan vs. Brown, 13 Wend. 261, 263; Banks vs. American Tract Society, 4 Sandf. Ch. 438; Parker vs. Foote, 19 Wend. 309; Myers vs. Gemel, 10 Barb. 537. See also Radcliff vs. Mayor, &c., 4 Comst. 195, 200. And this

course of decision has been adopted in Maine: Pierre vs. Fernald, 26 Me. R. 436; and in Maryland, in Cherry vs. Stein, 11 Md. R. 1, overruling a former case in that state; and in Haverstick vs. Sipe, 33 Penna. St. R. 368, 371, following in the wake of former cases in that state; and in South Carolina, in Napier vs. Bulwinkle, 5 Rich. 311, overruling McCready vs. Thomson, Dudley 131. Many of the other American States adhere to the rule of the English law upon this subject, which consideration, and the further one that the same rule in regard to claiming beyond the rights of the dominant owner, will apply to water rights, and other easements, as well as to that of ancient lights, will be a sufficient apology for this extended notice of the cases, upon the points which we have discussed.

III. The subject of the assignment of non-existing property, in equity, is one of great interest in these active commercial times. The assignment of future acquisitions will not become operative at law: Robinson vs. Macdonnel, 5 Maul. & Sel. 228. But in equity it is settled, by a long course of decisions, that such an assignment is perfectly valid and effectual, if made upon a valuable consideration: Curtis vs. Auber, 1 Jac. & W. 526; Douglas vs. Russell, 4 Sim. 524; s. c. 1 My. & K. 488; Langton vs. Horton, 3 Beavan 464; 1 Hare 549; Lindsay vs. Gibbs, 22 Beavan 522.

This subject came under consideration, in the recent case of Holroyd vs. Marshall, 9 Jur. N. S. 213, which was decided in August last. The question arose between a mortgagee of machinery in a mill or manufactory and a levying creditor. The mortgage was by the terms of the deed to be operative upon "all machinery, implements, and things which during the continuance of the security, should be fixed or placed in or about the mill and buildings, in addition to or substitution for the premises, or any part thereof." The assignment was made for the security of £5000, with the right of possession in the assignor or mortgagor until demand of payment and his default in meeting the same, and then for the mortgagee to sell and raise the sum for which the security was given. The schedule contained specified articles, and all other machinery, &c., then and thereafter in the mill. The

deed was duly registered, as a chattel mortgage, or bill of sale, and the mortgagor remained in possession of the mill, and placed other machinery there in addition to that which was there at the date of the deed.

It was held by Vice-Chancellor STUART, and this decree was affirmed by the House of Lords (notwithstanding the reversal of the same by the Chancellor, Lord CAMPBELL), that as between the mortgagee and an attaching creditor, the former was entitled to all the machinery in the mill, at the date of the levy of the execution, including the added and substituted machinery. That immediately upon the new machinery and effects being fixed or placed in the mill, they became subject to the operation of the contract, and passed, in equity, to the mortgagees, to whom the assignor or mortgagor was bound to make a legal conveyance, and for whom he was in the mean time a trustee.

The opinion of Lord Chancellor WESTBURY, the present Lord Chancellor, is regarded as a masterly exposition of the application of equitable principles to the subject. Lord CAMPBELL, in reversing the decree of the Vice-Chancellor, seems to have gone upon the ground that there was no sufficient possession taken by the mortgagee, and that his title was at most an equitable one, and must yield to a more valid legal title, backed by equal equity, which he regarded as being the case with all bona fide creditors. The present Lord Chancellor, who gave the only opinion in the House of Lords, and upon which the decree of Lord CAMPBELL was reversed, goes into a most exhausting review of the subject, both upon principle and the decided cases, and shows very conclusively, that the equity of an equitable mortgagee, whether his right rest merely in contract, or be accompanied by constructive or actual possession, possesses so far a priority and advantage over the rights of a mere attaching or levying creditor, that it was competent for a court of equity to interfere to protect the former against the latter.

This decision, resting as it does upon most unquestionable grounds of principle and authority, cannot fail to have an important bearing upon similar contracts in this country, which have

been numerous, both in regard to railways, and the furniture and equipment of railways, and some of which have already been determined by our courts in favor of the equitable right of the mortgagees, without seeming to comprehend very fully the equitable grounds upon which they may be made to stand. See also Hart vs. Farmers' and Mechanics' Bank, 33 Vt. R. 252; Pennock vs. Coe, 23 Howard U. S. Rep. 117, where Mr. Justice NELSON and the counsel in argument go into an exhaustive examination and discussion of this question in all its bearings, and the learned judge arrives at the same just conclusion, substantially, with that already indicated as being reached by the House of Lords.

I. F. R.

RECENT AMERICAN DECISIONS.

Supreme Court of the United States-December Term, 1862.

THE CITY OF CHICAGO, PLAINTIFF IN ERROR, v8. ALLEN ROBBINS. A., being the owner of real estate situated upon a street in a city, contracted with B. to erect a building thereon, which included an excavation of the sidewalk adjoining, so as to furnish light and air to the basement. Other contractors were employed to furnish gratings and flagging. Excavations in the sidewalk of a dangerous character were made by the contractor in the course of the work, to which the attention of A. was called by the city authorities. The city knew of the excavation of this and similar areas, and interposed no objection, though no express permission to make this one was given. While this condition of things continued, C. fell into the unprotected area and was injured. He brought an action against the city to recover damages. A. had knowledge of the pendency of the action, but he was not expressly notified to defend it; nor was he informed that the city would look to him for indemnity. A judgment was recovered against the city, which it was compelled to pay. In an action brought by the city against A., to be reimbursed the amount which it had paid under the judgment, Held,

1. Assuming that C. was injured through the fault of A., and that the city was not a wrongdoer, A. is concluded by the judgment recovered against the city. No express notice to him of the pendency of the action was necessary. It is enough that he knew it was pending, and could have defended it.

2. The excavation, though not a nuisance in itself, became such on account of the improper manner in which it was made. The city is not, however, for that VOL. XI.-34

reason a wrongdoer, in such a sense as to lose its right of action against A. No license from the city to leave the area open and unguarded can be presumed. 3. The defendant was under an obligation to have the work done in such a way as to save the city from damage and the public from harm. He cannot escape liability by letting out the work to a contractor. The work having been done in such a manner as to render the city liable in the first instance, the defendant is answerable to it for the amount which it was compelled to pay.

4. The case of Hilliard vs. Richardson, 3 Gray 349, distinguished, and the case of Scammon vs. The City of Chicago, 25 Illinois 424, so far as it conflicts with these principles, overruled.

In error to the Circuit Court of the United States for the Northern District of Illinois.

Elliott Anthony, of Chicago, for plaintiff in error.

S. W. Fuller, for defendant in error.

Mr. Justice DAVIS delivered the opinion of the Court.

This is an action on the case brought by the City of Chicago against Robbins. The suit was originally commenced in the Cook County Court of Common Pleas, one of the State Courts of Illinois. It was transferred, in pursuance of the Act of Congress, on the petition of Robbins that he was a citizen of New York, to the Circuit Court of the United States for the northern district of Illinois, where there was a trial by jury on the 10th day of April, 1860, on the plea of not guilty, and the issue found for Robbins. There was a motion for a new trial, which was overruled by the Court, and on the 28th day of May, 1860, judgment was entered on the verdict of the jury. The decision of Circuit Courts on motion for new trials is not subject to review, and this case is here on exceptions taken to the charge of the judge to the jury.

The declaration alleges: That the plaintiff is a corporation by the laws of Illinois, having exclusive control over the public streets, and bound to protect them from encroachment and injury. That Robbins was the owner of a lot on one of the public streets, and wrongfully excavated in the sidewalk next to and adjoining his lot, an area of great length, width, and depth, and wrongfully suffered the same to remain uncovered and unguarded, so that one William H. Woodbury, on the night of the 28th of December, 1856, while exercising reasonable care and prudence in passing along the street,