ground that the claim did not pass to the assignee, and the question was who was the proper party to prosecute the suit? To whom did the claim belong? A careful examination of all the cases cited by the defendant's counsel on this point, with certain exceptions hereinafter noticed, shows simply this and nothing more, that if the claim in contention passed to the assignee, and the defendant plead the adjudication in bankruptcy, the appointment of the assignee, and that the claim passed to him, standing on that plea, the defendant was entitled to judgment. The defendant's counsel contends that after the adjudication of bankruptcy such claims must be prosecuted in the name of the assignee.

a

It is evident however that the defendant's implied promise in this case, and wherever the action is upon contract and an actual promise, such promise is to the bankrupt. On general principles it would not seem that the defendant should be allowed to object to such promise or contract being enforced in the name of the person to whom he actually or impliedly made it, provided he could be protected against a re-enforcement of it.

In Cook v. Lansing, 3 McLean, 571, cited by defendant's counsel, it is said: "But all suits commenced after the appointment of the assignee should be brought in his name, or at least prosecuted for the benefit of the creditors whom he represents." It is the right of the assignee to have the avails of the claim to distribute among the creditors of the bankrupt. If the assignee elects to collect it in the name of the bankrupt, what legal objection can the defendant raise? His legal obligation is to pay it to the bankrupt in the first instance, but the bankrupt law intervenes and declares that the title and estate therein shall vest in the assignee for the benefit of his creditors in the first instance, and the surplus, if any, for the benefit of the bankrupt.

If A. holds a non-negotiable claim against B., and sells it to C., and C. notifies B. of such purchase, by such sale all the title and estate in such claim passes to C., and B. thereafter can legally discharge it only by payment to C. C. could not, as the assignee in bankruptcy can, sue the claim in his own name, but by the sale took the right to enforce it in the name of A. He also conferred upon B. the right and legal duty to pay it to C., and he could insist that A. should not enforce it in his own right. Because the title and estate in the claim in contention passed to the assignee, and by force of the bankrupt law the assignee was empowered to bring a 1 suit upon it in his own name, it does not follow that the defendant was thereby clothed with the right to object to its enforcement in the name of the plaintiff, except that it should be so enforced that it could not again be enforced against him in the name of the assignee. Suppose the claim is burdened with an onerous condition, so that it is doubtful if any thing will be gained to the estate by its enforcement, is that it of doubtful a character, and the assignee refuses to accept the burden or to incur the expense of the litigation, and for that reason renounces his right to the claim, is it in the power of the defendant to say that his duty or contract obligations to the bankrupt are thereby discharged, and that the bankrupt is barred from calling on him in that behalf?

or

In the well-considered case of Amory v. Lawrence, 3 Cliff. 527, Judge Clifford, speaking on this subject, says the bankrupt's "title, in case of onerous property where the assignee elects not to take it into possession, is good against all the world, except the assignee or some one to whom he conveyed the property." Smith v. Gordon, 6 Law Rep. 317 "All property and rights of property belonging to the bankrupt, unquestiona

bly pass by force of the decree in bankruptcy to the assignee by operation of law, and become vested in him as soon as he is appointed. But though the legal title passes to the assignee, he is not bound, said Judge Ware, to take possession of all property. Leasehold estates pass to the assignee under the English bankrupt laws; but the assignee is not bound to take the lease and charge the estate with the payment of the rent as the rent may be greater than the value of the lease, and thus the estate may be burdened instead of being benefited; and in such a case the claim may be abandoned by the assignee. He is not bound in such a case to take the property; it remains in the bankrupt; and no one certainly, except the assignee, has a right to dispute his possession. Copeland v. Stephens, 1 Barn. & Ald. 603; Fowler v. Down, 1 Bos. & Pul. 44." *

*

*

*

"Robison says it has long been a recognized principle of the bankrupt law that the assignees of a bankrupt are not bound to take property of an onerous or unprofitable character, or property which will be a burden instead of a benefit. They are on that subject regarded as being in a very different position from that of the executors of a deceased testator, as the former take the property by operation of law, while the latter claim title through their testator, and are bound to perform his obligations to the extent of his assets. Robison's Bankruptcy, 822. Where the assignee elects not to take the rights of the bankrupt, and charge the estate with the burden of uncertain litigation, the right, whatever it is, survives in the bankrupt, and some of the authorities hold that it may be pursued by any creditor not a party to the proceedings in bankruptcy. Smith v. Gordon, 6 Law Rep. 317. Persons acting as assignees in such a case are required to elect within a reasonable time; and the rule is that if they refuse to elect when required to do so it is deemed an election to reject the estate. Lawrence v. Knowles, 5 Bing. (N. C.) 399; Carter v. Warne, 4 C. & P. 191; Graham v. Van Dieman's Land Co., 11 Exch. 101; Ex parte Brand, 1 Dea. 321; Tuck v. Fyson, 6 Bing. 321." The authorities cited fully sustain the doctrine announced by the learned judge.

This doctrine has been followed and applied in Towle v. Rowe, 58 N. H. 394, and Ramsey v. Fellows, id. 607. It shows that both under the English and American bankrupt laws the right to enforce a contract or legal duty in the name of the bankrupt is not taken away by the adjudication in bankruptcy and the appointment of an assignee; that this still exists so far as the defendant is concerned or interested by contract or legal duty and obligation, and that the defendant is only concerned, and has the right to be protected against the danger of being subjected to two suits and a double payment of the claim transferred by operation of the bankrupt law to the assignee. When that danger has passed his right to object to a suit in the name of bankrupt is gone. This is consonaut with the decision of this court in Udall v. School District, 48 Vt. 588, in which it is held that on the sale of a nonnegotiable claim by the assignee to the bankrupt, the bankrupt could maintain a suit thereon' in his own name. As the bankrupt law did not make a non-negotiable claim negotiable, even in the hands of the assignee, but simply empowered him to sue it in his own name, when the assignee's right to the avails of the claim became extinguished as between him and the bankrupt, the right of the defendant to object to a suit in the name and for the benefit of the bankrupt also ceased. None of the cases cited by the defendant's counsel contravene the doctrine announced by Judge Clifford, supra; but some of them recognize it.

In Gay v. Kingsley, 11 Allen, 345, Chapman, J., says: "He (the bankrupt) might hold it (the note) as his own

if the assignee, with knowledge of its existence, declined to claim it."

In Smith v. Chandler, 3 Gray, 392, it is in substance conceded that a suit could be begun and prosecuted in the name of the bankrupt," with the consent and for the benefit of the assignee," but that the case did not show such assent. The cases strongly relied upon by the defendant do not discuss nor consider what the right of the bankrupt would be if it were shown that the assignee had waived his right to prosecute the claim, or that the defendant had in any other way been placed in circumstances so that the danger of a second payment of the claim being enforced by the assignee was passed.

In Nash v. Nash, 12 Allen, 345, the interest of the bankrupt in the demanded premises was included in his schedule of property, filed in the proceedings in bankruptcy, and it was not shown whether the assignee realized any thing from it, or in any way availed himself of it. It was held the bankrupt could not maintain the action.

In Parks v. Tirrell, 3 Allen, 15, it is held that the right of the plaintiff became vested in the assignee, and nothing was shown by which it had been conveyed

the appointment of another assignee, nor to be allowed to come into this suit and take the avails of this claim. Their failure to act is a practical renunciation of the claim or any right to it.

The defendant having ample means of protecting itself against a repayment of the claim, the neglect and non-action of the plaintiff's creditors under the circumstances of this case do not call upon the court to delay judgment in favor of the plaintiff, that they may be notified, and formally renounce all right to the claim, as was done in cases reported in 58 N. H. Judgment affirmed.

MUNICIPAL CORPORATION-ADVERSE OCCUPA TION OF STREET.

SUPREME COURT OF ARKANSAS.

CITY OF FORT SMITH V. MCKIBBIN.* Adverse possession of a city alley for the statutory period gives title to the occupant.

barred by the statute of limitations while vested in the assignee, from prosecution by the assignee, it thereby became barred from subsequent prosecution by the plaintiffs.

Griswold v. McMillan, 11 Ill. 590, decides that the bankruptcy of the plaintiff is a good defense to an action in his name when he produced the note on which the action was founded, and showed no other facts. Robinson v. Denny, 57 Ala. 492, so far as regards the question under consideration, holds that it is for the bankrupt court to determine the surplus which the assignee holds, if any, in trust for the bankrupt, and until such decree the title remains in the assignee, and if the surplus consists of rights of action, he alone can maintain suits founded on them. None of these cases, urged especially by the defendant's counsel, consider the question discussed by Judge Clifford; nor do they decide any thing in conflict therewith.

The remaining question is, do the facts of this case bring it within the principle which allows the bankrupt to maintain the suit for a recovery for his money paid by mutual mistake? The fact that the assignee has settled his account and been discharged by the bankrupt court does not remove the danger of a second payment of the claim from the defendant, as a new assignee doubtless could be appointed at the instance of the creditors who have not been paid iu full; nor does the failure of the assignee to prosecute the claim while in office; for neither he nor the bankrupt then knew of its existence. But it further appears, and is not disputed by the defendant, that the claim has now become barred by the statute of limitations, if an assignee should now be appointed to prosecute the same. This suit however was commenced in season to save the statute bar as to the plaintiff. As by the lapse of time the defendant has now a full defense against a suit in favor of any assignee whom the creditors may have appointed, upon principle and authority the right to maintain the suit in the name of the bankrupt, which never was lost, exists, and may be exercised by the bankrupt in his own favor. If any sure remedy remains to the creditors of the plaintiff to avail themselves of this claim, it is by coming into this suit, and on equitable principles in regard to sharing in the expense of its prosecution, by being allowed to take the avails of this claim. This doubtless could be done. But the suit has now been pending a long time, with all the facts in regard to this claim spread upon the record, and no move been made by the creditors for

ion states the case.

James Brizzolara, for city, appellant.
Duval & Cravens, for appellee.

EAKIN, J. Mary McKibbin, the owner of a half block of land in Fort Smith, which she occupied in solido as a residence under inclosures, applied in chancery and obtained a perpetual injunction upon the city authorities, restraining them from proceeding to open an alley through the premises.

The city claimed the alley as having been dedicated to city uses, and as being already subject to its control, and was about to proceed to remove the obstructions. Although the terms of the injunction were general, the decree was not intended, and will not have the effect to preclude the city from hereafter opening an alley there, in the proper exercise of its powers, as in the case of a new alley, if the public convenience should require it. The city appeals.

The facts of the case are simple. The blocks of the city are 300 feet square, with a street upon every side. They are divided each into twelve lots, fronting, six each, upon opposite streets and running back to a twenty foot alley, which runs between the two ranges of lots. These lots are numbered from 1 to 6 on one side, and reversely from 7 to 12 on the other side. The appellee owned and occupied lots 4, 5, 6, 7, 8, 9, which composed a half of the block, taken across the supposed alley. The other half of the block was owned by two others, having each a quarter of the block on the other corners. They had also taken each a portion of the alley into their inclosures, so that there was really no passway there. None of the parties needed

or desired one.

The alley, according to the plat of the town, extends straight for a long way each side through blocks in the same range, and was not in any other way obstructed. The portion of the town in which the block lies was not thickly built; the streets were unobstructed, and it is clear enough, from the evidence, that there was no public necessity for the alley. It does not in any way appear that it would have been the slightest convenience to any one whatever. It does appear that to open it would, in a great measure, destroy the utility and comfort of the premises as the appellee's home.

The blocks, lots, streets, and alleys had been mapped and platted by the original owner of the site of Fort Smith, which plat had been accepted by the city as

*S. C., 41 Ark. 45.

determining the streets and alleys, and which had been referred to in conveyancing. All the deeds in a pretty long chain of title, under which appellee held, described the property by lots, running back 140 feet into an alley. None of them expressly gave prop. erty in the alley itself. So far as these facts constituted a dedication to the public, the alley had been dedicated and had passed under the control of the city authorities.

The inclosures had been there for a long time beyond the period of limitations, and were there when appellee purchased. The premises had been used continuously as a home, with the assent of all co-owners in the block, who themselves desired that the alley should not be opened.

It appears affirmatively indeed that the municipal authorities did not consider it necessary to the public, for they had offered to permit the appellee to maintain her inclosures for an indefinite time, if she would acknowledge the city's right and agree to open the alley at a future time when requested. She refused, and the city was about to order their removal by the marshal when she invoked the aid of the chancellor. The city indeed desired only to settle a right, by an effort to exercise it. Perhaps that was proper enough, in view of the official trust reposed in the officers, but nothing would have been lost by leaving the appellee in the enjoyment of her home until the alley should have been needed, if ever. The city's rights were as effectually barred as they could be by time.

She claims that the action of the city was oppressive as well as unauthorized. That the alley was never dedicated to the public, and that if it were, the right of the municipality to control it had been lost by limitation.

It is convenient to consider the last question first. It is one of great importance, which has been frequently considered in other States, and with regard to which there is much conflict of authority. It may be presented thus: Is a city or town corporation, with respect to property or powers which it holds in trust for the public, bound by the statute of limitations, 80 as to be precluded by lapse of time and adverse holding, from claiming to control the property or exercise the power? With regard to property, or contract rights which the municipality claims for its own convenience as a corporation, there is little difficulty. Almost if not quite all the authorities concur in holding in such cases that it is amenable to the statute; and we think it obvious that it should be cu principle. Quoad hoc, it does not represent the sovereignty of the people but only itself and the local interests of citizens.

The trouble arises where the powers are held in trust, not for the members of the body corporate alone, but for the whole people who may come to the city. The most common cases are those arising with regard to the use of streets, squares, parks, and commons which have been dedicated to the public. Appellees contend that in this respect alleys do not stand upon the same ground with streets and squares; but waiving that for the present, we will consider the question with regard to all.

If municipalities are not bound by statutes of limitations with regard to these public trusts, that is, with regard to their powers to keep open streets, etc., it must be upon the maxim, that “nullum tempus occur rit regi," and that municipalities are the adjuncts of government, and have the franchise of sleeping upon their rights; or rather that the public must not suffer from their neglect.

But municipal corporations are not really the State, nor are their functions and powers conferred principally for the benefit of the whole people of the State,

although incidentally they hold some trusts in the exercise of which any citizen of the State may come to be interested. It may well be doubted whether the reason of the maxim may not be strained too far in applying it to these bodies. That "the time and attention of the sovereign must be supposed to be occupied by the cares of government," might well have excused a king from asserting his rights, but affords no reason why the officers of a corporation should not be reasonably diligent in the discharge of the very duties they were selected to execute. Nor does it af ford a reason why citizens, daily sensible of an encroachment on their common rights, should be allowed to lie dormant for many years and then assert them to the detriment of others. The maxim should not become the instrument of wrong. The more wholesome rule for the citizen individually and collectively as well is that the laws favor the vigilant only and not the careless and slothful.

It has been said speciously that municipal authorities cannot grant away these public easements, and that no one can therefore claim, "by prescription," to impede them, because a prescription implies an origi nal grant. This may be and is the true nature of a claim by prescription, but the argument seems to rest on a confusion of ideas. One who sets up the defense of the statute of limitations does not claim technically by prescription and cannot be met with that technical argument. He defends by statute entirely, regardless of any consideration of grant or even lawful entry. He is allowed to go further as a consequence and say that as no suit can be brought against him, his possession shall not be disturbed in pais, and that he and his assignees shall stand upon the effect of the statute and be respected as owners.

The authorities upon the vexed question here presented have been collected, and the principles discussed by Mr. Dillon in his work on Municipal Cor porations. It is conceived that nothing important can be added to his text, notes and citations, for a full showing of the authorities upon each side and the reasons by which they are supported. See Dill. Mun. Corp., §§ 667-675 (3d ed.). Whilst he himself comes to the conclusion that no laches on the part of the officers of a corporation can defeat the right of the public to its public streets and places, he yet qualifies it by say ing that private rights may grow up in consequence of such laches of "more persuasive force in the particular case than those of the public." It seems to be a compromise between the doctrine of a statutory bar and that of nullum tempus, etc., by adopting the equitable doctrine of staleness and estoppels in pais.

The authorities are reviewed at length in the case of City of Wheeling v. Campbell, 12 W. Va. 36. It is a very interesting and instructive case in support of the doctrine that municipal authorities are bound as individuals are by the statute of limitations. There the parties were reversed. The city sought to enjoin the defendants from building a house upon a portion of a street, concerning the original dedication of which there was no question. The defendants set up long and adverse possession, and were met by the doctrine of nullum tempus. The authorities on both sides are well arrayed, and the court held upon their decided weight that the city was subject to the statute and was barred. The court amongst other things quoted the remarks of Chief Justice Dillon in City of Pella v. Scholte, 24 Iowa, 283, which was a contest of the right of the city to a certain garden square claimed by adverse possession.

Assuming the dedication the learned judge said: "To actions of this character, though brought in equity, the ten years' limitation applies directly or by analogy." Further on he says, speaking of the doc

ing Kansas avenue, as adopted and executed, by the proper authorities of the city, then the plaintiff cannot recover in this action. But if you find from the evidence that such defects [arose] from a negligent and careless construction of the grading and filling, after the plan of construction had been fixed upon, then the plaintiff may recover, provided the injuries complained of were caused directly by such last-named negligence, and the plaintiff and the driver of the team in which she was riding were themselves, without fault, contributing to such injuries.

"15th. If you find from the evidence that at the time of the alleged accident Kansas avenue, at the place where such accident is alleged to have occurred, was in a defective condition, and that such defective condition was caused by said avenue having got out of repair, either by reason of travel upon it, or otherwise, after the completion of the work of grading and filling and not by reason of negligence in the grading and filling thereof as originally done; then the plaintiff cannot recover in this action.

16th. If the work of grading and filling Kansas avenue at the place of the accident was done by the direction of the defendant, and after its completion the defendant, with knowledge of the plan on which said work had been done,accepted it by permitting it to stand and to be used as a public street, this would be a ratification of the plan of said work, and would in effect be the same as though the plan of said work had first been adopted, and the work executed in accordance with said plan so adopted."

Several other instructions were given, but these are the only ones of which the plaintiff now complains. The plaintiff also asked the court to give several other instructions, which the court refused; and of this refusal the plaintiff now complains; but we do not understand that any question is now raised upon the instructions refused different from or in addition to the questions raised upon the instructions given. The jury found a general verdict in favor of the defendant, and the plaintiff moved the court for a new trial upon various grounds, which motion was overruled, and the court rendered judgment in favor of the defendant, and against the plaintiff for costs; and this judgment the plaintiff now seeks to have reversed.

That a city is liable for any injury to private individuals caused by the negligence of its officers in not keeping its streets in a safe and proper condition has been maintained and promulgated by the Supreme Court of Kansas nearly ever since its first organization; and such is now the unquestioned doctrine of this State; and nearly all the courts of last resort in all this country also recognize, sanction, approve and promulgate this very same doctrine. It is believed that the decisions of the Supreme Courts of New Jersey, Michigan and Texas furnish the only exceptions to this almost universal agreement among the courts. Pray v. Mayor, etc., 32 N. J. L. (3 Vroom) 394; Detroit v. Blackeby, 21 Mich. 84; McCutcheon v. Homer, 43 id. 484; City of Navasota v. Pearce, 46 Tex. 525.

But it is claimed by counsel for defendant that municipal corporations are endowed with various powers, among which are, first, those which are discretionary and judicial, quasi-judicial or legislative in their character; and second, those which are manda. tory and ministerial in their character; and that while municipal corporations may be held liable for the wrongful exercise or the wrongful failure to exercise those powers which are mandatory and ministerial in their character, such as negligently failing to keep their streets in safe and proper condition; yet that no liability can be incurred by the exercise or failure to exercise those other powers belonging to the first class above mentioned; as where the city orders or plans a street improvement, or a change or alteration of such

street, and the work is done accordingly, even if the exercise of such powers or failure to exercise the same should be ever so wrongful. It is claimed that cities may adopt a plan for public improvements or ratify such plan after the improvements have been made, and that the adoption or ratification of such plan will come within the first class of powers above mentioned, and that no negligence can be predicated upon the adoption or ratification of such plan, nor upon the improvements themselves if made in accordance with the plan; nor can the city be held liable for any injuries to individuals resulting from the plan, or from the improvements made, if made in accordance with the plan, even if the same were ever so defective and dangerous; and it is further claimed that the city can be held liable only for the negligent construction of the public works, or the negligent management and control thereof after the same have been made; and this, for the reason that these matters, and these only, can possibly come within the second class of powers above mentioned.

We agree with counsel in the division of the powers of municipal corporations, and generally that cities are not liable for the exercise or non-exercise of the first class of powers above mentioned; but we do not agree with counsel in their application of the rule with respect to injuries to private individuals resulting from the defective and dangerous condition of the public streets of cities. In our opinion, a city has no more right to plan or create an unsafe and dangerous condi tion of one of its public streets than it has to plan or create a public or common nuisance; and it is admitted that it has no right to do this. 2 Dill. Mun. Corp. (3d ed.), § 660.

The rule contended for by counsel for the defendant has been applied to various cases, as follows: It has been applied to city improvements, and the cities held not liable in cases where the property of individuals outside of the streets has been flooded and injured ou account of the insufficiency of sewers or drains. City of Atchison v. Challiss, 9 Kans. 603; Steinmeyer v. City of St. Louis, 3 Mo. App. 256; Mills v. City of Brooklyn, 32 N. Y. 489; Darling v. Bangor, 68 Me. 108; Child v. City of Boston, 86 Mass. (4 Allen) 41; Van Pelt v. City of Davenport, 42 Iowa, 308.

The rule has also been applied and a city held not liable in a case where water on adjoining property was polluted by means of a sewer or drain. Merrifield v. Worcester, 110 Mass. 216.

The rule has also been applied and a city held not liable in a case where, by the digging of a ditch, the rent of a person's house was diminished. Lambar v. City of St. Louis, 15 Mo. 610.

And also to the same effect where by the digging of a ditch and the construction of a culvert on the sidewalk the plaintiff's abutting property was damaged. While v. Corporation of Yazoo City, 27 Miss. 357.

The rule has also been applied and a city held not liable in a case where a school child was injured by an unsafe staircase. Hill v. Boston, 122 Mass. 344.

And the rule has also been applied and cities held not liable in New York and Michigan where injuries occurred to individuals on account of the unsafe and dangerous condition of the streets. Urquhart v. City of Ogdensburg, 91 N. Y. 67; City of Detroit v. Beck man, 34 Mich. 125; City of Lansing v. Toolan, 37 id.