Finney v. Smith.

oppress the plaintiff and crush out his business, and it was for these that he sought, and for which the law entitled him to recover, damages.

On the other hand, while the testimony did not make a justification or legal excuse for the acts of the defendants, intended to show that the defendants may have acted under a misapprehension as to the main facts, and which the plaintiff's acts may have lent color to, and all of which the jury was instructed to consider in mitigation of damages. This is substantially the case presented in Stevens v. Handley, in which the jury was instructed to allow full compensation to make the plaintiffs whole; and which were construed to include their counsel fees. This case seems to have been followed by the court in its instructions to the jury in the case before us. The clause of the charge excepted to is not drawn with accuracy and fullness of expression in itself, but when taken in connection with the whole charge, which is set out, we do not find it erroneous; and we see no reason to apprehend that the jury could have been misled by it to the prejudice of the defendants. The District Court, therefore, erred in reversing the judgment of the Court of Common Pleas.

There were many other exceptions taken, and assigned for error on the record, all of which we have considered but find no errors to the prejudice of the defendants below.

Motion granted. The judgment of the District Court reversed, and that of the Court of Common Pleas affirmed.

Judgment accordingly.

BOYNTON, J. I place my concurrence in the decision in this case on the ground that the publication of the defendants below, set out in the petition, being shown to be untrue, is a libel. I am not prepared to agree that counsel fees, in any action in tort, constitute a proper item for compensation in damages, unless the case is one in which the jury would be justified in awarding punitive or exemplary damages.

NOTE BY THE REPORTER.-In Armstrong v. Pierson, 8 Clarke (Iowa), 29, a charge that compensatory damages are such as will repay the costs and trouble of the suit, and of disproving the defendant's allegations, was held correct. In Connecticut the doctrine of the principal case prevails. Welch v. Durant, 36 Conn. 82; Platt v. Brown, 30 id. 336. And so in Marshall v. Betner, 17 Ala. 833, an action for malicious prosecution, the court said: "We can readily perceive the justice and good sense of the rule which requires a party who wantonly and maliciously abuses the process of the court, or sues out an attachment for the purpose of worrying or harassing the defendant without probable cause, to make

Johnson v. Sharp.

good his losses, and to furnish complete reparation and indemnity for the injury his malice has occasioned ;" and allowed the counsel fees of the defendant in the original suit to be proved and considered by the jury in estimating the damages. Mr. Sedgwick says (Meas. Dam. marg. p. 98), "It may on principle, I think, be considered clear that in cases proper for the infliction of vindictive or exemplary damages, the jury, in estimating those damages, have a right to take into their consideration the probable expense of the litigation."

On the other hand in Barnard v. Poor, 21 Pick. 378, an action of trespass for gross neg. ligence, the court held, that "the counsel fees and other expenses of prosecuting the suit, not included in the taxed costs, cannot be taken into consideration in assessing damages." The same was held in Lincoln v. Saratoga and Schenectady R. R. Co., 23 Wend. 425, an action on the case of negligence for personal injuries. In Day v. Woodworth, 13 How. 363, an action for pulling down a dam, the court say: "It is true that damages assessed by way of example may thus indirectly compensate the plaintiff for money expended in counsel fees; but the amount of these fees cannot be taken as the measure of punishment, or as a necessary element in its infliction." To the same effect is Welch v. The Southeastern R. R. Co., 12 S. C. (Rich.) 290. In Hicks v. Foster, 13 Barb. 663, the Supreme Court of New York held that it was error for the judge, in an action of slander, to charge that in awarding damages the jury might take into consideration the expenses to which the plaintiff had been put by being compelled to come into court to vindicate her character. See, also, Hoadley v. Watson (45 Vt. 289), 12 Am. Rep. 197, and note, 199.

In New York the jury are allowed to be told what amount of damages will carry costs. Elliott v. Brown, 2 Wend. 500; Waffle v. Dillenbeck, 38 N. Y. 53. In England the decisions are conflicting. The contrary of the New York rule was held in Levy v. Milne, 12 Moore, 418; 4 Bing. 195; and per BRAMWELL, B., in Kilmore v. Abdoolah, 27 L. J. Ex. 307; and a recent case of Bradlaugh v. Brooks, at nisi prius; while the New York rule was agreed to by POLLOCK, C. B., in Kilmore v. Abdoolah, supra, and in Wakelin v. Morris, 2 F. & F. 26. In Waffle v. Dillenbeck, supra, the Supreme Court (39 Barb. 135), considered that their decision, which was consonant with that in the Court of Appeals in the same case, was not in conflict with Hicks v. Foster, supra, for there "the law regulating costs and the question of punitive damages were not alluded to;" and that the court there said correctly that “Elliott v. Brown, however, has no application to the question we are considering." This draws the distinction between costs and counsel fees.

JOHNSON V. SHARP.

(31 Ohio St. 611.).

Foreign assignment — delivery by mail— comity.

S., a resident of this State, and a creditor of W., who resided in the State of Missouri, prepared and sent to W., for execution, a deed of assignment to himself, in trust, of all the debtor's property, real and personal, situate in this State," for the benefit of all his creditors, under the insolvent laws of Ohio," which deed W. duly executed and placed in a post-office in the State of Missouri, addressed to S., in the State of Ohio, who received the same by due course of mail, and immediately entered upon the execution of the trust. Held, the assignment was complete and effectual to pass title to the assignee, from the time the deed was placed in the post-office, as against subsequent attaching creditors.*

*See Paine v. Lester (44 Conn. 196), 26 Am. Rep. 442. VOL. XXVII - - 67

A

Johnson v. Sharp.

CTION to recover personal property. The opinion states the case. Judgment for plaintiff.

Trainer & Cook, for plaintiff in error.

Hays & McCauslin, contra.

MCILVAINE, J. [Omitting preliminary considerations.] The sole question in the case is, did the assignment of the attached property from Wallace to Sharp take effect, as against the attachment of the plaintiff in error, under the rules of the common law?

The inquiry therefore arises, first, was the contract of assignment complete, as a common-law contract, before the attachment was levied? The record shows that the deed of assignment was prepared by Sharp, the assignee, who was a creditor of the assignor, and a resident of the State of Ohio, and was sent to Wallace, the assignor, who was a resident of the State of Missouri, for execution; and that Wallace having duly signed, sealed, and acknowledged the same, deposited the deed in the post-office at Rolla, in the State of Missouri, to the address of Sharp in the State of Ohio, at the hour of 7 o'clock A. M., of November 16, 1874, which was seven and a half hours before the attachment was levied upon the property. The deed was received by Sharp in due course of mail, who immediately entered upon the execution of the trust. In our opinion the assignment was complete and effectual to pass title to the assignee, eo instanti, that the deed was placed in the post-office. By that act the assignor ceased to have control of it, and having placed it in the mail for Sharp, the assignee, who, by his previous conduct, had consented to accept the trust, the possession of the carrier must be regarded as the possession of the assignee. This view is sustained by the following authorities: Prince v. Yates, 2 Tread. 770; Dargan v. Richardson, 2 Cheves, 197; Merrills v. Swift, 18 Conn. 257; McKinney v. Rhoads, 5 Watts, 343; Smith v. Bank of Washington, 5 Serg. & R. 318; Shubar et al. v. Winding, 2 Cheves, 218; Wilt v. Franklin, 1 Binn. 502; Skipwith v. Cunningham, 8 Leigh, 271; Read v. Robinson, 6 Watts & Serg. 329.

The next inquiry is, whether the assignment, being executed in Missouri, of property situated in Ohio, was effectual to pass title as against subsequent attaching creditors in the latter State?

The proposition involved in this inquiry is somewhat analogous

Johnson v. Sharp.

to the conflicting claims arising under our attachment laws and a foreign bankrupt assignment; but, in our judgment, the solution of the question before us cannot be determined by the weight of the authorities upon the latter; and chiefly for the reason that the principle of comity should be recognized in a greater degree between the members of our Union, which are subject, under the general government, to a common system of bankrupt laws, than between our own and foreign governments with whom we sustain no such intimate governmental relations.

It must be conceded, that the decided weight of authority, in this country, is, that our courts will not subject our citizens to the inconvenience of seeking dividends under a foreign assignment in bankruptcy, when they have the means of satisfying their claims at home; and, possibly, the same may be said when the preference is sought over any involuntary assignment of the debtor's property, mode in invitum or by operation of law.

But it appears to us that a different rule should be maintained where a voluntary assignment is made in one State of the Union of property situate in another, and in conformity with the policy and requirements of the laws of the latter State. The common right of every one to dispose of his property wherever he may be, and a reasonable acknowledgment of the principle of comity, which should exist between sister States of this Union, would seem to require a different rule, and such doctrine has been recognized iu several of the States. Hanford v. Paine, 32 Vt. 442; Farrington v. Allen, 6 R. I. 449; Law v. Mills, 18 Penn. St. 185; Varnam v. Camp, 1 Green, 326; Moore v. Bonnell, 2 Vroom, 90; Caskie v. Webster, 2 Wall. Jr. 131; Bholen v. Cleveland, 5 Mason, 174; Moore v. Willett, 35 Barb. 663.

In our own State, it was held in Sortwell v. Jewett, 9 Ohio, 180, that an assignment made by an insolvent debtor, residing abroad, of lands situate in Ohio, will not be superseded by a subsequent foreign attachment and in Fuller v. Steiglitz, 27 Ohio St. 355; 22 Am. Rep. 312, it was held that an assignment of a chose in action by a foreign insolvent debtor for the benefit of his creditors passed the title and right of action to the assignee, as against a subsequently matured cross-demand held by the debtor in this State.

It is true, that great contrariety of opinion on this general subject has been expressed by the courts of this country, but on the whole, we think, that Mr. Wharton, in his work on the Conflict of

Johnson v. Sharp.

Laws, 353, has fairly stated the view most fully sustained, in these words: "We may, therefore, hold it to be the law in the United States, that an assignment made in one State of personal property in another (such property not being in transit or following the owner's person), passes no title to such property as against attaching creditors of the assignor, such creditors being domiciled in the latter State, when such assignment is invalid by its laws." And we think the implication arising from the language quoted is also sustained by weight of current authorities, namely: that if such assignment be valid, or, in other words, be in harmony with the laws of the State where the property is situated, the title passes, and the rights of the assignee should be protected against subsequent attaching creditors.

The

There is another ground, however, upon which the assignment should be preferred to the attachment in this case. The assignee was a creditor of the assignor and a resident of this State. conditions of the trust, as well as the form of the assignment, was in strict conformity to the policy and laws of this State; and by the express terms of the assignment the trust was to be administered "for the benefit of all his (the assignor's) creditors under the insolvent laws of the State of Ohio." Now, surely, under these conditions, the assigned property also being in this State, there can be no good reason found, why the courts of this State should refuse to recognize and administer this trust for the beneficiaries in as full and ample a manner as if the assignment had been executed in this State or by a resident of this State. Surely the rights and conveniences of our own citizens under such an assignment should not be deferred to those of a subsequent attach ing creditor residing in another State.

Judgment affirmed.