This is true, at least, where the dangerous character of the nuisance results, in all probability, not from defects inherent in the general system, but from defective execution of the system, in failing to adapt it to local conditions, such as steep grade in the particular street in which the unwholesome sewer is constructed and maintained.

2. There was no abuse of discretion in granting the temporary injunction, enjoining the city "from continuing said manhole in such condition as to allow the escape of noxious gases." In the light of the pleadings and the evidence, the terms of the order were sufficiently definite and specific.

(November 9, 1892.)

maintenance by the defendant of an alleged nuisance in permitting the gases to escape from sewers through perforated covers to the manholes, in the vicinity of complainant's property. Affirmed.

The case sufficiently appears in the opinion. Messrs. J. B. Goodwin and J. A. Anderson, for plaintiff in error:

The injunction, under the facts and circumstances of this case is an illegal invasion of the legal discretion of the city government to establish and use a system of sewers.

Dill. Mun. Corp. §§ 94, 95, and last clause of 96, 475, 478, 912, last clause; Frederick v. Augusta, 5 Ga. 567; Rome v. Omberg, 28 Ga. 46 (waterworks case); Wells v. Atlanta, 43 Ga. 67; Georgia Penitentiary Cos. Nos. 2

ERROR to the Superior Court of Fulton and 3 v. Nelms, 71 Ga. 351; Cartersville 7.

County to review a judgment in favor of complainant in an action brought to enjoin the where the act under which it was constructed, | provided that nothing in the act shall be construed to render lawful any act which is a nuisance at common law. Atty-Gen. v. Birmingham 4 Kay & J. 528.

But the decree was not binding upon a board created by act of parliament covering this and other districts. Atty-Gen. v. Birmingham Drainage Board, L. R. 17 Ch. Div. 685, 50 L. J. Ch. 786, 44 L. T. N. S. 906, 29 Week. Rep. 793, 46 J. P. 36.

Where the surface flow of water has been concentrated into an artificial channel insufficient for the purpose, an injunction will not be granted against a city to prevent the enlargement of the channel so as to carry off the natural flow of water. Scranton's App. 121 Pa. 97, reversing Goulden v. Scranton, 3 Lanc. L. Rev. 340.

And an injunction in favor of an aqueduct board against a city, was denied on the ground that the apprehended pollution of the water from sewage had not yet taken place, and it was doubtful whether it would be deleterious to the city. As to whether or not the complainant could sue for pollution of water injurious to the city, was not decided. Newark Aqueduct Board v. Passaic, 46 N. J. Eq. 552, affirming 45 N. J. Eq. 393.

Baker, 73 Ga. 686; Conyers v. Kirk, 78 Ga. 480; 15 Am. & Eng. Encyclop. Law, par. 5, at that place obstructing navigation and destroying the use of the dock. Breed v. Lynn, 126 Mass. 367; Haskell v. New Bedford, 108 Mass. 208.

So an injunction will be granted against draining sewage into a private canal ruining navigation, although this had continued for about eighteen years: but up to that time no material injury bad been done. Boston Rolling Mills v. Cambridge, 117 Mass. 396.

And a city owning one half a pier in connection with another party, is not authorized to use its part as an offal dump, preventing plaintiff from the use of his property. New York Consolidated Act, Laws 1882, chap. 410, authorizing the use of piers, does not contemplate the use of one half a pier. Hill v. New York, 139 N. Y. 495.

But where the use of the pier as an offal dump is not the sole cause of the injury to plaintiff, uor so irreparable that compensation cannot be had, and where it is questionable whether the odors resulted from that part used by the street-cleaning department or that occupied by the board of health, arr injunction will not be granted because, if, from that part used by the street-cleaning department it had legislative sanction. Cornell v. New York, 20 N. Y. Supp. 314.

And it was held in the case of Glossop v. Heston And under N. Y. Laws 1882, chap. 110, and its & I. Local Board, L. R. 12 Ch. Div. 102, 49 L. J. Ch. amendment, authorizing the use of a pier as a 89, 40 L. T. N. S. 736, 28 Week. Rep. 111, that where dumping ground, an injunction, at the instance of the local board had not caused a nuisance but a private person, to restrain such use, will be deneglected to provide a system of drainage, an in-nied. Hill v. New York, 63 Hun, 633, affirming 15 Junction will not be granted a private person against the discharge of sewage in an abutting river, but the remedy is by mandamus.

And where the bill does not allege any negligence of the city either in the manner in which the sew age was discharged from the mouth of the sewer, or in omitting to take proper precautions to purify it, and the city is proceeding in a statutory manner, injunction will be denied. Washburn & M. Mfg. Co. v. Worcester, 116 Mass. 458.

Or when the injury was too trifling. Atty-Gen, v. Gee, L. R. 10 Eq. 131, 23 L. T. N. S. 299.

And in the case of Biltz v. Borough, 3 Pa. Co. Ct. Rep. 412, an injunction was refused against concentrating sewage into an insufficient culvert so as to injure the plaintiff by its overflow, as these matters belonged to the discretion of the borough, and no negligence was charged, and there was adequate remedy at law; and the culvert was made by private parties along the watercourse. See also "Docks and navigation."

Docks and navigation.

The owner of a dock may have an injunction against a city to prevent the discharge of sewage

N. Y. Supp. 393.

The proposed use of a dock in the city of New York in the midst of a residence neighborhood, for the purpose of landing emigrants, endangering the health and impairing the comfort of the residents of that vicinity, will be enjoined. Brower v. New York, 3 Barb. 254. ·

And an action may be maintained by the state of Illinois against the city of St. Louis, enjoining such city from obstructing a channel of the Mississippi river, by dyking the Illinois shore, this being an obstruction to navigation. People v. St. Louis, 10 Ill. 351, 48 Am. Dec. 339.

But where the legislature has determined that a dam can be erected so as at least not to materially obstruct navigation, a writ of injunction against the erection of a dam will not be granted. State v. Eau Claire, 40 Wis. 533; Atty-Gen. v. Eau Claire, 37 Wis. 400.

And under Cal. Stat. 1863, p. 414, providing that no action will lie against the city until demand of the board of trustees, a complaint by a private person for abatement of a dam built by the city of Sacramento which fails to allege the demand, will be dismissed. Yolo County v. Sacramento, 38 Cal. 193.

MICHIGAN SUPREME COURT.

Frederick E. BRADLEY et al., Piffs. in Err.,

v.

THOMPSON SMITH'S SONS.

(........Mich.........)

1. A creditor cannot set off against an assignee of an executory contract of the debtor with the creditor on which nothing was due at the time of the assignment a claim which has matured in favor of the creditor against the debtor at that time where the statute allows

a demand against an assignor to be set off against

his assignee only where it might have been set off against the assignor while it belonged to him, and provides further that a set-off can be allowed only in actions founded upon demands which could themselves be the subject of a set-off. 2. A creditor who fails to state his intent to apply an existing claim

against his debtor on a contract between them when a guaranty is made of the debtor's contract including the payment of men to be employed by him and when the guarantor requires a change in the contract to make it payable in installments, is estopped as against such guarantor who takes an assignment of the contract to set off against it his claim against the debtor.

(January 26, 1894.)

ERROR to the Circuit Court for Bay County to review a judgment permitting defendant to set off against the claim of plaintiffs upon a contract with defendant which had been assigned to them by W. H. Doyle a claim held by defendant against Doyle prior to the assignment. Reversed.

The facts are stated in the opinion.

NOTE--Set-off against assigned claim of .debtor's de- | is quite elaborately discussed but no definite con

mand against assignor.

The general rule is that the assignee of a chose in action for the assignment of which no protection is specially provided by law takes subject to all rights of set-off then held by the debtor against the assignor.

clusion seems to have been arrived at, although the inclination seems to be against the set-off.

Kinds of choses in action to which set-offs are applicable.

It seems that the only kinds of choses in action The assignee of a chose in action takes subject to which can be assigned free from the right of set-off set-offs. Clopton v. Morris, 6 Leigh, 278.

At least if the chose in action is not assignable, Tuscumbia, C. & D. R. Co. v. Rhodes, 8 Ala. 206.

If, at the time of the assignment of a chose in action, an equitable right of set-off exists against the assignor, the assignee will take subject to such right. Ainslie v. Boynton, 2 Barb. 258.

An assignee takes subject to the right to set off an existing claim on a promissory note. Cary v. Bancroft, 14 Pick. 315. 25 Am. Dec. 393.

A chose in action for which assignment is not provided by law remains subject to all set-offs acquired prior to notice of its assignment. Burkett V. Moses, 11 Rich. L. 432.

Under the Pennsylvania statute, the assignee of a chose in action takes subject to set-offs then existing. Rider v. Johnson, 20 Pa. 190; Thompson v. McClelland, 29 Pa. 475; Eldred v. Hazlett, 33 Pa. 307; Faull v. Tinsman, 36 Pa. 108; Keagy v. Com. 43 Pa. 70.

An assignee, although a creditor taking in satisfaction of his debt, takes subject to a set-off. Peters v. Soame, 2 Vern. 428.

Originally choses in action were not assignable so as to give the assignee any rights whatever, but finally equity began to protect the rights of the assignee, and still later statutes were passed providing in a greater or less degree for such assignments and defining the assignee's rights.

Under the New York statute, set-off against an assignor is available against an assignee of a chose in action. McIlvaine v. Egerton, 2 Robt. 422.

If it existed at the time of the assignment, and was acquired by defendant before notice of the assignment. Faulkner v. Swart, 55 Hun, 261. The fact that under the code the action is brought in the name of the assignee does not change the rights of the parties. Martin v. Kunzmuller, 37 N. Y. 398, 10 Bosw. 26.

are those made so by the law-merchant or some statutory provision.

A contract, in the absence of value paid and notice given at the time of the assignment, is subject to set-off. McGowan v. Budlong, 79 Pa. 470. The assignee of a claim upon a recognizance takes subject to the right of set-off. Burton v. Willin, 6 Houst. 522.

Under the Iowa statute the assignee of an account takes it subject to all set-offs obtained by the debtor against the assignor before suit is commenced. Reynolds v. Martin, 51 Iowa, 324; Zugg v. Turner, 8 Iowa, 223.

An equitable assignee of an account takes subject to set-off. Andrews v. McCoy, 8 Ala. 920, 42 Am. Dec. 669.

The assignee of a bond takes subject to existing set-offs. Ragsdale v. Hagy, 9 Gratt. 409; Miller v. Centerville, 57 Iowa, 640.

An assignee of a bond after maturity takes subject to all set-offs existing before notice of the assignment. Pugh v. Grant, 86 N. C. 39.

The assignee of a bond takes it subject to every defalcation which the obligor had against the obligee at the time of the assignment, or notice of the assignment. Wheeler v. Hughes, 1 Dall. 23.

The surety on a sheriff's bond, who takes an assignment of the lien of the commonwealth upon the sheriff's right of action against the deputy for breach of duty, must allow a set-off of a claim by the deputy to reimbursement for money previously paid as surety for the sheriff. Harlan v. Lumsden, 1 Duv. 86.

But an assignable certificate of stock is not within the Alabama statute of set-off, so as to render it subject in the hands of the assignee to set-off for the debts of the assignor. Spence v. Whitaker, 3 Port, (Ala.) 297.

The assignee of a mortgage takes it subject to the There has been some question as to how far right of the mortgagors to set off against it an exequity will protect the right of set-off since the as-isting judgment against the mortgagee. Rosevelt signment is provided for by statute and equitable protection of the assignment is no longer required to the same extent as formerly.

In Greene v. Darling, 5 Mason, 201, the question

v. Bank of Niagara, Hopk. Ch. 579, 2 L. ed. 530.

Mortgages are quite frequently given merely as security for promissory notes, and the question of their assignability free from set-off is then deter

error:

Messrs. Hatch & Cooley, for plaintiffs in | Dec. 69; Kull v. Thompson, 38 Mich. 685Myers v. Davis, 22 N. Y. 489; Cuffin v. McLean, 80 N. Y. 560; Munger v. Albany City Nat. Bank, 85 N. Y. 580.

Because at the time of the assignment of Doyle's interest to the plaintiffs, and at the time when defendant received notice of the assignment, nothing had been earned under the contract, the right of set-off never accrued to the defendant.

The right of set-off is a statutory right, and is governed by the provisions of 3 How. Stat., p. 3722, § 7365.

Defendant can now set-off its claim against Doyle if it could have used it as a set off against Doyle before the assignment was made.

Doyle did not assign a debt. When the time came that two debts did not exist, they were not opposing debts, for they did not exist between the same parties. Therefore, "the demand" of the defendant was not "such as might have been set off against" Doyle, "while the contract belonged to him."

Lockwood v. Beckwith, 6 Mich. 168, 72 Am.

mined largely by whether or not the note is so assignable. Upon that question see note to VANN V. MARBURY, post, 325.

The assignment of a mortgage securing an unmatured note is not subject to set-off. Dutton v. Ives, 5 Mich. 519.

But in New Jersey it has been held that the assignee of a mortgage is not subject to set-off in the absence of an agreement between the original parties that the set-off claimed should be applied on the mortgage. Conover v. Sealy, 45 N. J. Eq. 589.

And that is put on the general ground of no setoff to mortgages. Dubois v. Schaffer, 23 N. J. Eq. 401.

The assignee of a policy in a mutual insurance company after the loss has occurred takes subject to the right of the company to set off an unpaid assessment. Archer v. Merchants & Mfrs. Ins. Co. 43 Mo. 434.

Assignment will not defeat set-off.

So the general rule is that an assignment will not defeat the right of set-off, if both causes of action existed at the time it was made. Bent v. Peirce, 69 Me. 381.

But in Howe v. Sheppard, 2 Sumn. 409, it is said that where there are mutual debts which may be set off in law or equity, the right of set-off is extinguished by a bona fide assignment of one of the debts, but in that case the debt on one side was Joint and was assigned without any separate title of the cross-debtor ever attaching to it.

Where rights become fixed.

Both the statutes and courts of equity have generally fixed some point of time claims existing before which could be allowed in set-off and these acquired later could not be made available.

The right of set-off is determined by the date at which notice is given of the assignment. Miller v. Kreiter, 76 Pa. 78.

Under the Oregon statute, any demands may be set off which were acquired by the debtor prior to notice of the assignment. Rayburn v. Hurd, 20 Or, 229.

Under the Michigan statutes, claims are a proper set-off which belong to the defendant before notice of the assignment. Smith v. Warner, 16 Mich. 390. Notice of the assignment is necessary to prevent claims against one to whom rent is due from being procured and set off by the obligor against the assignee. Adams v. Lavens, 20 Conn. 73.

|

Set off can be allowed only when the parties have a mutual right to sue each other. Lee v. Perry, 6 Kulp, 339.

Debts to be set off must be mutual subsisting debts at the time the action is commenced. Weader v. First Nat. Bank of Crawfordsville, 126 Ind. 111.

Notes paid by an accommodation indorser for an insolvent debtor, after an assignment by the latter for the benefit of creditors cannot be set off as against the assignee, upon & debt due from an indorser, although they were due before the assignment was made. Huse v. Ames, 104 Mo. 91.

An assignee for the benefit of creditors who receives a negotiable order before it becomes due, as an asset of the trust property, is clothed with all the rights of an assignee before maturity of the instrument, and the drawer is not

fore notice of assignment is a good set-off to a Suit on the mortgage by the assignee. McCabe v. Grey, 20 Cal. 510.

The one seeking the set-off must show that he held it prior to notice of the assignment. Freeland v. Man, 1 Smedes & M. 531.

An assignment by a banker of a bond given to secure money loaned is subject in the hands of the assignee to set-off of money on deposit with the banker when he becomes barrupt, if no notice of an assignment is given. Cavendish v. Greaves, 24 Beav. 163, 27 L. J. Ch. 314, 3 Jur. N. S. 1086.

Claims accruing after notice of the assignment cannot be set off, although they arise out of transactions previously entered into, unless they are connected, or the parties intended that they should be set off. Watson v. Mid-Wales R. Co. L. R. 2 C. P. 593, 36 L. J. C. P. 285, 17 L. T. N. S. 94, 15 Week. Rep. 1107.

If a debtor has notice that his debt has been assigned to a third person, be cannot buy up a claim against his original creditor which can be used as a set-off against the claim in the hands of the assignee. Whitaker v. Pope, 2 Woods, C. C. 463.

Set-offs arising after notice of the assignment are not available. Bowman v. Halstead, 2 A. K. Marsh. 201, 12 Am. Dec. 380.

Demands procured after notice of the assignment are not available as set-offs. Thompson v. Emery, 27 N. H. 274.

When notice of the assignment and the credit sought to be set off by the debtor was received by the same mail, the debtor cannot acquire such title to the claim as to make it available against the assignee. Goodwin v. Cunningham, 12 Mass. 193.

Where notice of an assignment is given to the debtor he cannot plead in set-off a note given subsequently to the notice, although the debt in consideration of which it was given existed prior to the notice. Weeks v. Hunt, 6 Vt. 15.

An assignee of marginal receipts, given by a banker as security for deposits to insure agains: loss on discounted drafts, takes subject only to such set-offs by the bank as had accrued at the time they became payable upon obligations contracted prior to notice of the assignment. Jeffryes v. Agra & Masterman's Bank, L. R. 2 Eq. 674, 35L. J. Ch. 686, 14 Week. Rep. 889.

The time of giving notice has not, however, been accepted by all the courts as the time when the rights of the parties became fixed. At one time it was held that under the New York statutes, deA judgment against a mortgagee purchased be- mands acquired after the assignment cannot be set