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 inmediately 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, vs. 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. 8 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 North ern 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,

fell into it and was greatly injured. That Woodbury brought suit against the city, in said Cook County Court of Common Pleas, and at the June term, 1857, of the said Court recovered a judgment for $15,000 and costs, which the city has been forced to pay, and that although the city is primarily liable, yet Robbins is responsible over to it for the amount of the judgment, interest, and costs so re covered. The case as shown by the bill of exceptions is this: Robbins, owning a lot in Chicago, on the south-east corner of Wells and South Water streets, on the 20th of February, 1856, contracted in writing with Peter Button to erect a building thereon, which included an excavation of the sidewalk next to and adjoining it, so as to furnish light and air to the basement. The contract contained a stipulation that Button was to be liable for any violation of city ordinances in obstructing streets or sidewalks, or accidents resulting from the Possession of the ground, in order to erect the building, was given to Button, by the terms of the contract, on the 1st day of April, 1856. The area was dug early in the spring and covered up temporarily with joists, which often got displaced, and during the summer and fall it was frequently uncovered and dangerous. The dagging was laid some time in the fall and the iron gratings afterwards, with which Button had nothing to do.

same.

There were seven different contractors on the building, in all, on different parts of the work. Letts had the contract for the iron gratings, and Cook & Co. for the flagging. Robbins was in Chicago, and occasionally at the building, during the summer, and was there while excavations were going on, and was spoken to frequently by the city superintendent upon the dangerous condition of the area. At one time after the flagging was laid, and ice was or had been on the flagging, he called Robbins's attention to the condition of the area, and suggested the mode in which it should be covered up, "telling him that if it was sleety and people were passing rapidly they might slip in, and that somebody's neck would be broken if the covering was not attended to," and he replied "that he would see to it, but that the matter was in the hands of his contractor, and he would speak to him about it." Before this, the head clerk in the office of the city superintendent wrote Robbins

open

a note and put it in the post office, notifying him of the danger of the whole front of the sidewalk. The area was usually entirely after the flagging was laid, until after the grating was all done, and was open until after the accident. There were lamps at bridges, and a lamp at alley, sixty-four feet from the building. The width of sidewalk, including area, was sixteen feet. The area was four feet ten inches wide. The grade of Wells street was changed by the corporation; the sidewalk was raised eight inches higher than it was, to accommodate it to the grade of the street; it was raised in July or August, 1856, and Robbins directed Van Osdell, his architect, to raise the sidewalk to the grade. Van Osdell superintended the erection of the building for Robbins, who paid him: his duty as superintendent was to see "that the work was done according to contract; to see that the work and material were according to specification, and make estimates." Button was told of the dangerous condition of the area, and spoke several times to his foreman about it. Button was to finish his work under the contract by the 1st of September, but did not in fact complete it until February, 1857. On the night of the 26th of December, 1856, the area was not sufficiently covered, and Woodbury fell into it and was injured, and sued the city and recovered in manner as stated in the declaration. Marsh was city attorney in 1856, and when the suit was begun he made preparations for its defence, and ascertaining that Robbins owned the building, applied to him to assist him in procuring testimony; Robbins told him of a witness who knew something of the suit, and promised to write to him, and afterwards informed Marsh that he had done so; the evening before the trial he casually met Robbins, and told him that the suit would be tried the next day; he did not go expressly to notify him to defend the suit, and never notified him that the city would look to him for indemnity. Evidence was given tending to show that the city authorities knew of the excavation of this area and of other areas similar to this at different times, and interposed no objection, though no express permission to make this one was given.

The defendant introduced in evidence the following provision of the ordinances of the city of Chicago, viz.: