We regard it as settled, that an assignee in bankruptcy does not, by the mere force of the assignment and his acceptance of it, become the assignee of an unexpired term of a lease, which the bankrupt may own when the assignment is made, in such sense, that he cannot decline to accept the term, and avoid incurring liability, as assignee, for subsequently accruing rent. The assignee may decline to accept of the term, and in that case will not be liable as an assignee of the lease. But if he enter into the possession of the demised premises, and occupy them as such assignee, he will be liable for rent accruing during such occupation. He will not become liable by merely entering into the demised premises, for the purpose of taking possession of other property of the bankrupt and removing it. Martin vs. Black, 9 Paige 644. How vs. Kennett, 3 Ad. & Ellis 659. Hanson vs. Stevenson, 1 Barn. & Ad. 304. Copeland vs. Stephens, Id. 594.

If a voluntary assignee of property, in trust for the benefit of the creditors of the assignor, stands in the same position; then the only question will be, whether the defendant has done any acts, signifying his assent or election to accept of the term.

There is no doubt, that, if he accepts of the term as assignee, he will be liable for rent accruing whilst he holds the estate as assignee. Patten vs. Deshon, 1 Gray 329.

So a mere equitable assignee of a lease, who, as such, has entered into possession and occupied the demised premises, is liable for the rent accruing during such occupancy. Jenkins vs. Portman, 1 Keen 435. S. C., 15 Eng. Ch. R. 455, note 2. Close vs. Wilberforce, 1 Beavan 113.

But may a voluntary assignee accept of the general assignment made by the assignor, and reject the term? In the present case, it does not appear that the assignee when he accepted of the assignment, knew that his assignor owned the lease; and the question is to be considered, in view of this, as one of the facts in the case.

In Carter vs. Warne, 4 Carr. & P. 191, Lord TENTERDEN, C. J., held and charged the jury, that a voluntary assignee of property. in trust for the benefit of creditors, stood in the same position as an assignee in bankruptcy. This ruling is adverted to by

LITTLEDALE and PATTESON, Js., in their opinions in How vs. Kennett, suprà. But it can hardly be said, that either of them expressed the opinion that it was accurate.

In Pratt vs. Levan & Snyder, 1 Miles 358, it was held, that the voluntary assignee might reject the term, and that the same rules applied to him as to an assignee in bankruptcy. In that case, however, the lease was not assignable except by the written consent of the lessor, and that consent he never gave. See Morris vs. Parker et al., 1 Ashmead 187. The case of Carter vs. Hammett, 12 Barb. S. C. R. 253, favors the same view. The N. Y. Common Pleas in Journeay vs. Brackley, 1 Hilton 447, determine the precise point, in favor of the voluntary assignee. No case has been cited, which decides to the contrary.

The cases in this Court, in which the voluntary assignee has been held liable, are not in conflict with the rule for which the defendant contends.

In Young vs. Peyser, 3 Bos. 308, the assignee entered into the demised premises, and took possession thereof, by virtue of the assignment, and occupied the premises until he surrendered them and the lease to the plaintiff, who accepted them. The assignee was held liable for the rent which fell due, during such occupation. The same rule was applied in Astor vs. Lent, 6 Bosw. 612. The case of Muir vs. Glinsman (argued at the January and decided at the February General Term of this Court 1856), and commented on in Journeay vs. Brackley, suprà, 1 Hilton 455-457, is not in conflict with the decisions in the latter case, or with that made in Pratt vs. Levan, suprà.

Muir vs. Glinsman did not seek to charge the assignee personally, and the judgment, pronounced at special term, directed that the quarter's rent which fell due November 1st, 1854, should be paid by the assignee out of the proceeds of the assigned property in his hands; the complaint alleging, and the answer not denying, that Glinsman had in his hands proceeds of the assigned property sufficient to pay such rent. Muir, on the 29th of April, 1854, leased to one James Grundy the second and third floors of the premises, No. 442 Broadway, for two years, from the 1st of May then next, at $1950 per annum, payable quarterly. In Septem

ber 1854, Grundy, being in the occupation of the demised premises, and having become insolvent, assigned all his property (in trust for the benefit of creditors) to Glinsman. The latter immediately took actual possession of the premises, and of the assigned property therein; put a clerk in possession, who continued therein. making sales therein, until after the 1st of November, 1854, when the quarter's rent, which that action was brought to recover, became due. The assigned property (including the lease) was mortgaged by a chattel mortgage made prior to the assignment, and in force when it was made. In the language of that case, "there was considerable of the assigned property left, after satisfying the mortgage," and "part of the goods were sent from the store in Broadway to a store in Nassau street, and were returned after the mortgage was satisfied." The goods so returned, were sold on the demised premises.

The evidence justified the conclusions that the assignee entered the demised premises with intent to occupy them, and to occupy them as assignee, by virtue of the assignment, and did so occupy them; and the Court thought the assignee had no ground of complaint in the fact that he was ordered to pay that quarter's rent out of the moneys in his hands, realized from the assigned estate, instead of paying it out of his own funds. See Astor vs. L'Amoreux, 4 Sand. S. C. 524; s. c., 4 Seld. 107; Childs vs. Clark, 3 Barb. Ch. R. 52; Calvert vs. Bradley, 18 How. U. S. R. 580. If we are at liberty to follow the decisions made in Pratt vs. Levan, and Journeay vs. Brackley, suprà, there is nothing in the plaintiff's equities which should disincline us to do so. See opinion of Denman, C.-J., in How vs. Kennett, suprà.

Voluntary assignees of property in trust for the benefit of creditors, administer large estates; and their appointment is a matter of almost daily occurrence: they are, by existing laws, placed on the same footing, in respect to the costs of suits brought by and against them, as executors and administrators. Code, § 317.

They may maintain actions for the benefit of creditors, to reach property which their assignor had disposed of, with intent to defraud. Laws of 1858, p. 506, ch. 314.

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The same considerations of public policy which permit an assignee in bankruptcy, a receiver, or executor, to reject a term which would be a charge instead of a benefit to the estate he is appointed to administer, would seem to favour its application to a voluntary assignee for the benefit of creditors.

The recent legislation in this State, already referred to, seems to have its origin in the same views.

We think, therefore, that the defendant's liability in this case depends upon the question, whether he entered under such circumstances as manifest his assent to accept the term.

The case concedes that the rent reserved is more than the value of the use of the demised premises. It was, therefore, the duty of the assignee to waive the term, if he had the right to do so.

He was not in possession when the rent in question accrued: he has not paid any rent to the plaintiff. The assignment does not import that the assignor had any such property as the lease in question, nor does it appear that the assignor knew that he had. Had it appeared that the assignee knew, when he accepted of the assignment, that the assignee owned this unexpired term, what effect should be given to that fact, it is unnecessary now to consider.

The case does not state that the assignee took possession of the demised premises.

It states that he entered them, and "took possession of the stock," &c. And as it also states that he did not occupy the premises, otherwise than to make an inventory of the goods and remove them, and stayed no longer than was necessary for that purpose-all having been concluded on the third day after the assignment was executed-we are of the opinion, upon the facts as the parties have stated them, that his entry was solely for the purpose of possessing himself of the stock, and without any intent to accept of the term.

That he did nothing which could have led the plaintiff to suppose that he entered upon the premises with a view to take posses sion of them as assignee, even if the plaintiff knew, before the goods had been removed, that any assignment had been made. These views entitle the defendant to judgment.

Supreme Court of Pennsylvania. February 2d, 1863.

PHOENIXVILLE vs. THE PHOENIX, IRON COMPANY.

Where the public acquire a right of way over a race previously dug by the owner of the land, the burden of building and maintaining such a bridge as is necessary for the highway, rests upon the public.

On the other hand, where the owner of the land, for his own purposes, digs a rac across an existing highway, he is bound to build and keep in repair such bridge as is necessary for the highway.

His obligation is proportioned to the public right at the time. If the way be only a footway, a bridge to accommodate foot-passengers is all he is required to build or maintain. If the public subsequently acquire greater rights, his obligation is not increased.

Therefore, in a case where a bridge built by defendants' vendor had been carried away and a new one built wider and higher, to correspond with a new road laid out by order of Court on the site of the old one, it was held, that defendants were not liable for repairs to this new bridge.

STRONG, J., delivered the opinion of the Court.

If the public acquire a right of way over a race previously dug by the owner of the land through which it passes, the burden of building and maintaining such a bridge as is necessary for the highway, rests upon the public. On the other hand, it is equally clear, that, if the owner of a mill make a channel to it across a highway already in existence, and build a bridge over the channel which is used as a public bridge, he shall be bound to repair. This is laid down in 1 Rolle's Ab. 368, title Bridges, pl. 2, and it has been ever since recognised as law. Perley vs. Chandler, 6 Mass. 454. Dygert vs. Schenk, 23 Wendell 446. Woodring vs. Forks Township, 4 Casey 355. The reason given is, that the bridge is erected for the private benefit of the owner of the mill. To this might be added, that it is made necessary by his interference with the way in which the public had acquired a right Though he may dig and maintain a race through a highway, the fee simple of which belongs to him, he cannot do it at the expense of the rights of the public. He must preserve the highway, without any diminution of the right to its enjoyment which the public had obtained before; and hence, his obligation to build and maintain a bridge, such as shall keep the way in substance as good as