Il- ) i J .■ - .-.' ' -^ . ^ • •.■ '^ t UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY ^M^- 7y 7 f) PKINCIPLES LAW OF PERSONAL PROPERTY, INTENDED FOU THE USE OF STUDENTS IN CONVEYANCING; By JOSHUA WILLIAMS, Esq., OF LINCOLN'S INN, ONE OF HER MAJESTY'S COUNSEL. AMERICAN EDITORS, BENJAMIN GERHARD AND SAMUEL WETHERILL. FROM TUE SEVENTH LONDON EDITION. WITH ADDITIONAL NOTES AND REFERENCES BY SAMUEL WETHERILL. PHILADELPHIA: T. & J. W. JOHNSON & CO, LAW BOOKSELLERS AND PUBLISHERS, No. 535 CHESTNUT STREET. 1872. T Entered, according to Act of Congress, in the year 1S72, by T. & J. W. JOHNSON & CO., In the Office of the Librarian of Congress at Washington, D. C. Entered, according to Act of Congress, in the year ISGG, by T. & J. W. JOHNSON & CO., In the Clerk's Office of the District Court for the Eastern District of Pennsylvania. HENRY B. ASHMEAD, PRINTER, 1102 & 1104 Sansom Street. ^ PREFACE TO THE AMERICAN EDITION. The object of the present edition of this work has been to accommodate Mr. WiUiams's Treatise to the United States, by incorporating in the notes the American law ; so as to make the book useful to the American profession, both as an elementary composition for the student, and as a book of reference for the practitioner. The editor, in endeavoring to accomplish this purpose, has not indulged in original researches, but has, for the most part, confined himself to the path prescribed by the author. In most instances where a citation has been made, the original book has been consulted, and when practicable, the opinions of the Judges have been quoted, rather than the syllabus of the reporter of their decisions, or any abstract of such judgments. In citing the statutes of the United States, or of the States, the Digests have been referred to, rather than the Statutes at Large — the former having been found more accessible than the latter ; in some instances, where neither the more recent statutes of the States, nor Digests of them, were within reach, the decisions of the courts pertinent to the subject have been referred to. The notes on the subject of bankruptcy were prepared by IV PREFACE. Joseph Mason, Esq., Register in Bankruptcy in the Eastern District of Pennsylvania, and the editor hereby desires to express his most grateful acknowledgment for the A^ery valuable assistance thus rendered. The references in the notes on this subject are principally to the Bankruptcy Register. If it be true, as the author modestly tells his readers in the preface to the first edition of his work, that no text-book of the law can be completely accurate, how very much less must be the approach to perfection by annotators. With this brief introduction, the work is submitted to the profession ; should it prove useful, the object had in view will have been attained. 131 South Fiftu Street, Philadelphia, May 6, lS-2. PREFACE TO THE FIRST EDITION. The following pages are intended as supplementary to the author's "Principles of the Law of Real Property." At the time when that work was written, the plan of the present treatise was not matured, and a chapter " On Personal Property and its Alienation" was inserted in that work. The contents of that chapter will be found interspersed in parts of the present volume ; ' and should a second edition of the " Principles of the Law of Ileal Property" be called for, it is the author's intention to omit that chapter of his former work, and to supply its place by some further remarks on such elementary parts of the law of real property as may appear to have been but slightly touched upon before. The very favorable reception which the author's work on the law of real property has met with from the profession has encouraged him to undertake, in the present work, a task, he believes, hitherto unattempted : for it js sin- gular that, notwithstanding the rapid growth and nov»^ enormous value of personal property in this country, no treatise has yet appeared having for its object the introduction of the student in conveyancing to that large and increasing portion of his study VI PREFACE. and practice ^vl^ich comprises the law relating to such property. As to real property, he may take his choice amongst three or four publications, all having the same object of facilitating his studies ; but the law of personal property, though sufficiently treated of in all that relates to it as purely mercantile, has not yet had any elementary treatise on its principles, so far as they affect the practice of conveyancing. The present work is an attempt to supply this deficiency, and, in conjunction with the author's " Principles of the Law of Real Property," to afford the student a brief and simple introduction to the whole system of modern conveyancing. The novelty of the attempt has, however, increased the difficulty of the task. The author has endeavored proportionably to increase his diligence and care. He can, however, scarcely hope to have escaped all errors. And here he would caution the student against too implicit a reliance on the dicta of text-books. Elementary books cannot, from their nature, be completely accurate. As helpers to more per- fect knowledge, they may be most valuable. But it would be as great a mistake for a student to remain satisfied with his knowledge of a text-book, as for an author to compress into an elementary work all that could possibly be said on the subject. 7, New Square, Lincoln's Inn, 23d May, 1848. ADVERTISEMENT TO THE SEVENTH EDITION. In this Edition the alterations which have taken place in the Law since the publication of the last Edition have been incor- porated in the Text. The chapters on Bankruptcy and part of the chapter on Debts have been re-written. 3, Stone Buildings, Lincoln's Inn, Dec. 1869. TABLE OF CONTENTS. INTRODUCTORY CHAPTER, FAQR OF THE SUBJECTS AND NATURE OF PERSONAL PROPERTY . . 1 PART I. OF CHOSES IN POSSESSION . . . . . ' . 9 CHAP. I. OF CHATTELS WHICH DESCEND TO THE HEIR .... 9 CHAP. II. OF TROVER, BAILMENT AND LIEN 23 CHAP. III. OF THE ALIENATION OF CHOSES IN POSSESSION . . . .34 CHAP. IV. OF SHIPS 55 PAUT II. OF CHOSES IN ACTION 63" CHAP. I. OF ACTIONS EX DELICTO 63 CHAP. II. OF CONTRACTS . .70 X TABLE OF CONTENTS. CHAP. III. PAOB OF DEBTS .90 CHAP. IV. OF BANKRUPTCY OF TRADERS 132 CHAP. V. OF BANKRUPTCY OF NON-TRADERS 166 CHAP. VI. OF INSURANCE 175 CHAP. VII. OF ARBITRATION . . '. 183 PART III. OF INCORPOREAL PERSONAL PROPERTY . . .198 CHAP. I. OF PERSONAL ANNUITIES, STOCKS AND SHARES .... 198 CHAP. II. OF PATENTS AND COPYRIGHTS 235 PART IV. OF PERSONAL ESTATE GENERALLY . . . .259 CHAP. I. OF SETTLEMENTS OF PERSONAL PROPERTY 259 CHAP. II. OF JOINT OWNERSHIP AND JOINT LIABILITY .... 802 CHAP. III. OF A WILL . 321 TABLE OF CONTENTS. ' XI CHAP. IV. PACE OF INTESTACY 354 CHAP. V. OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE . . . 369 PART y. OF TITLE .395 Appendix (A.) . . . 413 Appendix (B.) 418 Index 431 INDEX OF CASES CITED IN ENGLISH EDITION. Abbot V. Blofield Abbott V. Rogers . Abergavenny, Earl of, Morgan v Abingdon, Lord, Clarke v Acaster, Rogers v. Accidental Death Insurance Compa- ny, Shilling V. Ackerman, Ex parte Acton V. Acton M'Neillie v. V. White V. Woodgate Adam v. Statham Wilkinson v. Adams, Malkiu v. V. Paynter Adcock, Ross v. Walter v. Wood V. Addenbrooke, Foley v Addison v. Round Adney, Wennall v. Aflalo, Grove v. Agar V. Lisle Aitchesou v. Cargey Cargey v. Aldous IK Cornwell . Alexander v. Alexander Dover v. . Alford, Sunbolf v. Alger V. Parrott Allatt V. Carr Allen, Brown v. Testing v. . Hobby V. V. Smith AUeyn v. Alleyn AUwood I'. Heywood Alsager v. Spalding Amandale, Brown v. Ambergate, &c., Ry. Co. v. Norcliffe Amcotts, Phelp v. American Leather-Cloth Company Limited, Leather-Cloth Company Limited v. . . . . 256 Ames D Parkinson PAGE 376 215 20 108 381 176 313 345 315 386 299 192 349, 350 133 291 69 127 192 304 25 76 43 24 192 191 88 273 350 29 267 35 344 268 382 29 346 12 122 238 212 296 257 201 Amicable Assurance Society v land . , . . . Amies v Skillern Amis, Witt v. Amyot, Brown v. Anchor Reversionary Company ited, Marriott v. Anderson v. Coxeter Currie v. . V. Martindale Petty y. . Price V. Andrew v. Andrew . Andrews v. Diggs Kempe v. . V. Partington Windle v. . Angerstein, Tidswell v. Angler v. Stannard . Annandale, Brown v. Annesley, Macleod v. Anon., 1 Atk. 262 ' . 1 Salk. 71 . 2 Ventr. 218 Anstruther, Ouseley v. Antrobus, Cunningham v. V. Smith . Appleby, Pickering v. . Arbouin, Pritchard v. Archer, Eyre v. V. Gardiner V. Kelly . V. Marsh Armistead, De Begnis v. Armory v. Delamirie Armstrong, Tullett v. . Arnold, Rawsthorn v. Ashburner, Fletcher v. V. M'Guire Warden v. . Ashby V. Ashby Lloyd V. Vere v. . Ashford, Davies v. Ashley v. Ashley Ashton V. Lord Langdale Askew, Carey v. Bol- Lim- 176 303 327 264 60 193 41 304 383 263 262 98 305 280 86 177 293 238 283 155 190 51 201 378 36 204 349 126 377 296 91 89 25, 26 385, 386 194 287 344 264 379 318 318 287 176 348 323 INDEX OF CASES CITED IN ENGLISH EDITION. Askew, Newton r. Aspinall v. Pickfoid Aston, Harvej- v. . Atchcson, Scarpellini v. . Atherton, Lackington v. Atkinson r. Bell Clapman v. . V. Denby . Atkyns v. Kinnier Attenborough, Morley v. . Att.-Gen. r. Boiiwens . V. Davies . V. Davison Drake i'. . Glubb V. V. Graves V. Hertford, Marquis V. Hope V. Malkin March v. . V. Meyrick V. Tyndall Attwater v. Attwater Attwood V. Munnings Aubert v. Maze Aubin V. Daly . Auldjo, Wallace v. Avery v. Langford Scott V. Axtell, Young v. Ayton V. Aj'ton B. Badcock, Saddlers' Company Badger, In re V. Shaw Bagley v. Mollard Bagueley v. Hawley Bagwell V. Dry Law V. Bailey v. Edwards V. Macaulay Baily, Snellgrove v. Bain v. Lescher Bainbridge, Hedley v Bainbrige v. Blair Baine, Willing v. . Bainton v. Ward Baker v. Bayldon . V. Bradley Heslop V. V. Henderson Leonard v. . Lyon V. . Mosley v. Balch V. Symes Baldey v. Parker . Baldry, Norman v. Baldwin, Ex parte Foss, Re of PAGE 298 30 370 . 376 44 40 12G, 128 . 122 71, 72, 91 . 399 336 . 349 191 . 337 348 . 348 342 336 267 348 347 349 345 398 89 199 378 91 184 315 351 . 179 192 50 350 . 399 351, 352 . 299 116 320 327 351 319 292 303 269 387 368 54 31 169 '292 232 31 41 341 255 PAGE Baldwin, Lloyd v. . 288 Balfour r. Ernest . 320 V. Welland . . 288 Balguv, Broadhurst v. . Ball, Caldwell v. 293 . 62 Gambart v. . 251 Bamfield v. Tupper . . 82 Bamford, Brown v. 386 Bank of England, Churchill v. . 207 Franklin v. 208 V. Lunn 206, 208 V. Moffat . 208 V. Parsons . 208 Richardson v . . 213 Banks, Bell v. . . 116 V. Gibson . 258 Banner v. Lowe . 265 Bannister, Eicholtz v. . 399 Haley v. . Moodie v. . 279 402 Banwen Iron Co. v. Barnett . 216 Barber ii. Barber . 351 Buckley v. V. Fox . 305 107 Knight V. 204, 230 Mills V. . . . 84 Barchard, Savill v. . . 30 Barclay, Ex parte 14 Hidsou V. . 128 V. Wainewright 263 Bardell, Rex v. . 186 Barden, In the Goods of 328 Barham, Moor v. . 362 Power V. 399 Baring v. Day . Barker v. Lea . 30 378 Price V. . 311 Re ... . 180 Stamper v. . V. Stead . 388 320 Barlow, Errat v. . 279 Barnard, Earl of Glengall v. 347 Lyde v. Barnes, Skey v. . . . Barnett, Brandao v. . 84, 409 277 30 Banwen Iron Co. v. . • 216 Van V. . 287 Barrack v. M'Culloch . 298 Barrett v. I'arry Barrie, Glover v. . . 189 191 Barrow, Lysons v. . 334 Barrows, Hall v. . 256, 257 Barr's Trusts, In re . . 408 Barry, Haly v. . . . V. Nesham 207 . 316 Bartholomew, Drybutter v. . Bartlett v. Bartlett . 210 . 408 Ex parte . V. Gillard . 389 . 346 Barton v. Barton . 369 Beckton v. . 347 INDEX OF CASES CITED IN ENGLISH EDITION PAGE Barton v. Briscoe . . . . 386 V. Crofts . 43 Barton's Will, In re . . • 374 Bartrop, Eyre v. . . . . 116 Bassett, Way v. . . . • 312 Bastard, Nicliolls v. . . 27 Bate, Hunt v. . . . . 73 Bateman, Brown v. . . . 35 V. Davis . . . . 285 V. Ross . 388 Bates V. Cooke . . . . 183 Foster v. ... . 357 Turby v 40 Bates & Redgate, Re . 238 Bath, Ex parte . . . . 133 Bayldon, Baker v. . . . . 378 Baylis, Chowne v. . . . 47, 397 Beale v. Beale .... . 274 Bear v. Bromley . . . . 214 Beard, Boulton v. . . . . 293 V. Egerton . 239, 241 Beaufort, Duke of, Wellesley v. . 388 Beaumont v. Oliveira 349 V. Reeve . . 76 Bevan v. Earl of Oxford 206 Beek, Newton v. . . . . 11 Ward V. 57 Beckett, Donaldson v. . 246 Beckford, Greening v. . 409 Beckham v. Drake 312, 316 Beckton v. Barton 347 Beddoes, Brampton v. 91 Beer v. Beer .... 264 Belding v. Read . 34 Bell, Atkinson v. . 40 V. Banks .... . 116 V. Bidgood . 98 Bowlby V. ... . 230 Hamilton v. . 54 Hobson V. ... . 410 Meux V. < . . 408 Sanderson v. . . 29 Bellaris, Brown v. 298 Bellasis r. Ermine . 370 Belton V. Hodges . 134 Benedict, Montague v. . 383 Seaton v. 382 Benham v. Broadhurst . 127 Bennett v. Burton . 170 Ex parte . 344 Page V. . . . 180 Benning, Sweet v. . . . . 247 Bensley v. Bignold 89 Benson v. Maude , 341 Bentall v. Burn 42 Bentley v. Mackay . . 298 Benyon v. Maddison 266 Berchtoldt, Countess of, Earl of Lo ns- dale V. .... 266 Bern, Hardy v . 109 Bernard, Coggs v. . 27 PAGE Berndtson v. Strang . 45 Bernes, Stanley i'. . 325 Berney, West v. . 274 Berriman v. Peacock 18 Berrington v. Evans . 102, 297 Best, PauU v. ... 155 Betts V. Burch . . 71 V. Kimpton . 376 V. Menzies . 237 Bevan, Ex parte . 313 V. Walters 29 Bewit, Whitfield v. 18 Bidden v. Leeder . 90 Biddlecomb v. Bond 166 Bidgood, Bell v. 98 Bignold, Bensley v. 89 Bill V. Cureton . 298 Billingsley, Lady Shore v. 303 Bingham, Pardo v. . . 402 Binks, Harland v. 299 Binnington v. Wallis 74, 90 Binns, Swallow v. 277 Bitch, Watson v. . 401 Bird V. Boulter 43 V. Brown . 44 V. Gammon . 82 Morley v. . . 303, 351 V. Ralph 68 Bishop V. Elliott 15 Bishopp V. Colebrook . 381 Bissett V. Burgess 69 Bittleston, Quartermaine v. , 54 Black, Willis v. . 296 Blackburn, Hobson v. . 349 Blackburne, Strode v. 12 Blacklow V. Laws . 384 Blades v. Higgs 22 Blair, Bainbrigge v. 292 V. Bromley . 318 V. Nugent 401 Blake, Dundas v. . 406 Ex parte 296 V. Izard 35 V. White . 116 Blakelock, Stevenson v. . . 30 Bland, Ex parte 134 Blantern, Collins v. . . 88 Bligh V. Brent 305 Blight, Loveacres d. Mudge v. . 307 Blisset V. Cranwell 307 Blofield, Abbot v. . 376 Bloomer v. Darkes 128 Blount V. Burrow . 328 Bloxham v. Sanders . 43, 46 V. Elsee . 241 Blunden v. Desart 31 Blurton, Kirk v. . 318 Blythe v. Granville 296 Boaler v. Mayor . 116 Bodley v. Reynolds 46 Bogue V. Houlston . . 251 XV XVI INDEX OF CASES CITED IN ENGLISH EDITION. PAHE PAGE 5?oldero, (iodsall v. . . . 177 Bramah v. Roberts 319 Liishiriijton v. . 18 Brampton v. Beddoes 91 I?ollaiul, Amicable Assurance Soc. K 17G Bramwell v. Eglinton . 172 V. Disney 176 Brandao v. Barnett .... 30 Bollett, Rurnby v. . . . . ;{f>9 Brandcr ?'. Brander 2C3 Bond, Hidillecorab v. . IGG Brandon v. Robinson 385 Smith 1'. ... . 108 Brathwait, Larapleigh v. 73 Booker, Van Casteel v. . 45 Brearey, lloundell v. ... 297 Booscy V. Jofferys . 24G Brcmbridge, Evans v. . 311 Jctferys i- 248 Brent, Bligh v. . . . . 305 Booth V. Booth . 2113 Brereton, Drosier v. . . . 282 Kirkman v. ... 315 Brett V. Greenwcll .... 377 Martindale v. . . 48 Briant, Philpot v. . . ' . 117 Whale i> 339 Brice i'. Stokes .... 293 Boothby, Morley v. . . 79 Bridge v. Bridge .... 298 Borman. Scarborough v. . 3 85, 38G V. Cage .... 90 Boss V. Godsall . 286 V. Yates .... 303 Botfield, Bradburne v. . 304 Bridges, Etty v. .... 409 Boucher, Prescott v. . 377 V. Hawkesworth 26 Boughton, Knight v. . 2G4 Brierlcj' v. Kendall .... 49 Lord St. John v. . 401 Briggs V. Chamberlain . 382 Boulter, Bird v 43 Bright, Jones i'. .... 400 Boulton V. Beard . €93 Bright's Trusts .... 407 V. Bull .... 239 Briscoe, Barton v. . 386 Bourne, Dowbiggin v. . 114 Hanchett v. . . . 381 V. Fosbrooke 26, 3G Brise, Matthews v. . 282 Hawkeu v. . . 319 Bristead v. Wilkins 207 Boutts V. Ellis .... 327 Bristol and Exeter Railway Com- Bouwens, Attorney-General v. . . 336 pany, Coombs V. . . . 42 Bowden, Jones v. ... 400 Bristowe v. Ward .... 273 Bower, Nicholson v. . 41 Britain, Braithwaite v. . 312 V. Marris .... 121 British Empire Shipping Company Mexborough v. . 183 V. Somes 29 Boweren, Grymes v. . 14 Broadbent, Mason v. ... 403 Bowes, Countess of Strathmore v. . 383 Broadhurst v. Balguy . 293 Bowker, Wilmshurst v. 45 Benham t'. 127 Bowlby V. Bell .... . 230 Brockelbank, Stocker v. 316 Bowles's Case .... 19 Bromage v. Lloyd .... 85 Bowley, Reynolds v. . 314 Bromhead, Wilkins v. . 40 Bowman, Mullen v. . . . 352 Bromley, Bear v 214 Bowser v. Cox .... . 116 Blair v. . '. 318 Bowsher, Davis v. ... 30 Bromley v. Brunton .... 327 Bowyer v. Woodman . 403 Brooke v. Enderby 315 Boyd V. Boyd .... 361 V. Haynes .... 330 V. Shorrock 50 V. Mitchell . . 25, 188 189 Boydell v. M'Michael . 16 Brooks V. Keith .... 296 Boyle V. Bishop of Peterborough . 272 Broom w. Broom .... 305 Ex parte .... 155 Broughton v. Broughton . : 292 Bracebridge v. Cook . 374 Brown v. Allen .... 344 Bradburne v. Botfield . 304 V. Amyot .... 264 Bradley, Baker v. . . , . 386 V. Amandale 238 V. Copley 25, 49 V. Bamford .... 386 Hampshire v. . 293 V. Bateman 35 Perkins v. , . . 47 V. Bellaris .... 298 Wren v. . . . . 387 Bird V 44 Bradsey v. Clyston 189 Collins' Co. V. . . 256 Bradshaw, Custance v. . 305 V. Edgington 400 Yeoman v. . 110 Jennings v. . 76 Bradyl, Burridge v. . 346 V. Lee .... 115 Braithwaite v. Britain . 312 Metropolitan Counties, &c., So - V. Skinner 6 ciety I' 14 INDEX OF CASES CITED IN ENGLISH EDITION. XVU Brown v. Pocock Richardson v. V. Yawser Wakefield v. V. Weatherby Browne ". Cavendish V. Hammond . Pfleger v. . V. Savage Brownlow, Nixon v. Brownrigg, Bryson v. Brownsmith, Wilson v. Brumridgc v. Brumridg' Bruning, Smith v. . Brunton, Bromley v. Bryan v. Clay Hensworth v. Bryans v. Nix Bryant, Hollis v. Laythoarp v. Bryce, Cannan v. Bryson v. Brownrigg Buchanan, Fleming v. Buck, Sutton v. Buckhurst's Case Buckingham, Earl of, v. Buckland v. Johnson Buckley v. Barber . V. Gross Earl of Stafford Ex parte Buckley's Trust . Bull, Boulton V. V. Faulkner . Bunn V. Markham Burch, Betts v. Burdiss, Carr v. Burford, Dix v. . Burge, Heyhoe v. Burgess, Bissett v. Ransome v. Tappenden Williams v. Burgh art, Lane v. Burk V. Jones . Burley, Gilly v. Burn, Bentall v. i\ Biirn Burnby v. Bollett Burnell, Gale v. Burnet v. Mann Burridge v. Bradyl Burrough v. Moss Burrow, Blount v. Burrowes, Stuart v. . Burton, Bennett v. Goode V. V. Hughes Bury, Pctrie v. , « . Bush, Hart v. V. Shipmaw ry PAGE 385 399 197 304 312 299 352 120, 122 408 212 327 345 294 370 327 69 188 37 167 81 89, 92 327 269 27 10 372 46 305 26 199 318 294 239 31 327 71 38 293 316 69 280 123 101 79 405 263 42 319 399 34, 49 362 346 375 328 332 170 11 28 302 42 122 PAGE Bushell V. Wheeler ... 41 Busk V. Davis 40 Pickering v. . . . 398 Butcher v. Butcher . . . .296 I'. Jackson . . . 275 Butler, Falkner v 273 Butterfield, In re . . . . 315 Byers, Wilkinson v. . . . . 120 Byng V. Lord Strafford . . . 266 Byrne, Ward v. . . . .91 Byron v. Byron .... 78 Bywater, Wrightston v. . . . 191 C. Cadogan v. Earl of Essex . . 286 Cage, Bridge v. . . . . 90 Caldwell v. Ball .... 62 Calvert v. London Dock Company 116 Camm, Goulder v. . . . 386 Campbell v. Campbell . . .292 V. Home .... 275 Macarthur v. . , . 194 Campion v. Cotton ... 74 Candish, Wilkinson v. . . . 133 Cannan v. Bryce .... 89, 92 Cannings v. Flower .... 279 Careless, Rachfield v. . . . 352 Carew, Clive v. . . . . 386 Carew v. Askew . ... . 323 Carey, Collins v 292 Cargie v. Aitcheson . . . 191 Aitcheson v. . . . . 192 Carlisle, Earl of, Lechmere v. . 287 Carlon, Clack v 292 Carpenter v. Smith . . . 237 Tebbsi; 201 Carr, Allatt v. . . . . 35 V. Burdiss .... 38 Carrick, Freshney v. . . . 49 Carrington, Ex parte . . . 133 Carruthers, Parkin v. . . . 314 Carstairs, Ex parte . . . .116 Maltby y. . . . 116 Carter v. Crick . . . .399 V. Taggart . . 264, 379 V. Whalley . . . .315 Cartright v. Cartright ... 387 V. Vawdry . . . 350 Carver, Waugh v. . . . 316, 319 Case, Hartley v. .... 87 South Carolina Bank i'. . 319 Cassell, In re 196 V. Stiff .... 254 Castle V. Sworder .... 42 Castrique, Hderton v. . . . 127 Catchpole, Cook v. . . . . 184 Caulfield v. Maguire . . . 114 Cautley, Foster v. . . . . 272 Cave V. Cave . . .16 XVI 11 INDEX OF CASES CITED IN ENGLISH EDITION. Cave, Farquharson v. V. Roberts . Cavendish, Brown v. Chadwick v. Doleman . Chaloncr, Ilorsley i^. Chamberlain, Briggs v. V. Williamson Chambers, Willct v. Chamjiernown v. Scott Champneys. Sturgis v. . Chandler, Kensington v. . Channon v. Patch Chanter v. Hopkins . Chaplin, Ex parte V. Rogers . Chapman, Howse v. May V. V. Slilvain Charlesworth, Malcolm v. Chase, Goodman v. Cherry v. Hemming Cheslyn r. Dalby . Chesterfield and Midland S Colliery Co., Limited, v. I Cheync, Eccles v. Chichester, Coventry v. Smith ('. ChidcU V. Galsworthy . Child V. Morley Chiswell, Gray v. . Chitty, Hulme v. Chollett V. Hoffman Cholmeley v. Paxton Chowne v. Baylis . Churchill v. Bank of England V. Small Churclnvard v. Studdy Churchton v. Douglas . City of London Steam Pack pany, Fenton v. Clack V. Carlon Clancy v. Piggott . Clapman v. Atkinson Clare, Ridgway v. Claridge, HoUis v. . Clarke v. Abington, Lord Groves v. Hopkins v. V. Parker Rawlinson v. In re . V. Seton V. Shee . Smith V. . V. Williams Clarkson, Wild v. Clay, Bryan v. . Clayton v. Kynaston Cleave v. Jones Clegg V. Clegg V. Rowland Ikstone [awkins 47, 257, ;t Com- 126, PAGE 327 3G4 209 273 342 382 67 318 31 377 298 18 399 282 3G 347 87 214 379 79 80 82 127 352 347 31 35 203 312 388 245 19 397 207 12 21 258 308, 62 292 79 128 313 31 108 378 172 370 316 318 108 395 85 126 108 69 311 82 296 342 Clift V. Schwabe Climic t'. Wood Clive, Carew v. Close V. Close V. Waterhouse Clough V. French . V. Lambert . Clulow, In re Clyston, Bradson v. . Cobb, Rishton v. . Cock, Lashbrook v. Cockburn, Daubney v. Ex parte . V. Peel . Cocksedge v. Cocksedg Coggs V. Bernard . Coker, Hitchcock v. . Colbeck, In re Cole, Kearsley v. Kerrison v. . Colebrook, Bishopp v. Colegrave v. Dias Santos Coles V. Turner Collectors of Customs, Rex v CoUett, Meryon v. V. Morrison Collins V. Blantern . V. Carey V. Collins Drew V. Hobby V. V. Lamport Lowndes v. . V. Martin . Company v. Brown CoUinson, Holderness v. Colvin, Wilton v. Combe, Ward v. Compton, Peter v. Right d. Compton Condiiitt V. Soane Congrevc, Douglas v. . V. Evetts Conquest, Marsh i\ Cook, Bracebridge v. V. Catchpole V. Cook . V. Wright Cooke, Bates v. V. Fuller . V. Whorwood Cookson V. Cookson V. Reay Coombs V. Bristol and Exeter Company V. Coombs Coope V. Cresswell V. Twj'man Cooper, Davidson f. Edwards v. ILaymes v. Railway INDEX OF CASES CITED IN ENGLISH EDITION. XIX Cooper V. Johnson Loveridge v. V. Slieppard V. Willomatt V. Woolfit Cope V. Rowlands Copeland, Morton v. Copis V. Middleton . Copley, Bradley v. Coppin, Dillon v. . . ' Corbet, Ewer v. . . . Cordell, Elliott v. . Corles, Dipple v. . Cornforth v. Smithard Cornthwaite, Frith v. Cornwallis, Lassells v. Cornwell, Aldous v. Corporation of Liverpool, Scott v Corrance v. Corrance . Cotton, Campion v. . Coventry v. Chichester V. Coventry Lord, Lygon v. Cowell V. Simpson Cowley, Earl, v. Wellesley . Cox, Bowser v. ... Coxeter, Anderson v. Craddock, Lake v. . Cradock v. Piper . Craig, Downes v. . . . Crallan v. Oulton . Cramer v. Moore Cranefeld, Freake v. Cranley v. Hillary Cranmer's Case Cranwell, Blisset v. . Craythorne v. Swinburne Creed v. Perry .... Cresswell, Coope v. Green v. . Creswick v. AVoodhead . Crick, Carter v. ... Cripps V. Hartnell Cristall, Ferguson v. Crofton V. Pool Crofts, Barton v. . . . Elves V. . . . Crompe, Martin v . . . Cross, Re ... . Crosskey, European, &c. Shipping Crossley v. Dobson Crow V. Robinson Croydon Canal Co., Hodges v. Cruger v. Dunlop Cruise v. Hunter . Cruttwell V. Lye Cubitt, Stanfeld v. Cubley, Pigot v. . . . Cullingworth v. Lloyd . CuUwick V. Swindell Cumber v. Wane . PAGE 188 407,409 46 28 17 89 248 . 114 25, 49 36, 75 339 . 379 73 . 77 299 . 269 88 . 184 391 74 347 291, 296 281 30,32 18 116 193 305 292 68 405 . 296 405, 406 . 122 346 307 116 , 381 402 79 330 , 399 79 25, 28 158 43 91 . 305 205 Co.«. 196 309 21)7 403 , 128 388 , 258 50 27, 28 122 14 120 Cunningham v. Antrobus Cunynghame i'. Thurlow Cureton, Bill v. Curling v. Flight . Currey, Wilmer v. Currie v. Anderson Cusack V. Robinson . Custance v. Bradshaw Cutbush V. Cutbush Cutfield, Wardroper v. Cuthbert v. Dobbin . Cutler, In re . Cutten V. Sanger D. PA.as 378 275 298 410 309 41 41 305 315 264 100 377 298 Dabbs, Ford v. .... 167 Dalby, Cheslyn v 82 V. India and London Life Assur- ance Company . . 177 Dale, Drayton v 158 Dalton, In re .... 371 Daly, Aubiuw 199 Dalzell, Lynch v. . . . . 179 Danby, Trimmer V 264 Daniel, Cirwan «. .... 299 Daniell v. Dudley . . . .267 Darby v. Darby .... 305 Darell, Hales v. . • . . 346 Sturgis V 404 Darkes, Bloomer v 128 Darlington District Joint Stock Bank- ing Company, Ex parte . . .319 Dartmouth, Lord, Howe v. . . 201 Darton, Moore v 327 Daubeny v. Cockburn . . . 275 Davenport, Elliott v. . . . 266, 351 Ex parte . . . 37 Davids, Jones ...... 144 Davidson v. Cooper ... 88 Ex parte .... 248 Davis V. Ashford .... 287 Attorney-General v. . . 349 V. Humphreys . . . 116 V. Penton . . . .71 V. Stainbank . . . 116 V. Vernon . . .10, 12, 31 Davis, Bateman v. ... 285 V. Bowsher .... 30 Busk t; ^0 V. Earl of Dysart ... 12 Godfrey v 350 V. Mason .... 91 Shepley v 40 Davison, Attorney-General v. . . 191 Daw V. Eley 240 Dawes v. Peck . . . . 42, 45 Dawson v. Kearton ... 76 Pearson u. . . . 37, 42 Day, Baring v. . . . . 30 Hulkes V. 207 XX INDEX OF CASES CITED IN ENGLISH EDITION. Day, "Wallis v. . Deakle, Pain v. Dean c. Hogg . Dearie v. Hall De Begnis v. Armistead De Oastro, Willis v. Dedire, Frecmoult v. Decks V. Strutt Deering v, Eail of W'inchelse De la Crouee, Hambridge v. De la Garde v. Lempriere . Delamiric, Armory v. . De Mattos, De Polhonier v. De Mautort v. Saunders Denby, Atkinson v. . Denny, Flory v. De Pass, Lyons v. De Pothonier v. De Mattos De Proven, Duplex v. Desanges, Thoiuas v. Desart, Blunden v. . Desbrisay, Fearon v. Detastet, Ex parte . Devaux v. Steinkeller . Devaynes v. Noble . ■ . Devereux v. Kilkenny, &c Company . Dewdney, Ex parte . Dewhirst v. Jones V. Kershaw D'Eyncourt v. Gregory . Dias Santos, Colegrave v. Dickie, Gibson v. . Dickinson v. Kitchen Orr V. . V. Teesdale V. Valpy Diggs, Andrews v. . Dillon V. Coppin . Dimsdale v. Robertson Dipple V. Corles Disney, Holland v. . Dix V. Burford Dixie, Wood v. . Dixon, Fisher v. . V. Yates Dobbin, Cuthbert v. Dobree, Ruddell v. . Dobson, Cossley v. Dodd, Lewen v. Doe d. Esdaile v. Mitchell d. Morrison i;. Glover d. Stace v. Wheeler Doleman, Chadwick v. Dolland, Kensington v. Dominy, Thompson v. Donaldson v. Beckett . V. Donaldson . Doncaster v. Doncaster Donellan v. Reid Doran v. Wiltshire PAGE 19 189 G2 407, 409 89 311 . 297 6 . 115 319 . 378 25, 26 . 117 312 , 122 39 . 39G 117 . 102 150 . 31 275 . 313 84 121,312 Railway 212 405 12G 127 15 14 74 60 61 406 319 36, 75 189 73 176 293 52 16 44,45 100 327 309 307 150 232 330 273 384 62 246 298 265 80 288 37 Dorrien, Lucas v. Dorrill, Routlcdge v. Douglass, Churton v. V. Congreve . V. Russell . Dover v. Alexander Dowbiggen v. Bourne Dowling, Wade v. Downes v. Craig V. Jennings Downman, Motley v. Downs, England v. Dowson, Pickering v. Drake v. Attorney-General Beckham v. Drayton v. Dale Drew V. Collins Driver v. Mawdeslcy V. Scott . Drosier v. Brereton Drummond, Evans v. M'Leod V. . V. Parish Drury, Earl of Buckingham V. Scott . Dry, Bagwell v. Drybutter v. Bartholomew Dubost, Ex parte . Morell V. Dudley, Daniel v. . V. Warde Dufaur, Ex parte . Duff w. East India Company Gordon v. Duffield V. Elwes Duffy's trust, In re Duke, Samuel v. Sheppard v. Duncan v. Topham . Dundas v. Blake . V, Dutens Dungannon, Lord, Ker v. Dunkley v. Dunkley Dunlop, Cruger v. V. Higgins . Dunnicliff v. Mallet Duplex V. De Proven Durant, James v. . V. Prestwood Durnford v. Lane . Dutens, Dundas v. Dutton V. Morrison Dyke v. Walford Dykes, Tolson v. . Dysart, Earl of, Davis v. . E. Eads V. Williams Eardley v. Owen PAOE . 37 274,276 257, 258 296 62 350 114 191 68 383 257 383 399 337 312, 316 158 128 299 293 282 315 339 323 372 296 351, 352 210 36 99 267 16 133 318 344 327 379 396 401 81 406 206 261 378 128 '81 307 102 296 362 371 206 123 355 172 12 191 296 INDEX OF CASES CITED IN ENGLISH EDITION. XXI Earle, Heinekey v. . . Mare v. . . . East India Company, Duff v. Murray v. Venables Easton v. London . Eastwood V. Kenyon . Eccles V. Cheyne . Ede, Mitchell v. Edelstonw. Vick . Edgeberry v. Stephens Edginton, Brown v. Edmonds, Goodtitle d. Richards v V. Low . Edmund v. Waugh . Edsun, Smarte v. . Edwards, Bailey v. . V. Cooper V. Freeman V. Hall . V. Harben . V. Janes V. Jones . . 36, 298 V. Countess of Warwick Egerton, Beard v. . . . 239 Eglinton, Bramwell v. . Eicholtz V. Bannister Eley, Daw v. . Elibank, Lady v. Montolieu Lord, Murray v. Elliot V. Merriman Elliott, Bishop v. . V. Cordell V. Davenport V. Royal Exchange Assurance Company Ellis, Boutts V. 37 201 Niramo Ellison V. Ellison . . . .36, 298 V. Elwin Lyddon v. . Elsee, Bloaxam v. Elton, Ex parte Elves V. Crofts . Elvy V. Norwood . Elwes, Dufiield v. Forrest v. . V. Maw . Elwin, Ellison v. . Euderby, Brooke v. . England v. Downes King V. Equitable Reversionary Interest So ciety V. Fuller .... Ermine, Bellasis v. . Ernest, Balfour v. . Errat v. Barlow Erskine's Trust Espinasse, Petre v. . Essex, Earl of, Cadogan v Ettricke v. Ettricke . PAGE 45 122 318 404 330 12 73, 76 352 37 257 239 400 266 346 403 310 116 298 358 348 48 83 328 265 241 172 399 240 377 378 339 15 379 266, 351 184 327 75 379 274 241 313 91 403 327 293 15 371, 379 315 383 33 285 370 320 279 377 298 286 307 Etty V. Bridges European Co. v. Royal Mail Co European, . . . 293 Phillips, Norman f. . 42 Patcli, Channon v. 18 V. Phillips . 305, 307 Patent Derrick Co., Thames Iron Swann v. . 84, 409 Works Co. v. 29 Phillipson v. Gatty . . 282 Paton V. Sheppard . . 264 Pkilpot I'. Briant . 117 Panll V. Best 155 Philpott, Ex parte . 123 PaMie V. Gunn 73, 204 V. St. George' B Hospital 349 Pawlett (Lord William), Ex parte 283 Phipps, Holford v. . 293 Paxton, Cliolmeley v. . 19 Pickering v. Appleby 204 V. Popham 88 V. Busk . 398 Payne v. Dcakle Paynter, Adams v. . 189 V. Dowson 399 291 V. Ilfracombe Railway Co. 207 V. Harrison . 118 Pocock V. . . ,101 Peacock. Berriman v. 18 Pickford, Aspinall v. . 30 Hunt V. . 406 Picton, Shaw v. 121 V. Rhodes . 85, 395 Ridding v. How . 257 Peake, Ex parte . 313 Pidgley v. Rawling . 18 Pearly v. Smith 264 Pierce v. Thornely . . . 379 Pearse v. Jackson . 233 Pierson v. Garnet . 274 Pearson v. Dawson . 37, 42 Piggott, Clancey v. . . . 79 Foster v. . 395 Wilson V. . 272, 273 Frceland v. 352 Pigot V. Cubley 27, 28 Peck, Dawes i'. 42, 45 Pigot's Case . 88 Pedley r. Goddard 193 Pilck, Shower v. . . 36 Peel, Cockburn v. . 284 Pilkington, Smith v. 232 V. Tatlock . 116 Pimbley, Fisher v. . . 192 Peer v. Humphrey . 396 Pinchon's Case . 105 Peering, Ford'y. 12 Pinke, Hinton v. . 344 Pelly V. Wathen . 31 Pinkney v. Hall 318 Pemberton, Ex parte 31 Piper, Cradock v. . 292 V. Yaugh an . . .91 Pitt, Higgins i'. 122 Worthan It;. . . 377 Plaice, Russell v. . 339 Pendlebury v. Walkc r . . 116,122 Plait V. Routh 337 Penriell ?'. Reynolds 134 Plummer, In re . 313 Pennistone, Waterfal Iv. . . .50 Plymouth (Eafl of), Ri dout V. 374 Penny v. Innes 86 Pocock, Brown v. . 385 Penoyre, Ward v. . 341 V. Pickering ■ 101 Penton, Davies v. . 71 Roberts v. . . 345 Perigal, Myers v. . 348 Pole V. Harrobin . 89 Perkins v. Bradley 47 Poole, Crofton v. . 158 Groves v. . 378 V. Pass 293 W^alker v. 89 Pope, Medworth v. . . 349 Perrin v. Lyon . . 369 Rusden v. 60 Perry, Creed v. 381 Seagrave v. . 232 V. Jenkins . 404 Popham, Paxton v. 88 V. Truefit . 257 Poppleton, Everard v. . 101 Perry's Executors v. The Queen . 352 Porter, Watts v. . 206 Fetch V. Tutin 34 Whitehead v. . 126 Peter v. Compton . 80 Portland (Duke of), Topham v. 275 INDEX OF CASES CITEI> IN ENGLISH EDITION. XXXIH PAGE Pott V. Eyton , . 316 Potter, Hall v. 370 Kirby v. . 344 V. Nicholson 100 Potts, Nicholson v. . . 127 Powel, Shafto v. . 102 Powell V. Hellicar . . 327 V. Lloyd 123 V. Merrett . SGi V. Rees 67 Power V. Barham . 399 Powle V. Gunn 73 Powles V. Page . 319, 409 Pownal, Hoist v. . 45 Prance v. Sympson . . 77 Presland, Miles v. 206 Prescot, Snee v. 44 Prescott V. Boucher 377 Holmes v. . . 268 Hopkins v. 90 Preston v. Melville . . 263 Prestwood, Durant v. , 362 Price V. Anderson . 263 Barker v. 311 V. Green . . 71 Green v. . 90, 91 Harrington v. , . 10 Hewitt V. 230 Hyde v. . . 114 Prosser v. 233 V. Richardson . . 79 Pride v. Fooks 201, 293 Prideaux v. Lonsdale . 383 Prieaux, Lee v. 384 Pring V. Pring . . 352 Prior V. Hembrow 188 Pritchard v. 2\rbouin •. 349 Lodge V. 313 Shaw V. . 92 Proctor V. Sergent 91 Prosser, Evans v. . 370 V. Price 233 Proudley v. Fielder . . 384 Pryor v. Pryor 275 Pugh V. Stringfield . . 305 V. Tajior 383 Pulham, Firmin v. .. 293 Pullen V. Purbecke 53 Purbecke, Pullen v. . . 53 Purdew v. Jackson 380 Pye, Ridout v. . 191 Pym V. Great Northern Ra ilw. Co. 65 Sweet V. . 32 Q. Quartermaine v. Bittleston Queen, The, v. iMill V. The Lords Treasury . c of the 54 242 264 Queen, The, Perry's Executors v. . V. Whitmarsh R. Race, Miller v. Rachfield v. Careless Radburn v. Jervis Ralph, Bird v. Ralston v. Smith Ram, Ex parte Ramsbottom, Harcourt v. Hooper v. Ramsden v. Smith Randall v. Randall V. Russell Rankin, Holderness v. . V. Weguelin Rann v. Hughes Rannie v. Irvine Ransome v. Burgess Ravenshaw v. HoUier Rawling, Pidgley v. Rawlins v. Jennings In re Rawlinson v. Clarke "Williams v. . Rawson v. Johnson Rawsthorn v. Arnold Read, Belding v. Reay, Cookson v. . V. Richardson Redfern, Livesay v. Reed i\ Wilmot Rees V. Keith Powell V. . Reeve, Beaumont v. V. "Whitmore Reeves v. Watts Rcgina v. Londonderry and Col Railway Company V. Whitmarsh Reid, Donellan v. V. Fryatt V. HoUinshead West V. Reilly V. Jones . Lockhart v. Rcindell v. Schell Rendall, King v. . Rennoldson, Morley v. Revill, Nicholson v. Rex V. Bardell . V. Collector of Customs v. Greenhill V. Hill . V. Netherseal V. Sankey V. Sherrington . V. Wheeler PAGE 352 214 369, 11 211 214 80 189 318 409 71 115 71 128 370 6, 311 186 305 389 190 332 31 388 241 XXXIV INDEX OF CASES CITED IN ENGLISH EDITION. PAQE Reynell v. Lewis . 320 Reynish v. Martin . 370 Reynolds, Bodley v. 4G V. Bowley . 314 V.Hall . 54 Pennell v. . 134 Robinson v. . 87 Rhodes, Howard v. . 292 Peacock v. . 85, 395 V. Sractliurst . 405 Rhys, Lacy v. . . . 248 Rice V. Shute . . . . . 312 Weall V. ... 346 Rich, Peter v. . . 115 Richards v. Heather 309 V. James 50 V. Richards 376 Wilding V. . 299 Richardson j;. Bank of Englan i . 213 V. Brown . 399 Ex parte 315 V. Gilbert . 247 V. Greese , 346 V. Horton . 309 Hume V. 284 V. Jenkins . lOG Leslie v. 189 V. Nourse . 192 Price V. 79 Reay v. . . 120 Warwick v. 308 Riches, In re . . 319 Ricketts, Griffiths v. 287, 299 V. Loftus . 272 Rickman v. Morgan 347 Ridgway v. Clare , 313 Ridley v. Ridley 80 Ridout V. Earl of Plymouth . 374 V. Pain 192, 193 V. Pye . . 191 Rigby, Re ... . 102 Jenning v. . 102 Rigg V. Earl of Lonsdale 22 Right d. Compton v. Compton . 270 Ripley v. Waterwort 208 Rishton v. Cobb . 369 Roberts, Bramah v. 319 Cave V. . 364 V. Pocock 345 V. Spicer . 384 V. Walker 47 V. Wyatt . 25 Robertson, Dimsdale v. 189 MacDougall v. . 188, 189 Robinson, Brandon v. . 385 Crow V. . . 207 Cusack V. 41 V. Geldard . 349 Philips V. 10 V. Reynolds . 87 V. Robinson . 201, 282 PACE Robinson v. Wheelwright . 385 Roddam v. Morley 402 Rodway, Sanders v. . . 387 Roc, Nichols v 193 Rogers, Abbott v. . . . . 215 V. Acaster 381 Chaplin v. . . 36 V. Kennay 25 Rogers's Trusts . . . . . 265 Rolle, Ryall v 49 Rose, Leicester v. . . . . 122 Rosewarne, Nicholls v. 234 Rosier, Shackell v. . . 74 Rose V. Adcock .... 69 Bateman v. . . . . 388 Ross's Trust 386 Rossitcr, Hooper v. . . 263 Rouch V. Great Western Railway C 0. 150 Round, Addison v. . . 25 Roundell v. Brearey 297 Routh, Piatt V. ... . 337 Routledge v. Dorril . . 2 74, 276 V. Grant . . 81 Low V. ... 248 Rowland, Clegg v. . . 342 Rowlands, Coi)e v. . . . 89 Rowlandson, Ex parte . 316 Rowles, Ryall v 36, 49 Royal Exchange Assurance Co. E 1- liott V. . . 184 Royal Mail Co., European Co. v. . 60 Ruddell V. Dobree . 327 Rudge u. Winnall .... 17 Rusdcn V. Pope . 60 Rushforth v. lladfield . 30 Russell, Douglas v. . . 62 Huntley v. . . . 69 V. Ledsliam . . 237 Lyde v 15 Macnaught v. . 128 March v. . 341 V. Place . 339 Randall v. . . . 262 r. Smith . 248 Rutland, Duke of, v. Duchess of Ru t- land 662 Ryall V. Rolle .... . 49 V. Rowles .... 36, 49 s. Saddler's Company r.Badcock . St. George's Hospital, Philpott v. . St. John, Lord, v. Boughton, . Lord, D. St. John, Lady . St. John, Duke of Marlborough v. Sainter v. Ferguson Salkeld, In re ... Saloon Omnibus Conpany, Hale v. Salt, Stead v. . 179 349 401 388 68 71 196 52 319 INDEX OF CASES CITED IN ENGLISH EDITION. XXXV PAGE Samon's Case .... 191 Samuda, Zwinger v. 3T Samuel v. Duke .... 396 V. Howarth . . 116 Sandeman v. Mackenzie 273 Sanders, Bloxam v. . 43, 46 V. Rodway 387 Sanderson v. Bell . 29 Sandwich, Lord, Case of 275 Sandys, Warburton v. . 290 Sanger, Cuttcn v 298 Sankey, Rex r. ... . 31 Sargent, Higgins v. . . . 114 Saunders, De Mautort v. . . 312 ToUit V. . . . 196 V. Topp . 41 V. Wakefield . 79 Savage, Browne v. . . 408 Saville v. Barchard 30 Sawyer, Whittem v. , . 378 Sayers, Horton v 183 Scales V. Maude 36 Scarborough v. Borman . 3 85, 386 Scarpellini v. Atcheson . . 376 Scattergood v. Sylvester 397 Schell, Reindell v. . . . . 71 Schwabe, Clift v 176 Scipio,Numes v. . . . . 204 Scott V. Avery .... 184 Champernown v. . 31 v. Corporation of Liverpool 184 Scott, Driver v. . . . . 293 Drury v. . . . . 296 Evans v. ... . 278 V. Jones . . . . 406 V. Lord Hastings . 207 Mather v 349 V. Spashett . . . . 377, 379 V. Van Sandau . 187, 191 Scottish Union, &c., Simpson v. . 180 Scratton, Le Vasseur v. ill, 379 Seagrave v. Pope . 232 Seaton v. Benedict 382 Sedgwick, Martin v. . 319., 409 Seed V. Higgins . . . . 242 Selby V. Selby .... . 81 Self, Fleming v 232 Sergent, Proctor v. . . 91 Seton, Clark v 108 Sewell, Stickney v. . . 282 Shackell v. Rosier 74 Shaftesbury, Earl of, Lewers v. 64 Shafto V. Powel 102 Shalmer, Spalding v. . 288 Shaw, Badger v. . 50 Hodgson V. . . . . 114 V. Picton 121 V. Pritchard . 92 Shee, Clarke v. . . . 395 Littlefield v. . . 76 Shelley, Gill i- 350 Shepherd, Cooper v. Zachary v. Shepherdson, Monkman v. Shepley v. Davis Sheppard v. Duke Shepperd v. Kain Paton V. Sherrard v. Sherrard Sherrington, Rex v. V. Yates Sherwood, In re . Shewen v. Vanderhorst ShifFner, Man v. . . . Shilling V. Accidental Death ance Company Shipbrook, Lord, v. Lord Hi brook .... Shipman, Bush v. . Shore, Lady v. Billingsley Shorrock, Boyd v. Shortland, Ex parte . Shower v. Pilck Shute, Rice v. . Shuttleworth v. Greaves Wigg V. Sibree v. Tripp Sidwell V. Mason Silk, Jervoise v. V. Osborn Simmonds v. Palles . Simmons, Farebrother v. V. Gutteridge . Simond v. Hibbert Simonds v. Hodgson Simpson, Cowell v. Garrod c. . V. Scottish Union, Thompson v. Sims V. Thomas Simson v. Ingham Sinclair v. Jackson Sing V. Leslie . Skarf V. Soulby . Skeen, Hogg v. Skerrat, Ex parte . Skey V. Barnes . Skillern, Amies v. Skinner, Braithwaite v. . V. Upshaw Skip, West V. . Slatter v. Slatter . Sleech v. Thorington Slingsby's Case Sloane v. Packman . Smailes v. Wright . Small, Churchill v. . JefiFereys v. Smallpiece, Irons v. . Smartc v. Edsun . Smethurst, Rhodes v. Smith, Re . . . Insur- nchi PAGE 46 193 76 40 401 399 264 264 388 375 292 405 30 176 293 122 303 50 298 36 312 344 90 120 77 280 158 299 43 330 30 182 30,32 126 180 . 275 297, 403 . 121 403 274 297 319 298 277 303 6 29 36 388 . 344 302, 304 . 92 195 12 305 36 310 405 127 XXXVl INDEX OF CASES CITED IN ENGLISH EDITION. PAOE PEGE Smith, Allen r. . . . 29 Sprague, Ex parte . ' 314 Antrobus v. 36 Sprigens v. Nash . 195 V. Bond . . . - . 108 Squire v. Mayor IG V. Bruning 370 V. Whitton . . 116 Carpenter v. . . 237 Stafford, Earl of, v. Buckley . 199 r. Chichester 31 Stahlschniidt i'. Lett . 405 V. Clarke . 85 Stainbank, Davies v. 116 Farmer v. . 232 Stainton, Maclaren v. . 263 Fox« . 192 Stallwood, Tharpc v. 357 Grace v. . 316 Stalworth v. Inns ■ . 191 V. Hudson 41, 45 Stamford, Heard v. 382 V. Hiirst 299 Stamper v. Barker . . 388 Hatchings v. , 379 Stanes v. Parker . 292 V. Jarvis 318 Stangcr v. Miller . 123 V. Keating . 299 Staniland v. Willott . . 328 Lawrence v. 91 Stanley v. Bernes . 325 M'Ewan v. . . . . 37 Stannard, Angier v. . . 293 Martindale v. 39 Stansfeld v. Cubitt 50 Needham v. . . 296 Stanton v. Hall . 379 V. Nicolls . .102 Stapleton ?'. Haymen 57 V. Oliver . 349 Stathani, Adam v. . 192 Parkes v. . 186 Stead, Barker v. . 320 Pearly v. . . . . 264 V. Salt . . 319 V. Pilkington 232 Steadman v. Hockley 31 Ralston v. . . . . 242 Stear, Johnson i'. 28 Ilamsden v. 296 Steele, Swan v. . . . 318 Russell V. . . . . 248 Steinkeller, Devaux v. . 84 V. Smith . 341, 408 Steinmetz v. Halthin 378 Vernon v. . 179 Stephens, Edgeberry v. . 239 V. Whitmore 194 Hart V. . 376 Whitmore v. . . 191 V. Olive . . 387 Williams v. 396 Sterling, Ex parte 31 Smithard, Cornforth v. . 77 Stevenson v. Blakelock . 30 Snee v. Prcscot 44 Toft V. 403 Snellgrove i\ Baily . . 327 Steward v. Greaves 214 Snow, Goddard v. 383 Stewart, Hitchman v. . 115 Wilbraham v. . 25 Mackinnon v. . 299 Soane, Conduitt v. 262 Stickney v. Sewell, . . 282 Sellers V. Lawrence . . 68 Stiff, Cassell v. . . . 254 Somerville, Hotham v. . 12 Stockdale v. Onwhyn . 91 Somes, British Empire Shippin g Co-iJ. 29 Stocken i'. Stocken 280 Sothern, Swanwick v. . 39 Stocker r. Brockelbank . , 316 Souch V. Strawbridge 80 Stokes, Brice v. 293 Soulby, Skarf v. . . . 297 V. Holden . 47 South Carolina Bank v. Case , 319 V. Moor 81 Sowray, Lingen v. 288 Stone V. Marsh . . 318, 397 Spackman v. Miller . 49 Storie, Long v. . . . 92 Spalding, Alsager v. 122 Stoughton, Medina v. . 399 V. Shalmer . 288 Stoveld V. Hughes 36 Sparling v. Parker 348 Stafford, Lord, Byng v. . 266 Sparrow, Ex parte . 49 Strang, Berndtson v. 45 Farmer v. 232 Strathmore, Countess of, v. Be )wes . 383 V. Paris . 71 Stratton v. Grymes 370 Spashett, Scott v. . 377, 379 Strawbridge, Souch v. . 80 Spencer, Hill v. . 89 Streatfield v. Halliday . 310 V. Spencer 274 Stretton, Nicholls v. . 90, 91 Spettigue, White v. . . 396 Stringfield, Pugh v. 305 Spicer, Roberts v. . 384 Strode v. Blackburne 12 Spiers, Thompson v. . . 408, 409 Strutt, Decks v. ■. 6 Spirett V. Willows 377 Galsworthy v. . 71 Spooner, Vandcnburgh v. . 42 Stuart V. Burrowes 332 INDEX OF CASES CITED IN ENGLISH EDITION, XXXVll PAGE Stuart, Grey r. . . 296 Stubbs, Hughes v. 299 Studdy, Churchward I'. Sturges, Welchmaa v. , . 21 357 Sturgis V. Charapneys V. Darell . . 311 405 Styles V. Guy . Styward, Petty v. . Sumner, Gambart v. . 293 30G . 251 Sunbolf V. Alford . 29 Sutton V. Buck . 27 Fitch V. . . . 120 Swallow ('. Binns . " . 277 Swan V. Steele 318 Swann, Joyce v. V. Phillips . 40 84, 409 Swans, The Case of . . 19 Swanwick v. Sotheru . 39 Swayne v. Swayne . Sweet V. Benaing . . 409 247 V. Pym . Swift V. Swift 32 389 Swinburne, Crsythorne v. - 116 Swindell, CuUwick v. . 14 Swinnerton, Heming v. . 186 Swinton, Willoughby v. 109 Sworder, Castle v. . 42 Sylvester, Scattergood v. Symes, Balch v. 397 31 Symonds, Thompson v. Williams v. 251 . 400 Sympson, Prance v. 77 Synge, Howe v. 90 PAGE Taggart, Carter v. 264, 379 Tapfield v. Hillman 34 Tappenden v. Burgess . 123 Tate V. Hilbert 327, 328 Tatlock, Peel v. . 116 Tattersall, Kirkpatrick v. 76 Taunton, Wood v. . . . 196 Taylor v. Haygarth 364 Linley v. . . . . 348 V. Martindale 199 Miller v. . . . . 246 V. Pugh 383 In re . . 389 Tetley v. . . . 128 V. Turnbull . . 207 Wallis V. . . . 267 Waters v. , 183 Tebbs V. Carpenter 201 Teesdale, Dickinson v. . 406 Tempest v. Tempest 349 Templeton v. Warrington . 277 Tench, Lloyd v. . » 362 Tetley v. Taylor . 128 Teynham, Lord, r. Webb 273 Thames Iron Works Company v . Patent Derrick Company . Tharpe v. Stallwood Thelluson, Hobson v. Thomas v. Desanges James v. Owen V. . Sims V. I'. /Thomas Thomason v. Frere . Thompson v. Dominy Farrant v. Fraser v. V. Griffith Hill V. . Jackson v. V. Lacey V. Lack . Norman v. ?). Pettitt . V. Simpson . V. Spiers . Symonds V. Thompson Thompson's Trusts Thorington, Sleech v. Thorneley, Pierce v. Thornton, Lunn v. , Thorpe, Glynn v. . ?'. Jackson . Williams v. Thurlow, Cunynghame v. Tibbett, Morton v. Tidd V. Lister . Tidswell v. Angerstein , Tipping V. Tipping . Todd V. Wilson Toft V. Stephenson . Tollit V. Saunders Tolson V. Dykes Tomlin v. JIayor of Fordwich Topham v. Duke of Portland Duncan v. Topp, Saunders v. Topping, Ex parte V. Keysell . Townroe, Wightman v. Townsend v. Martin . Townshend, Lord, v. Windham Travers v. Travers , Treasury, Lords of the. The Qi Trimmer v. Danby Tripp, Longman v. Sibree v. TroUope v. Linton Trotter, Mackintosh v. Truefit, Perry v. . Trueman v. Fenton . Trye i>. Gloucester, Corporatio Tucker, Hayter v. In the Goods of n of 20 357 52 150 . 108 81 297,403 391 . 306 62 16 74 . 280 239, 241 . 168 29 116, 311 120 39 275 408, 409 251 348 47 344 379 34 106 312 408 275 41 379 177 374 292 403 196 172 191 275 81 41 313 134 315 345 374 296 264 264 255 120 372 14 257 76 349 348 334 INDEX OF CASES CITED IN ENGLISH EDITION. Tucker r. Laing Tuer V. Turner Tupman r. Hopkins . Tullett r. Arnistrong Tupper, IlamfieUl r. . Turbv r. Bates Turnbull, Godfrey, r. Taylor r. Turner, Coles v. Kidson v. Tuer V. V. Turner r. Vaughan Ward (.'. . Wood I'. . . Turquand v. Moss Turton, Maberley v. . Tutin. Fetch v. Tutton, Holmes v. Twynam, Coope v. Twyne"s Case . Tyler v. Jones V. Lake . Tj'ndall. Attorney-General v Tyre. Williams v. Upshaw, Skinner v. Usborne, Jenkyns v. V. Valpy, Dickinson v. Van V. Barnett Van Casteel v. Booker . Vandenbergh v. Spooner Vandenl)nrg i\ Palmer Vandeputt, Wiseman v. Vanderhorst, Sbewen v. . Van Sandau, Scott v. Vansittarl v. Vansittart . Vaughan, Grant v. Jenkin v. Pemberton v. Turner v. . Walmsley v. Vawdry, Cartwright v. Vawser, Brown v. Veal V. Veal .... Venables v. East India Company Vere v. Ashby .... Vernon, Davies v. Lepard v. . V. Smith Vick, Edelston v. . . . Viner ik Francis . Vulliamy v. Noble PACE . 117 382 . 384 385, 386 • . 82 40 . 315 207 . 127 76 . 382 190, 279 . 89 36 . 327 128 . 280 34 . 119 116 48, 75 188 . 384 349 . 230 319 . 287 45 42 36 44 . 405 187. 191 . ' 388 395 . 298 91 . 89 273 350 197 327 330 398 12, 31 98 10 179 257 351 315 W. W., H. V. . . Wackerbath, Mollett v. AVade r. Dowling . Wainewright, Barclay v Wainsf'ord, Warner v. Waite V. Janes Jones V. Wakefield v. Brown . V. Ncwbon Palmer v. Saunders v. Wales, Leighton v. . Walford, Dyke v. . Walker v. Giles i\ Milne V. Nevill Pendlebury v. V. Perkins Roberts v. Woodnicston ?' Young V. . Wall, Harris v. . W"allace v. Auldjo . V. Woodgate Wallis, Binnington v. V. Day . Fordham v. V. Hodson Mason ?>. V. Taylor Walmesley v. Milne Walmsley v. Vaughan Walrond v. Walrond Walsh, Gale v. V. Whitcomb Walter v. Adcock V. Hodge V. Mactlonald Walter Idle's Case Walters, Bevan v. Walton, Hitchman v. V. Lavater Wane, Cumber v. . Warburton v. Hill V. Sandys Ward, Bainton v. V. Beck V. Byrne V. (Jombe Greenberg v. . Merriman v. V. Penoyre V. Turner i'. Yates . Warde. Bristow v. Dudley v. In re Warden v. Asliburrier Wardroper v. Cutfield Waring v. Lee . PAGE 387 INDEX OF CASES CITED IN ENGLISH EDITION. XXXIX P.VtiE PAGE Warner and Powell's Arbitration, Re 190 Wetherell v. Langston . 304 Mare v. 122 V. Wilson 281 V. Wainsford 35*7 Whale V. Booth . 339 Warrington, Templcton c. 277 Whalley, Carter v. . . . 315 Warwick, Countess of, Edwards v. . 205 Wheatcroft v. Hickman . 316 March v. 128 Wheatley y. Westminster Brymbo Cc al V. Richardson . 308 and Coke Company, Limited . 184 Waterfall v. Pennistone 50 Wheeler, Bushel v. . . . 41 Waterhouse, Close v. 30 Doe d. Stace v. . . 330 Waterpark, Young v. . 272 Palmer v. . . . 275 Waters v. Taylor 183 Rex V. . . . . 241 Waterworth, Ripley v. . 208 Wheelhouse v. Ladbrooke 109 Wathen, Pclly v. Watmough's Trusts, In re 31 Wheelwright, Robinson v. . 385 349 Wheldale v. Partridge . 287 Watson V. Birch 401 Whinery, Minnit v. . . 319 Jessopp V. 362 Whinman v. Kynmau . 82 Keightley v. . 304 Whitaker, Pain v. . . 28 V. Parker . 110 Whitcomb, Walsh v. 117 Watt V. Watt . 384 White, Acton v. . . . . 386 Watts V. Girdlestone 201 293 Blake v. . . . 116 V. Jefferyes 206 V. Grane . 281 V. Porter 206 V. Spettigue 396 Reeves v. 127 Whitehead v. Porter . 126 Waugh V. Carver Edmunds v. . 31G 319 Whitfield v. Bewitt 18 403 Whitmarsh, Regina v. . 214 Way V. Bassett 312 Whitmore, Reeve v. 35 Way's Settlement, Re 298 V. Smith . 191 Weall V. Rice 346 Smith V. 194 Weatherby, Brown v. 312 Whittaker v. Howe . . 91 Webb V. Fox 158 Whittem r. Sawyer 378 I'. Grace 370 Whittingham,^In re . . 390 V. Hewitt 116 Whittingstall v. Grover 313 V. Needham 356 Whittle V. Henning . . 381 Teynham, Lord, v. 273 Whitton, Squire v. 116 Webb's Policy, Re 408 Whorwood, Cooke v. . 192 Webster v. Webster 315 Wigg V- Shuttleworth . 90 Weguelin, Rankin v. 327 Wightman v. Townroe . 315 Welchman, In re . 378 Wilbraliam v. Snow 25 Welchman v. Sturgis 357 Wilcox, Kruges v. . . 32 Weld, Graves v. 17 Wild V. Clarkson . 108 Weldon v. Gould . 30 Wilding V. Richards . 299 Welland, Balfour v. . 288 Wildman v. Wildman . . . 200 Wellesley v. Beaufort, Duke of 388 Wiles V. Gresham . 285 Earl Cowley v. . 18 Wilkius, Bristead v. 207 V. Wellesley 297 V. Bromhead 40 Wellington v. Mackintosh , 183 Wilkinson v. Adams 349, 350 Wells V. Horton 80 V. Byers . . 120 Wennall v. Adney 76 V. Candlish . 133 Wensley, Ex parte 134 V. Evans . 42 West V. Berney 274 V. Henderson 312 Hartlepool Harbor an d Railway Willet V. Chambers . . 318 Company, Wilson v 212 Williams v. Burgess 101 Hebdon v. 176 Clarke v. . . 126 V. Reid . 409 Eads V. . 191 V. Skip * 36 V. Evans 14 Westland, Wiseman v. . 12 Evans* I'. . 102 Westmacott, Harmer v 255 Ex parte . . 280 Westmcath, Marquis of, Hindley v. 387 V. Frost 236 Westminster Brymbo C6al and Coke V. Hayward . 233 Company, Limited, Whe itley V. 184 V. Henshaw 303 Weston, Foster v. 114 V. Lake 79 xl INDEX OF CASES CITED IN ENGLISH EDITION. PAGE PAGE Williams, Manners v. 27 Wood V. Taunton . 196 V. Moor 77 V. Turner . 327 V. Rawlinson . 121 V. Wood 118 V. Smith . 396 Woodgate, Acton v. . 299 V. Symonds 409 Wallace v. . 29 V. Thorpe . . 408 409 Woodhead, Crcsswick v. . . 330 V. Tyro . 230 Woodhouse v. Murray . 51 Williamson, Chamberlain i'. . 67 Woodman, Bowyer v. . 403 Willing V. Baine . 303 Woodmeston v. Walker 385 Willis r. Black . 296 Woods V. Footo . 127 V. De Castro 311 Woolfit, Cooper i'. 17 V. Hiscox . 293 Woolley, Jackson v. 83,312 Willomatt, Cooper v. 28 Worrall v. Jacob . 387 Willott, Staniland v. 328 Worrell v. Johnson . 31 Willoughby, Foljambe v. 281 Wortham v. Pemberton . . 377 v'. Swinton . 109 Wren v. Bradley . 387 Willows, Spirett v. 377 Wright, Cook v. . 74 Wills V. Hacon . 126 Killbyr. . 127 Wilnier v. Carrey . 309 Lomas v. . 110 Wilmot, Reed v. . 48 V. Maunder 168 Wilmshurst v. Bowker . 45 ?'. Morley . 379 Wilson V. Brownsmith . 345 Norris v. . 283 V. Hood 32 Smailes v. . . 195 Lucas V. 193 Wrightson v. Bywater . 191 V. Piggott . . 272 273 Wj'att, Roberts v. 25 Todd V. . 292 Wynne, Hughes v. 108, 405 V. West Hartlepool Harbor and Railway Co.. 212 Wetherell v. 281 Y. V. Wilson . 293, 387 388 Wilton V. Colvin 296 Wiltshire, Doran v. 288 Yates, Bridge v. . 303 Winch V. Keeley 117 Dixon V. 37, 44, 45 Winclielsea, Earl of, Deering V. 115 Sherrington v. . 375 Windham, Townsend, Lord, V. 274 Ward V. 379 Windle v. Andrews 86 Yea V. Field 10 Windsor, Lincoln v. 292 Yeoman v. Bradshaw 110 Winn V. Ingilby IG Young V. Axtell . 315 Wiunall, Rudge v. 17 Ex parte 54 Wise V. Metcalf 68 V. Fernie . 237 Wiseman v. Vandeputt V. Westiand . 44 V. Fletcher 134 12 Halseham v. . Lee V. . 318 Wishart v. Fowler 123 286 Witham, In the Goods of 331 V. Matthews . 36 Witt V. Amis 327 V. Walker . 192 Wolverhami)ton New Waterw orks Co. V. Waterpark . 272 V. Hawkesford 211 Younge, Meacher v. 280 Wombwell v. Hanrott . 272 273 Wood V. Adcock 192 Climie v. 14 Z. V. Dixie . . 52 Ex i)arte 54 Zachary v. Shepherd . 193 Gomley «'. 292 Zwinger v. Samuda 37 PRINCIPLES LAW OF PERSONAL PROPERTY. INTRODUCTORY CHAPTER. OF THE SUBJECTS AND NATURE OF PERSONAL PROPERTY. The English law of property is divided into two great branches, — the law of real property, and the law of personal property. The feudal rules, which respected the holding and culture of land, were the elements of the common law of real property; the rules relating to the disposition of goods were the origin of the law of personal property. Such property was anciently of little importance, and its laws were consequently few and simple. It did not, however, escape the ecclesiastical influence which spread so widely in the middle ages ; and it has thence derived that subjection to the rules of the civil law by which it is characterized when transmitted by will or distributed on intestacy. The division of property into real and personal, though now well recognised, and constantly referred to even in the acts of the legislature, is comparatively of modern date. In ancient times property was divided into lands, tenements and hereditaments on the one hand, and goods '^and chattels on the other. These two last terms appear to be r-^cy-, synonymous. In process of time, however, certain estates and interests in land grew up, which were unknown to the ancient feudal system, and could not conveniently be subjected to its rules. Of these the most important were leases for years. ^ Such interests, therefore, 1 A lease for any number of years is, in representatives of a decedent : 7 Sm. & the common law, of no higher dignity than Marsh. 479 ; Gay's Case, 5 Mass. 419 ; Rey- a lease or term for one year. Both are nold's Heirs v. Com'rs of Stark Co., 5 mere chattels, and pass to the personal Ohio 204 ; Lessee of Bisbee v. Hall, 3 Id. 1 INTRODUCTORY CHAPTER. ■were classed among chattels ; but as they savoured, as it was said, of the realty, they acquired the name of chattels real.{a) In more modern times, chattels real have been classed, with other chattels, within the divi.-^ion of personal proi)erty ; but as chattels real, though personal property, are in fact interests in land, the laws respecting them have been noticed in the author's treatise on the Principles of the Law of Real Property. (ft) Chattels real will therefore be only incidentally noticed amongst the subjects treated of in the present work. When leases for years, and other interests in land of the like nature, were admitted into the class of chattels as chattels real, it became neces- sary that such goods as had previously constituted the whole class, should be distinguished from them by some further name ; and the title of chat- tels personal was accordingly applied to all such chattels as did not savor of real estate. For this title, the choice of two reasons is given to the reader by Sir Edward Coke, " because, for the most part, they belong to the person of a man, or else for that they are to be recovered by per- sonal actions. "(e)' The former of these tAvo reasons has been chosen by (a) Co. Litt. 118 b. {b) Principles of the Law of Real Property 315 et seq., 1st ed.; 307, 2d ed. ; 322, 4th ed. ; 333, 5th ed. ; 350, 6th ed. ; 357, 7th ed.; 373, 8th ed. (c) Co. Litt. lis b. 499 ; Brewster v. Hill, 1 N. H. 351. In Massachusetts, by the Revised Statutes of 18G0, ch. 90, § 20, p. 471, it is declared that the lessees and assignees of lessees of real estate, for the term of one hundred years or more, in cases where there is an unexpired residue of fifty years or more of the term, shall be regarded as freeholders, and the estate subject like freehold estates to descent, devise, dower, and execution. In Ohio, Revised Statutes, 1860, ch. 3tJ, I 20, p. 505, and ch. 87, § 1, p. 1142, per- manent leasehold estates, renewable lor ever, are subject to the same law of de- scent and distribution as estates in fee. See Northern Bank of Kentucky v. Roosa, 13 Ohio 334 ; McLean v. Rockey, 3 McL. 235. In relation to terms to attend the in- heritance, although on the death of the ancestor, the legal title to these vests in his personal representatives, j-et in equity, they belong to the heir, and are considered part of the inheritance : Lovet v. Necdham, 2 Vern. 138 ; Whitchurch v. Whitchurch, 2 P. Wms. 236 ; Villiers i-. Villiers, 2 At- kins 71 ; Maundrell v. Maundrell, 7 Ves. Jr. 577 ; and see post, p. 259, note 1. 1 However unimportant any discussion may be as to the origin of the term per- sonal, as ascribed to chattels, it is con- ceived that the reason of the designation as given by Blackstone, is the correct one. All chattels formerly known to the law were by their nature movable, and a very large class of them, such as debts, obliga- tions, and the like, had no tangible exist- ence, and were supposed by the law to " attend the person,' and are subject to the incidental laws of the domicil of the owner, in the case of intestacy and insol- vency ; while real estate being immovable, is only governed by the laws of the place where it is situated, independent!}' of the actual domicil of the owner. This would seem to be a more probable reason, than the mere fact of their being the subject of actions called personal. OF THE SUBJECTS AND NATURE OF PERSONAL PROPERTY. 2 Mr. Justice Blackstone.((^) But it is submitted that the latter reason is most probably the true one. When goods and *chattels began to be called personal, they had become too numerous and important ■- -• to accompany the persons of their owners. On the other hand, the bringing and defending of actions has always been the most prevailing business of lawyers ; from the different natures of actions, the nomen- clature of the law is therefore most likely to have proceeded. Now actions were long divided into three classes, — real actions, personal ac- tions, and mixed actions. Real actions were brought for the recovery of lands, and, by their aid, the real land was restored to its rightful owner. Mixed actions, as their name imports, were real and personal mixed together. Personal actions were brought in respect of goods for which, as they are in their nature destructible, nothing but pecuniary damages could with certainty be recovered from the person against whom the action was brought. Accordingly, by the ancient law of England, there never were more than two kinds of personal actions in which there was a possibility of recovering, by the judgment of the Court, the identical goods in respect of which the action was brought. One of these was the action of detinue^ where goods, having come into a man's possession, were unlawfully detained by him ; in which case, however, the judgment was merely conditional, that the plaintiff recover the said goods, or [if they could not he had) their respective values, and also the damages for detaining them.(g) The other was the action of replevin, brought for goods which had been unlawfully distrained ; but in this case the goods were never beyond the custody of the sheriff, who is an officer of the law, and their safe return could therefore be secured. (/)^ Goods therefore (d) 2 Black. Com. 16, 384; 3 Black. Com. 144. (e) 3 Black. Com. 152. (/) Ibid. 146. 1 In the United States generally, the ac- In New York, replevin lies for any Por- tion of replevin lies, wherever one claims tious taking of goods; Pangbura v. Par- goods in the possession of another ; and on tridge, 7 Johns. 140; Gardner v. Camp- a claim of property, the defendant can re- bell, 15 Id. 402; Mills v. Martin, 19 Id. 3] ; tain the goods if he gives security to pro- Clark v. Skinner, 20 Id. 467 ; Judd v. duce them, and, where the property is so Fox, 9 Cowen 259 ; Dodworth v. Jones, 4 retained, the plaintiff's right is turned into Duer 20 1. a chose in action, and his right to the pro- But it will not lie for illegal detention of perty absolutely gone : Fishery. Whoolery, property, where the party conies to posses- 25 Penn. St. 197 ; and see also, Pugh v. sion by delivery from a person having a Calloway, 10 Ohio N S. 488; but even special property in the goods : Marshall t'. in England it was not formerly the case, Davis, 1 Wend. 109. as is stated in the text, that the goods As against wrongdoers and trespassers, were in the custody of the sheriif: 1 it has been decided in North Carolina, that Saund. (by Williams) 347 a, note 2. See a paramount right of property is not ne- also 12 Mass. 180, note. cessary to support the action, but a naked 3 INTRODUCTORY CHAPTER. seem to have been called personal, because the remedy for their abstrac- tion was against the person who had taken them away, or because, in the possession, or a right of possession coupled with the beneficial interest, will be suffi- cient : Freshwater v. Nichols, 7 Jones's Law 251. In Pennsylvania, wherever one man claims goods in the possession of another, replevin will lie: Weaver v. Laurence, 1 Dall. 157 ; Shearick v. Ruber, G Binn. 3; Stougbton v. Rappalo, 3 S. & R. 562 ; Snyder v. Vaux, 2 Rawle 428 ; Pearce v. Humphries, 14 S. & R. 25; Bower v. Tallman, 5 W. & S. 5G1 ; Har- lan V. Harlan, 15 Penn. St. 513; Boyle V. Rankin, 22 Id. 168; but see Bonsall v. Comly, 44 Id. 442. It is effectual for the delivery of personal property only ; Rob- erts V. Dauphin Deposit Bank, 19 Id. 71; and it will not lie by one, claiming land against another in the actual adverse pos- session thereof, under claim of title for fixtures, aliter, where there is no claim of adverse title: Mather v. Trin. Church, 3 S. k R. 509; Bowen v. Caldwell, 10 Id. 114; Harlan v. Harlan, 15 Penn. St. 513 ; and see Green v. Iron Co., 62 Penn. St. 97. Replevin will not lie by one joint owner of a chattel, but the objection can only be taken by a plea in abatement, where he sues for the whole : Reinheimer v. Hem- ingway. 35 Penn. St. 432. If he sues for a moiety, the court will abate the writ, ex officio : D'Wolf v. Harris, 4 Mason 515. And by the same case it was held, that an assignment of goods at sea, and their proceeds, if bona fide, is sufficient to pass the legal title to the goods, and also to the proceeds, so that replevin will lie for the latter. But in case of an ex- press contract for delivery, one partner may bring this action against the other : Kahle v. Sneed, 59 Penn. St. 388. If trees cut down be converted by de- fendant into rails and posts, this is not such an alteration of the property as will prevent recovery in replevin: Snyder v. Vaux, 2 Rawle 423; and see Lee v. Gould, 47 Penn. St. 308. In Massachusetts it has been held, that as a general principle, the owner of a chat- tel may take it by replevin from any per- son whose possession is unlawful, unless it be in the custody of the law, or unless it had been taken by replevin from him by the party in possession : Ilsley v. Stubbs, 5 Mass. 280. In order to maintain it, the plaintiff must have the right of pro- perty and of possession, at the time of taking or suing out his writ ; Wheeler V. Train, 3 Pick. 255 ; Walcot v. Pora- eroy, 2 Id. 121. But where goods which had been leased by the owner, were attached as the property of the lessee while they were in his possession under the lease, and the owner replevied them from the oflicer, and before judgment the lease expired, the defendant had judgment for costs only, and not for a return : Wheeler v. Train, 3 Pick. 255. If goods be obtained by means of false and fraudulent pretences, the owner of the goods may reclaim them by this action : Buffington v. Gerrish, 15 Mass. 156. So replevin will lie for goods which are un- lawfully detained, though the taking be lawful : Badger v. Phinney, 15 ^lass. 359 ; Baker v. Pales, 16 Id. 147 ; Marston v. Baldwin, 17 Id. 606. IConfra, Meany V. Head, 1 Mason 319.] And when goods are delivered in pursuance of a condit- ional sale, and the condition is not per- formed, the vendor may reclaim the goods by this action: Marston v. Baldwin, 17 Mass. 606. But if the property is not in the plain- tiff at the time of the taking, or if he then had no right to the possession against the defendant, replevin cannot be maintained, unless a demand has been made upon the defendant by the plaintiff for the chattels since he acquired the property in them : Gates V. Gates, 15 Mass. 310. Such a demand, however, will be sufficient if made on the day of the date of the writ, before' ii is served, although after its de- livery to an officer: Badger v. Phinney, 15 Mass. 359. In Maine, either a general or special OF THE SUBJECTS AND NATURE OF PERSONAL PROPERTY. 6 words of Lord *Coke, tliey were to be recovered by personal ^,^^-. actions. (^) By recent statutes, (/t) however, provision has been (ff) See Principles of the Law of Real Propert}' 7. (A) Stats. 11 & 18 Vict. c. 125, s. 78 ; 19 & 20 Vict. c. 97, s. 2. ownership of property will sustain the ac- tion : School Dist. No. 5 r. Lord, 44 Maine 374; and it may be maintained for goods unlawfully detained, though the taking was lawful : Seaver v. Dingley, 4 Greenleaf 306 ; but there mu^t be a demand for the article and refusal to de- liver in this case, or other evidence of conversion : Newman v. Jeune, 47 Maine 520. The mere right of possession is suffi- cient to sustain this action in the State of Vermont: Sprague v. Clark, 41 Vt. 6. In New Jersey, where goods are so taken as to entitle the owner to an action of trespass, replevin can be maintained: Bruen v. Ogden, 6 Halst. 370; or for goods taken and unlawfully detained : Nixon's Dig., ed. 1868, p. 810; but there must be both the unlawful taking and the unlawful detention : Harwood v. Smeth- urst, 5 Dutch. 19.5. And it will lie for such articles as " mills, barns, steam- engines, offices, and sheds :" Breasley v. Cox, 4 Zabr. 287. In Ohio, replevin lies in all cases unless excepted by statute : Stone v. Wilson, Wright 159. In Indiana, demand may be necessary where the defendant has goods by license of the plaintiff; but where there is a wrongful possession of goods, as where they were obtained by fraud, force, or otherwise without the owner's consent, no demand need be made : 8 Blackf. 244. Replevin cannot, however, be maintained against a purchaser in good faith from a wrongful taker: Conner v. Comstock, 17 Ind. 90. In Delaware, it may be used wherever one claims personal property in possession of another: Clark v. Adair, 3 Har. 113. A purchaser at sheriff's sale may maintain replevin after demand and refusal: 16 Id. 62. In Maryland, replevin lies in all cases where the plaintiff seeks to try the title to personal property and recover its posses- sion : Brooke v. Berry, 1 Gill 163. In Kentucky, it will not lie to recover godds held adversely to plaintiff: Dillon V. Wright, J. J. Marsh. 10; nor where the legal title is not in the plaintiff: Daniel v. Daniel, 6 B. Mon. 231. In Missouri, replevin will lie for goods unlawfully taken or detained when tres- pass will :. Skinner v. Stouse, 4 Mo. 93; Crocker v. Man, 3 Mo. 345, 472 ; but the plaintiff must have the title to the property or the right of possession : Pil- kington v. Trigg, 28 Mo. 95. In Tennessee, to support replevin, the plaintiff must show right of possession as against the defendant: Bogard v. Jones, 9 Hump. 739 ; Bradley v. Mitchell, 1 Smith 346 ; Shaddon v. Knott, 2 Swan 358. In Arkansas, under the Revised Statutes (same as that of New York on replevin), replevin may be maintained for an unlaw- ful taking or detention of a chattel, but the plaintiff must show title : Beebe v. De Baun, 3 Eng. 566; Rev. Stat. 695; Cox V. Marrow, 14 Ark. 603. The owner of property may bring replevin against a purchaser where his property has been sold under execution against a third per- son : 3 Eng. 83. As in New York, pos- session of chattels and actual wrongful taking by defendant will support replevin. It may be brought wherever trespass de bonis asportatis will lie : Tra'pnall v. Hat- tier, 1 Eng. 21. In Virginia, replevin is confined by sta- tute (1823) to cases of distress for rent: 1 Robinson's Pr. 408. As also in Mississippi: Wheelock v. Cozzens, 6 Howard 279 ; and to main- tain the action under the statute of 1842, it is necessary that the plaintiff should 4 INTRODUCTORY CHAPTER. made for enforcing the signable by endorsement and delivery, in the same manner as inland bills of exchange.(/) More recent statutes have enabled r*^-| *the endorsee of a bill of lading,(w)^ and the assignee of a life(r?) or sea(o) policy of insurance, to sue in his own name. But other choses in action continue to this day assignable at law only by empower- ing the assignee to sue in the name of the assignor. In addition to the mass of incorporeal personal property, which now exists in the form of choses in action recoverable by action at law, there exist also equitable choses in action, or rights to be enforced by suit in equity ; of these a pecuniary legacy is a familiar instance, for which, if the executor withhold payment, the legatee can maintain no action at law,(jt?)^ but must bring a suit in equity. This kind of chose in action (?) Stat 3 & 4 Anne, c. 9 made perpetual bv stat. 7 Anne, c. 25, s. 3. (m) Stat 18 & 19 Vict. c. Ill, s. 1. (n) Stat. 30 & 31 Vict. c. 144. (o) Stat. 31 & 32 Vict. c. 86. (p) Decks V. Strutt, 5 Terra Rep. 690 ; Braithwaite v. Skinner, 5 M. & "W. 313- Legacies under fifty pounds may now be recovered in the county courts, under the acts for the more easy recovery of small debts and demands in England, unless the validity of the bequest be disputed. Stats. 9 & 10 Vict, c 95, ss. 58, 65 ; 13 & 14 Vict. c. 61 ; 19 & 20 Vict. c. 108. These courts have now an equitable jurisdiction. Stats. 28 & 29 Vict. c. 99 ; 30 & 31 Vict. c. 142. ble to one " and his assigns," is negotiable States, and in some is expressly given by the terms of the act of 1799 of that by statute : 3 Barb. Ch. 466 ; Beeker v. State, and passes by endorsement: Prio- Beeker, 7 John. 99; Farwell v. Jacobs, leau «. S. W. R. R. Bk., 16 Geo. 587. 4 Mass. 634; Pettigrew v. Pettigrew, ' By an Act of the Legislature of the 1 Stew. 580 ; Morrow v. Breinzet, 2 State of Pennsylvania, approved September Rawle 185; App v. Driesbach, Id. 301; 24th, 1866, warehouse receipts for mer- Colt v. Colt, 32 Conn. 422; Gilliland r. chandise, or bills of lading for the same Beedin, 63 Penn. St. 393; but in Penn- when in transit to any warehouseman, sylvania the question of assets, and in shall be negotiable, and may be transferred what proportion, in case of a deficiency, by endorsement and delivery, unless said the claimant is to be paid, is to be deter- receipts and bills of lading shall be mined by the Orphans' Court: Bredin v. stamped "not negotiable;" and any per- Gilliland, 28 Leg. Intell. p. 285; Burt v. son to whom the said receipt or bill of Ilerron, 66 Penn. St. 400. In which lading may be so transferred, shall be con- state it has also been decided, that an sidered the owner of the merchandise action at common law will not lie on a therein specified: Purd. Dig. Suppl. 1449. decree of the Orphans' Court, for the pay- And see post p. 62, note 2. ment of a legacy out of the funds in the ' An action at law for a pecuniary leg- hands of an executor : 34 Penn. St. 354 ; acy, has been maintaiaed in some of the nor to recover a distributive share of a de- OF THE SUBJECTS AND NATURE OF PERSONAL PROPERTY. O may be assigned directly from one person to another, and the assignee may sue in equity in his own name. For equity, being of more modern origin than the common law, is guided in its practice by rules more adapted to the exigencies of modern society. In modern times also several species of property have sprung up which were unknown to the common law. The funds now afford an investment, of which our forefathers were happily ignorant, whilst canal and railway shares, and other shares in joint stock companies, and patents and copy- rights, are evidently modern sources of wealth. These kinds of pro- perty are all of a personal nature, many of them having been made so by the acts *of parliament under the authority of which they have j-^yn originated. For want of a better classification, these subjects of personal property are now usually spoken of as choses in action. They are, in fact, personal property of an incorporeal nature, and a recurrence to the history of their classification amongst choses in action will, as we shall hereafter see, help to explain some of their peculiarities. Such is the general outline of the subjects of modern personal property. They are distinguished from real property by being unaffected by the feudal rules of tenure, by being alienable by methods altogether different, by passing in the first instance to the executors, when bequeathed by will, and by devolving, on their owner's intestacy, not on his heir, but on an administrator appointed formerly by the Ecclesiastical Court, but now by the Court of Probate, by whom they are distributed amongst the next of kin of the deceased. On the first of these characteristics, however, mainly depends the nature of the property which exists in things personal. The first lesson to be learned on the nature of real property is this — that of such property there can be no such thing as an absolute ownership ; the utmost that can be held or enjoyed in real property is an estate.(^) There may be an estate for life, or an estate tail, or an estate in fee simple; but, according to the law of England, there cannot exist over landed property any absolute and independent dominion. All the land in the kingdom is the subject of tenure; and if the estate is not holden of any subject, at any rate it must be held of the crown. With regard to personal property, however, the primary rule is precisely the reverse. Such property is essentially the subject of absolute ownership, and cannot (q) Principles of the Law of Real Property 16. cedent's estate : Ashford v. Ewing, 25 Id. be recovered by an action at law : Wooten 213. In Mississippi, a specific legacy may v. Howard, 2 Sra. & Marsh 527. 7 INTRODUCTORY CHAPTER. P^oT be licld for any estate. It is true that the *phrase personal estate is frequently used as synonymous with personal property ; but this general use of the term estate should not mislead the student into the supposition tliat there can be any such thing as an estate in personalty properly so called. The rule that no estate can subsist in personal pro- perty would seem to have originated in the nature of such property in early times. Goods and chattels of a personal kind, in other words, movable articles, then formed, as we have seen, the whole of a man's personal estate. And such articles, it is evident, may be the subjects of absolute ownership, and have not those enduring qualities which would render them fit to be holden by any kind of feudal tenure. As personal property increased in value and variety, many kinds of property of a more permanent nature became, as we have seen, comprised within the class of personal, such as leases for years, of whatever length, and Con- solidated Bank Annuities. But the rule that there can be no estate in chattels, the reason of which was properly applicable only to movable goods, still continues to be applied generally to all sorts of personal pro- perty, both corporeal and incorporeal. The consequences of this rule, as we shall hereafter see, are curious and important. But in the first place it will be proper to consider the laws respecting those movable chattels, or choses in possession, which constitute the most ancient and simple class of personal property ; the class, however, which has given to the rest many of the rules for regulating their disposition. *PART I. C*9] OF CHOSES IN POSSESSION. CHAPTER I. OF CHATTELS WHICH DESCEND TO THE HEIR. Choses in possession are movable goods, such as plate, furniture, farming stock, both live and dead, locomotive engines and ships. These, as has been before remarked, are essentially the subjects of absolute ownership, and cannot be held by estates ; they are alienable by methods altogether difiFerent from those employed for the conveyance of landed property, and they devolve in the first instance on the executor of the will of their owner, or on the administrator of his effects, if he should die intestate. There are, however, some kinds of choses in pos- session which form exceptions to the general rule : these consist of cer- tain chattels so closely connected with land that they partake of its nature, pass along with it, whenever it is disposed of, and descend along with it, when undisposed of, to the heir of the deceased owner. The chattels which thus form exceptions are the subject of the present chapter : they consist principally of title deeds, heir-looms, fixtures, chattels vegetable, and animals fierce naturce. Of each in their order. Title deeds, though movable articles, are not strictly speaking chattels. They have been called the sinews of the land,(a) and are so closely con- nected with it that they will pass, on a conveyance of the land, without *being expressly mentioned : the property in the deeds passes out r*i q-i of the vendor to the purchaser simply by the grant of the land itself. (5) In like manner a devise of lands by will entitles the devisee to the posession of the deeds ; and if a tenant in fee simple should die in- testate, the title deeds of his lands will descend along with them to his (a) Co. Litt. 6 a. (6) Harrington v. Price, 3 B. «& Ad. 170 (E. C. L. R. vol. 23) ; Philips v. Robinson, 4 Bing. 106 (E. C. L. R. vol. 13) ; s. c. 12 Moore 308. 10 OF CIIOSES IN POSSESSION. heir at law.((') In former times, when warranty was usually made on the conveyance of lands, (J) the rule was that the fcoffer should retain all deeds containing warranties made to himself or to those through whom he claimed, and also all such deeds as were nuiterial for the maintenance of the title to the land.(c) But if the feoffment was made without any warrant}', the feoffee was entitled to the whole of the deeds ; for the feoffor could receive no benefit by keeping them, nor sustain any damage by delivering them.(/) Warranties have now fallen into disuse; but the principle of the rule above stated still applies when the grantor has any other lands to which the deeds relate, or retains any legal interest in the lands conveyed ; for in either of these cases he has still a right to retain the deeds.( 14 Mass 352. And in Vermont, and Ohio : Brennan v. Whitaker, 15 Ohio 446 ; Fullam v. Stearns, 30 Vt. 443 ; Hill V. Wentworth, 28 Id. 428. In Maine, it has been held that a dwell- ing-house partially erected on land of another, under a parol agreement to pur- chase, but left unfinished and not under- pinned, remains the personal property of the builder : Pullen v. Bell, 40 Maine 314. And see, Fuller v. Heath, 39 .Maine 437; Preston v. Briggs, 16 Vt. 124; Stockwell V. Marks, 5 Shepley 455; Beers v. St. John, 16 Conn. 522 ; Shep- ard V. Spaulding, 4 Mete. 416; The State V. Elliott, 11 N. Hamp. 340; White V. Arndt, 1 Whart. 91 ; Bartlett v. Wood, 32 Vt. 372 ; Murdock v. Harris, 20 Barb. 407 ; Richardson v. Copeland, 6 Gray 536. OF CHATTELS WHICH DESCEND TO THE HEIR. 14 in it.(7i) The ancient rule respecting fixtures has been greatly re- laxed in favour of tenants for terms of years, who are now permitted to remove articles set up by them for the purposes of trade or of orna- ment or domestic convenience,(^) provided they remove them before the ♦expiration of their their tenancy. (/)' But the old rule still pre- pi c-i vails with regard to agricultural fixtures, which, though set up by the tenant, become, by being fixed to the soil, the property of the land- lord ;(yt)^ unless they are put up with the consent in writing of the land- lord for the time being, in which case it is provided by an act of the present reign(?) that they shall be the property of the tenant, and shall be re- movable by him on giving to the landlord or his agent one month's previous (A) Shep. Touch. 470. (t) Grymes v. Boweren, 6 Bing. 437 (E. C. L. R. vol. 19). (y) Lyde v. Russell, 1 Barn. & Adol. 394 (E. C. L. R. vol. 20) 5 C. B. N. S. 546 (E. C. L. R. vol. 94). {k) Elwes V. Maw, 3 East 38. (Z) Stat. 14 & 15 Vict. c. 25, s. 3. Leader v. Homewood, 1 Some of the American cases to this point are : Gaffield v. Hapgood, 17 Pick. 192 ; Ex parte Quincy, 1 Atk. 477 ; Holmes V. Tremper, 20 Johns. 29 ; Whiting v. Bras- ton, 4 Pick. 310; Lelane v. Gasset, 17 Vt. 463; Cook v. Champlain Co., 1 Denio 91; Van Ness v. Pacard. 2 Pet. 153 ; Russell V. Richards, 1 Fairfield 429; Tapley v. Smith, 18 Maine 12; Cresson v. Stout, 17 Johns. 116; Tobias v. Frances, 3 Vt. 425; Taffe i'. Warnick, 3 Blackf. Ind. Ill; Reynolds v. Shutter, 5 Cowen 323; Raymond v. White, 7 Id. 318; Wetherbee v. Foster, 5 Vt. 136 ; Taylor V. Townsend, 8 Mass. 411; Blood v. Richardson, 2 Kent Comment. 404, n. ; White's Appeal, 10 Penn. St. 253; Case of the Olympic Theatre, 2 Br. 285 ; Ross's Appeal, 9 Penn. St. 494; White v. Arndt, 1 Whart. 91; Gray v. Holdship, 17 S. & R. 415 ; 1 Missouri 508 ; Vaugh v. Haldeman, 33'Penn. St. 522 ; Wall v. Hinds, 4 Gray 256 ; Montague i'. Dent, 1 Rich. Law 135; Ombony v. Jones, 21 Barb. 520. 2 This doctrine has not been directly overruled in the United States, but has been strongly questioned. Whenever the question has been before the courts, they have leaned in favour of the agricultural tenant, though deciding as for a manu- facturing tenant: Van Ness v. Pacard, 2 Pet. 137 ; Whiting v. Braston, 4 Pick. 310; Holmes v. Tremper, 20 Johns. 29. Farm fences, however, belong to the realty: Mott v. Palmer, 1 Comst. 564; Walker v. Sherman, 20 Wend. 646 ; Glid- den V. Bennett, 43 N. H. 306. The same policy of encouraging agri- cultural improvements, will not permit the outgoing tenant to remove manure which has accumulated during the term : Las- sell V. Reed, 5 Greenleaf 222 ; Middle- brook V. Corwin, 15 Wend. 169; Daniels V. Pond, 21 Pick. 367; Lewis v. Jones, 17 Penn. St. 262; Kitteridge v. Rhodes, 3 N. H. 508; Parsons v. Campbell, 11 Conn. 525. The outgoing tenant of a nursery, has the right to take up and carry away trees and shrubs, as personal property : Miller I'. Baker, 1 Mete. 27; King v. Wilcomb, 7 Barb. S. C. 263. But although this is true as between landlord and tenant, the contrary is the case as between mort- gagor and mortgagee : Maples v. Millon, 31 Conn. 598 ; Price v. Brayton, 19 la. 309. And see next note. 15 OF CnOSES IN POSSESSION. notice in writing of his intention so to do, subject to the landlord's right to purchase the same by valuation in the manner provided by the act. This act extends to farm buildings cither detached or otherwise, and to engines and machinery, either for agricultural purposes or for the purposes of trade and agriculture, although built in or permanently fixed to the soil, so as the tenant making any such removal do not in anywise injure the land or buildings belonging to the landlord, or otherwise do put the same in like plio-ht and condition, or as good plight and condition as the same were in before the erection of anything so removed. A relaxation of the old rule has also been made in favour of the executors of a tenant for life, who appear to be allowed to remove fixtures set up by their testator for the purposes of trade or of ornament or domestic convenience. («i) But the rule of the common law still retains much of its force as between the devisee or heir of a tenant in fee simple and his executor or adminis- trator. Thus a tenant for years may remove ornamental chimney-pieces set up by him during his tenancy ;(r?) but if erected by a tenant in fee P^^^-, simple, they will pass with the house to the devisee *or heir.(o) '- So machinery employed in carrying on iron works or collieries may be removed by a lessee for years, if erected by him ; but if erected by a tenant in fee simple, such machinery, even though removable with- out injury to the freehold, will belong to the heir or the devisee of the land.(p) However it seems that pier glasses, fixed by nails, and not let into panels, and hangings fastened up for ornament, will now belong to the executor or administrator of a tenant in fee simple as part of his personal estate.(9')* (m) Lawton v. Lawton, 3 Atk. 14. See D'Eyncourt v. Gregory, M. R , 36 Law Journ. N. S. 107; L. Rep., 3 Eq. 382. («) Bishop V. Elliot, Ex. Ch. 1 Jur. N. S. 962; 24 Law J. Exch. 229; 11 Ex. Rep. 113. (o) Dudley v. Warde, Amb. 113. (p) Fisher v. Dixon, 12 CI, & Fin. 312. {q) Cave v. Cave, 2 Vern. 508 ; Squire v. Mayor, 2 Eq. Ca. Abr. 430, pi. 7 ; s. c. 2 Freem. 249. Mn New York, by the Rev. Stat., the ex- Ellenborough divided the questions re- ecutor is put on the same footing as the specting the right to what are ordinarily tenant, as to the right to fixtures : House called fixtures into three classes — 1st, V. House, 10 Paige 163. those arising between different descriptions The law of fixtures has, in derogation of repre.sentatives of the same owner of of the original rule of the common law, the inheritance, viz., the heir and execu- which subjected everything affixed to the tor, in which case the rule obtains with freehold to the law governing the freehold, most rigor in favour of the inheritance, and made the right of removing fixtures the against the right to disannex therefrom, general rule instead of the exception: 2 and to consider as a personal chattel, any- Kents Comment, p. 343. In the leading thing which has been affixed thereto. 2d, case of Elwes v. Mawe, 3 East 38, Lord between the executors of tenant for life or OF CHATTELS WHICH DESCEND TO THE HEIR. 16 Where fixtures are demised to a tenant along with the house, mill or other building in which they may happen to be, the property in the fix- in tail, and the remainderman or rever- sioner, in which case the right to fixtures is considered more favorably for the ex- ecutor. 3d, between landlord and tenant, in which in favour of trade and to encourage industry, the greatest latitude and indul- gence has been allowed in favour of the claim of the tenant, to have particular articles considered asjjersonal chattels, as against the owner of the freehold, although in the case last referred to, the rule laid down was held to apply as between land- lord and tenant, only to the case of fixtures set up for trading purposes, and not to ex- tend to agricultural ones ; the tendency has been both in this country and in Eng- land to extend it to the latter also, and to treat the occupation of agriculture as a trade: Lawten v. Lawten, 3 Atk. 113; Dudley v. Warde, Amb. 13 ; in which last case Lord Hardwicke appears to have considered the privilege in question as be- longing to fixtures, by means of which the owner, a tenant for life, carried on a species of trade, by which he rendered the produce of his own land available to his own profit. See also, Penton v. Robart, 2 East 91 ; Mansborough v. Maton, 4 A. & E. 884; R. v. Ottey, 1 B.-& Aid. 161; Whiting v. Braston, 4 Pick. 310; Holmes v. Tremper, 20 Johns. 29; Waterfall v. Penistone, 37 Eng. L. & Eq. 156 ; McGreary v. Osborne, 9 Cal. 119 ; Crane v. Brigham, 3 Stockt. (N. J.) 29; Van Ness v. Pacard, 2 Pet. U. S. 137. This last case was a question be- tween landlord and tenant. The defend- ant, the tenant, had erected a wooden dwelling-house, two stories high in front, with a shed of one story, a cellar of stone or brick foundation, and a brick chimney. The defendant and his family dwelt in the house from its erection until near the ex- piration of the lease, when he took the same down and removed all the materials. The defendant was a carpenter, and he gave evidence that upon obtaining the lease he erected the building above men- tioned, with a view to carry on the busi- ness of a dairyman, and for the residence of his family and servants engaged in his said business ; and that the cellar, in which there was a spring, was made and exclusively used for a milk-cellar, in which the utensils of his said business were kept, and scalded, and washed, and used ; and that feed was kept in the upper part of the house, which was also occu- pied as a dwelling for his fiiraily. The de- fendant also had his tools and apprentices in the house, and carpenter work was done there. He had also built a stable for his cows, of plank and timber fixed upon posts fastened into the ground ; which stable he removed with the house, before the expira- tion of his lease. It was held, that he had a right to remove these structures, as they had been erected for the accommodation and beneficial operation of trade. The strict rule as to fixtures which ap- plies between heir and executor, also applies as between vendor and vendee, and mortgagor and mortgagee : Winslow V. Merchants' Insurance Co., 4 Mete. 306 ; Preston v. Briggs, 16 Vermont 124; Miller v. Plumb, 6 Cowen 665; Hare v. Herton, 2 Neville & Manning 428; Pyle v. Pennock, 2 Wat. & Serg. 396, even when affixed to the freehold after the mortgage was executed : CuUwick v. Swindell, Law R. 3 Eq. 249, The same rule applies in favour of one claiming fixtures under an execution as real estate: Goddard v. Chase, 7 Mass, 432; Voorhis v. Freeman, 2 Wat. & Serg. 116; Baker v. Davis, 19 N. H. 325 ; Murdock V. Harris, 20 Barb. 407 ; Harkness v. Sears, 26 Ala. 493 ; Gardner v. Finley, 19 Barb. 317; Walmsley v. Milne, 7 C. B. N. S. 115. But, when a tenant is en- titled to remove them from the freehold and treat them as personalty, the same right may be exercised as against the owner of the freehold, by an assignee or an exe- cution creditor : Lemar v. Mills, 3 Watts 232 ; Doty v. Gerham, 5 Pick. 487 ; 17 S. & R. 413; Hey v. Bruner, 61 Penn, St. 87. 16 OF ClIOSES IN POSSESSION. tures still remains in the laiullorJ, subject to tlie tenant's riglit to the possession and use of them during his term ;(r) and if they should be severed from the building by the tenant or any other person, or should be separated by accident, the landlord will acquire an immediate right to the possession of them.(s) In this respect they are subject to the same rules as timber, which, as we shall see, is equally a part of the inheri- tance until severed, and when cut becomes the personal property of the owner of the fee. Fixtures, which would descend with the house or building to the heir of the owner of the fee on intestacy, arc not in fact his goods and chattels properly so called.(f) Chattels vegetable consist, as their name imports, of moveable articles of a vegetable origin, such as timber, underwood, corn and fruit. All r*-j7-i these articles, so long *as they remain unsevered from the land, arc for many purposes considered as part of it ; and they will pass by a conveyance or devise of the land without express mention. (w) If, however, the trees should be expressly excepted out of the conveyance, they will remain the personal property of the grantor, although severed only in contemplation of law ;(i') and in like manner the trees alone may be granted by a tenant in fee simple, and will then form the personal property of the grantee, even before they are cut down. (3/) But if a tenant of lands in fee simple should die without having sold or devised them,(2) the law then draws a distinction between such vegetable pro- ducts as are the annual results of agricultural labour, and such as are not. The former class are called by the name of emblements,^ and the right to reap them belongs to the executor or administrator of the deceased in exclusion of the heir;(a) whilst the latter class descend to the heir along with the land.^ The reason of the distinction appears to be, that as (r) Boydell v. M'Michael, 1 Cro. Mee. & Rose. 177 ; Hitchmaa v. Walton, 4 Mee. & Wels. 409. (s) Farrant v. Thompson, 5 Barn. & Aid. 826 (E. C. L. R. vol. 7). {i) Winn v. Ingilby, 5 Barn. & Aid. 625 (P]. C. L. R. vol. 7). {u) Cora. Dig. tit. Biens (H). (x) Herlakenden's Case, 4 Rep. 6.3 b. \y) Wentworth's Office of an Executor, 14th ed. 148 ; Williams on Executors, pt. 2, bk. 2, ch. 2, sect. 2. (z) As to a devisee, see Rudge v. Winnall, 12 Beav. 357 ; Cooper v. Woolfit, 2 Hurl. & Norm. 122. {a) Com. Dig. tit. Biens (G). ^ From the Norman word emblear — to would pay him its value : Roberts v. Bar- sow, ker, 1 C. & M. 809; Gibbons on Dilapi- » In England, it would appear that the dations, 76. But in this country, in sev- outgoing tenant of a farm, has a right to eral instances it has been held, that manure take away the manure, unless the landlord made on a farm is not only an appurtenance OF CHATTELS WHICH DESCEND TO THE HEIR. 17 annual crops are mainly the result of labour incurred at the expense of the owner's personal estate, his personal estate ought to reap the benefit of the crop which results. (6) Accordingly crops of corn, and grain of all kinds, flax, hemp, and everything yielding an artificial annual profit produced by labour, belong to the executor or administrator, as against the heir ; whilst timber, fruit trees, grass, and clover, which do not repay within the year the labour by which they are produced, belong to the heir as part of the land. ((?) The right to *emblements also be- r>|c-iD-| longs to the executor or administrator of a tenant for life,(t^) and to a tenant at will if dismissed from his tenancy before harvest.(e)^ The (i) Wentworth's Office of an Executor, 14th ed. 147. (c) See Graves i\ Weld, 5 Barn. & Add. 105 (E. C. L. R. vol. 27) ; s. c. 2 Nev. & Man. 725. (d) Principles of the Law of Real Property, 24, 2d ed. ; 25, 3d & 4th eds. ; 27, 5th, 6th, 7th and 8th eds. (e) Ibid. p. 310, 2d ed. ; 325, 4th ed. ; 336, 5th ed. ; 353, 6th ed. ; 360, 7th ed. ; 376, 8th ed. of the realty, which passed with a convey- ance of the land from the grantor to the grantee, but that it is so inseparably inci- dent to the freehold, that it forms an ex- ception to the usual rule as to fixtures, and cannot be removed by an outgoing tenant at the end of his term : Lassell v. Reed, 6 Greenl. 222 ; Middlebrook v. Corwin, 15 Wendell 169; Daniels v. Pond, 21 Pick. 367: Kitteridge v. Wood, 3 N. Hamp. 503; Parsons v. Campbell, 11 Conn. 525 ; Goodrich v. Jones, 2 Hill 142 ; Lewis v. Jones, 9 Penn. Leg. Intel. 18 ; Wain V. O'Connor, Id. 67 ; Harrington v. Justice, 4 Id. 289 ; Lewis v. Jones, 17 Penn. St. 262 ; Plumer v. Plumer, 10 Foster 558. In New Jersey, it has been re- garded as personal property until spread upon the ground : Ruckman v. Outwater, 4 Dutch. 581. ^ It is a doctrine of the common law, that where a tenant sows the land, with the expectation of gathering the harvests, no sudden and unlooked for termination of his estate, either by the act of God or the act of the lessor, shall deprive him or his representatives, of the fruit of his labour; but if the tenant's interest is to determine at a fixed time, or if he by his own act has brought his lease to a con- clusion, he cannot claim the profits, for it is by his own folly that he has sowed that which he could not reap. This doctrine of the emblements, as it is called, is pretty generally received in the United States, it having been held, that where the lease is to expire at a fixed time, or is terminated by the act of the lessee, he is not entitled to the emblements: Hawkins v. Skegg, 10 Hump. 31; Harris v. Carson, 7 Leigh 632; Debow v. Colfax, 5 Halst. 128 Kitteridge v. Woods, 3 N. H. 504 Whitmarsh v. Cutting, 10 Johns. 360 Bain v. Clark, Id. 424. On the other hand, where the estate is of an uncertain termination, and it is suddenly concluded by the act of God or that of the lessor, the lessee or his legal representatives, may claim the emblements: Comfort v. Dun- can, 1 Miles 229; Davis v. Thompson, 13 Maine 209; Sherburne v. Jones, 20 Id. 70; Davis v. Brockenbank, 9 N. H. 73; Debow v. Colfax, 5 Halst. 128; Kitteridge v. Woods, 3 N. H. 504 ; Rising et al. V. Stannard, 17 Mass. 287; Stewart V. Doughty et als., 9 Johns. 108 ; Weem's Exec. V. Bryan et ux., 21 Ala. 303; Bennett v. Bennett, 34 Id. 53. And in several of the States there are statutory provisions on this subject: Freeman v. Tompkins, 1 Strob. Eq. 53 ; Gage v. Rogers, Id. 370; Thompson v. Thompson, 18 OF CHOSES IN POSSESSION. claims of tenants at rack rent, whose tenancies may determine by the death or cesser of the estate of tenants for life, or for any other uncertain interest, are now provided for by a recent enactment, giving the tenants at rack rent a right to continue to hold until the expiration of the current year of their tenancy.(/) (/) Stat. 14 & 15 Vict. c. 25, s. 1. See Principles of the Law of Real Property, p. 25, 3d & 4th eds. ; 27, 5th, Gth, 7th and 8th eds. 6 Munf. 514; Green v. Cutwrlght, Wright 738. In Pennsylvania, New Jersey, and Delaware, the local custom which pre- vails in certain parts of England, of allowing all tenants a way going crop, has been adopted as the law of those States. Under it, the tenant is entitled to his "waygoing crop," even though his estate may have been limited to expire at a fixed time, as, for example, at the end of one year: Demi v. Bossier, 1 Penn. 224; Stultz V. Dickey, 5 Binn. 285 ; Carson v. Blazer, 2 Id. 475 ; Briggs et als. v. Brown, 2 S. & R. 14 ; Rank v. Rank, 5 Penn. St. 213; Craig v. Dale, 1 W. & R. 509; Forsythe v. Price, 8 Watts 282 ; Id- dings V. Nagle, 2 W. & S. 22 ; Comfort V. Duncan, 1 Miles 229 ; Deaver v. Rice, 4 Dev. & Bat. 431; Diffendorfer v. Jones, cited 5 Binn. 289; Van Doren t'. Everitt, 2 South. 460 ; Templeman v. Biddle, 1 Barring. 522 ; Borrell v. De- wart, 37 Penn. St. 134; the principle of which decisions may be gathered from the words of C. J. Tilghman, in the case of Shultz V. Dickey, where he says that "In the nature of the thing, it is reason- able, that where a lease commences in the spring of one year, and ends in the spring of another, the tenant should have the crop of winter grain sown by him the autumn before the lease expired, other- wise he pays for the land one whole year without having the benefit of a winter crop." But the " way going crop," is the crop of wheat which is sown in the autumn and reaped the following summer, and never that crop of wheat which is sown in the spring of the year: Demi v. Bossier, 1 Penn. 224; Howell v. Schenck, 4 Zabr. 89. But the right of the tenant to his " way going crop," or to his emblements, may be defeated by a sale of the premises under a judgment or mortgage against his land- lord, the lien of which is anterior to the lease : Pitts v. Hendrix, 6 Geo. 452 ; Gillett V. Balcom, 6 Barb. S. C. 370 ; Jones V. Thomas, 8 Blackf. 428; Shepard v. Philbrick, 2 Denio 174 ; Lane v. King, 8 Wend. 584 ; Crews v. Pendleton, 1 Leigh 297 ; King v. Fowler, 14 Pick. 238 ; Howell v. Schenck, 4 Zabr. 89 ; but see to the contrary, Cassily v. Rhodes, 12 Ohio 88, which decides that a lessee is entitled to the emblements as against a purchaser of lands sold under a decree of foreclosure: Houts v. Showalter, 10 Ohio N. S. 124; and see also Miller v. Clem- ent, 40 Penn St. 484 ; and Bittinger v. Baker, 29 Id. 66, overruling Sallade v. James, 6 Id. 144; Groflf v. Levan, 16 Id. 179. But it has been held that where lands are devised, the growing crops on the land will go to the devisee, and not to the executor, unless a contrary intention is expressed in the will : Budd V. Hiler, 3 Dutch. 43; Shafner v. Shaf- ner, 5 Sneed 94. As between the suc- cessful plaintiff", in an action of eject- ment and the evicted defendant, they are a part of the realty : Altes v. Hinckler, 36 111. 275. The doctrine of emblements dees not apply to the public lands of the United States : Boyer v. Williams, 5 Mo. 335 ; Rasor v. Quails, 4 Blackf. 286. For further on the subject of emble- ments, see Foster v. Fletcher, 7 Mon. 534 ; Green v. Cartwright, Wright 738 ; Humphries v. Humphries, 3 Ired. 362; Evans v. Inglehart, 6 G. & Johns. 190 ; Singleton v. Singleton, 5 Dana 92 ; Toby V. Reed, 9 Conn. 225 ; Moorhead v. Snyder, 33 Penn. St. 251 ; Walmsley v. Milne, 7 C. B. N. S. 115; ReiSv. Reiff, 64 Penn. St. 134. OF CHATTELS WHICH DESCEND TO THE HEIR. 18 When lands are let to a tenant for years or for life, if no exception is made of the timber, the property in the timber will still remain in the owner of the inheritance, subject to the tenant's right to have the mast and fruit growing upon it, and the loppings for fuel, and the benefit of the shade for his cattle.(^) Accordingly all fruit which maybe plucked, or bushes or trees, not being timber, which may be cut or blown down, will belong to the tenant ;(A) but timber trees, which may be cut or blown down, will immediately become the property of the owner of the first estate of inheritance in the land, whether in fee simple or in tail.(e') Timber trees are oak, ash, and elm in all places ; and in some particular parts of the* country, by local custom, where *other trees are r*-(Q-| generally used for building, they are for that reason considered as timber. (^) But if the tenant should be a tenant witliout impeachment of waste (sine impetitione vasti), timber cut down by him in a husband- like manner will become his own property when actually severed,(Z) but not before ;{m) for the words "without impeachment of waste" imply a release of all demands in respect of any waste which may be committed. (w) If, however, the words should be merely without being imj^leaded for waste, the property in the trees when cut would still remain in the land- lord, and the action only would be discharged, which he might otherwise have maintained against the tenant for the waste committed by the act of felling the timber. (o) Animals /groB natures, or wild animals, including game, are exceptions from the rules which relate to other movables, on the ground that until they are caught there is property in them. If therefore the owner of land in fee simple should die, the game on his land, or the fish in any river or pond upon the land, will not belong to his executor or administrator(j3.) And if a man should have a park or warren, he has no true property in the deer, conies, pheasants, or partridges ; but they belong to him only (ff) Lilford's Case, 11 Rep. 48 b. (h) Channon v. Patch, 5 Barn. & Cress. 897 (E. C. L. R. vol. 11) ; s. c. 8 Dow. & Ry. 651 ; Berriman v. Peacock, 9 Bing. 384 (E. C. L. R. vol. 23) ; s. c. 2 Moo. & Scott, 524 ; Pidgley v. Rawling, 2 Coll. 275. (i) Herlakenden's Case, 4 Rep. 63 a. ; Whitfield v. Bewitt, 2 P. Wms. 240 ; 3 P. Wms. 268; Lushiugton v. Boldero, 15 Beav. 1. See, however, Earl Cowley v. Wellesley, M. R., 1 Law Rep. Eq. 656, qu. ? {k) 2 Black. Com. 281. (l) Lewis Bowles' Case, 11 Rep. 82 b. See Principles of the Law of Real Property, 23, 2d ed. ; 24, 3d & 4th eds. ; 25, 5th, 6th, 7th and 8th eds. (to) Cholmeley v. Paxtou, 3 Bing. 207 (E. C. L. R. vol. 11) ; 10 Barn. & Cress. 564 (E. C. L. R. vol. 21). (n) 11 Rep. 82 b. (o) "Walter Idle's Case, 11 Rep. 83 a. '{j}) Co. Litt. 8 a; The Case of Swans, 7 Rep. 17 b. 19 OF CHOSES IN POSSESSION. ^^ ratione privilegii ^or his game and pleasure so long as they remain in the privileged place "(. Winchester, 11 Vt. 351 ; Coffin v. Anderson, 4 Blackf. 395; Cook v. Patterson, 35 Ala. 102; Jeffries v. Great Western R. R. Co., 34 Eng. L. & Eq. 122. But not as against the real owner: Sylvester v. Girard, 4 Rawle 185. The finder of a chattel may maintain trover for it : Clark v. Mallory, 3 Marring. 68. Trover may be maintained against a stranger, upon a mere prior possession obtained by a purchaser of chattels, under a void execution: Duncan v. Spear, 11 Wend. 54. But where a chattel is con- verted by a bailee, who sells or leases it without authority, the bailor vany main- tain trover for it, even against a vendee or lessee in good faith and without notice: Crocker v. GuUifer, 44 Maine 491. OF TROVER, BAILMENT AND LIEN. 26 already proceeded, -we have found nothing more than a simple property in goods, existing with or without the right of possession. The action of trover tries the right of possession, and may or may not determine the property. For, strange as it may appear, there is no action in the law of England by which the property either in goods or lands is alone decided. 2. But the article in question, instead of being lost and found, may become the subject of bailment. Bailment is defined by Sir William Jones, in his admirable and classical Treatise on the Law of Bailment,(m) to be a delivery of goods in trust, on a contract expressed or implied that the trusts shall be duly executed, and the goods redelivered as soon as the trust or use for which they were bailed shall have elapsed or be performed. The term bailment is derived from the French word bailler, to deliver. The person who delivers the goods is called the bailor ; the person to whom they are delivered the bailee. The trusts on which goods may be delivered are various. The principal are the following. They may merely be lent to a friend, or left in the custody *of a r^()n-, warehouseman or wharfinger, or they may be entrusted to a car- rier to convey to a distance, or to an agent or factor to sell ; or they may be pawned for money lent, with or without a power to sell them,(w) or let out to hire.(o) In all cases of bailment, however, the simple rule still holds, that the property in goods can belong to one party only ; and when any goods are bailed, the property still remains in the bailor.(jt?) The possession of the goods, however, is evidently for the time being with the bailee. But if, while goods are in bailment, a third person should be- come possessed of them, and should wrongfully convert them to his own use, the right to recover possession will in some degree depend upon the nature of the bailment. If the bailment should be what is called a simple bailment, as in the four first instances above mentioned, that is, a bailment which does not confer on the bailee a right to exclude the bailor from possession, in such a case either the bailee or the bailor may maintain an action of trover against the wrong-doer. (5')' The bailee may maintain this action, because (w) p. 117. (n) See Pigot v. Cubley, 15 C. B. N. S. 701 (E. C. L. R. vol. 109). (0) See Coggs v. Bernard, 2 Ld. Raym. 909-912. Ip) Franklin v. Neate, 13 Mee. & W. 481. {q) Nicholls V. Bastard, 2 C. M. & R. 659 ; Manders v. Williams, 4 Exch. Rep. 339. ' A. of Liverpool shipped goods, which, freight was payable in Liverpool, and it by the bill of lading, were to be delivered appeared that the goods were shipped on to D. or his assigns, in Philadelphia. The account of A. Held, that the bill of lading 27 OP CHOSES IN POSSESSION. the action depends only on the right to possession which the bailee has by virtue of the bailment made to him ;(r) and the bailor may also main- tain the action, because his property in the goods draws with it the right of possession, and the bailment is not of such a kind as to vest this right in the bailee solely. The bailee is rather in the situation of servant to the bailor, and the possession of the one is equivalent in construction of law to the possession of the other. But as it would be unjust that the wrong-doer should *pay damages twice over for his oftence, the L J recovery of damages either by bailee or bailor deprives the other of his right of action.(s) If, however, the bailment should not be of the simple kind, but should confer on the bailee the right to exclude the bailor from the possession, here, though the property in the goods still remains in the bailor, the bailee alone can maintain an action of trover against any person who may have taken the goods and converted them to his own use. Thus the pawnee or hirer of goods can alone maintain an action of trover so long as the pawning or hiring continues. (^) Here again we have the property in the goods still vested in one person, the bailor, drawing with it, in the case of simple bailment, the right to the possession, and in the case of other bailments, temporararily disconnected from that right. If however, any bailee, whatever be the nature of his bailment, should convert the goods bailed to him to his own use, he will by that act have determined the bailment : the property in the bailor will draw to it the right to immediate possession, and the bailor may accordingly recover damages for the act by an action of trover. (w) 3. The last case requiring notice in which goods may be in the posses- sion of a person who has no property in them, is the case of the existence of a lien on the goods. A lien is the right of a person in possession of goods to retain them until a debt due to him has been satisfied.(w) A lien is either particular or general. A particular lien is a right to retain (r) Sutton V. Buck, 2 Taunt. 202. (s) Bac. Abr. tit. Trover (C.) {t) Gordon v. Harper, 7 T. R. 9 ; Burton v. Hughes, 2 Bing. 173 (E. C. L. R. vol. 9) ; Ferguson v. Cristall, 5 Bing, 305 (E. 0. L. R. vol. 15) ; Pain v. Whitaker, Ry. & Moo. 99. (m) Cooper v. Willomatt, 1 C. B. 672 (E. C. L. R. vol. 50) ; Johnson v. SLear, 15 C. B. N. S. 330 (E. C. L. R. vol. 109) ; Pigot v. Cubley, 15 C. B. N. S. 701, (E. C. L. R. vol. 109). {v) 2 East 235 ; 2 Rose 357 ; Smith's Compendium of Mercantile Law 534, 5th ed. ; 563, 6th ed. vested the property in B., who might carriage of the goods : Griffith t>. Ingledew, maintain an action in his own name against 6 S. & R. 429. the owner of the ship, for the negligent OF TROVER, BAILMENT AND LIEN. 28 [*29] the particular goods in *respect of wliicli the debt arises. A general lien is a right to retain goods in respect of a general balance of an account. The former kind of lien is favored in law ; but the latter, having a- tendency to prefer one creditor above another, is taken strictly. (a:) A particular lien is given by the common law over goods which a person is compelled to receive; thus carriers(^) and inn- keepers(2) have a lien on the goods in their care; although an innkeeper cannot detain his guest's person, or take his coat off his back, to secure payment of his bill.(a) A particular lien is also given by law to every person who by his labor or skill has improved or altered an article in- trusted to his care : thus a miller has a lien on the flour he has ground for the cost of grinding :{b) and a shipwright has a lien on a ship in- trusted to him to repair for the costs of repairing it.(c)^ So a lien may (x) 3 Bos. & Pul. 494. (y) Skinner v. Upshaw, 2 Lord Raym. 752. (z) Thompson v. Lacey, 3 B. & Aid. 283 (E. C. L. R. voL 5). (a) Sunbolf v. Alford, 3 M. & W. 248. The lien of innkeepers on the goods of their guests is now regulated by stat. 26 & 27 Vict. c. 41. (6) Ex parte Ockenden, 1 Atk. 235. (c) Franklin v. Hosier, 4 B. & Aid. 341 (E. C. L. R. vol. 6). 1 By the ciyil law, and the general ad- miralty law, material-men have a lien upon the vessel : Domat's Civil Law, book 3, tit. 1, sec. 5. But by the common law of England, which is binding on the Admiralty Court, those who build, repair or supply a domes- tic vessel, have no lien upon the vessel herself, except the common law lien of the mechanic, arising from his mere possession, and only coextensive with such possession : Franklin v. Hosier, 4 B. & A. 341 ; The Neptune, Cumberlege, 3 Harr. 136, 139 ; Bland, Ex parte, 2 Rose 91 ; The Harmonic, 1 W. Rob. 178 ; Raitt v. Mitchell, 4 Camp. R. 146; The Browmina, 1 Dodson 235; The Alexander, Id. 280; The Zodiac, 1 Harr. 325; The Vibilia, 1 W. Rob. 6; Buxton V. Snec, 1 Vesey 154; Hoare v. Clement, 2 Show. 338. But under the general admiralty law in England, this country, and elsewhere, me- chanics, material-men, and others, doing work on, or furnishing materials, or sup- plies for a foreign vessel, have a lien on such vessel, without any limit as to its duration in point of time : Justin v. Ballam, Salk. 34 ; Ex parte Shank and others, 1 Atk. 234; "Wilkins d. Carmichael, 1 Doug. 101 ; Witkinson v. Bernardistson, 2 Wms. 367 ; Ex parte Halket, 3 Ves. & B. 135 ; 2 Rose 1,94, 228 ; The Ship Fortitude, 3 Sumner 228; The Brig Nestor, 1 Id. 74, 79 ; The Siihooner Marion, 1 Story C. C. 68 ; Reed v. The Hull of a New Brig, Id. 246 ; Buddington v. Stewart, 14 Conn. 404 ; Davis v. A New Brig, 1 Gilpin 473 ; The General Smith, 4 Wheat. 438 ; Shrewsbury v. The Sloop Two Friends, Bee's Adm. 433 ; Gardner v. The Ship New Jersey, 1 Peters Adm. 22, 23 ; The Jerusalem, 2 Gallis. 345 ; The Yoang Mechanic, 2 Curtis C. C. 404 ; Monsoon, Sprague's Decs. 37 ; Perkins v. Pike, 42 Maine 141; The Active, Olcott Adm. 271 ; The Tackle, &c., of the America, 1 Newb. Adm. 195 ; and liens existing by the maritime law of foreign jurisdic- tions can be enforced here, though all parties are foreigners : The Maggie Ham- mond, 9 "Wall. U. S. 435. Whether a vessel is domestic or foreign depends upon the residence of her owners : The Golden Gate, 1 Newb. Adm. 308 ; and vessels belonging to one State, when in the ports of another, are deemed foreign : The 29 OF CHOSES IN POSSESSION. be claimed for training a horse, because he is improved by the labor and skill thus bestowed upon him ;(fZ) but no lien can arise merely for (d) Beran v. Walters, 1 Moo. & Mai. 236. Chusan, Sprague's Decs. 39. Although there is no fixed time within which this lien must be enforced, jet it may be lost by negligence or delay, and when the rights of third parties are compromised, courts of admiralty will require vigilance in parties who seek their aid, and will not the rivers Alleghany, Monongahela 569. In Pennsylvania, the lien continues until the vessel shall have proceeded on the voyage next after the work done, or materials furnished, and no longer: Pur- don's Dig. (1861), p. 62 ; and by an act of the 20th of April, 1858, vessels navigating sit to enforce stale and dormant claims The Eastern Star, Ware 186, 212; Pack- ard V. The Louisa, 2 Wood. & M. 48 ; The Mary, 1 Paine 180 ; The Margaret, 3 Harr. 238; The Nestor, 1 Sumner 71 ; Ex parte Foster, 2 Story 145 ; The Rebecca, Ware 212 ; Lillie Mills, Sprague's Decs. 307. The regular sale of such property, under a decree of the court, gives a good title against all the world, and where the pro- perty was affected by a lien, the proceeds are still affected by it in whosesoever hands they maybe: Benedict's Adm. 309; Gil- pin 189, 549 ; Gardner v The Ship New Jersey, 1 Peters Adm. 223 ; The John, 3 Rqb. 288, and so of a sale made in good faith by the master in a foreign port, and with a necessity for it : The Amelia, 6 Wall. U. S. 18. But it has been held that the sale of a steamboat by the order of court in Illinois, would not prevent a citizen of Missouri, from enforc- ing against the boat in the hands of the Ohio, are made liable to a like lien, pro- vided suit shall be commenced on said lien within two years after the work is done, or materials furnished : Id. p. 64 ; but "barges" are neither ships, boats or vessels within the meaning of these acts ; Nease's Ap., 3 Grant 110. In New York it ceases at the expira- tion of six months after the debt was con- tracted, unless the vessel shall be then absent from the port where it was con- tracted, when it shall continue until ten days after the return of the vessel to the said port ; but said lien shall cease when said vessel leaves port, unless within twelve days thereafter, the person having such claim shall cause sworn specifications thereof to be filed : 4N. Y.Revis. Stats. 651, s. 2 ; the debt, however, must amount to fifty dollars or upwards for sea going vessels, and fifteen dollars for other vessels. But as to vessels navigating the western and northwestern lakes, the lien ceases at six months after the first day of January next purchaser his lien created by the laws of succeeding the time when such debt was contracted, unless during said six months, said vessel shall be absent from port, in which case the lien shall continue for ten days after the vessel's return, but in order that the lien may subsist, specifications as aforesaid must be filed before the first Tuesday of February next after said debt was contracted : 6 N. Y. Stats, at Large, p. 151, chap. 422. In New Hampshire, it exists for four days after the work is completed : Gen. Stats, of N. H. p. 261. sec. 9; in Florida, 30 days; Thompson's Dig. 412. In New Jersey, debts of twenty dollars and up- wards, for work and materials, are made liens for the period of nine months. Nix. Missouri : Phegley v. David Tatum, 33 Mo. 461. Captures j'we belli, however, override all previous liens : The Battle, 6 Wall. U. S. 498. In many of the states of this country, mechanics and material-men have by posi- tive statutory enactment, a lien on domes- tic vessels for work done on or materials furnished for such vessel : Grose's Stats. 111. (1869) p. 39 ; 2 Garvin k Hord's Stats, of Indiana, p. 301 ; Louisiana, Civil Code, Art. 2748. A similar law exists in Mis- souri and in Maine, though the lien only continues for four days from the time the work was completed or materials fur- nished: Revis. Stats. Maine (1857), p. OF TROVER, BAILMENT AND LIEN. 29 his keep,(e) unless he has been kept by an innkeeper, who is compelled to take him in,(/)^ A lien on goods is not sufficient to warrant the sale of them,(^) nor does it authorize the possessor to charge for their stand- ing.(A) A particular lien also arises in the case of salvage, or rescuing a ship *or its lading from the perils of the sea or the queen's r^oA-i enemies, for the trouble and risk incurred ;(^) but this kind of .lien has been modified by the Merchant Shipping Act, 1854, which pro- vides for the appointment of public receivers of all wreck, into whose hands any person, not being the owner, who finds or takes possession of any wreck, is bound to deliver it as soon as possible.(y) The lien of a shipowner for freight is now regulated by the Merchant Shipping Act Amendment Act, 1862. (A;) A general lien, when it does not arise by express contract, or from a contract implied by the course of dealing between the parties,(^) accrues in consequence of the custom of some trade or profession ; and it may be local also, that is, confined to some particular place.(m) It obtains in many trades, such as wharfingers,(n) dyers,(o) calico printers,(j9) fac- (e) Wallace v. Woodgate, 1 Ry. & Moo. 293. See Sanderson v. Bell, 2 Cro. & Mee. 304, 311 ; 4 Tyr. 244, 252. (/) Johnson v. Hill, 3 Stark. 172 (E. C. L. R. vol. 3) ; Allen v. Smith, 12 C. B. N. S. 638 (E. C. L. R. vol. 104), affirmed in Ex. Ch., 9 Jur. N. S. 1284, 11 W. R. 440. (ff) Thames Iron Works Company v. Patent Derrick Company, 1 John. & H. 93. [h) British Empire Shipping Company v. Somes, 1 E. B. & E. 353 (E. C. L. R. vol. 96). (t) Hartford v. Jones, 1 Lord Raym. 393 ; Baring v. Day, 8 East 57. (j) Stat. 17 & 18 Vict. c. 104; amended by stats. 18 & 19 Vict. c. 91 ; 24 Vict. c. 10, and 25 & 26 Vict. c. 63. (k) Stat. 25 & 26 Vict. c. 63, ss. 66, 7%. (i) Simond v. Hibbert, 1 Rus. & Myl. 719. (m) Holderness v. CoUinson, 7 B. & C. 212 (E. C. L. R. vol. 14). (w) Naylor v. Mangles, 1 Esp. 109. (o) Savill V. Barchard, 4 Esp. 53. See, however, Close v. Waterhouse,6 East 523, n. Ip) Weldon v. Gould, 3 Esp. 268. Dig. (1868), p. 576. In Massachusetts, the state authorizes a sale under the terms of lien may be for any amount, and will con- the act, to satisfy the lien of livery-stable- tinue until the debt is paid : Gen. Stats, keepers and innkeepers : Purd. Dig. 536. Mass. (1860), p. 768. But these liens are A power of selling goods, wares, merchan- generally postponed to the claims of dise or other property, for the satisfaction mariners for wages. of their liens, for the costs or expenses of 1 In Pennsylvania a livery-stable keeper carriage, storage or labor bestowed on has a lien for the keep of a horse : Young the same, is likewise given to commission V. Kimball, 23 Penn. St. 193; and so has merchants, factors and all common car- a groom for his feed, keep, and shoeing: riers, by an act of the legislature of that 52 Id. 522; and the statute law of that State: Purd. Dig. Suppl. 1344. 30 OF CHOSES IN POSSESSION. tors,((?y policy l)rokers,(r) and banlvers,(«) and perhaps also common carriers. (^) Solicitors and attorneys have also a lien on all the deeds and documents of their clients in their possession for their professional charo-es f^enerallv :(u) but this doctrine *is to be taken in connec- -1 tion with the peculiar nature of title deeds, which being the sinews of the land, follow the seisin of it^ and may therefore be held by the client only for a limited interest. Thus, if a tenant for life should leave the title deeds of the land in the hands of his solicitor, the lien of the solicitor for his professional charges would be coextensive only with his client's interest, and on the client's decease the solicitor would be bound to deliver up the deeds to the remainder-man, although his charges {q) Houghton v. Matthews, 3 Bos. & Pul. 488; Cowell v. Simpson, 16 Ves. 280. (r) Man v. Shiffner, 2 East 523. (s) Davis V. Bowsher, 5 T. R. 488 ; Brandao v. Barnett, 3 C. B. 519, 530 (E. C. L. R. Tol. 54). {i) See Rushforth v. Hadfield, 6 East 519 ; 7 East 224 ; Aspinall v. Pickford, 3 Bos. & Pul. 44, note. As to railways, see stat. 8 & 9 Vict. c. 20, s. 97. (m) Stevenson v. Blakelock, 1 Mau. & Sel. 535; Ex parte Sterling, 16 Ves. 258; Ex parte Pemberton, 18 Ves. 282. 1 A factor, is sometimes said to be one, who buys or sells upon commission, or as an agent for others : 3 Kent's Com. 622 ; but more strictly, the term is only applica- ble to a consignee for sale : Story on Agency, ? 111. At least, only such a fac- tor as is last described, has a lien for the general balance of his account against his principal, or, in other words, a general lien : Russell on Factors, 204, 212. In the year 1755, this right to a lien for the general balance of a factor's account, seems first to have been solemnly ad- judged in England, in the case of Kruger V. Wilcox, Ambler 252. Any agent or broker, however, has a particular lien upon the goods of his prin- cipal while in his possesssion. This lien, is a right to retain any article of his prin- cipal, for some charge or claim growing out of, or connected with, that identical thing ; such as for labor, or services, or expenses, upon it : Story on Agency, g 354. The liens above referred to, whether general or particular, are imi)lied by law, unless they have been waived by agree- ment. But the general lien of a factor proper is not favored by the law. Thus in Hough- ton V. Matthews, 3 Bos. & Pul. 485, it was held that a general lien did not attach, in respect to a debt which arose prior to the time of the commencement of the relation of principal and factor ; and there does not seem to be any authority for extending the lien over any property of the principal in the hands of the factor, other than that which has been consigned for sale by the fd!-mer to the latter, so as, for exanii)lc, to embrace goods purchased by the factor for his principal. See also Wilmerdiiig v. Hart, Hill & Denio 305. It has been held by Lord Ellenborough, at Nisi Prius, in Boardman v. Sill, cited 1 Camp. 410, note, that a factor or broker will lose his lien, if, when the property is demanded of him, he claims to retain it on a diiferent ground than that of the lien — making no mention of it ; but the correct- ness of this decision may well be doubted. But see White v. Gainer, 2 Bing. 23. But if a factor consent to a sale by the owner, or conceal from the purchaser his claim on the property, his lien is gone : Gragg V. Brown, 44 Maine 157. OF TROVER, BAILMENT AND LIEN. 31 might remain unpaid. (y) So if the client should be a mortgagee, the solicitor having the deeds would be bound to deliver them to the mort- gagor, on the reconveyance of the property'-, on payment to the mort- gagee of all principal and interest ; for on such reconveyance the mort- gagee ceased to have any interest in the lands. (a:) And in like manner if the client should be a mortgagor, the solicitor would have no right to retain the deeds as against the prior claim of the mortgagee :{y) and if the client should be a trustee, the deeds must be given up for the pur- poses of the trust. (4') This lien also -extends only to charges strictly professional,(a) and to documents in the possession of the attorney or solicitor in his professional character ;(5) but it has been held that such lien is assignable, together with the debt and documents, to a third per- son not a solicitor or attorney.(c) A mere certificated conveyancer has no general lien on the documents in his hands.(ossession of the goods. This right of possession enables the person who has been in possession by virtue of the lien to maintain an action of trover for the {v) Davies v. Vernon, 6 Q. B. 443, 447 (E. C. L. R. vol. 51). {x) Wakefield v. Newbon, 6 Q. B. 276 (E. C. L. R. vol. 51). (»/) Smith V. Chichester, 2 Dr. & War. .393; Blunden v. Desart, Id. 405; Pelly v. Wathen, 7 Hare 351 ; 1 De Gex, Mac. & Gord. 16. (z) Baker v. Henderson, 4 Sim. 27. (a) The King v. Sankey, 5 Ad. & Ell. 423 (E. C. L. R. vol. 31) ; Worrell v. Johnson, 2 Jac. k Walk. 218. (6) Champernown r. Scott, 6 Madd. 53 ; Balch v. Symes, T. & Russ. 87. (<•) Bull V. Faulkner, 2 De. G. & S. 772, aed qu. (d) Hollis V. Claridge, 4 Taunt. 807 ; Steadman v. Hockley, 15 m! & W. 553. (c) Stat. 23 & 24 Vict. c. 127, s. 28 ; Wilson v. Hood, 3 HuTlst. & C. 148 ; Haymes v. Cooper, 33 Beav. 431. 32 OF CHOSES IN POSSESSION. goods ;(f) but the property in the goods still remains Tvith the owner; and if the person having the lien should give up the possession of the goods, his lien will be lost;(^) the owner's property in them will draw to it the right of posesssion, and enable him to maintain an action of trover.(/0 *And if the person having the lien should take a security for his debt, payable at a distant day, his lien would on that account be lost, as it would be unreasonable that he should detain the goods till such future time of payment ;(0 and in this case also an action of trover may be maintained by the owner *of the goods, by virtue of the right t*^^^ of possession now accrued to him in respect of his property.(A;) When goods are taken under a distress for rent, the property in the goods still remains in the owner, until a sale is made pursuant to the statute(Zj by which a sale is authorized.(?«) In all the above cases of finding of goods, bailment, lien and distress, it appears clear, therefore, that the property in the goods is still simply vested in one party only, although the right to their immediate posses- sion may be in another party, and the actual possession possibly in a third. ( /•) Legg V. Evans, 6 M. & W. 36. [g) Kruges v. Wilcox, Amb. 254. (h) Sweet V. Pym, 1 East 4. («) Cowell v. Simpson, 16 Ves. 275. {k) Hewison v. Guthrie, 2 New Gas. T56, T59. {I) Stat. 2 Wm. & Mary, Sess. 1, c. 5, s. 2. (m) King v. England, 4 B. & S. 782 (E.-C. L. R. vol. 116). ♦CHAPTER III, [*34] OF THE ALIENATION OF CHOSES IN POSSESSION. Choses in possession have always been freely alienable from one person to another. The feudal principles of tenure, which in ancient times opposed the alienation of landed estates, could have no application to' the then insignificant subjects of personal property ; although the full right of testamentary disposition was not, as we shall hereafter see, enjoyed in early times. But, though the property in personal chattels may be freely aliened, it is impossible for a man to make a valid grant in law of that in which he has no actual or potential property, but which he only expects to have.^ A person who has an interest in land may 1 An agreement to sell a chattel which is in an unfinished state, to be delivered at a future time, when finished, is an execu- tory contract, upon which a present pro- perty does not pass, though an action will lie for a breach of the agreement : Pritchett V. Jones, 4 Rawle 2G0. When, there- fore, A. (a tanner in the country), on the 31st of July, 1828, in consideration of a pre-existing debt, contracted to sell to B. (a currier in the city), a quantity of hides and skins, then in the vats of the vendor, undergoing the process of tanning, but which were susceptible of immediale de- livery, and agreed to deliver them on or before the 12th of November following, some of them at fixed prices, and others at the market price, to be passed to the cre- dit of A., to settle his account, it was held, that no immediate property vested in B., and that the goods were liable to execu- tion as the property of A. ; notwithstanding that the transaction was an open one, and there was proof that it had long been the course of business, for curriers in the city to purchase leather of tanners in the coun- try while in process of manufacture, to be delivered when tanned, and that advances were frequently made on such purchases : Ibid. And to the same principle see Nes- bit V. Burry, 25 Penn. St. 208 ; Dickson v. Forsyth, 1 Grant 26 ; Andrews v. Dur- ant, 1 Kernan 35 ; Hewlet v. Flint, 7 Cal. 204 ; Pettengill v. Merrill, 47 Maine 109; Green v. Hall, 1 Houston (Del.) 506, 546. A sale is an executed contract, to con- stitute which delivery in fact, or in law, is indispensable, and it cannot be given of a thing which has not yet fully come into ex- istence : Winslow v. Leonard, 24 Penn. St. 14 ; Clemens v. Davis, 7 Id. 263. But, where a contract is made for the pur- chase of an article to be delivered when finished, and afterwards while the article is still in an unfinished state, the original contract is abandoned, and the purchaser agrees to take the article as unfinished, a delivery under the new contract is good as against an execution subsequently levied : Ibid. ; West Jersey R. R. Co. v. Trenton, &c., Co , 3 Vroom 517. A contract by a merchant to deliver hides to a tanner, to be charged at cost and five per cent, commission, and interest after six months, and when tanned to be returned to the merchant to be sold by him, and out of the sale the first cost and five per cent, to be deducted, and the balance to be paid to the manufacturer, is 34 OF CHOSES IN POSSESSION. grant all the fruit whicli may grow upon it hereafter. (a) So a grant of the next year's wool of all the sheep which a man now has is valid, because he has a potential property in such wool. (5) But a grant of the wool of all the sheep which a man ever shall have is vo\d.{c) And in the same manner the assignment of a man's stock in trade passes only such articles as are his property at the time he executes such assignment, and will not comprise any other articles which he may afterwards pur- chase ;{d) not even if the instrument of assignment should purport to convey all goods which should at any time thereafter be in or upon his dwelling-house. (c) The property in goods to be hereafter acquired *may however be effectually passed by an assignment thereof in L -' equity coupled with a license to seize them.(/) (a) Grantham v. Hawley, Hob. 132 ; Fetch v. Tutin, 15 M. & W. 110. (6) Per Pollock, C. B., 15 M. & W. 116. (c) Com. Dig. tit. Grant (D). (d) Taphill V. Hillraan, 6 M. & G. 245 (E. C. L. R. vol. 46) ; s. c. 6 Scott N. R. 967. (e) Lunn v. Thornton, 1 C. B. 379 (E. C. L. R.' vol. 50) ; Gale v. Burnell, 7 Q. B. 850 (E. C. L. R. vol. 53) ; Belding v. Read, Exch. 11 Jur. N. S. 547 ; 3 H. & C. 955. (/) Congreve v. Evetts, 10 Exch. 298 ; Hope v. Hayley, 5 E. & B. 830 (E. C. L. R. vol. 85) ; Allatt v. Carr, Exch. 6 W. R. 578 ; Chidell v. Galsworthy, 6 C. B. N. S. 471 (E. C. L. R. vol. 95) ; Holroyd v. Marshall, 10 H. of L. Cas. 191 ; 9 Jur. N. S. 213 ; Reeve v. Whitmore, L. C. 12 W. R. 113 ; 9 Jur. N. S. 1214 ; Brown v. Bateman, Law Rep. 2 C. P. 272 ; Blake v. Izard, C. P. 16 W. R. 108. such a sale, as will subject the hides to does not vest the property in B. : McCul- levy as the property of the manufacturer: lough v. Porter, 4 W. & S. 179. Pritchett v. Cook, 62 Penn. St. 193 ; Jen- A coal company agreed with a contrac- kins V. Eichelberger, 4 Watts 121. But tor, to sell him a scow-boat on the condi- see Hyde v. Cookson, 21 Barb. 92. tions expressed in the company's printed Where wheat was sent to a miller, upon regulations, one of which was, that the a contract that the sender might have the company would furnish its contractors same amount back again, or as much flour with boats for cash at cost, or on credit, as it would make, or the price thereof, the with interest, butthat the ownership should miller to mix that sent with his own ; it remain in the company till all the instal- was held that it was a sale to the miller : ments of the price were paid, when a bill Carlisle v. Wallace, 12 Ind. 255. And of sale should be made out ; the company see Dick v. Lindsay, 2 Grant's Cases 431. were to pay the tolls, and the contractor But a delivery of an article with the priv- to take freight from no other quarter, ilege of retaining it at a stated price, is not The boat still continued in the register of a sale, but a bailment: Camberlain v. the company; its original number being Smith, 44 Penn. St. 431 ; Rowe v. Sharp, painted in letters and figures on the stern, 51 Id. 26. and was in no way distinguishable from An agreement whereby goods are con- the other boats of the company. Held, signed by A. to B., to be sold at not less that the property did not pass as against than the invoice prices, the invoice prices creditors of the contractors, until the boat to be paid over to A., and that all the was paid for: Lehigh Co. v. Field, 8 W. & goods should sell for above those, to be re- S. 232. See also, Clough r. Ray, 20 N. taincd by B., and such portion of the H. 558. goods as remained to be returned to A., OF THE ALIENATION OF CHOSES IN POSSESSION. 35 The manner in which the alienation of personal chattels is effected, is in many respects essentially different from the modes of conveying real estate. In ancient times, indeed, there was more similarity than there is at present. The conveyance of land was then usually made by feoff- ment, with livery of seisin, which was nothing more than a simple gift of an estate in the land accompanied by delivery of possession. (^) This gift might then have been made by mere word of mouth •,{}i) but the Statute of Frauds(2') made writing necessary ; and now every conveyance of landed property is required to be by deed.(y) Personal chattels, on the contrary, are still alienable by mere gift and delivery ; though they may be disposed of by deed; and they are also assignable by sale^ in a manner totally different from the conveyance requisite on the transfer of real estate.^ Each of these three modes of conveyance deserves a sepa- rate notice. 1. And first, personal chattels are alienable by a mere gift of them, accompanied by delivery of possession. For this purpose no deed or writing is required, nor is it *essential that there should be a con- sideration for the gift. Thus, if I give a horse to A. B., and at L -■ the same time deliver it into his possession, this gift is complete and irrevocable, and the property in the horse is thenceforward vested in A. B.(A;) But if I purport to assign the horse, and yet retain the posses- sion, the gift, though made by writing (so that it be not a deed), is abso- lutely void at law,(^) and equity will give no relief to the donee.(m) It may, however, be observed, that if the donor should not attempt to part with the subject of gift, but should declare that he keeps possession of it in trust for the donee, equity will seize on and enforce this trust, although voluntarily created. (n) In some cases it is not possible to {g) See Principles of the Law of Real Property 113, 2d ed. ; 118, 3d & 4th eds. ; 121, 5th ed. ; 127, 6th ed. ; 130, 7th ed. ; 138, 8th ed. (A) See Principles of the Law of Real Property 117, 2d ed. ; 122, 3d & 4th eds. ; 128, 5th ed. ; 134, 6th ed. ; 137, 7th ed. ; 143, 8th ed. {i) Stat. 29 Car. II. c. 3, ss. 1, 2. {j) Stat. 8 & 9 Vict. c. 106, s. 3. [k) 2 Black. Com. 441. [l) Irons V. Smallpiece, 2 B. & Aid. 551 ; Miller v. Miller, 3 P. Wms. 356 ; Bourne V. Fosbrooke, 18 C. B.N. S. 515 (E. C. L. R. vol. 114). See also Shower v. Pilck, 4 Ex. Rep. 478. (m) Antrobus v. Smith, 12 Ves. 39, 46 ; Edwards v. Jones, 1 My. & Cr. 226 ; Dillon V. Coppin, 4 My. & Cr. 647, 671. (n) Ellison v. Ellison, 6 Ves. 656; Ex parte Dubost, 18 Ves. 140, 150; Vandenberg V. Palmer, 4 Kay & John. 204; Jones v. Lock, L. C. 11 Jur. N. S. 913, correcting Scales V. Maude, 6 De G., M. & G. 43, 51. 1 By the law of Pennsylvania, the title chattels, without a written bill of sale : to a ship, passes by actual sale and de- Weaver v. The Susan G.Owens, 1 Wall. Jr. livery, as in the case of other personal 366. 36 OF CHOSES IN POSSESSION. make an immediate and complete delivery of the subject of gift; and in these cases, as near an approach as possible must be made to actual de- livery ; and if this be done the gift will be effectual. Thus, if goods be in a warehouse, the delivery of the key will be sufficient ;(o) timber may be delivered by marking it with the initials of the assignee,(;>) and an actual removal is not essential to the delivery of a haystack.(^) But the delivery of a part of goods capable of actual delivery, is not a sufficient delivery of the whole.(?')^ (o) West V. Skip, 1 Ves. sen. 244; Ryall v. Rowles, 1 Yes. sen. 362; 1 Atk. 171; Ward V. Turner, 2 Ves. sen. 443. (p) Stoveld t'. Hughes, 14 East 308. (g) Chaplin v. Rogers, 1 East 190. See Young v. Matthews, Law Rep. 2 C. P. 127. (r) Per Pollock, C. B., 14 M. & W. 37, correcting a dictum of Taunton, J., 2 A. & E. 73 (E. C. L. R. vol. 29). 1 When there is a contract for a finished article, as a steam engine, a delivery of its various parts as they are made, will not change the property : Shell v. Heywood, 4 Penn. St. 529. This was the case of a contract entered into with machinists, for the construction of a steam engine and fixtures for a grist-mill ; portions of the machinery, viz., the boilers and balance- wheel, were delivered, and the boilers fixed in a building attached to the mill. The purchaser became embarrassed, and in an agreement in writing between him and the attorney of the manufacturers, it was stated that the boilers, and the machinery attached, or to be attached to them, were the property of the manufacturers, and they, by their attorney, agreed to leave the same where they were for three months, in order to give time to the purchaser to make an arrangement with his creditors; and in the event of his inability to make such arrangement, then the manufacturers were to be left to their legal remedy for the materials already furnished, or to the removal of the same, at their option. The sheriff subsequently levied on and Sold the boilers and wheel, under an exe- cution against the mill-owner, as personal property, notwithstanding notice given to him of the claim of the machinists. Held, that the property had remained in the latter, and that trespass would lie by them against the sheriff, for selling the ma- chinery : Ibid. Where A. agreed to furnish B. with a machine, to be put up by A. in the mill of B., B. to cart the machine to the mill, and if B. was satisfied with the way it worked, to pay for it, otherwise A. to take it away, and, before it was entirely put up, it was tried and found not to work satisfactorily, and on the same day was attached as the property of B., it was held, that the pro- perty had not been transferred : Phelps V. Willard, 16 Pick. 29. A. delivered cotton-yarn to B., on a contract that the same should be manufactured into plaids ; B. was to find the filling, and was to weave so many yards of the plaids, at 15 cents per yard, as was equal to the value of the j-arn at 65 cents per pound. Held, that by the delivery of the yarn to B. the property thereof vested in him: Bufi'um v. Merry, 3 Mason 478. Where one contracted to burn a kiln of bricks, for which he was to receive 10,000 of them when burnt, and he performed his part of the contract, it was held, that he had no vested interest in the bricks, which his creditor could attach, till actual or constructive delivery: Brewer v. Smith, 3 Greenl. 44. A contract was made in France between A. and B., by which certain goods were to be procured to be manufactured by A., and transmitted by him through B.'s agents at Havre, with OF THE ALIENATION OF CHOSES IN POSSESSION. 37 *When goods are in the custody of a simple bailee, such as a r^qy-i ■wharfinger or carrier, the possession of such bailee is, as we have seen,(s) constructively the possession of the bailor ; and either the bailor or bailee may maintain an action of trover in respect of the goods. •This constructive possession of the bailor may be delivered by him to a third person, by making as near an approach to actual delivery as is pos- sible under the circumstances of the case. By the custom of Liverpool the delivery of goods in another person's warehouse is effected by merely handing over a delivery order ;(f) and the property in wines in the Lon- don Docks appears to pass by the endorsement and delivery of the dock warrant. (m) But in the absence of a custom to the contrary, it would seem that there can be no legal delivery of goods into the hands of a third person without the consent of the warehouseman or wharfinger in' (.s) Ante, p. 27. * (I) Dixon V. Yates, 5 B. & Ad. 313 (E. C. L. R. vol. 27) ; and see Greaves v. Hepke, 2 B. & Aid. 131 ; Kingsford v. Merry, 1 H..& N. 503. (m) Ex parte Davenport, Mon. & Bl. 165. Delivery orders are now subject to a stamp duty of one penny, and dock warrants to a stamp duty of threepence, by statutes 23 Vict. c. 15, and 23 & 24 Vict. c. 111. instructions as to their further transmis- sions ; two cases of goods were sent to Havre, and forwarded by B.'s agents, with bills of lading, in one vessel, the invoice of one of the cases having been sent by a previous vessel. The latter case, having arrived in a difiFerent vessel from that in which the invoice was sent, was not claimed, and was sent to the public storehouse, where it was burnt. Held, that there was no sale by A. to B., but only a contract to deliver goods : Low v. An- drews, 1 Story 38. It is true that the sale of a thing not in existence, is, upon general principles, in- operative, being merely executory, and when the thing afterwards to be produced, is the product of land, or anything of like nature, the owner of the principal thing may retain the general property of the thing produced, unless there be fraud in the contract: Smith v. Atkins, 18 Vt. (3 "Washb.) 461 ; but when the identical thing delivered is to be restored, though in an altered form, the property is not changed : Moore i'. Holland, 39 Maine 307. When the owner of coal-pits, which were in process of burning, sold the char- coal which might be taken therefrom, at a specified price for each 100 bushels, and agreed that he would complete the burning and draw the coal to the vendee's place of business, and the vendor accordingly con- tinued to have charge of the coal unti lit was attached by his creditors, before it had been measured and delivered to the vendee, it was held, that the vendee ac- quired by the contract no property in the coal, even as between himself and the vendor : Hale v. Huntley, 21 Vt. (6 Washb.) 147. A contract was made with a coach- maker, to make a buggy for a specified price, and, before the completion of the buggy, the parties came to a settlement, and the price was paid, with an under- standing that it was to be finished, and then delivered. Held, that the property in the buggy vested in the purchaser from the time of the payment of the mo- ney : Butterworth v. McKinly, 11 Humph. 206. See ante, note (1), p. 34. 37 OF cnosES in possession. whose custody the goods are.(a;) When goods are at sea, the delivery of the hill of lading, after its endorsement, is a delivery of the goods them- selves ;{i/) for it is not possible, in this case, to make any nearer approach to an actual delivery. (2) 2. The next method of alienating chattels personal is by deed. Every deed imports a consideration ;(a) for *it was anciently supposed, L J that no person would do so solemn an act as the sealing and deliv- ery of a deed without some sufficient ground. The presence of this implied consideration renders a deed sufficient of itself to pass the pro- perty in goods. (i) It supplies on the one hand the want of delivery, and on the other the want of that actual consideration which always exists in the third and most usual mode of alienation of chattels personal, which is, 3. By sale. It is in this last and most usual method of alienation that the contrast presents itself between the means to be employed for the alienation of real property and chattels personal. When a contract has been entered into for the sale of lands, the legal estate in such lands still remains vested in the vendor; and it is not transferred to the vendee until the vendor shall have executed and delivered to him a proper deed of conveyance. In equity/, it is true, that the lands belong to the pur- chaser from the moment of the signature of the contract ; and from the •same moment the purchase-money belongs, in equity, to the vendor.(c) But at laiv the only result of the signature of a contract for the sale of lands is, that each party acquires a right to sue the other for pecuniary damages, in case such contract be not performed. Not so, however, the case of a contract for the sale of chattels personal. Such a contract im- mediately transfers the legal property in the goods sold from the vendor to the vendee, without the necessity of anything further.((^) In order to this, it is of course necessary, that the transaction have within itself all . (x) Zwinger v. Samuda, 1 Taunt. 265 (E. C. L. R. vol. 2) ; Lucas v. Dorrien, Ibid. 278; Bryans v. Nix, 4 M. & W. 775, 791; M'Ewan v. Smitli, 2 H. of L. Cases, 309, And see Pearson v. Dawson. 1 E. B & E. 448 (E. C. L. R. vol. 96). (y) Mitchell v. Ede, II A. & E. 888 (E. C. L. R. vol. 39); and see stat. 18 & 19 Vict. c. 111. (z) 1 Ves. sen. 362; 1 Atk. 171. (a) Plowd. 308 ; 3 Burr. 1639 ; 1 Fonb. Eq. 342 ; 2 Fonb. Eq. 26 ; Principles of the Law of Real Property 118, 2d ed. ; 123, 3d & 4th eds. ; 128, 5th ed. ; 134, 6th ed. ; 137, 7th ed. ; 144, 8th ed. (6) Carr v. Burdiss, 1 C, M. & R. 782, 788; s. c. 5 Tyrw. 309, 316. (c) Principles of the Law of Real Property 133, 2d ed. ; 137, 3d & 4th eds. ; 143, 5th ed. ; 150, 6th ed. ; 153, 7th ed. ; 159, 8th ed. ( The provision of the English Statute at $50 ; in New Hampshire at $33 33 ; in of Frauds, on this subject, is in force in Vermont at $40, and in California at $200, South Carolina and Georgia: Cason v. while in Florida all contracts for the sale Cheely et al., 6 Geo. 554; and in many of of personal property, no mailer what may the States of the Union, analogous laws be the value, must be in writing. In arc in operation, by which contracts for Alabama, Delaware, Kentucky, Maryland, the sale of chattels, beyond a certain Ohio, Pennsylvania and Virginia, the value, are declared void, unless there be seventeenth section of the English statute, delivery, or earnest, or the contract be in respecting the sale of chattels above the writing; thus, in Arkansas, Maine, and value of 10/., is not in force; nor does it New Jersey, this sum is fixed at $30; in apply in North Carolina, Texas, or Mis- Massachusetts, Michigan, and New York, souri. OF THE ALIENATION OF CHOSES IN POSSESSION. 41 case whether such acceptance and actual receipt have taken phice or not. The acceptance required appears not to be necessarily such as shall pre- clude the purchaser from afterwards objecting to the quality of the goods,(r) and it may be prior to the receipt.(s)^ Actual receipt seems, according to the great preponderance of authority, to mean receipt of the possession of the goods, and to be merely correlative to delivery of pos- session on the part of the vendor.(^) There must, therefore, be an actual transfer of the article sold, or some part thereof, by the seller, and an actual taking possession of it by the buyer. (m) The possession of a simple bailee is, however, as we have seen,(y) constructively the posses- sion of the bailor. If therefore the vendor should change his character and become the bailee of the purchaser, there may be a suiBcient actual receipt in law on the part of the *purchaser, although the goods r>,= f ^-i still remain in the possession of the vendor.(2;) So if any part of the goods be delivered to an agent of the vendee, or to,a carrier named by him, this is a sufficient receipt by the vendee himself :(?/) and if the goods should be in the possession of a warehouseman or wharfinger at the time of sale, the receipt by the purchaser of a delivery order, provided it were coupled with the assent of the bailee, would be a sufficient receipt of the goods within the statute. (2) The wharfinger holds the goods as the agent of the vendor, until he has agreed with the purchaser to (r) Morton v. Tibbett, 15 Q. B. 428 (E. C. L. R. vol. 69) ; Bushell v. Wheeler, 15 Q. B. 442 (E. C. L. R. vol. 69) ; Currie v. Anderson, 2 E & E. 592, 600 (E. C. L. R. vol. 105). See, however, Hunt v. Hecht, 8 Exch. 814; Nicholson v. Bower, 1 E & E. 72 (E. C. L. R. vol. 102) ; Smith v. Hudson, Q. B. 11 Jur. N. S. 622 ; 6 B. & S. 431 (E. C. L. R. vol. 118). (s) Cusack V. Robinson, I B. & S. 299 (E. C. L. R. vol. 101). {() Smith's Mercantile Law, 472, n. (c/), 5th ed. ; 499, n. (m), 6th ed. Saunders v. Topp, 4 Ex. Rep. 390. (m) Baldy v. Parker, 2 B. & C. 37, 41 (E. C. L. R. vol. 9). (v) Ante, p. 27. {x) Castle V. Sworder, Exch. Chamb. 6 H. & N. 828, reversing the judgment of the Court of Exchequer, 5 H. & N. 281. («/) Dawes v. Peck, 8 T. Rep. 330 ; Hart v. Bush, 1 E. B. & E. 494, 498 (E. C. L. R. vol. 96). See however Norman v. Phillips, 14 M. & W. 277 ; Coombs v. Bristol and Exter Railway Company, 3 H. & N. 510. (2) Bentall v. Burn, 3 B. & C. 423 (E. C. L. R. vol. 10) ; Pearson v. Dawson, 1 E. B. & E. 448 (E. C. L. R. vol. 96). See ante, p. 37. 1 In Georgia it has been held that there declaration of the buyer, that he will take is no acceptance, so long as the buyer has the goods, then left for him at another the right to object to the quantity or place, at a future day, can be held an quality: Lloyd v. Wright, 25 Geo. 215. acceptance, or an admission of acceptance : And in New Hampshire, no promise or Shepherd v. Pressey, 32 N. H. 49. 42 OF cnosKS in possession. hoM for liim. Then, and not till then, the wharfinger is the agent or bailee of tiie purehuser, and the possession of such Aviiarfinger is that of the purchaser ; and then only is there a constructive delivery to bim,(a) The re.|uisitions of the statute, it will be observed, are in the alter- native. Either the buyer must accept part of the goods sold, and actuallv receive the same, or he must give something in earnest or in part of pavment, or some note or memorandum in writing must be signed. Tlie two former alternatives are left as they were before the statute ; but the last is a new requisition which must be observed in the absence of cither of the former.(i) The effect of the statute, therefore, is to abolish tender and mere words as sufficient for a sale, and to sub- stitute for them the more exact evidence of a note or memorandum in writinr'.(c) But as the ^memorandum may be signed by an agent L '^J lawfully authorized, the bought or sold notes given by a broker are a sufficient memorandum within the meaning of the statute.(c?) And it is held that the entry of a purchaser's name by an auctioneer's clerk at an auction is also sufficient to satisfy the statute, as the clerk is, for that purpose, the authorized agent of the purchaser.(e) But one of the contracting parties to a sale cannot be the agent for the other for the purpose of signing a memorandum of the bargain. (/) If the agreement is not to be performed within the space of one year from the making thereof, then, however small be the value of the goods, no action can be brought upon it, unless the agreement, or some memo- randum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully [a) Farina v. Ilornc, IG M. & W. 119, 123. (A) Lcc V. Griffith, 1 B. & S. 272 (E. C. L. R. vol. 101); Wilkinson v. Evans, Law Rep. 1 C. P. 407. See Vanderbergh v. Spooner, Law Rep. 1 Ex. 31G. (c) Every meniora-.-.dum, letter, or agreement made for or relating to the sale of any goods, wares or merchandise, is exempt from all stamp duty ; stat. 55 Geo. III. c. 184, Sched., Part I. tit. Agreement.' (rf) Grove v. Aflalo, 6 B. & C. 117 (E. C. L. R. vol. 13) ; Barton v. Crofts, 16 C. B.N. S. n (E. C. L. R. vol. 111). («) Bird f. Boulter, 4 B. & Ad. 443 (E. C. L. R. vol. 24). {/) Farebrother v. Simmons, 5 B. & Aid. 333 (E. C. L. R. vol. 7). > The Stamp Duty under the Internal or piece of paper, five cents is to be paid Revenue Act, is five cents for every sheet for every additional agreement or Con- or piece of paper upon which an agree- tract: Act of Congress of June 30, 1864, mentor contract shall be written, provided sec. 170, Schedule B., title Agreement, 2 that if more than one agreement or con- Brightly's U, S. Dig., p. 377, sec. 356. tract shall be written on the same sheet OP THE ALIENATION OF CHOSES IN POSSESSION. 43 authorized.^ This is another provision of the Statute of Frauds,(. Hitchcock, 23 Wend. 611; however, an exception to this rule, and do s. c. 20 Id. 167 ; Mottram v. Heyer, 1 not contain this restriction upon contracts. Denio 483, s. c. 5 Id. 629 ; Sawyer v. 2 Three circumstances must concur, in Joslin, 20 Vt. 172 ; Frazier v. Hilliard, order that the vendor of goods may have 2 Strobh. 309 ; Donath v. Broomfaead, the right of stoppage in transitu. 1. The 7 Penn. St. 301 ; Lane v. Robinson, 18 vendee must have become insolvent : Jor- B. Mon. 623 ; White v. Welsh, 38 Penn. dan V. James, 5 Ham. 88 ; Stanton v. St. 396. Eager, 16 Pick. 467 ; White v. Welsh, 38 1st. The vendee must have become in- Penn. St. 396. 2. The purchase-money solvent. It is only where the vendee be- must not have been paid : Jordan z). James, comes insolvent after the sale has been 5 Ham. 88 ; Stanton v. Eager, 16 Pick, effected, and before delivery, that the 44 OF CIIOSES IN POSSESSION. to direct the captain of the ship, or other carrier, to deliver the goods to himself or his agent instead of to the consignee, who has thus become right of stoppage in transiHi exists. If the vendee was insolvent at the time of the consi) But the right was subsequently acknowledged by the courts of law ; and it is now constantly enforced by them. As this right was originally of equitable origin it cannot be ex- pected to depend on strictly legal principles ; and the doctrines of law on this particular subject are in fact unlike its usual doctrines on other (p) Wiseman v. Vandeputt, 2 Vern. 203; Snee v. Prescot, 1 Atk. 245. Vt. 49 ; Pottinger v. Hecksher, 2 Grant's Gas. .309, and see also Cartwright v. Wil- merding, 24 N. Y. 521 ; Hoover v. Tib- bits, 13 Wis. 79 ; Blackman v. Pierce, 23 Cal. 508 ; even where the goods, transported by water, were in the port where the vendee resided, and had been there attached by creditors, but had not yet come to the actual possession of the vendee, it was held that the right of stop- page remained: Naylor «. Dennie, 8 Pick. 198 ; but unless it is provided in the bill of lading, that the consignee shall have possession at the conclusion of the voyage, the right of stoppage is concluded on the shipment : Stubbs v. Lund, 7 Mass. 453. Where, before the delivery of the goods, they have been bona fide sold by the origi- nal purchaser, so that all the right is in a third person, it has been held that the vendor's right of stoppage is gone ; thus, a bona fide assignment by endorsement of the bill of lading, will defeat the original ven- dor's right : Stanton v. Eager, 16 Pick. 467.; Stubbs v. Lund, 17 Mass. 453; Ilsley V. Stubbs, 9 Id. 65 ; The Mary Ann Guest, 1 Blatch. 358 ; Walton v. Ross, 2 Wash. C. 0. 283; Boyd v. Mosely, 2 Swan 661 ; Dows v. Perrin 16 N. Y. 325 ; V. Lee v. Kimball, 45 Maine 172 ; Dowe V. Greene, 32 Barb. 490 ; Schu- macker v. Eby, 24 Penn. St. 521. So, where goods are shipped on account, and at the risk, of the consignee, the bill of lading transfers to him the legal right to the goods, subject only to the equitable right of the consignor, to stop them in transitu, if they are not paid for, and the consignee becomes insolvent. If goods be once actually delivered to a servant or correspondent of the vendee, authorized by him to receive them, the right of the vendor to stop them, in the event of the insolvency of the vendee, is gone : Bolin v. Huffnagle, 1 Rawle 9 ; Biggs v. Barry, 2 Curtis C. C. 259 ; Cabeen v. Camp- bell, 30 Penn. St. 254. See also Wengar V. Barnhait, 55 Id. 305. Where the vendor shipped the goods on board of a packet vessel,' the master of which refused to deliver them, on his arrival, to the vendee, until he was paid a balance due to him for antecedent freights ; and the vendee declining to pay it, the goods were brought back by the master ; it was held, that the vendor had still the right to stop the goods, the transitus not being determined : Allen v. Mercier, 1 Ash. 103. The transitus of the goods, and the right of stoppage in transitu, is de- termined by delivery to the vendee, either actual or constructive, or by circumstances which are equivalent to such delivery : Donath v. Broomhead, 7 Penn. St. 301. Where goods sold, to be-paid for on de- livery, were put on board a vessel ap- pointed by the vendee, not to be trans- ported to him, or delivered for his use at a place of his appointment, but to be shipped by such vessel in his name, from his place of residence and business to a third per- son, it was held, there was no right of stoppage in transitu after the goods were embarked : Rowley v. Bigelow, 12 Pick. 307 ; and see, also, Stubbs v. Lund, 7 Mass. 453 ; HoUingsworth v. Napier, 3 Caines 182. 44 OF CIIOSES IN POSSESSION. matters. Thus it is at variance with the general principles of law that a man should be allowed to transfer to another a right which he l*'^^^ has not, or that a second purchaser should *stand in a better position than his vendor :{q) but the consignee of goods may, by endorsing the bill of lading to a bond fide endorsee, defeat the consignor's right to stop in transitu.(r) So a delivery of goods into the possession of a carrier appointed by the vendee is, in construction of law, a delivery to the vendee himself, and divests the vendor's lien for the unpaid purchase- money ;(s) but until the transitus is completely ended, or the goods come to the actual possession of the vendee, the vendor's right to stop them in transitu may still be exercised in the event of the bankruptcy or insol- vency of the vendee, (0 unless indeed such right be defeated, as we have said, by a bond fide endorsement of the bill of lading. Thus, although by the sale of the goods the property in them, involving the risk of their loss, passes to the purchaser, and although the possession of them be de- livered to a carrier named by him, still such possession may be resumed by the vendor during the journey, in the event of the bankruptcy or insolvency of the vendee. As this right is a departure from legal prin- ciples on the vendor's behalf, it is allowed only in one of the two cases of bankruptcy or insolvency, by Avhich latter term appears to be here meant a general inability to pay, evidenced by stopping of payment.(w) When possession of goods has been resumed by the vendor under his right of stoppage in transitu, he is restored to *the lien for the L -J unpaid purchase-money which he had before he parted with such possession ; but, according to the better opinion, the contract for sale is not thereby rescinded. (a;)^ {q) Dixon v. Yates, 5 B. & Ad. 339 (E. 0. L. R. vol. 2*1). (?•) Lickbarrow v. Mason, 2 T. R. 63 ; 1 H. Bl. 357; 6 East 21; 1 Smith's Leading Cases 388 ; Jenkyns v. Usborne, 7 M. & G. 678, 699 (E. C. L. R. vol. 49). (s) Dawes v. Peck, 8 T. R. 390 ; ante, p. 40 ; Wilmshurst v. Bowker, in error, 7 M. & G. 882 (E. C. L. R. 49). {() Hoist V. Pownal, 1 Esp. 240 ; Northey v. Field, 2 Esp. 613 ; Jackson v. Nichol, 5 New Cas., 508, 519. See Van Casteel v. Booker, 2 Ex Rep. 691 ; Heinekey v. Earle, 8 E. & B. 410 (E. C. L. R. vol. 92) ; Smith v. Hudson, Q. B. 11 Jur. N. S. 622 ; 6 B. & S. 431 (E. C. L. R. vol. 118)-; Berndtson v. Strang, L. C. 16 W. R. 1025 ; Law Rep. 3 Ch. 588. (m) See Smith's Merc. Law, 525, n. (6), 5th ed. ; 554, n. 6th ed. The case of Wilms- hurst V. Bowker, 5 New Cas. 541; 7 Scott 561 ; 2 M. & G. 812 (E. C. L. R. vol. 40), was reversed in error, 7 M. & G. 882 (E. C. L. R. vol. 49.) (z) Bloxam v. Sanders, 4 B. & C. 949 (E. C. L. R. vol. 10) ; 1 Smith's Leading Cases 432 ; Schotsmans v. Lancashire and Yorkshire Railway Company, Law Rep. 2 Ch. 332, 340; 36 L. J. N. S. 361, 366. 1 See also Wilmshurst r. Bowker, 5 Bing. appears never to have been expressly de- N. C. 641 (E. C. L. R. vol. 35, 218). It cided in England, whether the efifect of OF THE ALIENATION OF CHOSES IN POSSESSION. 46 There is one case in which the property in goods passes from one person to another by payment of their value without any actual sale. In any action of trover(?/) the plaintiff is entitled to damages equal to the value of the property he has lost, but not further, unless he has sus- tained any special damage.(2) The defendant therefore, having paid the amount of the damages, is entitled to retain the goods in respect, of which the action is brought ; and the property in them vests in him ac cordingly.(a)^ The alienation of personal chattels is prohibited to be made by certain persons and for certain objects. And first with respect to persons. An alien or foreigner is under great restrictions as to the acquirement of real estate ;{h) but with respect to personal chattels he stands on the same footing as a natural-born subject ; for by the act to amend the laws re- lating to aliens,((?) it is enacted((^) that from and after the passing of this {y) See ante^ p. 24. (z) Bodley v. Reynolds, 8 Q. B. ^9 (E. C. L. R. vol. 55). (a) Cooper v. Shepherd, 3 C. B. 266, 272 (E. C. L. R. vol. 54). See Buckland v Johnson, C. P. 18 Jur. 775 ; 15 C. B. 145 (E. C. L. R. vol. 80). (6) See Principles of the Law of Real Property 56, 2d ed. ; 58, 3d & 4th eds. ; 61, 5th & 6th eds. ; 62, 7th & 8th eds. (c) Stat. 7 & 8 Vict. c. 66, explained by stat. 10 & 11 Vict. c. 83. {d) Sect. 4. stoppage in transitu, is entirely to rescind the contract, but only gives or restores to the contract or only to replace the vendor the vendor a lien for the price : Schots- in the same position as if he had not parted mans v. Lancashire, &c. R. R., 2 L. R. Ch. with the possession, and entitle him to Ap. Cas. 340. The following American hold the goods until the price be paid authorities support the doctrine taken in down: Clay v. Harrison, 10 B. & C. 106 ; the text, and decide that this right of stop- Wentworth v. Outhwaite, 10 M. & W. 452. page in transitu, does not proceed on the In Bloxam v. Saunders, 10 E. C. L. ground of rescinding the contract, but on R. 477, the defendants refused to deliver the ground of an equitable lien ; the con- hops, on account of the bankruptcy of the tract remains in force, at least to such an vendee, and afterwards resold them. The extent that the vendee may still have the court held that the plaintiffs could not goods by paying the price of them : Jor- maintain trover, without payment or tea- dan v. James, 5 Ham. 88 ; Rowley v. der of the price, but that if the vendor Bigelow, 12 Pick. 307; Newhall v. Var- resold the hops wrongfully, they might gas, 3 Shep. 314. bring a special action for the injury sus- i The action of replevin will also deter- tained by such wrongful sale, and recover mine the title to personal chattels, for it damages to the extent of that injury ; and may be brought wherever one claims per- the same reasoning was held in Wilmhurst sonal property in the possession of another. V. Bowker, which was also an action of See Morris on the Law of Replevin, p. 68, trover, in which a similar decision was &c., where the cases are collected, given. These cases indicate that the For the statutes of Pennsylvania and Courts have shown a disposition to hold other states, on the subject of Replevin, see that stoppage in transitu does not rescind Morris on the Law of Replevin, Appx. 46 OF CHOSES IN POSSESSION. act, any alien, being the subject of a friendly state, shall and may take and hold by purchase, gift, bequest, representation or otherwise, every species of personal property, *except chattels real, as fully and L J effectually to all intents and purposes, and with the same rights, remedies, exceptioTis, privileges and capacities, as if he were a natural- born subject of the united kingdom. The gift of an infant or person under the age of twenty-one years is voidable,(e) and that of an idiot or Innatic appears to be absolutely void :(/) in this respect the law of per- sonal chattels is now the same as that of real estate.(,^) Married women also are incapable of making any disposition of personal chattels, except such as may be settled in equity in trust for their own separate use ; for marriage is an absolute gift in law of all the wife's choses in possession to her husband, as well as those she is possessed of at the time of the marriage, as those which come to her during her coverture.(/i)^ Persons convicted of treason or felony forfeit on such conviction the whole of their goods and chattels to the crown : and nothing but a bond fide alien- ation for a valuable consideration, made previously to conviction, can avert such forfeiture. (^) When a felony is not capital, the punishment ' (e) Bac. Abr. tit. Infancy and Age (I), 3. (/) Ibid. tit. Idiots and Lunatics (F). [g] See Principles of the Law of Real Property 57, 2d ed. ; 59, 3d and 4th eds. ; 62, 5th ed. ; 63, 6th ed. ; 64, 7th & 8th eds. [h) Co. Litt. 300 a; 1 Rop. Husb. and Wife 169. See post, the chapter on Husband and Wife. (i) 3 Rep. 82 b ; 4 Bla. Cora. 387, 388; Perkins v. Bradley, 1 Hare 219; Chowne v. Baylis, 31 Beav. 351. 1 By an act of the legislature of Pennsyl- A similar provision is found in the vania, passed April 11, 1848, all property, statute law of Massachusetts: Gen. Stats. whether real or personal, owned by or be- Mass. (1860), p. 537. longing. to any married woman, shall be In California, the property of the wife, owned, used and enjoyed by her as her own acquired before the marriage, and all such separate property, freed from any liability as shall be acquired by her after coverture, for the debts of her husband : Purd. Dig. by gift, bequest, devise or descent, may (1861), p. 699. become her separate property, by a full The statutes of the State of New York and complete inventory thereof being made, contain the following provision, 3 Revis. and acknowledged and proved in the man- Stat. of N. Y., Banks & Bro.'s fifth ed., p. ner required by law for a conveyance of 239 : " The real and personal property of land ; but property acquired in any other any female, who may hereafter marry, and manner than above specified, during cov- which she shall own at the time of mar- erture, by the wife, shall be the common riage, and the rents, issues, and profits property of husband and wife. But in all thereof, shall not be subject to the dispo- cases the husband shall have the manage- sal of her husband, nor be liable for his ment of his wife's estate, during the cov- debts, and shall continue her sole and erture, unless he shall be guilty of wasting separate property, as if she were a single or squandering it: Act of 17 April, 1850, female." Wood's Cal. Dig. (1860), p. 487. OF THE ALIENATION OF CHOSES IN POSSESSION. 47 endured has the effect of a pardon ;{k) but the restoration to civil ri<^hts does not take effect till the determination of the period of punishment. All personal property, therefore, which accrues to a felon during his transportation is forfeited to the crown ;(Z) but a mere contingent interest will not be forfeited, if it do not vest until the expiration of the period of banishment. (m) *With regard to the objects for which the alienation of chat- r^^o-i tels personal is prohibited, gifts to charitable purposes are not restricted, neither are corporations excepted objects, as in the case of landed property. (?iy But by a statute of the reign of Elizabeth, (o) the gift or alienation of any lands, tenements, hereditaments, goods and chat- tels, made for the purpose of delaying, hindering or defrauding creditors, is rendered void as against them, unless made upon good, which here means valuable, con.sideration, and bond fide to any person not having at the time of such gift any notice of such fraud. There are also more stringent provisions to the same effect contained in the bankrupt laws, to which reference will be hereafter made in the chapter on bankruptcy. The fraudulent purpose intended by the statute of Elizabeth can of course only be judged of by circumstances. Thus it has been held that if the owner of goods make an absolute assignment of them by deed to one of his creditors, and yet remain in the possession of the goods, such remaining in possession is a badge of fraud, which renders the assignment void, by virtue of the statute, as against the other creditors.(/>) But if the assignment be made to secure the payment of money at a future day, with a proviso that the debtor shall remain in possession of the goods until he shall make default in payment, the possession of the debtor, being then consistent with the terms of the deed, is not regarded in modern times as rendering the transaction fraudulent within the meaning (k) Stat. 9 Geo. IV. c. 32, s. 3. (l) Roberts v. Walker, 1 Russ. & M. 752. (m) Stokes v. Holdea, 1 Keen 145; Thompson's Trusts, 22 Beav. 506. (n) See Principles of the Law of Real Property 58, 2d ed. ; 60, 61, 3d & 4th eds. ; 64, 65, 5th ed. ; 69, 6th ed. ; 72, 7th & 8th eds. (o) Stat. 13 Eliz. c. 5. (p) Twyne's Case, 3 Rep. 80 b ; 1 Smith's Leading Cases 1 ; Edwards v. Harben, 2 T. Rep. 587. 1 By an act of the legislature of the the testator or alienor. And such disposi- State of Pennsylvania, passed April 26, tions of property, must conform in other 1855, no bequest, devise, or conveyance respects with the provisions and restric- for religious or charitable uses, shall be tions of the said act : Purd. Dig. (1861), valid unless made by will or deed at least p. 146, sec. 6. one calendar month before the decease of 48 OF CHOSES IN POSSESSION. of the statute.((/) Such a transaction is in fact a mortgage of the goods, analogous to a mortgage of lands.(r)^ The property in the *goods [*40] passes at law b}^ the deed to the mortgagee,(s) whilst the posses- [q) Edwards v. Harben, 2 T. Rep. 537 ; Martindale v. Booth, 3 B. & Ad. 498 (E. C. L. R. vol. 2.3) ; Reed v. Wilmot, 7 Bing. 577 (E. C. L. R. vol. 20). (r) See Principles of the Law of Real Property 332, 2d ed. ; 349, 4th ed. ; 3G0, 5th ed. ; 382, 6th ed. ; 389, 7th ed. ; 407, 8th ed. (a) Gale v. Burnell, 7 Q. B. 850 (E. C. L. R. vol. 53). 1 It is a prenerally established rule, that, as regards third persons, there cannot be a sale ormortp:age of personal property, with- out a transfer of the possession : Waters' Exrs. V. McClellan et al., 4 Dall. 208 note (a) ; Noyes v. Brent, 5 Cr. C. C. 656 ; Kater v. Steinrack, 40 Penn St. 501. But this rule is subject to many ex- ceptions ; thus, in several of the states there may be a mortgage of personalty, without a notorious and visible change of possession : Whitney v. Lowell, 33 Maine 318; Thayer v. Stark, 6 Cush. 11; Whitney v. Hepwood, Id. 82 ; Prior v. White, 12 111. 261 ; Rugg v. Barnes, 2 Cush. 591 ; Ballurae v. Wallace, 2 Rich. 80; Smith v. Turcher, 9 Ala. 208; Smith V. Acker, 23 Wend. 653 ; Cole v. White, 26 Id. 511; Hall v. Carnley, 2 Duer 99; Gay v. Bidwell, 7 Mich. 519; Mor- row V. Turney, 35 Ala. 131 ; Hackett V. Manlove, 14 Cal. 85 ; Crosswell v. AUis, 25 Conn. 301; Adler v. Claflin, 17 Iowa 89 ; the mortgage must, however, be recorded, in order to render it valid as regards third parties : Witham v. Butter- field, 6 Cush. 217: Brighara v. Weaver, Id. 298 ; Stowell v. Goodale, Id. 452 ; Bishop V. Cook, 13 Barb. S. C. 326; Frost V. Wilhird, 9 Id. 440 ; Wilson v. Leslie, 20 Ohio 161 ; Brown v. Webb, Id. 389; Cook D.Thayer, 11 111. 617; Travis v. Bishop, 13 Mete. 304 ; Shapleigh v. Wentworth, Id. 358; Vaughn v. Bell, 9 B. Mon. 447; Burditt V. Hunt, 25 Maine 419; Appleton V. Bancroft, 10 Mete. 231; Camp v. Camp, 2 Hill 628; Faddea v. Turner, 3 Jones 481; Barfield v. Cole, 4 Sneed 465; 465; Call v. Gray, 37 N. H. 428; but, as between the parties themselves, it has been held, that the mortgage would be good without being recorded, or without a transfer of the possession : Smith v. Moore, 11 N. H. 55; Winsor v. McLellan, 2 Story 492 ; Hall v. Snowhill, 2 Green 8 ; Merrick v. Avery, 14 Ark. 370 ; Wescott V. Gunn, 4 Duer 107 ; Johnson V. Jeffries, 30 Miss. 423 ; Fuller v. Paige, 26 111. 358; Brooks v. Ruff, 37 Ala. 371; Lockwood V. Slevin, 26 Ind. 124. But a mortgage of chattels executed in the state of New York, and valid by the laws of that state without a change of possession, will not protect the property from attachment in the state of Massachu- setts, by creditors of the mortgagor, if found there in the possession of the mort- gagor, though brought there by him for a temporary purpose : Wentworth v. Leon- ard, 4 Cush. 414. And see to the same principle : Blystone v. Burgett, 10 Ind. 28 ; Bowman v. McKleroy, 14 La. An. 587. To some extent the mortgage of per- sonal property seems subject to the rules governing the mortgage of real estate ; thus, it may be sold on execution against the mortgagor, and the purchaser will take it subject to the mortgage : Bank of Lansingburgh v. Crary, 1 Barb. S. C. 542 ; or the mortgagee will have the right to re- cover possession of the mortgaged pro- perty from any person holding under him through such sale : Mercer v. Tinsley, 14 B. Mon. 273. Again, a mortgage of per- sonalty is good, and will have effect against any other title inferior to it, except a sale or mortgage of the same goods from the same person, previously recorded : Youngblood V. Keadle, 1 Strob. 121 ; White's Bank v. Smith, 7 Wall. U. S. 646. OF THE ALIENATION OF CHOSES IN POSSESSION. 49 sion of them rightly remains with the mortgagor. The mortgagee there- fore cannot maintain an action of trover for the goods against a stranger^ . until default has been made by the mortgagor in payment of the money secured.(^) In this respect a mortgage of goods differs from a mere pledge, in which the property in the goods remains with the pledgor, and the pledgee, although he may have power to sell them, obtains possession only,(M) the right to retain which enables him to maintain an action of trover.(v) The chief disadvantage in a mortgage of goods is, that, as the goods continue in the possession of the mortgagor as reputed owner, they will, by virtue of provisions in one of the bankrupt acts, become liable, in the event of his bankruptcy, to be sold for the benefit of his creditors (t) Bradley v. Copley, 1 C. B. 685 (E. C. L. R. vol. 50) ; Brierley v. Kendall, 17 Q. B. 937 (E. C. L. R. vol. 79). If the mortgagor should retain possession after default in payment at the time specified, it may possibly be doubted whether the security would not then be void as against creditors under the statute of Elizabeth, for, by the terms of the deed, the mortgagor is only to enjoy possession until default. But the better opinion is that the deed will still be good. See 2 Davidson's Precedents 609, 2d ed.; Ex parte Sparrow, 2 De G., M. & G. 907. (m) Ante, p. 27. (v) Legg V. Evans, 6 M. & W. 36. A mortgage of personal property to secure future advances, as well as an ex- isting debt, has been held valid for the sum due at the time the mortgagees assert their title : Fairbanks v. Bloomfield, 5 Duer 434. And see also 23 How. U. S. 14 ; Googins v. Gilmore, 47 Maine 9 ; McClelland v. Remsen, 36 Barb. 622 ; Speer v. Skinner, 35 HI. 282. In Florida, there must be a delivery within twenty days, in order to render the mortgage valid : Sanders v. Pepoon, 4 Fla. 465. In Pennsylvania, the old rule seems gen- erally to prevail, that in order to render a mortgage or sale of personal property valid, as against the creditors of the mort- gagor or vendor, in general, a correspond- ing change of possession thereof must accompany the same. But if such change of possession be impracticable, it must be dispensed with, for the law never requires that which is impossible ; for that posses- sion of the thing pledged, which its nature and the circumstances will admit of, is the kind of possession only which the law demands : Fry v. Miller, Penn. St. 441 ; Roberts' Ap., 60 Id. 400 ; McKibbiu v. Martin, 64 Id. 352. By an act of the leg- islature of tliat state, passed April 5, 1853, Pamp. L. 295, it is provided, that the lessees of coal mines in Schuylkill county, " may mortgage their interests in such rights, or property demised, together with all machinery and fixtures appurtenant or belonging thereto." And see Pamph. L. 1855, p. 362, sec. 8. See also on the subject of mortgage of chattels : Beaumont v. Yeatman, 8 Humph. 542 ; Provost v. Wilcox, 17 Ohio 359 ; Jewett V. Preston, 27 Maine 400; Fer- guson V. Thomas, 26 Id. 499 ; Hubby v. Hubby, 5 Gush. 515 ; Weld v. Cutler, 2 Gray 195 ; McTaggart v. Rose, 14 Ind. 230; Gregg v. Sanford, 24 111. 17; State !;. D'Oench, 31 Misso. 433. As to the necessity of a transfer of pos- session in the case of a levy and execution upon personal property : see Levy v Wallis, 4 Dall. 167, note. (a) 49 OF CIIOSES IN POSSESSION. generally. (.r)* By recent acts of parliament(?/) every bill of sale of per- sonal chattels, whereby the grantee shall have power to take possession of any effects therein comprised, or a true copy thereof, must be regis- tered in the office of the Court of Queen's Bench within twenty-one days ; otherwise such bill of sale is rendered void, so far as regards any ricoi ^^ ^^^"^ goods in the apparent possession *of the grantor, as against the assignees of the grantor, in case of his bankruptcy, or under any assignment for the benefit of his creditors, and as against all sheriff's officers and other persons seizing the effects in execution of any process of any court of law or equity issued against the goods of the grantor, and also as against any subsequent duly registered bill of sa\e.{z) Such bills of sale before the act w-ere valid as against an" execution creditor, though void as against assignees under the bankruptcy of the grantor, and the act does not appear to give to such bills of sale as are filed under it any greater validity than they had before.(a) But if the bill of sale be not filed, the goods may now be taken in execution, which they could not have been before the act. The act does not apply to fixtures, w^hen they pass by a conveyance of the premises to which they are affixed. (i) And as seizure of the goods of a trader under an execution for an amount not less than fifty pounds has now been made an act of bankruptcy, (c) a bill of sale of the goods of a trader, whether filed or not, now affords a very unsatisfactory security. The Bills of Sale Act, 1866, (c?) now pro- (z) Ryall V. Rollo, 1 Atk. 165, 170; s. c. nom. UyaW v. Rowles, 1 Ves. sen. 343; Stat. 6 Geo. IV. c. 16, s 72, repealed aad re-enacted by stat. 12 & 13 Vict. c. 106, s. 125, repealed by stat. 32 & 33 Vict. c. 83, but the provision in question in substance re-enacted by the Bankruptcy Act, 1869, stat. 32 & 33 Vict. c. 71, s. 15, par. 5 (see post, p. 54) ; Freshney v. Carrick, 1 H. & N. 653 ; Spackman v. Miller, 12 C. B. N. S. 659 (E. C. L. R. vol. 104) ; Hornsby v. Miller, 1 E. & E. 192 (E. C. L. R. vol. 102). (y) Stats. 17 & 18 Vict. c. 36 ; 25 & 30 Vict. c. 96. (z) Richards v. James, Law Rep. 2 Q. B. 285. By the Bankruptcy Act, 1869, stat. 32 & 33 Vict. c. 71, a trustee is substituted for the assignees in case of bankruptcy. Jur. N. S. 377 ; 2 E. & E. 472 (E. 0. L. R. vol. 105.) (a) Stansfeld v. Cubitt, 2 De G. & Jones 222 ; Badger v. Shaw, Q. B., 8 W. R. 210 ; 6 (b) Mather w. Fraser, 2 Kay & J. 536; Waterfall v. Pennistone, 6 E. & B. 876 (E. C. L. R. vol. 88) ; Boyd v. Shorrock, V. C. W., Law Rep. 5 Eq. 72. The bill of sale must be duly stamped before it can be registered. Stat. 24 & 25 Vict. c. 91, s. 34. (c) Stat. 32 & 33 Vict. c. 71, s. 6. (d) Stat. 29 & 30 Vict. c. 96. * By the fourteenth section of the Bank- of the United States, or of any state^ rupt Act of the United States, it is provided shall be invalidated or affected" by the that " no mortgage of any vessel, or of any assignment of all the bankrupts property other goods or chattels made as security to the assignee in bankruptcy, under the for any debt or debts, in good faith and for provisions of that section : Brightly's Dig. present consideration, and otherwise valid L. U. S. p. 77. and duly recorded, pursuant to any statute OF THE ALIENATION OF CHOSES IN POSSESSION. 50 vides for the renewal every five years of the registration of bills of sale, by an affidavit to be filed in a given form that the security is still sub- sisting, without which the prior registration will cease to be of any effect. Choses in possession have long been liable to involuntary aliena- [-:,<;--, -i tion for the payment of the debts of their *owner. On the decease of any person, his personal property generally has always been liable, in the first place, to the payment of his debts of every kind. And if a creditor take proceedings against his debtor in the debtor's lifetime, a sale of his goods and chattels may be procured by means of a writ of fieri facias {fi. fa.) issued, in execution of the judgment of the court. This writ is of very ancient date, and is usually said to be given by the common law ; though some suppose that its name arose from the wording of the statute of Edward I.,(e) by which the writ of elegit was pro- vided.(/) The writ directs the sheriff to cause the debt to be realized out of the goods and chattels of the debtor, quod fieri facias de bonis et cataUis, &c. : and a sale of the goods is made by the sheriff accordingly. And the seizure of the goods of a trader is now an act of bankruptcy whenever the debt or damages recovered are not less than fifty pounds. (7i)' Goods however are not, as lands formerly were, affected by the mere entry of a judgment of a court of law against the owner. The debtor was always allowed to alienate his goods until the writ of execution was issued; although, by a fiction of law, all judicial proceedings, writs of execution included, formerly related back to the first day of the term to which they belonged. («') Goods, therefore, which had been sold [-^^9-, after the first day of a terra, *might yet practically have been ^ seized under a writ of fi. fa. relating back to that day, but subsequently issued. To remedy this evil, it was enacted by one of the sections of the Statute of Frauds, (y) that no writ of fieri facias or other writ of execu- tion shall bind the property of the goods against which it is sued, but from the time that such writ shall be delivered to the sheriff, under- sheriff, or coroner, to be executed ; and the officer is required, upon re- (e) Stat. 13 Ewd. I. c. 18, called the Statutes of Westminster the Second. See Principles of the Law of Real Property 63, 2d ed. ; 66, 3d and 4th eds. ; 71, 5th ed. ; 75, 6th ed. ; 78, 7th and 8th eds. (/) Bac. Abr. tit. Execution (C). (h) Stat. 32 & 33 Vict. c. 71, s. 6 ; Woodhouse v. Murray, Law Rep. 2 Q. B. 634. (i) Com. Dig. tit. Execution (D. 2) ; Anon., 2 Vent. 218. See 2 Sugd. Vend. & Pur 9th ed. 198. (J) Stat. 29 Car. II. c. 3, s. 16. 1 See post p. 132, note 2k. and p. 134, note 1. 52 OF CIIOSES IN POSSESSION. ceipt of the writ, to endorse on it (without fee) the day of the month and year on which he received it. Goods and chattels might therefore be safely alienated, although judgment might exist against the owner, pro- vided a writ of execution were not actually in the hands of the sheriff. And a recent statute now provides that no writ of execution shall preju- dice the title to goods acquired by any person bond fide, and for a valuably consideration, before the actual seizure thereof by virtue of such writ ; provided such person had not, at the time when he acquired such title, notice that such writ, or any other writ under which the goods mio-ht be seized, had been delivered to the officer and remained unexe- cuted in his hands.(A;) It has been decided that an alienation to secure or satisfy another creditor is not void within the above-mentioned statute of the 13 Ehzabeth,(Z) although made with the intention of defeating an expected execution of the judgment creditor. (m)^ Besides the sale of goods under the writ of fieri facias, there might also be a writ of levari facias, now disused, by which the sheriff levied the corn and other pres- ent profit which grew on the lands, together with the rents then due, and the cattle thereon. (r?) And by the writ of elegit, the goods of the debtor are delivered to his ^creditor at an appraised value, together L -I with possession of his lands. (o) It has however been enacted that the wearing apparel and bedding of any judgment debtor or his family, and the tools and implements of his trade (not exceeding in the whole the value of five pounds), shall not be liable to seizure under any execu- tion or order of any court against his goods and chattels.(p)^ And the [k) Stat. 19 & 20 Vict. c. 97, s. 1. See Hobson v. Thelluson, Law Rep. 2 Q. B. 642, qu.? [1) Stat. 13 Eliz. c. 5. (wi) Wood V. Di.\ie, 7 Q. B. 892 (E. C. L. R. vol. 53) ; Hale v. Saloon Omnibus Com- pany, 4 Drew. 492. (m) 2 Wms. Saunders, 68 a, n. (1). (o) Pullen V. Purbecke, 1 Ld. Raym. 346. See the present forms of this writ and of the writ of fi. fa., 9 A. & E. 986 (E. C. L. R. vol. 36) et seq., 5 New Cas., 366 et seq. {p) Stat 8 & 9 Vict. c. 127, s. 8. 1 See post p. 132, note 2h. p. 1211 ; Code of Ala. (1852). p. 453, sec. * Provisions analogous to that stated in 2462; Gen. Stats. Mass. (Ibouj,- p. 68, sec. the text, and more or less liberal to the 32 ; Nix. Dig. Laws of N. J. (1868), p. 295, debtor, are in force in almost all the states sees. 9, 13 ; Revis. Code of N. C. (1855), p. of the Union: Gen. Stats. N. H. (1867), 276, sec. 8 ; 1 Revis. Stats. Ky. (I860), p. pp. 415, 416 ; Thompson's Dig. Laws of 495, Sup. to Revis. Stats. Ky. p. 714. See Fla., p. 356, sec. 3; 3 Revis. Stats, of N. sec. 1, 6 Stats, of S. C, pp. 213, 214; Y. 645, and 6 N. Y. Stats, at Large, pp. 367, Caruth. and Nichol. Stat. Laws of Tenn., 830; Revis Stats, of Vt. (1839), p. 240, p. 533, and Laws of Tenn. Sup. (1846), pp. sec. 13 ; 2 Compiled Laws of Mich. (1857), 230, 231 ; Laws of Del., Revis. Code, 1852, OF THE ALIENATION OF CHOSES IN POSSESSION. 53 Common Law Procedure Act, 1860, now provides, that where goods or chattels have been seized in execution by a sheriff or other officer under process of the superior courts of common law, and some third person claims to be entitled under a bill of sale or otherwise to such goods or chattels by way of security for a debt, the court or a judge may order a sale of the whole or part thereof, upon such terms as to payment of the whole or part of the secured debt or otherwise as they or he shall think j5t, and may direct the application of the proceeds of such sale in such manner and upon such terms as to such court or judge may seem just.(^) Choses in possession are also liable to involuntary alienation on the bankruptcy of their owner. In this event, all such property as may be- long to or to be vested in the bankrupt at the commencement of the bankruptcy, or may be acquired by or devolve on him during its con- tinuance, except property held by him on trust for any other person, and except the tools (if any) of his trade and the necessary wearing apparel and bedding of himself, his wife and children, to a value inclusive of tools and apparel and bedding, of twenty pounds in the whole, vest first in the registrar of the Court of Bankruptcy, and then in the trustee appointed by the creditors under the Bankruptcy Act, 1869.(7-) Under the pre- vious bankruptcy act the property of the bankrupt *vested first in r^^^-i the official assignee, and then in the creditors' assignees. (s) And in order to prevent traders from obtaining false credit from the posses- (q) Stat. 23 & 24 Vict. c. 126, s. 13, (r) Stat. 32 & 33 Vict. c. 71, ss. 17, 83, paragraph (6). See post, the chapter oa Bankruptcy. (s) Stat. 24 & 25 Vict. c. 134, ss. 108, 117. pp. 393, 394; Dig. of the Stats, of Ark., cntion or by distress for rent." Pur. Dig. pp. 496, 497 ; Revis. Stats. Ohio (1860), p. (1861), p. 432, sec. 20. And by the act of 1143 sec. 1. the 4th of March 1870, sewing machines In Pennsylvania, the exemption law is used and owned by private families are somewhat peculiar, it being enacted by the also exempted. Purd. Dig. Sup. p. 1606, act of the 9th of April, 1849, sec. 1, that, sec. 1. "In lieu of the property now exempt by By the constitution of the state of Michi- lawfromlevy and sale on execution, issued gan, it is provided. Art. xvi. sec. 1, that upon any judgment obtained upon contract "the personal property of every resident and distress for rent, property to the value of this state, to consist of such property of three hundred dollars, exclusive of all only as shall be designated by law, shall wearing apparel of the defendant and his be exempted to the amount of not less family, and all Bibles and school-books than five hundred dollars, from sale on in use in the family (which shall remain execution, or other final process of any exempted as heretofore), and no more, court ;"&c. 1 Comp. Laws. Mich. (18.")7), 72. owned by or in possession of any debtor, See post page 132, note 2 b. and 149 shall be exempt from levy and sale on exe- note 2. 54 OF CIIOSES IN POSSESSION. sion of property wliich was not their OAvn, it was provided by the former bankruptcy acts,(f) that if any bankrupt at the time he became bankrupt should by the consent and permission of the true owner thereof have in his possession, order, or disposition, any goods or chattels, whereof he was reputed owner, or whereof he had taken upon him the sale, altera- tion or disposition as owner, the Court of Bankruptcy should have power to order the same to be sold and disposed of for the benefit of the cred- itors under the bankruptcy. But it was held that, until an order for the sale of such goods had been made by the court, no property in them vested in the assignees ;(m) and the order was required to" specify the particular goods which were to be sold. (a:) The above provision was ap- parently extended by the Bankruptcy Act, 1851, (?/) to all persons whether traders or not. And now by the Bankrui)tcy Act, 1869,(2) the property of the bankrupt divisible amongst his creditors comprises all goods and chattels being at the commencement of the bankruptcy in the possession, order or disposition of the bankrupt, being a trader, by the consent and permission of the true owner, of which goods and chattels the bankrupt is reputed owner, or of which he has taken upon himself the sale or disposition as owner ; provided that things in action, other than debts due to him in the course of his trade or business, shall not be deemed goods and chattels within the meaning of tliis clause. (0 Stats. 6 Geo. IV. c. 16, s.l2; 1 & 2 Will. IV. c. 56, s. 7 ; 5 & 6 Vict. c. 122, s. 59 et seg., repealed and consolidated by stat. 12 & 13 Vict. c. 106, s. 125; Hamilton v. Bell, 10 Ex. Rep. 545; 18 Jur. 1109; Reynolds v. Hall, 4 H. & N. 519 ; Holderness v. Rankin, 2 De G., F. & J. 258. (m) Heslop I'. Baker, 6 Ex. Rep. 740 ; 15 Jur. 684. See Ex parte Heslop, 1 De G., M. &G. 477 ; Ex parte Wood, 4 De G., M. & G. 861; Ex parte Young, 4 De G., M. & G. 864. (z) Quartermaine v. Bittleston, 13 C. B. 133 (E. C. L. R. vol. 76) ; Fielding v. Lee, 18 C. B., N. S. 499 (E. C. L. R. vol. 114). (^) Stat. 24 & 25 Vict. c. 134, s. 232. (x) Stat. 32 & 33 Vict. c. 71, s. 15, par. (5). • *CHAPTERIV. [*55] OF SHIPS. There is one important class of choses in possession which the policy of the law has rendered subject to peculiar rules, namely, ships and ves- sels. The whole of the acts relating to Merchant Shipping were repealed by the Merchant Shipping Repeal Act, 1854,(a) and the law on this sub- ject is now contained in the Merchant Shipping Act, 1854,(6) as amended by the Merchant Shipping Act Amendment Acts, 1855(c) and 1862. (c?) Every British ship, with a few unimportant exceptions, is required to be registered, (g) and no ship is to be deemed a British ship unless she be- longs wholly to natural born British subjects, or to persons made denizens or duly naturalized. But no natural born subject who has taken the oath of allegiance to any foreign state can be owner, unless he has subse- quently taken the oath of allegiance to her Majesty, and continues during his ownership resident within her Majesty's dominions, or, if not so resi- dent, member of a British factory, or partner in a house actually carrying on business within her Majesty's dominions. And every denizen and naturalized person must continue during his ownership resident within her Majesty's dominions, or, if not so resident, must be a member of a British factory, or partner in such a house of business as above mentioned. But bodies corporate established under *and subject to the laws r*cp-| of the United Kingdom or any British possession, and having their principal place of business therein, may be owners.(/) The registration is made by the collector, comptroller or other principal officer of customs for the time being at any port or other place in the United Kingdom ap- proved by the commissioners of customs for the registry of ships, and by other officers in the colonies and possessions abroad.(^) The property in every ship is divided into sixty-four shares ; and, sub- ject to the provisions of the act with respect to joint owners or owners by (a) Stat. lY & 18 Vict. c. 120. (b) Stat. 17 & 18 Vict. c. 104. (c) Stat. 18 & 19 Vict. c. 91. {d) Stat. 25 & 26 Vict. c. 63. (e) Stat. 17 & 18 Vict. c. 104, s. 19. As to colonial shipping, see stat. 31 & 32 Vict, c. 129. (/) Stat. 17 and 18 Vict. c. 104, s. 18. {g) Sect. 30. 5 56 OF CHOSES IN POSSESSION. transmission, not more than tliirty-two individuals shall be entitled to be registered at the same time as owners of any one ship ; but this rule is not to affect the beneficial title of any number of persons, or of any com- pany, represented by or claiming under any registered owner or joint owner.' And no person is entitled to be registered as owner of any fractional part of a share in a ship ; but any number of persons not ex- ceeding five may be registered as joint owners of a ship, or of a share or shares therein. And joint owners are to be considered as constituting one person only, as regards the foregoing rule relating to the number of persons entitled to be registered as owners, and shall not be entitled to dispose in severalty of any interest in any ship, or in any share or shares therein, in respect of Avhich they are registered. A body corporate may be registered as owner by its corporate name.(A) No notice of any trust, express, implied, or constructive, shall be entered in the register book or receivable by the registrar ; and, subject to any rights and powers ap- pearing by the register book to be vested in any other party, the registered owner of any ship, or share *therein, shall have power absolutely L J to dispose of such ship or share in the manner prescribed by the act, and to give eifectual receipts for any money paid or advanced by way of consideration. (z) But the intention of the act is, that, without preju- dice to the provisions contained in the act for preventing notice of trusts from being entered on the register, and without prejudice to the powers of disposition and of giving receipts, conferred by the act on registered owners and mortgagees, and without prejudice to the provisions contained in the act relating to the exclusion of unqualified persons from the ownership of British ships, equities may be enforced against owners and mortgagees of ships in respect of their interest therein, in the same manner as equities may be enforced against them in respect of any other personal property. (^) Upon the completion of the registry of any ship, the registrar gives a certificate of registry in the form prescribed by the act. And whenever any change takes place in the registered ownership of Any ship, then if such change occurs when the ship is at her port of registry, a memorandum of such change is forthwith endorsed by the registrar on the certificate of registry. But if the ship is absent from her port of registry, then, upon her first return to such port, the master must deliver the certificate of registry to the registrar, and he is to en- (A) Sect. 37. (i) Sect. 43. (*) Stat. 25 & 26 Vict. c. 63, s. 3. See Ward v. Beck, C. P. 9 Jur. N. S. 912; 13 C. B N.-S..668 (E. C. L. R. vol. IdGj ; Stapleton v. Haymen, 2 H. & C. 918. 1 There are no provisions in the registrj' number of owners, or regulating the frac- laws of the Ujiited States, restricting the tional parts of their ovcnership. OF SHIPS. 57 dorse thereon a like memorandum of the change. Or if she previously arrives at any port where there is a British registrar, such registrar shall, upon being advised by the registrar of her port of registry of the change having taken place, endorse alike memorandum thereof on the certificate of registry, and may for that purpose require the certificate to be delivered to him, so that the ship be not thereby *detained.(Z) Provision r:^rQ-i is also made for the granting of a new certificate in the place of any which may be delivered up, or may be mislaid, lost or destroyed. (?») The certificate of registry is to be used only for the navigation of the ship, and is kept in the custody of the master, and is not subject to de- tention by reason of any title, lien, charge, or interest whatsoever which any owner, mortgagee or other person may have or claim to have in the ship described in such certificate. («)^ A registered ship or any share therein, when disposed of to persons qualified to be owners of British ships, must be transferred by bill of sale, and such bill of sale must contain such a description of the ship as is con- tained in the surveyor's certificate, or such other description as may be sufficient to identify the ship to the satisfaction of the registrar, and must be according to the form set out in the schedule to the act, or as near thereto as circumstances permit, and must be executed by the transferor in the presence of and be attested by one or more witnesses. (o) And in case any bill of sale, mortgage or other instrument for the disposal or transfer of any ship or any share or interest therein, is made in any form or contains any particulars other than the form and particulars prescribed and approved for the purpose by or in pursuance of the Merchant Ship- ping Act, 1854, no registrar shall be required to record the same without the express direction of the commissioners of her Majesty's customs. (j^) And no individual can be registered as transferee of a ship, or of any share therein, until he has made a declaration in a prescribed form, stating his qualification to be registered as owner of a share in a British ship. And if a body corporate be *transferee, the secretary or other duly r*rn-| appointed public officer of such body corporate must make a simi- lar declaration. (^) The bill of sale, together with the required declara- tion, must then be produced to the registrar of the port at which the ship is registered, who thereupon enters in the registrar the name of the (l) Stat. 17 & 18 Vict. c. 104, s. 45. (ni) Sects. 47, 48, 53. (n) Sect. 50. (o) Sect. 55. Ip) Stat. 18 & 19 Vict. c. 91, s. 11. (7) Stat. 17 & 18 Vict. c. 104, s. 56. . s, 1 For the laws of the United States, on Brightly's Dig. of the Laws of the U. S., p. the subject of certificates of registry, see 826 et seq. 59 OF cnosES in possession. transferee as owner of the ship or share comprised in the bill of sale, and also endorses on the bill of sale the fact of such entry having been made, with the date and hour thereof. All bills of sale are entered in the register book in order of their production to the registrar.(ry All mortgages of any ship, or share therein, are to be in a form pre- scribed by the act, or as near thereto as circumstances permit ; and on the production of such instrument, the registrar of the port at which the ship is registered is to record the same in the register book.(«) Every such mortgage is to be recorded by the registrar in the order of time in which the same is produced to him for that purpose, and the registrar shall by memorandum under his hand notify on the instrument of mort- gage that the same has been recorded by him, stating the day and hour of such record.(<) If there is more than one mortgage registered, the mortgagees are entitled to priority one over the other according to the date at which each instrument is recorded in the register book, and not according to the date of each instrument itself, notwithstanding any ex- press, implied or constructive notice.(u) No mortgagee is to be deemed by reason of his mortgage to be the owner of a ship, or of any share therein, nor is the mortgagor to be deemed to have ceased to be owner, r*Rn"l 6^<^6P* ^^ ^0 ^^^' ^^ ™^y ^® necessary for making *such ship or *- share available as a security for the mortgage debt.(a;) Every (r) Sect. 57. (s) Sect. 66. (t) Sect. 67. (u) Sect. 69. [x) Sect. 10. See European Co. v. Royal Mail Co., 4 K. & J. 676; Dickinson v. Kitchen, 8 E. & B. 789 (E. C. L. R. vol. 92) ; Marriott v. The Anchor Reversionary Company, Limited, 2 Giff. 457 ; Collins v. Lamport, L. C. 11 Jur. N. S. 1 ; 13 W. R. 283; 34 L. J. Chan. 196; Rusden v. Pope, 37 L. J. N. S. Exch. 137; Law Rep. 3 Exch. 269. 1 " Our Registry Act requires, that upon transfer ; and further declares, that in case every transfer of a registered ship, in -whole she is not so registered anew, she shall or in part, to any other citizen, there shall not be entitled to the privileges and bene- be some instrument of writing in the na- fits of a ship of the United States. Act of ture of a bill of sale, which shall recite at 1792, ch. 45, ^ 14. The consequence of length the certificate of registry; other- the non-registry is, that the ship becomes wise, the ship shall be incapable of being a foreign ship." Abbott on Shipping, by registered anew. Act of 1792, ch. 45, § 14. Story, p. 96, n. 2. But the act does not invalidate any con- The intention of the Act of March 2, tract of conveyance made between the 1831, on the subject of enrolled and li- parties, unless the certificate is recited, censed vessels, was to enable such vessels but leaves such contract to be decided in certain cases, to engage in foreign and upon, according to the general principles domestic commerce at one and the same of the common law : Wendover v. Hoge- time, without the formality of a registry, boom, 7 Johns. 308; Hatch v. Smith, 5 not exacting the restrictions, nor enforcing Mass.. 42; Weston v. Penniman, 1 Mason the penalties imposed on registered vessels. 306. Our act, however, requires every The Forrester, 1 Newb. Adm. 81. ship to be registered anew upon every OF SHIPS. 60 registered mortgagee is to have power absolutely to dispose of the ship or share in respect of which he is registered, and to give effectual receipts for the purchase-money; but if more persons than one are registered as mortgagees of the same ship or share, no subsequent mortgagee shall, except under the order of some court capable of taking cognizance of such matters, sell such ship or share without the concurrence of every prior mortgagee.(yj Mortgages of ships are not to be affected by the bankruptcy of the mortgagor ;{z) and a form is provided for the transfer of mortgages. (a) And whenever any registered mortgage shall have been discharged, the registrar, on production of the mortgage deed Avith a receipt for the mortgage money endorsee^ thereon, duly signed and at- tested, makes an entry of the discharge of such mortgage in the register book ; and upon such entry being made, the estate, if any, which passed to the mortgagee, vests in the same persons in whom the same would (having regard to intervening acts and circumstances, if any) have vested if no such mortgage had ever been made. (6)^ {^/) Stat. 17 & 18 Vict. c. 104, s. 71. (z) Sect. 72. {a) Sect. 73. (6) Sect. 68. ^ Congress has provided for the record- ing of any mortgage or conveyance of a vessel, by an act entitled "An act to pro- vide for recording the conveyances of ves- sels, and for other purposes," passed the 29th July, 1850. The incidental effects of this act upon mortgages and conveyances of vessels, will be found to be very exten- sive. Sec. 1. " That no bill of sale, mortgage, hypothecation, or conveyance of any ves- sel, or part of any vessel, of the United States, shall be valid against any person other than the grantor or mortgagor, his heirs and devisees, and persons having actual notice thereof; unless such bill of sale, mortgage, hypothecation or convey- ance, be recorded in the office of the col- lector of the customs where such vessel is registered or enrolled. Provided, That the lien by bottomry on any vessel, created during her voyage, by a loan of money or materials, necessary to repair or enable such vessel to prosecute a voyage, shall not lose its priority, or be in any way aflfected by the provisions of this act. Sec. 2. " And be it further enacted, That the collectors of the customs shall record all such bills of sale, mortgages, hpyothe- cations or conveyances, and also, all cer- tificates for discharging and cancelling any such convej^ance, in a book or books to be kept for tliat purpose, in the order of their reception; noting in said book or booJiS. and also on the bill of sale, mort- gage, hypothecation or conveyance, the time when the same was received, and shall certify on the bill of sale, mortgage, hypothecation or conveyance, or certifi- cate of discharge or cancellation, the number of the book and page where re- corded ; and shall receive, for so recording such instrument of conveyance, or certifi cate of discharge, fifty cents. Sec. 3. ^' And be it further enacted, That the collectors of the customs shall keep an index of such records, inserting alpha betically the names of the vendor or mort- gagor, and of the vendee or mortgagee, and shall permit said index and books of record to be inspected during office hours, under such reasonable regulations as they may establish, and shall, when required, furnish to any person, a certificate, setting forth the names of the owners of any vessel registered or enrolled, the parts or 60 OF CIIOSES IN POSSESSION. Provision is made enabling any registered owner to empower any other person or persons to sell any entire ship, or to mortgage any ship or any share therein, at any place out of the country or possession in which the port of registry of the ship is situate. For this purpose what are called certificates of sale or mortgage are *granted by the registrar on [ "Ij certain conditions mentioned in the act, and in forms set out in the schedule thereto.(6') The above are the principal provisions of the act so far as relates to the conveyance of ships. For more particular information the reader must be referred to the acts themselves, which are of great length. It may, however, be added, that all instruments used in carrying into effect that part of the act Avhich relates to British ships, their ownership and registry, are exempt from stamp duty.(c^)^ The Admiralty. Court Act, 1861, (g) confers on the High Court of Admiralty jurisdiction to decide all questions arising between the co- owners, or any of them, touching the ownership, possession, employment and earnings of any ship registered in any port in England or Wales, or any share thereof; and it empowers that court to settle all accounts out- standing and unsettled between the parties in relation thereto, and to direct the ship or any share thereof to be sold, and to make such order in the premises as to the court shall seem fit.(/f The same act also gives (c) Sects. 76 et seq. See Orr v. Dickinson, 1 John. 1. (d) Stat 17 & 18 Vict. c. 105, s. 9. (e) Stat 23 Vict. c. 10. (/) Sect. 8. proportions owned by each (if inserted in ^ Previously, however, to the above Act the register or enrolment), and also the of Parliament, the English Court of Admi- material facts of any existing bill of sale, ralty, without, however, otherwise dis- mortgage, hypothecation, or other incum- claiming this authority, declined to exer- brance upon such vessel, recorded since cise it, inasmuch as it had been asserted the issuing of the last register or enrol- by the Court of King's Bench, in the reign ment, viz., the date, amount of such in- of George II., that the Court of Admiralty cumbrance, and from and to whom, or in had no authority to compel a sale, in any whose favor made ; the collector shall re- case of disagreement between part owners, ceive for each such certificate, one dollar." In this country this power has been Brightly's Dig. Laws U. S. p. 833. asserted, and in two reported cases at 1 The United States stamp duty on the least, has been exercised by the courts, bill of sale of a ship or vessel, is fifty cents In the early case of Skinner v. The Sloop for every five hundred dollars of the con- Hope, Bee's Adm. 2, in the District Court sideration thereof, or fractional part of the of the United States for the District sum of five hundred dollars when the con- of South Carolina, Judge Bee decreed a sideration is less than five hundred dollars, sale, on the petition of the owner of one or greater than five hundred dollars, or a moiety, against the owner of the other multiple thereof. Act of Congress of June moiety of the vessel. And in the case of 30, 18G4, § 170, Sched. B, 2 Brightly's U. Davis Brooks v. The Brig Seneca, Gilp. S. Dig. p. 377, § 356. 10, where the owners were equally di- OF SHIPS. 61 the Court of Admiralty jurisdiction over any claim in respect of any mortgage duly registered according to the provisions of the Merchant Shipping Act, 1854. (^) (g) Sect. 11. See also sects. 10, 12 and 13. By Stats. 31 & 32, Vict. c. 71, and 32 & 33 Vict. c. 51, admiralty jurisdiction is given to some of the County courts. Tided in opinion, each wishing to employ the brig upon a distinct voyage, the learned Judge of the District Court of the United States for the Eastern District of Pennsyl- vania, having, in an elaborate opinion, decided against the jurisdiction, his judg- ment was reversed by Justice Washington, on appeal to the Circuit Court. 1 Conkl. U. S. Admiralty, p. 324. But it has been held that the United States courts sitting in admiralty, have no power to decree the sale of a ship to satisfy a mortgage : Bogart v. Steamboat John Jay, 17 How. U. S. 399. In order to avoid disputes between the different owners of a ship or other vessel, on the subject of her management, it fre- quently happens that the owners unite in appointing or selecting one of their num- ber to be her manager, who is called the ship's husband. A ship's husband is a common expressive maritime phrase, to denote a peculiar sort of agency, created and delegated by the owner in regard to the repairs, equipment, management, and other concerns of the ship. He is under- stood to be the general agent of the owners, in regard to all the affairs of the ship in her home port: Story, Agency, § 35, and notes ; 3 Kent 175. The ship's husband, or managing owner, may bind the other owners for the outfit, care, and employment of the vessel, but he has no power to purchase a cargo on their credit, without authority from them : Hewitt V. Buck, 17 Maine 147 ; Bell v. Humphries, 2 Stark. 286. It is not his duty as ship's husband to insure a vessel, and neither he, nor part owners, who insure the interest of their co-owners in a vessel without express au- thority, can recover the premium paid by them : Turner v Burrows, 8 Wendell 144 ; Abbott on Shipping, p. 136, n. p. Sims V. Brittain, 4 B. & Ad. 375. Law Magazine article, " Mercantile Law," No. 13. See Kent's Commentaries, p. 147. See also Story's Commentaries on Agency, p. 32. " The ship's husband," says Beawes (Lex Mercatoria, p. 52), " is, as it were, a steward at land, to the owner of the ship, as the officer bearing that name is on board, when the ship is at sea." " The ship's husband," says Mr. Bell (Principles of the Law of Scotland, p. 449), "is the agent or commissioner for the owners. He may be a part owner or a stranger. His powers are by mandate or written commission by the owners, or by verbal appointment; the latter chiefly, where he is also part owner. His duties are, — 1. To arrange everything for the outfit and repair of the ship, stores, repairs, furnishings ; to enter into contracts of affreightment ; to superintend the papers of the ship. 2. His powers do not extend to the borrowing of money ; but he may grant bills for furnish- ings, stores, repairs, and the necessary engagements, which will bind the owners, although he may have received money wherewith to pay them. 3. He may re- ceive the freight, but is not entitled to take bills instead of it, giving up the lien by which it is secured. 4. He has no power to insure for the owner's interest, without special authority. 5. He cannot give authority to a law agent that will bind his owners, for expenses of a lawsuit. 6. He cannot delegate his authority." See also 1 Bell's Commentaries, p 411 ; Abbott on Shipping, p. 136, n. p. Where a person supplied stores to a ship on the order of one of several owners, who acted as the ship's husband, and took his note in payment, and gave a receipt in full, it was held that all the owners were liable, the note not being paid : Schemer- horn V. Loines, 7 Johns. 311. 61 OF CHOSES IN POSSESSION. Sometimes a vessel is hired for a given voyage. The instrument by which such hiring is effected is termed a charter-party. (A) Whether the Icfal possession of tlie sliip passes to the hirer (or charterer, as he is called) depends on the stipulations contained in the charter-party, such as r*fi9l whether the charterer or the owner is to *provide the seamen, and ^ "^ keep the vessel in order.(/) Where a merchant ship is open to the conveyance of goods generally, it is called digeyieralsMp.^ The receipt for the goods given by the master is called the hill of lading :^ it states {h) The stamp duty on a charter-party is now sixpence. Stat. 28 & 29 Vict. c. 96, s. 7.» I (t) Dean v. Hogg, 10 Bing. 345 (E. C. L. R. vol. 25) ; Fenton v. City of London Steam Packet Company, 8 A. & E. 835 (E. C. L. R. vol. 35). The managing owner of a vessel repre- sents the interests of all, and has the same power which the major part in interest have, with respect to the change of em- ployment, and the preparation and outfit of the vessel, in a manner suited to her profitable employment, in the business to which she is destined : Hall v. Thing, 10 Shep. 461. The ship's husband, or managing owner may bind the other owners for the outfit, care, and employment of the vessel, but he has no power to purchase a cargo on their credit, without authority from them : Hewett V. Buck, 5 Shep. 147. In the absence of any special agreement on the subject, the ship's husband is pre- sumed to have authority to do everything necessary to be done for the employment of the vessel ; Revens v. Lewis, 2 Paine 202 ; and the fact of one acting as such, is sufficient evidence of his appointment without any formal proof : 6 H. & N. 145. For further description of the proper functions and powers of a ship's husband, see Collyer on Partnership, B. 5, ch. 3, I 1213, 4th ed. ^ The United States stamp duty on a charter-party, is one dollar where the registered tonnage of the vessel does not exceed one hundred and fifty tons ; three dollars, where exceeding one hundred and fifty tons it does not exceed three hundred tons ; five dollars, where exceeding three hundred tons it does not exceed six hun- dred tons ; and ten dollars where it exceeds six hundred tons. Act of Congr. of June 30, 1864, I 170, Sched. B, 2 Brightly's U. S. Dig. p. 377, I 356. ^ It is usual for the mate to sign a re- ceipt for the goods shipped, at the time of their delivery at or on board the vessel, and to deliver it to the shipper. This again is surrendered, when the bill of lad- ing has been signed by the master and delivered to the shipper. 3 A bill of lading is the written acknowl- edgment of the master of a vessel, that he has received certain specified merchandise from the shipper, to be conveyed, on the terms therein expressed, to their destina- tion, and at that place to be delivered to the parties therein designated : Abbott on Shipp. 323. Much legal learning and talent have been exercised in developing the law of this instrument, the principal heads of which may be succinctly enumer- ated as follows : 1st. The effect of a bill of lading, as evidence of the ownership of the goods by the consignees. A., of Liverpool, shipped goods, which, by the bill of lading, were to be delivered to B. or his assigns, in Philadelphia. The freight was payable in Liverpool, and it appeared that the goods were shipped on account of A. Held, that the bill of lading vested the property in B., who might maintain an action in his own name against the owner of the ship for the negligent carriage of the goods : Griffith v. Ingledew, OF SHIPS. 62 that the goods are to be delivered to the consignee or his assigns ; and by the custom of merchants, the bill of lading, when endorsed by the consignee 6 S. & R. 629. See also Sammerell v. Elder, 1 Binn. 106; Ryberg v. Snell, 2 Wash. C. C. 403; Arbuckle v. Thomp- son, 37 Penn. St. 175 ; The Sally Magee, 3 Wall. U. S. 451. But the property will not vest in the consignee, until the bill of lading has been delivered to him by the consignor, or some one authorized by him to make this delivery : Walter v. Ross, 2 Wash. C. C. 283 ; Stille v. Traverse, 3 Wash. C. C. 43 ; Allen v. Williams, 12 Pick. 297 ; Low v. De Wolf, 8 Id. 100 ; Graham v. Ledda, 17 La. Ann. 45. 2d. The effect of an endorsement of a bill of lading, as a transfer of property. Bills of lading are transferable by en- dorsement ; and when thus transferred by a consignee, to a bo7id fide purchaser for a good consideration, without notice of ad- verse claims, they pass the legal title of the property, to the endorsee. And where the endorsee, without any laches on his part, takes possession of the property as soon as its arrival from sea is known to him, an attachment levied on the property after the assignment, will be ineffectual and inoperative : Winslow v. Norton, 29 Maine (16 Shep.) 419 ; The Mary Ann Guest, Olcott's Adm. 498. So, where the master of a vessel signs bills of lading to third parties, bona fide assignees of such bills, for value, will be entitled to hold the property as against the charterer of the vessel : Zachrisson v. Ahman, 2 Sandf. Sup. Ct. 68. See also. Chandler v. Belden, 18 Johns. 157 ; Dawes v. Cope, 4 Binn. 258 ; Walter v. Ross, 2 Wash. C. C. 294 ; Dows v. Rush, 28 Barb. 157. But though a bill of lading is prima facie evi- dence of property, in the hands of a bond fide endorsee for a valuable consideration, yet the endorsement may be explained in certain circumstances, according to the the intention of the party : Low v. De Wolf, 8 Pick. 107 ; Hibbert v. Carter, 1 T. R. 745 ; and a fraudulent holder of the bill, can pass no title to the goods in such bill, to a purchaser for value, without notice of the fraud : Decan v. Shipper, 35 Penn. St. 239 ; Dows v. Green, 24 N. Y. 638. Nor will the endorsement of a bill of lading, without a delivery of it, transfer the propertj' in the goods mentioned in it, as against the attaching creditors of the endorser: BufSngton v. Curtis, 15 Mass. 528. See also, on this head, the cases cited in Abbott on Shipp. by Story p. 534, note (1) ; and, that possession of one of the three usual bills of lading, is not of itself sufficient evidence of the ownership of the goods, see Graff v. Caldwell, 8 Rich. 529; s. c. 9 Id. 325; Blossom v. Cham- pion, 37 Barb. 554 ; and the fact that the bill has been delivered without tndorse- ment, to another than the consignee, to cover advances made upon it by him, can- not convey to him any other right than a lien for the advances : Bissell v. Steel, 28 Leg. Intel. 157. See further on the sub- ject of a transfer of a bill of lading by en- dorsement and delivery, rtnefited by his wrong. Thus in Alabama: Nettles V. Barnett, 8 Porter 181 ; Coker, Admr. u. Crozier, 5 Ala. 369; 16 Id. 398. So in Massachusetts : Cravarth v. Plympton, Admr., 13 Mass. 394; Jarvis, Admr. v. Roger, 15 Id. 398 ; Pitts v. Hale, 3 Id. 321 ; Jenney v. Jenney, 14 Id. 232 ; Barnard v. Harrington, 3 Id. 228 ; Badlam, Exr. v. Tucker, 1 Pick. 284; Perry v. Wilson, 7 Mass. 395 ; Mellen et al. v. Baldwin, 4 Id. 480. So also in South Carolina : Exrs. of Middleton v. Robinson, 1 Bay 58. In Tennessee, by the Act of 1835-6, c. 77, all actions, except for wrongs affecting the person or character of the plaintiff, com- menced by or against a deceased person in his lifetime, may be revived by or against his representatives ; and even be- fore that statute, the law would give a remedy for injury to personal property, though an action of tort, technically speaking, might not survive : Norment V. Smith, 1 Humph. 46 ; Jones v. Little- field, 3 Yerg. 144; Cocke v. Trotter, 10 Id. 213. In Maine it has been held, that upon the death of the defendant in re- plevin, the suit abates, the administrator not being authorized to come in and de- fend : Merrit v. Lumbert, 8 Greenl. 128. In Indiana, although an action of waste cannot be brought by an administrator de bonis non, against the administrator of the original administrator, yet it may be main- tained by the creditors of the original intestate : Ferguson et al. v. Sweeney, 6 Black. 547 ; Lewis, Admr., v. Houston, 7 Id. 335; Young v. Kimball, 8 Id. 167. In Mississippi and Louisiana, actions com- menced do not abate by the death of either party : Torry et. al. v. Robinsoa, 2 Cush. (Miss.) 193; Purtevant v. Pendleton's Admr., 1 Id. 41; I La. Ill; 6 Id. 301; 11 Id. 357 ; 6 Robinson 44 ; 1 Id. 522. 1 Whether an action of tort can be main- tained by the representatives of a decedent, for an injury done to his real property ; as also whether the representatives of a tres- passer upon real property, can be made OF ACTIONS EX DELICTO. 65 vided, that whenever the death of a person shall he caused hy such wrongful act, neglect or default, as would (if death had not ensued) *have entitled the party injured to maintain an action and re- r:^^.^-, cover damages in respect thereof, the wrongdoer shall he liahlc -" to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such cir- cumstances as amount in law to felony. Under this act, one action only can lie for the same subject-matter of complaint; and such action must •be commenced within twelve calendar months after the death of the deceased,(Z) in the name of his executor or administrator,(wj) and must {I) Stat. 9 & 10 Vict. c. 93, s. 3. (m) Sect, 2. defendants in a suit brought to recover damages for such an injury, has not been so generally decided by the courts of the several States, as the inquiries concerning the surviving of actions for injuries to personal property. The former question has been decided in the affirmative by the courts of Mary- land, Massachusetts, Vermont, Connecti- cut, South Carolina, Tennessee and Mis- sissippi : Kennerly, Exrx., v. Wilson, 1 Md. 102; Wilbur, Exr., v. Gilmore, 21 Pick. 250 : Boynton et al. v. Rees, 9 Id. 528 ; Goodridge v. Rodgers, Admr., 22 Id. 495 ; Stanley, Admr., v. Gaylord, 10 Mete. 82 ; Northampton Paper Mills v. Ames et al., 6 Id. 422; Griswold, Admr., V. Brown et al., 1 Day 180 ; Bellow's Admr. V. Allen, 22 Vt. 108 ; Admr. of Barrett v. Copeland, 20 Id. 247; Chalk v. McAlly, 10 Rich. 92; Winters v. McGhee, 3 Sneed 128 ; N. 0., &c., R. R. Co. v. Moye, 39 Miss. 374. The authority of Maine, California, Illinois, and perhaps of Virginia, is in the negative: Hill, Admr., r. Penny, 17 Maine 410; O'Conner v. Corbit, 3 Cal. 370; Read V. Peoria & Oquawka R. R. Co., 18 111. 403 ; Harris v. Crenshaw, 3 Rand. 14 ; though in the latter State it has been held that on the death of a plaintiff, in pro- ceedings to recover damages to land, caused by the erection of a dam, under a statute, the proceedings may be revived by the administrator, Upper Appomattox Co. V. Ilardings, 11 Gratt. 1; and as to 6 the law of California, see Haight v. Green, 19 Cal. 113. In Pennsylvania, the authorities are conflicting: Keito, Admr., v. Boyd, 16 S. & R. 300, giving an action to the representatives of a decedent for a trespass de bonis asportatis, and Lattimore et al., Exrs., v. Simmons, 13 S. & R. 184, deciding that no action will survive to the representatives for an injury to the freehold. That tort for injuries to real property, will survive against the representatives of the wrongdoer, has been held in Kentucky : Kenney et al. v. McAfiel's Exrx., 1 Lit. 169. So also, perhaps, in North Carolina and Vermont : Dobbs v. Gullidge, 3 & 4 Dev. & Bat. 68 ; McPherson v. Leguire, 3 Dev. 153; Arnold v. Exrx. of Lanier, 1 Caro. L. Reg. 529; Burgess v. Gates, Exrx., 20 Vt. 326. In New York and New Jersey this action may also be main- tained, provided a benefit has accrued to the estate of the wrongdoer: 2 Kent Com. 416; Cooper v. Crane, 4 Halst. 177; but it has been held in New York, that trespass for mesne profits will not survive against the wrongdoer's personal repre- sentative : Campbell v. Renwick, 2 Bradf. 80. In Texas, the administration of the whole estate, both real and personal, is by law cast upon the administrator, who can therefore bring and maintain suits for lands belonging to his intestate: Graham V. Vining, Admr., 2 Texas 433, 66 OF CIIOSES IN ACTION. be for the benefit of the wife, husband, parents, grandfather and grand- mother, stepfather and stepmother, cliihh-en, grandchiklren and step- children of the deceased, in such shares as the jury shall direct.(w) And if there shall be no executor or administrator of the person deceased, or, there being such executor or administrator, no action shall have been brout^ht in his name within six calendar months from the death of the deceased, then such action may be brought by and in the name or names of all or any of the persons (if more than one) for whose benefit such action would have been, if it had been brought by or in the name of such- executor or administrator.(o) Previously to this statute, a man who had been maimed by another could recover compensation for the injury ; but if he died of his wound, his family could obtain no recompense for the r*fi7-i the loss of a *life which might have been their only dependence.^ ^ -" And even now, when the death of a person is not caused^ no action can be brought by bis executor or administrator for any injury which affected him personally, if it did not touch his property. Thus it has been held, that an executor or administrator cannot have an action (n) Sects. 2, 5. This act is a specimen of the common absurdity of modern acts of parliament, in introducing an interpretation clause in one section just to vary the meaning of another. It enacts in one section that the action shall be for the benefit of the wife, husband, parent and child ; and in another section that the word " parent" shall include father and mother, and grandfather and grandmother, and stepfather and stepmother ; and the word " child" shall include son and daughter, and grand- son and granddaughter, and stepson and stepdaughter. Now the words " parent" and "child" occur only in the one place just mentioned besides this interpretation clause. Why not therefore say at once what is really intended? (o) Stat. 27 & 28 Vict. c. 95, s. 1. 1 An Act of the Legislature of Pennsyl- widow of any such deceased, or if there vania, of the 15th April. 1851, provides, be no widow, the personal representatives that no action for injuries to the person, may maintain an action and recover dam- happening through negligence, default, or ages for the death thus occasioned." violence, shall abate by the death of the Purd. Dig. (1861) 286. plaintiff; the words of the act are: "No A statute of Massachusetts (1842, c. 89, action hereafter brought, to recover dam- § 1), is somewhat similar, providing that ages for injuries to the person, by negli- actions on the case for damages to the gence or default, shall abate by reason of person, shall survive; but the courts of the death of the plaintiff; but the personal that State have decided, that the personal representatives of the deceased may be damages mentioned in this statute, mean substituted as plaintiff, and prosecute the only physical injuries : Smith v. Sherman, suit to final judgment and satisfaction." 4 Cush. 408 : Walters v. Nettleton, 5 Id. "Whenever death shall be occasioned 544; Nettleton v. Dinehart, 5 Id. 543. by unlawful violence or negligence, and Laws of a like character are also existing no suit for damages be brought by the in other of the States, most of them being party injured during his or her life, the comparatively recent enactments. OF ACTIONS EX DELICTO. 67 for a breach of promise of marriage with the deceased, where no special damage can be stated to have accrued to her personal estate.(j9) Not only the death of the injured party, but also that of the wrong- doer, formerly put an end to every action which arose from a tort or wrong ; and this was the case up to a very recent period ; although if the executor or administrator had profited by the wrong done, the in- jured party was able to recover from him the money or goods he had thus gained.(9y But by a modern statute(r) an action may now be main- tained against the executors or administrators of any person deceased for any wrong committed by him within six calendar months before his death against another person, in respect of his property real or personal; so as such action be brought within six calendar months after such exe- cutors or administrators shall have taken upon themselves the adminis- tration of the estate and effects of such person.^ And the damao-es to be recovered in such action are to be payable in the like order of adminis- tration as the simple contract delbts of such person. The remedy afforded by this statute does not preclude such action as might have previously been brought against the executor or administrator.(s) There is one peculiar action founded on tort, to which, from the nature of thg case, the deceased himself cannot *be liable, but which is ri^ocn maintainable by the common law against his executors or adminis- trators. This is the action for dilapidations of the houses or buildings on a benefice ; and it is brought by the new incumbent, whether of a rectory, vicarage or perpetual curacy,(i) against the executors or administrators of his predecessor. This action cannot be said to be an exception to the rule actio personalis moritur cum persona, for the deceased is not liable during his lifetime; the plaintiff must be the succeeding incumbent; and an action cannot be said to die which never had or could have any exist- ence, (w) However, in the case of resignation or exchange, the preceding, incumbent is himself liable for dilapidations. (y) In estimating the damages to be recovered in this action, the rule is as follows : — The incumbent is bound to maintain the parsonage, farm buildings, and chancel in good and substantial repair, restoring and rebuilding when necessary, according {p) Chamberlain v. Williamson, 2 M. & Selw. 408, 415. [q) Powell t^. Rees, 7 Ad. & E. 426 (E. C. L. R. vol 34). (r) Stat. 3 & 4 Will. IV. c. 42, s. 2. (s) Powell v. Rees, ubi supra. {t) Mason v. Lambert, 12 Q. B. 795 (E. C. L. R. vol. 64). (m) Sollers v. Lawrence, Willes 421. (r) Downes v. Craig, 9 M. & W. 16G. 1 See ante, p. 65, note. * Ibid. (38 OF cnosES in action. to the ori-'inal form, Tvithout addition or modern improvement; and he is not boinid to supply or maintain anything in the nature of ornament to which painting (unless necessary to preserve exposed timbers from decay) and ^vhite^vashing and papering belong.(2:) And no damages can be recovered on account of neglect to cultivate the glebe lands in a hus- bandlike mannev.il/) If the incumbent commit any act of waste, such as could not be committed by any ordinary tenant for life,(2;) he may be restrained by an injunction out of the Court of Chancery ;(ay but it has recently been decided that his executors will not be liable in an action for dilapidations for waste committed *by him in digging gravel in t**-*^^ pits which were opened by his predecessor.(6) Whether they would be liable if the incumbent himself opened the pits appears doubt- ful. (c) Claims for dilapidations have this peculiarity, that they are not to be satisfied by the executor until after payment of all the debts of the testator, including those merely by simple contract.((^) (x) Wise V. Metcalf, 10 B. & C. 299 (E. C. L. R. vol. 21). {y) Bird v. Ralph, 4 B. & Ad. 826 (E. C. L. R. vol. 24). (2) See Principles of the Law of Real Property, p. 23, 4th, 5th, 6th, Vth & 8th eds. (a) The Duke of Marlborough, v. St. John, 5 De G. & Sm. IH. (6) Ross V. Adcock, Law Rep. 3 C. P. 655. (c) See Huntley v. Russell, 13 Q. B. 572 (E. C. L. R. yoI. 66) ; Ross v. Adcock, ubi supra. (d) Bryan v Clay, 1 E. & B. 38 (E. C. L. R. vol. 12). But as to equitable assets, see Bissett V. Burgess, 23 Beav. 278. 1 By the laws of Pennsylvania, a writ of personal estate of said decedent is not suf- estrepement, to stay waste, may be issued ficient to pay his debts, and that the per- on the application of a remainderman son in possession of the freehold has com- against a tenant for life ; and also at the mitted waste, or allowed it to be done by suit of a creditor, against the tenant, or others: Purd. Dig. (1861), p. 1008, sees, person in possession of a decedent debtor's 5&7; Act of April 10, 1848, seel; Act real estate, upon the allegation that the of April 22, 1850, sec. 1. ♦CHAPTER 11. [*70] OF CONTRACTS. Personal actions, we have observed,(a) may be brought not only on account of the infliction of a wrong, but also to recover pecuniary damages for the non-performance of a contract, or to procure the pay- ment of money due, if the payment of a specific sum be the subject of the contract. As the payment of money is the law's ultimate remedy in personal actions, an action for a given debt will be effectually satisfied by a judgment that the plaintiff do recover his debt ; and this is the judg- ment accordingly given in an action of debt, which lies for the recovery of a specific sum due from the defendant to the plaintiff. (6) But when no specific sum is claimed, the action can only, in the law phrase, sound in damages ; and the amount of the damages to be recovered must, until recently, have been assessed by a jury according to the injury sustained. (c) But the Common Law Procedure Act, 1852, now provides, that, in actions in which it shall appear to the court or a judge that the amount of damages sought to be recovered by the plaintiff is substantially a matter of calculation, the court or a judge may direct that the amount for which final judgment is to be signed shall be ascertained by one of the masters of the court 'j{df and further, that, in all actions where the plaintiff recovers a sum of money, the amount to which he is entitled may be awarded to him by the judgment generally, without any distinction being therein made as to whether such sum is recovered by way of a *debt or damages. (e) It is, however, competent to the parties to r*7-|-i a contract to agree between themselves, that, in the event of a breach by either party, a given sum shall be recovered from him by the other as stipulated or liquidated damages ; and in this case the whole of the sum thus agreed on may, on a breach of the contract, be recovered (a) Ante^ p. 4. (6) Stephen on Pleading 116. (c) Ibid. p. 117. • {d) Stat. 15 & 16 Vict. c. 76, s. 94. (e) Ibid. ^ A rule of court somewhat resembling judgment by default in actions upon note, this, has been adopted by the Supreme bill, or book account ; and in all cases Court of the Commonwealth of Pennsyl- founded on contract and sounding in vania, whereby the prothonotary is autho- damages, where the defendant does not rized to assess the damages, in case of object. 71 OK CHOSES IN ACTION. from the (lcfaultcr.(/) The sum so agreed on is not properly called a poiiulty; f.^r. as we shall see hereafter when speaking of bonds, the law regardVa penalty as a seeurity only for the damage actually sustained; although the use of thr word penalty will not prevent the whole sum from hting recovered, if this be clearly the intention.f^r) But where a sum of umuey is stipulated to be recovered as liquidated damages in case of the breach of an agreement to do several acts, and such sum will, in ca«e of breaches of the agreement, be in some instances too large and in others too small a compensation for the injury occasioned, such sum will not be allowed to be recovered in case of any breach, but damages onlv. proportioned to the actual injury which the breach has occasion ed.(7t) In such a case, if the parties wish to bind themselves to pay liquidated damages, they must contract in clear and express terms, that for the breach of each and every stipulation contained in the agreement a sum certain is to be paid ; and in that case, although the stipulations may be of various degrees of importance, the parties will be held to their con- tract.(/)' ( f) Rcilly r. Jonc«>, 1 Rinfr. 302 (E. C. L. R. vol. 8); s. c. 8 Moore 244; Sugd. Vend. k Pur. 221, 11th ed. ; Leighton v. Wales, 2 M. & W. 545; Prfce v. Green, 16 M. & W. 346, 354 ; Galesworthy v. Strutt, 1 l5.xch. Rep. 659 ; Atkyns v. Kinnier, 4 Exch. Rep. 776. {g) Sainter i'. Ferguson, 7 C. B. 716 (E. C. L. R. vol. 62) ; Sparrow v. Paris, 7 H. & N. 594. (A) Kemble r. Farren, 6 Ring. 141 (E. C. L. R. vol. 19); s. c. 3 M. & P. 425; D»Ties V. Penton, 6 B. & C. 216, 223 (E. C. L. R. vol. 13) , s. c. 9 Dowl. & Ry. 369 ; Horner v. Flintoff, 9 M. & W. 678, 081 ; Reiadel v. Schell, 4 Scott N. S. 97 ; Belts V. Burch, 4 H. & N. 500. (i) Per Parke, B., 9 M. & W. 680. See Atkins r. Kinnier, 4 Exch. Rep. 776 ; Mercer r. Irving, 1 E, B. & E. 563 (E. C. L. R. vol. 96). > In interpreting a contract, which pro- inquiry, What is the intention of the parties Tides, tliat upon its non-fulfilment, a sum to the contract? and this question must be agreed upon shall be paid by the default- answered by taking a comprehensive view ing party, it is often a matter of great of the whole contract, and not by confin- difficulty, to determine whether the sura ing the examination to any isolated word or 90 specified to be paid, is a penalty, or sentence : Watt's Exrs. v. Sheppard, 2 liquidated damages. This difficulty is not Ala. 425; Carpenter et al. v. Lockhart, 1 les.oened, by the fact, that tlie use of the Carter (Ind ) 435 ; Heard v. Bowers et al. words "penalty " or '-liquidated damages," 23 Pick. 455; Shute v. Taylor, 5 Mete. 51; •ffords no sufficient aicl in arriving at a Brown v. Bellows, 4 Pick. 179; Beale v. conclusion ; it having been frequently dc- Hayes, 5 Saudf. S. C. 641 ; Hosmer v. cided, where the parties have called the True, 19 Barb. 106 ; Foley v. McCeegan, specific sum " liquidated damages," it is, 4 Iowa 1 ; Streeper v. Williams, 48 Penn. nevertheless, a penalty," and vice versa; St. 450; Shreeve v. Brereton, 51 Id. the only safe rule of interpretation, in this 175. The tendency, however, of the de- country as in England, is based upon the cisions of the courts, is towards determin- OF CONTRACTS. 72 *So much tlicn for the legal remedies for a breach of contract, r+79-1 Let us now inquire more particularly of Avhat a contract itself ing the sura specified in the contract, to be a penalty : Shute v. Taylor, 5 Mete. 51 ; Moore et al. v. Platte Co., 8 Mo. 467; Cheddick's Exr. v. Marsh, 1 Zab. 463; Wallis v. Carpenter, 13 Allen 19; Tayloe v. Sandiford, 7 Wheat. 13; and consequently, where the word " penalty " is used, it must clearly appear that the parties intend it should be liquidated damages, or it will be interpreted to be a penalty. In 2d Greenleaf s Evidence, |g 258, 259, certain rules will be found to ascertain the intention of the parties to a contract, as to this point. Thus it has been held to be a penalty. First, " Where the parties in the agree- ment have expressly declared the sum to be intended as a forfeiture, or penalty, and no other intent is to be collected from the instrument:" Stearns v. Barrett, 1 Pick. 443; Brown v. Bellows, 4 Id. 179; Abrams v. Kounts et al., 4 Ohio 214; Robeson et al., Exrs., v. Whitesides, 16 S. & R. 320 ; Tayloe v. Sandiford, 7 Wheat. 13, Second. " Where it is doubtful, whether it was intended as a penalty, or not ; and a certain damage, or debt, less than the penalty, is made payable, on the face of the instrument :" Dakin et al. 1;. Williams et al., 17 Wend. 447: s. c. 22 Id. 201; Baird w. Tolliver et al., 6 Humph. 186; Waller v. Long, 6 Munf. 71; Watt's Exrs. V. Sheppard, 2 Ala. 425 ; Number of cases, Ala. 209 ; Plummer v. McKean, 2 Stew. (Ala.) 423; Hamilton v. Overton et al., 6 Blackf. 266 ; Taul v. Everett, 4 J. J. Marsh. 10 ; Churchwardens et al., V. Peytavin, 2 Condens. R. S. C. La. 493 Reynolds v. Yarborough, 7 La. 193 Baxter et al., Exrs., v. Wales, 12 Mass 365; Beale v. Hays, 5 Sandf. S. C 641 ; Brockaway v. Clark, 6 Ohio 50 Allen V. Brazier et al., 2 Bailey 293 Kellogg V. Curtis, Admr., 9 Pick. 534 United States v. Gurney et al., 4 Cranch 333. But see to the contrary, Jordan V. Lewis, 2 Stew. 426, and Cutler v. How, 8 Mass. 257; Gower v. Carter, 3 Clark 244. Third. " Where the agree- ment was evidently made for the attain- ment of another object, to which the sum specified is wholly collateral:" Broad- well et al., to the use, &c., v. Broadwell, 1 Oilman (111.) 600; Nash v. Hcrmosilla, 9 Cal. 584 ; Burrage v. Crump, 3 Jonea L. 330. Its has been so held where the principal contract was to convey a tract of land: Dyer v. Dorsey et al., 1 Gill & Johns. 44 ; Shute v. Taylor, 5 Mete. 51; Lindsay v. Anesley, 6 Ired. L. 186; Dennis v. Cummins, 3 Johns. Cas. 297 ; or, not to trade, or sell liquor under a certain measure, in a specified place : Lanhen- heimer v. Maine, 19 Wis. 519 ; Perkins V. Lyman, 11 Mass. 76; or, to let the plaintiff have the use of a building: Merrill v. Merrill, 15 Mass. 488; Bearden V. Smith, 11 Rich. 554; or to submit to an award: Hoag v. McGinnis, 22 Wend. 163; Whitcomb v. Preston, 13 Vt. 53. Fourth. Where the agreement contains several matters of different degrees of import- ance, and yet the sum named " is payable for the breach of any, even the least :" Watt's Exrs. v. Sheppard, 2 Ala. 425; Carpenter et al. v. Lockhart, 1 Cart. (Ind.) 435 ; Hamilton v. Overton et al., 6 Blackf. 206 ; McNair v. Thompson, 1 Condens. R. S. C. La. 413 ; Moore et al.v. Platte Co., 8 Mo. 4G7; Grover v. Saltmarsh, 11 Id. 271 ; Chaddick's Exr. v. Marsh, 1 Zab. 463 ; Bagley v. Peddie, 5 Sandf. S. C. 192; Beale v. Hayes, Id. 641; Carry v. Sarer, 7 Penn. St. 470; Allen v. Bra- zier et al., 2 Bailey 293 ; Tayloe v. Sandiford, 7 Wheat. 13 ; Danville Bridge Co. V. Pomroy et al., 15 Penn. St. 181 ; which last case is similar in prin- ciple to Faunce v. Burke et al., 16 Penn. St. 469, subsequently decided contrari- .wise : Niver v. Rossman, IS Barb. 50 ; Berry v. Wisdom, 3 Ohio N. S. 241 ; Clement v. Cash, 21 N. V. 253 ; Basye v. Ambrose, 28 Mo. 30; Thoroughgood v. OF CnOSES IN ACTION. consists. A oniitniot then, as defined by Blackptonc,(Z-) is "anagree- mint upon sufficient coupideration to do or not to do a particular thing." (k) 2 Hla. Com. 442. Walker, 3 Jones L. ir>; Hammer r. Hraiicn- bacli. 31 Misso. 49; Uailv f. Litchlu-M, 10 Mich. VJ. Fifth. " Whrro the contract i.'? no! under atal, and the damaget are capable of being cerlainli/ knotcn and estimated ; and tliough the parlien hare expressly declared the Rum to he as liquidated damaRes:" Watt's F.xrs r. Sheppard, 2 Ala. 425; Spencer v. Tilden et at., 5 Cowen 144; Graham v. Bickham, 4 Pal. 149. "On the other hand, it will he inferred that the parties intended the sum as liqui- dated damaget: First. Where the damages are uncertain, and are not capable of being aterrtained, by any satisfactory and known rule; whether the uncertainty lies in the nature of the subject itself, or in the particular circumstances of the case:" Watt's Exrs. v. Sheppnrd, 2 Ala. 425 ; Hamilton v. Overton et al., 1 Carter (Ind.) 484; (lammon v. Howe, 14 Maine 250; Bripht f. Rowland, 3 Howard (Mo.) 398; Dakin et al. t>. Williams et al., 17 Wend. 447: 8. c. 22 Id. 201; Hoag v. McGinnis, Id. 163; Baplcy v. Peddie, 16 N. Y. 469. It has been decided, that the sum specified, was liquidated damages, and not a penalty, where the agreement was not to carry on a trade in a specified place: Miller v. Elliott, 1 Carter (Ind.) 484; Peirce v. Fuller, 8 Mass. 223; Noble's Admx. v. Batcf, 7 Cowen 307; Smith v. Smith, 4 Wend. 468; Mott v. Mott, 11 Barb. S. C. 127; Grasselli u. Lowden, 11 Ohio N. S. 349; Duffy v. Shockey, 11 Ind. 70; Jaquith r. Hudson, 5 Mich. 123; Streeter v. Rush, 25 Cal. 67, or to pay a certain rate per ton, for a certain amount of coal mined or not mined, within a definite time: Powell v. Borroughs, 54 Penn. St. 329; so. where it was agreed to pay a certain sum, for the delay of each week, month. &c., in finishing a work, stipulated to he completed at a certain time: Curtis et al. r. Brewer, 17 Pick. 513; Worrell v. McClinaghan et ux., 5 Strob. 115; Watt's Exrs. v. Sheppard, 2 Ala. 422 ; Hall v. Crowley, 5 Allen (Mass.) 304 ; anil by the English authorities it has been held, that where it is agreed that a certain specified sum shall be paid in case any act amounting to waste shall be com- mitted, it is a stipulation for liquidated damages : Aylett v. Dodd, 2 Atk. 239 ; Woodward v. Gyles, 2 Vern. 119 ; Rolfe v. Peterson, 2 Bro. P. C. 436. Second. "Where from the nature of the case, and the tenor of the agreement, it ia apparent, that the damages have already been the subject of actual and fair calcu- lation and adjustment between the par- ties:" Alexander v. Troutman, 1 Kelley 472 ; McNair v. Thompson, 1 Condens. R. S. C. La. 413; McGlorin v. Henderson et al., 6 La. 720 ; Price et al. v. Tucker, 5 La. Ann. 514; Graham v. Bickham, 4 Dal. 149 ; Pierce v. Jung, 10 Wis. 30 ; Dunlop V. Gregory, 10 N. Y. 241 ; Dwinel V. Brown, 54 Maine 468. The cases exem- plifying this principle are, where the agreement was to pay a sura of money, in goods, at a certain price : Braham et al. %K Le Roy Pope et al. 1 Stew. (Ala.) 135 ; Brooks x>. Hubbard, 3 Conn. 58 ; or, to sell personal property, or to convey land, and in default thereof, to pay a specified sum : Tingley v. Cutler, 7 Conn. 291 ; Allen v. Brazier, 2 Bailey 293 ; Heard v. Bowers et al. 23 Pick. 455 ; Hodges's Exr. v. King, 7 Mete. 587; Cartwright et al. v. Gar- dener, 5 Cush. 273 ; Chamberlain v. Bag- ley, 11 N. H. 235; Mead v. Wheeler, 13 Id. 351 ; Hasbrouck v. Tappen, 15 Johns. 203; Stosson v. Beale, 7 Id. 72; Knapp t'. Maltby, 13 Wend. 587 ; Gray v. Crosby, 18 Johns. 219 ; Pearson v. Williams's Admrs., 24 Wend. 244; s. c. 26 Id. 630; Sawyer v. Mclntire, 18 Vt. 27; Mundy v. Culver, 18 Barb. 336; Williams v. Green, 14 Ark. 315 ; Fisk v. Fowler, 10 Cal. 512 ; Streeper v. Williams, 48 Penn. St. 450; OF CONTRACTS. 7ti This agreement may be either express or implied ; for the law always implies a promise to do that which a person is legally liable to perform, and the action of assumpsit on promises is constantly maintained for damages for the breach of such an implied contract.(Z) Thus a person who takes the goods of a tradesman is liable in assumpsit for their market value ; for, as he took the goods, the law will imply for him a promise to pay for them. So a person who employs another to work for him impliedly contracts to give him reasonable remuneration ; and a man who borrows money impliedly promises to repay it. And in all these cases the plaintiff, until recently, plainly stated that the defendant promised the plaintiff to pay him the money on request, and that the de- fendant had disregarded his promise, and had not paid the same moneys or any part thereof. But the Common Law Procedure Act, 1852, now requires that all statements of this kind shall be omitted. (w) Express contracts are either by parol, or word of mouth, which are called simple contracts^ or by deed under seal, which are called special contracts ;[n) although simple contracts may, and often must at the present day, be evidenced by writing. Let us consider first mere parol or simple contracts. A parol contract then is an agreement by word of mouth, upon sufficient ^consideration, to do or not to do a par- r:|:7-q-i ticular thing. According to the law of England a consideration is an essential ingredient in every contract : a promise without a consi- deration is regarded as nudum pactum^ and no recompense can be recov- ered for its breach, (o) neither will its performance be enforced in a court of equity.(j3) Thus if a man promise to give mo 100^. without any con- sideration, he is not bound to perform his promise, and I am without remedy if he should break his word. So even if I should have done him any service, his subsequent promise to pay me money, or otherwise bene- {l) Stephen on Pleading 18. (»«) Stat. 15 & 16 Vict. c. 76, s. 49. (n) Rann v. Hughes, 7 Term Rep. 351, n. (o) Doctor & Student, dial. 2, c. 24 ; 2 Bla. Cora. 445. {p) 1 Fonb. Eq. 335 et seq.; Dipple v. Corles, 11 Hare 183. Morse v. Rathburn, 42 Mo. 594; or that a rent, for such time as a lessee held pos- security should become void, if put in suit session beyond the expiration of his term : before the time limited in a letter of license Walker v. Engler, 30 Mo. 130; or to granted to the debtor: White v. Tingley, 4 forfeit half the freight in case a vessel did Mass. 433 ; or, to pay a specified sum of not sail by a certain time : Sparrow v. money, if a certain receipt did not contain Paris, 7 H. & N. 594. a true and proper method for making im- See also, Chase v. Allen, 13 Gray proved incorruptible teeth : Brewster v. 42 ; Dermott v. Wallack, 1 Wall. U. S. Edgerly, 13 N. H. 275 ; or to pay double 61. 73 OF cnosES in action. fit mc, for a consideration already executed on my part, will not be bind- ing, unless I should have done him the service at his request, in which case the promise will relate back to the request,(g) or unless a request can be implied from a subsequent allowance of the service, or from other circumstances ;(r) and if the service rendered be of such a nature that the law will imply a promise in respect of it, any subsequent express pro- mise different from that which the law will imply will be void as imdum pactum.{s) And if the service, or any part of it, has been illegal from being contrary to the common law or to any statute, such illegal consi- deration will not support a promise. Thus a promise made in considera- tion that the other party had published a libel at the request of the per- son making the promise, and had also at the like request incurred certain r*741 costs, was held void on account *of the illegality of part of the consideration, namely, publishing the libel, which vitiated the whole.(^) And in like manner the circumstance of a woman's having cohabited with a man is not of itself a valid consideration to support a promise made by him to pay her a sum of money. (w) Considerations are divided in law into two classes, good (sometimes called meritorious) and valuable. A good consideration is that of blood, or the natural love and affection which a person has to his children, or any of his relatives. (y) A valuable consideration may be either pecu- niary, namely, the payment of money ; or the gift or conveyance of any- thing valuable ; or it may be the consideration of the marriage of the party himself or of any relative ;(w) or the compromise of a bona fide claim ;{x) or any act of one party from which the other, or any stranger at his request, express or implied, derives any advantage ; or any labor, detriment, inconvenience or risk sustained by the one party, if such labor be performed, or such detriment, inconvenience or risk be suffered {q) Hunt V. Bate, Dyer 272 a; Lampleigh v. Brathwait, Hob. 105; 1 Smith's Lead- ing Cases 67; Powle v. Gunn, 4 N. C. 445, 448 ; Eastwood v. Kenyon, 11 Ad. & E. 438, 451 (E. C. L. R. vol. 39) ; s. c. 3 Per. & Dav. 282 ; 1 Wms. Saund. 264, n. (1). (r) The maxim is 07jmis ratihahito retrotrahitur et mandato lequiparatur : 1 Wms. Saund, 264 b. n. (e). («) Hopkins v. Logan, 5 M. & W, 241, 247. \t) Shackell v. Rosier, 2 Bing. N. C. 634, 644 (E. C. L. R. vol. 29). (w) Binnington v. Wallis, 4 B. & Aid. 650, 652 (E. C. L. R, vol. 6). See however Gib- son V. Dickie, 3 M. & Sehv. 463; Keenan v. Handley, 2 De G., J. & S. 283. {v) 2 Black. Com. 297, 444. (w) Campion v. Cotton, 17 Ves. 263 ; Eraser v. Thompson, 1 GifiF. 49, 65 ; reversed on appeal, 4 De G. & J. 659. {x) Lucy's Case, 4 De G., M. & G. 356 ; Cook v. Wright, 1 B. & S. 559 (E. C. L. R. vol. 101), OF CONTRACTS. 74 by the one party at the request, express or implied, of the other, although such other may himself derive no actual benefit.(?/) A good consideration is not of itself sufficient to support a promise, any more than the moral obligation which arises from a man's passing his word ; neither will the two together make a binding contract ; thus a promise by a father to *make a gift to his child will not be enforced against rj^^nr-i him. (2) The consideration of natural love and affection is indeed good for so little in law, that it is not easy to see why it should be called a good consideration ; for in law it is considered as not good against creditors within the statute 13 Elizabetli,(a) in which the very phrase good consideration is used ; it is not good to support a contract ; and a gift for such consideration is regarded as simply voluntary. (6) The only reason why such a consideration should be called good appears to be, that in early times, previously to the passing of the Statute of Uses,(c) the Court of Chancery enforced a covenant to stand seised of lands to the use of any person of the blood of the covenantor, on account of the good- ness of the consideration ; whence it has happened that, since that stat- ute, the legal estate (being by that statute annexed to the \xse){d) will pass to a relative under a covenant to stand seised to his use.(e) But the rules that anciently governed the Court of Chancery do not now regulate its proceedings ;(/) although modern equity will still interfere in favor of a wife or child in some cases in which it will not interpose on behalf of strangers. (^) A valuable consideration is, therefore, in all cases necessary to form a valid contract.^ It has indeed been ^thought that an ex- ^ -' (7/) Selwyn's Nisi Prius, tit. Assumpsit, 46; 1 Wms. Saund. 211 d, n. (2) ; 2 Wms. Saund. 137 h, n. (e). (z) Jeffery ?;. JefiFrej, 1 Craig & Ph. 138 ; Dillon v. Coppin, 4 Myl. & Cr. 647 ; Hollo- way V. Headington, 8 Sim. 324; Meek v. Kettlewell, 1 Hare 4G4 ; 1 Phil. 342. See however Ellis v. Nimmo, Lloyd & Goold 333. (a) Twyne' Case, 3 Rep. 80 b ; ante, p. 48. (6) 2 Black. Com. 297. (c) 27 Hen. VIII. c. 10. {d) Principles of the Law of Real Property 126 ei seq., 2d ed. ; 131, 3d & 4th eds. ; 136, 5th ed. ; 143, 6th ed. ; 147, 7th ed. ; 153, 8th ed. (e) Ibid. p. 159, 2d ed. ; 164, 3d ed.; 166, 4th ed. ; 173, 5th ed. ; 181, 6th ed.; 185, 7th ed.; 194, 8th ed. (/) Ibid. p. 131, 2d ed. ; 135,3d & 4th eds.; 141, 5th ed.; 148,6th ed. ; 151,7th ed. ; 157, 8th ed. (g) Ibid. p.. 239, 2d ed. ; 246, 3d ed. ; 248, 4th ed. ; 258, 5th ed. ; 270, 6th ed. ; 276, 7th ed. ; 288, 8th ed. 1 The obligation of a contract cannot be stitution of the United States, Art. 1, Sec, impaired by subsequent legislation : Con- 10 CI. 1; Constitution of Pennsylvania. 76 OF CHOSES IN ACTIOX. press promise, founded on a moral obligation is sufficient for this pur- pose.(/i) This however appears to be a mistake. An express promise can give no original right of action, if the obligation on which it is founded could never have been itself enforced.(^') But in some cases a valuable consideration, which might have formed a contract by means of an implied promise, had its operation not been suspended bj some positive rule of law, may be revived and made available by a subsequent express pro- mise.^ Thus a debt barred by the debtor's having become bankrupt and (h) Lee v. Miiggeridge, 5 Taunt. 36 (E. C. L. R. vol. 1). This case may now be con- sidered as virtually overruled by subsequent authorities mentioned in the next note. See however Dawson v. Kearton, 3 Sm. & G. 190, gu.? (i) Note to Wennall v. Adne.v, 3 Bos. & Pul. 252; Littlefield v. Shee, 2 B. & Ad. 811 (E. C. L. R. vol. 22) ; Meyer v. Haworth, 8 Ad. & E. 467 (E. C. L. R. vol. 35) ; s. c. 3 N. & P. 462; Monkman v. Shepherdson, 11 Ad. L E. 411,415 (E. C. L. R. vol. 39); s. c. 3 Per. & Dav. 182 ; Jennings v. Brown, per Parke, B., 9 M. & W. 501 ; Eastwood V. Kenyon, 11 Ad. & E. 447 (E. C. L. R. vol. 39) ; s. c. 3 Per. & D. 276 ; 2 Wms. Saund. 137 f, n. (e) ; Beaumont v. Reeve, 8 Q. B. 483 (E. C. L. R. vol. 55). Arb. IX. Sec. 17. Hence it has been held that a contract made before the passage of the Act of February 25, 1862, contain- ing a covenant for the payment of gold and silver money, may be still enforced by insisting upon the payment of the stipu- lated coin, notwithstanding the said Act of Congress made the treasury notes of the United States a legal tender for debts : Bronson v. Rodes, 7 Wall. U. S. 229; Butler v. Harwitz, Id. 258; but a contract for the payment of lawful money made before the passage of said Act, is payable in United States notes: Knox v. Lee, and Parker v. Davis, 11 Id. 682; 29 Leg. Intel. 36; overruling Hepburn v. Griswold, 8 Id. 603. 1 The general rule of law prevailing in the several States of the Union is, that a promise, made subsequent to the con- sideration upon which it is based, is not sufficient to support an action : Barlow v. Smith et al., 4 Vt. 139 ; Buckley et al. v. Laudon et al., 2 Conn. 404 ; s. c. 3 Id. 76 ; Jones V. Shorter et al., Admrs., 1 Kelley (Geo.) 29^ ; Waters et al. v. Simpson et al., 2 Gilm. (111.) 574 ; Carson v. Clark, 1 Scammon 114; Hutsen v. Overturf, Id. 170; Roberts v. Garen, Id. 396; Townsend V. Briggs, Id. 472; Boston v. Dodge, 1 Blackf. 19; Carr v. Allison, 5 Id. 64; Head's Exr. and Exrx. v. Manner's Admrs., 5 J. J. Marsh 257 ; Balcolm, Exrx., v. Crag- gin, 5 Pick. 295 ; Andover, &c., v. Gould, 6 Mass. 43; Mills v. Wyman, 3 Pick. 207; Dodge V. Adams, 19 Pick. 429; Ridgway V. English. 2 Zabr. 416; Phetteplace v. Steere, 2 Johns. 443 ; Frear v. Harden- burgh, 5 Id. 272; Tioga v. Seneca, 13 Id. 380 ; Watkins v. Halstead, 3 Sandf. S. C. 311; Ehle v. Judson, 24 Wend. 97; 16 Johns. 283, n. ; Comstock v. Smith, 7 Id. 87 ; Smith v. Ware, 13 Id. 257 ; Hatchell v. Odom, 2 Dev. & Bat 302 ; Johnson v. John- son, 3 Hawks. 556 ; Snevily v. Read, 9 Watts 396 ; Garrett v. Stuart, 1 McCord 515 ; Massey v. Craine, Id. 489; Hanley v. Farrer, 1 Vt. 420 ; Parker v. Carter et al., 4 Munf. 273 ; Bank of Washington v. Ar- thur et al., 3 Gratt. 173 ; Colter v. Green- hagen, 3 Min. 126 ; Ellison v. Jackson, &c., Co., 12 Cal. 542 ; Smith v. Mudgett, 20 N. H. 527 ; Robinson v. Marshall, 11 Md. 251 ; Amity Township v. Reed, 62 Penn. St. 442 ; Heslep v. Sacramento, 2 Cal. 580, which last was a suit brought by the ad- ministrator of one, who had been the Mayor of Sacramento, to recover $10,000, which the Common Council had voted him, in consideration of the expenses he had incurred in his illness, which was brought about by being wounded, while OF CONTRACTS. 76 obtained his certificate, might formerly have been enforced against him, if, after his bankruptcy, he had expressly promised to pay it •,{j) but such {j) Trueman v. Fenton, Cowp. 544 ; Kirkpatrick v. Tattersall, 13 M. & W. 7G6. endeavoring to quell certain public distur- bances. There are, however, many cases where a subsequent promise will support an action, and which, as exceptions to the general rule above stated, maybe classified as follows : First. Where a subsequent promise fol- lows a previous request: Carson v. Clark, 1 Scam. 114; Ridgway v. English, 2 Zabr. 416 ; Frear v. Hardenburgh, 5 Johns. 272 ; Tioga V. Seneca, 13 Id. 380; Doty v. Wil- son, 14 Id. 378 ; Livingston v. Rogers, 1 Caines 583 ; Comstock v. Smith, 7 Johns. 87 ; McMorris v. Herndon, 2 Bail. 56 ; Lons- dale V. Brown, 4 Wash. C. C. 150. Second. Where there has not been a previous express request, but one may be implied, from a subsequent recognition of the service performed, which must be beneficial to the one party, or detrimental to the other; thus, where one person pays the debt of another, and the debtor, there- upon, promises to reimburse him: Keenan V. Halloway, 16 Ala. 53 ; Weekly v. Burn- han et al., 2 Stew. 500 ; Roundtree v. Hol- loway, 13 Ala. 359 ; Roundtree v. Weaver, 8 Id. 314; Bertrand v. Byrd, 2 Ark. 651 ; Stocking V. Sage etal., 1 Conn. 519 ; Gard- ner et al. V. Towsey, 3 Litt. 426; Nixon v. Jenkins, 1 Hilton 318 ; or, where merchan- dise is delivered at one's house, and he to whom the goods are sent, sanctions the act by retaining them : Gardner et al. v. Towsey, 3 Litt. 426; McMorris v. Herndon, 2 Bail. 56; so, also, where two go bail for a third, and one of them, at much expense, surrenders the principal, and the other surety promises to pay his proportion of the expense : Greeves v. McAllister, 2 Binn. 591 ; and, the past use of money, has been held a good consideration to support a promise to pay interest: Garland v. Lock- ett, 5 N. S. (La ) 40 ; there are many other such cases : Webster et al. v. Drinkwater, 5 Greenl. 322 ; Farnham v. O'Brien, 22 Maine 481 : Davenport t;. Mason, 15 Mass. 74; R. & H. Stewart v. Eden, 2 Caines 150; Oatfield y. Waring, 14 Johns. 192; Doty V. Wilson, Id. 378 ; Parker v. Crane, 6 Wend. 647; Hicks v. Burhans et al., 10 Johns. 243 ; Cunningham v. Garvin, 10 Penn. St. 366 ; Seymour v. Marlboro, 40 Vt. 171. Third. Where one is under a moral obli- gation to do a certain act, and subse- quently, makes an express promise to do what he was bound by the prior moral obligation to perform : Commissioners of Canal Fund v. Perry, 5 Ohio 48 ; Hill v. Henry, 17 Id. 9 ; Shenk v. Mingle, 13 S. & R. 29; Nesmuth v. Drum, 8 W. & S. 9; McMorris v. Herndon, 2 Bail. 56 ; Glags v. Beach, 5 Vt. 176. But it is not every moral obligation that will support a sub- sequent promise ; for a promise to feed the hungry, or clothe the naked, or to perform acts of benevolence and charity, will not support an action ; as, where a son pro- mised to pay for necessaries, which had been advanced to his father, if he did not, such promise was held not binding : Cook V. Bradley, 7 Conn. 57 ; Parker v. Carter et al., 4 Munf. 273 ; and the same was held of an agreement by a father, to pay for the expenses of the sickness of a son, who was of age, and away from home, made subsequently to their being incurred : Mills V. W^yman, 3 Pick. 207 ; and, of the same principle are : Dodge v. Adams, 19 Pick. 429; Ridgwayv. English, 2 Zabr. 416; and Watkins v. Halstead, 3 Sandf. C. 311, which last was a promise by a married woman, made after her divorce from her husband, to pay for necessaries which had been furnished her during her coverture ; but see Hemphill v. McClimans, 24 Penn, St. 367 ; Viser v. Bertrand, 14 Ark. 267 ; all of which cases, as well as the follow- ing, prove that by the term "moral obli- gation," as applied legally, is meant, what the moralist would call a perfect moral obligation, that is, an obligation of justice, 76 or cnosES in action. a promise was required, by tlie modern bankrupt acts,(/c) to be made in writing signed by the bankrupt, or by some person thereto laAvfully (k) 6 Geo. TV. c. 16, s. 131 ; 5 & 6 Vict. c. 122, s. 43. and not merely of benevolence and piety : Jones V. Sliorter et al., Admrs., 1 Kelly 294; Farnham v. O'Brien, 22 Maine 481; Andover, &c., v. Gould, 6 Mass. 43 ; Da- venport t'. Mason, 15 Id. 74; Mercer v. Stark, Walk. (Miss.) 451 ; Tioga v. Seneca, 13 Johns. 380 ; Hatchell v. Odom, 2 Dev. & Bat. 302 ; McMorris v. Herndon, 2 Bail. 56 ; Hanley v. Farrar, 1 Vt. 420. But other cases indicate still more specifically, what is meant by the term "moral obligation," showing that " it is not expressive of any vague and undefined claim, but of those imperative duties, which would be enforce- able at law, were it not for some positive rule of law, legal maxim, or statute provi- sion, which, with a view to general bene- fit, exempts the party in that particular instance, from legal liability. On such duties, so exempted, the express promise operates to revive the liability, and take away the exemption, because if it were not for the exemption, they would be en- forced at law through the medium of an implied promise : " Paul v. Stackhouse, 38 Penn. St. 304. And see also, Shepard v. Rhodes, 7 R. I. 470. See also to the same point, one class of cases proving this, relative to bankrupts or insolvents, who, after obtaining a dis- charge, have promised their creditors to pay them in full : Maxim v. Morse, 8 Mass. 127 ; Trumbull v. Tilton, 1 Fost. (N. H.) 129 ; Graham v. Hunt, 8 B. Mon. 8 ; Ship- pey V. Henderson, 14 Johns. 178 ; Erwin v. Saunders et al., 1 Cowen 249 ; Stafford v. Bacon, 25 Wend. 384 ; Depuy v. Stewart, 3 Id. 135 ; Kingston v. Wharton, 2 S. & R. 208 ; Earnest v. Parke, 4 Rawle 452 ; Field's Estate, 2 Id. 351 ; Lonsdale v. Brown, 4 Wash. C. C. 150 ; Bearing v. MofiRtt, 6 Ala. 776 : Sconton v. Eislord, 7 Johns. 36 ; Brown et ux. v. Collins, 8 Hum. 511 ; Feeny v. Daly, 8 Gal. 84 ; but note a difference, between a release by provisions of positive law, and a discharge by the voluntary act of the creditor : Montgomery V. Lampton, 3 Mete. (Ky.) 519. Another class of cases has arisen from promises to pay debts barred by the statute of limita- tions, in which the promises were held valid: Carson v. Clark, 1 Scam. 114; Head's Exr. and Exrx. v. Manner's Admrs., 5 J. J. Marsh. 257 ; Harrison v. Handley, 1 Bibb 443 ; Gray v. Lawridge, 2 Id. 285 ; Bell V. Rowland's Admrs., Hard. 301 ; Guy V. Tarns, 6 Gill 85 ; Bangs v. Hall, 2 Pick. 368; Davenport v. Mason, 15 Mass. 74; Dawes v. Shed et al., Exrs., 15 Id. 7 ; Exeter Bk. v. Sullivan et al., 6 N. H. 135 ; Kittredge v. Brown, 9 Id. 377 ; Walker v. Eastman, 6 Id. 367 ; Buswell v. Roby, 3 Id. 467; Stanton v. Stanton, 2 Id. 425 ; At- • wood V. Coburn, 4 N. H. 315 ; Rice et al. V. Wilder et al.. Id. 336 ; Belton, Admr., V Cutts, Admr., 11 Id. 170; Ridgway v. English, 2 Zabr. 416; Exrs. of Conovers V. Conover et al.. Sax. 404; Saltur v. Sal- tur's Admr., 1 Halst. 405 ; Danforth v. Culber, 11 Johns. 146 ; Sands v. Gelston, 15 Id. 511 ; Hatchell v. Odom, 2 Dev. & Bat. 302 ; Sherrod v. Bennet et al., 8 Ired. 309 ; Peebles v. Mason, 2 Dev. 367 ; Small- wood V. Smallwood, 2 Dev. & Bat. 330; Rainey v. Link, 3 Ired. 376 ; Turner v. Chris- man, 20 Ohio 332 ; Hill v. Henry, 17 Id. 9; Jones et al., Exrs. v. Moore, Admr., 5 Binn. 573 ; Suter v. Sheeler, 22 Penn. St. 308 ; Eckert v. Wilson, 12 S. & R. 393 ; Fries v. Boiselet, 9 Id. 128 ; Farly v. Rustenbaden, 3 Penn. St. 418 ; Haylebaker v. Reeves, 12 Id. 264 ; Forney v. Benedict, 5 Id. 225 ; Gilkyson v. Larue, 6 W. & S. 213; Davis v. Steiner, 14 Penn. St. 275 ; Harbold's Exrs. V. Kuntz, 4 Id. 210 ; Huff v. Richardson, 7 Id. 388 ; Reynolds v. Johnson, 9 Humph. 444 ; Coles v. Kelsey, 2 Texas 541 ; Burton V. Stevens, 24 Vt. 131; 22 Id. 179; Pad- dock V. Colby et al., 18 Vt. 485; Clement- son V. Williams, 8 Cranch 72 ; Wetzell v. Bussard, 11 Wheat. 309 ; Bell v. Morrison, 1 Peters 351 ; Lonsdale v. Brown, 4 Wash. OF CONTRACTS. 76 authorized by him in writing ; and the Bankrupt Law Consolidation Act, 1849, rendered all such promises void ;(?) and a similar provision is con- (l) Stat. 12 & 13 Vict c. 106, s. 204; Kidson v. Turner, 3 H. & N. 581. C. C. 150 ; Raudon v. Toby, 11 How. 493 ; Chandler v. Glover's Admr., 32 Penn. St. 509: Pritchard v. Howell, 1 Wis, 131. Upon the same principle, promises, made by one after arriving at full age, to do what he agreed to do while a minor, have been held to be legally operative : Bliss et al. V. Ferryman, Scam. 484 ; Taylor t'. Run- dell, 2 Annual. R. 367; Merriam et a\. v. Wilkins et al., 6 N. H. 432 ; Wright v. Steele, 2 Id. 51 ; or, a promise made by a child who was heir to a large estate, to her brother-in-law, after she came of age, that she would indemnify him against all loss, by reason of a contract he had made with a tliird party, to be responsible for the charges of said child while a minor : Baker v. Gregory, 28 Ala. 544. And by analogy with the foregoing cases, if the consideration be still continuing, a subse- quent promise will be valid : Carroll v. Nixon, 4 W. & S. 516 ; Carman v. Noble, 9 Pena, St. 366 ; Nesmuth v. Drum, 8 W. & S. 9 ; Lonsdale v. Brown, 4 Wash. C. C. 150 ; Grove v. McCalla, 21 Penn, St. 44 ; Bailey v. Bussing, 29 Conn. 1 ; so, a prom- ise to pay the principal of a debt, void by the usury laws, is binding : Early v. Mahon, 15 Johns. 147 ; and this is also true of a promise made by an executor, relative to the debt of his testator, which affords suf- ficient ground for an action against the executor de bonis propriis : Clark v. Herring, 5 Binn. 33 ; but a promise by an adminis- trator will not take a case out of the stat- ute of limitations : Clark v. Maguire's Admrx., 35 Penn. St. 259 ; so, too, where money has been twice paid, through failure to produce the receipt given on first pay- ment, a subsequent promise to refund will be binding: Bentley v. Morse, 14 Johns. 468. Another class of cases arises, where a promise to pay, has been made by an en- dorser of a promissory note, who has knowledge of a want of due diligence in the holder in giving him notice : Breed v. Hillhouse, 7 Conn. 523 ; Hopkins v. Lis- well, 12 Mass. 52 ; Thornton v. Winn, 12 Wheat. 183. The consideration of a moral obligation, which seems to have given rise to more embarrassment than any other, is, where a promise has been made to pay a debt, subsequently to a voluntary release of the debt by the creditor ; some of the cases are in favor of the validity of such a promise : Jamison v. Ludlow, 3 Ann. (La.) 493; Doty v. Wilson, 14 Johns. 378; Willing V. Peters, 12 S. & R. 182 ; McPher- son's Admrs. v. Reeves, 2 Penna. R. 521 : and others, against it : Warren v. Whitney et al., 24 Maine 561 ; "Valentine v. Foster, 1 Mete. 520 ; Snevily v. Read, 1 Watts 396 ; the law is probably, upon principle, with the former cases ; for of the latter, Valen- tine V. Foster, was a promise made by a ■\yitness, subsequent to a release, made in order to qualify him for giving testimony, and the court said that it would destroy all confidence in evidence given under such circumstances, if a subsequent prom- ise by the witness, could revive his lia- bility ; and another, Snevily v. Read, was a case where a creditor had received satis- faction of his debt, by taking the body of his debtor, whom he subsequently released from arrest, and the debtor afterwards promised to pay ; which was held not suf- ficient to support an action, for the arrest had been a satisfaction of the prior debt, and consequently, the subsequent promise was without consideration. Where the act to be done, is one, which the party who subsequently promises, is legally, as well as morally, bound to perform, the promise will be supported ; as a promise to main- tain a bastard child ; or, an agreement by an executor, to pay the funeral expenses of his testator ; or by a husband to pay for necessaries advanced to a wife, who had become a charge upon a parish, and the same is true of like examples : Hargrove et al., Exrs., v. Freeman, 12 Ga. 342 ; Car- 76 OF CHOSES IN ACTION. tained in tl.c Bankruptcy Act, 1861 ; but by the Bankruptcy Act, 1869, where a debtor shall be iuljudieatcd a bankrupt, no creditor to whom the bankrupt is indebted in respect to any debt provable under the bank- ruptcy shall have any remedy against the property or person of the bank- rupt in respect of such debt except in manner directed by that act.(m) So a simple contract debt, which would otherwise have been barred by the Statute of Limitations,(w) from having been incurred upwards of six years, may be revived by a subsequent promise to pay, or even E*"^*^] i)y an unconditional *acknowledgment of the debt;(o) but by modern statutes .such promise or acknowledgment must be made or con- tained by or in some writing, to be signed by the party chargeable thereby, or by his agent. (jj>) And in like manner a debt incurred or contract made by a person during infancy and voidable on that account, may be confirmed by an express promise or ratification made when of full age •,{q) although such a promise or ratification must now, by one of the statutes just mentioned,(r) be made by some writing signed by the party to be charged therewith. By the ancient common law, every legal instrument in writing was a deed sealed and delivered ;(s) and in accordance with this circumstance, contracts are, as we have seen,(<) Aow' divided in law into two kinds only, namely, parol (that is verbal) or smple contracts, and special contracts made by deed. But as the art of writing became general, many parol (m) Stat. 24 & 25 Vict. c. 134, s. 164; Stat. 32 & 33 Vict. c. 83, s. 12. (n) Stat. 21 Jac. I. c. 16, s. 3. (o) Bac. Abr. tit. Limitations of Actions (E.) ; Prance v. Sympson, 1 Kay 678; Sid- well V. Mason, 2 H. & N. 306-310 ; Holmes v. Mackrell, 3 C. B. N. S. 789 (E. C. L. R. vol. 91) ; Cornforth v. Smitliard, 5 H. & M. 13 ; Francis v. Hawkesley, 1 E. & E. 1052 (E. C. L. R. vol. 102). (p) Stat. 9 Geo. IV. c. 14, s. 1, called Lord Tenterden's Act; 19 & 20 Vict. c. 97, s. 13. {q) Bac. Abr. tit. Infancy and Age (I) 8; Williams v. Moor, 11 M. & "W. 256- 263; Harris v. Wall, 1 Ex. Rep. 122. (r) Stat. 9 Geo. IV. c. 14, s, 5. (s) See Principles of the Law of Real Property 118, 2d ed. ; 123, 3d & 4th eds. ; 128, 5th ed. ; 134, 6th ed. ; 137, 7th ed. ; 144, 8th ed. (<) Ante, p. 72. son V. Clark, 1 Scam. 114. Inhabitants of to perform a certain act, in such cases a3 Alna V. Plummer, 4 Greenl. 258 ; Hanover have been just stated, executes it, it will V. Turner, 14 Mass. 227; Hapgood v. give ground for the implication of a prom- Houghton, Exr., 10 Pick. 154; Shenk v. ise ; but quite the contrary: Salsbury v. Mingle, 13 S. & R. 29; Allen v. Davison, Philadelphia, 44 Penn. St. 303; Duffy v. 16 Ind. 416 ; but it does not follow, that if Duffy, Id. 399 ; Lynn v. Lynn, 29 Id. 369; the party who is legally and morally bound Musser v. Ferguson, 55 Id. 478. OF CONTRACTS. 77 contracts were, for greater certainty, put into writing, though not made by deed. And by some statutes of modern times, writing is required to most simple contracts respecting matters of importance. These statutes we shall now proceed to notice, premising that in all cases where writing is by any statute made necessary to a contract, the contract is still a paroP one, though evidenced by the writing ;(u) but when a contract is made by deed, *the deed itself is the contract. (x) The first and r:^,<^Q-] most important statute then, by which writing is required to many agreements, is the Statute of Frauds,(?/) which enacts in its fourth section that no action shall be brought whereby to charge any executor or administrator upon any special promise to answer damages out of his own estate, or whereby to charge the defendant upon any special pro- mise to answer for the debt, default or miscarriage of another person; or to charge any person upon any agreement made upon consideration of marriage; or upon any contract or sale of lands, tenements or heredita- ments, or any interest in or concerning them ; or upon any agreement that is not to be performed within the space of one year from the mak- ing thereof; unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some otlier person there- unto by him lawfully authorized.^ This enactment, it Avill be observed, {u) Sugd. Vend, and Pur. 115, 13th ed. (x) Dyer 305 a; Byron v. Byron, Cro. Eliz. 472 ; 1 Wms. Saund. 274 a, n. (3). {y) 29 Car. II. c. 3. 1 The word parol is generallj^ a cause of agreement made upon consideration of much confusion to students, particularly marria<;e ; (4) or upon any contract or sale in its application to written contracts not of lands, tenements, or hereditaments, or, under seal ; a parol contract, legally de- any interest in or concerning them ; (5) or fined, is a contract made either verbally, upon any agreement, that is riot to be per- or in writing not under seal, as distin- formed within the space of one year from guished from those which are under seal, the making thereof; (6) unless the agree- bearing the name of deeds or specialties, ment upon which such action shall be 2 The 4th section of the Statute of brought, or same memorandum or note Frauds, 29 Car. II. c. 3, is in the following thereof, shall, be in writing, and signed by words : "And be it further enacted by the the party ta be charged therewith, or authority aforesaid. That from and after," some other person thereunto by him. law- Ac, " no action shall be brought, whereby fully authorized." to charge any executor or administrator. The aboy.e section is in force in Florida, upon any special promise, to answer Georgia, Maine, Massachusetts, Maryland, damages out of his own estate; (2) or New Jersey, Ohio, Vermont, and Virginia, whereby to charge the defendant, upon by legislative adoption ; and its provisions any special promise, to answer for the debt, liave been received and acknowledged by default, or miscarriage of another person ;. nearly all the other states. By th.e enact- (3) or to charge any person upon any ment of the legislatures of Alabama, 7 78 OF CIIOSES IN ACTION. does not give to \vriting any validity which it did not possess before. A written promise made since this statute, without any consideration, is Kentucky, Mississippi, and Tennessee, the words " or make any lease thereof, for a longer term than one year," have been in- serted in place of, "or any interest in or concerning them." In New Hampshire, the words " or any interest in or concern- ing them," are omitted. In Arkansas, the words " or to charge any person upon any lease of lands, tenements, or heredita- ments, for a longer term than one year," follow the words, " or any interest in or concerning them." In North Carolina, the provisions respecting contracts in con- sideration of marriage, and those not to be performed within one year, are omitted ; but in Texas these are retained, and it is also enacted that a parol lease for more than one year shall be invalid. The Civil Code of Louisiana, art. 2415, without adopting in terms the Statute of Frauds, declares generally, that all verbal sales of immovable property shall be void. By an act of the legislature of Delaware, one person shall not be liable to answer for the debt of another, of twenty-five dollars and upwards, unless the agreement is in writing, — nor shall one be liable to an- swer for another's debt of five dollars, and not exceeding twenty-five dollars, "unless such promise and assumption shall be proved by the oath or affirmation of one credible witness, or some memorandum or note in writing shall be signed by the party to be charged therewith." In Penn- sylvania, the Statute of Frauds is not in force : Anon., 1 Dall. 1 ; McDowell v. Oyer, 21 Penn. St. 417 ; and the only provisions on the subject are to be found in an act entitled •' An act for prevention of frauds and perjuries," passed March 21st, 1772, the first section of which is similar to the first three sections of the Statute of Charles II. ; and the Acts of April 26, 1855, and April 22, 1856 ; the former of which enacts, that no executor or admin- istrator shall be liable, upon any promise to answer out of his own estate, nor any person liable to answer for the debt of another, unless the said promise be in writing, or the debt less than twenty dollars; and the latter enjoins, that all declarations of trusts, and assignments thereof must be in writing. The following are some of the decisions on this subject: Blount v. Hawkins, 19 Ala. 100 ; Turner v. Fenner et al.. Id. 355 ; Brewer v. Brewer et al.. Id. 482 ; Brainard V. McDevilt, 21 Id. 119; Martin v. Black's Exr., Id. 721 ; Blakeney v. Ferguson et al., 3 Eng. 260 ; Allen et al. v. Jarvis, 29 Conn. 38 ; Marvin v. Foxon, Id. 486 ; Clark v. Pendleton, Id. 495 ; Eaton v. Whittaker, 18 Id. 222 ; Russell v. Slade et al., 12 Id 455 ; Downey v. Hotchkiss, 2 Day 225 ; Scotien V. Brown, 4 Harr. 324; Dorman v. Bige- low, Exr., 1 Florida 281 ; Cameron et al v. Ward, 8 Ga. 245 ; Hollingshead, Admr., v. McKenzie, Id. 457 ; Thornton v. Heirs of Henry, 2 Scam. 219; Murphy et al. v. Merry, 8 Blackf. 295 ; Shirley v. Shirley, 7 Id. 452 ; Barickman v. Rhykendall, 6 Id. 24; Chandler et ux. v. Davidson, Id. 367 ; Johnston v. Glancy et al., 4 Id. 94 ; Huck- leman, Admr., v. Miller et al., Id. 323 ; Car- nutt V. Roberts, 11 B. Mon. 42 ; Tuttle v. Swett et al., 31 Maine 555 ; Preble v. Bald- win, 6 Gush. 549; Taney v. Bachtell, 9 Gill 205; Weed et al. v. Terry, 2 Doug. 344 ; Jones V. Palmer, 1 Id. 379; Gothard v. Flynn, 25 Miss. 58; Baily et al. v. Trustees of Mineral School District, 14 Mo. 499; Hart V. Rector et al., 13 Id. 497; Halsa v. Halsa, 8 Id. 303 ; Pitcher v. Wilson, 5 Id. 46 ; Greenleaf et al. v. Burbank, 13 N. H. 454; Sampson v. Burnside, Id. 265 ; Drake V.Newton, 3 Zabr. Ill; Field et al. v. Runk, 2 Id. 525; Clark v Tucker et al., 2 Sandf. S. C. 157 ; Wyman v. Smith, Id. 331; Simms i>. Kilian, 12 Ired. 252 ; Led- ford V. Ferrell's Admr. etal., Id. .285 ; Reed V. Evans et al., 17 Ohio 128 ; Ewing v. Tees, 1 Binn. 450 ; Wilson v. Clark, 1 W. & S. 554; Boyer v. McCulloch, 3 Id. 429 ; Miller v. Hower, 2 Rawle 53 ; Eckert v. Eckert, 3 Penna. R. 332 ; Eckert v. Mace, Id. 364, n. ; Galbraith v. Galbraith, 5 Watts OF CONTRACTS. 78 quite as much nudum pactum as it would have been before.(s) The statute merely adds a further requisite to the validity of certain contracts, namely, that they shall, besides being good in other respects, be put into "writing, otherwise no action shall be maintained upon them. (a) A great number of cases have been decided upon the above section of this celebrated statute. One of the *most important is that of r^^n-i Wain V. Warlters,(6) in which it was held that the statute, in •- -' requiring the agreement to be in writing, required that the consideration, which is part of the agreement, should be in writing, as well as the promise itself. And therefore a promise in writing to pay the debt of a third person, which did not state any consideration, was held to give no cause of action; and parol evidence of a consideration was not allowed to be given. This case was followed by many other decisions to the same effect.(c) But a recent statute now provides that no special promise to answer for the debt, default or miscarriage of another person, beino- in writing and duly signed, shall be invalid to support an action, by reason only that the consideration for such promise does not appear in writing, or by necessary inference from a written document.(c?) The phrase in the statute, to answer for the debt, default or miscarriage of another person, means to answer for a debt, default or miscarriage /or which that other remains liable.{e) Thus Avhere one party to an agreement verbally (z) See Williams on Executors, pt. 4, bk. 2, eh. 2, sect. 2 ; 1 Wms. Saund. 211, n. (2). (a) Agreements, where the matter thereof is of the value of 51., or upwards, are, with some exceptions, liable to a stamp duty of Gd , with a further progressive duty of the same amount for every €?itire quantity of 1080 words beyond the first 1080 ; stat. 23 Vict. 15.' (6) 5 East 10 ; 2 Smith's Leading Cases 147. (c) Saunders v. Wakefield, 4 B. & Aid. 595 (E. C. L. R. vol. 6) ; Morley v. Boothby, 3 Bing. 107 (E. C. L. R. vol. 11) ; Clancy v. Piggott, 2 Ad. & E. 473 (E. C. L. R. vol. 29); 1 Smith's Leading Cases 136; 1 Wms. Saund. 211, n. {d) ; Price v. Richardson, 15 M. & W. 539. (d) Stat. 19 & 20 Vict. c. 97, s. 3. See Holmes v. Mitchell, 7 C. B. N. S. 361 (E. C. L. R. vol. 97) ; Williams v. Lake, 2 E. & E. 349 (E. C. L. R. vol. 105). (c) 1 Wms. Saund. 211 b, a. (2) ; 1 Smith's Leading Cases 134 ; Green v. Cresswell, 10 Ad. & E. 453 (E. C. L. R. vol. 37) ; s. c. 2 Per. & Dav. 430 ; Cripps v. Hartnell, Ex. Ch. 11 W. R. 953 ; 10 Jur. N. S. 200. 146 ; Brawdy v. Brawdy, 7 Penn. St. 16 ; Exrs. v. Young, 34 Penn. St. 60 ;. Alger v. Taylor v. Drake, 4 Strob. 431 ; Compton v. Scoville, 1 Gray 391 ; Woodford v. Pater- Martin, 5 Rich. 14 ; Elfe v. Gadsden, 2 Id. son, 32 Barb. 630 ; Hutchinson v. Hutchin- 373; Bowles v. Woodson, 6 Gratt. 88; son, 46 Maine 154; Easter v. White, 12 Ware v. Stephenson, 10 Leigh 171 ; Col- Ohio (N. S.) 219. lins, Admrx. v. Row, Id. 114; Warnick v. i See ante p. 42, u. Grosholz, 3 Grant's Cases 234; Kuns's 79 OF CIIOSES IN ACTION. promised the other, that in consideration of his discharging from custody a third person whom he had taken in execution for dcht, he, the first party, -would pay the debt, it was lield that action might well be brought on this promise, although it was not put in writing.(/) For this was not a promise to answer for *the debt of another person, to which l.^'^^^ that other remained liable, but to pay a debt from which the other was discharged. It was an original promise to pay and not a collateral promise to guarantee, Avhich is the meaning in the statute of the words " answer for." The words, " any agreement that is not to be performed within the space of one year from the making thereof," have been held to mean an agreement which appears from its terms incapable of per- formance within the year. Thus where one man promised another, for one fuinea, to give him a certain number on the day of his marriage, it was held that a writing was unnecessary, for the marriage might have happened within the year.() However, no endorsement *o/ ^ -^ memorandum of any payment written or made upon any promis- sory note, bill of exchange or other writing, by or on behalf of the part; to whom such payment shall be made, shall be deemed sufficient proof o. such payment, so as to take the case out of the operation of the Statute of Limitations.(c) And by a recent statute payment of any principal or interest by a co-contractor or co-debtor will not deprive a debtor of the benefit of the Statute of Limitations.fcZ) Lord Tenterden's Act further enacts, as has been already mentioned,(e) that no action shall be main- tained whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification after full age of any promise or simple contract made during infancy, unless such promise or ratification shall be made by some writing signed by the party to be charged therewith. And it is further enacted,(/) that no action shall be brought whereby to charge any person upon or by reason of any representation or assurance made or given concerning or relating to the character, conduct, credit, ability, trade or dealings of any other person, to the intent or purpose that such other person may obtain credit, money or goods upon, unless such representation or assur- ance be made in writing signed by the party to be charged therewith. There appears to be some error in the word ^^ upon" in this enactment, which, as it stands, is superfluous.((/) And it has been doubted whether (y) See Lechmere v. Fletcher, 1 C. & M. 623 ; Bird v. Gammon, 3 Bing. N. C. 883 (E. C. L. R. vol. 32) ; Cheslyn v. Dalbj-, 4 You. & Coll. 238. (z) Ante, p. 76. (a) Stat. 19 & 20 Vict. c. 91, s. 13. (6) Stat. 9 Geo. IV. c. 14, s. 1 ; Whinman i-. Kynman, 1 Ex. Rep. 118; Cleave v. Jones, 6 Ex. Rep. 513 ; Bamfield v. Tupper, 7 Ex. Rep. 27 ; Fordham v. Wallis, 10 Hare 217 ; Nash v. Hodgson, 1 Kay 650 ; Edwards v. Janes, 1 Kay & John. 534. (c) Sect. 3. {d) Stat. 19 &. 20 Vict. c. 97, s 14, not retrospective; Jackson v. Woolley, 8 E. & B 784 (E. C. L. R. vol. 92). (e) Stat. 9 Geo. IV. c. 14, s. 5 ; ante, p. 77. (/) Stat. 9 Geo. IV. c. 14, s. 6. (^r) See 1 M. & W. 104, 123. OF CONTRACTS. 83 a representation made to a purchaser by the trustee of some property, that the property Avas encumbered to a less extent than was actually the case, was a representation concerning the ability of the vendor rjcoj^-i *within the meaning of the statute. (/i) The better opinion seems to be, that such a representation is within the statute, and ought, conse- quently, to be obtained in writing. In addition to those contracts which by statute are required to be in writing, there exists a peculiar class of contracts, which in their nature are expressed in writing, and for which a consideration is presumed to have been given till the contrary is proved. (z) These are bills of ex- change and promissory notes. (A;) A bill of exchange is a written order from one person to another- to pay to a third person, or to his order, or to the bearer, a certain sum of money. The person making the order is called the drawer, the person on whom it is made the drawee, and the person to whom the money is payable the payee. The bill is sometimes made payable to the drawer himself, or to his order, or to him or bearer. If the person on whom the bill is drawn undertakes to pay it, he writes on it "the word "accepted,"* with his signature, and is then called the acceptor. A promissory note, or note of hand, as it is sometimes called, is a written promise from one person to pay to another, or to his order, or to bearer, a certain sum of money. The person making the promise is called the maker of the note. No negotiable or transferable bill or note can be lawfully drawn or made for any sum under 20s. ;(Z)" but any (A) See Lyde v. Barnard, 1 M. & W. 101 ; Swann v. Phillips, 8 Ad. & E. 457 (E. C. L. R. vol. 35) ; Devaux v. Steinkeller, 6 Bing. N. C. 84 (E. C. L. R. vol. 37). (j) See Mills v. Barber, 1 M. & W. 425. \k) See Byles on Bills, and Bayley on Bills. \l) Stat. 48 Geo. III. c. 88, s. 2. 1 The word "accepted," should, in ac- Maine, "if a bill of exchange be drawn, cordance with the custom of naerchants, be accepted or endorsed, . . . for one hun- written across the face of the bill, over the dred dollars or more, and payable in " the signature of the acceptor. " State, at a place seventy-five miles dis- * Very few restrictions of this nature ex- tant from the place where drawn, the ist within the United States, and even in damages against theacceptor, drawer, or those states where provisions of this kind endorser, over and above the contents of are in force, they have a view rather to the bill and interest, shall be one per cent, obtaining a protest, or recovering damages, on its amount:" Revis. Stat, of Maine than to an absolute prohibition. Thus, in (1857), pp. 519, 520; and a similar provi- Alabama, " every bill of exchange, of the sion exists in Massachusetts : Revis. Stats. sum of $20 and upwards, drawn in, or of Mass. (1860), p. 294. By the laws of dated at, or from any place in " the State, New Jersey, bills of exchange drawn with- may be protested for non-acceptance, or in the State, upon any person within the non-payment: Clay's Alaba. Dig. 381. In State, for eight dollars or upwards, may 84 OF CHOSES IN ACTION. person may now draw upon his banker, who shall bon^ fide hold money for his use, any draft or order for the payment to the bearer, or to order, on demand, of any sum of money less than 20s.{m) Bills and r*QCT notes *under 51. cannot be made payable to beaver on demand, '- -' and Avere formerly subject to other stringent restrictions,(w) ^ (m) Stat. 23 & 24 Vict. c. Ill, s. 19. (m) Stat. 17 Geo. III. c. 30, 7 Geo. IV. c. G, s. 4. be protested for non-acceptance or non- payment : Nixon's Dig. Laws N. J. (1868), p. 770. Two of the states, Massacliusetts and South Carolina, prohibit the negotia- ting of notes under a certain sum, the first limiting them to five dollars, under a pen- alty of fifty dollars ; and the latter to one dollar, under a penalty often dollars ; the prohibition in South Carolina, being also extended to bills of exchange : Revis. Stats. of Mass. (18C0),p. 810; Stats, of S. C, vol. 6, p. 34. The only other enactments in the United States having any reference to this point, are those designed to prevent the issuing of notes, intended to perform the functions of currency, by others than cor- porations, specially created by authority of law, with this power. Thus, in Penn- sylvania, by the 2d sec. of the Act of March 22, 1817, "No incorporated body, public officer, association or partnership, or private individual, other than such as have been expressly incorporated or es- tablished for the purpose of banking, shall make, issue, reissue or circulate, any pro- missory note, ticket, or engagement of credit in the nature of a bank note, of any denomination or amount whatsoever," &c. : Purd. Dig. (1861), p. 94, sec. 59. Similar provisions are in operation in many of the other states : Revis. Stats, of N. Y., vol. 2, p. 981; Revis- Stats, of Mass. (18G0), p. 810; Revis. Stats, of Ohio (1860), vol. 1, pp. 152, 153. * In connection with the subject of negotiable or transferable bills or notes, the comparatively recent English case of Bellamy et al. v. Majoribanks et al., 7 Ex. 389, relative to crossed checks, may not be entirely devoid of interest. The plain- tiffs in this case, " were trustees of a gen- tleman named Frank ; . . . thej- had opened an account with the defendants, Messrs. Coutts & Co., for the purpose of the trust. A suit was pending in the Court of Chan- cery with reference to the trust, in which Mr. Triston acted as solicitor for the plaintiffs. The other parties to the suit were the next of kin of Mr. Frank, and a Mr. Geary acted as solicitor for them. In June, 1845, Mr. Geary brought to Mr. Triston a check upon Messrs. Coutts, writ- ten out by him, for 2596Z. 17s., to be signed by the plaintiff's. It was, when delivered to Mr. Triston, in the common form. Mr. Triston sent the check to the plaintiff, Mr. Bellamy, at Brighton, who returned it signed, with the following addition in his own handwriting, namely, at the end of the body of the check, the words : ' Gen- eral unpaid costs account,' and crossed as follows, ' Bank of England, for account of Accountant-General.' Mr. Triston then sent it to the other trustee (the plaintiff, Mr. Foster), to be signed by him, aud hav- ing received it back, delivered it to Geary. In point of fact, the department of the Bank of England, in which the business of the Accountant-General is conducted, wou.ld not have received this check, it being the rule not to receive any, except one drawn on the Bank of England itself; and this rule is well known among the London bankers Upon the day on which Geary received the check, he struck out the crossing made by Mr. Bellamy, by running a pen through it, leaving it, how- ever, perfectly legible, and crossed the check a second time, with the name of Messrs. Gossling & Co., his own bankers, and paid it into their bank, to the credit of his own account. Upon the following day, the clerk of Messrs. Gossling present- OF CONTRACTS. 85 which were repealed for three years from the 28th of July, 1863, and until the end of the then next session of Parliament ;(o) and the repeal has been since regularly extended from year to year.(p) Bills and notes payable to bearer on demand are also prohibited from being issued by bankers, except by the banks and under the restrictions mentioned in the act passed to regulate the issue of bank notes.(9') Bills or notes pay- able to A. B. or order are transferable by a written order endorsed (o) Stat. 26 & 21 Vict. c. 105. (/>) Last extended by stat. 32 & 33 Vict. c. 85. {q) Stat. 7 & 8 Vict. c. 32, ss. 10, 11. ed it for payment at Messrs. Coutts & Co., who paid it, and charged it to the debit of the plaintiffs' account. The money was placed by Messrs. Gossling to the credit of Geary, in his own account with them. He never paid the money to the Accountant- General, and the plaintiffs were obliged to make it good. The following is a copy of the check, as produced at the trial." I London, \\ June 23, 1845. Messrs. Coutts Jr V- & Co. Pay to Edward^! IJ c5 Bryant Geary, or Bearer, two thou-^} <> '^sand five hundred and ninety-sis".. .| c pounds, seventeen shillings (Generah; li count £2596 17 : 0. : unpaid Costs Ac- Thos. C. Bellamy, Chas. J. Foster. Parke, B. "Where a check is crossed, bankers generally refuse to pay it to any one except a banker ; and if they do pay it to a person not a banker, they consider that they do it at their peril, in the event of the party, to whom the payment was made, not being entitled to receive it. That the object is to secure the payment, not to any particular banker, but to a banker, in order that it may be easily traced, for whose use the money was re- ceived ; and that it was not intended thereby, to at all restrict the negotiability or circulation of the check, but merely to compel the holder to present it through a quarter of known respectability and credit. We are strongly inclined to think that, on a full inquiry, the usage will turn out to be no more than this ; and considering the custom in this point of view, the crossing is a mere memorandum on the face of the check, and forms no part of the instru- ment itself, and in no way alters its effect. There can be no doubt that such a usage is highly beneficial to the public. These instruments are, in their essential charac- ter, payable to bearer, they are in many respects treated as bank notes It is manifestly, therefore, a great safeguard and protection to the real owner, that there should exist the means of tracing and ascertaining, for whose use the money paid on the check is received, and to whom the money actually goes ; and the payment through a banker secures this object. . . . We think there is no legal objection to the custom, if thus limited, and understood, upon the ground of its being repugnant to the essential quality of a check, namely, its negotiability by delivery. There is no obligation upon any one to receive payment by a check, whether it be crossed or not crossed ; but if a man receive a crossed check, he seems to us, not indeed to incur the obligation of presenting it for payment through a banker, as a condition precedent, but he ought not to complain if the drawee does not pay without previous inquiry. There is really no restriction upon its negotia- bility ; but it is, in our opinion, a reasona- ble and lawful practice and usage, in or- der to secure, as far as possible, payment of checks to honest and bona fide holders." 85 OF CH0SE3 IN ACTION. thereon by A. B. The mere signature by A. B. of his name on the back, followed by the delivery of the bill or note,(r) is however sufficient for this purpose. This is called an endorsement in blank ; and after such an endorsement, the bill or note, together with the right to sue upon it, may be transferred by mere delivery.(s) Any holder of the bill may, consequently, after such an endorsement, enforce payment to him- self. The endorsement may, however, be special, as " Pay C. D. or order, A. B." And in this case the bill or note, in order to become transferable, must be endorsed by C. D. But if a bill be once endorsed in blank, it will always be payable to the bearer by any of the parties thereto, although it may subsequently be specially endorsed ; but the special endorser will not be liable to the bearer without the endorsement of the person to Avhom he has specially endorsed it.(^)^ With regard to bankers, an act of the present reign provides that any draft or order „ drawn upon a banker for a sum *of money payable to order on ^ -• demand which shall, when presented for payment, purport to be endorsed by the person to whom the same shall be drawn payable, shall be a sufficient authority to such banker to pay the amount of such draft or order to the bearer thereof.(M) A bill or note payable to bearer is transferable by mere delivery without any endorsement. The eifect of accepting a bill, or making a promissory note, is to ren- der the acceptor or maker primarily liable to pay the same to the per- son entitled to require payment. The effect of drawing a bill is to make the drawer liable to payment, if the acceptor make default. But in order to charge the drawer of a foreign bill, it must, by the custom of merchants, be protested by a notary public. (v) This protest is a declara- tion by him in due form that payment has been demanded and refused. A protest, however, is unnecessary for an inland bill or promissory note.(a:) The effect of endorsing a bill or note is to make the endorser also liable to payment, if the acceptor of the bill or maker of the note should make default. The endorsement operates as against the endorser as a new drawing of the bill by him.(?/) An endorsement, however, (r) Bromage v. Lloyd, 1 Ex. Rep. 32 (.?) Peacock v. Rhodes, 2 Doug. 333. (t) Smith V. Clarke, 1 Peake 295 ; Walter v. Macdonald, 2 Ex. Rep. 527 (m) Stat. 16 k 17 Vict. c. 59, s. 19. {v) Gale v. Walsh, 5 Term Rep. 239. (x) Windle v. Andrews, 2 B. & Aid. 696. (?/) Penny v. Innes, 1 C, M. & R. 441. 1 But the holder of a note endorsed in Mon. 572; Webster v. Cobb, 17 111. 459; blank, may fill it up with any contract Watkins v. Kirkpatrick, 2 Dutch. 84; consistent with the character of an en- Becker v. Levy, 2 Am. L. Reg. 444 ; West dorsement: Byles on Bills, 5th Am. ed. p. v. Meserve, 17 N. H. 432; but see Newell v. 146, note 1 ; Caruth v. Thompson, 16 B. Williams, 5 Sneed 208. OF CONTRACTS. 86 may be made without recourse to the endorser, or " sans recours," as it is generally expressed, in which case the endorser avoids all personal liability. (2) The drawer of a bill, or the endorser of a bill or note, will, however, be discharged from all liability, unless the person requiring payment should, within a reasonable time, give him notice that the bill or note has not been paid, or, as it is termed, has been dishonored, and give him to understand, *either expressly or by implication, r*o7-i that. he looks to him for payment.(«) In consequence of the con- sideration being presumed to have been given for every bill or note till the contrary is shown, it follows, that if a bill or note should have been drawn, accepted or endorsed without any consideration, or for a consid- eration which is illegal, a bona fide holder for valuable consideration, or any endorsee from him, may, nevertheless, enforce payment; for when he took the security he was entitled to rely on the legal presumption of a proper consideration having been given. (i)' It is stated by Sir Wil- (z) Byles on Bills 117, Gth ed. (a) Hartley v. Case, 4 B. & C. 339 (E. C. L. R. vol. 10), Byles on Bills 213 ei seq., eth ed. (b) Collins V. Martin, 1 Bos. & Pul. 651 ; Morris v. Lee, Bayley on Bills 500 ; Robin- son V. Reynolds, 2 Q. B. 196 (E. C. L. R. vol. 42) ; May v. Chapman, 16 M. & W. 355. ^ In general, accommodation paper, as between others than the original parties to it, is to be governed by the rules of nego- tiable instruments founded upon a valua- ble consideration : Brown v. Fort, 1 Mart. 34 ; Harrod v. Lafarge, 12 Id. 21 ; Dorsey V. Their Creditors, 1 New Series (La.) 12 ; Church V. Barlow, 9 Pick. 549 ; Commer- cial Bank v. Cunningham, 24 Id. 276 ; Quinn v. Fuller, 7 Mete. 225 ; Perry v. Green, 4 Harrison 61 ; Jackson v. Richards, 2 Caines 243 ; Grandin ik Le Roj% 3 Paige 509; Clopper's Admr. v. The Union Bank, 1 Har. & Johns. 103 ; Lathrop v. Morris, 5 Sandf. S. C. 9 ; Appleton v. Donaldson, 3 Penn. St. 381 ; Snyder v. Wilt, 15 Penn. St. 65 ; Bank of Montgomery Co. v. Walker, 9 S. & R. 229 ; Aiken v. Cathcart, 3 Richard. 133 ; Holmes v. Paul, 6 Am. L. Reg. 482 ; s. c. 3 Grant's Cases, 299 ; Yates V. Donaldson, 5 Md. 389 ; Zwellweger v. Caffe, 5 Duer 87 ; Robins v. Richardson, 2 Bosw. 248 ; Work v. Kase, 34 Penn. St. 138 ; Post V. Tradesmen's Bank, 28 Conn. 420; Struthers v. Kendall et al., 41 Penn. St. 214 ; and even where the holder of the paper, knowing that it has been given or accepted for the accommodation of the en- dorser or drawer, gives time to such en- dorser or drawer, the maker or acceptor is not thereby discharged; for, having put himself on the paper, as principal debtor, he is not entitled to the privileges of a surety, as between himself and strangers : Bank of Montgomery v. Walker, 9 S. & R. 229 ; s. c. 12 Id. 382 ; Whitev. Hopkins, 3 W. & S. 99 ; Lewis v. Hauchman, 2 Penn. St. 416; Foard v. Womack, use, &c., 2 Ala. 368 ; Tarver v. Nance, 5 Id. 712 ; French v. Bank of Columbia, 4 Cranch 153 ; Parks et al. V. Ingram, et al., 2 Fost. 281 ; J. & T. Powell V. Waters, 17 Johns. 176; Murrah et al. V. Judah, 6 Cowen 484; Commercial Bank of Albany v. Hughes, 17 Wend. 94; Love et al. v. Brown et al., 38 Penn. St. 308 ; Ross v. Bedell, 5 Duer 462 ; Howard V. Welchman, 6 Bosw. 280; Melms v. Werdehoff, 14 Wis. 18; but see Clopper's Admr. v. The Union Bank, 7 Har. & Johns. 103; Perry v. Green, 4 Harrison 61. But this proposition is subject to certain modi- fications for, — First, where a bill is drawn 87 OF CIIOSES IN ACTION. liam Blackstone,(c) "that every note, from the subscription of the drawer, carries ^vith it an internal evidence of a good consideration." This however appears to be a mistake. The law does not give this effect to bills of exchange and promissory notes in respect of the undertaking being evidenced by writing, but in order to strengthen and facilitate that commercial intercourse which is carried on through the medium of such securities. ((^) On this ground the law allows these instruments to form an exception to the general rule that a consideration must be shown for every agreement, although evidenced by writing. The remedies on bills of exchange and promissory notes have been facilitated by a recent act.(c) (c) 2 Black. Com. 446. (d) 1 Fonbl. Eq. 343, 344. (e) Stat. 18 & 19 Vict. c. 67. The stamps on bills and notes are now regulated by stats. 17 & 18 Vict. c. 83, 23 Vict. c. 15, 23 & 24 Vict. c. Ill, and 27 & 28 Vict. c. 56, s. 2.2 for the accommodation of the drawer, or endorser, he for whose benefit it is drawn, is not entitled to notice of non-acceptance or non-payment: Armstrong et al. v. Gray, 1 Stew. 175 ; Evans' Admr. v. Norris et al., 1 Ala. 511 ; Foard v. Womack, use, &c., 2 Id. 368; Tarverw. Nance, 5 Id. 712 ; Shir- ley V. Fellows et al., 9 Porter (Ala.) 300 ; Holman v. Whiting, 19 Ala. 704 ; French V. The Bank of Columbia, 4 Cranch 153; Gillespie et al. v. Cammack et al., 3 La. Ann. 248; Clopper's Admr. r. The Union Bank, 7 Har. & Johns. 103; Hoffman v. Smith, 1 Caines 160 ; Commercial Bank of Albany t>. Hughes, 17 Wend. 94; Deny v. Palmer, 5 Ired. 610; Farmers' Bank v. Vanmeter, 4 Rand. 553 ; Reid v. Morrison, 2 W. & S. 406 ; Ross. v. Bedell, 5 Duer 462. Secondly, where one has paid value for an accommodation bill or note, he may re- cover upon it, even though he took it with the knowledge, that it was drawn for the accommodation of one or more of the parties : Towusley v. Sumrall, 2 Peters 183 ; Lambest v. Sandford, 2 Blackf. 137 ; Eldridge v. Duncan, 1 B. Mon. 102 ; Rea- wick V. Williams, 2 Md. 363; Brown v. Mott, 7 Johns. 361 ; Murrah et al. v. Judah, 6 Cowen 484; Grant et al. v. Ellicott, 7 Wend. 227 ; Perry et al. v. Crammond et al., 1 Wash. C. C. 100; Pierson v. Boyd, 2 Duer 33 ; Steckel v. Steckel, 28 Penu. St. 235; Pettigrew v. Chave, 2 Hilton 546; but this principle has been contradicted in Brown v. Fort, 1 Mart. 34 ; Commercial Bank v. Cunningham, 24 Pick. 276, and Quinn v. Fuller, 7 Mete. 225. And see Rochester v. Taylor, 23 Barb. 18. Where an endorser has signed his name in blank before the payee, there is consid- erable diversity of opinion as to the nature of his liability, in the absence of extrinsic evidence on the subject, some cases holding that he is liable as a prom- isor, or surety : Norton v. Hall, 41 Vt. 471; Pearson v. Stoddard, 7 Gray 199; Essex Co. V. Edmands, 12 Id. 273 ; others, that it amounts to a guaranty that, with due diligence, the note will be collectable : Riddle v. Stevens, 32 Conn. 378 ; White v. Weaver, 41 111. 409 ; while others decide that his liability is that of second endorser : Lester v. Paine, 39 Barb. 616 ; Kamin v. Holland, 2 Oregon 59 ; Badger v. Barnabee, 17 N. H. 120; Smith v. Kessler, 44 Penn. St. 142 ; and that proof of a liability, dif- ferent from that which the endorsement imports, cannot be made by parol: Shafer V. The Bank, 59 Id. 144. See, also, Murray V. McKee, 60 Id. 35. 2 The law of the United States of America, in relation to stamps on bills and promissory notes, will be found in a schedule, at the end of sec. 170, of an Act OF CONTRACTS. 87 We now come to the second class of contracts, namely, special contracts, or contracts by deed. These contracts differ from mere simple contracts in the following important particular, that they of themselves import a consideration, (/) *whilst in simple contracts a consideration must r^j^oo-i be proved. For the law presumes that no man will put his seal to a deed without some good motive.(^) And when an agreement is once embodied in a deed, such deed becomes itself the agreement, and not evidence merely, as is the case when a parol agreement is reduced to writing. On this principle it appears to be that, after a deed has been executed, any alteration, rasure or addition made in any material point, even by a stranger, will render the deed void. (7;)^ It is true that by (/) 1 Fonbl. Eq. 342. (g) See Principles "of the Law of Real Property 118, 2d ed. 5th ed. : 134, 6th ed. ; 137, 7th ed. ; 143, 8lh ed. (A) Pigot's Case, 11 Rep. 27 a. 123, 3d & 4th eds. ; 128, of Congress, entitled, "An act to provide internal revenue, to support the govern- ment, to pay interest on the public debt, and for other purposes," approved June thirtieth, eighteen hundred and sixty- four ; and commonly known as the Inter- nal Revenue Act; as amended by the fourth section of the Act of Congress, en- titled " An Act to reduce Internal Taxes, and for other purposes," approved July 13, 1870. 1 The ancient English doctrine on the subject of erasures, alterations, or inter- lineations, undoubtedly was, that the slight- est change in any instrument of writing, subsequently to its execution, avoided it, whether the alteration was made by a party, or by a stranger ; and the court de- cided, upon view of the instrument, whether it should be received or rejected. In this country, the doctrine, that an alteration, when made by a stranger, vitiates the doc- ument, is not sanctioned. It is now the general opinion, that a material alteration in any instrument of writing, will avoid it, if made by one of the parties to the con- tract, or, if it be unexplained ; for then it is presumed, that it was made by the party having it in his custody : Steele's Lessee V. Spencer et al., 1 Peters 560 ; Inglish et al. V. Breneman, 5 Ark. 377 ; Shelton v. Deering, 10 B. Men. 407 ; Letcher v. Bates, 6 J. J. Marsh. 525 ; Smith v. Crooker et al., 5 Mass. 538; Ford v. Ford, 17 Id. 418; Bowers v. Jewell, 2 N. H, 543 ; Vanauken v. Hornbeck, 2 Green 179 ; Jackson v. Ma- lin, 15 Johns. 293 ; Woodworth v. Bank of America, 19 Id. 391 ; Vanhorne v. Dor- rance, 2 Dall. 306 ; Heuningw. Workheiser, 8 Penn. St. 518 ; Van Amringe v. Morton, 4 Whart. 382 ; Maise v. Garner, Mart. & Yerg. 383 ; Newell v. Mayberry, 3 Leigh 250 ; Adams et al. v. Frye, 3 Mete. 103 Bank U. S. v. Russell et al., 3 Yeates 391 Stephens v. Graham et al., 7 S. & R. 505 Wade V. Withington, 1 Allen 561 ; Burn- han V. Ayer, 35 N. H. 351 ; Heffner v. Wen- rich, 32 Penn. St. 423 ; Southwark Bank v. Gross, 35 Id. 80; Hill v. Cooley, 46 Id. 259 ; Booker v. Stivender, 13 Rich. (So. Car.) 85 ; Sheldon v. Hawes, 15 Mich. 519 ; and this is so, even though it appears that the alteration was honestly made, for the purpose of correcting a mistake : Mil- ler V. Gilleland, 19 Penn. St. 120 ; Getty j>. Shearer, 1 Am. L. Reg. 119; s. c. 20 Penn. St. 12 ; Fay v. Smith, 1 Allen 477 ; but an immaterial alteration will not vitiate, un- less it be made by one of the parties to the instrument altered : Johnson v. Bank of U. S., 2 B. Mon. 310 ; Bank of Limestone V. Penick, 5 Id. 29 ; Wright v. Wright et al., 2 Halst. 175; Jackson v. Malin, 15 Johns. 293 ; Morris's Lessee v. Vanderen, OF CHOSES IN ACTION. recent decisions(?') this doctrine has been extended to a mere written agreement. But although it is no doubt highly important that all legal (f) Davidson i;. Cooper, 13 M. & W. 343, 352 ; Mollett v. Wackerbarth, 5 C. B. 181 (E. C. L. R. vol. 57). It is now held that immaterial alterations, though made by a party to an instrument, do not render it void : Aldous v. Cornwell, Law Rep. 3 Q. B. 573. 1 Dall. 67 ; Ilerdman v. Bratten, 2 Harring. 39G : Vauauken v. Hornbeck, 2 Green 179; Moore r. Bickham et al., 4 Binn. 1. In accordance with this general rule on the subject of material alterations, it has been held, that one who claims under an instrument, which appears on its face to be altered, is bound to explain the altera- tion : United States v. Linn et al., 1 How. (U. S.) 104 ; Newcomb v. Presbrey, 8 Mete. 406 ; Gellett v. Sweat, 1 Gilm. 475 ; Hum- phreys V. Guillou et al., 13 N. H. 385; Acker v. Ledyard, 8 Barb. S. C. 514; Bar- rington et al. v. The Bank of Washington, 14 S. & R. 405 ; Adams et al. i'. Frye, 3 Mete. 103; Hill v. Cooley, 46 Penn. St. 259; Paine v. Edsell, 19 Id. 178; Huntington v. Finch, 3 Ohio N. S. 445 ; and that a substantial erasure, is pre- sumed to be false or forged, and must be accounted for before the writing can be given in evidence : McMicken v. Beau- champ, 2 La. 290; Fletcher etal. I'. Cavelier et al., 4 Id. 270 ; Slocumb et al. v. Wat- kins, 1 Rob. 214; Chelsey v. Frost, 1 N. H. 145; Hills v. Barnes et al., 11 Id. 395; Jackson v. Osborn, 2 Wend. 555 ; Hefifel- fiager v. Shutz et al., 16 S. & R. 46; Pre- vost V. Gratz etal., 1 Peters C. C. 364 ; Miller v. Reed, 3 Grant 51 ; and also, that where one offering a deed, proves as part of his evidence, that the deed has been fraudulently altered by him, it will be re- jected : Babb v. Clemson, 10 S. & R. 419. On the other hand, it has been decided, that where an instrument is altered against the interest of the party claiming under it, the law will not presume that the al- teration was improperly made, but the jury must determine the matter from all the circumstances of the case : Bailey v. Taylor, II Conn. 531 ; Whitmer v. Frye, 10 .Misso. 348 ; Farlee v. Farlee, 1 Zabr. 280 ; Heffelfinger v. Shutz et al., 16 S. . John- son, 11 Mass. 359; Hughes v. Wheeler, 8 Cowen 77 ; Rice v. Welling, 5 Wend. 595 ; Hammond v. Hopping, 13 Id. 505 ; Mitchell V. Cotton, 2 Fla. 149 ; Troutman v. Barnett, 9 Geo. 30; Edgell v. Stanford, 6 Vt. 551;, Donnington v. Meeker, 3 Stockt. 362 ; Smith V. Hollister, 1 McCarter (N. J.) 153 ; and it is not usury, to purchase a note, bond, or other security for money, at any rate of discount, as there is not a contract of loan ; for usury is the taking of interest at an illegal rate upon a loan ; but it must be a bona fide transaction, and the note or bill must not have been used, or made, as a mere device to avoid the statutes of usury : Saltraarsh v. Bank, 17 Ala. 761 ; s. c. 14 Id. 668 ; Brown v. Harrison, 17 Id. 774 ; Gregory v. Bewley, 2 Eng. 22 ; s. c. 5 Ark. 318 ; Caton v. Shaw, 2 Har. & G. 13 ; Belden v. Lamb, 17 Conn. 441 ; Free- man V. Brittin, 2 Harr. 191 ; Braman v. Hess, 13 Johns. 52 ; Mann v. Company, 15 Id. 44 ; Powell v. Waters, 17 Id. 176 ; Cobb V. Titus, 13 Barb, S. C. 47 ; Seymour V. Marvin, 11 Id. 80; Simpson v. Fullen- widder, 12 Ired. 334; Musgrove v. Gibbs, 1 Dall. 216; Parker v. Cousins, 2 Gratt, OF CONTRACTS. 89 the immorality of its object.(w) But a bond given to a woman in respect of the injury she has sustained by past cohabitation is valid. (o) For in (n) Walker v. Perkins, 1 Wm. Black. 517; s. c. 3 Burr. 1568; Gray v. Mathias, 5 Ves. 286. (o) Turner v. Vaughan 2 Wils. 339 ; Hill v. Spencer, 2 Amb. 641 ; Gray v. Mathias, 5 Ves. 286 ; Hall v. Palmer, 3 Hare 532 ; Kyne v. Moore, 1 Sim. & Stu. 61 ; 2 Sim. & Stu. 260 ; Ingre v. Moseley, 6 B. & C. 133 (E. C. L. R. vol. 13) ; 2 Sim. 161. 372 ; Sylvester v. Swan, 5 Allen (Mass.) 134 ; so, too, to determine whether or not a loan is usurious, reference must be had to the law of the place where it was made : Jacks V. Nichols, 5 Barb. S. C. 38 ; Sherill V. Hopkins, 1 Cowen 103 ; Smith i'. Mead, 3 Conn. 253 ; De Wolf v. Johnson, 10 Wheat. 367 ; Rose v. Phillips, 53 Conn. 570. For a further and full consideration of the subject of contracts void because un- lawful, see the following cases : As to contracts void on account of in- fringing some statutory provision or en- actment : Hannay v. Eve, 3 Cranch 242 ; Patton V. Nicholson, 3 Wheat. 207 ; The Julia, 8 Cranch 181 ; The Aurora, Id. 263 The Hiram, Id. 444 ; s. c. 1 Wheat. 440 The Ariadne, 2 Id. 143 ; Craig v. The State 4 Peters 411 ; Fales v. Mayberry, 2 Gall 563; Cambioso v. Maffet, 2 Wash. C. C 103 ; Kennett v. Chambers, 14 How. 39 Harris v. Runnels, 12 Id. 80 ; Munsell v Temple, 3 Gilm. 93; Wheeler v. Russell 17 Mass. 257 ; Bank v. Merrick, 14 Id. 322 Hunt V, Knickerbocker, 5 Johns. 327 Mitchell V. Smith, 1 Binn. 110 ; Fowler v. Throckmorton, 6 Blackf. 326; Steele v Curie, 4 Dana 384 ; Dickerson v. Gordy, 5 Rob. 420; Rand v. Tobie, 32 Maine 420 Merrick v. Bank, 8 Gill 73 ; Richardson v. Company, 6 Mass. Ill ; Wickham v. Conk- lin, 8 Johns. 220 ; Bank v. Niles, 1 Doug. 411 ; Maybin v. Coulon, 4 Dall. 298 ; Dun- canson v. McClure, Id. 308 ; Nichols v. Ruggles, 3 Day 145; Pratt v. Adams, 7 Paige 615; Odineal v. Barry, 24 Miss. 9; Merrell v. Legrand, 1 How. (Mo.) 150; Callagan v. Hallett, 1 Caines 104 ; Ludlow I'. Van Rensselaer, 1 Johns. 94; Goodale V. Holridge, 2 Id. 193 ; Walt v. Harper, Id. 386 ; Love v. Palmer, 7 Id. 159 ; Richmond I'. Roberts, Id. 319 ; Read v. Pruyn, Id. 426 ; Strong v. Tompkins, 8 Id. 98 ; Yeo- mans v. Chatterton, 9 Id. 295; Bruce v- Lee, 4 Id. 410; Graves v. Worrall, 14 Id. 146; Griswold v. Waddington, 15 Id. 57; s. c. 16 Id. 438; Seamen y. Waddington, 16 Id. 510 ; Beddis v. James, 6 Binn. 321 ; Eberman v. Reitzel, 1 W. & S. 181; Fox v. Mensch, 3 Id. 446 ; Kepner v. Keefer, 6 Watts 231 ; Yerger v. Rains, 4 Humph. 259, 267; Ohio Life and Insurance Trust Company v. The Merchants' Insurance and Trust Co., 11 Id. 1 ; Heirs of Hunt v. Heirs of Robinson, 1 Texas 758 ; Elkins v. Parkhurst, 17 Vt. 105 ; Spalding v. Preston, 21 Id. 9 ; Terrett et al. v. Bartlett, Id. 184; Case V. Riker, 10 Id. 482 ; Meyers v. Byerly, 45 Penn St. 368. As to contracts void on account of being contrary to good morals, or because against public policy, or principles of the common law, see as well some of the above cases, as the following : Greenwood v. Exrs. of Colcock, 2 Bay 67; Denton v. Er- win et al., 6 La. Ann. 317; Denton v. Wilcox, 2 Id. 66; Slidell v. Pritchard et al., 5 Rob. 101 ; De Sobry v. De Laistre, 2 Har. & Johns. 228 ; Commonwealth v. Harrington, 3 Pick. 26 ; Columbia Bank v. Haldeman, 7 W. & S. 235 ; Pulse v. State, 5 Humph. 108 ; Hale v. Henderson, 4 Id. 199; Allen v. Dodd, Id. 132; Logan u. Austin, 1 Stew. 478 ; Grant et al. v. McLes- ter, 8 Geo. 553 ; Harralson v. Dicking, 2 Car. L. Repos. 66 ; The First Congrega- tional Church of the City of New Orleans V. Henderson, 4 Rob. 209 ; Shaw v. Reed, 30 Maine 105 ; Denny v. Lincoln, Admr., 5 Mass. 387; Churchill v. Perkins et al.. Id. 541 ; Parsons v. Winslow, 6 Id. 169; Boyn- ton V. Hubbard, 7 Id. 112 ; Sweet et al. v. Poor et. al., 11 Id. 549; Ayer v. Hutchin- 89 OF CHOSES IN ACTION. r-*Q01 ^^'® ^^^^ *^^ object is not immoral ; *and the consideration im- plied by the bond being a deed under seal supplies the want which would otherwise exist of a proper consideration. (/») If a contract have more than one object, and some of the objects are lawful whilst the others are unlawful, the unlawful objects will not vitiate the others,(^) provided the good part be separable from, and not dependent upon, that which is bad;(r) unless of course the whole contract should be rendered void by any enactment to the effect that all instruments containing any matter contrary thereto shall be void, in which case everything connected with the instrument Avill be vitiated. (6-)' And if the good part of a contract be inseparable from the bad, as if a contract be made partly in considera- tion of the payment of money (which would be good), and partly for a consideration whose object is illegal, the illegal part of the consideration will vitiate the good, and render the whole contract void.(i) (p) Binnington v. Wallis, 4 B. & Aid. 650, 652 (E. C. L. R. vol. 6) ; ante, p. 73. (g) Gaskell v. King, 11 East 165 ; Wigg v. Shuttleworth, 13 East 87 ; Howe v. Synge^ 15 East 440 ; in all which decisions unlawful covenants to pay the property tax were held not to vitiate other valid covenants in the same instrument. See also Kerrison V. Cole, 8 East 231 ; Mallen v. May, 11 M. & W. 653 ; Green v. Price, 13 M. & W. 695 ; affirmed 16 M. & W. 346 ; Nicholls v. Stretton, 10 Q. B. 346 (E. C. L. R. vol. 59). (;•) See Biddell v. Leeder, 1 B. & C. 327 (E. C. L. R. vol. 8), decided on the old Ship Registry Act. (s) See 1 Smith's Leading Cases 169, and the statutes recited in the preamble to 5 & 6 Will. IV. c. 41. (t) Fetherstone i^. Hutchinson, Cro. Eliz. 199; Bridget). Cage, Cro. Jac. 103. See also per Tindal, C. J., in Waite v. Jones, 1 Bing. N. C. 662 (E. C. L. R. vol. 27) ; Hop- kins V. Prescott, 4 C. B. 578 (E. C. L. vol. 56). son, 4 Id. 370 ; Belding v. Pitkin, 2 Gaines Carroll v. Tyler, 2 Har. & G. 54 ; Smith v. 149 ; Thurston v. Percival, 1 Pick. 415 ; Smith, 1 Bail. 70 ; Harris v. Ross's Exrs., Shelton v. Homer et al., 5 Mete. 462; 10 Barb. S. C. 489 ; Hartzfield «. Garden, Worcester V. Eaton, 11 Mass. 368 ; Doughty 7 Watts 152 ; Chippenger v. Hopbaugh, 5 V. Owen, 24 Miss. 407 ; Plummer v. Smith, W. & S. 315 ; Pingry v. Washburn, 1 Aik. 5 N. H. 553; Sayles «'. Sayles, 1 Fost. 312 ; 264; Cameron v. McFarland, 2 Car. L. Sterling v. Simmickson, 2 South. 756; Repos. 415 ; Stout w. Wren, 1 Hawk. 420 ; Fanshor v. Stout, 1 Id. 312 ; Sharp et al. v. Oberman v. Clemmons, 2 Dev. & Bat. 185 ; Teese, 4 Halst. 352 ; Gulick et al. v. Ward Barbee v. Armstead et al., 10 Ired. 530 ; et al., 5 Id. 87; Jones r. Caswell, 3 Johns. Roll v. Raguet, 4 Ohio 418; Coulon v. Cas. 29 ; Doolin v. Ward, 6 Johns. 194 ; Morton et al., Exrs., 4 Yeates 24 ; Schenck Wilbur V. How, 8 Id. 444; Thompson v. v. Mingle, 13 S. & R. 29 ; Lidenbender v. Davies, 13 Id. 112 ; Smith et al. v. Apple- Charles's Admr. 4 Id. 151 ; Crook v. Wil- gate, 3 Zabr. 352; Whitaker v. Cone, 1 liams, 20 Penn. St. 344 ; Corleyt;. Williams, Johns. Cas. 58; Sherman v. Boyce, 15 1 Bail. 588; Vincent v. Groom, 1 Yerg. Johns. 443 ; Tuxbury v. Miller, 19 Id. 311 ; 430 ; Bowers v. Bowers, 28 Penn. St. 74 ; Hatch V. Mann, 15 Wend. 44; Preston v. Tool Co. v. Norris, 2 Wall. (U.S.) 45; Bacon, 4 Conn. 471 ; Shattuck v. Woods, 1 Coppell v. Hall, 7 Id. 542. Pick. 175 ; Bassier v. Pray, 7 S. & R. 447 ; ' See ante, p. 89, note 1. OF CONTRACTS. 90 The instance above given of a bond for future cohabitation is an example of a contract void on account of its object being malum in se, or morally wrong. In the same manner, no action can be maintained on any contract for the sale or publication of any libellous or *im- p^Q^-, moral book or print.(w) A striking instance of a contract, void on account of its object being contrary to the policy of the common law, occurs in the case of a contract in restraint of trade. It is for the ad- vantage of the community that every pers6n should be allowed the full exercise of his trade or profession ; and any contract whereby a person is attempted to be restrained from following his usual calling, even for a limited time, is therefore absolutely void. (2:)* But a contract is not ren- dered void by having for its object the restraint of a person from trading in a particular place,(7/) or within a reasonable distance from any par- ticular place,(2) for he may carry on his trade elsewhere ; nor is a con- (?<) Forces v. Johnes, 4 Esp. 97 ; Stockdale v. Onwhyn, 5 B. & C. 173 (E. C. L. R. vol. 11) ; s. c. 7 D. & R. 625 ; Lawrence v. Smith, Jac. 471. (z) Year Book, P. 2 Hen. V. pi. 26 ; Ward v. Byrne, 5 M. & W. 548 ; Hind v. Gray, 1 M. & G. 195 (E. C. L. R. vol. 39). (y) Hitchcock v. Coker, 6 Ad. & E. 438 (E. C. L. R. vol. 33) ; s. c. 1 N. & P. 796; Archer v. Marsh, 6 Ad. & E. 959 (E. C. L. R. vol. 33) ; s. c. 2 N. & P. 562 ; Leighton v. Wales, 3 M. & W. 545. (z) Davis V. Mason, 5 Term Rep. 118 ; Proctor v. Sergeant, 2 M. & G. 20 (E. C. L. R. vol. 40); s. c. 2 Scott, N. R. 289; Whittaker v. Howe, 3 Beav. 383; Pemberton v. Vaughan, 10 Q. B. 87 (E. C. L. R. vol. 59) ; Atkyns v. Kinnier, 4 Ex. Rep. 776 ; Elves V. Crofts, 10 C. B. 241 (E. C. L. R. vol. 70) ; Avery v. Langford, 1 Kay 663, 667, where the cases are collected ; Harms v. Parsons, 32 Beav. 328; Brampton v. Beddoes, 13 C. B. N. S. 538 (E. C. L. R. vol. 106). 1 A contract in restraint of trade is only 345; Perkins v. Lyman, 9 Mass. 522. held to be void when such an agreement Stearns v. Barrett, 1 Pick. 443; Lawrence is against public policy ; if, therefore, the v. Kidder, 10 Barb. S. C. 641 ; Mott v. Mott, stipulations of the contract are such as to 11 Id. 127; Gilman v. Dwight, 13 Gray occasion no serious detriment to the inter- 396; Duffy v. Shockey, 11 Ind. 70 ; Gras- est of the public, the agreement will be selli v. Lowden, 11 Ohio N. S. 349; Oali- binding ; as, for example, a covenant, fornia Steam Nav. Co. v. Wright, 6 Cal. made by one not to carry on a trade 258; Kinsman v. ^arkhurst, 18 How. U. S. within a specific and limited locality, or 289; Whitney v. Slayton, 40 Maine 224; during a time limited, or otherwise par- Van Marter ?;. Babcock, 23 Barb. 633; Al- tial in its operation, if based upon a con- cock v. Giberton, 5 Duer 76 ; Herchew v. sideration otherwise legal, is valid, be- Hamilton, 3 Iowa 596 ; Kellogg v. Larkin, cause it is not considered of disadvantage 3 Chand. 133 ; Laubenheimer v. Mann, 17 to the public generally. For a full con- Wis. 542; Warren d. Jones, 51 Maine 146; sideration of this point, see the following Clark v. Crosby, 37 Vt. 188 ; Hard v. See- cases, which are believed to be the princi- ley, 47 Barb. 428: Keeler v. Taylor, 53 pal of the American decisions on the Penn. St 467 ; McClurg's Ap., 58 Id. 51 ; question: Pierce »'. Fuller, 8 Mass. 223; Taylor i;. Blanchard, 13 Allen (.Mass.) 370 ; Palmer v. Stebbins, 3 Pick. 188 ; Cuppell Morris Run Coal Co. v. Barclay Coal Co., V. Brockway, 21 Wend. 158 ; Ross v. Sady- 28 Leg. Int. 156 ; Wright v. Rider, 36 Cal. beer, Id. 166 ; Bowser v. Bliss, 7 Blackf. 342. 91 OF CHOSES IN ACTION. tract void vrhich restrains a person from serving a particular class of custouiers(a) (for there are plenty of others to be found), or which binds a person to be the servant for life in his trade to another,(6) for this is not in restraint of trade when it is to be carried on for his life. In a recent case(6') a person agreed that he would become assistant to a den- tist for four years, and that after the expiration of that term he would r*Qo-| not carry on the business *of a dentist in London, or any of the ^ towns or places in England or Scotland where the dentist might have been practising before the expiration of the service. And it was held that the covenant not to practise in London was valid ; but that the stipulation as to the other towns and places in England or Scotland was void. And according to the rule above mentioned, (t?) that where some of the objects of a contract are lawful and others unlawful, the unlawful objects will not vitiate the others, it was held that the stipulation as to practising in London was not affected by the illegality of the remainder of the agreement. The cases in which contracts may be void in consequence of their con- travening some acts of parliament are too numerous to be here specified. As an instance may be mentioned contracts by clergymen holding bene- fices with cure of souls, made for the purpose of charging such benefices with any sum of money ; which contracts are rendered void by a statute of Elizabeth. (e) And in these cases it has been held that any personal covenant for the payment of the money charged is not invalidated by being contained in the same deed as the attempted charge on the bene- fice.(/) Contracts for the sale or transfer of stock, of which the person contracting was not possessed at the time, and of which no transfer was intended to be made, Avere formerly void by the Stock Jobbing Act ;(^) (ff) Rannie v. Irvine, 1 M. & G. 969 (E. C. L, R. vol. 49). (b) Wallis V. Day, 2 M. & W. 2'.-3. (cj Mallan v. May, 11 M. & W. C53. See also Green v. Price, 13 M. & W. 695, affirmed, 16 M. & W. 346; Nicholls v. Slretton, 10 Q. B. 346 (E. C. L. R. vol. 59). (d) Anle,i). 90. («) Stat. 13 Eliz. c. 20. See Shaw v. Pritchard, 10 B. & C. 241 (E. C. L. R. vol. 21) ; Long V. Storie, 3 De G. & S. 308. (/) Monys v. Leake, 8 Term Rep. 411 ; Sloane v. Packman, 11 M. & W. V70. {ff) Stat. 1 Geo. II. c. 8, s. 8. See post, the chapter on Stock. 1 This subject does not seem to have an act of the legislature of May 22, 1841' been considered of sufficient importance in that " If any person or persons whatsoever several of lie United States, to require shall make or enter into any contract or statutory regulation. In Pennsylvania, agreement, written or oral, for the pur- however, it was enacted by the 6th sec. of chase, receipt, sale, delivery or transfer of OF CONTRACTS. 92 and money lent for the purpose of settling losses which had arisen from such illegal contracts could not be recovered back. (A) But this act is now repealed. (z) Securities for money won at play *or any game, r:|;qq-i or by betting on any game, or for money lent for gaming or bet- ting at the time and place of such play, were declared by a statute of Anne to be utterly void;(A;)^ but by a later statute(Z) such securities are (h) Cannan v. Bryce, 3 B. & Aid. 119 (E. C. L. R. vol. 5). (i) Stat. 23 Vict. c. 28. (k) Stat. 9 Anne, c 14. (l) 5 ) but in order to protect innocent holders of securities given for usurious consideration, it was subsequently declared that such contracts should not be absolutely void, but should be considered to have been made for an illegal consideration. (p) However, by a statute of the reign of King r*Q4.l William the Fourth, (^) it *was provided that no bill of exchange or promissory note made payable at or within three months after the date thereof, or not having more than three months to run, should be void by reason of any interest taken thereon or secured thereby, or any agreement to pay or receive or allow interest in discounting, nego- tiating or transferring the same. And by a subsequent statute,(r) all (to) See ante, p. 87. (n) Stat. 8 & 9 Vict. c. 109, s. 18. (o) Stilt. 12 Anne, st. 2, c. 16. {p) Stat. 5 & 6. Will IV. c, 41. {q) Stat. 3 & 4 Will. IV. c. 98, s. 7. (r) 2 & 3 Vict. c. 37. 290; Parsons v. The State, 2 Port. (Ind.) et al., 9 Ired. 378 ; Bledsoe v. Thompson, 499 ; Danforth v. Evaus, 16 Vt. 538 ; Mu- 6 Richard. 44; Rice v. Gist, 1 Strobh. 82; reau v. Langlej et al., 21 Maine 26; Bevil, Russell v. Pyland, 2 Humph. 131 ; Swag- Ac, V. Hix, 12 B. Mon. 142; McKinney v. gerty v. Stokely, 1 Swan 38 ; Tarleton v. Pope's Admr. 3 Id. 93; Lytle f. Lindsay, Baker, 18 Vt. 9; Watson v. Fletcher, 7 Id. 125; Ellis r. Beale, 18 Maine 337 ; Doyle Gratt. 19; Machir v. Moore, 2 Id. 257; r. The Commissioners of Baltimore County, Commonwealth v. Robbins, 26 Penn. St. 12' Gill & Johns. 484 ; Amory v. Gilman, 165 ; Collins v. Merrell, 2 Mete. (Ky.) 163; 2 Mass. 1; White v. Buss, 3 Cush. 448; Mallett t>. Butcher, 41 111.382; Knight v. Williams v. Woodman, 8 Pick. 78 ; Terrall Gregg, 26 Texas 506 ; Welsh v. Cutler, 44 V. Adams, 23 Miss. 570 ; Rush v. Gott, 9 N. H. 561 ; Barnes v. Turner, 4 Mete. (Ky.) Cowen 173 ; Rrown v. Riker, 4 Johns. 438 ; 114. Collins V. Ragrew, 15 Id. 5 ; Slate v. Black OF CONTRACTS. 94 bills of exchange and promissory notes made payable at or within twelve months after the date thereof, or not having more than twelve months to run, and all contracts for the loan or forbearance of money above the sum of 101. sterling, were exempted from the operation of the Usury Law.^ Nothing, however, contained in the last-mentioned act Avas to extend to the loan or forbearance of any money upon security of any lands, tenements or hereditaments, or any estate or interest therein. And now, by an act passed on the 10th of August, 1854,(s) all the laws against usury are repealed. But where interest is now payable upon any contract, express or implied, for payment of the legal or current rate of interest, or where interest is payable by any rule of law, the same rate is recoverable as before the act.(^) The above enactments are perhaps the most important statutory pro- visions by which contracts may be vitiated. Contracts whose objects are lawful are endlessly diversified, and many of them are regulated by laws (s) Stat. 17 & 18 Vict. c. 90. 1 The rate of interest established by law in the several states is as follows: In Maine, New Hampshire, Vermont, Massa- chusetts, Rhode Island, Connecticut, Penn- sylvania, Delaware, Maryland, Virginia, West Virginia, North Carolina, Tennessee, Kentucky, Ohio, Indiana, Illinois, Missouri, Arkansas, Iowa and Mississippi, six per cent, per annum ; in New Jersey, Michi- gan, Wisconsin, Georgia, Minnesota, New York and Kansas, seven per cent. ; in Ala- bama, Florida and Texas, eight per cent. ; in Louisiana, five per cent, per annum ; and in California, Nevada and Oregon, ten per cent. It does not, however, necessarily follow, that every contract by which a greater rate of interest is reserved, than what is allowed, by law, is usurious, for in some states, more than the amount of in- terest specified in the statute may be taken, by specific agreement between the parties- as in Louisiana, eight per cent, per annum may be reserved and taken, if it be agreed upon between the parties ; in Illinois, Iowa, Wisconsin, Missouri, Tennessee, Nevada, Indiana and Michigan, ten per cent; in Minnesota, Virginia, Kansas and Texas, twelve per cent, per annum, by a like arrangement ; and in Arkansas, Cali- (t) Sect. 3. fornia, Massachusetts, Rhode Island and Nevada, any rate of interest specified in writing is legal ; while in South Carolina, there is no interest law, but the interest is regulated by the contract, and when not so specified, it is by custom seven per cent. The penalties and forfeitures for usury, are different in the different states ; in some instances, three times the usurious interest is forfeited, in others the usurious interest only. A distinction, also, is to be noticed between an agreement to take usurious interest, and the actual taking of it, the latter only having been held in some states to be within the statutes of usury, and the agreement valid for prin- cipal and lawful interest. See generally, on the subject of this note : Gen. Stats. N. H. (1867) c. 213, s. 2, p. 433 ; McGehee v. George, 38 Ala. 323 ; Pauska v. Daus, 31 Texas 67 ; Gen. Stat. Kansas (1868) c. 51, s. 1 & 2, p. 525; Oatlin V. Knott, 2 Oregon 321 ; Williams v. Glasgow, 1 Nev. St. 537 ; 1 Wagner's Misso. Stat., p. 782-3; as to Tennessee, Ellis V. Branan, 1 Duval (Ky.) 49 ; as to Delaware and Florida, 4 Am. L. Reg. (N. S.) 323 note ; and forthe remaining states, 25 Bankers' Magazine, tit. " Maine," &c. 94 OF CHOSES IN ACTION. which it is not within the scope of the present work to enumerate. For the breach of anj such contract pecuniary damages are, as we have seen,(w) the sovereign remedy prescribed by law, though equity not unfre- quently administers more appropriate specifics. The person to whom money has become due, whether from any injury received, or from any contract broken, or from a contract to pay money itself, stands in a P^q.-| situation more or less advantageous *as regards his remedies for recovering the money, according. to the nature of the debt which has thus become due to him. For by the law of England all creditors are not allowed equal rights, but are preferred the one to the other, partly according to accidental circumstances, and partly according to the degree of diligence and precaution which each may have used. The subject of debt is of sufficient importance to form a separate chapter. (w) Ante, p. G3. *CHAPTER III. [*96] OF DEBTS. Debts, by the law of England, are divided into different classes, con- ferring on the creditor different degrees of security for re-payment. The class which confers the highest privileges is that of debts of record, which class will accordingly first claim our attention. A debt of record is a debt due by the evidence of a court of record.(a) Every court, by having power given to it to fine and imprison, is thereby made a court of record. (6)' Such courts are either supreme, superior or inferior. The supreme court is the Parliament. The superior courts of record are the House of Lords, the Court of Chancery, and -the Courts of Queen's Bench, Common Pleas and Exchequer, which are the more principal courts. The courts of the Counties Palatine of Lancaster and Durham are also superior courts of Yecord.(c) The Court of Bank- ruptcy and its district courts, and every commissioner thereof, also exercise and enjoy all the powers and privileges of a court of record as fully as the courts of law at Westminster.((i) The Court of Probate is also a court of record ;(e) and so is the High Court of Admiralty.(/) The inferior courts of record may be said, generally, to consist of the numer- ous courts established throughout the country, under the acts for the more (a) 2 Black. Com. 465. (c) Ibid. (D) 1. (e) Stat. 20 & 21 Vict. c. 77, s. 23. {b) Bac. Abr. tit. Courts (D) 2. (d) Stat. 32 & 33 Vict. c. 71, s. 65. (/) Stat. 24 Vict. c. 10, s. 14. ^ By Article Third of tlie Constitution of the United States, the judicial power is vested in one Supreme Court, and in such inferior Courts as Congress shall from time to time establish. And in pursuance of the powers thus granted, the several District and Circuit Courts of the United States have been established by Acts of Congress. The judicial power of the several states, is in like manner vested in such Courts as are created and organized under the Con- stitution and Laws of each state. These are either appellate or inferior. In ques- tions which arise under the Constitution of the United States, an appeal may be taken from the judgment of the Supreme Court of a State to the Supreme Court of the United States. 96 OF CIIOSES IN ACTION. r*Q7-i GASj recovery *of small debts and demands in England, now called '- -' the County Courts Acts.(^) Debts of record do not, however, confer the same advantages on all creditors equally, for there is one creditor whose claims are paramount to all others, namely, the crown. In order to enjoy this priority, the crown debt was formerly required to be a debt of record, or a debt by specialty, that is, secured by deed ;{h) though if the debt were by simple contract without such security, it would have had preference over the other simple contract creditors of the debtor, and, as some say, even over other creditors by specialty.(iy But the distinction which formerly existed between specialty and simple contract debts has been abolished by a recent statute,(^) which reduces all specialty debts to the level of debts by simple contract. It seems, therefore, that a simple contract debt to the crown would now prevail over a specialty debt due to a pri- vate person. The lien of the crown on the lands of its debtors by record or specialty, and also on the lands of accountants to the crown, is men- tioned in the author's Treatise on the Principles of the Law of Real Property. (?) Of all debts which one subject may owe to another, that which con- fers the most important remedy is a judgment debt, or a debt which is due by the judgment of a court of record. As such a debt is due by the r*q«1 evidence of a court of record, it is of course a debt of record. '- ' -' *Such a debt may however now be incurred without any actual exercise of judgment on the part of the court. For, strange as it may appear, a judgment against a defendant in an adverse suit, though the most obvious, is yet not the most usual method of incurring a judgment debt. Such a debt may be incurred by the voluntary default of the de- (ff) Stats. 9 & 10 Vict. c. 95, s. 3 ; 12 & 13 Vict. c. 101 ; 13 & 14 Vict. c. 61 ; 15 & 16 Vict. c. 54 ; 17 & 18 Vict. c. 16 ; 19 & 20 Vict. c. 108 ; 21 & 22 Vict. c. 74; 22 & 23 Vict, c. 57 ; 28 & 29 Vict. c. 99 ; 29 & 30 Vict. c. 14 ; 30 & 31 Vict c. 142 ; 31 & 32 Vict. c. 71 ; 32 & 33 Vict. c. 51. (k) Williams on Executors, pt. 3, bk. 2, ch. 2, s. 1. (i) Bac. Abr. tit. Executors (L) 2. (k) Stat. 32 & 33 Vict. c. 46. {I) Page 62, 1st cd. ; 65, 2d ed. ; 70, 3d & 4tb eds. ; 76, 5th ed. ; 81, 6th ed. ; 84, 7th ed. ; 85, 8lh ed. 1 The common-law prerogative of the necticut ; in does not subsist in South king, to be paid in preference to all other Carolina: 1 Kent Com. pp. 243 to 248, and creditors, is not universally adopted in notes. For the law of Pennsylvania on this country. It prevails in the govern- this subject, see Purd. Dig. (1861) p. 284; ment of the United States, and in Mary- Ramsey's Ap., 4 Watts 73 ; Arnold's Estate, land, North Carolina, Indiana, and Con- 46 Penn. St. 277. OF DEBTS. 98 fendant in making no reply to the action, which is called niJdl dunt, or by his failing to instruct his attorney, whose statement of that circum- stance is called no7i sum informatus, or by a cognovit actionem, or more shortly cognovit, by which the defendant confesses the action, and suffers judgment to be at once entered up against him.(wi) Of late years also it has become very usual for the parties to a suit to obtain by consent a judge's order, authorizing the plaintiff to enter up judgment against the defendant, or to issue execution against him, either at once and uncondi- tionally, or more usually at a future time, conditionally on the non-pay- ment of whatever amount may be agreed on. A judgment obtained on a judge's order for immediate judgment and execution is howev^er the same thing as a judgment by nildl dicit, or confession. (w) The method formerly the most frequent of incurring a judgment debt is not however attended with the actual commencement of any adverse action. A warrant of attorn eg is given by the intended debtor, which consists of an authority from him to certain attorneys to appear for him in court, and to receive a declaration in an action of debt for the amount of the in- tended judgment debt, at the suit of the intended creditor, and thereupon to confess the action, or suffer judgment to go by default, and to permit judgment to be forthwith entered up against the intended debtor for the amount, besides costs of suit.' Such a warrant of attorney is generally (to) 3 Black. Com. 397 ; Stephen on Pleading 120. (n) Bell V. Bidgood, 8 C. B. 7«3 ; Andrews v. Diggs, 4 Ex. Rep. 827. 1 In New York, judgments on warrants a warrant to enter judgment be above of attorney, may be entered within a year ten years old, and less than twenty, appli- and a day of the date of the warrant, as a cation must be made to a judge for leave matter of course; after that time, and to enter judgment, founded on an affidavit within ten years, an order of the court, or of the due execution of the warrant, and of a judge at chambers, must be obtained ; that the money is unpaid, and that the between ten and twenty years after date, defendant is living. If the warrant of attor- judgment can only be entered by order of ney be above twenty years old, a rule to court ; and after twenty years, the order show cause must be obtained, of which, will not be made, unless a rule to show notice must be given, if the defendant be cause is first had, and notice given to the within the State of Pennsylvania." For opposite party, if within the reach of ser- analogous provisions see Hinds v. Hop- vice : Manufacturers' and Mechanics' Bank kins, 28 111. 344. of the Northern Liberties in the County of There can be but one judgment entered Philadelphia v. St. John, 5 Hill 497 ; and on a warrant of attorney to confess judg- soraetimes, the court will refuse to allow a ment : Campbell v. Kent, 3 Penna. R. 72 ; judgment to be entered on a bond and Ely r. Karmany, 23 Penn. St. 314 ; but the warrant, less than twenty years old, upon second judgment is not void, though the presumption of payment: Exrs. of clearly irregular : Nelf et al. n. Burr, 14 S. Clark V. Hopkins, 7 Johns. 556 ; upon a & R. 166 ; Ulrich, with notice, Ac, v. Vo- similar principle, a rule of the Supreme neida, 1 Penna. R. 245 ; Campbell t-. Canon, Court of Pennsylvania provides, that, " If Add. 2G7 ; Adams v. Bush, 2 Watts 289 ; 98 OF CHOSES IN ACTION, r*QQn executed as a *security for a smaller sum of money, usually one- •- -' half of the amount of the judgment debt ; and it is accordingly Fairchild v. Camac, 3 "Wash. C. C. 558; and, therefore, where two or more are jointly and severally bound, and judg- ment be entered against one on warrant, he cannot be joined with the others in a second judgment against all the defend- ants : Manufacturers' and Mechanics' Bank of the Northern Liberties in the County of of Philadelphia v. Cowden et al., 3 Hill 461 ; Averill v. Loucks, 6 Barb. S. C. 19. By agreement between the parties, a judgment on warrant may cover future advances of money ; Chapin v. Clemitson, 1 Barb. S. C. 311; Averill v. Loucks, 6 Id. 19 ; Monell v. Smith et al., 5 Cowen 441 ; Bank of Auburn v. Throop, 18 Johns. 505 ; Roosevelt v. Mark et al., 6 Johns. Ch. 279 ; Brinkerhofif et al. v. Marvin et al., 5 Id. 324 ; Austin et al. v. Mclnlay, 16 Johns. 165 ; Holden et al. v. Bull, 1 Penna. R. 460 ; Parmenter v. Gillespie, 9 Penn. St. 87 ; Troup v. Wood, 4 Johns. Ch. 247 ; St. Andrews' Ch. v. Thompson, 7 Id. 14 ; and such an agreement ought to be as precise as a bill of particulars, and must be strictly followed : Lawless v. Hackett, 16 Johns. 149 ; Chapin v. Clemitson, 1 Barb. S.C. 311 ; Nelsons. Sharp, 4 Hill 584; Nichols V. Hewitt, 4 Johns. 433 ; and where the warrant of attorney for the confession of judgment, was to be exercised upon a certain condition or contingency, it must appear that it has been fulfilled: Roundy I'. Hunt, 24 111. 598 ; Harwood v. Hildreth, 4 Zabr. 51 ; FuUerton's Ap., 46 Penn. St. 144. The Court will not set aside a judgment entered on a warrant of attorney, merely on account of irregularity : King v. Shaw, 3 Johns. 142 ; McFarland v. Irwin, 8 Id. 77 ; Ilaner's Appeal, 5 W. & S. 473 ; Lewis V. Smith, 2 S. & R. 142 ; Humphreys v. Rawn, 8 Watts 78; Roemer v. Denig, 18 Penn. St. 482 ; but if a warrant of attorney, made under, or by reason of, the provisions of a certain statute, does not strictly follow it, the judgment will be void, and so if the warrant has been obtained for an un- lawful purpose, or upon an unlawful con- sideration : Ex parte Butler et al. v. Lewis, C. P. 10 Wend. 541 ; Judges v. The People, 15 Id. 110 ; Everitt v. Knapp, 6 Johns. 331 ; Richmond W.Roberts, 7 Id. 319; Bennett V. Davis et al., 6 Cowen 393; Bontel v. Owens, 2 Sandf. S. C. 655 ; The Manhattan Co. V. Browcr, 1 Caines 511 ; Evans v. Begley, 2 Wend. 243; Truscott et al. v. King, 6 Barb. S. C. 346 ; Humphreys v. Rawn, 8 Watts 78 ; Hutchinson v. McClure, 20 Penn. St. 63 ; Davis v. Morris, 21 Barb. 152; Barrett v. Thompson, 5 Ind. 457; Richards v. McMillan, 6 Caines 419; and a judgment entered without filing the warrant, or formal confession of defend- ant, will be set aside for irregularity: Lytle V. Colts, 27 Penn. St. 193 ; Branning V. Taylor, 24 Id. 289 ; Jarrett v. Andrews, 19 Ind. 403 ; but this presupposes that a written authority has been given to enter judgment, for it is not necessary to the validity of a confession of judgment made by an attorney for his client, that his authority should be in writing : Flanigen V. City, 51 Penn. St. 491 ; Whelan's Ap., 57 Id. 331. Where there is a dispute about facts, the Court will direct a feigned issue to be formed : Frazier, Jr., v. Frazier, 9 Johns. 80; Wintringham v. Wintringham, 20 Id. 296 ; Morey v. Shearer, 2 Cowen 465; Neff et al. i-. Burr, 14 S. & R. 166; Kindig v. March, 15 Ind. 248; and parol evidence is admissible to show that a judgment on a warrant, was entered after the death of the defendant: 38 Penn. St. 486. In connection with the subject of war- rants of attorney, the case of the Manf. & Mec. Bk. of Philadelphia v. St. John, 5 Hill 500, deserves notice on account of its singularity. In pronouncing the opinion of the Court, Bronson, J., says, "The authority to confess a judgment without process, must be clear and explicit, and must be strictly pursued. If the parties to this warrant of attorney intend to OF DEBTS. 99 accompanied by a defeazance, whicli must be "written on the same paper or parchment as the warrant of attorney, otherwise the warrant will be void.(o) This defeazance, as its name imports, defeats the full operation of the warrant of attorney, by declaring that it is given only as a secu- rity for the smaller sum and interest, and that no execution shall issue on the judgment to be entered up in pursuance of the warrant of attorney, until default shall have been made in payment of such sum and interest at the time agreed on ; but that, in case of default, execution may be is- sued. (jt?) The defeazance also until recently contained an agreement that it should not be necessary for the creditor to issue a writ of scire (o) Reg. Gen. Hil. 1853, s. 27 ; stat. 3 Geo. IV. c. 39, s. 4 ; 32 & 33 Vict. c. 62, s. 26. Collateral securities must be noticed, Morell v. Dubost, 3 Taunt. 235. {p) Warrants of attorney to confess judgment for securing any sum or sums of money are, with some exceptions, liable fo the same duty (one-eighth per cent, on the money secured) as bonds for the like purpose. Stat. 13 & 14 Vict. c. 97. Qte, post.^ authorize a judgment in any other State than Pennsylvania, which is very ques- tionable, I think that they did not intend that a judgment should be entered in this State. Both the bond and the warrant describe two of the obligors as residents of the State of Pennsylvania, the third as a resident of New Jersey. The warrant is addressed " to John D. Smith, Esq., at- torney of the Court of Common Pleas of Philadelphia, in the county of Phila- delphia, in the State of Pennsylvania, or to any other attorney of the said Court, or of any other Court, there, or elsewhere, or to any prothonotary of any of the said Courts." The only thing which can carry the power beyond the Courts at "Phila- delphia," is the word "elsewhere;" and although, if the parties had stopped there, the authority might have extended to our Courts, the scope of the word " elsewhere" is restricted by the words which imme- diately follow it, "or to a,nj prothonotary of any of the said Courts.''^ This shows that the parties were speaking of such Courts as had an officer called a " pro- thonotary," and such Coflrts only. The Pennsylvania Courts have an officer of that name, but we have not." The con- struction here given to the instrument in question, is so utterly contrary to the known and long received reading of a form 9 in common use in Pennsylvania, and to the plain meaning of the words used, that it is difficult to understand how such a decision could have been made. See further on the subject of warrants of attorney, and judgment? thereon, the following cases : Montelius v. Montelius, 5 Penn. L. Jour. 92 ; Helvete v. Rapp, 7 S. & R. 306 ; Commonwealth to the use, &c. V. Conrad et al., 1 Rawle 249 ; Rabe v. Heslip et al., 4 Penn. St. 139 ; McCalmont, Admr., v. Peters, 13 S. & R. 196; Hays v. The Commonwealth, 14 Penn. St. 39; Chambers v. Denie, 2 Penn. St. 422 ; Enew V. Clark, Id. 234 ; Hall et al. v. Law, 2 "W. 6 S. 135; Finney v. Ferguson, 3 Id. 413; Chambers v. Harger, 18 Penn. St. 16; James v. Jarrett, 5 Id. 370 ; Kirkbride et al. V. Durden, 1 Dall. 288 ; Baker v. Lukens, 35 Penn. St. 146 ; Hall v. Jones, 32 111. 38. ^ By the Internal Revenue Law. of the United States, a warrant of attorney ac- companying a bond or note is exempt from stamp duty when such bond or note shall be stamped as required by law. Act of June 30, 1864, sec. 160, 2 Brightly's Dig. U. S., p. 343, sec. 341 ; and when the warrant is not so annexed it would, as a "power of attorney," require a stamp of fifty cents. Sea. l70,.Sahed. B. 99 • OF CnOSES IN ACTION. facias, or do any other act for reviving the judgment or keeping the same on foot, altliough no proceedings should have been taken thereupon for the space of one year. Without such a provision, no execution could be issued after the expiration of a twelve-month from the date of the judgment, without the expense and trouble of a Avrit of scire facias, call- ino- on the debtor to inform the court, or show cause, why execution should not be issued. (. Restock, 10 Ala. 589 ; s c. 11 Id. 256; Vilas v. Pusey, 1 Comst. 274; Pyle V. Clark, 3 B. Mon. 262 ; Scott v. HuU, OF DEBTS. 114 ever, would have been entitled to the benefit of all collateral securities which the creditor, whom he had repaid, held for the debt ; but he was 6 Id. 285; Graves v. Graves, Id. 213; MuUin V. McCoan, 7 Paige 452 ; Bangs v. Strong, 11 Id. 11; s. c.T Hill 250; Huffman V. Hurlburt, 13 Wend. 377; Hallett v. Holmes, 18 Johns. 28 ; Fletcher t>. Gamble, 9 Ala. 335 ; Bower v. Tiernan, 3 Denio 378; Yancey v. Littlejohn, 2 Hawk. 525; Branch Bank of Mobile v. James, 9 Ala. 949 ; Grafton Bank v. Woodward, 5 N. H. 99; Bailey v. Adams, 10 Id. 162; Fowler V. Brooks, 13 Id. 240; McComb v. Kete- ridge, 14 Ohio 348; Spring v. The Bank of Mount Pleasant, 10 Peters 257 ; McLemore V. Powell et al., 12 Wheat. 554 ; Bank of the United States v. Hatch, 6 Peters 250 ; United States v. The Admrs. of Hillegas, 3 Wash. C. C. 70 ; Miller v. Stewart, 4 Id. 26 ; s. c. 9 Wheat. 680 ; United States v.Tillot- son et al., 1 Paine C. C. 306 ; Gass v. Stinson, 2 Sumn. 453 ; Suydara & Co. v. Vance, 2 McL. 99; The Seventh Ward Bank v. Hanrick, 2 Story 416; Low v. Un- derbill, 3 McL. 376 ; Musgrave et al. v. Glasgow, 3 Port. (Ind.) 31 ; Cheek et al. v. Glass, Id. 286 ; Herbert v. Dumont et al., Id. 346; Govan, Exrx., v. Binford, 25 Miss. 151 ; Thornton et al. v. Dobney, 23 Id. 559; Prescott v. Brinsley et al., 6 Cush. 233 ; Mottram et al. v. Mills, 2 Sandf. S. C. 189 ; Wagman et al. v. Hoag, 14 Barb. S. C. 232 ; La Farge v. Herter et al., 11 Id. 159 ; Turrill v. Boynton et al., 23 Vt. 142; Whittle V. Skinner, Id. 531 ; Wadsworth et al. V. Allen, &c., 8 Gratt. 174 ; Brubaker V. Okeson, 36 Penn. St. 519 ; Strickler v. Burkholder, 47 Penn. St. 476; Wright v. Storrs, 6 Bosw. 600 ; Pilgrim v. Dykes, 24 Texas 383 ; Cunningham v. Wrenn, 23 111. 64 ; Rowan v. Sharps, &c., Co. 33 Conn. 1 ; Winter's Ap., 61 Penn. St. 307. That the surety will be discharged, where he is injured by the creditor neglect- ing to proceed against the principal upon the surety's request, see the following cases: Pain v. Packard et al., 13 Johns. 174; King v. Baldwin et al., 17 Id. 384; United States v. Simpson, 3 Penna. R. 437 ; Strader v. Houghton. 9 Port. 334 ; Towns V. Riddle, 2 Ala. 694 ; Cope v. Smith, 8 S. & R. 110; Gardner v. Ferree, 15 Id. 28 ; The Erie Bank v. Gibson, I Watts 143 ; Wilson v. Glover, 3 Penn. St. 404; Greenawalt v. Kreider, Id. 264; Wright V. Stockton, 5 Leigh 153 ; Parrish V. Gray, 1 Humph. 88 ; Braman v. Honck, 1 Blackf.393 ; Morland v. The State Bank, 1 Breese 207 ; Howard v. Brown, 3 Geo. 523; Bolton v. Lundy, 6 Misso. 46; Brice V. Edwards, 1 Stew. 11 ; Goodman v. Griffin, 3 Id. 160 ; Shehan v. Hampton, 8 Id. 942; Huffman v. Hurlbert, 13 Wend. 377; Herrick v. Borst, 4 Hill 650 ; Beards- ley V. Warner, 6 Wend. 610 ; s. c. 8 Id. 194 ; Beebe v. The West Branch Bank, 7 W. & S. 375; Bellows v. Lovell, 5 Pick. 307 ; Adams Bank v. Anthony, 18 Id. 238 ; Hubbard v. Davis, 1 Aiken 296; Mont- pelier Bank v. Dixon, 4 Vt. 599; Page v. Webster, 15 Maine, 249 ; Mahurin v. Pear- son, 8 N. H. 539 ; Pintard v. Davis, 1 Spencer 205 ; Croughton v. Duval, 3 Call 61 ; Denis v. Rider, 2 McL. 451 ; Jenkins V. Clark, 7 Ohio 72 ; In the matter of Saml. H. Babcock, 3 Story 393 ; Overturf r. Martin, 2 Cart. (Ind.) 507; Wetzel v. Sponsler's Exrs., 18 Penn. St. 460 ; Mer- ritt V. Lincoln, 21 Barb. 249; Taylor v. Davis, 38 Miss. 493. But unless so re- quested, the creditor is not bound to pro- ceed against the principal, and mere delay, or inaction on the part of the cre- ditor in pursuing his remedy, will not dis- charge the surety: King v. Baldwin et al., 2 Johns Ch. 554; Fulton v. Matthews, 15 Johns. 433 ; The People v. Russell, 4 Wend. 570; Hunt v. Bridgham, 2 Pick. 581 ; Jor- dan V. Trumbo, 6 Gill & Johns. 103; Sebley v. McAllister, 8 N. H. 389 ; The Farmers' Bank of Canton v. Reynolds, 13 Ohio 84; Haynes v. Corrington, 9 Sm. & M. 479 ; Anderson v. Menon, 7 B. Mon. 217; Johnson v. Searcy, 4 Yerg. 182; Dawson v. The Real Estate Bank, 5 Ark. 283; United States v. Hunt, 1 Gall. 32; Townsend v. Riddle, 2 N. H. 448; Tudor V. Goodloe, 3 B. Mon. 332 ; Commercial 114 OF CHOSES IN ACTION. not to be entitled to the original bond executed by the debtor, because that was at an end by the very fact of the payment.(A) In the (A) Turn. & Russ. 231 ; Dowbiggcn v. Bourne, 2 You. & Col. 462 ; Jones v. Davids, 4 Russ. 277 ; Caulfield v. Maguire, 2 Jones & Lat. 164, 168. Bank v. French, 21 Pick. 486 ; Alcock v. Hill, 4 Leigh 622 ; Harrison v. Lane, 4 Bibb 466; Spring v. The Bank of Mount Pleasant, 10 Peters 257 ; Reynolds v. Ward, 5 Wend. 501 ; Norris v. Crummie, 2 Rand. 328 ; Hunter's Admr. v. Jelt, 4 Rand. 104 ; McKinney's Exr. v. Waller, 1 Leigh 434; Alcock V. Hill, 4 Id. 622; Lenox v. Front, 3 Wheat. 520; Doe v. The Postmaster- General, 1 Peters 318 ; Locke v. The Post- master-General of the United States, 3 Mason 446 ; Luke v. Leiand et al., 6 Cush. 259; Kirby v. Studebaker, 15 Ind. 45; Hunt V. Knox, 34 Miss. 655 ; Owen v. State, 25 Ind. 107 ; P., F. W. & C., Railroad v. Shsoffer, 59 Penn. St. 350 ; and some of the cases have gone so far as to decide, that after a judgment has been obtained by the creditor against the prin- cipal, and a writ of execution placed in the hands of the sheriff, a subsequent di- rection given to the sheriff not to pro- ceed, will not discharge the surety, un- less there has been a levy made on the projjerty of the principal debtor : Lennox V. Prout, 3 Wheat. 520 ; Sawyer v. Brad- ford, 6 Ala. 572; The Farmers' Bank of Canton v. Reynolds, 13 Ohio 84 ; The Union Bank of Tennessee v. Govan, 10 Sm. & M. 333 ; McKenney's Exrs. v. Wal- ler, 1 Leigh 434; Morrisson v. Hartman, 14 Penn. St. 55 ; Creath's Admr. v. Sims, 5 How. 192 ; but if a levy has been made under the execution, a discontinuance of the proceedings by the creditor, will dis- charge the surety, because the creditor will have had it in his power to satisfy the debt: see Exrs. of Riggins v. Brown, 12 Geo. 273; The State Bank v. Edwards et al., 20 Ala. 512 ; Ferguson v. Turner, 7 Mo. 497 ; Jones v. Bulcock, 3 Bibb 467; Lichtenthaler v. Thompson, 13 S. & R. 157; Brown v. Kidd, 34 Miss. 291 ; Sherraden i'. Parker, 24 Iowa 28 ; and other cases above cited; unreasonable delay in entering a judgment note, was held to discharge a guarantor, where it was not shown, that the money could not have been made by a diligent entry and pursuit of the judgment : Miller v. Beck- ley, 27 Penn. St. 317 ; and indulgence for a definite period, and founded on a new consideration, will discharge a surety, for this amounts to a change of the origi- nal contract: Clarke Company v. Coving- ton, 26 Miss. 470. Some of the authorities, however, deny the position, that mere inaction or delay on the part of the cred- itor, will not discharge the surety, the chief among which seem to be, The Peo- ple V. Jansen et al., 7 Johns. 332 ; Penni- mann et al. v. Hudson, 14 Barb. S. C. 579 ; of which, the first has been over- ruled, and the last was a case of delay for seven months, without explanation, where the contract was " for a due and legal diligence." See on this point, Herrick v. Orange Company Bank, 27 Vt. 583 ; Mc- Cune V. Belt, 38 Mo. 281 ; and Spilman v. Smith, 15 B. Mon. 123 ; in which last case it was held, that by the statutes of Kentucky, sureties on judgments are re- leased from liability, if execution is de- layed to be sued out for twelve months after the judgment is due ; but this statute has been held not to apply to judicial bonds : Rankin v. White, 3 Bush 545. It has been said, that where a valid con- tract is made between the creditor and principal, essentially changing the terms of the original contract, the surety will be discharged, because among other con- siderations, the creditor disables himself from proceeding against the principal, at the request of the surety, and consequently the surety is in danger of losing his chance of securing himself from loss; and so, on the other hand, if the creditor informs the surety that he will not look to him for payment, the surety will be discharged: OF DEBTS. 114 [*115] words of Lord Brougham, (/) the court admitted the surety's right, as *against the principal debtor, to stand in the shoes of the creditor, but said there were no shoes for him to stand in. But by a recent enactment every surety who pays a debt is now entitled to have assigned to him every judgment, specialty or other security which shall be held by the creditor in respect of such debt, whether such judg- ment, specialty or other security shall or shall not be deemed at law to have been satisfied by the payment of the debt; and such person shall be entitled to stand in the place of the creditor and to use all the reme- dies, and if need be and upon a proper indemnity the name, of the creditor in any action to obtain from the principal debtor indemnification for his loss ; and the payment made by the surety shall not be pleadable in bar of any action or other proceeding by him.(^) If there should have (j) Hodgson V. Shaw, 3 Myl. & K. 183, 194. (k) Stat 19 & 20 Vict. c. 97, s. 5 ; Lockhart v. Reilley, 1 De Gex & Jones, 464. Harris v. Brooks, 21 Pick. 195; Carpenter V. King, 9 Mete. 511 ; Bank v. Kligensmith, 7 Watts 523 ; Hogeboom v. Herrick, 4 Vt. 131 ; Baker v. Briggs, 8 Pick. 122 ; Deyell V. Odell, 3 Hill 215 ; Foster v. Walker, 34 Miss. 365. But a mere naked agreement between creditor and principal, or a promise made to delay or give time, or to do any other thing changing essentially the original contract, if it be unsupported by a valid consideration, will not discharge the surety : Wheeler et al. v. Washburn, 24 Vt. 293; Joslyn v. Smith, 13 Id. 353; Montgomery v. Dillingham, 3 Sm. & M. 647; Tudor v. Goodloe, 1 B. Mon. 322; Blackstone Bank v. Hill, 10 Pick. 129; Bailey v. Adams, 10 N. H. 162 ; Wilson v. The Bank of Orleans, 9 Ala. 847; The O.xford Bank v. Lewis, 8 Pick. 458 ; The Stafford Bk. v. Crosby, 8 Maine 191 ; Free- man's Bk. V. Rollins, 13 Maine 202 ; Crosby V. Wyatt, 23 Id. 156; Weakley v. Bell, 9 Watts 273; Barker w. McClure, 2 Blackf. 14; Parmell v. Price, 3 Richard. 121; Miller v. Stem, 2 Penn. St. 286 ; McLemore V. Powel et al., 12 Wheat. 554; Bk. of United States v. Hatch, 6 Peters 250 ; Bk. of Utica V. Ives, 17 Wend. 501 ; United States V. NichoU, 12 Wheat. 505; United States V. Kirkpatrick et al., 9 Id. 720; Wagman et al. v. Hoag, 14 Barb. S. C. 232 ; Cromwell et al., Admrs., v. Holly et al. Exrs., 5 Richard. 47 ; Draper v. Romeyn, 18 Barb. 163 ; Grover i'. Hoppock, 2 Dutch. 191; Adams V. Way, 32 Conn. 160; Calvin V. Wiggam, 27 Ind. 489. When a judgment has been obtained by the creditor against the principal, the re- lations of principal, surety, and creditor, are not thereby altered : The Common- wealth V. Miller, 8 S. & R. 42 ; Potts v. Nathans, 1 W. & S. 155; The Manufac- turers' Bk. V. The Bk. of Penna., 7 Id. 335 ; Talmage v. Burlingame, 9 Penn. St. 21 ; Newell V. Price, 4 How. (Miss.) 684 ; Cowan V. Colbert, 3 Ga. 239 ; Carpenter v. Devon, 6 Ala. 710; The Commercial Bk. v. The Western Reserve Bk., 11 Ohio 444; La Farge v. Herter, 3 Denio 157; s. c. 1 1 Barb. S. C. 159; Naylor v. Moody, 3 Black. 93; Deberry v. Adams, 9 Yerg. 52; Findlay's Exrs. V. The Bk. of the United States, 2 McL. 44; Bangs v. Strong, 10 Paige 11 ; s. c 7 Hill 250; Boughton v. The Bk. of Orleans, 2 Barb. Ch. 458 ; Storms v. Thorn, 3 Barb. S. C. 314; Hubbell v. Carpenter, 5 Id. 520. On the subject of Discharge of Surety, see American Leading Cases, volume second, 4th ed., from page 317 to page 450, where the American authorities are col- lected. 115 OF CHOSES IN ACTION. been more than one surety, any one surety, paying the Avhole debt, is entitled, according to the general principles of justice, to contribution from his co-sureties in equal shares, or if they should have been sureties to unequal amounts, then in proportion to the respective amounts to which they have made themselves liable.(?)^ And the remedies given by (/) Decring v. Earl of Winchelsca, 2 Bos. & Pul. 270, 272, 273 ; Brown v. Lee, 6 B. & C. 689 (E. C. L. R. vol. 13) ; s. c. 9 D. & R. 701. ' Where two are jointly hound, and the liahility of one of the joint promisors is subsequently destroyed, no acknowledg- ment of the claim by the other will revive the debt against the one so discharged. This is expressly decided in the case of Levy r. Cadet et al., 17 S. & R. 126, in which the reason upon which this princi- ple is founded is set forth by Rogers, J., in the following words : " To expose persons in such situations to the risk of being saddled with a debt at an indefinite length of time, which may have been dis- charged, bj' the acknowledgment of a per- son ignorant of the fact of payment, or from insolvency, or perhaps malice, reck- less of consequences, is a principle which I am unwilling to sanction. Persons so exposed are those whom the statute was designed to protect." And so, too, in Exeter Bank v. Sullivan et al., 6 N. H. 136, Richardson, C. J., remarks : " Tt seems to be now become the general opinion, that an acknowledgment of a debt that will warrant the finding of a new promise, must be an unqualified and direct admis- sion of a present subsisting debt, which the party is liable and willing to pay. If the debt be admitted, but the debtor at the same time refuses to pay, no promise can be raised by implication. The ac- knowledgment, or new promise, is not deemed to be a continuance of the original promise, but a new contract, supported by the original consideration, or evidence of such contract. This view of the operation of the acknowledgment of a debt is be- lieved to be conformable to the general current of the English as well as of the American decisions, and has been ex- plained and enforced by Mr. J. Story in a most able and satisfactory manner: 1 Pe- ters 3.51. If, then, the admission of a debt does not, of itself, take the case out of the statute, but is only evidence of a promise which may have that effect, the principle, that an acknowledgment by one joint debtor will take a case out of the statute as to another, falls to the ground. There is nothing left to support it. For, although one joint debtor may admit the fact of the existence of the debt, which admission will be evidence of that fact against another joint debtor, still it by no means follows that by such admissions he can raise a new promise, that will bind another joint debtor. It is not pretended that one can make a new contract in such a case that will bind the other." The same doctrine is applicable to prin- cipal and surety, who, in the eye of the law, are regarded as joint promisors, although the liability of the surety may be of a secondary nature ; and hence, in Boyd, Exr., v. Grant et al., Exrs., 13 S. & R. 124 (which was the case of an acknow- ledgment made by the executor of a surety, which was not regarded as suffi- ciently clear to take the case out of the statute), Tilghman, C. J., says: "It is a circumstance of some weight that George Grant was but an executor of his father, who was surety for Martin, and therefore could not be supposed to have the same knowledge of the bonds being paid or not, as if it had been his own debt. If payment had been made, it would probably have teen by Martin, the principal debtor." And see further, on this subject, Farnum V, Eastwick, 2 Am. L. Reg. 572, overruling Zents's Exrs. v. Heart, 8 Penn. St. 341 ; in which last-mentioned case it was decided that if the liability of one joint promisor, between whom the relation of principal OF DEBTS. 115 the act above mentioned are extended to co-sureties : provided that no co-surety shall be entitled to recover from any other co-surety, by the means aforesaid, more than the just proportion to which, as between those parties themselves, such last-mentioned person shall be justly liable.(m) In eqaity, if any surety has become insolvent, the others must contribute rateably to the payment of the whole deht.{n) But if the surety has paid no more than his own proportion of the debt he cannot *obtain p^-. h p.-, contribution from any of the others ;(o) nor will contribution be allowed when the suretyship of one person is a distinct transaction from that of the others.(p) A surety, however, may be discharged from his liability by the conduct of the creditor. As surety he has made himself liable only for the payment of a particular debt at a given time, or under certain given circumstances. If therefore the creditor, by any sub- sequent arrangement with the principal debtor, preclude himself from demanding payment of his debt at the time or under the circumstances originally agreed on, the surety will be at once discharged from all lia- bility.(r/) Thus if the creditor bind himself to give further time for pay- ment to the principal debtor, (r) or compound with him, without expressly reserving his remedy against the surety,(s) the surety will be discharged. (m) Stat. 19 & 20 Vict. c. 9V, s. 5. (n) Peter v. Rich, 1 Ch. Rep. 34; Hitchman v. Stewart, 3 Drew. 271. (o) Ex parte GifFord, 6 Ves. 807; Davis v. Humphreys, 6 M. & W. 153, 168, 169. (p) Coope V. Twyman, T. & Russ. 426 ; Craythorne v. Swinburne, 14 Ves. 160 ; Pen- dlebury v. Walker, 4 You. & Col. 424. (q) Calvert v. London Dock Company, 2 Keen 638 ; Heath v. Key, 1 You. & Jer. 434 ; Nicholson v. Revill, 4 Ad. & E. 675, 683 (E. C. L. R. vol. 31) ; Blake v. White, 1 You. & Col. 420 ; Bowser v. Cox, 4 Beav. 879 ; 6 Beav. 110 ; and see Squire v. Whitton, I H. of L. C. 333. (r) Samuel v. Howarth, 3 Meriv. 272 ; Eyre v. Bartrop, 3 Madd. 221 ; Moss v. Hail, 5 Ex. Rep. 46; Davis v. Stainbank, 6 De Gex, M. & G. 679 ; Bailey v. Edwards, 4 B. & S. 761 ''E. C. L. R. vol. 116). («) Ex parte Gifford, 6 Ves. 807 ; Ex parte Carstairs, Buck 560 ; Maltby v. Carsstairs, 7 B. & C. 737 (E. C. L. R. vol. 14) ; s. c. 1 M. & R. 549 ; Thompson v. Lack, 3 C. B. 540 (E. C. L. R. vol. 54) ; Owen v. Homan, 4 H. of L. Cases 997 ; Close v. Close, 4 De Gex, M. & G. 176 ; Webb v. Hewitt, 3 Kay & John. 438 ; Boaler v. Mayor, 19 C. B. N. S. 76 (E. C. L. R. vol. 115). and surety subsists, has been destroyed, 233 ; Commonwealth v. Cox's Admrs., 36 an acknowledgment by the other will re- Id. 442 ; Steele v. Mealing, 24 Ala. 284 ; vive it; and see Watts v. Deavor, 1 Cutler v. Emery, 37 N. H. 567; Miller v. Grant's Cases 267; Carlton v. Ludlow Sawyer, 30 Vt. 412 ; Kelly r. Page, 7 Gray Woollen Mill, 27 Vt. 496; Barger v. Dur- 213; Paulin v. Kaighn, 3 Dutch. 503 vin, 22 Barb. 68. Leary v. Cheshire, 3 Jones Eq. 170; Pau- That the law of contribution between lin v. Kaighn, 5 Dutch. 480 ; Spiller v. joint sureties is the same as that stated in Creditors, 16 La. Ann. 292 ; Armitage v. the text, see the following American au- Pulver, 37 N. Y. 494. thorities : Stickel v. Stickel, 28 Penn. St. 116 or CIIOSES IN ACTION. But tlio acceptance by the creditor from the principal debtor of a new and independent security for the debt will not discharge the surety. (i) Neither will the surety be discharged by the mere neglect of the creditor to enforce payment of the debt from the principal debtor at the time of r*i 1 71 ^^^ becoming due ;{u) nor by the creditor's *express agreement to give time to the principal debtor, if such agreement fail in any of the requisites of a binding contract,(x) We now approach the subject of the alienation of debts, to which some reference has already been made. We have seen that a debt was anciently considered as a mere right to bring an action against the debtor, and as such was incapable of being transferred. (?/) In process of time, however, an assignment of a debt was permitted to take place by means of an authority from the creditor to his assignee to sue the debtor in the creditor's name. This authority is usually called a potver of attorney, which need not be by deed, but may be by writing unsealed,(2) or even by parol ;(a) and when a debt is a legal debt, recoverable only in a court of law, it cannot be effectually assigned without such a power. The assignment of debts by means of powers of attorney is now recognised and protected by the courts of law.^ Thus in a case where the original (<) Bell V. Banks, 3. M. & G. 258 (E. C. L. R. vol. 42). (m) Eyre v. Everett, 2 Russ. 381 ; Peel v. Tatlock, 1 B. & P. 419. (z) Philpot V. Briant, 4 Bing. 717 (E. C. L. R. vol. 13) ; Tucker v. Laing, 2 Kay & John. 745. {y) Ante, p. 4. [z) Howell v. M'lvers, 4 Term Rep. 690. (a) Heath v. Hall, 4 Taunt. 326. 1 But that such a power will not be ef- the interest of the intestate in them offered fectual, in case of the death of the grantor for sale, the defendant's creditors forbade of the power, see Hunt v. Rousmanier, 8 the sale, and this bill was brought to corn- Wheat. 174, and 1 Peters S. C. 1. The de- pel them to join. There was some evi- fendant, Rousmanier, executed to the dence that the power had been given in plaintiff a power of attorney, authorizing place of a mortgage. At the first decision him to make and execute a bill of sale of of this case. Chief Justice Marshall, re- three-fourths of the vessels, Nereus and In- marks, "The general rule ... is, dustry, to himself or to any other person, that a letter of attorney may, at any time andinthecventoftheirbeinglost,to'Collect be revoked by the party who makes it; the money which should become due, and is revoked by his death. But this ' under a policy upon them, and their general rule, which results from the na- freight; and in the power of attorney it ture of the act, has sustained some modi- was recited, that it was given as collat- fication. Where a letter of attorney forms eral security for the payment of certain a part of a contract, and is a security for notes, and was to be void on their pay- money, or for the performance of any act ment; subsequently, Rousmanier died, and which is deemed valuable, it is generally on the return of the vessels, they being made irrevocable in terms, or if not so, is taken possession of by the plaintiff, and deemed irrevocable in law. . . Rous- OF DEBTS. 117 creditor became bankrupt after he had assigned his debt, it was held that an action against the debtor might still be properly brought in the name of such original creditor, by virtue of the power of attorney which he had given to his assignee : although, if no assignment had been made, the assignees of the creditor under the bankruptcy would have been the proper parties to sue.(5) So if a power of attorney be given on an assignment of a debt for a valuable consideration, it is held to be irrevo- cable by the assignor. (c?) When a debt or demand is equitnhle only, that is of a nature to be recoverable only in the Court of Chancery, *it may be assigned without a power of attorney ; for equity will r^^ ^ q-, allow the assignee to sue in his own name. The same privilege has recently been extended by Parliament to moneys secured by policies of assurance of lives, (t?) and also to policies of marine assurance ;{e) and it is to be hoped that it may one day be extended to every other legal debt. When a debt is assigned, the title of the assignee is not complete until he has given to the debtor notice of the assignment ;(/) for the debtor, if he has had no notice of the assignment, may lawfully pay his debt to the original creditor, and will be effectually discharged by his receipt. Bills of exchange and promissory notes are, as we have already (6) Winch v. Keeley, 1 Term Rep. 619 ; Parnham v. Hirst, 8 M. & W. 743. See De Pothonier v. De Mattos, 1 E. B. & E. 461 (E. C. L. R. vol. 96). (c) Walsh V. Whitcomb, 2 Esp. 565. (d) Stat. 30 & 31 Vict. c. 144. (e) Stat 31 & 32 Vict. c. 86. (/) See j^os/, the chapter on Title. manier, therefore, could not, during his vives the person giving it, and may be life, by any act of his own, have revoked executed after his death. ... It is, this letter of attorney. But does it retain . . . deemed perfectly clear, that the its efficacy after his death ? We think it power given in this case, is a naked does not. We think it well settled, that power, not coupled with an interest, a power of attorney, though irrevocable which, though irrevocable by Rousmanier during the life of the party, becomes ex- himself, expired on his death." tinct by his death. . . . This general And in the same case, reported in 1 doctrine, that a power must be executed Peters S. C. 1, upon the question whether in the name of a person who gives it, a equity would grant relief, it was decided doctrine founded on the nature of the it would not. Judge Washington delivering transaction, is most usually ingrafted in the opinion of the court. See also on this the power itself. Its usual language is, subject, Michigan Insurance Co. v. Leven- that the substitute shall do that which he worth, 30 Vt. 11 ; Saltmarsh v. Smith, is empowered to do, in the name of his 32 Ala. 404; Hartshorn v. Day, 19 How. principal. . . . This general rule, that U. S. 211 ; MacGregor v. Gardner, 14 Iowa a power ceases with the life of the person 326 ; Blackstone v. Buttermore, 53 Penn. giving it, admits of one exception. If a St. 266 ; Barr v. Schroeder, 30 Cal. 609. power be coupled with an interest, it sur- 118 OF CIIOSES IN ACTION. seen,(^) exceptions to the rule which requires a power of attorney to enable the assignee to sue the debtor for the debt assigned. The cus- tom of merchants was in ancient times sufficiently powerful to counter- vail in this respect the strictness of the common law, and the holder of a bill of exchange was able to sue upon it in his own name. By a statute of Anne,(/0 promissory notes were made assignable or endorsable over in the same manner as inland bills of exchange might be according to the custom of merchants. Debts, beinff formerly considered as mere rights of action, could not be taken in execution on a judgment obtained against the creditor. But when they are secured by some check, bill, note, bond, specialty or r*iiOl other security,(i) the act for extending the remedies of creditors ^ against the property of debtors(A;) provides *that under the writ of fieri facias (l) the sheriff may seize not only money and bank notes, but also the securities above mentioned, and may sue upon them in his own name on the arrival of the time of payment ; but the sheriff is not bound to sue, unless indemnified in the manner prescribed by the acts from the costs of the action.^ And the Common Law Procedure {ff) Ante, p. 4. {h) Stat. 3 & 4 Anne, c. 9, made perpetual by stat. 7 Anne, c. 25. (t) Harrison v. Paynter, G M. & W. 387 ; Wood v. Wood, 4 Q. B. 397 (E. C. L. R, vol. 45). (k) Stat. I & 2 Vict. c. 110, s. 12. (/) See ante, p. 51. 1 In the United States, this subject is regulated by the legislative provisions of the several States. And not only may a debt due to a defendant, be taken in satis- faction of his debt to the plaintiff, by an attachment in the nature of an execution ; but a debt may also be attached, by pro- cess of foreign attachment, as a means of compelling an appearance on the part of a non-resident defendant, or by domestic attachment, which is of the general nature of a proceeding in bankruptcy. An at- tachment anterior to judgment may also be issued in some cases of fraudulent con- tract, or fraudulent disposition of the ef- fects of the debtor. On the subjects, of foreign attachment, domestic attachment, or attachment in the nature of execution, see the following cases : Bostwick et al. v. Beach, 18 Ala. 80 ; Lawrence v. Sturdi- vent, 5 Eng. 130; The Stamford Bank v. Ferris, 17 Conn. 259 ; Davenport v. Lacon, Id. 278 ; Fitch v. Waite, 5 Id. 117 ; Grosve- nor V. The Farmers' and Mechanics' Bank, 13 Id. 107 ; Insurance Co. v. Weeks et al., 7 Mass. 438 ; Perry v. Coates et al., 9 Id. 537 ; Andrews v. Ludlow et al., 5 Pick. 28 ; Lupton V. Cutler et al., 8 Id. 298 ; Jackson V. Willard, 4 Johns. 40 ; Denton et al. v. Livingston et al., 9 Id. 96 ; Hardy v. Dob- bin, 12 Id. 220 ; Mann v. The Exrs. of Mann, 1 Johns. Ch. 231 ; Spencer v. Blaisdell, 4 N. H. 196 ; Insurance Co. v. Piatt, 5 Id. 193 ; Rundlett v. Jordan, 3 Greenl. 47 ; Belcher V. Grubb, 4 Harring. 461 ; Willis & Co. v. Parsons & Co., 13 Geo. 339 ; Hodson et al. V. McConnel, 12 111. 172 ; Reinhard v. Keith, 3 Ind. 137 ; Burgess v. Clark, Id. 250; Wilson v. Albright, 2 Iowa 125; Harlan v. Moriarty, Id. 486; Cornett v. Doolittle, Id. 385 ; Weather v. Mudd, 12 B. Mon. 112; Woodruff & Co. v. French OF DEBTS. 119 Act, 1854, now enables the court or a judge to order the examination of any judgment debtor as to any and what debts are owing to him ;(w) and a judge may, on the application of the judgment creditor, either before or after such examination, order that all debts owing from any third person (in the act called the garnishee) to the judgment debtor shall be attached to answer the judgment debt.(w) And payment made by the garnishee, or execution levied upon him under the provisions of the act, for the amount of his debt, is a valid discharge to him as against the judgment debtor to the amount paid or levied, although such proceedings may be set aside, or the judgment reversed. (o) And the Common Law Procedure Act, 1860, further provides that if it be suggested by the garnishee that the debt sought to be attached belongs to some third person who has a lien or charge upon it, the judge may order such third person to appear before him, and may order execution to issue to levy the amount due from such garnishee, or the judgment creditor to proceed against the garnishee ; and he may bar the claim of such third person, or make such other order as he shall think just.(j^) In the event of bankruptcy, the assignees of the bankrupt were empowered to sue for debts owing to him *in their own names r:):-|om for the benefit of his creditors. ((y) And now by the Bankruptcy (m) Stat. 17 & 18 Vict. c. 125, s. 60. (n) Ibid. s. 61. (o) Stat. 17 & 18 Vict. c. 125, s. 65. See Holmes v. Tutton, 5 E. & B. 65 (E. C. L. R. vol. 85). (p) Stat. 23 & 24 Vict. c. 126, ss. 28-31. (q) Stat 12 & 13 Vict. c. 106, s. 141, repealing stats. 6 Geo. IV. c. 16, s. 63, and 1 & 2 Will. IV. c. 56, s. 25 ; and now repealed by stat. 32 & 33 Vict. c. 83. And see stat. 15 & 16 Vict. €. 76, s. 142, as to the bankruptcy of a plaintiff in an action at law. & Co. et al., 6 La. 62 ; Estell v. Goodloe, • 412 ; Nichols v. Schofield, 2 R. I. 123 ; Ar- id. 122; Bird v. Cain et al., Id. 248; nold v. Frazier, 5 Strobh. 33 ; Lindau v. Walker v. Curvey, Id. 535 ; Slatter v. Arnold, 4 Id. 290 ; Kincaid v. Neall, 3 Mc- Tiernan & Co., Id. 567 ; Lumbden v. Bou- Cord 201 ; Wiggins v. Anderson, 1 Texas rie, 2 Md. 324 ; Barr, Garnishee, v. Perry, 73 ; Merritt et al. v. Clow, 2 Id. 582 ; Davis 3Gill313; Webb «;. Miller et al., 24 Miss. etal. y. Clayton etal., 5 Humph. 446; Nolen 638; Ridley v. Ridley, Id. 648; Gallis v. v. Crook, 5 Id. 312 ; Hogshead v. Carruth, Kirby, 13 Mo. 157 ; Wood v. Edgar, Id. 451 ; 5 Yerg. 227 ; Gibbs et al. v. Bourland, 6 Temple v. Cochran, Id. 116 ; Hanness v. Id. 481 ; The Brandon Iron Co. v. Cleason, Bonnell, 3 Zabr. 159 ; Castner v. Styer et 24 Vt. 228 ; Goodrich v. Church, 20 Id. al.. Id. 236 ; Bracken v. Ballentine, 1 Har- 187 ; Carrington et al. v. Didier et al., 8 rison 484 ; Anderson v. Douk, 10 Ired. 295 ; Gratt. 260 ; Schofield v. Cox et al.. Id. 533 Arrington v. Screws, 9 Id. 42 ; Myers v. McCheury & Co. v. Jackson, 6 Id. 96 Beeman, Id. 116; Weaver v. Russel et al., Memphis Railroad Co. v. Wilcox, 48 Penn 18 Ohio 497 ; Lessee of Cochran's Heirs v. St. 161; Coe v. Wilson, 46 Maine 314 Loring, 17 Id. 409; Full-er v. Bryan, 20 Cooper v. Reynolds, 10 Wall. U. S. 308 Penn. St. 144 ; Sheetz v. Hobensack, Id. Livermore v. Rhodes, 3 Rob. (N. Y.) 626. 120 OF CIIOSES IN ACTION. Act, 1809, (r) a trustee of a bankrupt may sue and be sued by the ofRcial name of " The trustee of the property of A. B., a bankrupt." And any person, to whona anything in action belonging to the bankrupt is assigned in pursuance of that act, may bring or defend any action or suit relating to such thing in action in his own name.(s) We have now to consider the payment of debts. And, in the first place, the payment of a smaller sum is no satisfaction of a larger one, unless there be some consideration for the relinquishment of the residue,(«) such as the payment at an earlier time than the whole is due,(M) or the concurrence of some (a:) or all of the other creditors of the debtor in accepting a composition. (?/)^ But it seems that the acceptance of a (r) Stat. 32 & 33 Vict. c. 71, ss. 22, 83, par. (7). (s) Sect. 111. (t) Cumber v. Wane, 1 Strange 425; s. c. 1 Smith's Leading Cases 146; Fitch v. Sutton, 5 East 230. (u) Co. Litt. 212 b. (z) Norman v. Thompson, 4 Ex. Rep. 755. (y) Reay v. Richardson, 2 C, M. & R. 422 ; Pfleger v. Browne, 28 Beav. 391. 1 It is a technical rule of law, that the giving of a less sum of money for a debt of greater amount, cannot operate in satisfac- tion or extinguishment of the debt : Deie- rick V. Leaman et al., 9 Johns. 333; Harrison v. Wilcox et al., 2 Id. 448 ; John' son V. Brunnan, 5 Id. 268 ; Seymour v. Minturn, 17 Id. 169; Latapee v. Pecholier, 2 Wash. C. C. 180; White v. Jordan, 27 Maine 370 ; Warren v. Skinner, 20 Conn. 559 ; Eve v. Moseley, 2 Strobh. 203 ; Gur- ley V. Ililtshue, 5 Gill 218; Spruneberger r. Dentlee, 4 Watts 126; Kellogg et al. v. Dumont et al., 14 Wend. 116; Brooks et al. I'. White, 2 Mete. 283 ; Molyneaux et al. V. Collier, 13 Geo. 407 ; Booth v. Campbell, 15 Md. 569 ; Sullivan v. Finn, 4 Greene (Iowa) 544; Harriman v. Harriman, 12 Gray 341 ; Bunge v. Koop, 5 Rob. (N. Y. 1 ; and so, a note for a less sum cannot be said to extinguish one of greater value : Canfield v. Ives, 18 Pick. 253 ; Smith v. Bartholomew, 1 Mete. 276. But, the de- livery and acceptance of some collateral thing in satisfaction of a debt, will be con- strued a valid payment ; as the delivery and acceptance of commodities : Jones v. Bullett, 2 Litt. 49 ; or, of the promissory note of a third person : Booth v. Smith, 3 Wend. 66 ; N. Y. State Bank v. Fletcher, 5 Id. 85 ; Bullen et al. v. McGillicuddy, 2 Dana 90; Pope v. Tunstall et al., 3 Ark. 209 ; James et al. v. Hackley et al., 16 Johns. 273 ; Brown v. Jackson, 2 Wash. C. C. 24 ; Tobey v. Barber, 5 Johns. 68 ; John- son V. Weed et al., 9 Id. 310; Roget v. Merritt et al., 2 Caines 117; Van Epps v. Dilleye, 6 Barb. S. C. 245 ; Hays v. Stone, 7 Hill 128; Maze v. Miller, 1 Wash. C. C. 328; Harris et al. v. Lindsay, 4 Id 271; Peter v. Beverley, 10 Peters 534; Glenn v. Smith, 2 Gill & Johns. 494; Gordon v. Price, 10 Ired. 385 ; Perit et al. v. Pitfields et al., 5 Rawle 166 ; McGuirn v. Holmes, 2 Watts 121 ; McLaughlin v. Bovard, 4 Id. 308 ; Moore v. Briggs, 15 Ala. 24 ; Fulford V. Johnston et al., Id. 386 ; Frisbie et al. v. Larned et al , 21 Wend. 451 ; Heidenheimer V. Lyon, 3 E. D. Smith 54 ; or a mortgage : Keelert;. Salisbury, 33 N. Y. 648 ; and so, of services rendered by the debtor, or real or personal property transferred to the cred- itor, or almost anything which the creditor shall agree to receive in satisfaction : Blinn OF DEBTS. 120 negotiable seciLrity for a small amount may be a good satisfaction for a larger debt ',{z) and the payment of a small sum may be a good satisfac- (z) Sibree v. Tripp, 15 M. & W. 23. V. Chester, 5 Day 359 ; Watkinsonw. Ingleby et al., 5 Johns. 386 ; Eaton v. Lincoln, 13 Mass. 424 ; Musgrovcu. Gibbs, 1 Dall. 216 ; Smith V. Brown, 3 Hawks. 580 ; Brooks et al. V. White, 2 Mete. 283 ; Austin v. Dor- win, 21 Vt. 39 ; Spann v. Blatzell, 2 Fla. 302 ; Milliken et al. v. Brown, 1 Rawle 391; Williams v. Phelps, 16 Wis. 80; Pepper v. Aiken, 2 Bush. (Ky.) 251 ; and an arrest of a debtor is regarded as pay- ment and satisfaction of the debt: Mag- niac V. Thompson, 2 Am. L. Reg. 697. So upon the principle of an accord and satisfaction, where an agreement is made between the parties, whereby some ad- • vantage accrues to the creditor, or detri- ment to the debtor, other than what springs out of the original contract, a less sum may be received in satisfaction of a greater : Milliken et al. v. Brown, 1 Rawle 391 ; Molyneau.x et al. v. Collier, 13 Ga. 407; Henderson v. Moore, 5 Cranch 11; Rose V. Hall, 26 Conn. 392; Jones v. Perkins, 29 Miss. 129; Fenwick v. Phillips, 3 Mete. (Ky.) 87; or, a note for a less sum, extinguish a debt of greater amount : Brooks et al. v. White, 2 Mete. 283 ; Boyd et al. V Hitchcock, 20 Johns. 76 ; Le Page V. McCrea, 1 Wend. 104 ; Kellogg et al. v. Dumont et al., 14 Id. 116 ; Sanders v. The Branch Bank, 13 Ala. 353 ; Webb v. Gold- smith, 2 Duer416; and hence it follows, that an agreement for the payment of a sum certain, instead of a larger and un- liquidated claim, will cancel the indebted- ness : McDaniels v. Lapham et al., 21 Vt. 223 ; Lamb v. Goodwin, 10 Ired. 320 ; and the acceptanceof the noteof one of thepart- ners of a firm, for the debt of a firm, is valid as an accord and satisfaction : Sheeby v. Mandeville et al., 6 Cranch 253 ; Estate of Davis V. Desauque, 5 Whart. 531 ; Muldon v. Whitlock, 1 Cowen290; Parker i>. Cousins, 2 Gratt. 373 ; Mason v. Wickersham, 4 W. & S. 100; Arnold v. Camp, 12 Johns. 409; James v. Hackley, 16 Id. 273 ; Harris et al. V. Lindsay, 4 Wash. C. C. 271 ; Wildes et al. V. Pessenden et al., 4 Mete. 12 ; Living- ston V. Radcliff, 6 Barb. S. C. 202 ; Van Epps V. Dilleye, Id. 245 ; Kinster et al. v. Pope, 5 Strobh. 126 ; Benneson v. Thayer, 23 111. 374 ; Pierce v. Pierce, 25 Barb. 243 ; Stephens v. Thompson, 28 Vt. 77 ; Powell V. Charless, 34 Misso. 485 ; Hoskinson v. Eliot, 62 Penn. St. 393. But in all cases of accord and satisfaction, the considera- tion therefor, must be either good or valu- able : Keeler v. Neal, 4 Watts 424 ; Davis V. Noaks, 3 J. J. Marsh. 494 ; Common- wealth for the use, &c., v. Miller, 5 Mon. 205 ; Nave v. Fletcher, 4 Litt. 242 ; Buddi- cum V. Kirk, 3 Cranch 293. An accord, however, without a satisfac- tion, is of no efficacy, and hence an agree- ment for an accord, will not be binding, unless executed : Williams v. Stanton, 1 Root 426 ; Pope v. Tunstale et al., 3 Ark. 209 ; Linnard v. Patterson, 3 Blackf. 354 ; Maze V. Miller, 1 Wash. C. C. 328 ; Morris Canal v. Van Vorst, 1 Zabr. 101 ; Russell V. Lytle, 6 Wend. 390; Hawley v. Foot, 19 Id. 516 ; Brooklyn Bank v. De Grann et al., 23 Id. 342 ; Anderson v. The High- land Turnpike Company, 16 Johns. 86 ; Evans v. Wells, 22 Wend. 325 ; Eaton v. Lincoln, 13 Mass. 424 ; Seamen v. Haskins, 2 Johns. Cas. 195; Phillips v. Berger, 2 Barb. S. C. 609 ; Spruneberger v. Dentler, 4 Watts 126 ; Rising v. Patterson. 5 Whart. 316 ; Daniels v. Hatch et al., 1 Zabr. 391 ; Hart V. Bailie, 16 S. & R. 162; Weakley v. Bell, 9 Watts 280 ; Phelps v. Johnson, 8 Johns. 58; Gregory v. Thomas, 2 Wend. 47 ; Gallagher's Exrs. v. Roberts, 2 Wash. C. C. 191 ; Hearn v. Kiehl, 38 Penn. St. 147; Hall t>. Smith, 15 Iowa 584; Alay- field V. Cotton, 21 Texas 1 ; Kerr v. O'Con- nor, 63 Penn. St. 341 ; but if, by agreement, an executory obligation be entered into, in lieu of payment, it will be good if the obligation is carried out : Kinsler et al. V. Pope, 5 Strobh. 126 ; Spann v. Blatzell, 120 OF CnOSES IN ACTION. tion for an unliquidated demand for large pecuniary damages, on account of the uncertainty of such a claim. (a) When a less sum is paid to the (a) Wilkinson i'. Byers, 1 Ad. & E. lOG (E. C. L. R. vol. 28). 2 Fla. 302 ; Morris Canal v. Van Vorst, 1 Zabr. 391 ; Keen v. Vaughan, 48 Penn. St. 477; Gushing V. Wj-nian, 44 Maine 121; Clark t'. Bowen, 22 How. U. S. 270. Upon the question whether the debtor's own negotiable note can be taken as an accord and satisfaction of his debt, the authorities seem to be conflicting; in New York, it has been held, that it cannot be regarded as a satisfaction of the debt, even upon an express agreement of the parties : Putnmn v. Lewis, 8 Johns. 389 ; Frisbie v. Larned, 21 Wend. 450; Myers t>. Wells, 5 Kill 463; Cole v. Sackett, 1 Hill (N. Y.) 517 ; but, in Pennsylvania, Connecticut, and New Hampshire, the law is to the contrary : Dougal v. Cowles et al., 5 Day 511 ; Darlington v. Gray, 5 Whart. 487; Weakley v. Bell et al., 9 Watts 273; Hays v. Clnrg, 4 Id. 452; Jeffrey v. Cornish, 10 N. H. 505 ; Seltzer V. Coleman, 32 Penn. St. 493 ; and the law is the same in Alabama : Pickling v. Brewer, 38 Ala. 685. With a like clashing of authorities, some of the cases hold, that the debtor's own negotiable note cannot be regarded as payment : Herring v. San- ger, 3 Johns. Cas. 71 ; Johnson v. Weed, 9 Johns. 310; Olcott v. Rathbone, 5 Wend. 490 ; Hays v. Stone, 7 Hill 128 ; JefiFrey v. Cornish, 10 N. H. 505; Elliott v. Sleeper, 2 Id. 525 ; Maze v. Miller, 1 Wash. C. C. 328; Gallagher's Exrs. v. Roberts, 2 Id. 191 ; Harris v. Lindsay, 4 Id. 271 ; Peter V. Beverly, 10 Peters 532 ; Schemerhorn v. Loines, 7 Johns. 311; Gilead v. Smith, 2 Gill & Johns. 494; Bito i'. Porter, 9 Conn. 23 ; Perit v. Pitfield, 5 Rawle 166 ; Tyson V. Pollock, 1 Penna. R. 375 ; McGinn v. Holmes, 2 Watts 121 ; Risley v. Buchanan, 5 Id. 118; McLughan v. Bovard, 4 Id. 308; Costello v. Cave, 2 Hill (S. C.) 528; Chesturn v. Johnson, 2 Bailey 574; Pres- cott V. Hubbell, 1 McCord 94 ; Spear v. Atkinson, 1 Ired. 2C2 ; Watson i'. Owens, 1 Richard. Ill; Weed v. Snow, 3 McL. 262 ; Gardiner v. Gorham, 1 Doug. 507 ; Steamboat Charlotte v. Hammond, 9 Misso. 59 ; McCrary v. Carrington, 35 Ala. 698 ; Blunt V. Walker, 11 Wis. 334; Sutliff v. Atwood, 15 Ohio 186 ; Crabtree v. Rowand, 33 111. 421 ; Smith v. Owens, 21 Cal. 11 ; while others support the principle, that, the legal presumption, if uncontradicted, is, that the note was intended as a pay- ment for the debt, for otherwise the debtor might be compelled to pay his debt twice: Johnson v. Johnson, 11 Mass. 359 ; Thatcher et al. v. Dinsmore, 5 Id. 299 ; Varner v. The Inhabitants of Nobleborough, 2 Greenl. 121 ; Butts v. Dean, 2 Mete. 76 ; Wallace v. Agry et al., 5 Mason 327 ; Descandilla et al. v. Harris, 8 Greenl. 298; Ilsley v. Jewett, 2 Mete. 168 ; Holmes v. De Camp, 1 Johns. 34 ; Pintard v. Tackington, 10 Id. 104 ; Maneely V. McGee, 6 Mass. 143; Reed v. Upton, 10 Pick. 522; Jones v. Kennedy, 11 Id. 125; Watkins v. Hill, 8 Id. 522 ; Cummings v. Hackley, 8 Johns. 202 ; Comstock v. Smith, 10 Shep. 202; Dogan v. Ashbey, 1 Richard. 36; Fowler v. Bush, 21 Pick. 230; French v. Price, 24 Id. 13 ; Hutchins V. Olcott, 4 Vt. 549 ; Torrey v. Baxter, 13 Id. 452; Homes v. Smith, 16 Maine 177; Wise V. Hilton, 4 Id. 435; Curtis v. Hub- bard, 9 Mete. 322 ; Gilmore v. Bussy, 12 Id. 418; Follett v. Smith, 16 Vt. 30; Thornton v. Williams, 14 Ind. 418 ; Smalley V. Edey, 19 111. 207; Wait v. Brewster, 31 Vt. 516 ; Robertson v. Branch, 3 Sneed 506 ; Paine v. pwinel, 53 Maine 52 ; but where the note has been negotiated by the creditor, no action can be brought on the original debt, unless the note is pro- duced, or accounted for: Small v. Jones, 8 Watts 265 ; Hughes v. Wheeler, 8 Cowen 77; Dayton v. Trull, 23 Wend. 345; Hays V. McClung, 4 Watts 452 ; Harris v. John- ston, 3 Cranch 311 ; McConnell et al. v. Stettinius et al., 2 Gilm. 707; Cocke- v. Chancy, Admr., 14 Ala. 65; Spear v. OF DEBTS. 120 creditor than the whole amount of his demands, it is competent to the debtor to make the payment in satisfaction of any demand he may Atkinson, 1 Ired. 262 ; Shaw v. Gorkin, 7 N. H. 16; Holmes v. DeCamp, 1 Johns. 34; Burdick v. Given, 15 Id, 247; Hum- phreys V. Wheeler, 8 Cowen 77 ; Bite v. Porter, 9 Conn. 23 ; Street v. Hall, 29 Vt. 165; Matthews v. Dare, 20 Md. 248. The New York cases of Gumming v. Hackley, 8 Johns. 202, Tobey v. Barber, 5 Id. 68, and Hour v. Clute, 15 Id. 224, which seem to lead to the conclusion that a creditor may, by agreement, receive the debtor's own security, not negotiable, in satisfaction of the debt, cannot easily be reconciled with the decisions in Putnam c. Lewis, 8 Johns. 389, Frisbie v. Lamed, 21 Wend. 450, Myers v. Welles, 5 Hill 403, and Cole v. Socket, 1 Hill (N. Y.) 517, be- fore referred to. But the mere taking of securities for a pre-existing debt, does not thereby release the original obligation, unless there be an agreement to accept the new securities in satisfaction of the prior indebtedness : Pittsburgh & Connellsville R. R. Co. v. Clarke, 29 Penn. St. 146 ; Torry v. Hadley, 27 Barb. 192 ; it is a question of fact, whether such securities are to be regarded as payment, or collateral security: Sellers V. Jones, 22 Penn. St. 425 ; Dickinson v. King, 28 Vt. 378. A check, which has been taken as pay- ment, will cancel the debt : Barnard v. Graves, 16 Pick. 41 ; Dennie v. Hart, 2 Id. 204; Franklin v. Vanderpool, 1 Hall (N. Y.) 78 ; but the presumption of law is, that a check is only payment when rea- lized : Cromwell v. Lovett, 1 Hall (N. Y.) 56; The People i;. Howell, 4 Johns. 296; Olcott V. Rathbone, 5 Wend. 490 ; Downey, Exr., V. Hicks, Exrx., 14 How. 240; Okie V. Spencer, 2 Whart. 253 ; Mclntyre v. Ken- nedy, 31 Penn. St. 448 ; Strong v. King, 35 III. 9 ; and, of course, a note or check is but a conditional payment, when it is expressed to be in full, if, or when paid: Herring V. Sanger, 3 Johns. Cas. 71 ; Tyson et al. V. Pollock, 1 Penna. R. 375 ; Chapman v. Steinmetz, 1 Dall. 261 ; Okie v. Spencer, 2 11 Whart. 253; Proctor v. Mather, 3 B. Mon. 353. The acceptance of a higher security for the same debt, will, as a general thing, ex- tinguish an inferior security: Green v. Sarmiento, 1 Peters C. C. 74 ; Butler v. Miller, 1 Denio 407 ; Carson v. Monteiro, 2 Johns. 308; Pleasants v. Meng et al., 1 Dall. 380 ; United States v. Price, 9 How. 83 ; Willings et al. v. Consequa, 1 Peters C. C. 393 ; Ward?;. Johnson, 13 Mass. 140 ; Robertson v. Smith et al., 18 Johns. 459 ; Peters v. Sandford, 1 Denio 224 ; Penny v. Martin et al., 4 Johns. Ch. 566 ; Averill v. Locks, 6 Barb. S. C. 20 ; Sloo v. Lea, 18 Ohio 279; Ferrall et al. v. Bradford, 2 Fla. 508 ; Smith et al. v. Black, 9 S. & R. 142 ; Lewis v. Williams, 6 Whart. 264 ; An- derson V. Levan, 1 W. & S. 334 ; but, both the securities must be between the same parties : Day et al. v. Seal et al., 14 Johns. 404 ; Axers, Exrx., v. Musselman, 2 Browne 11; Beale v. The Bank, 5 Watts 529; Wolf V. Wyeth, 11 S. & R. 149; Davis V. Anable et al., 2 Hill (N. Y.) 339. And in all cases where the instrument is between the same parties, and for the same sum as the former security, the gen- eral course of business, as well as the presumption of fact, would seeni to imply that the more recent security extinguishes the older : Slaymaker v. Gundacker's Exrs., 10 S. & R. 75 ; Bank of the United States V. Daniels, 12 Peters 14; Castleman V. Holmes, 4 J. J. Marsh. 1 ; Stewart's Ap- peal, 3 W. & S. 476 ; Frisbie v. Larned, 21 Wend. 450 ; Butler v. Miller, 1 Denio 407 ; Gardner v. Hust, 2 Richard. 601. Thus, the giving of a new note for an old one is equivalent to a payment of the latter: Cornwall v. Gould, 4 Pick. 444 ; Huse v. Alexander, 2 Mete. 157 ; and so of a bond: Morrison v. Berkey, 7 S. & R. 238 ; Ham- ilton, Exr., V. Collender's Exrs., 1 Dall. 420; Gregory v. Thomas, 20 Wend. 17. This, however, is a question to be deter- mined by the intention of the parties : United States v. Lyman, 1 Mason 482 ; 120 OF CIIOSES IN ACTION. please, and the creditor must appropriate the payment accordingly ;{b) r*ion *^"*^ ^^ ^'^^' payment be made generally, without any express ^ " appropriation, the creditor may elect, at the time of payment, (c) or within a reasonable time after,((;?) to appropriate the money to which- ever demand he may please. And if no election as to the appropriation of the payment should be made on either side, the law will, in ordinary cases of current accounts, presume that the first item on the debit side is discharged or reduced by the first payment entered on the credit side, and so on in the order of time.(6')^ When the debt carries interest, the {/)) Shaw V. Picton, 4 B. & C. 715 (E. C. L. R. vol. 10) ; Nash v. Hodgson, Ld. C. & Lds. Justices, 1 Jur. N. S. 946; 6 De Gex, M. & G. 474. (c) Dcvaynes v. Noble, 1 Meriv. 604. (d) Simson v. Ingham, 2 B. & G. 65 (E. C. L. R. vol. 9). (e) 1 Meriv. 608; Williams v. Rawlinson, 10 J. B. Moore 362; Merriman v. Ward, 1 John. & H. 371. Van Vleet et al. v. Jones et al., Spencer 341 ; Wallace v. Farman, 4 Watts 378 ; Sellers v. Jones, 22 Penn. St. 425; Shaw V. The Church, 39 Id. 226 ; and that inten- tion, in doubtful cases, to be ascertained by the intervention of a jury : Hart v. Boiler, 15 S. & R. 162 ; Jones v. Shawhan, 4 W. & S. 257 ; Musgrove v. Gibbs, 1 Dall. 216 ; Hacker etal. v. Perkins, 5 Whart. 95 ; Porter v. Talcot et al., 1 Cowen 359 ; Bank of the Commonwealth v. Letcher, 3 J. J. Marsh. 195 ; Downey v. Hicks, 14 How. 240. 1 The doctrine stated in the text is the law of this country ; for where a debtor, being liable to his creditor on more than one account, makes a voluntary partial payment, he has a right to apply it to what debt he pleases : Speck v. The Com- monwealth, 3 W. & S. 328 ; Berghaus v. Alter, 9 Watts 387 ; The Mayor and Com- monalty of Alexandria v. Patten et al., 4 Cranch 317 ; Field et al. v. Holland et al., 6 Id. 8; Bosley v. Porter, 4 J. J. Marsh. 621; Hall et al. v. Constant, 2 Hall 185; McDonald i). Pickett, 2 Bail. 617; Black V. Schooler, 2 MeC. 293 ; BonaflFe v. Wood- bury, 12 Pick. 456 ; Hussey v. The Manu- facturers' and Mechanics' Bank, 10 Id. 415; Martin v. Draher, 5 Watts 544; Moorhead v. The West Branch Bank, 3 W. & S. 550 ; Boutwell v. Mason et al., 12 Vt. 608 ; Randall v. Parramore et al., 1 Fla. 410 ; Read v. Boardman, 20 Pick. 441 ; Pindall's Exrx. v. The Bank of Marietta, 10 Leigh 481 ; MiUer v. Trevilian, 2 Rob. (Va.) 2; Jackson v. Bailey, 12 HI. 159; McTavish et al. v. Carroll, 1 Md. Ch. Dec. ICO; Treadwell v. Moore, 34 Maine 112; CaldweU v. Wentworth, 14 N. H. 431 ; Spring Garden Association v. Tradesmen's Loan Association, 46 Penn. St. 495 ; Cris- ler V. McCoy, 33 Miss. 445 ; Calvert v. Carter, 18 Md. 73 ; Irwin v. Paulett, 1 Kansas 418; and, if the debtor does not make the application, the creditor may: Speck V. The Commonwealth, 3 W. & S. 328; Berghaus v. Alter, 9 Watts 387 ; The Mayor and Commonalty of Alexandria v. Patten et al., 4 Cranch 317 ; Fields et al. V. Holland et al., 6 Id. 8 ; Mann v. Marsh, 2 Caines 99 ; Reynolds et al. v. McFarlane, Overton 488 ; Arnold v. Johnson, 1 Scam. 196 ; McFarland et al. v. Lewis et al., 2 Id. 345 ; Hillyer v. Vaughan, 1 J. J. Marsh. 583 ; Briggs v. Williams et al., 2 Vt. 283 ; Rossian et al. v. Call et al., 14 Id. 83 ; Selleck v. The Sugar Hollow Turnpike Co., 13 Conn. 453; Rackley v. Pearce, 1 Kelly 241 ; Sturges et al. v. Bobbins, 7 Mass. 301 ; Brewer v. Knapp et al., 1 Pick. 332 ; Logan v. Mason, 6 W. & S. 9 ; The Stamford Bank v. Benedict, 15 Conn. 438; Mitchell V. Dall, 4 Gill & Johnb. 3G1 ; Clark et al. v. Burdett, 2 Hall 197 ; Van Rensselaer's Exrs. v. Roberts, 5 Denio 470 ; Hamilton v. Benbury, 2 Hayw. 385; Ni- OF DEBTS. 121 payment is considered to be applied in the first place in discharge of the interest then due, and the surplus, if any, in discharge pro tanto of the agara Bank v. Rosevelt, 9 Cowen 409 ; Taylor et al. v. Jones, 1 Cart. 17 ; McTav- ish et al. v. Carroll, 1 Md. Ch. Dec. 160; Sawyer, Admr., v. Tappan, 14 N. H. 352 ; Caldwell v. Wentworth, Id. 431 ; Philadel- phia xMercantile Loan Association v. Moore, 47 Penn. St. 233 ; Bird v. Davis, 1 McCar- ter (N. J.) 467; Bobe v. Stickney, 3G Ala. 482; Fargo v. Buell, 21 Iowa 292; Wendt V. Ross, 33 Cal. 650 ; Hargraves v. Cooke, 15 Geo. 321 ; but, where neither debtor nor creditor makes an appropria- tion, the court will do it for them, in ac- cordance with what is just and equitable : Young V. Woodward, 44 N. H. 250 ; Hemp- field Railroad v. Thornburg, 1 W. Va. 261 ; Speck V. The Commonwealth, 3 W. & S. 328 ; Berghaus v. Alter, 9 Watts 387 ; Fields et al. v. Holland et al., 6 Cranch 8 ; Cremer v. Higginson, 1 Mass. 338 ; McTav- ish et al. v. Carroll, 1 Md. Ch. Dec. 160 ; Caldwell v. Wentworth, 14 N. H. 431 ; Pierce v. Knight, 31 Vt. 701. The intention of the debtor to appropri- ate a payment, may, however, be indicated by the circumstances of the case, as well as by an express direction : Tayloe v. Sandiford, 7 Wheat. 14 ; Mitchell v. Dall, 2 Har. & Gill 160 ; s. c. 4 Gill & Johns. 361 ; Fouke v. Bowie, 4 Har. & Johns. 566 ; Robert et al. v. Garnie, 3 Caines 14 ; West Branch Bank v. Moorehead, 5 W. & S. 542 ; Dickinson College v. Church, I Id. 462 ; Schnell v. Schroeder, Bailey Eq. 335 ; Scott V. Fisher, 4 Mon. 387 ; Stone v. Seymour, 8 Wend. 404; s. c. 15 Id. 19; Terhune v. Colton, 1 Beasley 233, 312 ; and so of the intention of the creditor : Starrett v. Barber, 20 Maine 457 ; Allen v. Kimball, 23 Pick. 473; Upham et al. v. Lefavour, 11 Mete. 174; Allen v. Culver, 3 Denio 285; Lindsey v. Steven, 5 Dana 104 ; and con- sequently, the discretionary power of the court, to appropriate a payment not ex- pressly applied by either debtor or cred- itor, is to be controlled by the intention of the parties, as determined by all the cir- cumstances of the case : Emery v. Tichout, 13 Vt. 15; Robinson et al. v. Doolittle et al., 12 Id. 246; Hillyer i'. Vaughan, 1 J. J. Marsh. 583 ; The Stamford Bank v. Bene- dict, 15 Conn. 438; Cheston v. Wheel- wright, Id. 562 ; Portland Bank v. Brown, 22 Maine 295; Smith v. Lloyd, 11 Leigh 512; Caldwell v. Wentworth, 14 N. H. 431; Johnson's Ap., 37 Penn. St. 270; Smith V. Brooke, 49 Id. 147 ; Slaughter v. Milling, 15 La. Ann. 525 ; Byrne v. Gray- son, Id. 457. Thus, in cases of running accounts, payments are to be applied to the debts antecedently incurred, in order of time : Speck v. The Commonwealth, 3 W. & S. 328 ; Berghaus v. Alter, 9 Watts 387 ; United States v. Kirkpatrick et al., 9 Wheat. 720 ; Jones v. The United States, 7 How. 681 ; Boody et al. v. The United States, 1 Woodbury & Minot 151; Post- master-General V. Furbur, 4 Mason 333 ; United States v. Wardwell et al., 3 Id. 82 ; Gass V. Stinson, 3 Sumn. 99; McKenzie v. Nevins, 22 Maine 138 ; Miller v. Miller, 23 Id. 22; Smith v. Lloyd, 11 Leigh 512; Fairchild v. Holly, 10 Conn. 176; Allen v. Culver, 3 Denio 285 ; Ross's Exrs. v. Mc- Lauchlan's Admr. et al., 7 Gratt. 86; Mc- Kee's Exrs. v. Commonwealth, 2 Grant's Cas. 23 ; Pierce v. Sweet, 35 Penn. St. 151 ; Antarctic, Sprague's Decs. 206 ; Price v. Cutts, 29 Ga. 142 ; Berrian v. New York, 4 Rob. (N. Y.) 538 ; Home v. Planters' Bank, 32 Ga. 1 ; and the appropriation will be made to the first items of such an account which are secured, although the balance be unsecured: Gushing v. Wyman, 44 Maine 121; but see exceptions to this rule, in the case of collectors of taxes : United States v. Patterson, 7 Cranch 572 ; Jones v. The United States, 7 How. 681 ; Seymour v. Van Slyck, 8 Wend. 404 • Stone V. Seymour, 15 Id. 19 ; Postmaster y. Norvell, Gilpin 107 ; City of St. Joseph v. Merlatt, 26 Misso. 233, So, where there are two debts, one bearing interest, and the other not, the payment is to be appro- priated to the debt bearing interest: Gwinn v. Whittaker, 1 Har. & Johns. 754 ; 121 OF CnOSES IN ACTION. principal. For no creditor would apply any payment to the discharge of part of the principal, which carries interest, instead of to the discharge of interest for which, when due, no further interest is payable.(/) ( f) Bower v. Marris, 1 Cr. & Phi. 351, 355. Dorsey v. Gassaway, 2 Id. 402 ; Bacon v. Brown, 1 Bibb 334; Bcauton v. Rice, 5 Mon. 253; McTavish et al. v. Carroll, 1 Md Ch. Dec. IGO; Scott v. Cleveland, 33 Miss. 447 ; McFadden v. Fortier, 20 111. 509 ; and a payment mnst be applied to a debt due, rather than to one not due : Mc- Dowell V. The Blackstone Canal Co., 5 Mason 11 ; Baker v. Stackhoole, 9 Cowen 420 : Bacon v. Brown, 1 Bibb 334 ; Stone V. Seymour, 15 Wend. 19 ; Upham et al. v. Lefavour, 11 Mete. 174 ; Lebleu v. Ruther- ford et al., 9 Robins. 95 ; FoUain et al. v. Orillion, Id. 506 ; Treadwell v. Moore, 34 Maine 112; Caldwell v. Wentworth, 14 N. H. 431 ; Thomas v. Kelsey, 30 Barb. 268 ; EfiBnger v. Henderson, 33 Miss. 449 ; Heintz v. Cahn, 29 111. 308; Cloney v. Richardson, 34 Misso. 370 ; and to a seve- ral, in preference to a joint debt: Liver- more V. Claridge, 33 Maine 428 ; and, to a leo-al, rather than to an illegal debt: Hall V. Clement, 41 N. H. 166; Rohan v. Han- son, 11 Cush.44; Gill v. Rice, 13 Wis. 549; Burrows v. Cook, 17 Iowa 436 ; but to a debt barred by the statute of limita- tions, rather than to one not so barred : Robinson v. Allison, 36 Ala. 525. So, again, the appropriation by the court, in the case of two debts, one of which is se- cured, and the other not, must be made to the debt not secured ; or, if both debts are secured, then to the one of which the se- curity is most precarious : Field et al. v. Holland et al., 6 Cranch 8 ; Merrimack Co. Bank v. Brown, 12 N. H. 321 ; Portland Bank v. Brown, 22 Maine 295 ; Niagara Bank r>. Rosevelt, 9 Cowen 410 ; Newman V. Meek, 1 Sm. & M. 331 ; Hammer's Admr. V. Rochester, 2 J. J. Marsh. 144 ; Blanton V. Rice, 5 Mon. 253 ; Smith v. Lloyd, 11 Leigh 512 ; The Stamford Bank v. Bene- dict, 15 Conn. 438 ; Cheston v. Wheelright, Id. 562 ; Vance v. Monroe, 4 Gratt. 53 ; Upham et al v. Lefavour, 11 Mete. 174; The Ordinary v. McCollum, 3 Strobh. 494 ; Blackhouse et al. v. Patton et al., 5 Peters 161 ; Briggs v. Williams et al., 2 Vt. 283 ; Emery v. Tichout, 13 Id. 15 ; Hilton v. Barley, 2 N. H. 193 ; Blackstone Bank v. Hill, 10 Pick. 129 ; Capen v. Alden, 5 Mete. 268 ; Jones v. Kilgore, 2 Richard. Eq. 64 ; McTavish et al. v. Carroll, 1 Md. Ch. Dec. 160 ; N. 0. Ins. Co. v. Tio, 15 La. Ann. 174 ; Foster v. McGraw, 64 Penn. St. 464 ; but see, to the contrary : Gwinn v. Whitaker, 1 Har. & Johns. 754 ;'Dorsey v. Gassaway, 2 Id. 402 ; Pattison v. Hall, 9 Cowen 747 ; Robinson et al. v. Doolittle et al., 12 Vt. 246. In accordance, also, with this doctrine, a partial payment, unappro- priated by either party, must be applied to the interest, rather than to the principal of the debt: Spires v. Hamot, 8 W. & S. 17 ; Commonwealth, for the use, &c., v. Vanderslice et al., Admrs., 8 S. & R. 425 ; Smith V. Admx. of Shaw, 2 Wash. C. C. 167 ; Tracy v. Wikoff, 1 Dall. 124 ; Prim- rose V. Hart, Id. 378 ; Steele v. Taylor, 4 Dana 445; Story v. Livingston, 13 Peters 360 ; The United States v. McLemore, 4 How. 286 ; Dean v. Williams, 17 Mass. 417 ; Commonwealth v. Miller's Admrs., 8 S. & R. 452 ; Gwin v. Whitaker, 1 Har. & Johns. 754 ; Frazier v. Hyland, Id. 98 ; Jones V. Ward, 10 Yerg. 161 ; Guthrie et al. V. Wickliffe, 1 Marsh. 584 ; Hart v. Der- man, 2 Fla. 445 ; The Union Bank of Louisiana v. Kindrick, 10 Rob. 51 ; Wil- liams V. Houghtailing, 3 Cowen 87 ; Stoughton V. Lynch, 2 Johns. Ch. 209 ; Lewis's Exr. v. Bacon's Exrs., 3 Hen. & Munf. 89 ; Edes v. Goodridge, 4 Mass. 103 ; Fay I'. Bradley et al., 1 Pick. 194 ; Mere- dith V. Banks, 1 Halst. 408 ; Lightfoot v. Price, 4 Hen. & Munf. 431 ; Bunn v. Moore's Exrs., 1 Hayw. 272 ; Anon., 2 Id. 17 ; North et al. v. Mattell, Id. 151 ; Chap- OF DEBTS. 121 When a person becomes so embarrassed as to be unable to pay all his debts in full, he usually endeavors to enter into a composition with his creditors, prevailing on them to accept so much in the pound, and to allow a given time for payment. In this case a letter of license is gene- rally given by the creditors, by which they covenant not to take any proceedings for their debts in the meantime; and this license is fre- quently embodied in a deed of inspectorship^ by which certain inspectors are appointed to watch the winding-up of the debtor's aflFairs on behalf of the creditors. The payment of the composition is sometimes guaran- teed by some friends of the debtor as his sureties, and when payment is made, a *release of all demands is given by the creditors. If, however, the composition should not be punctually paid, the ' [*122] line V. Scott, 4 Har. & McHen. 94 ; Admrs. of Norwood ads. Manning, 2 N. & McC. 395 : Johnson v. Johnson, 5 Jones Eq. 157 ; Hampton v. Dean, 4 Texas 455 ; unless the payment is made before the debt is due, in which case it should be applied to the ex- tinguishment of the principal : Starr v. Richmond, 30 111. 276; and interest upon interest is to be first paid : Anketel v. Con- verse, 17 Ohio St. 11 ; and, where a creditor is entitled to the payment of two distinct sums, one of which is in his own right, and the other to be paid to him as a trus- tee, and a partial payment is made, it must be appropriated rateably : Scott v. Ray et al., 18 Pick. 361 ; Barrett v. Lewis, 2 Id. 123 ; Cole v. Trull, 9 Id. 325 ; Harker et al. V. Conrad et al., 12 S. & R. 301 ; and so, when one holds a debt due to himself, and another debt due to himself and an- other, the appropriations must be rateably : Colby V. Copp, 35 N. H. 434. Where an appropriation or application has been once made, it cannot be altered without the consent of the parties : Hill et al. V. Sutherland's Exrs., 1 Wash. C. C. 128; White v. Trumbull, 3 Green 314; Hilton V. Burley, 2 N. H. 193 ; Hopkins v. Conrad et al., 2 Rawle 316; Martin v. Draher, 5 Watts 544; Bank of North America v. Meredith, 2 Wash. C. C. 47 ; Allen V. Calver, 3 Denio 285 ; The Mayor and Commonalty of Alexandria v. Patten et al,, 4 Cranch 317 ; Rundlett v. Small, 25 Maine 29; Jackson v. Bailey, 12 111. 159 ; Hubbell v. Flint, 15 Gray 650. The most embarrassing question in con- nection with this subject, is, as to when the appropriation is to be made ; some of the cases holding, that it may be made at any time : The Mayor and Commonalty of Alexandria v. Patten et al., 4 Cranch 317 ; Brady's Admr. v. Hill et al., 1 Mo. 315; Hilton V. Barley, 2 N. H. 193; Starrett v^ Barber, 20 Maine 457 ; Lindsey v. Stevens , 5 Dana 104; Heilborn v. Bissel et al., 1 Bail. Eq. 430 ; Jones v. The United States, 7 How. 681; and others, that the appli- cation must be made within a reasonable time: Harker et al. v. Conrad et al., 12 S. & R. 301; Briggs v. Williams et al., 2 Vt. 283; Fairchild v. Holly, 10 Conn. 176; Patterson v. Hall, 9 Cowen 747 ; but there is no doubt, that the application cannot be made after a controversy has arisen between the parties : United States i\ Kirkpatrlck, 9 Wheat. 720 ; Robinson et al. V. Doolittle et al., 12 Vt. 246; Fair- child V. Holly, 10 Conn. 176. In the recent case of Marsh v. The Oneida Central Bank, 34 Barb. 298, it was held, that a bank which held a note against a depositor, was not bound to make application of deposits when the note became due, but might wait until judgment was obtained against the de- positor. For general rules, as to the rights of creditor and debtor in regard to the application of payments, see the mod- ern case of Gaston v. Barney, 11 Ohio St. 506. 122 OF CHOSES IN ACTION. creditors will no longer be restrained from proceeding to enforce the full payment of their debts.(,7) Such creditors as hold security for their debts should openly stipulate that their securities are not to be affected ; and such a stipulation will be sufficient to preserve them. (A) But any secret agreement between the debtor and a creditor, by which he is to have any advantage over the others, in order to induce him to agree to the composition, is evidently a fraud on the other creditors, and as such is absolutely void,(i) and prevents the creditor who is party to it from suing for his share in the composition. (^^ The Bankruptcy Act, 1861, (?) provided, that every deed, instrument or agreement whatsoever, by which a debtor, not being a bankrupt, con- veved, or covenanted or agreed to convey his estate and effects, or the principal part thereof, for the benefit of his creditors, or made any arrangement or agreement with his creditors, or any person on their behalf for the distribution, inspection, conduct, management or winding- up of his affairs or estate, or the release or discharge of such debtor from his debts or liabilities, should, within twenty-eight days from and after the execution thereof by such debtor, or within such further time as the r*19qi Court *in London should allow,(»j) be registered in the Court *- "' -^ of Bankruptcy ; and in default thereof should not be received (g) Cranley v. Hillary, 2 M. & Selw. 120. {h) Nichols V. Morris, 3 B. & Ad. 41 (E. C. L. R. vol. 23) ; Ex parte Glendinning, Buck 517; Lee v. Lockhart, 3 Myl. & Cr. 302; Cullingworth v. Lloyd, 3 Beav. 385, and the cases collected, p. 395 ; Bush v. Shipman, 14 Sim. 239. {i) Leicester v. Rose, 4 East 372 ; Knight v. Hunt, 5 Bing. 432 (E. C. L. R. vol. 15) ; Pendlebury v. Walker, 4 You. & Col. 424 ; Alsager v. Spalding, 4 N. C. 407 ; Higgins V. Pitt, 4 Ex. Rep. 312 ; Pfleger v. Browne, 28 Beav. 391 ; Mare v. Warner, 3 GifiF. 100 ; Mare v. Earle, Id. 108. (/f) Howden v. Haigh, 11 Ad. & E. 1033 (E. C. L. R. vol. 39) ; Ex parte Oliver, 4 De Gex & Smale 354. See Atkinson v. Denby, 7 H. & N. 934. (/) Stat. 24 & 25 Vict. c. 134, s. 194. (to) Wishart v. Fowler, 4 B. & S. 674 (E. C. L. R. vol. 116). 1 In the absence of any agreement made in the 35th section of the Bankrupt Act, between a debtor and his creditors, it previous to bankruptcy or insolvency, or seems to be the prevailing rule in this in contemplation thereof, or anticipatory country, that a debtor may give a prefer- and with a view to a subsequent assign- ence to one creditor, or one set of credi- ment for the benefit of creditors, that any tors, by paying his or their debts in full, question of its validity can arise. For a to the exclusion of all the rest of the full consideration of the subject, see Hil- creditors, provided it is done in good faith. Hard's Treatise on the Law of Bankruptcy It is only where this preference is made and Insolvency, chap, x., pp. 322 to 361 within six or four months, according to inclusive ; and Brightly's Bank. L. 66, the circumstances of each case as specified 72 and 88'. OF DEBTS. 123 in evidence. And every such deed, on being so registered as aforesaid, should have a memorandum thereof written on the face of such deed stating the day and the hour of the day at which the same was brought into the oflBce of the Chief Registrar for registration. (w) But this act has now been repealed.(o) In some cases an assignment of the debtor's- estate and effects was made to trustees for sale and conversion into money, to be divided rate- ably amongst the creditors.^ As, however, this is the process adopted (n) Sect. 196; Stanger v. Miller, Ex. 11 Jur. N. S. 1005. (o) Stat. 32 & 33 Vict. c. 83. ^ In the State of Pennsylvania, voluntary- assignments for the benefit of creditors, are chiefly controlled by the Acts of the Legislature of 1836, 1843, and 1849 : Purd. Dig. (1861), pp. 60, 61. A voluntary assignment for the benefit of creditors, has been defined by the Supreme Court of that State, to be an assignment in trust, of the whole, or a part of a debtor's pro- perty, for the benefit of all his creditors equally: Wiener v. Davis, 18 Penn. St. 332 ; hence a preference created in and by such an assignment, is contrary to law, and therefore void: Wiener v. Davis, 18 Penn. St. 333; Blakey's Ap., T Id. 450; Worman v. Wolfersberger's Exrs., 19 Id. 59 ; Lea's Ap., 9 Id. 504, but it is only the preference which is void, and not the assignment, which will operate for the benefit of all the creditors rateably: Wiener V. Davis, a7i(e ; Law w. Mills, 18 Penn. St. 185 ; Bittenbender v. Sunbury & Erie R. R. 40 Id. 269; Act of 17 April, 1843, Purd. Dig. 60. But preferences taken alone, and not in connection with an assignment in trust, or any other disposition of the debtor's property, for the benefit of his creditors generally, are not unlawful if bona fide made : Worman v. Wolfersberger's Exrs., 19 Penn. St. 59; Morgan's Ap., 20 Id. 152 ; Siegel v. Chidsey, 28 Id. 281 ; Burd V. Smith, 4 Dall. 85 n. ; Mechanics' Bank v. Gorman, 8 W. & S. 308 ; Dana v. Bank U. S., 5 Id. 223 ; and hence it has been held, that a creditor who has a lien upon a particular portion of the assigned estate, out of the sale of which he realizes a portion of his claim, is entitled to his pro rata dividend on the whole claim, out of the general assets in the hands of the assignee, to an amount sufficient to pay the balance of his demand in full : Keim's Ap., 27 Penn. St. 43 ; Morris v. Olwine, 22 Id. 441 ; and the better opinion seems to be, that a bona fide confession of judgment, anterior to an assignment, will be good: Hutchinson v. McClure, 1 Am. L. Reg. 170 ; s. c. 20 Penn. St. 63, overruling Sumner's Ap., 16 Id. 174; Blakey's Ap., 7 Id. 450; though the contrary was held in Towar v. Barrington, Brightly 252, and Worman v. Wolfersberger's Exrs., 19 Penn. St. 63 ; the authority of which latter decision, however, fell with Sumner's Appeal, on which it stood ; but, anterior to the Act of the Legislature of 1843, and under the Act of 1836, preferences were allowed, for that act did not forbid preferences in an assignment. See cases above cited, and Hower v. Geeseamen, 17 S. & R. 251; Thomas v. Jenks, 5 Rawle 224; Henessy V. Western Bank, 6 W. & S. 301. It is not, therefore, surprising, that under the Act of 1836, it should have been held, that when a debtor made an assignment for the benefit of creditors, he could stipulate that it should only operate for the benefit of those creditors who should sign a release : Livingston v. Bell, 3 Watts 198 ; Henessy V. Western Bank, 6 W. & S. 301 ; though even under that act, and previous thereto, such a stipulation was not allowed in case of a partial assignment in trust for the benefit of creditors ; at least, it was held 123 OF CHOSES IN ACTION. by the law in cases of bankruptcy, where it is carried on under judicial sanction, the law considered that such an assignment of the whole estate that such a stipuhitiou in a partial assign- ment, would result in a reservation of a portion of the debtor's property, which would render the assignment void: McAllister v. Marshall, 6 Binn. 338 ; McClurg I'. Lecky, 3 Penna. R. 91 ; Irwin V Kean, 3 Whart. 347 ; Boker v. Crook- shank, 8 Leg. Int. 82 ; Johns v. Bolton, 12 Penn. St. 339 ; In re Walton, 4 Id. 430 ; Weber v. Samuel, 1 Id. 499 ; but it is per- haps a matter of some astonishment, that such stipulations should have been held valid under the Act of 1843 : Lea's Ap., 9 Penn. St 504 ; for, as such a stipulation would tend to work inequality amongst the creditors, if they did not all join in executing the release, it would necessarily operate antagonistically to the Act of 1843, which by its enactments requires, that the property should be distributed equally. This decision, however, did not long embarrass the courts, for by the Act of 1849, stipulations in assignments in trust for the benefit of creditors, that they should only operate for the benefit of those creditors who should sign a release, were prohibited, and it was enacted, that any such assignment shall be taken as a preference in favor of such creditors, and be void, and the assignment be held and construed to inure to the benefit of all the creditors, in proportion to their respec- tive demands. Where there is an assignment in trust for the benefit of creditors generally, and there are both partnership and individual creditors, and partnership and individual property, it seems to be pretty conclusively decided, that the partnership property will be applied to the partnership creditors, and the individual or separate property to the separate creditors : Andress v. Miller, 15 Penn. St. 316; Singizer's Ap., 28 Id. 525; Walker v. Eyth, 25 Id. 21T; and if either fund is insufficient, the balance of the fund not exhausted, is to be paid to those separate or partnership creditors, who have not been paid out of their own fund: Honseal's Ap., 45 Penn. St. 487! Black's Ap., 44 Id. 508 ; Andress v. Miller, 15 Id. 316; it has been held, also, that an assignment of partnership property to pay partnership creditors only, and the surplus to the assignors, is valid : Ilubler v. Water- man, 33 Penn. St. 415. And see Heckman V. Messenger, Leg. Int. Jan. 5, 1866, p. 4, 49 Penn. St. 466, a recent decision of the Supreme Court on this point. But see Bell V. Newman, 5 S. & R. 78. A peculiar instance of the application of partnership assets to partnership creditors, under an assignment in trust, occurred in the case of Baker's Ap., 21 Penn. St. 77. The facts of that case were these. A firm consisted of five brothers. Two of them retired from the firm, disposing of their interest in the partnership estate and effects to the other three, the latter agreeing to pay the debts of the firm, and exonerate and defend the assignors from all obliga- tion to pay any part of the same. After some time, one of the remaining three sold his interest in the partnership property to one of the remaining two partners, said to be without the approbation of his co- partner. The two remaining partners after contracting debts, executed an as- signment of their partnership property, by the terms of the assignment it being ex- pressly to pay the creditors of the last firm, composed of the two partners: It was held, that the creditors of the first two firms had no right to claim any portion of the fund last assigned, but that the same was distributable among the creditors of the last firm. In connection with this subject it may be remarked, that it has been held, that a judgment confessed to a trustee for the benefit of some of the creditors of the debtor, is not an assignment in trust for the benefit of creditors : Guy v. Mcllree, 28 Penn. St. 92 ; Breading v. Boggs, 20 Id. 37. See also Towar v. Barrington, Brightly 253. That assignments in trust for the bene- OF DEBTS. 123 of the debtor was an act of bankruptcy, and as such void, if there were any creditor or creditors who had not concurred in it of suflBcient amount to sue out a petition for adjudication of bankruptcy.(p) And now the Bankruptcy Act, 1869,((/) has expressly made the following act, amongst others, an act of bankruptcy, viz., that the debtor has, in England or elsewhere, made a conveyance or assignment of his property to a trustee or trustees for the benefit of his creditors generally.^ An exception to this rule was formerly made, if a petition for adjudication of bankruptcy did not issue within three calendar months from the execution of such a deed by any trader, provided the deed were executed by every trustee within fifteen days after the execution thereof by the trader, and that the execution by such trader and by every *such trustee were r*i94-i attested by an attorney or solicitor ; and provided that notice were given within one month after the execution thereof by such trader in the London Gazette and two London daily newspapers, if he resided in London or within forty miles of it ; or in the London Gazette, one London daily newspaper, and one provincial newspaper published near to such trader's residence, if he did not reside within forty miles of Lon- don, and such notice was required to contain the date and execution of the deed, and the name and place of abode respectively of every such trustee and of such attorney or solicitor.(r) But every such deed was required to be registered, as we have seen, in the Court of Bankruptcy,(s) and to be stamped, in addition to the ordinary stamp duty, with a stamp denoting a duty computed at the rate of five shillings upon every hun- dred pounds, or fraction of a hundred pounds, of the sworn or certified value of the estate or eff"ects comprised in or to be collected or distributed under such deed or instrument ; provided, that the maximum of ad va- lorem duty payable in respect of any such deed or instrument should be two hundred pounds. (^) But these enactments are now repealed, (w) and no exception is admitted to the rule, that every conveyance of a debtor's property to trustees for his creditors generally is an act of bankruptcy. {p) Tappenden v. Burgess, 4 East 230; Button v. Morrison, IT Ves. 193, 199 ; Pow- ell V. Lloyd, 2 You. & Jerv. 372 ; Ex parte Philpott, Court of Review, 10 Jur. 717. See post., the chapter on Bankruptcy of Traders. {q) Stat. 32. & 33 Vict. c. 71, s. 6, par. (1). (?•) Stat. 12 & 13 Vict. c. 106, s. 68, repealing stat. 6 Geo. IV. c. 16, s. 4. (s) Stat. 24 & 25 Vict. c. 134, s. 294, ante, p. 122. {t) Sect. 195. (m) Stat. 32 & 33 Vict. c. 83. fit of creditors are not contrary to the creditors, must be recorded within thirty spirit of the Bankrupt Act, see Beck v. days after execution, in the county where Parker, 65 Penn. St. 272. the assignor resides: Purd. Dig. (1861), By the Act of the 24th of March, 1818, p. 61. an assignment in trust for the benefit of ^ See^o.s^, page 135, note 1. 124 OF CIIOSES IN ACTION. The Bankrupt Law Consoliilation Act, 1849, contained provisions by wliicli deeds of arrangement between a trader and his creditors, signed by six-sevenths in number and value of those creditors whose debts amounted to ten pounds and upwards, were binding on all the credit- ors. (x) These provisions were repealed *by the Bankruptcy 1_ IwOj j^^^^ 1861, (?/) which substituted for them other enactments, which a})plied to all debtors, whether traders or not. These enactments have been themselves repealed by the Bankruptcy Repeal and Insolvent Court Act, 1869 •,{z) but as some knowledge of their provisions will for some time be practically necessary, it may be desirable to state them shortly. Every deed between a debtor and his creditors, relating to his debts or liabilities, and his release therefrom, or the distribution, inspec- tion, management and winding-up of his estate, or any of such matters, was rendered binding on all the creditors of such debtor, provided the following conditions were observed, that is to say: (1.) A majority in number, representing three-fourths in value of the creditors of such debtor, whose debts respectively amounted to ten pounds and upwards, should, before or after the execution thereof by the debtor, have in writing assented to or approved of such deed or instrument. (2.) If a trustee or trustees were appointed by such deed or instrument, such trustee or trustees should have executed the same. (3.) The execution of such deed or instrument by the debtor should have been attested by an attorney or solicitor. (4.) Within twenty-eight days from the execu- tion of such deed or instrument by the debtor, the same should have been produced and left (having been first duly stamped) at the ofiice of the Chief Registrar, for the purpose of being registered. (5.) Together with such deed or instrument there should have been delivered to the Chief Registrar an affidavit by the debtor, or some person able to depose thereto, or a certificate by the trustee or trustees, that a majority in number, representing three-fourths in value of the creditors of the debtor whose debts amounted to ten pounds or upwards, had in writing assented r*1261 ^0 '^^ ^PP^"oved of such deed or instrument; '^and also stating the amount in value of the property and credits of the debtor comprised in such deed. (6.) Such deed or instrument should, before registration, bear such ordinary and ad valorem stamp duties as were by the act provided.(a) (7.) Immediately on the execution thereof by the debtor, possession of all the property comprised therein, of which the (z) Stat. 12 & 13 Vict. c. lOG, s. 224. (y) Stat. 24 & 25 Vict. c. 134, s. 192. (z) Stat. 32 & 33 Vict. c. 83. (a) Stat. 24 & 25 Vict. c. 134, s. 195. See ante, p. 124. OF DEBTS. 126 debtor could have given or ordered possession, should have been given to the trustees. (6) The Bankruptcy Amendment Act, 1868, (c) required statements to be added, containing particulars (1) of the debts and liabilities of the debtor, and (2) of the debtor's property and credits. It also contained other provisions, which it is hardly necessary to state, as this act also has been repealed by the Bankruptcy Repeal and Insolvent Court Act, 1869.(c?) The statutory form of conveyance for the benefit of creditors, pro- vided by the Bankruptcy Act, 1861, contained no release of the debtor by his creditors from their debts, and consequently could not be pleaded by the debtor in bar to an action by a creditor for his debt.(e) If, how- ever, a release by the creditors had been inserted in the deed, or were the necessary effect of its provisions, it was pleadable in bar to an action by a non-assenting creditor. (/) All the creditors of the debtor, and not merely those who executed the deed, ought to have been equally bene- fited by its provisions •,{g) *and the deed must not have contain- r*-io7-i ed any unreasonable stipulation, by which the non-assenting ere- ditors might have been prejudiced. (A) It was unreasonable if the exe- cuting creditors were paid down a composition, which the non-assenting creditors had only a covenant to pay ;(^) or even if the executing cred- itors had the benefit of a covenant, of which the non-assenting creditors could not avail themselves. (^) But it was held not unreasonable to em- power the trustees of the deed to require persons claiming to be creditors {b) Sect. 192. (c) Stat. 31 & 32 Vict. c. 104. (rf) Stat. 32 & 33 Vict. c. 83. (e) Eyre v. Archer, 16 C. B. N. S. 638 (E. C. L. R. vol. Ill) ; Jones v. Morris, Q. B. 11 Jur. N. S. 812 ; Clarke v. Williams, Ex. Ch. 13 W. R. 923 ; 34 L. J. Ex. 189. (/) Chapman v. Atkinson, 4 B. & S. 722 (E. C. L. R. vol. 116) ; Whitehead v. Por- ter, 5 B. & S. 193 (E. C. L. R. vol. 117) ; Garrod v. Simpson, Ex. 11 Jur. N. S. 227; Wills V. Hacon, 5 B. & S. 196 (E. C. L. R. vol. 117); Dewhirst v. Jones, 3 H. & C. 60. {g) Walter v. Adcock, 7 H. & N. 541 ; Ex parte Godden, L. J., 32 L. J. Bank. 37 ; Dewhirst v. Kershaw, 1 H. & C. 726; llderton v. Castrique, 14 C. B. N. S. 99 (E. C. L. R. vol. 108) ; Ex parte Cockburn, Re Smith, L. C, 12 W. R. 184, 673 ; 10 Jur. N. S. 573 ; Benham v. Broadhurst, 3 H. &. C. 472 ; Chesterfield and Midland Silkstone Col- liery Company, Limited, v. Hawkins, 3 H. & C. 677. {h) Woods V. Foote, 1 H. & C. 841 ; Inglebach v. Nicholls, 14 C. B. N. S. 85 (E. C. L. R. vol. 108) ; Killby v. Wright, 18 C. B. N. S. 272 (E. C. L. R. vol. 114) ; Nicholson V. Potts, Ex. Ch. 12 W. R. 440. (i) Ex parte Cockburn, Re Smith, ubi sup. (k) Benham v. Broadhurst; Chesterfield and Midland Silkstone Colliery Company, Limited, v. Hawkins, ubi sup. And see Gresty v. Gibson, 1 Law Rep. Ex. 112 ; Reeves V. Watts, Q. B. 12 Jur. N. S. 565. 127 OF CHOSES IN ACTION. to verify their debts or claims by statutory declaration proved before the commissioners of bankruptcy, or otherwise as the trustees might think fit.(Z) Nor was it unreasonable to give the trustees a discretion as to the sale and management of the estate, or power to sell to the debtor himself,(//<) or a discretion as to the amount and manner of payment of dividends, or as to the enforcement of payment of debts. And the value of securities held by creditors might reasonably have been ascer- tained by valuers, or an umpire appointed in the usual way.(w) Again, a covenant in a composition deed not to sue the debtor for a limited r*10Gn time was not *unreasonable ;(o) nor was a power to revoke a let- ter of license given to the debtor.(j9) In estimating the requi- site majority, secured as well as unsecured creditors were required to be taken into account. (^)' But this was altered by the Bankruptcy Amend- ment Act, 1868, (r) which required that the amount due to each secured creditor, after deducting the value of his securities on the debtor's pro- perty, should alone be reckoned. And the deed of composition was not required to provide for the distribution of the whole of the debtor's es- tate amongst his creditors(s) as was required by the corresponding section of the Act of 1849.(i) The Bankruptcy Act, 1869, now contains the following provisions with respect to composition with creditors :{u) — " The creditors of a debtor unable to pay his debts may, without any proceedings in bank- ruptcy, by an extraordinary resolution, resolve that a composition shall be accepted in satisfaction of the debts due to them from the debtor. An extraordinary resolution of creditors shall be a resolution which has (l) Coles V. Turner, Ex. Ch. 1 Law Rep. C. P. 373. (to) Greenberg v. Ward, C. P. 12 Jur. N. S. 524; 1 Law Rep. C. P. 585. (n) Coles V. Turner, ubi gup. (o) Hidson v. Barclay, 3 H. & C. 361 ; Walker v. Nevill, 3 H. & C. 403. [p) Walker v. Nevill, ubi sup. (q) King o. Rendall, 14 C. B. N. S. 721 (E. C. L. R. vol. 108) ; Ex parte Godden, 1 De Gex, J. & S. 260 ; Turquand v. Moss, 17 C. B. N. S. 15 (E. C. L. R. vol. 112). (r) Stat 31 & 32 Vict. c. 104, s. 3. (») Re Rawlings, L. J., 1 De Gex, J. & S. 225 ; 9 Jur. N. S. 31G ; Ex parte Morgan, L. C, 9 Jur. N. S. 559 ; 1 De Gex, J. & S. 283 ; Clapham v. Atkinson, 4 B. & S. 722 (E. C. L. R. vol. 116). (<) Tetley v. Taylor, 1 E. & B. 521 (E. C. L. R. vol. 72) ; Drew v. Collins, 6 Ex. Rep. 670; March v. Warwick, 1 H. & N. 158; Macnaught v. Russell, 1 Id. 611; Irving v. Gray, 3 Id. 34; Bloomer v. Darkes, C. B. N. S. 165 (E. C. L. R. vol. 89); Cruger v. Dunlap, 7 H. & N. 525. (m) Stat. 32 & 33 Vict. c. 71, s. 126. 1 See ante, p. 123, note 1. OF DEBTS. 128 been passed by a majority in number and three-fourths in value of the creditors of the debtor, assembled at a general meeting to be held in the manner prescribed, of which notice has been *given in the pre- r^-innn scribed manner, and has been confirmed by a majority in number ^ "^ J and value of the creditors assembled at a subsequent general meeting, of which notice has been given in the prescribed manner, and held at an interval of not less than seven days nor more than fourteen days from the date of the meeting at which such resolution was first passed. In calculating a majority for the purposes of a composition under this sec- tion, creditors whose debts amount to sums not exceeding ten pounds shall be reckoned in the majority in value, but not in the majority in number ; and the value of the debts of secured creditors shall, as nearly as circumstances admit, be estimated in the same way, and the same description of creditors shall be entitled to vote at such general meetings, as in bankruptcy. The debtor, unless prevented by sickness or other cause satisfactory to such meetings, shall be present at both the meetings at which the extraordinary resolution is passed, and shall answer any in- quiries made of him, and he, or if he is so prevented from being at such meetings some one on his behalf, shall produce to the meetings a state- ment showing the whole of his assets and debts, and the names and addresses of the creditors to whom such debts respectively are due. The extraordinary resolution, together with the statement of the debtor as to his assets and debts, shall be presented to the registrar, and it shall be his duty to inquire whether such resolution has been passed in manner directed by this section, and if satisfied that it has been so passed he shall forthwith register the resolution and statement of assets and debts, but until such registration has taken place such resolution shall be of no validity; and any creditor of the debtor may inspect such statement at prescribed times, and on payment of such fee, if any, as may be pre- scribed. The creditors may, by an extraordinary resolution, add to or vary the provisions of any compensation previously ^accepted n^-. oa-i by them, without prejudice to any persons taking interests under such provisions who do not assent to such addition or variation ; and any such extraordinary resolution shall be presented to the registrar in the same manner and with the same consequences as the extraordinary resolution by which the composition was accepted in the first instance. The provisions of a composition accepted by an extraordinary resolution in pursuance of this section shall be binding on all the creditors whose names and addresses, and the amount of the debts due to whom, are shown in the statement of the debtor, produced to the meetings at which the resolution has passed, but shall not affect or prejudice the rights of 130 OF CHOSES IN ACTION. any other creditors. "Where a debt arises on a bill of exchange or promissory note, if the debtor is ignorant of the holder of any such bill of exchange or promissory note, he shall be required to state the amount of such bill or note, the date on Avhich it falls due, the name of the ac- ceptor or person to whom it is payable, and any other particulars within his knowledge respecting the same, and the insertion of such particulars shall be deemed a sufficient description of the creditor of the debtor in respect of such debt, and any mistake made inadvertently by a debtor in the statement of his debts may be corrected after the prescribed notice has been given, with the consent of a general meeting of his creditors. The provisions of any composition made in pursuance of this section may be enforced by the court on a motion made in a summary manner by any person interested, and any disobedience of the order of the court made on such motion shall be deemed to be a contempt of court. Rules of court may be made in relation to proceedings on the occasion of the acceptance of a composition by an extraordinary resolution of creditors, in the same manner and to the same extent and of the same authority as r*iq-|-| ii^ respect of proceedings in *bankruptcy. If it appear to the court on satisfactory evidence that a composition under this sec- tion cannot, in consequence of legal difficulties, or for any sufficient cause, proceed without injustice or undue delay to the creditors or to the debtor, the court may adjudge the debtor a bankrupt, and proceedings may be had accordingly." *CHAPTER IV. OF BANKRUPTCY OF TRADERS.* [*132] Under some circumstances a debtor is discharged by law from his 1 As to the power of Congress to pass cess of bankruptcy at the instance of the bankrupt laws, see Golden v. Prince, 3 Wash. C. C. 313; Mitchell v. Great Works Co., 2 Story 648 ; Campbell, 6 Int. R. Rec. 174 ; Silverman, 4 B. R. 173. As to how the constitutional requirement of uniform- ity in such acts is complied with, see Ap- pold, 1 B. R. 178. " Congress passed an act, April 4th, creditor, was urged by others as essential to the system, and that the provisions should even be extended, so as to include corporations, instituted under state au- thority, for banking, manufacturing, com- mercial, insurance, and trading purposes. But this last provision was objected to as most inexpedient, if not absolutely beyond 1800, establishing a uniform system of the purview of the Constitution. It was bankruptcy throughout the United States, apprehended that such a power would lead The act was limited to five years, and from to infinite abuse, and become expensive thence to the end of the next session of and extremely oppressive, and would tend Congress; but the act was repealed within to break up all the moneyed and business that period, by the act of December 19th, institutions created under state laws, or 1803, and the system was not renewed render the power of control of them most until 1841. formidable and dangerous. The advocates " An effort was made in Congress, in the of the bill contended that bankruptcy was spring of 1840, to re-establish a uniform a general term, and meant failure, and was system of bankruptcy, and the subject re- equally applicable to all persons of broken ceived an able and thorough investigation fortunes ; that the Constitution Avas not and discussion, but Congress could not intended to be bound to the English system agree on the principles of the system, and of bankruptcy, and that Congress had the the effort failed. The bill which was re- same power as the British Parliament, to ported and debated, enabled debtors of extend the application of it, and that it every description and class, to take advan- might and ought to extend it, to all classes tage of it at their option, and to be thereby of debtors who had become disabled and completely discharged from their debts, overwhelmed in the peculiar and severe without the co-operation or assent of any calamity of the times ; that though the creditor. Some of the members of Con- assent of at least a majority of the creditors gress were opposed to any bankrupt system to the debtor's discharge, was deemed by on the part of the United States, as it the New York Board of Trade, to be essen- would enlarge the powers of the Federal tial to the stability of credit, the rights of courts to a great extent, and lead to the creditors, the claims of justice, and the creation of a crowd of officers and agents reputation of the country, it was insisted to administer it, and probably to much upon, as a compensation for this omission, abuse and corruption. They preferred that the operation of the act would be that the administration of bankrupt and useful to creditors, though the debtor insolvent laws, should remain with the should be enabled to obtain the benefit of state governments. The compulsory pro- a discharge without their consent or action, 132 OF CIIOSES IN ACTION. debt -svitliout any actual payment, or without payment or more tlian a part of it. This occurs in the case of bankruptcy. for it would put an end to the pernicious practice of givinpj preference among cred- itors, and enable the assets of insolvents to be distributed equally among the cred- itors. " The bill was strongly opposed by other members of Congress, on constitutional grounds, reaching to the fundamental principles of the bill. It was contended that the power given to Congress, to es- tablish uniform laws on the subject of bankruptcy, was one incidental to the regulation of commerce, and applicable only to merchants and traders, or persons essentially engaged, in various ways and modes, in trade and commerce. That the term bankruptcy was adopted in the Con- stitution, as it stood defined and settled in the English law, where it had a clear and definite meaning ; that it was universally taken and understood in that sense, con- temporaneously with the adoption of the Constitution ; and it received that practical construction, and none other, in the bank- rupt act of 1800 ; that the English bank- rupt laws discharged the bankrupt from his debts and contracts, and were coercive on the debtor, and put in action at the in- stance of creditors, and at their instance only ; that the proceeding Avas for the equal benefit of all the creditors, and its justice and policy, as applicable to that class of debtors, was founded on the pecu- liarly hazardous business of trade and commerce, and the necessity of large credits to sustain an extensive foreign and domestic trade ; that there was a marked difference between bankrupt and insolvent laws, in the jurisprudence of England and of America, and which had been recog- nised by the Supreme Court of the United States ; that insolvent laws were left to the cognisance of the individual states, each of which had its own system of in- solvent laws, and which the bill before the House would entirely supersede, for it was in fact a general and sweeping insolvent law ; and it was apprehended, that its operation on credit, and the popular sense of the legal and moral obligation of con- tracts, would be disastrous. " The effort to establish a national bank- rupt law, was renewed at the next session of Congress, and was successful. An act of Congress ' To establish a uniform sys- - tem of bankruptcy throughout the United States,' was passed the 19th of August, 1841. It was declared to apply to all per- sons whatsoever, residing within the United States, who owed debts, not created in consequence of a defalcation as a public officer, or as executor, administrator, guardian, or trustee, or while acting in any other fiduciary character, and who should by petition on oath, setting forth a list of their creditors, and an inventory of their property, apply to the District Court for the benefit of the act, and declare themselves unable to meet their debts and engagements. The act Avas further de- clared to apply to all persons being mer- chants, or using the trade of merchandise, and all retailers of merchandise, and all bankers, factors, brokers, underwriters, or niarine insurers, owing debts to the amount of two thousand dollars ; who should be liable to become bankrupts, upon petition of one or more of their creditors to the amount of five hundred dollars ; provided they had absconded, or fraudulently procured themselves or their property, to be attached or taken in exe- cution, or had fraudulently removed, or concealed, or assigned, or sold their pro- perty. The bankrupt when duly dis- charged, was declared to be free from all his debts. The first provision is a sweep- ing insolvent law, and applies to all debtors, and upon their own voluntary ap- plication ; the second is confined to mer- chants and traders, and the act is put in operation only at the instance of the cred- itors. The numerous details of the statute, and the many questions which were raised, discussed^ and decided, in the District and Circuit Courts of the United OF BANKRUPTCY OF TRADERS. 132 The whole of the Law of bankruptcy now depends on the Bankruptcy States, in the execution of the act, cannot be noticed in the limited space allowed in this note, nor would they be any longer interesting, since the entire statute was repealed by Congress, on the 3d of March, 1843. The provision in the bankrupt act, which rendered it a general insolvent act, and was the one almost exclusively in operation, gave occasion to serious doubts, whether it was within the true construc- tion and purview of the Constitution, and it was that branch of the statute, that brought the system, and I think justly, into general discredit and condemnation, and led to the repeal of the law. In the Law of 1841, showing its operation and effect." The United States bankrupt act of 1841 was held to be constitutional. See Klein 1 How. 277. Prior to the publication of the last American edition of this work, a renewed attempt was made to procure the passage of a general bankrupt act, embodying such provisions, as to create a uniform system of bankruptcy throughout the United States. This effort was made during the session of Congress of 1861-1862. The proposed act was framed, upon a careful examination and comparison of the cases of Kunzler v. Cohans, and of Sackett provisions of the EnglisU Bankrupt Act V. Andross, 5 Hill (N. Y.) 317, 327, the con- stitutionality and construction of the bankrupt act of Congress of 1841, was largely discussed, and it was held that the voluntary, as well as the other branch of the act, was constitutional, and applied as well to debts 'created before, as after its passage. Mr. Justice Bronson, in a very which went into operation in October, 1861, the existing insolvent laws of the state of Massachusetts, the bankrupt acts of the United States, of 1800 and 1841, the insolvent laws of the state of New York, and other kindred statutes. It was thought that it combined all the most sal- utary provisions of these several statutes. elaborate opinion, dissented from both of so far as they were capable of application to a uniform system of bankruptcy in the United States. It provided for the full and unconditional discharge of the debtor (except as to certain fiduciary debts), upon the surrender of his entire estate for dis- these propositions. And Judge Wells, of the United States District Court of Mis- souri, in the case of Edward Kleen, 2 N. Y. Legal Obs. 184, after a very full con- sideration of the subject, also decided that the provision in the act of Congress of tribution, without preference, among all 1841, for the discharge of a voluntary his creditors, and upon his compliance debtor from his debts and future acquisi- with the requirements of the act. It pro- tions, without payment or assent of his vided for the election of the assignee in creditors, was unconstitutional." bankruptcy by the creditors, and gave The foregoing note, taken from Kent's them the supervision of the manao-ement Commentaries, &c., vol. 2, p. 391, n. a, gives a general view of the provisions contained in the repealed bankrupt law, and its scope ; but for a full consideration thereof, see "Owen on Bankruptcy;", " The Bankrupt Law of the United States, with a Commentary containing a full ex- planation of the Law of Bankruptcy," pub- lished in 1841, in Philadelphia, and two and winding up of the estate, under the di- rection of the court. It also permitted, by provisions analogous to the French code of bankruptcy, as well as of the English law, the winding up of bankrupts' estates, at the option of three-fourths in value of the creditors, by trustees, under the in- spection of creditors, in lieu of the more formal proceedings in bankruptcy. The tracts published in New York, in the year various details of the act were designed to 1842, one by J. B. Staples, and entitled, give uniformity and efficiency to the sys- " The General Bankrupt Law," &c., and tern, and to meet the various exigencies of the other by Geo. A. Bicknell, Jr., and en- its administration, in the extended terri- titled, " A Commentary on the Bankrupt tory to which it was to apply. 12 132 OF CIIOSES IN ACTION. Act, 1860,(a)- to make way for which all the previous bankruptcy acts have been repealed. (6) The former acts were the Bankruptcy Act, (a) Stat. 32 & 33 Vict. c. 71. (6) By Stat. 32 & 33 Vict. c. 83. The project, however, failed to meet with the requisite support, and the pro- posed act did not become a law. Repeated efforts have been made at sub- sequent sessions of Congress, to procure the passage of a bankrupt bill, but these also were unsuccessful. A bill was also reported at the session of Congress (1865-18G6), containing the essential features of the bill above referred to, and providing for voluntary bankruptcy upon the petition of the debtor himself, and involuntary bankruptcy, upon the petition of one or more of the creditors of the bankrupt, under the regulations therein prescribed ; but limiting the discharge of a debtor to his first bankruptcy, unless under a second bankruptcy, his estate is sufficient to pay seventy per cent, of the debts proved against it, or he obtains the consent of three-fourths in value of his creditors, or can prove payment of all debts owing by him at the time of his pre- vious discharge. For the law of Bankruptcy, see Hilliard on Bankruptcy and Insolvency, whose Treatise on these subjects, embodies the principles of both English and American decisions. And as to the act of 18G7 ; The Bank- rupt Law of the United States, 1867, with notes and decisions by Edwin James ; Brightly's Annotated Bankrupt Law; Bump's Law and Practice of Bankruptcy; Gazzam's Treatise on the Bankrupt Law ; American and English Bankruptcy Digest by Gazzam ; Rice's Manual of the Bank- rupt Law ; Avery & Hobbes' Treatise. 2 The provisions of the bills reported to Congress at the sessions 18G1-62, 1865-66, referred to in the previous note, comprise the most prominent features of the exist- ing bankrupt law of the United States, the Act of March 2, 1867 (14 Statutes at Large 517), of which with the amendments thereto, the following is a brief synopsis : a. Jurisdiction in matters of bankruptcy is conferred thereby principally, upon the several District Courts of the United States, the Supreme Court of the District of Colum- bia and the Supreme Courts of the several territories ; the Circuit Courts being invest- ed with a general superintendence of all cases and questions arising under the act, and with concurrent jurisdiction of suits brought by or against assignees in bank- ruptcy, and jurisdiction on appeal in equity, and in error at law. For the assistance of the judge of the District Court, he is au- thorized to appoint in each congressional district, upon the nomination and recom- mendation of the chief justice of the Su- preme Court of the United States, one or more registers in bankruptcy, to whom is confided (with the exception of contested matters, the preliminary stages of the pro- ceedings, and the granting of discharges), the details of the administration of the act. A register is not empowered to commit for contempt, and in all matters where an issue of law is raised and contested by any party to the proceedings, it is his duty to cause the same to be stated in writing by the op- posing parties, and to adjourn it into Court, for decision by the judge. (In practice, however, the register provisionally decides questions arising before him, to which ex- ceptions may be taken by parties interest- ed.) The opinion of the judge may be taken upon any point or matter arising in the proceedings, which shall be certified by the register. The justices of the Supreme Court are empowered to frame general orders for regulating the practice and procedure of the District Courts. The act provides for proceedings in bankruptcy upon the petition of a debtor, viz : voluntary bankruptcy, and upon the petition of creditors, viz: involuntary bankruptcy. Any person residing within the jurisdic- tion of the United States, owing debts OF BANKKUPTCY OF TRADERS. 132 1861, (c) under which persons not in trade were for the first time liable to become bankrupt, and the Bankruptcy Act of 1849,(a!) by which all (c) Stat. 24 & 25 Vict. c. 134. (d) Stat. 12 & 13 Vict. c. 106. provable under the act, exceeding the amount of three hundred dollars, may apply by petition addressed to the judge of the district, in which he has resided or carried on business for the six months next immediately preceding the time of filing such petition, or for the longest period during such six months, setting forth his residence, his inability to pay all his debts in full, his willingness to surren- der all his estate for the benefit of his creditors, and his desire to obtain the bene- fit of the act, together with schedules of his creditors and assets (and in case he be a citizen of the United States shall take and subscribe an oath of allegiance thereto), shall thereupon be adjudged a bankrupt, the filing of such petition being declared to be an act of bankruptcy. After such a petition is filed if there be no opposing party, it is generally referred to one of the registers of the Court, by whom a warrant is issued, directed to the marshal of the district as messenger, to publish and serve notice on the creditors of the bankrupt, of a meeting of the creditors to prove their debts, and choose one or more assignees of the bankrupt's estate. b. This meeting is presided over by the register, the choice of assignee being re- quired to be made by the greater part in value and in number of the creditors, who have proved their debts. If no choice is made by the creditors, the judge, or if there be no opposing interest, the register shall appoint the assignee, all elections or appointments being subject to the approval of the judge. An assignment is then made by the judge, or most generally by the register, to the assignee, of all the bankrupt's estate, the assignment relating back to the commencement of the pro- ceedings, and dissolving any attachment made within four months next preceding the commencement of said proceedings. Certain exemptions (see post, page 149, note 1) are allowed to the bankrupt out of his estate, but with such exception, all the property of the bankrupt vests in the assignee, who is required to give notice of his appointment by publication, to collect the estate, convert it into money by sales thereof, to be made on such terms as he may think most for the interest of the creditors, the general orders before referred to, specifying the time of notice, &c., the Court making special orders in regard thereto, as the nature of particular cases requires. c. All debts due and payable from the bankrupt at the time of the adjudication of bankruptcy (which it has been decided relates to the time of the filing of the peti- tion), and all debts then existing, but not payable until a future day, a rebate of in- terest being made when no interest is pay- able by the terms of the contract, may be proved against the bankrupt's estate. This includes claims for goods wrongfully taken and converted, liabilities as endorser, bail, surety, guarantor, contingent liabilities, claims of sureties for the bankrupt and un- liquidated damages, &c. In cases of mu- tual debts or mutual credits, set off is allowed ; but not of a claim not provable, or of a claim purchased by or transferred to any debtor of the bankrupt after the filing of the petition. d. A creditor having a mortgage or pledge of real or personal property, or lien thereon, is admitted as a creditor only for the balance of the debt, after deducting the value of such property, to be ascer- tained by agreement with the assignee, or by a sale thereof, to be made as the Court shall direct ; but the creditor may release or convey his claim upon such property to the assignee, and then be admitted to prove his whole debt. If the value of such property exceeds the sum, for which it is security, the assignee may release to the 132 OP CHOSES IN ACTION. the previous acts "were repealed. Of these the most important was the statute of G Geo. IV. c. 16, "An Act to amend the Laws relating to creditor the right of redemption on receiv- ing such excess, or he may sell the pro- perty, subject to the claim of the creditor thereon. If the property is not so sold, or released and delivered up, the creditor is not allowed to prove any part of his debt. Probate of a debt is a waiver of action against the bankrupt, and unsatisfied judg- ments are deemed to be discharged and surrendered thereby, and suits at law by creditors, whose debts are provable, may be stayed. Probate of debts may be made by deposi- tion taken before a register in bankruptcy, or commissioner of the Circuit Court, setting forth the particulars of the claim, consideration, &c., as specified in the act and general orders. If the creditor is in a foreign country, such deposition may be made before any minister, consul, or vice- consul of the United States. If the proof is satisfactory to the oiEcer before whom it may be made, it is then to be sent to the assignee, whose duty it is to examine it and compare it with the books of the bankrupt. If before the election of assignee, the judge or register entertain doubts of the validity of any claim, and that it ought to be investigated by the assignee, he may postpone the proof of the claim until the assignee is chosen. e. Examination of the bankrupt upon matters relating to the estate may be made at any time by the Court, with or without any application ; and the attendance of any other person as a witness may also be required. The wife of the bankrupt may be examined as a witness, and if she do not attend as directed, the bankrupt shall not be entitled to a discharge, unless he shall prove to the satisfaction of the Court that he was unable to procure her attendance. A bankrupt is not liable to arrest during the pendency of the bankruptcy proceed- ings, in any civil action, unless it is founded on some claim, from which the discharge would not release him. (Examination of the bankrupt and witnesses is generally made before the register, to whom the case is referred. As to examination of the bank- rupt and witnesses generally, and what questions may be asked them, see Patter- son, 6 Int. Rev. Rec. 166; Koch, 1 B. R. 153; Tanner, Id. 59; Judson, Id. 82 Leachman, Id. 91 ; Rosenfield, Id. 60 Bonesteel, 2 B. R. 106; Van Tuyl, 1 B. R 193 ; Levy, 6 Int. Rev. Rec. 134, 163 ; Lyon Id. 135 ; Carson, 2 B. R. 41 ; Craig, 3 Id. 26 Bellis, Id. 49; O'Donohoe, Id. 59; Holt Jr., Id. 58 ; Lord, Id. 58 ; McBrien, Id. 90 Lewis, Id. 153 ; Fay, Id. 163 ; Bromley, Id 169; Woodward, Id. 177; Solis, 4 B. R 18 ; Richards, Id. 25 ; Craig, Id. 50 ; Clark Id. 70; Lathrop, Id. 93; Vetterlein, Id 194; Frizelle, 5 B. R. 119. As to examina- tion of bankrupt's wife, see Gilbert, 3 B. R. 37; Bellis, Id. 65; Woolford, Id. 113; Vogel, 5 B. R. 393.) /. At the expiration of three months from the date of the adjudication, or as much earlier as the Court may direct, the Court, upon the request of the assignee, shall call a general meeting of the creditors, at which the assignee shall make a report of his management of his trust, and exhibit an account of all his receipts and expendi- tures. The majority in value of the cred- itors present determine whether any and what part of the net proceeds of the estate shall be divided among the creditors ; but unless one-half in value of them shall attend, it is the duty of the assignee so to determine. If a dividend is declared, notice thereof is required to be sent to each creditor, who is to be paid by the assignee, as the Court may direct. At the expira- tion of the next three months, or earlier if practicable, a third meeting of creditors may be called, and another dividend de- clared. Further meetings may be called upon the order of the Court. (Besides the adjustment and auditing of the account of the assignee, the allowance or disallowance of exceptions thereto, the definitive allowance of proof of debts, which is perhaps to be considered prior to OF BANKRUPTCY OF TRADERS. 132 Bankrupts," which had been amended and altered by various others,(e) the provisions of which, with some alterations, were consolidated in the Act of 1849. (e) 1 & 2 Will. IV. c. 56 ; 3 & 4 Will. 4, c. 47 ; 1 & 2 Vict. c. 110 ; 2 Vict. c. 11 ; 2 & 3 Vict, c. 29 ; 5 & 6 Vict. c. 122 ; 7 & 8 Vict. c. 9G ; 8 & 9 Vict. c. 48 ; 10 & 11 Vict. c. 102; 11 & 12 Vict. c. 86. this time as only provisionally determined, a variety of other business connected with the settlement of the estate may be appropri- ately transacted. See Sherwood, 1 B. R. 74.) Dividends already declared are not dis- turbed by debts subsequently proved, but creditors proving such debts, are entitled to a dividend equal to those already re- ceived by any other creditors, before any further pa3'ment is made to the latter. All creditors, whose claims are duly proved, are entitled to share in the bankrupt's es- ta.te pro rata ; but in the order for a divi- dend, the fees, costs and expenses of bank- ruptcy proceedings, debts due to the United States, and all taxes and assessments under the laws thereof; debts due to the state in which the proceedings in bankruptcy are pending, and all taxes and assessments under the laws of such state; -v^ges due to any operative, clerk or house servant to an amount not exceeding fifty dollars, for labor performed within six months next preceding the adjudication, and all debts due to any persons, who, by the laws of the United States, are or may be entitled to a priority or preference if the Bankrupt Act had not been passed, are to be entitled to priority or preference, and to be first paid in full in the order stated. ff. At any time after the expiration of six months from the adjudication of bank- ruptcy, or if no debts have been proved against the bankrupt, or if no assets have come to the hands of the assignee, at any time after the expiration of sixty days, and within one year from the adjudication of bankruptcy, the bankrupt may apply to the Court for a discharge. The following are grounds of refusal of discharge : wilful false swearing by the bankrupt in the affi- davit annexed to the petition, schedules, or inventory, or in any examination in the course of the proceedings, in relation to any material fact; concealment of any part of his estate, or any books or writings relating thereto ; fraud or negligence in the care, custody, or delivery to the assignee, of pro- perty belonging to the bankrupt at the time of the presentation of the petition and inventory (excepting exempted pro- perty) ; causing, permitting, or suffering any loss, waste or destruction thereof; procuring his lands, goods, money or chattels to be attached, sequestered or seized on execution within four months before the commencement of proceedings ; destroying, mutilating, altering or falsi- fying since the passage of the act, any of his books, documents, papers, writings or securities, or being privy to the making of any false or fraudulent entry, in any book of account or other document, with intent to defraud his creditors ; removing or causing to be removed, any part of his pro- perty from the district, with intent to defraud his creditors ; giving any fraudu- lent preference contrary to the provisions of the act, or making any fraudulent pay- ment, gift, transfer, conveyance, or assign- ment of any part of his property ; or the loss of any part thereof in gaming ; or the admitting a false and fictitious debt against his estate, or if having knowledge that any person has proved such false or fictitious debt, the omission to disclose the same to his assignee within one month after such knowledge ; or if a merchant, or tradesman, the failure subsequently to the passage of the act to keep proper books of account; procuring directly or indirectly the assent of any creditor to the discharge, or in- fluencing the action of any creditor at any stage of the proceedings, by any pecuniary consideration or obligation ; the making, in contemplation of becoming bankrupt, 132 OF CHOSES IN ACTION. Traders were defined by the Act of 1849 to be, all alum makers, apothecaries, auctioneers, bankers, bleachers, brokers, brickmakers, any pledge, payment, transfer, assignment or conveyance of any part of his property, directly or indirectly, absolutely or condi- tionally, for the purpose of preferring any creditor or person having a claim against him, or who is or may be under liability for him, or for the purpose of preventing the property from coming into the hands of the assignee, or of being distributed under the act in satisfaction of his debts ; conviction of any misdemeanor under the act, or being guilty of any fraud whatever contrary to the true intent of the act. Before any discharge is granted, the bankrupt is required to take and subscribe an oath, to the effect that he has not done, suffered or been privy to any act, matter or thing specified in the act, as a ground for withholding such discharge, or as in- validating it if granted. A bankrupt, who has been discharged, becoming a bankrupt a second time on his own application, is not again entitled to a discharge, if his estate is insufficient to pay seventy per centum of the debts proved against it, unless the assent in writing of three-fourths in value of the creditors, whose claims have been proved, is filed at or before the time of application for a dis- charge ; but this provision does not apply to a bankrupt, who has paid all debts owing by him at the time of any previous bankruptcy, or who has been voluntarily released therefrom by his creditors. Any question of fact raised by specifi- cations in writing of grounds of objection to the bankrupt's discharge, may be ordered by the Court to be tried at a stated session of the District Court. No debt created by fraud or embezzle- ment of the bankrupt, or by his defalcation as a public officer, or while acting in any fiduciary capacity, is discharged, but such debt may be proved, and the dividend there- on shall be a payment on account thereof. The discharge of the bankrupt from any debt, does not discharge or affect any per- son liable for the same debt, with him as partner, joint contractor, endorser, surety or otherwise. The original Act of March 2, 1867, as amended by that of July 27, 1868, provided that no discharge should be granted to a debtor, in proceedings commenced subse- quently to January 1, 1869, whose assets should not be equal to fifty per centum of the claims proved against his estate, upon which he was liable as principal debtor, unless the assent in writing of a majority in number and value of his creditors, to whom he had become liable as principal debtor, and who had proved their claims, was obtained to such discharge, but by an amendment of Julj' 14, 1870, the second clause (the clause just referred to) of the 33d section of the provisions of the original act and amendment thereof of July 27, 1868^ were made inapplicable to all debts con- tracted prior to January 1st, 1869, the effect of which is to make the latter class of debts dischargeable, whether or not the assets be equal to fifty per centum of the claims proved. A discharge duly granted releases (with the exceptions before stated) the bank- rupt from all debts, claims, liabilities and demands, wliich have been or might have been proved against his estate, and is pleadable as a complete bar to any suit brought on such debts, by a simple aver- ment that on the day of its date such dis- charge was granted, setting the same forth verbatim ; and the certificate thereof is conclusive evidence in favor of the bankrupt, of the fact and regularity of the discharge. Any creditor, however, whose debt is proved or provable, may, on the ground that the discharge was fraudu- lently obtained, at an}' time within two years after the date thereof, apply to the Court which granted it, to set aside and annul the same. The Court shall there- upon cause reasonable notice to be given to the bankrupt of the application, and order him to appear and answer the same; and if it is found that the fraudulent acts OF BANKRUPTCY OF TRADERS. 132 builders, calenderers, carpenters, curriers, cattle or sheep salesmen, coach proprietors, cow keepers, dyers, fullers, keepers of inns, taverns, or any of them so set forth by said creditor are proved, and tliat the creditor had no knowledge of the same until after the grantinor of the discharge, the discharge of said bankrupt shall be set aside ; but if the acts alleged are not proved, or are found to have been known to the creditor before the granting of the discharge, judg- ment shall be rendered in favor of the bankrupt, and the validity of his dis- charge will not be affected. h. If a person, being insolvent, or in con- templation of insolvency, within four months before the filing of a petition by or against him, with a view to give a pre- ference to any creditor or person having a claim against him, or who is under any liability for him, procures any part of his property to be attached, sequestered or seized in execution, or makes any pay- ment, pledge, assignment, transfer or con- veyance of any part of his property, directly or indirectly, absolutely or condi- tionally, the person receiving such pay- ment, pledge, assignment, transfer or con- veyance, or to be benefited thereby, or by such attachment, having reasonable cause to believe such person is insolvent, and that such attachment, payment, pledge, assignment or conveyance is made in fraud of the provisions of the act, the same shall be void, and the assignee may recover the property or the value of it from the person so receiving it, or so to be benefited ; and if any person, being insolvent, or in contemplation of insol- vency or bankruptcy, within six months before the filing of the petition by or against him, makes any payment, sale, as- signment, transfer, conveyance or other disposition of any part of his property to any person, who then has reasonable cause to believe him to be insolvent, or to be acting in contemplation of insolvency, and that such payment, sale, assignment, transfer or other conveyance is made with the view to prevent his property from coming to his assignee in bankruptcy, or to prevent the same from being distributed under the act, or to defeat the object of, or in any way impair, hinder, impede or delay the operation and effect of, or to evade any of the provisions of the act, the sale, assignment, transfer or conveyance shall be void, and the assignee may reco- ver the property or the value thereof as assets of the bankrupt ; and if such sale, transfer or conveyance, is not made in the usual and ordinary course of business of the debtor, the fact shall be prima facie evidence of fraud. Contracts for withdrawal of opposition to the bankrupt's discharge are rendered void, and the penalty for entering into such a contract by any creditor, is a for- feiture of all share in the estate, and double the value of the money, goods, chattels or securities so obtained, to be recovered by the assignee for the benefit of the estate. i. Partnerships may be adjudged bank- rupt on the petition of all the partners, or any one of them, as well as upon a credit- or's petition, the proceedings being the same as in individual bankruptcies, ex- cept that the joint stock or property must be kept separate by the assignee (who is to be chosen by the partnership creditors,) from the separate estate of each partner; the joint estate being first applied to the pa3'ment of the partnership debts, and the separate estates, first to the payment of the respective separate creditors ; and if there be any surplus of joint estate, it shall be added, according to the respective interest of the partners, to their respective separate estates, and any surplus of sepa- rate estate to the joint estate, the discharge to be granted to each partner the same as if the proceedings had been against him alone. If copartners reside in different districts, the Court in which the petition is first filed retains exclusive jurisdiction over the case. j. The provisions of the act also apply to all moneyed, business or commercial corporations and joint stock companies, 132 OF CHOSES IN ACTION. hotels or coffee houses, lime burners, livery stable keepers, market *gardeners, millers, packers, printers, shipowners, shipwrights, •- ' -' victuallers, warehousemen, wharfingers, scriveners receiving other upon the petition of any officer of such corporation, duly authorized by vote of the majority of the corporators, at any legal meeting called for the purpose, or upon the petition of a creditor, and the like proceedings may be had as in the bankruptcy of natural persons, but no allowance or discharge shall be granted to such corjjoratious, or any officer or member thereof. k. The act then proceeds to set forth the following acts of bankruptcy, for the com- mission of which, any person residing and owing debts as before set forth, (in regard to voluntary applications,) may, upon the petition of one or more of his creditors, the aggregate of whose debts provable under the act amounts to at least two hun- dred and fifty dollars, provided such peti- tion is brought within six months after the act of bankruptcy shall have been committed, be declared bankrupt, viz : Departing, after the passage of the act, from the state,district or territory, of which he is an inhabitant with intent to defraud his creditors ; or when absent with such intent, remaining absent, and concealing himself to avoid legal process in any action for the recovery of a debt or demand provable under the act ; or concealing or removing of any of his property, to avoid its being attached, taken or sequestered on legal process ; or making any assignment, gift, sale, conveyance or transfer of his estate, property, rights or credits, either within the United States or elsewhere, with intent to delay, defraud, or hinder his creditors ; or the being arrested and held in custody, under or by virtue of mesne process, or exe- cution, issued out of any court of any state, district or territory, within which such debtor resides, or has property, founded upon a demand in its nature provable against a bankrupt's estate under the act, and for a sum exceeding one hundred dol- lars, and the remaining in force of such process, without being discharged by pay- ment or in any other manner provided by the law of such state, district, or territory applicable thereto for a period of seven days ; or the being actually imprisoned for more than seven days in a civil action founded on contract, for the sum of one hundred dollars or upwards; or when being bankrupt or insolvent, or in con- templation of bankruptcy or insolvency, the making of any payment, gift, grant, sale, conveyance or transfer of money or other property, estate, rights, or credits or the giving of any warrant to confess judg- ment ; or the procuring or suffering of his property to be taken on legal process, with intent to give a preference to one or more of his creditors, or to any person or persons, who are or may be liable for him as" endorsers, bail, sureties or otherwise) or with the intent by such disposition of his property to defeat or delay the opera- tion of the act; or (by amendment of July 14, 1870) if a banker, broker, merchant, trader, manufacturer or miner, the fraudu- lent stoppage of payment, or the stoppage or suspension and the nonresumption of payment of his commercial paper within a period of fourteen days. (As to what is commercial paper in this connection, see Shea, 3 B. R. 46 ; Lowen- stein, 2 Id. 99 ; Hollis, 3 Id. 82 ; Innes v. Carpenter, 4 Id. i39. As to suspension of payment thereof, see Thompson, 3 B. R. 45 ; Brown, 4 Id. 188 ; Massachusetts Brick Co., 5 Id. 408.) Upon the filing of a petition as afore- said, the court directs an order to show cause, to be served on the debtor, why the prayer of the petition should not be grant- ed, at a time to be specified in the order, not less than five days from the service thereof. The court may also at this stage of the proceedings by injunction restrain the debtor, or any other person, from mak- ing any transfer or disposition of any part of the debtor's property, and if there is probable cause for believing that the OF BANKRUPTCY OF TRADERS. 133 men's moneys or estates into their trust or custody, persons insuring against perils of the sea, and all persons using the trade of merchandise by way of bargaining, exchange, bartering, commission, consignment, or otherwise in gross or by retail, and all persons who either for themselves, or as agents or factors for others, seek their living by buying or selling, or by buying and letting for hire, or by the workmanship of goods or commodities.' But no farmer, grazier, common laborer, or workman for hire, receiver-general of the taxes, or member of or subscriber to any incorporated commercial or trading companies established by charter or act of parliament, was to be deemed as such a trader liable to become bankrupt.(/) And this enumeration has been repeated in the Bank- ruptcy Act, 1869, with the addition of sharebrokers, stockbrokers and stockjobbers. (^) An attorney or solicitor, as such, is not a trader within the bankrupt law ; but if he is in the habit of receiving his clients' money into his own hands and investing it for them, and charg- ing a compensation for so doing, in addition to his charges for other pro- (/) Stat. 12 & 13 Vict. c. 106, s. 66. (ff) Stat. 32 & 33 Vict. c. 71, Schedule 1. debtor is about to leave the district, or re- move or cause his goods to be removed, may issue a warrant for arrest of the banlirupt, and provisional seizure of his estate. If proper service of the order to show cause has been made, as may have been required thereby, the court shall pro- ceed summarily to hear the allegations of the petitioner and debtor, and if the debtor demand it in writing, may order a trial by jury to ascertain the fact of the alleged bankruptcy. If the facts set forth in the petition are found not to be true, the pro- ceedings will be dismissed; if proved, or in default of appearance by the debtor, the court will adjudge him to be a bank- rupt. (The case is then generally referred to a register in bankruptcy, and the pro- ceedings are the same as in a case of vol- untary bankruptcy, the bankrupt being required to furnish schedules in the same manner as if he had proceeded volun- tarily). I. The act also provides for the settlement of the estate by trustees, if three-fourths in value of the creditors, whose claims have been proved, shall so resolve at the first meeting, or at any meeting specially called for that purpose — the creditors nom- inating the trustees, who are to act un- der the direction of a committee of the creditors. Such an arrangement is en- tirely subject to the approval of the court. If approved, the trustees become vested with the rights and powers of assignees, the proceedings being still considered proceedings in bankruptcy, the bankrupt being entitled to apply for his discharge in the same manner as if no such resolu- tion had been passed. The act then proceeds to set forth cer- tain misdemeanors in relation to bank- ruptcy (as to which see U. S. v. Prescott, 4 B. R. 29 ; U. S. v. Geary, Id. 115), and pre- scribes the fees and costs in the proceedings. 1 The bankrupt act of the United States applies, as it will have been seen, to all debtors without regard to the fact of their being traders or not, but the term trader is used therein in certain connections (see ante page 132, note 2 ff, k), and has been held to mean any person, who upon the principles of commercial law may be in- cluded within that term: Cowles, 1 B.R.42. See also Rogers, 3 Id. 139. 133 OF CIIOSES IN ACTION. fessional business, he will be liable to become bankrupt as a scrivener receiving other men's moneys into his trust.(A) An alien or denizen is within the bankrupt law ; * and so is a married woman carrying on trade for lier separate use by the custom of London, (i)^ or whilst her husband is undergoing sentence of transportation. (A:) But an infant under the age of twenty-one years cannot be a bankrupt, because by the law of P^-jqi-i England he cannot be *made liable on contracts entered into by him in the course of trade.(?) A person within the bankrupt laws becomes bankrupt by committing an act of bankruptcy. The following acts, if done with intent to defeat or delay the creditors of a trader, were acts of bankruptcy within the Act of 1849, namely, if any such trader should depart this realm, or being out of this realm should remain abroad, or depart from his dwelling- house, or otherwise absent himself, or begin to keep his house, or sufier himself to be arrested or taken in execution for any debt not due, or yield himself to prison, or suffer himself to be outlawed, or procure him- self to be arrested or taken in execution, or his goods, moneys or chat- tels to be attached, sequestered or taken in execution,^ or make or cause {h) Malkin v. Adams, 2 Rose 28 ; Ex parte Bath, Mont. 82, 84, where the cases are collected. See also Wilkinson v. Candlish, 5 Ex. Rep. 91, 97 ; Ex parte Dufaur, 2 De Gex, M. & G. 246. (t) Ex parte Carrington, 1 Atk. 206. \k) Ex parte Franks, 7 Bing. 762 (E. C. L. R. vol. 20) ; 1 M. & S. 1. {I) Belton V. Hodges, 9 Bing. 365, 370 (E. C. L. R. vol. 23). 1 Goodfellow, 3 B. R. 114. ' In the United States this would depend on her ability to make contracts, which is determinable only by the laws ol the re- spective states. See Howland, 2 B. R. 114; Russell V. Russell, 3 Id. 39 ; Graham v. Stark, 3 Id. 92 ; Slichter, 2 Id. 107. ' See ante, page 132, note 2 k. When a firm is insolvent, it is an act of bankruptcy foramemberthereoftosufferits property to be taken on legal process, Avith intent to give a preference to a creditor : Black, 1 B. R. 81. See also Kohlsaat v. Hoguet, 5 B. R. 159 ; Haskell r. Ingalls, Id. 205; Wilsony. City BankofSt. Paul, Id. 270. Confession of judgment by an insolvent, if the intent be to give a preference, is an act of bankruptcy without regard to any question of fraud : Sutherland, 1 B. R. 140 ; Fitch, 2 Id. 164. But in deciding whether the giving of a warrant to confess judg- ment is an act of bankruptcy, the charac- ter of the debtor's business may be taken into consideration : Leeds, 1 B. R. 138. An insolvent debtor commits an act of bank- ruptcy, by confessing a judgment and allowing his property to be taken in exe- cution issued thereon, with intent to give a preference : Craft, 1 B. R. 89. See also Vogle V. Lathrop, 4 Id. 146 ; Hood v. Kar- per, 28 Leg. Int. 340 ; s. c. 5 B. R. 358. But it has been held that, suffering a sale to take place from inability to resist, is not an act of bankruptcy, though the effect be to give a preference : Rankin v. F. A. & G. C. Railroad Co., 1 B. R. 196 ; Wright V. Filley, 4 Id. 197. But the weight of authority does not seem to sustain these . last mentioned cases, for it has been held that mere sufferance of property to be OF BANKRUPTCY OF TRADERS. 13i to be made, either within this realm or elsewhere, any fraudulent grant or conveyance of any of his lands, tenements, goods or chattels, or make or cause to be made any fraudulent surrender of any of his copyhold lands or tenements, or make or cause to be made any fraudulent gift, delivery or transfer of any of his goods or chattels.(w) It was also an act of bankruptcy for a trader to lie in prison for debt for fourteen days, or, having been committed or detained for debt, to escape out of prison or custody.' But the Bankruptcy Act, 1861, provided that no debtor should be adjudged bankrupt on the ground of having lain in prison as aforesaid, unless, having been summoned, he should not offer such security for the debt in respect of which he was imprisoned or detained as the commissioner or registrar, whose duty it would otherwise be to *adjudicate, should deem reasonably sufficient. (w) The act for the abolition of imprisonment for debt(o) has now rendered this provision unnecessary. And the Bankruptcy Act, 1869, (/>) has summed up the above-mentioned acts of bankruptcy in the following terms : — [*135] (ffi) Stat. 12 & 13 Vict. c. 106, s. 67 ; Ex parte Bland, 6 De Gex, M. & G. 151 ■ John- son V. Fesenmeyer, 25 Beav. 88; 3 De Gex & Jones 13; Pennell v. Reynolds, 11 C. B. N. S. 709 (E. C. L. R. vol. 104) ; Ex parte Wensley, 1 De Gex, J. & S. 273 ; Topping v. Keysell, 16 C. B. N. S. 258 (E. C. L. R. vol. Ill) ; Young v. Fletcher, 3 H. & C. 732. (n) Stat. 24 & 25 Vict. c. 134, s. 71. (o) Stat. 32 & 33 Vict. c. 62. Ip) Stat. 32 & 33 Vict. c. 71, s. 6. taken on legal process by an insolvent debtor, by refraining from going into vol- untary bankruptcy, is an act of bank- ruptcy : Dibblee, 2 B. R. 185 ; Wells, 3 Id. 95 ; Davidson, Id. 106 ; Campbell v. Trader's National Bank, Id. 124 ; Smith v. Bu- chanan, 4 Id. 133. The taking of pro- perty by a receiver appointed by a state Court, is taking under legal process veithin the meaning of section 39 of the bankrupt act: Clark & Bininger, 3 B. R. 99 ; s. c. 4 Id. 77. 1 See ante, page 132, note 2 k. Where adebtor was arrested on mesne pro- cess of a state Court, uponadebt of overone hundred dollars, founded on contract, and was released from close custody on bail, but said process was not discharged within seven days, the said debtor not having been actually imprisoned for more than seven days on said order of arrest, was held not to have committed an act of bankruptcy, the bankrupt act requiring that there should have been actual im- prisonment for more than seven days in a civil action founded on contract to con- stitute an act of bankruptcy ; an action founded on any demand in its nature provable against a bankrupt's estate (in which the merely being held in custody for a period of seven days constituted an act of bankruptcy), t)eing held not to in- clude a civil action founded on contract : Davis, 3 B. R. 89. Where it is proved that the bankrupt has been imprisoned but seven days, exclusive of the first day, this of itself is not sufficient to support an adjudication of bankruptcy: Huntw.Pooke, 5 B. R. 161. 135 OF CHOSES IN ACTION. (1.) That the debtor has, in England or elsewhere, made a convey- ance or assignment of his property to a trustee or trustees for the benefit of his creditors generally :^ (2.) That the debtor has, in England or elsewhere, made a fraudulent conveyance, gift, delivery, or transfer of his property or of any part thereof: ^ (3.) That the debtor has, with intent to defeat or delay his creditors, done any of the following things, namely, departed out of Eng- land, or being out of England remained out of England ; or being a trader departed from his dwelling-house, or otherwise absented himself; or begun to keep house; or suffered himself to be outlawed. Most of the above acts of bankruptcy have been such ever since a bankrupt was first defined by the statute of Elizabeth " touching orders for bankrupts. "(9') Bankruptcy Avas then considered as a crime, and the bankrupt was called " an offender. "(r) But in modern times bankruptcy has been looked upon as the proper remedy for a trader in embarrassed cir- cumstances. He gives up all his property to his creditors, to be divided rateably amongst them ; and, if his behavior has been free from serious (g) Stat. 13 Eliz. c. 1. (r) Stat. 13 Eliz. c. 1, s. 10 ; 2 Black Com. 471. ' See anfe, page 132, note 2 k. A general assignment for the benefit of creditors, made since the passage of the Bankrupt Act of 1867, is an act of bank- ruptcy : Perry v. Langley, 1 B. R. 155 ; Grow V. Ballard, 2 Id. 69 ; Goldschmidt, 3 Id. 41 ; Pierce & Holbrook, Id. 61 ; Smith, Id. 98; Spicer v. Ward, Id. 127 ; Stubbs, 4 Id. 124; Barnes v. Rettew, 28 Leg. Int. 124; (otherwiseasto one made priorto June 1st 1867: Wells, 6 Int.Rev.Rec. 181). Coti- trh: Langley v. Perry, 2 B. R. 180 ; (but it must be entirely clear from taint of fraud: Crawford, 2 Id. 181) ; Kintzing, 3 Id. 52 ; Sedgwick v. Place, 1 Id. 204. See also Arledge, 1 Id. 195; Broome, 3 Id. 113. But such assignment is voidable only and not void : Pierce & Holbrook, 3 B. R. 61 ; Barnes v. Rettew, 28 Leg. Int. 124 ; and the assignee thereunder will be entitled to compensation for his services rendered in the premises, and may set off the amount thereof in an action by the assignee in bankruptcy for the balance in his hands : Catlin v. Foster, 3 B. R. 134. Contrd: Stubbs, 4 Id. 124. See also Burk- holdert'.Stump,4 B. R. 191. Denialofthe bankrupt himself is not sufficient to dis- prove that a general assignment was made in contemplation of bankruptcy: Brod- hcad, 2 B. R. 93. 2 See ante, page 132, note 2 k. An assignment with intent to hinder, de- lay or defraud creditors, is an act of bank- ruptcy, whether the assignor be solvent or insolvent : Randall, 3 B. R. 4. But an as- signment by an instrument void for want of a stamp, will not have such effect : Dunham, 2 B. R. 9. A sale of a stock of goods not made in the usual and ordi- nary course of the debtor's business is ^7-?OT« /aa'e fraudulent : Deane, 2 B. R. 29. But it is only prima facie so, and the pre- sumption may be rebutted: Babbitt v. Walbrun, 4 B. R. 30. OF BANKKUPTCY OF TRADERS. 135 blame, he obtains a discharge from past liabilities. Accordingly by the Bankruptcy Act, 1861, *a person was enabled to commit an rj^-iqftn act of bankruptcy by making a formal declaration of his inability -^ to meet his engagements. (s) So the seizure and sale of the goods of a trader under an execution upon any judgment^in a personal action for the recovery of any debt or money demand exceeding fifty pounds was an act of bankruptcy. (^) The filing of a petition by or against a debtor in any court having jurisdiction for the relief of insolvent debtors in insolvency or bankruptcy in any of Her Majesty's dominions, colonies, or depend- encies, and the adjudication of any act of insolvency or bankruptcy on such petition, was also evidence of an act of bankruptcy.(M) An act of bankruptcy might also have been committed by non-payment after what was called a judgment debtor summons. Every judgment creditor who was entitled to sue out a writ of capias ad satisfaciendum{x) against the debtor in respect of any debt amounting to 50?., exclusive of costs, might at the end of one week from the signing of judgment have sued out against any trader, whether he were in custody or not, a summons, called a judgment debtor summons, requiring him to appear, and to be examined respecting his ability to pay the debt.(?/) In like manner, where any decree or order of a court of equity, or order in bankruptcy, insolvency, or lunacy, directing the payment of money, had been dis- obeyed by the debtor, after having been duly served on him, and the person entitled to the money, or interested in enforcing payment of it, had obtained a peremptory order fixing a day for payment, and the debtor being a trader, should not within seven days after service on him of the peremptory order, or within seven days after the day fixed by the peremptory order for payment (which *should last have happened), have paid the money, or secured, p^., 07-1 or tendered, or compounded for it, to the satisfaction of the creditor, the creditor might at the end of those seven days have sued out against the debtor a judgment debtor summons.(2) And if after service of such summons the debtor should not have paid the debt and costs, or secured or compounded for the same to the satisfaction of the creditor, the court might, on the appearance of the debtor, or if he should not have appeared having no lawful impediment allowed by the court, have adjudged him bankrupt.(a) The Act of 1849 contained a further provision, that on a proper afiidavit of debt being made by any (s) Stat. 24 & 25 Vict. c. 134, s. 72. {t) Sect. 73. (m) Sect. 75. (z) See ante, p. 102. {y) Sect. 76. (z) Sect. 77. (a) Sect. 83. 137 OF CHOSES IN ACTION. creditor, stating, amongst other things, the delivery to the trader per- sonally, or to some adult inmate at his usual or last known place of abode or business, of written particulars of his demand, with notice requiring immediate payment, such trader might be summoned to appear before the bankrupt court either to admit the demand, or to swear that he verily believed that he had a good defence to such demand or to some part of it. And in such case the court was empowered to require the trader to enter into a bond with two sureties to pay such sum as should be recovered, together with such costs as should be given in any action which should have been or should be brought for the recovery of such demand or any part thereof.(i) And if he admitted the demand, and did not satisfy the creditor within seven days next after the filing of such admission, he committed an act of bankruptcy on the eighth day after the filing of such admission, provided a petition for adjudication of bankruptcy were filed against him within two calendar months from the filing of the creditor's affidavit. (c) There were other attendant provisions which it is [-^-|OQ-| now unnecessary *to state, as the only other acts of bankruptcy beyond the three above referred to((i) are stated by the Bank- ruptcy Act, 1869, (e) in the following terms : — (4.) That the debtor has filed in the prescribed manner in the court a declaration admitting his inability to pay his debts: (5.) That execution issued against the debtor on any legal process for the purpose of obtaining payment of not less than fifty pounds has in the case of a trader been levied by seizure and sale of his goods :^ (6.) That the creditor presenting the petition has served in the pre- scribed manner on the debtor a debtor's summons requirino^ the debtor to pay a sura due, of an amount of not less than fifty pounds, and the debtor being a trader has for the space of seven days, or not being a trader has for the space of three weeks, succeeding the service of such summons, neglected to pay such sum, or to secure or compound for the same. But no person shall be adjudged a bankrupt on any of the above grounds unless the act of bankruptcy on which the adjudication is grounded has occurred within six months before the presentation of the (b) Stat. 12 & 13 Vict. c. 106, ss. 78, 79. (c) Sect. 81. (d) Ante, p. 135. (g) Stat. 32 & 33 Vict. c. 71, s. 6. 1 See ante, p. 132, note 2 k, p. 134, note 3. OF BANKRUPTCY OF TRADERS. 138 petition for adjudication ; moreover, the debt of the petitioning creditor must be a liquidated sum due at law or in equity,* and must not be a secured debt, unless the petitioner state in his petition that he will be ready to give up such security for the benefit of the creditors in the event of the debtor being adjudicated a bankrupt, or unless the petitioner is willing to give an estimate of the value of his security, in which latter case he may be admitted as a petitioning creditor to the extent of the balance of the debt due to him after deducting the *valueso esti- r-^^ qq-, mated, but he shall, on an application being made by the trustee within the prescribed time after the date of adjudication, give up his security to such trustee for the benefit of the creditors upon payment of such estimated value. When an act of bankruptcy has been committed, any single creditor, or two or more creditors if the debt due to such single creditor, or the aggregate amount of debts due to such several creditors, from any debtor, amount to a sum of not less than fifty pounds, may present a petition to the court, praying that the debtor be adjudged a bankrupt, and alleging as the ground for such adjudication any one or more of the above-men- tioned acts or defaults, included under the expression "acts of bank- ruptcy. "(/) The truth of the petition is sworn to by the petitioning creditor ;(^) and at the hearing the court shall require proof of the debt of the petitioning creditor, and of the trading, if necessary, and of the (/) Stat. 32 & 33 Vict. c. 71, s. 6 ; ante, pp. 135, 138. (g) Stat. 32 & 33 Vict. c. 71, s. 80, par. (1). 1 See ante 132, note 2 fc. partners, that he may proceed against one Whilst the adjudication stands unre- alone : Melick, 4 B. R. 26; see also Stevens, voked, all inquiry into the validity of the 5ld. 112. A creditor who holds a mortgage petitioning creditor's debt is precluded: upon the property of his debtor can pro- Fallon, 2 B. R. 92. See also Clascn, 3 ceed against the debtor by petition in Id. 22. Such a debt need not be due bankruptcy, provided the security falls at the time of the alleged bankruptcy : short of a full indemnity by two hundred Clasen, 3 B R. 22 ; Linn v. Smith 4 Id. and fifty dollars or more : Alexander, 4 B. 12; Alexander, Id. 45. A single creditor, R. 45. The reduction of the indebtedness whose debt is secured by a lien on lands of the petitioning creditor below two of greater value than the amount of his hundred and fifty dollars, will disable him debt, will not be permitted to abandon all from maintaining proceedings in bank- remedies open to him for the collection of ruptcy : Ouimette, 3 B. R. 140 ; Skelley, 5 Id. his debt, and use the bankruptcy court for 214. The petitioning creditor is entitled the purpose : Johann, 3 B. R. 36. An adjudi- ' to payment of expenses of instituting pro- cation of bankruptcy may be made against ceedings in bankruptcy: Williams, 2 B. R. one partner only on a joint debt. The 28 ; Moses, 3 Id. 1 ; N. Y. Mail Stamship partnership creditor has such an interest Co., Id. 185. in the separate property of any one of the 139 OF CIIOSES IN ACTION. act of bankruptcy, and if satisfied with such proof shall adjudge the debtor to be a bankrupt. (A)* Formerly a commission of bankruptcy under the great seal issued in every case, whereby certain persons were appointed commissioners for (A) Stat. 32 & 33 Vict. c. 71, s. 8. 1 See anle, p 132, note 2 k. The petition should state the facts clearly, or the debtor may decline to answer it: Randall, 3 B. R. 4. If defective, it may be amended after argument and before judgment thereon : Waite, 1 B. R. 84. An amendment merely formal will be allowed, but not one going to the whole foundation of the proceedings : Craft, 2 B. R. 44; Crowley, 1 Id. 137. See also Leonard, 4 Id. 182. The burden of proof is on the petitioning creditor ; he must establish his debt before giving evidence of acts of bankruptcy : Brock v. Hoppock, 2 B. R. 2. A voluntary petition filed pending in- voluntary proceedings undetermined, will have no effect, and an adjudication made thereon will be set aside : Stewart, 3 B. R. 28. When in the case of a petition in in- voluntary bankruptcy, the unlawful intent is the necessary consequence of the act charged, as in the case of the payment of one creditor by an insolvent debtor, a mere denial of such intent is no answer to the petition, but the respondent must also allege and prove with what intent he did the act complained of: Silverman, 4 B. R. 173. Where the debtor cannot be found in the district, in which the petition is filed, service of the order to show cause cannot be made out of such district, either personally or by leaving a copy of the order at his last or usual place of abode ; but service by publication must be re- sorted to : Alabama & Chattanooga R. R. Co. V. Jones, 5 B. R. 97. The decease of one partner, prior to any adjudication upon the question of bankruptcy, is not legal cause for dismissing the petition: Hunt v. Pooke, 5 B. R. IGl. The petition is incu- rably defective if the affidavit thereto be not subscribed by the petitioning creditor: Harley, 4 B. R. 71. So also if neither the petition, nor the deposition as to the act of bankruptcy, is signed by the petitioner: Hunt V. Pooke, 5 B. R. 161. The deposi- tion of a witness to acts of bankruptcy can not be amended, because it is the proof, upon which the order to show cause issues, and without which the whole proceeding is defective : May v. Harper, 4 B. R. 156. If the petitioning creditor de- sires to discontinue proceedings and have his petition dismissed, he may do so before adjudication, without giving notice to other creditors of the alleged bankrupt. Until adjudication, the only parties to the proceedings are the petitioning creditor and the debtor. The other creditors must file a new petition, or petition to be sub- stituted under the last clause of the 42d section of the bankrupt act. Any creditor wishing to be so substituted, must appear on the day to which proceedings have been adjourned, and on that day petition to be substituted. When on such adjourned day the petitioning creditor does not ap- pear and proceed, and the understanding with the debtor is that such failure to ap- pear shall be equivalent to a dismissal, and no other creditor appears to be sub- stituted, the proceedings are at an end: Camden Rolling Mills Co., 3 B. R. 146; Olmsted, 4 Id. 71 ; see also Karr v. Whit- taker, 5 Id. 123. The service of an in- junction on any person in the bankruptcy proceedings, does not give him the right to contest or vacate the adjudication, that being a matter in which he can have no interest: Karr v. Whittaker, 5 B. R. 123. See also Boston, Hartford & Erie R. R. Co., 5 Id. 232. OF BANKRUPTCY OF TRADERS. 139 the purpose of directing that particular bankruptcy. (z) Subsequently a Court of Bankruptcy was erected in London, and certain fixed commis- sioners appointed, by any one of whom the duties of a commissioner were to be performed in all cases of bankruptcies in London. (yt) The creditor presented a formal petition to the Lord Chancellor, whereupon a fiat in bankruptcy issued, whereby the *creditor was author- ized to prosecute his complaint against the trader in the Court ^ J of Bankruptcy, or before one of the commissioners of that court.(Z) And more recently fixed commissioners were appointed throughout the country, each of whom had a separate district, and formed a court of record. (m) But by the Bankruptcy Act, 1861, jurisdiction in bank- ruptcy was vested in the judges of the County Courts, except those of the metropolis. (w) And provision was made for the reduction of the number of the London commissioners to three.(o) And her Majesty was empowered, upon any vacancy in the ofiice of country commissioner, to transfer, by order in council, the jurisdiction of such commissioner to any of the judges of the County Courts within the district. (p) But the Bankruptcy Act, 1869, has now abolished all the London commissioners and also all the country district courts, and has provided for the ap- pointment of a chief judge in the London Bankruptcy Court, and for the transfer of all the country business to the County Courts •,{q) subject to powers reserved to the Lord Chancellor to exclude any of them from jurisdiction in bankruptcy. (r)^ (t) Stat. 13 Eliz. c. V, s. 2 ; 6 Geo. IV. c. 16, s. 12. {k) Stat. 1 & 2 Will. IV. c. 56. (I) Stat. 1 & 2 Will. IV. c. 56, s. 12. {m) Stats. 5 & 6 Vict. c. 122, s. 59 et seq. ; 12 & 13 Vict. c. 106, ss. 6-11. {n) Stat. 24 & 25 Vict. c. 134, s. 3. (o) Sect. 2, {p) Sect. 4. [q) Stat. 32 & 33 Vict. c. Tl, ss. 59, 60, 128, 130. (/•) Sect. 79. y ^ See ante p. 132, note 2 a. against proceedings in another Court: The jurisdiction of the District Courts in Richardson, 2 B. R. 74 ; Campbell, 6 Int. bankruptcy is superior and exclusive : Bar- Rev. Rec. 174; Burns, Id. 182. Contra: row, 1 B. R. 125. See also Bowie, Id. 185. Reed, Id. 21 ; Jacoby, Id. 149 ; Metcalf, Id. ButithasbeenheldbytheSuperior Court of 223; Irving v. Hughes, 2 B. R. 20. See New York City, that nothing in the bank- also Davidson, 2 Id. 49 ; Clark & Bininger, rupt act declares the United States Courts 3 Id. 123 ; Snedaker, Id. 155 ; Donaldson, the only forums, where the distribution of 6 Int. Rev. Rec. 199; Fuller, 4 B. R. 29; a debtor's property can be consummated, Wilbur, 3 Id. 71. Where no allegation is and that the jurisdiction of other tribunals made, impeaching the validity under the of competent authority, is neither expressly bankrupt act of the transfer to, and lawful nor impliedly excluded : Clark & Bininger, custody b}', receivers appointed by a state 3 B. R. 129. The District Court in bank- Court, of property formerl^^ in the posses- ruptcy has no power to grant injunctions sion of a bankrupt, the District Court has 13 140 OF CnOSES IN ACTION, The fiat was abolished by tlie Act of 1849 ; and the debt, the trading, and the act of bankruptcy having been proved, the trader is adjudged a no jurisdiction upon the application of the assignee of such bankrupt, to interfere with tlic custody of such receivers: Clark & 15ininger, 3 B. R. 130. See also Alden V. Boston, Hartford and Erie R. R. Co., 5 Id. 230. A state Court after the institu- tion of proceedings in bankruptcy, may nevertheless entertain such applications and make such orders as are necessary to preserve ^the existence of a mechanic's lien, which has attached prior to such bankruptcy proceedings : Clifton v. Foster, 3 B. R. 162. See also Coulter, 5 Id. 64. As to when and how far proceedings in other courts against a bankrupt Avill be stayed, pending the bankruptcy and the determination of the question of dis- charge : see Iloyt v. Freel, 4 B. R. 34 ; Maxwell v. Faxton, Id. 60 ; Merritt v. Glid- den, 5 Id. 157. As to applications for leave to commence suits against a bank- rupt: see Ghirardelli, 4 B. R. 42. The District Court, in which the bank- ruptcy proceedings are pending, or the Circuit Court for thai district, can, in a case where a suit is brought in a state Court by an alleged mortgage creditor to foreclose his mortgage, after the proceed- ings in bankruptcy are instituted, enjoin the plaintiff therein from further prosecu- ting the same, but the Circuit Court or District Court of another district, has no bankruptcy jurisdiction to entertain such an application for an injunction: Markson V. Ileaney, 4 B. R. 165. See also Sherman V. Bingham, 5 Id. 34. The Circuit Courts of the United States have no jurisdiction of a case either at law or in equity, in which a state is plaintiff against its own citizens. Such jurisdiction is not conferred upon the Circuit Courts by the Bankrupt Act ot 1867 : The State of North Carolina v. Trustees of University, 5 B. R. 466. The Circuit Court may entertain a bill of an assignee to redeem a mortgage : Dwight V. Ames, 2 B. R. 147. As to the jurisdiction of the respective District Courts between themselves, as determined by the residence of the bankrupt, see Belcher, 1 B. R. 202 ; Bailly, Id. 177; Little, 2 Id. 97; Magie, 1 Id. 138, 153; Wiggin, Id. 90; Prankard, Id. 51 ; Fogerty & Gerrity, 4 Id. 148 ; Wat- son, Id. 197; Leighton, 5 Id. 95. As to jurisdiction when petitions are filed in different districts, see Leland, 5 Id. 222 ; see also Foster & Pratt, 3 Id. 57 ; Penn, 5 Id. 30. The District Court has power to release a bankrupt from arrest on state process, in an action upon a debt that may be discharged in bankruptcy: Glaser, 1 B. R. 73. See also Kimball, 2 Id. 74; Borst, Id. 62. Otherwise if the arrest were prior to the institution of proceed- ings in bankruptcy: Walker, 1 B. R. 60; llazleton, 2 Id. 12. See also Minon v. Van" Nostrand, 4 Id. 28. But the bankrupt Court has no power to discharge a bank- rupt from arrest, on mesne process from a state Court in an action of tort in the nature of deceit, and evidence is not ad- missible to contradict the averments in the declaration : Devoe, 2 B. R. 11 ; Pat- terson, I Id. 58; Pettis, 2 Id. 17. Nor on final process: Whitehouse, 4 Id. 15. Nor will a bankrupt be discharged from arrest for a debt contracted in a fiduciary capa- city as a commission merchant: Kimball, 2 B. R. 114. See also Jacoby, 6 Int. Rev. Rec. 149. The District Court may appoint a receiver to take possession of property, which has been conveyed by a bankrupt for the benefit of creditors : Sedgwick v. Place, 3 B. R. 35. The marshal under a warrant issued in accordance with section 40 of the Bankrupt Act, may take posses- sion of the property of the bankrupt, wheresoever and in whose hands soever he may find it : Briggs, 3 B. R. 157. See also Harthill, 4 Id. 131 ; Marks, 2 Id. 175. But the District Court does not possess the power to order in a summary way the sale of real or personal estate, although the same is claimed by the assignee in bank- ruptcy, even though the title to the same is in dispute, if it also appears that the estate in question is in the actual posses- OF BANKRUPTCY OF TRADERS. 140 bankrupt by the court to which the petition is presented. (s) And the Bankruptcy Act, 1869, provides that a copy of an order of the court adjudging the debtor to be bankrupt shall be published in the London Gazette, and be advertised locally in such manner (if any) as may be ^prescribed, and the date of such order shall be the date of the r^-, 4-1-1 adjudication for the purposes of the act, and the production of a copy of the Gazette containing such order as aforesaid shall be conclu- sive evidence in all legal proceedings of the debtor having been duly ad- judged a bankrupt and of the date of the adjudication. (i?) Previously to the Bankruptcy Act, 1869, the estate of the bankrupt vested in his assignees.^ These were in modern times of two kinds ; (s) Stat. 32 & 33 Vict. c. 71, s. 8. (t) Sect. 10. sion of a third person, holding the same as owner and claiming absolute title to and dominion over it as his own property, whether derived from the debtor before he was adjudged bankrupt, or from some former owner : Knight v. Cheney, 5 B. R. 305. The refusal of the Court to grant a discharge because the bankrupt had not applied therefor within one year from the adjudication, is no bar to new proceedings by the bankrupt: Farrell, 5 B. R. 125. Registers in bankruptcy have the same powers as the district judges when there is no contest: Gettleson, 1 B. R. ITO; Lanier, 2 Id. 59 ; Brandt, Id. 76 ; they may allow amendments : Morford, 1 Ben. 264 ; Perry, 1 B. R. 2 ; Watts, 2 Id. 145 ; Orne, 6 Int. Rev. Rec. 116; Heller, 5 B. R. 46; Carson, Id. 290 ; receive surrender of bankrupt: Hasbrouck, 6 Int. Rev. Rec. 115 ; as to control of cases before them, see Hyman, 2 B R. 107 ; their power as to discharge: Bellamy, 6 Int. Rev. Rec. 127 ; Puffer, 2 B. R. 17. Certificate of question by register must be of an issue of fact or law actually raised : Pulver, 1 Ben. 381; Watts, 2 B. R. 145; Haskell, 4 Id. 181; Sturgeon, 1 Id. 131 ; Wright, Id. 91 ; Levy, 6 Int. Rev. Rec. 163 ; Fredenburg, 1 B. R. 34 ; Peck, 3 Id. 186. Revision of ques- tions by the Circuit Court arising in the course of the proceedings in the District Court, must be by petition and not by appeal: Reed, 2 B. R. 2. No appeal lies from the adjudication to the Circuit Court : O'Brien, 6 Int. Rev. Rec. 182. As to appeals from the District Court to the Cir- cuit Court, see Kyler, 3 B. R. 11 ; Benja- min V. Hart, 4 Id. 138 ; Place v. Sparkman, 4 Id. 178. The general revisory jurisdic- tion of the Circuit Court, extends to all decisions of the District Court or district judge at chambers, which cannot be re- viewed upon appeal or writ of error under the provisions of the bankrupt act : Alex- ander, 3 B. R. 6. See also Mittledorfer, Id. 9 ; York & Hoover, 4 B. R. 156 ; Place V. Sparkman, Id. 178 ; Clark & Bininger, 3 Id. 122. No appeal lies from the Cir- cuit Court to the Supreme Court of the United States, from a decree on a petition for review under the revisory jurisdiction of the Circuit Court : Morgan v. Thornhill, 5 B. R. 1. 1 See ante p. 132, note 2 b. Creditors holding security cannot vote for assignee : Davis, 6 Int. Rev. Rec. 149 ; Contra : Bolton, 1 B. R. 83, nor can a claimant whose claim is unliquidated : Orne, 1 Ben. 361. Solicitation of votes of creditors for assignee will not be sanc- tioned by the court: Anon. 2 B. R. 100; see also Bliss 6 Int. Rev. Rec. 116. The assignee must be a resident of the district: Havens, 1 B. R. 126; must not be related to the bankrupt: Powell, 2 B. R. 17; Bogert, 3 Id. 161 ; Zinn, 4 Id. 123. But such relationship in a remote degree 141 OF CIIOSES IN ACTION. official assignees and crerlitors' assignees. The official assignees were officers of the Bankruptcy Court, one of whom was appointed by the will not be a disqualification : Zinn, 4 B. R. 145. He may be a creditor's attorney: Clairmont, 1 B. R. 42 ; Barrett, 2 Id. 165. As to manner of election or appointment of assignee, see Scheiffer, 2 B. R. 179. Assignees may sell unencumbered assets without the order of the court: White, 1 B. R. 1, and also encumbered property in their possession, but in so doing they sell subject to lawful encumbrances : Mebane, 3 B. R. 91. A sale by the marshal under a special order of the Court, prior to the appointment of an assignee, is of the nature of a sale by a provisional assignee : Ilitchings, 4 B. R. 125. Assignees cannot recover assets from third parties by summary proceedings, but must do so by bill in equity or suit at law: Bonesteel, 3 B. R. 127 ; Ballon, Id. 177 ; New York Kerosene Oil Company, Id. 31 ; see also Barstow v. Peckman, 5 B. R. 72. Contra: Neal, 2 B. R. 82 ; Norris, 4 Id. 10. A state Court may entertain jurisdiction of an action by the assignee : Peiper v. Har- mer, 5 B. R. 252. Assignees may be au- thorized by the court, to finish the work on chattels in an incomplete and unsaleable condition : Dwight v. Ames, 2 B. R. 147. The assignee is not authorized to com- promise debts due the estate, with the consent of a committee of creditors ap- pointed at a meeting of creditors: Dib- ble, 3 B. R. 17. The title to all property in the actual possession of the bankrupt, at the time of the commencement of the proceedings in bankruptcy, passes to the assignee : Vogel, 3 B. R. 49. Property which has been conveyed by a bankrupt in fraud of creditors, prior to the passage of the bankrupt act, vests in the assignee : Goodwin v. Sharkey, 3 B. R. 138. A transfer of a policy of insurance by virtue of an assignment in bankruptcy, does not avoid the policy, although it con- tains the words " if the title of the pro- perty is transferred or changed," or "if the property is assigned this policy shall be void,"' and in case of loss by fire the as- signee will be entitled to recover the in- surance money : Starkweather v. The Cleveland Ins. Co., 4 B. R. 110, but see as to this Carow, 4 B. R. 178. When the bankrupt under a general contract has rendered partial service, but has not com- pleted the contract prior to the filing of the petition, but subsequently fulfils the the same, unless the contract for paj-ment was contingent upon full performance of the services, compensation will be appor- tioned between the assignee and the bank- rupt, in proportion to the value of the services rendered before and after the bankruptcy: Jones, 4 B. R. 114. The right of accretion as to real estate, is inseparably connected with the legal title, and passes to the assignee: Kinzie v. Win- ston, 4 B. R. 21. In Pennsylvania the dower of the wife of a bankrupt is not divested by proceedings in bankruptcy: Angier, 4 B. R. 199 ; see also Kelley v. Stranger, 3 Id. 2; Hester, 5 Id. 285. Where husband and wife join in a deed duly acknowledged so as to release the dower of the wife, if the deed be avoided in the hands of a fraudu- lent grantee, as having been executed by the bankrupt, with intent to hinder, delay and defraud creditors, the assignee in bankruptcy will be entitled to the land divested of the wife's claim to dower, and the husband's right to a homestead : Cox V. Wilder, 5 B. R. 443. Property held in trust does not pass to the assignee, but it must be property that can be followed or distinguished : Janeway, 4 B. R. 26. The title of the assignee is not such as to pre- vent the enforcement of a judgment against the bankrupt, on a portion of his property, attached more than four months before the commencement of proceedings in bank- ruptcy : Bates V. Tappan, 3 B. R. 159; Bowman v. Harding 4 Id. 5 ; see also Leighton v. Kelsey, Id. 155. Where a party appellant in a suit becomes bankrupt after appeal taken, his assignee in bankruptcy may on motion be substituted as appellant in the case : Herndon v. Howard, 4 B. R. OF BANKRUPTCY OF TRADERS. 141 court to act for every bankruptcy. Hi§ duty formerly was to receive all the personal estate and effects, and the rents and profits of the real estate, and the proceeds of the sale of the estate and effects, real and personal, of the bankrupt ; and after the appointment of the creditors' assignees, he continued to be an assignee jointly with them. But the Bankruptcy Act, 1861, provided that, at the appointment of the creditors' assignee, all the estate, both real and personal, of the bankrupt should be devested out of the official assignee and vested in the creditors' assignee. (zt) The management of the estate was then vested in the creditors' assignee ; except as to debts due to the estate not exceeding 10?., as to which the official assignee was to be deemed the sole assignee of the estate, not- withstanding the appointment of a creditors' assignee. (x) But the Bank- ruptcy Act, 1869, has abolished the official assignees, and has substituted for the creditors' assignees a trustee to be appointed at a general meeting of the creditors. And the act provides(?/) that the creditors *as- r*-i49-i sembled at such meeting shall and may do as follows : (1.) They shall, by resolution, appoint some fit person, whether a creditor or not, to fill the office of trustee of the property of the bankrupt, at such remuneration as they may from time to time determine, if any ; or they may resolve to leave his ap- pointment to the committee of inspection thereinafter men- tioned : (2.) They shall, when they appoint a trustee, by resolution declare what security is to be given, and to whom, by the person so appointed before he enters on the office of trustee: (3.) They shall, by resolution, appoint some other fit persons, not ex- ceeding five in number, and being creditors qualified to vote at such first meeting of creditors as is in the act mentioned, or (m) Stat. 24 & 25 Vict. c. 134, s. 117. (x) Stat. 24 & 25 Vict. c. 134, s. 128. (t/) Stat. 32 & 33 Vict. c. 71, s. 14. 61. The assignee is entitled to be subro- husband, prior to his bankruptcy, will be gated to the lien upon real estate of a good againt the assignee, see Sedgwick v- judgment creditor, who has proved his Place, 5 B. R. 168 ; Case y. Phelps, Id. 452. debt against the bankrupt's estate: Wallace As to what choses in (zc<«'o«, belonging to V. Conrad, 3 B. R. 10. As to the applica- the wife of a bankrupt pass to the as- tion of the rule contained in the bank- signee, see Boyd, 5 B. R. 199. As to rupt act, limiting actions by or against compensation of assignees, see Davenport, assignees to two years, see Sedgwick v. 3 B. R. 18; Pegues, Id. 19; Tully, Id. Casey, 4 B. R. 161; Krogman, 5 Id. 116; 19. As to removal of assignees, see Masterson, 4 Id. 180; Peiper v. Harnier, Mallory, 4B. R. 38 ; Price, Id. 137 ; Dewey, 5 Id. 252. 4 Id. 139 ; Blodget, 5 B. R. 472. As to what settlements on a wife by a 142 OF cnosES in action. autliorized in the prescribed form by creditors so qualified to vote, to form a committee of inspection for the purpose of superintending the administration by the trustee of the bank- rupt's property : (4.) They may, by resolution, give directions as to the manner in which the property is to be administered by the trustee, and it shall be the duty of the trustee to conform to such directions, unless the court for some just cause otherwise orders. Subject to the provisions of the act, the trustee has power to do the following things : — (1.) To receive" and decide upon proof of debts in the prescribed manner, and for such purpose to administer oaths : (2) To carry on the business of the bankrupt so far *as may be L -I necessary for the beneficial winding up of the same : (3.) To bring or defend any action, suit, or other legal proceeding re- lating to the property of the bankrupt : (4.) To deal with any property to which the bankrupt is beneficially entitled as tenant in tail in the same manner as the bankrupt might have dealt with the same ; and the sections fifty-six to seventy-three (both inclusive) of the act of the session of the third and fourth years of the reign of King William the Fourth (chap- ter seventy-four), "for the abolition of fines and recoveries, and for the substitution of more simple modes of assurance," shall extend and apply to proceedings in bankruptcy under the act as if those sections were re-enacted and made applicable in terms to such proceedings : (5.) To exercise any powers the capacity to exercise which is .vested in him under the act, and to execute all powers of attorney, deeds, and other instruments expedient or necessary for the purpose of carrying into effect the provisions of the act : (6.) To sell all the property of the bankrupt (including the goodwill of the business, if any, and the book debts due or growing due to the bankrupt) by public auction or private contract, with power, if he thinks fit, to transfer the whole thereof to any person or company, or to sell the same in parcels : (7.) To give receipts for any money received by him, which receipt shall effectually discharge the person paying such money from all responsibility in respect of the application thereof: OF BANKRUPTCY OF TRADERS. 143 (8.) To prove, rank, claim, and draw a dividend in *the mat- r*i44-| ter of the bankruptcy or sequestration of any debtor of the bankrupt :[z) The trustee may appoint the bankrupt himself to superintend the management of the property or of any part thereof, or to carry on the trade of the bankrupt (if any) for the benefit of the creditors, and in any other respect to aid in administering the property in such manner and on such terms as the creditors direct.(a) The trustee may, with the sanction of the committee of inspection, do all or any of the following things : — (1.) Mortgage or pledge any part of the property of the bankrupt for the purpose of raising money for the payment of his debts : (2.) Refer any dispute to arbitration, compromise all debts, claims, and liabilities, whether present or future, certain or contingent, liquidated or unliquidated, subsisting or supposed to subsist be- tween the bankrupt and any debtor or person who may have incurred any liability -to the bankrupt, upon the receipt of such sums, payable at such times, and generally upon such terms as may be agreed upon : (3.) Make such compromise or other arrangement as may be thought expedient with creditors, or persons claiming to be creditors, in respect of any debts provable under the bankruptcy : (4.) Make such compromise or other arrangement as may be thought expedient with respect to any claim arising out of or incidental to the property of the bankrupt, made or capable of being made on the trustee by any person or by the trustee on any person : (5.) *Divide in its existing form against the creditors, accord- r*;^45-| ing to its estimated value, any property which from its peculiar nature or other special circumstances cannot advantage- ously be realized by sale. The sanction given for the purposes of this section may be a general permission to do all or any of the above-mentioned things, or a permis- sion to do all or any of them in any specified case or cases.(&) The trustee may, with the sanction of a special resolution of the cred- itors assembled at any meeting, of which notice has been given specify- (z) Stat. 32 & 33 Vict. c. VI, s. 25. (a) Sect. 26. {b) Sect. 27. 145 OF CIIOSES IN ACTION. ing tlie object of such meeting, accept any composition offered by the bankrupt, or assent to any general scheme of settlement ef the affairs of the bankrupt, upon such terms as may be thought expedient, and with or without a condition that tlie order of adjudication is to be annulled, subject nevertheless to the approval of the court, to be satisfied by the judge of the court signing the instrument containing the terms of such composition or scheme, or embodying such terms in an order of the court. (r,') A trustee shall not, without the consent of the committee of inspec- tion, employ a solicitor or other agent, but where the trustee is himself a solicitor he may contract to be paid a certain sum by way of per- centajre or otherwise as a remuneration for his services as trustee, in- eluding all professional services, and any such contract shall, notwith- standing any law to the contrary, be lawful. ((^) Where the goods of any trader have been taken in execution in re- spect of a judgment for a sum exceeding *fifty pounds and sold, L J the sheriff, or in the case of a sale under the direction of the county court, the high bailiff or other oflficer of the county court, shall retain the proceeds of such sale in his hands for a period of fourteen days ; and upon notice being served on him within that period of a bank- ruptcy petition having been presented against such trader, shall hold the proceeds of such sale, after deducting expenses, on trust to pay the same to the trustee ; but if no notice of such petition having been presented be served on him within such period of fourteen days, or if, such notice having been served, the trader against whom the petition has been pre- sented is not adjudged a bankrupt on such petition, or on any other peti- tion of which the sheriff, high bailiff or other officer has notice, he may deal with the proceeds of such sale in the same manner as he would have done had no notice of the presentation of a bankruptcy petition been served on liim.(e) As the bankrupt was discharged from such claims only as had been or might have been proved under the bankruptcy, elaborate provisions were made by the former acts for the proof of as many demands as possible. As these provisions have now been repealed, it is unnecessary to state them. The present act provides as follows : ^ " Demands in the nature (c) Stat. 32 & 33 Vict. c. n, s. 28. {d) Sect. 29. (c) Sect. 87. 1 See ante, p. 132, note 2 c. plying with the provisions of the bankrupt Any debt, which maybe proved by com- act, is a provable debt: Rankin v. Florida, OF BANKRUPTCY OF TRADERS. 146 of unliquidated damages arising otherwise than by reason of a contract or promise shall not be provable in bankruptcy ; and no person having notice Atlantic & G. C. R. R. Co., 1 B. R. 196. Debts barred by the statute of limitations of the bankrupt's domicil, may be proved against his estate ; to prevent it, the debt must be shown to be barred throughout the United States : Ray, 6 Int. Rev. Rec. 223. Contra: Kiiigsley, 1 B. R. 66; Shep- ard, Id. 115; Harden, Id. 97. A debt created by fraud is provable : Rundle, 2 B. R. 49; Wright, Id. 14; Robinson, Id. 108; Comstock, 22 Vt. 642. Judgment for a fine imposed by a criminal court cannot be proved: Sutherland, 3 B. R. 83. Debt contracted in Confederate notes is not provable : Baily v. Milner, 35 Geo. 330 ; nor one contracted by a feme covert, un- less under special statutory regulations : Slichter, 2 B. R. 107. Reservation of usurious interest on discount of a note by a national bank, does not bar probate of the principal debt : Moore v. Exchange Bank of Columbus, 1 B. R. 123. A party holding the bankrupt's notes as collateral security, may prove them to an extent sufficient to secure dividends to the amount of his claim : Baily v. Nichols, 2 B. R. 151. The liability of a bankrupt as endorser having become absolute, a cred- itor holding a mortgage from the maker to secure the payment of the notes endorsed, may, nevertheless, prove their full amount against the estate of the endorser: Cram, 1 B. R. 132. Claims for unliquidated damages cannot be proved, without an ap- plication for the assessment thereof, as provided by the bankrupt act: Clough, 2 B. R. 59. Claims of the bankrupt for un- liquidated damages (while unliquidated), cannot be set off against that of a cred- itor: Orne, 6 Int. Rev. Rec. 84. Debts created by fraud not being dischargeable, the provisions of the bankrupt act as to waiver of action, and discharge and sur- render of judgment by creditor proving a debt, do not apply: Migel, 2 B. R. 153; Rosenberg, Id. 81 ; Robinson, Id. 108; but an action on a provable debt may be stayed until the determination of the discharge, whether the debt is dischargeable or not : Rosenberg, 2 B. R. 81 ; Migel, Id. 153. See however, Seymour, 6 Int. Rev. Re?. 60. A judgment obtained on a breach of promise to marry, is provable in bankruptcy and barred by the discharge : Sidle, 2 B. R. 77. So is a judgment in trespass for ma- licious imprisonment : Simpson, 2 B. R. 17. Where a creditor, after the filing of the bankrupt's petition, but before the first meeting of creditors, transfers his debt to another, the debt may be proved by the owner of it at the time of proof, the oath being modified to suit the facts of the case : Murdock, 3 B. R. 36. See also Frank, 5 Id. 194. When an endorser's liability has become fixed, such liability constitutes a debt due and payable from the endorser ; and may be made the foundation of involuntary as well as voluntary proceedings in bank- ruptcy : Nickodemus, 3 B. R. 55. A depo- sition, by an assignee for value of a chose in action, before bankruptcy, is sufficient to entitle him to prove his debt and be con- sidered the creditor in respect to such debt, and he has the right to take any such action or proceedings in the cause, in the name of his assignor, at his own expense, as he may be advised : Fortune, 3 B. R. 83. A creditor holding security, who through inadvertence or ignorance, has proved his debt without reference to his security, will be allowed to withdraw such proof and resort to his security: Brand, 3 B. R. 85; Clark & Binninger, 5 Id. 255. A creditor, who has received a preference, having reasonable cause to believe that the bankrupt was insolvent when it was made, but who afterwards voluntarily surrenders, before judgment or decree against him. to the assignee, all property, &c., received by him, will be allowed to prove his debt : Montgomery, 3 B. R. 97 ; Scott & McCarty, 4 Id. 139 ; Kipp, Id. 190. Contra: Walton, Id. 154. But payment cf a decree obtained against such creditor, is not a surrender within the meaning of 146 OF CHOSES IN ACTION. of any act of bankruptcy available for adjudication against the bankrupt shall prove for any debt or liability contracted by the bankrupt subse- the bankrupt act, and such creditor will not be allowed to prove his debt : Tonkin & Trewartha, 4 B. R. 13 ; Richter, Id. 67. But receiving preference as to one debt, will not affect the right to prove another, as to which no preference was received, or to receive dividends thereon : Richter, 4 B. R. G7. The Court has at all times full power and control over proofs of claims, and may allow amendments and supplemental proofs to be filed : Montgomery, 3 B. R. 108. See also Loweree, 6 Int. Rev. Rec. 115. Where a protested note (in which the bankrupt was principal), held by a bank that had discounted it, was taken up hf a new note made by the same parties, and accepted by the bank after adjudica- tion of bankruptcy, it was held that the original debt was thereby extinguished, and the liability ceased to be a claim on the estate : Montgomery, 3 B. R. 108. A creditor may prove a claim based on a debt existing at the time of proceedings commenced in bankruptcy, notwithstand- ing he may, in a suit to recover the same, have obtained judgment thereafter. The debt is not so merged in the judgment, as to deprive the creditor of his right to prove it: Brown, 3 B. R. 145 ; Vickery, Id. 171. Contra : Williams, 2 Id. 79 ; Gallison, 5 B. R. 353. See also as to this : Crawford, 3 Id. 171 ; Stevens, 4 Id. 122 ; Hunt, 5 Id. 433. If doubts are entertained by the register as to the validity of a claim, its proof may be postponed until after the election of the assignee : Herrmann, 3 B. R. 153; Stevens, 4 Id. 122. And such proof of claim, when afterwards tendered, is to be treated in all respects as if it had not been presented before the election of as- signee and postponed: Herrmann, 3 B. R. 161. As to the manner, form, and requi- sites of proper proof of claims, see Elder, 3 B. R. 165. Where securities are purchased and held by a banker or broker in a fiduciary man- ner, and are hypothecated in breach of such trust, the proceeds of other securities given by such banker or broker, who after- wards becomes bankrupt, to redeem the securities so hypothecated, cannot be claimed by the cestui que (rust from the bankrupt's estate. Such cestui que (rust can only prove his debt, and participate in dividends with other creditors : Ungewitter V. Von Sachs, 3 B. R. 178. A married woman having loaned money to her husband, to be used by him as his contribution to the capital stock of a co- partnership, for which a promissory note was given by said copartnership to him, which he transferred to her, it was held that she had a claim provable against his separate estate, and not against that of the copartnership : Frost & Westfall, 3 B. R. 180. If a contract is valid according to the lex loci contractus, a debt arising there- from is provable in bankruptcy, although by the laws of the state, in which the debtor resides, no recovery could be had on such contract : Murray, 3 B. R. 187. Where the holder of a note receives part of the amount of the same from the endorser, he is entitled to prove for the whole amount against the estate of the bankrupt maker, and holds any dividends he may receive in excess of the amount of the note in trust for the endorser. If the holder omits to prove his debt, the en- dorser is entitled to prove the note against the bankrupt's estate, and receive divi- dends upon its whole amount: Ellerhorst, 5 B. R. 144. The bankrupt's wife may prove as a creditor against his estate, for money realized by him out of her separate estate, if the evidence clearly shows that the transaction was intended to be a loan and not a gift: Blandin, 5 B. R. 39. Where the original debt has been proved and allowed, attachment costs can be proved as a general debt against the estate of the bankrupt, if made in good faith, before the commencement of proceedings in bankruptcy, without a knowledge of the insolvency of the debtor, and with no in- OF BANKRUPTCY OF TRADERS. 146 quently to the date of his so having notice. Save as aforesaid, all debts and liabilities, present or future, certain or contingent, to which the bankrupt is subject at the date of the order of adjudication, or to which he *may become subject during the continuance of the bankruptcy r:i;i j^y-i by reason of any obligation incurred previously to the date of the order of adjudication, shall be deemed to be debts provable in bank- ruptcy, and may be proved in the prescribed manner before the trustee in the bankruptcy. An estimate shall be made according to the rules of the court for the time being in force, so far as the same may be appli- cable, and where they are not applicable at the discretion of the trustees, of the value of any debt or liability provable as aforesaid, which by reason of its being subject to any contingency or contingencies, or for any other reason, does not bear a certain value. Any person aggrieved by any estimate made by the trustee as aforesaid may appeal to the court, and the court may, if it think the value of the debt or liability in- capable of being fairly estimated, make an order to that effect, and upon such order being made such debt or liability shall, for the purposes of this act, be deemed to be a debt not provable in bankruptcy, but if the court think that the value of the debt or liability is capable of being fairly estimated it may direct such value to be assessed with the consent of all the parties interested before the court itself without the interven- tion of a jury, or if such parties do not consent, by a jury, either before the court itself or some other competent court, and may give all neces- sary directions for such purpose, and the amount of such value when assessed shall be provable as a debt under the bankruptcy. " Liability " shall for the purposes of this act include any compensation for work or labor done, any obligation or possibility of an obligation to pay money or money's worth on the breach of any express or implied covenant, contract, agreement, or undertaking, whether such breach does or does not occur, or is or is not likely to occur or capable of occurring before the close of the bankruptcy ; and generally it shall include any express *or implied engagement, agreement or undertaking, to pay, or r*-|4Qi capable of resulting in the payment of money or money's worth, whether such payment be as respects amount fixed or unliquidated, as respects time present or future, certain or dependent on any one contin- gency, or two or more contingencies, as to mode of valuation capable of being ascertained by fixed rules, or assessable only by a jury, or as matter of opinion. "(/) (/) Stat. 32 & 33 Vict. c. 71, s. 31. tention to defeat the operations of the ings, and costs for attaching and keeping bankrupt act; but costs incurred after the exempt property, will be disallowed: commencement of bankruptcy proceed- Preston, 5 B. R. 293. 148 OF CHOSES IN ACTION. * The landlord or other person to whom any rent is due from the bank- rupt may at any time, either before or after the commencement of the bankruptcy, distrain upon the goods or effects of the bankrupt for the rent due to him from the bankrupt, with this limitation, that if such dis- tress for rent be levied after the commencement of the bankruptcy it shall be available only for one years rent accrued due prior to the date of the order of adjudication, but the landlord or other person to whom the rent may be due from the bankrupt may prove under the bankruptcy for the overplus due for which the distress may not have been available.((/) When any rent or other payment falls due at stated periods, and the order of adjudication is made at any time other than one of such periods, the person entitled to such rent or payment may prove for a propor- tionate part thereof up to the day of the adjudication, as if such rent or payment grew due from day to day.(/i)^ Interest on any debt provable in bankruptcy may be allowed by the trustee under the same circumstances in which interest would have been allowable by a jury if an action had been brought for such debt.(iy * If any bankrupt is at the date of the order of adjudication '- -I liable in respect of distinct contracts as member of two or more distinct firms, or as a sole contractor, and also as member of a firm, the circumstance that such firms are in whole or in part composed of the same individuals, or that the sole contractor is also one of the joint con- tractors, shall not prevent proof, in respect of such contracts, against the properties respectively liable upon such contracts.(y}^ {g) Stat. 32 & 33 Vict. c. 71, s. 34. {h) Sect. 35. (i) Sect. 36. {/) Sect. 37. 1 See ante, page 132, note 2 c. Id. 25 ; Walker v. Barton, 3 Id. 63 ; Joslyn, A provision similar to this is contained Id. 118; McGrath, 5 Id. 254; Trim, Id. in the United States Bankrupt Act. 23. If the assignee elects to accept a The landlord may be entitled to accru- lease held by the bankrupt, he renders ing rent, as storage, for the time that the himself liable on behalf of the estate for premises are occupied by the assignee: rent, from the date of the filing of the peti- Appold, 1 B. R. 178; Walton, Id. 154. tion : Laurie, 4 B. R. 7. As to whether rent is payable, otherwise ^ No express provision of this kind is to than other debts, would seem to depend be found in the United States Bankrupt upon the fact, whether or not it partakes Act, but it has been held that a creditor of the nature of a lien by the laws of the in proving his debt may include the in- respective states: see Appold, 1 B. R. 178, terest due thereon: Orne, 1 Ben. 361. where rent not exceeding one year was ^ \ji analogous provision is contained allowed as a preferred claim : Wynne, 4 in the United States Bankrupt Act. B. R. 5 ; Terrell, 2 Id. 100 ; Merrifield, 3 OF BANKKUPTCY OF TRADERS. 149 The trustee, with the consent of the creditors, testified by a resolution passed in general meeting, may from time to time, during the continu- ance of the bankruptcy, make such allowance as maybe approved by the creditors to the bankrupt out of his property for the support of the bank- rupt and his family, or in consideration of his services if he is engaged in winding up his estate.(^)^ Where there have been mutual credits, mutual debts, or other mutual dealings between the bankrupt and any other person proving or claiming to prove a debt under his bankruptcy, an account shall be taken of what is due from the one party to the other in respect of such mutual deal- ings, and the sum due from the one party shall be set oif against any sum due from the other party, and the balance of such account, and no more, shall be claimed or paid on either side respectively ; but a person shall not be entitled under this section to claim the benefit of any set-off against the property of a bankrupt in any case where he had, at the time of giv- ing credit to the bankrupt, notice of an act of bankruptcy committed by such a bankrupt and available against him for adjudication. (?)^ A creditor holding a specific security on the property *of the r*i cat bankrupt, or on any part thereof, may, on giving up his security, prove for his whole debt. He shall also be entitled to a dividend in re- spect of the balance due to him after realizing or giving credit for the (/c) Sect. 38. (1) Sect. 39, 1 By the 14th section of the United States tion or other process or order of any Court, Bankrupt Act of 1867, the bankrupt is al- by the laws of the state in which the bank- lowed his necessary household and kitchen rupt has his domicil, at the time of the furniture, and such other articles and commencement of the proceedings in bank- necessaries as the assignee shall designate ruptcy, to an amount not exceeding that and set apart, having reference in the allowed by such state exemption laws in amount, to the family, condition and cir- force in the year 1864. As to the foregoing cumstances of the bankrupt, but altogether exemptions, see Cobb, 1 B. R. 106 ; Ruth not to exceed in value in any case the sum 6 Int. Rev. Rec. 166 ; Thornton, 2 B. R. of five hundred dollars; and also the 68; Lawson, Id. 19; Safer, 1 Id. 147 wearing apparel of the bankrupt and that Edwards, 2 Id. 109; Jackson, Id. 158 of his wife and children ; and his uniform. Perdue, Id. 67; Feely, 3 Id. 15; Noakes arms and equipments, if he is or has been 1 Id. 164 ; Bennett, 2 Id. 66 ; Parish, Id. 62 a soldier in the militia, or in the service Grifiin, Id. 85 ; Lambert, Id. 138 ; McLean of the United States; and such other pro- Id. 173; Watson, Id. 174; Whitehead, Id perty as was, or thereafter should be ex- 180; Summers, 3 Id. 21; Taylor, Id. 38 empted from attachment or seizure or levy Brown, Id. 60 ; Young, Id. Ill ; Asken, Id on execution, by the laws of the United 142; Rupp, 4 Id. 25; Beckerkord, Id. 59 States; and such other property not in- Schwartz, Id. 189; Stevens, 5 Id. 298 eluded in the foregoing exceptions, as is Welch, Id. 348; Hunt, Id. 493. exempted from levy and sale upon execu- ^ See ante, p. 132, note 2 c. 150 OF CHOSES IN ACTION. value of his security, in manner and at the time prescribed. A creditor hohlinir such security as aforesaid, and not complying with the foregoing conditfons, shall be excluded from all share in any dividend.(m)i As the bankruptcy of a person consists in his committing an act of bankruptcy, and not in his being adjudged bankrupt, his assignees, when appointed, became entitled to all the real and personal estate of which (m) Stat. 32 & 33 Vict. c. 71, s. 40. 1 Sec ante, p. 132, note 2 d. As to power of assignee to sell mortgaged property, see Dwightr. Ames, 2 B. R. 147 ; Stewart, Id. 42 ; Salmons, Id. 19 ; Colum- bian Metal Works, 3 Id. 18; Kahley, 4 Id. 124 ; Hanna, Id. 39. As to liquidation of liens: Winn, 1 B. R. 131 ; Schnepf, 6 Int. Rev. Rec. 214; Ilambright, 2 B. R. 157; Armstrong y. Rickey, 2 Id. 150; High, 3 Id. 46 ; restraint of action of lien creditors for collection of his debt : Donaldson, 6 Int. Rev. Rec. 199 ; but where an execu- tion creditor has been so enjoined, he is entitled to a summary hearing : Hafer, 1 B. R. 163. The assignee cannot make up out of the general funds, any difference between the net proceeds of the sale of mortgaged pro- perty, and the amount due the mortgage creditor: Purcell, 2 B. R. 10. See also, Snedaker, 4 Id. 43. If the property con- stituting the security is not worth the sum due the secured creditor, the assignee has no duties in regard to it: Lambert, 2 B. R. 138. A lien creditor can only prove for the bahmce of his debt after deducting the value of the property: Winn, 1 B. R. 131. See also, Bridgman, Id. 59 ; Bolton, Id. 83. He is not compelled to surrender his secu- rities before proving his claim ; he is deemed a general creditor after they are exhausted: Ruehle, 2 B. R. 175. He may also make proof without necessarily ascer- taining the value of his securities : Bigelow, 1 B R. 186. Where encumbered property is sold by the assignee, the lien creditor is entitled to the proceeds, deducting only the cost of proving his claim; there is no prior claim thereon for the general expenses in bank- ruptcy : Ilambright, 2 B. R. 157. A cred- itor secured by a deed of trust with a power of sale, must prove his debt as one holding security, and obtain permission of the Court to have the security sold. A sale made without such permission will be set aside by the Court : Davis v. Carpenter, 2 B. R. 125. See also, Frizelle, 5 Id. 122 ; Lee V. Franklin Avenue German Savings Institution, 3 Id. 53. As to what securities, sales, conveyances, liens, &c., are valid, see York & Hoover, 3 B. R. 163 ; Griffiiths, Id. 179; Scott, Id. 181; Jenkins v. Mayer, Id. 189; Wynne, 4 Id. 5 ; Freeman, Id. 17; Potter V. Coggeshall, Id. 19; Fuller, Id. 29 ; Hunger & Champlin, Id. 90 ; Weeks, Id. 116; Fox w. Eckstein, Id. 123; Swope V. Arnold, 5 Id. 148; Vogle v. Lathrop, 4 Id. 146 ; Wood, 5 Id. 421 ; Warren v. Tenth National Bank, Id. 479. A creditor who has a lien upon the pro- perty of his debtor by virtue of a judg- ment, &c., by filing a petition for adjudi- cation of bankruptcy of such debtor with- out reference to such lien, thereby waives and relinquishes the same, and stands be- fore the Court as an unsecured creditor: Bloss, 4 B. R. 37. Security taken at the time of advances made in good faith to an indebted person to enable him to carry on his business, is not invalidated by either the terms or policy of the bankrupt act, since the debtor gets a present equivalent for the new debts he creates, and the secu- rity he gives: Darby's Trustees v. Boat- mens' Saving Institution, 4 B. R. 195. Where a security by way of mortgage is given more than four months before bank- ruptcy, a change in the form or even in the substance of the deeds made within four months of the bankruptcy, will be pro- tected if no greater value be put into the creditor's hands at that time than he had before: Sawyer v. Turpin, 5 B. R. 339. OF BANKRUPTCY OF TRADERS. 150 he Avas possessed at the hour when he committed the act ;(n) though the legal estate in the bankrupt's lands remained vested in him until con- veyed to the assignees by their appointment.(o) The title of the assignees, it was said, related back to the act of bankruptcy. The consequences of this rule were formerly very serious, as mQ,nj bond fide transactions were overturned in consequence of an act of bankruptcy having been com- mitted by one of the parties without the knowledge of the other. But after several partial remedies,(p) it was enacted by the Act of 1849, that all payments really and bond fide made by any bankrupt, or by any per- son on his behalf, before the filing of a petition for adjudication of bank- ruptcy, and all payments really and bond fide made to any bankrupt before the filing of such petition, and all conveyances by any bankrupt bond fide made and executed before the filing of such petition, and all contracts, dealings and transactions by and with any bankrupt really and bond '^fide made and entered into before the filing of such peti- r^.-iF:-in tion, and all executions and attachments against the lands and tenements of any bankrupt bond fide executed by seizure, and all execu- tions and attachments against the goods and chattels of any bankrupt bo7id fide executed and levied by seizure and sale before the filing of such petition, should be deemed to be valid, notwithstanding any prior act of bankruptcy by such bankrupt committed ; provided the person so dealing with or paying to or being paid by such bankrupt, or at whose suit or on whose account such execution or attachment should have issued, had not at the time of such payment, conveyance, contract, dealing or transaction, or at the time of executing or levying such execution or attachment, or at the time of making any sale thereunder, notice of any prior act of bankruptcy by him committed. (^) The eifect of this enact- ment was to substitute the filing of the petition for adjudication for the aet of bankruptcy, so far as respects all persons dealing and acting bond fide and without notice of the act of bankruptcy. On this subject the Bank- ruptcy Act, 1869, now contains the following provisions. It enacts that the bankruptcy shall be deemed to have relation back and to commence at the time of the act of bankruptcy, (r)^ and then provides as follows : — (w) Thomas v. Desanges, 2 B. & Aid. 58G ; Roach v. Great Western Railway Com- pany, 1 Q. B. 51 (E. C. L. R. vol. 41). (o) Doe d. Esdaile v. Mitchell, 2 M & Sehv. 446. Ip) Stat. 46 Geo. III. c. 135, s. 1 ; 49 Geo. III. c. 121, s. 2 ; 50 Geo. III. c. 137, s. 1 ; 6 Geo. IV. c. 16, ss. 81, 82, 84 ; 2 & 3 Vict. c. 11, s. 12 ; 2 & 3 Vict. c. 29. (y) Stat. 12 & 13 Vict. c. 106, s. 133. (r) Stat. 32 & 33 Vict. c. 71, 3. 11. ^ See ante, p. 132, note 2 b. discharge does not vest in the assignee : Property acquired by the bankrupt be- Patterson 6 Int. Rev. Rec, 157 ; Levy, tween the filing of the petition and the Id. 163 ; Roseufield, 1 B. R. 60. The pro- 151 OF CnOSES IN ACTION. Nothing in tliis act contained shall render invalid, — (1.) Any payment made in good faith and for value received to any bankrupt before the date of the order of adjudication by a per- son not having at the time of such payment notice of any act of bankruptcy committed by the bankrupt, and available a<^ainst him for adjudication : (2.) Any payment or delivery of money or goods belonging to a bank- rupt, made to such ^bankrupt by a depositary of such money ^ ""-^ or foods before the date of the order of adjudication, who had not at the time of such payment or delivery notice of any act of bankruptcy committed by the bankrupt, and available against him for adjudication: (3.) Any contract or dealing with any bankrupt, made in good faith and for valuable consideration, before the date of the order of adjudication, by a person not having, at the time of making such contract or dealing, notice of any act of bankruptcy committed by the bankrupt, and available against him for adjudication. (s) Subject and without prejudice to the provisions of this act relating to the proceeds of the sale and seizure of goods of a trader, and to the pro- visions of this act avoiding certain settlements, and avoiding, on the ground of their constituting fraudulent preferences, certain conveyances, charges, payments, and judicial proceedings, the following transactions by and in relation to the property of a bankrupt shall be valid, notwith- standing any prior act of bankruptcy, — (1.) Any disposition or contract with respect to the disposition of pro- perty by conveyance, transfer, charge, delivery of goods, pay- ment of money, or otherwise howsoever made by any bank- rupt in good faith and for valuable consideration, before the date of the order of adjudication, with any person not having at the time of the making of such disposition of property notice of any act of bankruptcy committed by the bankrupt, and avail- able against him for adjudication : («) Stat. 32 & 33 Vict. c. 11, s. 94. perty of a bankrupt vests in his assignee tliough made or received bond fide orwith- as of the date of tlie commencement of out notice : Mays v. Manufacturers Na- proceedings, and no payment by or to him tional Bank of Philadelphia, 4 B. R. 147. subsequent to that date, is valid, even OF BANKRUPTCY OF TRADERS. 153 (2.) *Any execution or attachment against the land of the p^-. rq-i bankrupt, executed in good faith by seizure before the date of the order of adjudication, if the person on whose ac- count such execution or attachment was issued had not at the time of the same being so executed by seizure notice of any act of bankruptcy committed by the bankrupt, and available against him for adjudication : (3.) Any execution or attachment against the goods of any bankrupt, executed in good faith by seizure and sale before the date of the order of adjudication, if the person on whose account such execution or attachment was issued had not at the time of the same being executed by seizure and sale notice of any act of bankruptcy committed by the bankrupt, and available against him for adjudication. (^) But any settlement of property made by a trader, not being a settle- ment made before and in consideration of marriage, or made in favor of a purchaser or incumbrancer in good faith and for valuable consideration, or a settlement made on or for the wife or children of the settlor of property which has accrued to the settlor after marriage in right of his wife, shall, if the settlor becomes bankrupt within two years after the date of such settlement, be void as against the trustee of the bankrupt appointed under the act, and shall, if the settlor becomes bankrupt at any subsequent time within tern years after the date of such settlement, unless the parties claiming under such settlement can prove that the settlor was at the time of making the settlement able to pay all his debts without the aid of the property comprised in such settlement, be void against such trustee.^ *Any covenant or contract made by a p^-, r^,-, trader, in consideration of marriage, for the future settlement ^ upon or for his wife or children of any money or property wherein Ke bad not at the date of his marriage any estate or interest, whether vested or contingent, in possession or remainder, and not being money or property of or in right of his wife, shall, upon his becoming bankrupt before such property or money has been actually transferred or paid pur- suant to such contract or covenant, be void against his trustee appointed under the act. " Settlement" shall for the purposes of this sectioa include any conveyance or transfer of property. (m) And every conveyance or transfer of property, or charge thereou {t) Stat. 32 & 33 Vict. c. 71, s. 95. * (m) Sect. 91. 1 See Sedgwick v. Place, 5 B. R. 168 ; Antrims v. Kelly, 4 Id, 189. 14 154 OF CIIOSES IN ACTION. made, every payment made, every obligation incurred, and every judi- cial proceeding taken or suflfcred by any person unable to pay his debts as they become due from his own moneys in favor of any creditor, or any person in trust for any creditor, with a view of giving such creditor a preference over the other creditors, shall, if the person making, taking, paying, or suffering the same become bankrupt within three months after the date of making, taking, paying, or suffering the same, be deemed fraudulent and void as against the trustee of the bankrupt appointed under this act ;' but this section shall not affect the rights of a pur- 1 See ante, p. 132, note 3 h. The assignee may recover property con- veyed by bankrupt in fraud of creditors before the passage of the Bankrupt Act : Bradshaw v. Klein, 1 B. R. 14G. As to re- covery of property fraudulently disposed of, see Ncal, 2 B. R. 82 ; Meyer, Id. 137 ; Wilson V. Brinkman, Id. 149 ; Metzgcr, Id. 114. The assignee cannot recover the value of property transferred by the bank- rupt within four months of adjudication, without showing that a preference was thereby intended : Wadsworth v. Tyler, 2 B. R. 101. it is of no consequence whether a pref- erence given to a creditor is voluntary or the result of threats : Foster v. Hackley, 2 Am. L. T. Bank. 8 ; Wilson v. Brinkman, 2 B. R. 149; Rison v. Knapp, 4 Id. 114; Batchelder, 3 Id. 37. Although the term endorser is not spe- cifically used in the 35th section of the Bankrupt Act, in regard to preferences, yet any payment or preference to an endorser or other surety is fraudulent and void, where other elements exist in the transaction to give it that character : Ahl V. Thorner, 3 B. R. 29. To^ constitute a fraudulent preference, when the alleged bankrupt is claimed to be insolvent, he mast so be, and know himself so to be, and actually intend, and actually give, a preference to a creditor : Keys, 3 B. R. 54. Reasonable cause, which should induce a belief on fhe part of a creditor, of the insolvency of his debtor, means such a state of facts, as would put a prudent man upon inquiry as to the condition of his debtor: White v. Raftery, 3 B. R. 53. See also as to this, Stranahan v. Gregory, 4 Id. 142 ; Campbell v. Traders' National Bank, 3 Id. 124. Where a creditor has before him what the statute declares shall he. privia facie evidence of fraud, he must in law be deemed to have reasonable cause to believe the existence of such fraud, until the legal presumption is overborne 'by opposing evidence : Kingsbury, 3 B. R. 84. Where a creditor accepts a security, he is conclusively presumed to know what appears on its face, and to have reasonable cause to believe it was intended to accom- plish its ordinary and necessary effect : Graham v. Stark, 3 B. R. 93. As to what are, conveyances to hinder and delay creditors, fraudulent preferences, invalid judgments, executions, &c., see Gil- lespie V. McKnight, 3 B.R. 117 ; Adams, Id. 139J; Briggs v. Moore, Id. 149 ; Doyle, Id. 158 ; Chamberlain, Id. 174; Samson v. Burton, 4 Id. 1; Dumont, Id. 4; Tonkin & Tre- wartha, Id. 13 ; Terry & Cleaver, Id. 33 ; Bloss, Id. 37; Street v. Dawson, Id. 60 ; Allen V. Massey, Id. 75 ; Wilson v. Stod- dard, Id. 76; Martin v. Smith, Id. 83; Butler, Id. 91 ; Beattie v. Gardner, Id. 106; Rison V. Knapp, Id. 114; Kahley, Id. 124; Smith V. Buchanan, Id. 133 ; Vogle v. Lathrop, Id. 146; Gregg, Id. 150; Beers V. Placer, Id. 150 ; Martin v. Toof, Id. 158 ; Eldridge, Id. 162; Shaffer v. Fritchery, Id. 179; Antrims V. Kelly, Id. 189 ; Second Nat. Bank of Leavenworth v. Hunt,. Id. 198 ; Keating v. Keefer, 5 Id. 133 ; Hall v. Wager, Id. 181 ; Haskell v. Ingalls, Id. 205; Harvey v. Crane, Id. 218; Scammon V. Cole, Id. 257 ; Wilson v. City Bank of OF BANKRUPTCY OF TRADERS. 154 chaser, payee or incumbrancer in good faith and for valuable considera- tion, (v) In the payment of dividends no preference is given on account of the nature of the debt, whether judgment debt, bond debt, specialty or simple contract. In this respect the Court of Chancery, to which the jurisdiction in bankruptcy anciently belonged, and which now exercises an appellate jurisdiction, (a;) followed its rule that *equality is equity.^ The crown, however, may enforce pay- ment of the entire debt of a bankrupt crown debtor, notwith- ■- -' (?') Stat. 32 & 33 Vict. c. 71, s. 92. (x) Sect. 71. St. Paul, Id. 270 ; Lawrence v. Graves, Id. 279 ; Hood v. Karper, 28 Leg. Int. 340 ; s. c. 5 B. R. 358 ; Post v. Corbin, Id. 12 ; Cook- inham v. Morgan, Id. 16 ; Sawyer v. Tur- pin. Id. 339; Hunt, Id. 433; Darby's Trustees v. Lucas, Id. 437 ; Sansom v. Burton, Id. 459. Transfers made out of the ordinary course of business of a debtor are prima facie fraudulent, and in an action by an assignee in bankruptcy of such a debtor, to impeach a transaction involving such a- transfer, the burden of proof is upon the defendant to show its validity : Collins v. Bell, 3 B. R. 146 ; Wilson v. Stoddard, 4 Id. 76. The first subdivision of section 35 of the Bankrupt Act, with its limitation of four months, applies only to cases of pay- ments or convej^ances made to a creditor, in consideration of pre-existing debts, by way of preference ; while the second sub- division, with its limitation of six months, applies to other transfers and conveyances made contrary to the provisions and policy of the Bankrupt Act, or in fraud of the act ; but where a payment or conveyance, or other transaction, is fraudulent by any general rule of law other than that spe- cified in the said 35th section, the assignee may sue within two years. The pro- visions of section 39 avoiding certain acts, ar& subject to the limitations of four and six months contained in section 35 : Bean V. Brookmire, 4 B. R. 57 ; Maurer v. Frantz, Id. 142. The preference upon a judgment note is not obtained when the warrant of attorney is given, but when the judgment upon it is entered : Golson v. Neihoff, 5 B. R. 56 ; Hood V. Karper, 28 Leg. Int. 340 ; s. c. 5 B. R. 358 ; see also Lord, Id. 318. An endorser of a note who receives none of the proceeds of the same, and whose contingent liability never becomes absolute, cannot be compelled to pay to the bankrupt's assignee, the amount of the note paid by the bankrupt to the holder, and while the debtor was still carrying on business: Bean v. Laflin, 5 B. R. 333. ^ See ante, p. 132 note 2/. Judgment creditors have no priority in distribution, but share joro rata with other creditors: Erwin & Hardee, 3 B. R. 142. When trust property does not remain in specie, but has been made way witla by a bankrupt trustee, the cestui que trust has no longer a specific remedy against the estate in bankruptcy, but must come in pari passu with the other creditors : Jane- way, 4 B. R. 26. See also Ungewitter v. Von Sachs, 3 Id. 178. As to claims for wages, see Brown, 3 B. R. 177; Harthorn, 4 Id. 27. Where commercial paper is endorsed by a firm in its firm name, and also by the in- dividual names of one or more members of the firm, and the makers thereof become embarrassed, and bankruptcy ensues to the endorsers, and the liolders accept, with permission of the Court, forty per cent, from the makers, they are only entitled to 155 OF CHOSES IN ACTION. Standing the bankrupt laws.(y) And a judgment debt, if entered up one year at least before the bankruptcy, was, by the statute for extending the remedies of creditors, a charge in equity on all the bankrupt's real estate.(2) But this was altered with respect to all judgments entered up after the 29th July, 18G4, the date of the act to amend the law re- lating to future judgments, statutes and recognisances. (a) The landlord of a bankrupt might, notwithstanding an act of bankruptcy, distrain for his rent, not exceeding one year's rent accrued prior to the day of the filing of the petition for adjudication. (5) And the present act contains, as we have seen, a provision to the same effect. (c) The wages or salary of a clerk or servant of the bankrupt, for any time not exceeding three calendar months and not exceeding SOL,{d) and also the wages of any laborer or workman not exceeding 40s., might, by the Act of 1849, be ordered by the court to be paid in full ;{e) and the present act extends this exception to four months' wages or salary of a clerk or servant, not exceeding ffti/ pounds, and to the wages of any laborer or workman not exceeding two months' wages. (/) It also gives priority to rates and taxes due from the bankrupt for twelve months preceding.(^) The bank- rupt is entitled to any surplus remaining after payment of his creditors and the costs of the bankruptcy. (A)^ r*1 '^Cl *^^ ^^^ bankrupt had duly surrendered and conformed to the bankrupt law, he was formally entitled to a certificate of con- formity, by which he was discharged from all debts due by him when he became bankrupt, and from all claims and demands made provable under the bankruptcy.(2) Formerly the certificate was required to be signed by {y) Anon., 1 Atk. 262; stat. 32 & 33 Vict. c. 71, s. 49. (z) Stat. 1 & 2 Vict. c. 110, s. 13 ; Ex parte Boyle, 3 De G. M. & G. 515; s. c. 17 Jur. 979. (a) Stat. 27 & 28 Vict. c. 112, s. 1. (6) Stat. 12 & 13 Vict. c. 106, s. 129; Paull v. Best, 3 B. & S. 537 (E. C. L. R. vol. 113). (c) Stat. 32 & 33 Vict. c. 71, s. 34, ante, p. 148. (d) Stat. 12 & 13 Vict. c. 106, s. 168. {e) Sect. 169. (/) Stat. 32 & 33 Vict. c. 71, s. 32. (c,) Sect. 32. {h) Sect. 45. (i) Stat. 12 & 13 Vict. c. 106, ss. 199, 200. a dividend against tlie endorsers individu- there is reasonable cause to believe that ally, and as a firm, to an amount equal to none will be proved, are to be paid to the their claim, after deducting the forty per bankrupt, upon the filing of a petition* by cent, received from the makers: Howard him, setting forth his reasons for believing Cole & Co., 4 B. R. 185. that no creditors desire to prove their 1 Surplus funds in the hands of the as- debts, and asking that the funds shall be signee, after settlement of the estate, paid to him : Hoyt, 3 B. R. 13. "vrhexe no debts have been proved, and OF BANKRUPTCY OF TRADERS. 156 a given proportion of the creditors ;{k) but, by the Act of 1849, the court was constituted the sole judge of any objections which might be made by any creditors against allowing the certificate ; and the court might either allow the same or refuse or suspend the allowance thereof, or annex such conditions thereto as the justice of the case might require. (Z) The certificates were by this act divided into three classes. If the bank- ruptcy had arisen from unavoidable losses and misfortunes, the bankrupt was entitled to a certificate of the first class. If the bankruptcy had not wholly arisen from unavoidable losses and misfortunes, he was entitled to a certificate of the second class. And if the bankruptcy had not arisen from unavoidable losses or misfortunes, he was only entitled to a certificate of the third class.(m) But all classification of certificates was abolished by the Bankruptcy Act, 1861 ;(w) and the bankrupt, if he had properly conducted himself, became entitled to an order of discharge, which discharged him from all debts, claims or demands, provable under his bankruptcy. (o) The Bankruptcy Act, 1869, now contains the follow- ing provisions with respect to the order of discharge.^ When a bank. {k) Stat. 6 Geo. IV. c. 16, s. 122. {m) Stat. 12 & 13 Vict. c. 106, sched Z. (o) Sect. 161. (Z) Stat. 12 & 13 Vict. c. 106, s. 198. {n) Stat. 24 & 25 Vict. c. 134, s. 157. 1 See ante, p. 132, note 2 g. If there be no assets, the bankrupt may- apply for a discharge at the expiration of sixty days, though debts have been proved : Woolums, 1 B. R. 131. When debts are proved and there are assets, application for a discharge can not be filed before the expiration of six months from the adjudi- cation : Bodenheim, 2 B. R. 133. When at the time of the application for a dis- charge, the assignee has neither received nor paid any money^s on account of the estate, the case is to be regarded as one in which no assets have come to his hands : Dodge, 1 B. R. 115. See also Solis, 3 Id. 186., It is only where the bankrupt can apply for his discharge within less than six months from the adjudication, that he must apply within a year : Greenfield, 2 B. R. 98, 100. See also Willmott, Id. 7&; Schenck, 5 Id. 93. See also Martin, 2 Id. 169, — where it was held (no assets having come to the hands of the assignee), that failure to make application for a dis- charge within one year after the adjudica- tion, would preclude a discharge, the pro- visions of the statute in this respect being not merely directory, but an absolute re- quirement ; and Canaday, 3 B. R. 3, — where it was held, that it was discretionary with the Court to grant or withhold a discharge, when the application therefor is not made within a year. But refusal of a dis- charge because the application is not made in time, is no bar to new proceed- ings : Farrell, 5 B. R. 125. False swearing by the bankrupt in the affidavit annexed to his petition, must be shown to be inten- tional in order to bar his discharge : Wy- att, 2 B. R. 94. See also Keefer, 4 Id. 126 ; Smith & Bickford, 5 Id. 20. Omis- sion of names of certain creditors with their knowledge and consent, will not bar a discharge on the objection of other creditors: Needham, 2 B. R. 124. Where the property of the debtor has been at- tached by a hostile creditor, without the knowledge of the debtor, his subsequent omission to have himself adjudged a vol- untary bankrupt, will not be deemed evi- 156 OF CIIOSES IN ACTION. ruptey is closed, or at any time during its continuance, -with the assent of the creditors testified by a special resolution, the bankrupt may apply dence of his intent to give a preference, so as to bar a dischargre : Belden, 2 B. R. 14. One who ^\-as notlv creditor at the time of an allefred fraudulent removal of property, or whose claim was then barred by the statute of limitations, cannot oppose a discharge on the ground of such fraudu- lent removal : Burk, 3 B. R. 76. A fraudu- lent sale before the passage of the Bankrupt Act, is in itself insufficient to bar a dis- charge : Hussman, 2 B. R. 140 ; Rosenfield, 1 Id. 161. See also Keefer, 4 Id. 126. But see contra : Cretiew, 5 B. R. 423, where it was held that the operation of the provisions of the 29th section of the Bankrupt Act, as to fraudulent preferences, &c., which will bar a discharge, is not confined to transactions occurring after the passage of the act. As to what acts amount to a fraudulent preference so as to baradischarge,see Rosenfeld, Jr., 2 B. R. 49 ; Lewis v. Rosenham, Id. 14.5 ; Warner, 5 Id. 414. Where a debtor knows, or in reason ought to know, that he is insolvent, and makes payment of an independent debt, not in the course of trade, and with- out the creditor's knowledge of such insolvency, it is a fraudulent preference, and bars a discharge: Gay, 2 B. R. 114. But a discharge will not be withheld, when it appears solely from the bankrupt's ex- amination, that he had paid certain debts in full, a short time before he became bankrupt, no other proof being offered to show that such payments were fraudulent preferences : Burgess, 3 B. R. 47. The fair and reasonaVjle construction of section 29 of the Bankrupt Act of the United States, is, that it refuses a discharge on the ground of preference, only when the act is brought within the definition of section 35, or section 29 itself. Under the latter, it must be proved that bank- ruptcy was in contemplation, and under the former, that the creditor was a party to the fraud : Lock, 2 B. R. 123. Any creditor may oppose the discharge, whether he has proved his debt or not: Sheppard, 1 B. R. 115 ; Boutelle, 2 Id. 51 ; (but the debt must be provable, Murdock 3 B. R. 3G.) Contra : Levy, 1 Id. 66 ; Pal- mer, 3 Id. 77. Specifications of grounds of opposition to a discharge must be rea- sonably definite ; otherwise they will be disregarded : Rathbone, 1 B. R. 50 ; Hill, Id. 42 ; Beardsley, Id. 52. Upon the trial of questions of fact arising in opposition to a discharge, the burden of proof is on the creditor: Hill, 1 B. R. 42. See also Orcutt, 4 B. R. 176; Williams, Id. 187. As the discharge does not bar a debt created by fraud, the existence of such debt is no ground for refusal of the dis- charge : Rosenfield, 1 B. R. 161. See also Patterson, 1 B. R. 58; Stokes, 2 Id. 76. That the creditor's debt is a fiduciary one, is no ground for withholding the dis- charge, such debt not being affected thereby: Tracy, 2 B. R. 98. The balance due by a factor to his principal, is a fidu- ciary debt within the meaning of the act: Seymour, 6 Int. Rev. Rec. 60 ; Kimball, 2 B. R. 74. See as to this. Chapman v. For- syth, 2 How. 202 ; Lenke v. Booth, 5 B. R. 351. Where a creditor was not named in the bankrupt's schedules, and such credi- tor after discharge granted in bankruptcj-, attached by garnishee process property of the bankrupt shown in evidence to have been concealed from the Bankrupt Court, it was held that the certificate of discharge did not bind the creditor, and was no defence to his action, on the ground that it had been fraudulently obtained : Barnes V. Moore, 2 B. R. 174. A creditor may set up a fraudulent concealment by the bank- rupt of his property, against the certificate of discharge, in whatever court it may be pleaded: Perkins v. Gay, 3 B. R. 189; but see Corey v. Ripley, 4 B. R. 163, — where it was held that a discharge duly granted, when pleaded in bar to the further main- tenance of an action for prior indebtedness, in a State Court, could not be impeached in such Court, for any cause which would have prevented the granting of it, or have OF BANKRUPTCY OF TRADERS. 156 to the court for an order of discharge ; but *such discharge shall p^- ---. not be granted unless it is proved to the court that one of the been sufficient for annulling it, under the bankrupt act ; and that the power to set aside and annul a discharge thereby con- ferred upon the Federal Courts, was in- compatible with the exercise of the same power by a State Court, and that the former was paramount. The omission of a merchant or trades- man, since the passage of the act, to keep proper books of account, will bar a dis- charge, whether such omision was wilful or fraudulent or not: Solomon, 2 B. R. 94. As to the requirement of keeping books, see Nooman, 3 B. R. 63; Gay, 2 Id. 114; White, 2 Id. 119 ; Keach, 3 Id. 3 ; Littlefield, Id. 13 ; Bellis, Id. 124 ; Murdock, 4 Id. 17 ; Tyler, Id. 27 ; Bound, Id. 164 ; Burgess, 3 Id. 147 ; Coolidge, Id. 71. See as to conceal- ment of property previouslj^ assigned by a bankrupt, or of his interest in a joint estate, as a bar to his discharge, Beal, 2 B. R. 178. A bankrupt is not entitled to a discharge, unless he proves satisfactorily that he could not obtain his wife's attend- ance, upon an order made for her examin- ation : Van Tuyl, 2 B. R. 177. The dis- charge itself terminates an injunction staying proceedings in a state court, notice to dissolve being unnecessary : Thomas, 3 B. R. 7. A voluntary assignment for the benefit of creditors is a bar to a discharge : Goldschmidt, 3 B. R. 41. But see Pierce & Holbrook, Id. 61, where it was held that an assignment for the benefit of creditors without any preference, sixteen days before the filing of the debtor's peti- tion, and when a creditor proceeding ad- versarily was about to obtain a judgment, was not, in the absence of actual fraud, a bar to a discharge. Creditors, who have ratified such an as- signment, by joining in an agreement for the substitution of another assignee, are estopped from objecting to the bankrupt's discharge, on the ground of the making of such assignment : Schuyler, 2 B. R. 169. If the court, upon examining the record, upon an application for a final discharge, perceive that the bankrupt has done any act, which under the statute would be a bar to the granting of the certificate, it will refuse the discharge, although no creditor appear in opposition: Schoo, 3 B. R. 52 ; Wilkinson, Id. 74. Until a bank- rupt has made full and sufficient disclos- ures, his creditors or the assignee, cannot be required to specify objections to his discharge, or definitively abide by objec- tions, which may have been specified: Long, 3 B. R. 66. Where a bankrupt has been arrested on process issuing out of a State Court, the U. S. District Court, upon an applica- tion of the bankrupt to be discharged from such arrest pending the bankruptcy pro- ceedings, cannot properly inquire into the fact whether the debt or claim, upon which the order of arrest was founded, was or was not one from which the bankrupt would be discharged by a discharge in bankruptcy, or whether the bankrupt was liable by the state law to arrest ; but can only determine whether the State Court in its order of arrest, intended to found it on a claim or debt not dischargeable in bankruptcy : Valk, 3 B. R. 73. Where a bankrupt omitted to include in his schedule, a statement of an interest in an estate in expectancy under a will, his discharge was refused until an amendment, for which leave was granted : Connell, Jr., 3 B. R. 113. Section 33d of the U. S. Bankrupt Act (in relation to the requirement of the pay- ment of fifty per cent., or the obtaining consent of creditors as a requisite to dis- charge), should be construed in relation to the word assets, as if it read ; " The pro- ceeds of the bankrupt's property in the hands of the assignee, and subject to be divided among his creditors, must be equal to fifty per cent, of claims," &c.: Fred- erick, 3 B. R. 117 ; Webb, Id. 177 ; see also Borden, 5 Id. 128; Graham, Id. 155. The section referred to is applicable as well to involuntary as to voluntary pro- 157 OF CIIOSES IN ACTION. following conditions has boon fulfilled, that is to say, either that a divi- dend or not less than ten shillings in the pound has been paid out of his property, or might have been paid except through the negligence or fraud of the trustee, or that a special resolution of his creditors has been passed to the effect that his bankruptcy or the failure to pay ten shillings in the pound has, in their opinion, arisen from circumstances for which the bankrupt cannot justly be held responsible, and that they desire that an order of discharge should be granted to him. And the court may suspend for such time as it deems to be just, or withhold altogether, the order of dis- charge in the circumstances following : namely, if it appears to the court on the representation of the creditors made by special resolution, of the truth of which representation the court is satisfied, or by other sufficient evidence, that the bankrupt has made default in giving up to his cred- itors the property which he is required by this act to give up ; or that a prosecution has been commenced against him in pursuance of the pro- visions relating to the punishment of fraudulent debtors, contained in the "Debtors Act, 1869, "(jt?) in respect of any offence alleged to have been committed by him against the said a,ct.{q) (q) Stat. 32 k 33 Vict. c. 71, s. 48. (p) Stat. 32 & 33 Vict. c. 62, ante, p. 103. ceedings: Bunster, 5 B. R. 82. It is no ground of objection to the dis- charge of a bankrupt, that' he has caused and permitted the loss, waste and de- struction of his estate and effects, and misspent and misused the same, unless such loss, &c., occurred after the filing of the petition. The buying of goods fraud- ulently, or when the debtor knew that he could not pay for them, is not a fraud, which will prevent his discharge : Rogers, 3 B. R. 139. Want of jurisdiction is a good ground of refusal of a discharge : Penn, 3 B. R. 145. A bankrupt, who has omitted to apply for a stay of proceedings in an action against him, pending the ques- tion of his discharge, may nevertheless apply after judgment, to have supplement- ary proceedings thereon stayed, on the ground that he has been discharged, if the plaintiff's demand be one affected by the discharge : World Company v. Brooks, 3 B. R. 146. A discharge will not be refused, simply because the publication of the assignee's notice of appointment was omitted to be made: Strachan, 3 B. R. 148. But see Bushey, Id. 167, where it was held that proper notice must be given by the assignee to creditors, and that the omission of it would render the bank- rupt liable to lose his right to a dis- charge : see also Bellamy, 6 Int. Rev. Rec. 86. As to application for an- nulling discharge: see Stetson, 3 B. R. 179. Spending property in gaming, which if not so spent might be assets, will bar a discharge : Marshall, 4 B. R. 27. It is not necessary for a bankrupt to obtain consent to his discharge by creditors, to whom he is liable as an endorser. Such liability, although fixed, is a secondai-y and not a principal one, till judgment has been ob- tained against him by due process of law: Loder, 4 B. R. 50. The mere omission of the name of a creditor on the schedule of a bankrupt, is not a substantive ground for preventing or avoiding his discharge as to such ci;editor, unless the omission was wilful or fraudulent : Payne v. Able, 4 B. R. 67. A discharge cannot be granted after death of the debtor, unless there shall have been a compliance with the requirements of section 29 of the Bank- rupt Act, as to the application for a dis- charge : O'Farrell, 2 B. R. 154; see also Gunike, 4 Id. 23. OF BANKRUPTCY OF TRADERS. 157 An order of discharge shall not release the bankrupt from any debt or liability incurred by means of any fraud or breach of trust, nor from any debt or liability Avhereof he has obtained forbearance by any fraud, but it shall release the bankrupt from all other debts provable under the bankruptcy, with the exception of — (1.) Debts due to the crown : (2.) Debts with which the bankrupt stands charged at the suit of the crown or of any person for *any offence against a p^^ rr,-, statute relating to any branch of the public revenue, or at the suit of the sheriff or other public officer on a bail bond entered into for the appearance of any person prosecuted for any such offence : and he shall not be discharged from such excepted debts unless the Commissioners of the Treasury certify in writing their consent to his being discharged therefrom. An order of discharge shall be sufficient evidence of the bankruptcy, and of the validity of the proceedings thereon ; and in any proceedings that may be instituted against a bank- rupt who has obtained an order of discharge in respect of any debt from which he is released by such order, the bankrupt may plead that the cause of action occurred before his discharge, and may give the act and the special matter in evidence.(r) ^ The order of discharge shall not release any person who, at the date of the order of adjudication, was a partner with the bankrupt, or was jointly bound or had made any joint contract with him.(s)^ Until the bankrupt obtained his discharge all the real and personal property which might descend, revert, or be devised or bequeathed or come to him, became vested in his assignees. (^)^ But an uncertificated bankrupt might maintain an action for his personal labor performed after the bankruptcy, (?*) and he might also sue in respect of contracts made with himself, and also in respect of any after-acquired property, if the assignees or creditors did not interfere.(v) The court, however, r*i cq-i *was empowered by the Act of 1861 in certain cases of miscon- (r) Stat. 32 & 33 Vict. c. 71, s. 49. (s) Sect. 50. (t) Stat. 12 & 13 Vict. c. 106, ss. 141, 142. (u) Silk V. Osborne, 1 Esp. R. 140. {v.) Webb V. Fox, 7 Term Rep. 391 ; Drayton v. Dale, 2 B. & C. 293 (E. C. L. R. vol. 9) ; Crofton v. Poole, 1 B. & Ad. 568 (E. C. L. R. vol. 20). 1 See ante, p. 132, note 2 ff. ^ See ante, p. 132, note 2 i. 3 See ante, p. 151, note 1. 159 OF CIIOSES IN ACTION. duct, either to refuse or suspend the order of discharge, or to grant the same subject to any conditions touching any salary, pay, emoluments, profits, wages, earnings or income, which might afterwards become due to the bankrupt, and touching his after-acquired property.(w) The Act of 18G9 has, as we have seen,(.r) substituted the trustee for tlie assignees ; and it vests in him all the property of the bankrupt at the commence- ment of the bankruptcy, or which may be acquired by or devolve on him during its continuance.(?/) The act also contains the following provi- sions with regard to the status of an undischarged bankrupt. Wliere a person who has been made bankrupt has not obtained his discharge, then, from and after the close of his bankruptcy, the following conse- quences shall ensue : (1.) No portion of a debt provable under the bankruptcy shall be en- forced against the property of the person so made bankrupt until the expiration of three years from the close of the bank- ruptcy ; and during that time, if he pay to his creditors such additional sum as will, with the dividend paid out of his pro- perty during the bankruptcy, make up ten shillings in the pound, he shall be entitled to an order of discharge in the same manner as if a dividend of ten shillings in the pound had ori- ginally been paid out of his property : (2.) At the expiration of a period of three years from the close of the bankruptcy, if the debtor made bankrupt has not obtained an order of discharge, any balance remaining unpaid in respect of any debt proved in such bankruptcy (but without interest in the meantime) shall be deemed to be a subsist- r*1601 ^^» ^^^^ ^^ ^^® nature of *a judgment debt, and, subject to the rights of any persons who have become creditors of the debtor since the close of his bankruptcy, may be enforced against any property of the debtor with the sanction of the court which adjudicated such debtor a bankrupt, or of the court having jurisdiction in bankruptcy in the place where the property is situated, but to the extent only, and at the time and in manner directed by such court, and after giving such notice and doing such acts as may be prescribed in that be- half.(z) Any petition or copy of a petition in bankruptcy, any order or copy («-•) Stat. 24 & 25 Vict. c. 134, s. 1.^)9. (z) Ante, p. 141. (y) Stat. 32 & 33 Vict. c. 71, s. 15. (z) Sect. 54. OP BANKRUPTCY OF TRADERS. 160 of an order made by any court having jurisdiction in bankruptcy, any certificate or copy of a certificate made by any court having jurisdiction in bankruptcy, any deed or copy of a deed of arrangement in bank- ruptcy, and any other instrument or copy of an instrument, afiidavit or document made or used in the course of any bankruptcy proceedings, or other proceedings had under the Bankruptcy Act, 1869, may, if any such instrument as aforesaid or copy of an instrument appears to be sealed ■with the seal of any court having jurisdiction, or purports to be signed by any judge having jurisdiction in bankruptcy under this act, be re- ceivable in evidence in all legal proceedings whatever.(a) If a person having privilege of parliament commits an act of bank- ruptcy he may be dealt with under the Act of 1869 in like manner as if he had not such privilege. (5) If a person, being a member of the Commons House of Parliament, is adjudged bankrupt, he shall be and *remain during one year r*]^g;[-i from the date of the order of adjudication incapable of sitting and voting in that House, unless Avithin that time either the order is an- nulled or the creditors who prove debts under the bankruptcy are fully paid or satisfied. Provided that such debts (if any) as are disputed by the bankrupt shall be considered, for the purpose of this section, as paid or satisfied, if within the time aforesaid he enters into a bond, in such sum and with such sureties as the court approves, to pay the amount to be recovered in any proceeding for the recovery of or concerning such debts, together with any costs to be given in such proceedings.(c) The following regulations are made by the Bankruptcy Act, 1869, with respect to the liquidation by arrangement of the affairs of the debtor :^ (a) Stat. 32 & 33 Vict. c. 71, s. 107. (b) Sect. 120. (c) Sect. 121. 1 See ante, p. 132, note 2 I. stantial objection to the approval of the reso- The Court has power to supersede a lution for a trustee arrangement, that the bankruptcy with consent of the creditors : committee was composed of two only, one Miller, 1 B. R. 105; But see Sherburne, Id. of whom is the trustee: Sillwell, 2 B. R. 155 ; see also Morris's Estate, Crabbe 70 ; 164. The trustees under direction of the Lathrop, 5 B. R. 43. After an assignee committee may, if so ordered by the has been appointed, at a subsequent meet- Court, proceed to settle the estate just as ing of creditors, they may make an arrange- if there had been no adjudication of bank- ment by trust deed to have the assignee ruptcy, and the bankrupt was managing removed, and a trustee appointed in his his own affairs, taking care always to stead : Jones, 2 B. R. 20. It is a sub- secure legal protection to each of the 161 OF CnOSES IN ACTION. (1.) A debtor unable to pay his debts may summon a general meeting of his creditors, and such meeting may, by a special resolution as defined by the act, declare that the afi^airs of the debtor are to be liquidated by arrangement and not in bankruptcy, and may at that or some subsequent meeting, held at an interval of not more than a week, appoint a trustee, with or without a committee of inspection. (2.) All the provisions of the act relating to a first meeting of cred- itors, and to subsequent meetings of creditors in the case of a bankruptcy, including the description of creditors entitled to vote at such meetings, and the debts in respect of which they are entitled to vote, shall apply respectively to the first meet- ing of creditors, and to subsequent meetings of creditors, r*iroi *^'^^ ^^^ purposes of this section, subject to the following '- "-^ modifications : {a.) That every such meeting shall be presided over by such chairman as the meeting may elect ; and (b.) That no creditor shall be entitled to vote until he has proved by a statutory declaration a debt provable in bankruptcy to be due to him, and the amount of such debt, with any prescribed particulars ; and any person wilfully making a false declaration in relation to such debt shall be guilty of a misdemeanor. (3.) The debtor, unless prevented by sickness or other cause satis- factory to such meeting, shall be present at the meeting at which the special resolution is passed, and shall answer any inquiries made of him, and he, or if he is so prevented from being at such meeting some one on his behalf, shall produce to the meeting a statement showing the whole of his assets and debts, and the names and addresses of the creditors to whom his debts are due. (4.) The special resolution, together with the statement of the assets and debts of the debtor, and the name of the trustee appointed, and of the members, if any, of the committee of inspection,' shall be presented to the registrar, and it shall be his duty to inquire whether such resolution has been passed in manner directed by this section, but if satisfied that it was so passed, creditors. Wherever the trustees and com- it was held that proofs of debts against the mittee are satisfied that demands are cor- estate of a bankrupt must be made before rect, and require no testimony to be taken, the register, even though proceedings in they can allow the same : Darby, 4 B. R. bankruptcy have been superseded by trus- 98 ; but see Bakewell, 4 Id. 199, where tee arrangement. OF BANKRUPTCY OF TRADERS. 162 and that a trustee has been appointed with or without a com- mittee of inspection, he shall forthwith register the resolution and the statement of the assets and debts of the debtor, and such resolution and statement shall be open for inspection on the prescribed conditions, *and the liquidation by r*-|pq-i arrangement shall be deemed to have commenced as from the date of the appointment of the trustee. (5.) All such property of the debtor as would, if he were made bank- rupt, be divisible amongst his creditors shall, from and after the date of the appointment of a trustee, vest in such trustee under a liquidation by arrangement, and be divisible amongst the creditors, and all such settlements, conveyances, transfers, charges, payments, obligations and proceedings as would be void against the trustee in the case of a bankruptcy shall be void against the trustee in the case of liquidation by arrange- ment. (6.) The certificate of the registrar in respect of the appointment of any trustee in the case of a liquidation by arrangement shall be of the same effect as a certificate of the court to the like eflFect in the case of a bankruptcy. (7.) The trustee under a liquidation shall have the same powers and perform the same duties, as a trustee under a bankruptcy, and the property of the debtor shall be distributed in the same manner as in a bankruptcy ; and with the modification herein- after mentioned all the provisions of the act shall, so far as the same are applicable, apply to the case of a liquidation by ar- rangement in the same manner as if the word "bankrupt" included a debtor whose affairs are under liquidation, and the word "bankruptcy" included liquidation by arrangement; and in construing such provisions the appointment of a trustee under a liquidation shall, according to circumstances, be deemed to be equivalent to and a substitute for the presenta- tion of a petition in bankruptcy, or the *service of pi04-| such petition or an order of adjudication in bankruptcy. (8.) The creditors at their first or any general meeting may prescribe the bank into which the trustee is to pay any moneys received by him, and the sum which he may retain in his hands. (9.) The provisions of the act with respect to the close of the bank- ruptcy, discharge of a bankrupt, to the release of the trustee, and to the audit of accounts by the comptroller, shall not ap- ply in the case of a debtor whose affairs are under liquidation 164 OF CIIOSES IN ACTION. by arrangement ; but the close of tlic liquidation may be fixed, and the discharge of the debtor and the release of the trustee may be granted by a special resolution of the creditors in general meeting, and the accounts may be audited in pursu- ance of such resolution, at such time and in such manner and upon such terms and conditions as the creditors think fit. (10.) The trustee shall report to the registrar the discharge of the debtor, and a certificate of such discharge given by the regis- trar shall have the same effect as an order of discharge given to a bankrupt under the act. (11.) Rules of court may be made in relation to proceedings on the occasion of liquidation by arrangement in the same manner and to the same extent and of the same authority as in respect of proceedings in bankruptcy. (12.) If it appear to the court on satisfactory evidence that the liqui- dation by arrangement cannot, in consequence of legal diffi- culties, or of there being no trustee for the time being, or for any sufficient cause, proceed without injustice or undue delay to the creditors or to the debtor, *the court may adjudge the [*165] ^oi^QY a bankrupt, and proceedings may be had accordingly. (13.) Where no committee of inspection is appointed the trustee may act on his own discretion in cases where he Avould otherwise have been bound to refer to such committee. (14.) In calculating a majority on a special resolution for the purposes of this section, creditors whose debts amount to sums not ex- ceeding ten pounds shall be reckoned in the majority in value, but not in the majority in number.((:?) (d) Stat. 32 & 33 Vict. c. VI, s. 125. * CHAPTER V. [*166] OF BANKRUPTeY OF NON-TRADERS. Before the Bankruptcy Act, 1861, a person not in trade could not be made a bankrupt. He might, however, have become insolvent. In- solvency, strictly speaking, means a general inability to meet pecuniary engagements. (a)^ But the term was very commonly and conveniently applied to the means of getting rid of such engagements afforded by certain acts of parliament passed for the relief of insolvent debtors.^ (a) Biddlecombe v. Bond, 4 Ad. & E. 332 (E. C. L. R. vol. 31). 1 If a man's debts cannot be made in full out of his property by levy and sale on execution, he is insolvent within the meaning of the United States bankrupt law : Randall, 3 B. R. 4. Merchants unable to pay all their debts, in the usual and or- dinary course of business, as persons car- rjang on trade usually do, are insolvent within the meaning of the said act : Lewis V. Rosenham, 2 B. R. 145 ; Wilson v. Brinkman, Id. 149 ; "Wright, Id. 155 ; Mor- gan V. Mastick, Id. 163 ; Rison v. Knapp, 4 Id. 114 ; Stranahan v. Gregory, Id. 142 ; Martin v. Toof, Id. 158 ; Sawyer v. Turpin, 5 Id. 339. Aliter as to a farmer : Keys, 3 B. R. 54. The strict definition of insolvency, usually given in commercial centres, should not be applied iu country places. A party should be held insolvent only when he fails to meet his debts according to the usages and customs of the place of his business ; the rule should be in harmony with the general custom of the place : Hall V. Wager, 5 B. R. 181. 2 The lav,'s and regulations on the sub- ject of insolvency, are almost as diverse as there are states in the Union. To give a sketch of all these laws, and the judicial constructions of them, would far exceed the limits of a note. The decisions as to what is a valid preference made by a debtor in favor of a creditor, and what an invalid one, — as to what is a good assign- ment for the benefit of creditors, and what bad, — preferences having been declared void under the bankrupt law, and general assignments for the benefit of creditors, only operating, if at all, in the discretion of the assignee in bankruptcy — together with the many other questions of a like nature, relating to the peculiar system and practice of each state, may be of in- terest to the citizens of the respective states ; but it can scarcely bd expected, and it certainly would not be advantageous, to collect together these diversities, nu- merous as they are, and depending as they do almost entirely upon an interpretation of the statutes of the several states, for such a collection could result in nothing but confusion. The insolvent law of each state, is regulated by the acts of the legis- lature and judicial opinions of that state, and will be conclusive upon all its citi- zens, unless there be a conflict between the laws of a state and those of the Gen- eral Government: Griswold v. Piatt, 9 Mete. 16; Betts v. Bagley, 12 Pick. 580; Alexander v. Gibson, 1 N. & McC. 483; Clark, Assignee, &c., v. Rosenda et al., 5 Robins. 27. It is only, therefore, those questions which are of general interest, that will be here considered. 166 OF CIIOSES IN ACTION. The principal act for the relief of insolvent debtors in England vras the statute 1 .S: 2 Vict. c. 110, the former sections of which were, how- By the terra "insolvent law," as gcner- erally received, is understood a law ope- rating upon the remedy of a contract, and not upon the contract itself; discharging, indeed, the debtor from imprisonment, but not releasing his future acquisitions of property from the payment of his debt; while under the words "bankrupt law," is comprehended all those enactments, which discharge the debtor from liability upon his contract. That this distinction be- tween bankrupt and insolvent laws, though ordinarily received as true, cannot be entirely relied on, may be seen from the opinion of Chief Justice Marshall, in the case of Sturges v. Crowninshield, 4 Wheat. 194: "It is said .... that laws which merely liberate the person are insolvent laws, and those which discharge the con- tract, are bankrupt laws. But if an act of Congress should discharge the person of a bankrupt, and leave his future acqui- sitions liable to his creditors, we should feel much hesitation in saying that this was an insolvent, not a bankrupt act; and, therefore, unconstitutional. Another distinction has been stated, and has been uniformly observed. Insolvent laws ope- rate at the instance of an imprisoned debtor; bankrupt laws at the instance of a creditor. But should an act of Congress authorize a commission of bankruptcy to issue on the application of a debtor, a court would scarcely be warranted in saying that the law was unconstitutional, and the commission a nullity." Notwith- standing this decision, the district judge of Missouri, in Nelson v. Carland, pro- nounced the Act of Congress of 1841, au- thorizing a debtor to be declared a bank- rupt upon his own petition, a mere insol- vent law ; but, upon a certificate of differ- ence of opinion between the judges of the Circuit and District Courts, the Supreme Court declared, that, under the circum- stances of that case, the act did not give a power of review, and that the decision of the district judge must be regarded as final : 1 How. 269. This difficulty of dis- tinguishing between bankrupt and insol- vent laws, has, perhaps, in part, caused that diversity of opinion which has led to the holding, in some cases, that the states not only have power to pass insolvent laws, but also bankrupt laws : Ogden v. Saunders, 12 Wheat. 213 ; Woodhull et al. V. Wagner, 1 Baldw. 296 ; Shaw j;. Robins, 12 Wheat. 369; Mason v. Haile, Id. 370; Beers et al. v. Haughton, 9 Peters 330 ; Hempstead v. Reed, 6 Conn. 480; Norton V. Cook, 9 Id. 314 ; Blair, &c., v. Williams, 4 Litt. 35 ; Bronson v. Newberry, 2 Doug. 38 ; Brown v. Dillahunty et al. 4 Sme. & Mar. 725; Gray et al. v. Monroe et al., I McLean 528 ; Roosevelt v. Cebra, 17 Johns. 108; Post V. Riley, 18 Id. 54; Penniman V. Meigs, 9 Id. 325 ; Ex parte Ziegenfuss, , 2 Ired. 467 ; Smith v. Parsons, 1 Ohio 236; Alexander v. Gibson, 1 Nott & McC. 483 ; while, on the contrary, other au- thorities maintain that the state legisla- ture have no power to pass bankrupt laws: McMillan v. McNeill, 4 Wheat. 209; Golden v. Price, 3 Wash. C. C. 313 ; Farm- ers' and Mechanics' Bank of Pennsylvania V. Smith, 6 Wheat. 131 ; Glenn v. Hum- phreys, 4 Wash. C. C. 424; Medbury v. Hopkins, 3 Conn. 472 ; Ballentine et al. v. Haight, 1 Harring, 197 ; Olden et al., Exrs., V. Hallet, 2 South. 466. All the cases, however, agree, that the state gov- ernments have no power to make a law impairing the obligation of a contract, and the only question of dispute between them has been, whether a state bankrupt law impairs the obligation of a contract; some holding that it does, because we under- stand by a bankrupt law one which abso- lutely discharges the debt; and others, admitting the definition of a bankrupt law, deny that it impairs the contract, if the bankrupt law was in existence at the time when the contract was made, because the contract was then made in subserviency to existing laws. As to insolvent laws, it has been determined that inasmuch as OF BANKRUPTOY OF NON-TRADERS. 166 ever, occupied in abolishing arrest on mesne process in civil actions, and in extending the remedies of judgment creditors against the property of they, according to the ordinary accep- tation of the term, operate merely upon the remedy, and not upon the contract itself, they cannot be said to impair the obliga- tion of contracts, and are consequently valid. The effect of a discharge under the insolvent law of a state, may be re- garded as at rest, so far as regards the decisions of the Courts of the United States: Boyle V. Zacharie et al., 6 Peters 635. That other question, also, in respect to the clashing of the authority of the State and General Government, may be considered determined, for in the words of Chief Justice Marshall, in the case of Sturges v. Crowninshield, above referred to: "This difficulty of discriminating with any ac- curacy between insolvent and bankrupt laM"s, would lead to the opinion that a bankrupt law may contain those regula- tions which are generally found in insol- vent laws, and that an insolvent law may contain those which are common to a bankrupt law. If this be correct, it is ob- vious that much inconvenience would re- sult from that construction of the Consti- tution, which would deny to the State Legislature the power of acting on this subject, in consequence of the grant to Congress. It may be thought more conve- nient that much of it should be regulated by state legislation, and Congress may purposely omit to provide formany cases to which their power extends. It does not appear to be a violent construction of the Constitution, and is certainly a convenient one, to consider the power of the states as existing over such cases as the law of the Union may not reach. • But be this as it may, the power granted to Congress may be exercised or declined, as the wisdom of that body shall decide. If, in the opin- ion of Congress, uniform laws concerning bankruptcies ought not to be established, it does not follow that partial laws may not exist, or that state legislation on the subject may cease. It is not the mere ex- istence of the power, but its exercise, 15 which is incompatible with the exercise of the same power by the states. It is not the right to establish these uniform laws, but their actual establishment, which is inconsistent with the partial acts of the states." See also, Baldwin v. Hale, 1 Wall. U. S. 228. Although, since the passage of the Bankrupt Law, the consideration of the extent of the jurisdiction of the Insolvent Laws of the states may not be of as much practical importance as formerly, it is nevertheless of interest to notice the di- versity of sentiment on the subject. For general purposes, the people of this country are one. yet, in other respects, the states are necessarily foreign and in- dependent of each other: Buckner v. Fin- ley et al., 2 Peters 586 ; Emory v. Green- ough, 3 Dall. 369 ; and consequently it is to be expected that, as in the interpreta- tion of foreign contracts, the lex loci con- tractus will be regarded : Smith v. Mead, 3 Conn. 253; Hammett v. Anderson, Id. 304 ; so in the execution of the contract, the lex fori will prevail : White v. Can- field, 7 Johns. 117; Whittemore i-. Adams, 2 Cowen 626; Lowdeu et al. v. Moses, 3 McC. 93 ; Ayres et al. t'. Audibon, 2 Hill (S. C.) 601. In accordance with this we find, that a contract made in one state, is not affected by the discharge of the debtor under the insolvent law of another state: Cook V. Moffat et al., 5 How. 295 ; Smith V. Mead, 3 Conn. 253 ; Hammett z'. Ander- son, Id. 304 ; Fisher et al. v. Wheeler et al., 5 La. Ann. 271 ; Judd v. Porter, 7 Maine 337; Palmer v. Goodwin, 32 Id. 535 ; Larrabee v. Talbott, t part a reprint, with some important additions, of a previous Dinsmore v. Bradley, 5 Gray 487 ; Ander- son V. Wheeler, 25 Conn. 603 ; and that a disclmr^'c from imprisonment in one state, cannot l.e of any avail in an action brou-tht in the courts of the United States, or the courts of any other state than that wlu-re the discharge was obtained : Ogden V. Saunders, 12 Wheat. 213 ; Clay v. Smith, 3 I'cters 411; United States v. Wilson, 8 Wheat. 2:)3; WoodhuU et al. i'. Wagner, 1 Haldw. 296 ; Shaw v. Robbins, 12 Wheat. 369 ; Glenn v. Humphreys, 4 Wn.-ih. C. C. 424 ; Babcock v. Weston, 1 Gallis. 168; Hinkley i'. Mareau, 3 Mason 88 ; Beers i-. Haughton, 9 Peters 330 ; Suydam et al. v. Broadnax et al., Adnirs., 14 Id. 67; King v. Riddle, 7 Crunch 168; Woodbridge i'. Wright et al., 3 Conn. 523 ; Norton v. Cook, 9 Id 314; Watson v. Browne, 10 Mass. 337 ; Frey v. Kirk, 4 Gill & Johns. 509; Friske v. Foster, 10 Mete. 5117; Ilsley v. Merriam, 7 Id. 242; Clark V. Hatch, Id. 455; Wool et al. v. Malin, 5 Halst. 208; Vanuxem et al. v. Hazlehursts, 1 South. 202 ; Smith, Admr., V. Smith, 2 Johns. 235 ; White v. Can- field, 7 Id. 117; Sicard v. Whale, 11 Id. 104 ; Mather et al. v. Bush, 16 Id. 233 ; Whittemore «'. Adams, 2 Cowen 626; Peck t'. Hozier et al., 11 Johns. 346; James et al. i'. Allen, 1 Dall. 206 ; Ayres et al. I'. Audibon, 2 Hill (S. C.) 601; Baldwin v. Hale, 1 Wall. U. S. 223 ; in which last case it was decided that a dis- charge obtained under the insolvent laws of one state, is not a bar to an action on a note given in and payable in the same state, the party to whom the note was given having been and being of a differ- ent state, and not having proved his debt against the defendant's estate in insol- ■vency, nor in any manner been a party to those proceedings. And see Poe v. Duck, 5 Md. 1 ; Fessenden i-. Willey, 2 Allen (Mass.) 67 ; Bank v. Butler, 45 N. H. 336 ; Felch V. Bugbee, 48 Maine 9 ; Oilman v. Lockwood, 4 Wall. U. S. 409. Some cases, however, have held that if the discharge has been granted by the state in which the contract was made, it will remain good even against a resident of another state : Blanchard v. Russell, 13 Mass. 1 ; Proctor V. Moore, 1 Id. 198; Braynard r. Marshall, 8 Pick. 194; Savoye et al. v. Marsh et al., 10 Id. 594 ; Pugh v. Bussel, 2 Blackf. 394 ; Scribner v. Fisher, 2 Gray 43; Houghton v Maynard, 5 Id. 552. As a general rule, the state laws prohibiting assignments of property by a failing debtor, in anticipation of insolvency, to preferred creditors, will not be regarded in another or sister state, where a creditor of the insolvent resides, and to whom such assignment has been made : Upton v. Hubbard, 28 Conn. 274; Mead v. Dayton, Id. 33 ; Hoyt v. Shelden, 3 Bosw. 267. But there is a class of cases which would at first sight seem to be inconsis- tent with the decisions above quoted ; thus, a dischar^re obtained in Maryland, or Pennsylvania, or NewTork, has been held good in Delaware : Lewis v. Norwood, 4 Harring. 460 ; Fisher v. Stayton, 3 Id. 271 ; Beeson v. Beeson's Admrs., 1 Id. 466; Bailey v. Seal's Special Bail, Id. 367 ; so, also, a discharge obtained in Pennsylvania has been held good in New Jersey: Row- land et al. V. Stevenson, 1 Halst. 149 ; and in the same state, a discharge obtained in New York, upon a contract made in Penn- sylvania, has been held good : Hale v. Ross, Penning. 590 ; and a discharge ob- tained in Massachusetts has been pro- nounced valid in Pennsylvania: Wheelock V. Leonard, 20 Penn. St. 440 ; and a dis- charge obtained in Massachusetts, upon a contract made there, with citizens of New York, has been held good in New Hamp- shire : Brown v. Collins, 41 N. H. 405 ; but a debt contracted in Massachusetts, be- tween citizens of that state, which was evidenced by note, and endorsed to a citizen of New Hampshire, can be collected by the holder by suit in the state of New York, notwithstanding the discharge of the maker bv the insolvent laws of Massa- OF BANKRUPTCY OF NON-TRADERS. 166 statute for the same purpose,(5) by wliich the laws then existing on the subject were amended and consolidated. The relief aflForded to the debtor was his discharge from prison ; and the act accordingly only ap- plied to persons in actual custody within the Avails of a prison in Enghmd. Any such person in custody upon any process whatsoever, for or by reason of any debt, damages, costs, sum or sums of money, or in conse- quence of contempt of any court whatsoever for non-payment of money or costs, taxed or untaxed, might at any time within the *space r^j^gj-i of fourteen days next after the commencement of his actual custody, or afterAvards by permission of the court, apply by petition to the Court for the Relief of Insolvent Debtors for his discharge from such custody, according to the provisions of the act.(c) In the country the petition Avas referred for hearing to the county court of the district Avithin which the insolvent Avas in custody. (t^) The insolvent himself was formerly the only person Avho could put the machinery of the act in motion ; but afterAvards the creditor at Avhose suit the prisoner Avas com- mitted to prison or charged in execution might, if not satisfied Avithin twenty-one days next after such prisoner should have been so committed or charged in execution, himself petition the court for his share of the (b) Stat. 7 Geo. IV. c. 57, continued and amended by stat. 11 Geo. IV. & 1 Will. IV. c. 38. (c) Stat. 1 & 2 Vict. c. 110, s. 35. (d) Stat. 10 & 11 Vict. c. 102, s. 10. chusetts : Smith v. Gardner, 4 Bosw. 54 ; and see further for analogous cases : Hempstead v. Reed, 6 Conn. 480 ; Hiclcs v. Brown, 12 Johns. 142 ; Hare, Exr., y. Mo- netrie, 2 Yeates 435 ; Donaldson v. Cham- bers, 2 Dall. 100 ; Miller v. Hall, 1 Id. 229 ; Thompson v. Young, Id. 294. This incon- sistency, however, proceeds from a comity between the different states, by which the same regard is paid by one state to the in- solvent laws of a sister state, as that state would pay to the insolvent laws of the former state, as will be seen by reference to Walsh V. Nourse, 5 Binn. 381, where Chief Justice Tilghman says : " If this matter is considered on principle, it is not easy to discover by what authority any state can, by its laws, affect a debt con- tracted in another state, where the creditor is residing. I mean how it can affect a debt so as to prevent the creditor from bringing an action in another state. Every state has power over the persons residing within its territory, and there- fore, wliere a debt is discharged by the law of a state in which both plaintiff and defendant reside, another state ought to pay regard to it. Repeated decisions by my predecessors in this court have placed thd law on a footing somewhat different from the principle I iiave mentioned. Our rule has been to pay the same regard to the insolvent laws of our sister states which their courts pay to ours. If the matter were to be talien up anew, I should be for adhering to what I consider the true principle. But, not without consid- erable reluctance, I have thought myself bound by former decisions, as I have de- clared in the case of Boggs & Davidson v . Teackle," &c. ; and see, also, Mount v. Bradford, 1 Miles 17 ; Fisher v. Hyde, 3 Yeates 256 ; Smith v. Brown, 3 Binn. 201 ; Boggs et al. v. Teackle, 5 Id. 332 ; Uilliard et al. V. Greenleaf, Id. 336, and note. 167 OF cnosES in action. relief,(c) which consisted in the real and personal estate and effects of the prisoner being vested in the provisional assignee of the court for the benefit of his creditors. On the filing of the petition either of the debtor or of the creditor, a vesting order, as it was termed, was made by the court. By this order all the°real and personal estate and eflects of the prisoner, both within this realm and abroad (except his wearing apparel, bedding and other such necessaries of himself and his family, and his working tools and im- plements, not exceeding in the whole the value of twenty pounds), and all the future estate to Avhich he might become entitled until his final dis- charge, were vested in the provisional assignee for the time being of the estates and effects of insolvent debtors in England.(/) The court might r*i rsi subsequently *have appointed any proper person or persons to be ■- -^ assic^nees of such estate and effects, in whom the same accord- ingly vested on the acceptance of the appointment being signified by him or them to the court.( (/) The estate and effects of the prisoner were then sold and converted into money by the assignees in the manner directed by the act.(A) And the court had power to order that any property of the prisoner might be mortgaged, instead of being sold, if it should ap- pear to the court that his debts could be discharged by such moans.(i) If the insolvent were a beneficed clergyman, the assignees might have obtained a sequestration of the profits of the benefice for the payment of his debts.(A;) And if the insolvent were or had been an officer under government, or in the service of the East India Company, a portion of his pay, half-pay, salary, emoluments or pension might, with the written consent of the chief officer of the department to which he belonged or had belonged, be ordered to be paid to the assignees.(Z) The produce of the insolvent's estate was then divided by the assignees rateably amongst the creditors.(w) And if any prisoner should before or after his imprison- ment, being in insolvent circumstances, have voluntarily conveyed, charged or made over any of his estate to or in trust for any creditor or creditors, every such transaction was declared to be fraudulent and void as against the assignees, if made Avithin three months before the commencement of (<■) Sect. 36. In this case, however, the Insolvent Court had no adequate means of compelling the prisoner to file a schedule of his property: Hollis v. Bryant, 12 Sim. 492, 501. (/) Stat. 1 & 2 Vict. c. 110, s. 37 ; Ford v. Dabbs, 5 M. & G. 309 (E. C. L. R. a^oI. 44). (g) Stat. 1 & 2 Vict. c. 110, a. 45. (A) Sect. 47. See Wright v. Maunder, 4 Beav. 512. (i) Sect. 48. [k) Sect. 55. See Stat. 12 & 13 Vict. c. 67. (/) Stat. 1 & 2 Vict. c. 110, s. 5G. (?«) Sect. 62. OF BANKRUPTCY OF NON-TRADERS. 168 tlie party's imprisonment, or with the view or intention on his part of petitioning the court for his discharge under the act.(w) *Within fourteen days next after the making of the vesting r^^^gg-i order, or within such further time as the court thought reason- able, a schedule was required to be delivered into the court, signed by the prisoner, containing a full description of his name, trade or profes- sion, place of abode, debts and property of every description.(o) Imme- diately after the filing of this schedule, a time and place were appointed by the court for the prisoner to be brought up to be dealt with according to the act,(j?) of which due notice was given to the creditors. ((^) His schedule was then examined into on oath by the court ; and any creditor might oppose his discharge, and for that purpose might put such ques- tions to the prisoner and examine such witnesses as the court thought fit.(;*) After such examination the court was then empowered, upon the prisoner swearing to the truth of his schedule, and executing the war- rant of attorney to be mentioned afterwards, to adjudge that such pri- soner should be discharged from custody, and entitled to the benefit of the act as to the several debts and sums of money mentioned in the schedule, due, or claimed to be due, at the time of making the vesting order, from the prisoner to the persons named in his schedule, or for which such persons should have given him credit before the time of mak- in<:' such vesting order, and which were not then payable, and as to the claims of all other persons, not known to the prisoner at the time of the adjudication, who might have been endorsees or holders of any negotiable security set forth in the schedule.(s) The discharge might have been, in the discretion of the court, either immediate, or might have been post- poned for six months ;{t) and in certain cases of flagrant misconduct, it might have *been postponed for any period not exceeding three pj-jQ-i years. (w) The insolvent being thus discharged was free from any future impri- sonment, and his property was also free from execution at the suit of his creditors, for the debts mentioned in the schedule.(a;) And the costs of actions and suits,(?/) and the claims of annuity creditors,(2) might have (n) Sect. 59. See Harris v. Lloyd, 6 Beav. 426 ; Jackson v. Thompson, 2 Q . B. 887 (E. C. L. R. vol. 42) ; 3 M. & G. 621 (E. C. L. R. vol. 42). (o) Stat. 1 & 2 Vict. c. 110, s. 69. (p) Sect. 10. (q) Sect. VI. [r) Sect. 72. (s) Sect. 75 ; Leonard v. Baker, 15 M. & W. 202. (t) Sect. 76. (m) Sects. 77, 78. (x) Sects. 90, 91. (.y) Sect. 79. (z) Sect. 80. See Bennett v. Burton, 12 Ad. & E. 657 (E. C. L. R. vol. 40). 170 OF CnOSES IN ACTION. been comprised in such discharge. The discharge, however, was not, like that of bankruptcy, final and complete; for before any adjudication was made, the prisoner was required to execute a warrant of attorney, authorizing the entering up of a judgment against him in one of the superior courts at Westminster, in the name of the assignee or assignees, for the amount of the prisoner's unsatisfied debts as stated in the sche- dule. And if at any time it should have appeared to the satisfaction of the court that the prisoner was of ability to pay such debts, or any part thereof, or that he was dead leaving assets for that purpose, the court might have permitted execution to be taken out upon the judgment for such sum as it might have ordered, such sum to be distributed rateably among the creditors. (a) Under certain circumstances, an insolvent might, by other acts of parliament have obtained as complete a discharge from his debts as if he had become bankrupt.(5) The acts, however, only applied to such persons as had become indebted without any fraud, or |-^^_^, *gross or culpable negligence.(c) Any person so indebted, not being a trader wnthin the bankrupt laws, or being sucli trader, but owing debts amounting in the whole to less than 300Z., might, whether he should have already been in prison or not,[d) have applied for the pro- tection of his person from process, on making a full disclosure and sur- render of all his estate and effects for the payment of his debts. The application was made to the Court for the Relief of Insolvent Debtors. (. Bennett, 2 Giff. 117. (c) Stat. 22 & 23 Vict. c. 35, s. 6. ment, during a specified period ; Flanders is sunk for the benefit of the insurer. In on Fire Ins. 17. cases of partial loss, it is usually stipula- Perpetual insurances are sometimes ef- ted in the policj^, that the insurance shall fected on buildings against loss by fire, remain for the difference only between the In this case a premium is deposited with amount originally insured, and the amount the insurer proportionate to the amount paid or expended for the partial loss ; but of insurance desired, and so long as the as to the premium or deposit in this latter deposit remains with the insurer or the case, in some instances the policy pre- peril insured against has not happened, scribes that it shall be sunk for the benefit the insurance continues. Should a total of the insurer, in others, that only a por- loss occur by fire, and the sum insured lion of the premium proportionate to the be paid, or the premises rebuilt, the policy loss shall be sunk, should be surrendered, and the premium 180 OF CnOSES IN ACTION. person cntitlctl to the benefit of a covenant on the part of the lessee or niortf'a"or to insure against fire shall, on loss or damage by fire happeit- inor, have tlie same advantage from any then subsisting insurance of the premises, effected by the lessee or mortgagor, or by any person claiming under him, but not effected in conformity -with the covenant, as he -would have from an insurance effected in conformity with the covenant. (f?) There is a further enactment, -which will be very beneficial to the pur- chasers of leasehold property, namely, that -where, on a bo7id fide pur- chase of such property, the purchaser is furnished with a receipt for the last ])avmeiit of rent accrued due before the completion of the purchase, and an insurance is subsisting in conformity Avith the lessee's covenant to in- sure, the purchaser, shall not be liable for any breach of such covenant, r*iftn committed at any time *before the completion of the purchase, of which he had not notice before such completion. (c)^ The insurance of ships and their cargoes from the perils of the sea is a matter belonging rather to mercantile law than to the department of conveyancing.' In this kind of insurance, as well as in the others, an {d) Sect. 7. («) Stat. 22 & 23 Vict. c. 35, s. 8. The ad valorem duty on fire insurances is now re- pealed by Stat. 32 Vict. c. 14, s. 12. 1 A covenant made by a lessee to repair, or keep in repair, tlie demised premises, or to surrender, or leave them, in good repair, amounts to a contract of insurance, and obliges him to build in case the premises be burned : Payne v. Haine, 16 M. & W. 541 ; Bullock v. Dommdt, 6 Term Rep. 650; Abby r. Billups, 35 Miss. 618; Nave V. Berry, 22 Ala. 382 ; Mcintosh v. Lowen, 49 Barb. 550. But where the lease con- tained a written clause providing that the buildings are to be kept in repair, and maintained in good condition by the lessee, and printed clauses providing that at the end of the term, the lessee will quit and deliver up the premises "in as good order and condition (reasonable use and wearing thereof, fire aud other unavoidable casual- tics excepted) as the same now are or may be put into" by the lessor, and that the lessee shall keep the buildings insured against loss by fire, in a specified sum payable to the lessor, it was held that the lessee was not liable to repair injuries which occurred through ordinary wear, or fire, or other unavoidable casualty : Ball V. Wyeth, 8 Allen (Mass.) 275 ; and see Warner v. Ilitchins, 5 Barb. 666 ; Howeth V. Anderson, 25 Texas 557. Where the covenant was to maintain buildings, it was held that the lessee was bound by it at all times, and that an action might be brought against him for the breach of that covenant, before the expi- ration of the term: Buck v. Pike, 27 Vt. 529 ; but where the covenant is to make certain improvements, the lessee has the whole term to comply therewith : Pale- thorp V. Bergner, 52 Pcnn. St. 149. See further on this subject generally : West V. West, 7 J. J. Marsh. 258 ; Jacques V. Gould, 4 Cush. 384; Dean v. Jones, 1 E. & E. 484 ; Kling v. Dress, 5 Rob. (N. Y.) 521. 2 Marine insurance is a contract, where- by one party, for a stipulated sum, under- takes to indemnify the other against loss, arising from certain perils or sea risks, to which his ship, merchandise, or other in- terest, may be exposed during a certain OF INSURANCE. 181 interest in the property insured must generally belong to the party eflfecting the insurance, if the ship be a British vessel, or the goods be laden on board any such vessel. (/) It is now provided that whenever a policy of insurance on any ship or on any goods in any ship, or on any freight, has been assigned so as to pass the beneficial interest in such policy to any person entitled to the property thereby insured, the as- signee of such policy shall be entitled to sue thereon in his own name ; and the defendant in any action shall be entitled to make any defence which he would have been entitled to make if the said action had been brought in the name of the person by whom or for whose account the policy sued upon was effected.f^) Full information on the subject of marine insurance will be found in Park on Insurance, Arnould on Marine Insurance, Abbott on Shipping, and in the chapter on maritime insurance in the late J. W. Smith's admirable Compendium of Mercan- tile Law. Connected with maritime insurance are bottomry and respon- dentia. Bottomry is an agreement by which a vessel is hypothecated or pledged by the owner for the payment, in the event of her voyage terminating successfully, of money advanced to him for the necessary use of the vessel, together with interest, which interest, in *con- r^-ioQ-i sideration of the risk incurred, is generally far beyond five per "'-^ cent., formerly the legal rate.(7<) Respondentia is a somewhat similar contract with respect to the cargo, except that the borrower only is re- sponsible in the event of the safe termination of the voyage, the lender having no lien on the goods. («y (/) Stat. 19 Geo. II. c. 37, s. 1. The stamps on sea insurance are now regulated by Stat. 30 Vict. c. 23, s. 3 et seg. {g) Stat. 31 & 32 Vict. c. 8G, s. 1. (/i) Simonds v. Hodgson, 3 B. & Ad. 50 (E. C. L. R. vol. 23). \i) 2 Black. Com. 457. voyage, or a certain period of time : 1 perils being both defined by the instru- Arnould on Ins. 2. ment of agreement aided by the law: 1 Marine insurance is a contract, where- Pars, on Marine Ins. &c., p. 17. by, for a consideration stipulated to be i Bottomry is a pledge of a vessel and paid, by one interested in a ship, freight, its freight, deriving its name from the bot- or cargo subject to the risks of marine tom or keel of the ship, navigation, another undertakes to indem- Respondentia is a pledge of goods laden nify him against some or all of those risks, on board a vessel. Most modern bottomry during a certain period or voyage : 1 Phill. bonds, however, contain a pledge of ship, on Ins. 1. freight, and cargo. The terms bottomry By the contract of marine insurance, and respondentia are, however, often used the insurer for a consideration which is synonymously. By the civil law writers, called a premium, undertakes to indem- this contract is termed Contrata la ffrosse, nify the assured against loss on property or, a la ffrosse aveniure, A^mUicumfccnus and arising from perils, the property and the Contraciue trajeotitix pecunix. Emerigoa 16 182 OF CnOSES IN ACTION. gives riither an illustration tlian a ilctiui- tion of the contract. "The lender," he says, " lends to another a certain sum of money, upon the condition that, in case of the loss of the eflects tor which that sum has been lent, by any peril of the sea or vit major, the lender shall have no recourse except upon what shall remain :" 2 Emer. 385. Again, •• Bottomry is neither a sale, nor ft partnership, nor a loan properly so called, ntir an insurance. It is different from all the other contracts ; it constitutes a particular species :" Id. 389-90. Accord- ing to Valin, "Bottomry is a contract by which the lender, in consideration, that he will lose his money if the thing upon which he makes the loan should perish by acci- dent, has the right to stipulate an extraor- dinary interest or profit, in case the thing shall arrive safely in port:" Valin, Book 3, tit. V. p. 1- Pothier's definition is more accurate. "The contract of bottomry," he says, " is a contract by which one of the parties, who is the lender, lends to the other, who is the borrower, a certain sum of money, upon the condition, that in case of the loss of the effects for which this sum has been lent, occasioned by some peril of the sea, or accident of vis major, the lender will not have any recourse unless it is to the extent of what remains, and that in case of a prosperous arrival, or in case it shall have been prevented by the fault of the master, or of the mariners, the bor- rower shall be bound to return to the len- der the sum lent, with a certain stipulated profit, for the price ot the risk of the effects, of which the lender has charged himself:'' Pothier Traite du Pret. i la grosse aven- ture, 2 1, p. 1129. " The condition of the bottomry loan, and of the obligation of the borrower in- cluded in it, exists, when during all the time of the risk, the effects upon which the loan has been made, have not been taken nor lost, however damaged they may have been by the accidents of t'j'a major; and the borrower, in consequence is bound:'- Id. p. 1133. " If only a part of the said effects have arrived, and the residue have been taken or lost, the obligation in this case, only exists to the extent of the value of that which remains, •nd it is dissolved for the residue:" Id. p. 1134. It combines the character of a loan and a maritime insurance — the lender being the insurer against maritime risks, and the borrower the assured of his lender. The double office of lender and insurer gives the latter a right to demand marine interest, or/tt'«M« naulicum, that is, interest greatly beyond the ordinary compensation for the use of money, notwithstanding usury laws, as this interest is a mixed compensation for the use of the money lent, and insur- ance against loss by marine risks, of the property pledged in bottomry to the extent of the loan. The origin of the contract is lost in a re- mote antiquity. It existed before the time of Justinian, and it is treated of in his Di- gest and Code. It was known among the Romans, under the titles of Nauticum foenus, and Contractus traj'cctitisc pecuniee. It was doubtless derived by the Romans from the Greeks. A speech of Demosthenes is still preserved to us, in which the facts are stated to be, that two fraudulent debtors endeavored to sink the ship on which they were bound, after having failed to fulfil the promise to embark on board her a cargo, hypothecated to the lender of a very considerable sum ; and what is still more surprising, Plutarch remarks of De- mosthenes, that for him to accept the bribe of llarpalus, was natural enough, as his father had lent money on maritime interest: 48 Law .Mag. 252. Until quite a recent period, almost all the learning on this subject, was to be found in the civil law books. Now, how- ever, bottomry is not looked upon with the dislike which was exhibited towards it in the time of Demosthenes, but on the con- trary, the contract is favored, as it is con- sidered, that it is for the general advantage of the shipping interests of the world, that bottomry transactions should not be ren- dered too difficult : The Vibelia, 1 Robin- son, Jr. 1; The Zodiac, 1 Hagg. Adm. 320; The Reliance, 3 Id. (36 ; The Rubicon, Id. 8. Indeed, courts of admiralty in the gen- eral exercise of their jurisdiction, are not OF INSURANCE. 182 governed by the strict rules of the common law, but act upon enlarged principles of equity: The Virgin, 8 Peters 538; The Hero, 2 Dod. 142. Thus, bottomry bonds may be sustained in part, though they may be bad in part : Abbott on Shipp. 159 ; The Nelson, 1 Hagg. Adm. 169; The Bridge- water, Olcott's Adm. 35 ; and even material mistakes in them may, it seems, be re- formed: The Zephyr, 3 Mason 341; for these bonds are not to be construed strictly, but liberally, so as to carry into effect the intention of the parties: Pope v. Nickerson, 3 Story 465. There are two classes of bottomry and respondentia bonds; those of the one, are made by the owner of the property pledged, while those of the other, can only be made by the master of the ship bottomed, or in which the goods are carried. The former are resorted' to at the option of the bor- rower, as a means of procuring money on a ship, or for an adventure ; the latter can only be created for the purpose of borrow- ing money, which cannot be otherwise obtained, and which is necessary to be raised, in order to repair or refit a vessel which has become unseaworthy: The Pack- et, 3 Mason 255; The Gratitudine, 3 Rob. 272 ; and see The Panama, Olcott Adm, 343 ; they are made by the master of the vessel virtute officii, under the authority conferred on him by law, under certain circumst-ances, to pledge his ship, freight, and cargo, or any of them, and as a general rule, such loans can only be effected in foreign ports. A bottomry bond may be given by a substituted master, to the con- signee of the vessel who had appointed him : The Rubicon, 3 Hagg. 9. Where the ship and freight have the same owner, and are both hypothecated, there is no equity which forbids the creditor from re- sorting to either in the first instance for the payment of his bond : Welsh v. Cabot, 39 Penn. St. 342. The essential requisites of a bottomry bond. There is no particular form necessary. Any contract in language setting forth the fun- damental properties of bottomry, will be Bufificient evidence to sustain the contract. We have not," says Emerigon, " any printed form of the contract of bottomry • the draft of it is made in the form which the parties find appropriate. It is sufficient that they express themselves without equi- vocation, that they insert the usual clauses and that they stipulate nothing which is contrary to the nature of the contract:" 2 Emerigon 400. The particular voyage on which the vessel is bound, need not be stated: The Jane, 1 Dod. 461. And like all other contracts as to its form, it must comply with the law of the place where it is entered into : The Nelson, I Hagg. Ad. 169. " Sometimes an instrument in the form of a bond, at others in the form of a bill of sale, at others of a different shape, is made use of:" Abbott on Shipp. 158. There must be risk incurred by the lender. "Navigation," says Emerigon, vol. ii. 39, "forms the only object of bottomry. If "nothing has been exposed to the perils of the sea, the contract has never been bot- tomry;" see also Jennings v. The Ins. Co. of Penna., 4 Binn. 244. But Ch. J. Tilgh- man there distinguished the case before him, which was a contract stipulating for more than legal interest, from such an agreement, made to secure a loan with legal interest, and refused to express an opinion as to such an agreement. The fact that a bottomry bond only bears interest at the ordinary rate, is a reason for presuming that sea risk was not con- templated: The Emancipation, 1 Robinson, Jr. 124; The Hero, 2 Dod. 142. But al- though there can be no valid bottomry contract to secure a loan, unless the lender shall agree to incur sea peril, yet the risk may be assumed for any given voyage, or for any definite time: Valin4; The Draco, 2 Sumner 157 ; The Atlantic, 4 Newb. Adm. 514. As a general proposition of law, it is un- doubtedly true, that a deed extorted by actual duress, is invalid ; and this [)riuci- ple of law would clearly extend to vitiate a bond of bottomry, compulsorily obtained by duress from the master, even although the advances were made upon the promise of a future bond, and the bond itself was taken as a fulfilment of that promise. But it does not follow that such an instrument, 182 OF CHOSES IN ACTION. executed wliilc the muster is imprisoned, though at the suit of the bomi-holder, was executed under duress, and therefore void : The Heart of Oak, 1 W. Rob. 213. When the bond is made by a master virlute ojh'cii, it must ordinanl;/ be given in a port of a country foreign to the owners of the vessel. But this may be a port sought by a vessel in distress as an asy- lum, called a port of necessity; or it may be the port of destination of the vessel : Reade r. The Commercial Ins. Co., 3 Johns. 352 ; Webb i'. Pierce, Sprague 192. There are, however, some exceptions to this rule, as where the master, though in a domestic port, has no means of communicating with his owners : La Ysabel, 1 Dods. 273, or where the owners have become insolvent: The Trident, 1 Robinson, Jr. 29. In short the place where the vessel is, pro- vided she is on a voyage and is in distress, is of no further importance, than that generally speaking, unless the vessel is in a foreign port, there will be no necessity, and hence, no right on the part of the master, to raise money by a pledge of the ship and cargo, or of either. The general principle, that bottomry bonds can alone be given for the furtherance of the voyage in which the vessel is actually engaged, is not affected by the circumstance, that by the law of the country where she is seized, the vessel may be arrested and sold, for any debt owing by the owner, to a cred- itor residing in that country : The Osmanli, 3 W. Rob. 198. Another requisite of the contract when made by a master is, that there must be a necessity for the loan on bottomr3\ If the repairs and supplies are in a just sense necessary, then it is clear, that if the master has no other means of meeting the expenditure, he may take the money therefor upon bottomry : The Ship Forti- tude, 3 Sumner 228 ; Greely v. Smith, 3 W. & M. 236. 1. There must be a necessity for the supplies and repairs, for the safety and security of the vessel, or to enable her to prosecute her voyage : The Aurora, 1 Wheat. 103; Burke v. The M. P. Rich, 1 Cliff. C. C. 308. The necessary repairs for which a ves- sel may be bottomried, mean such as are reasonably fit and proper for the ship under the circumstances, and not merely such as are absolutely indispensable for the safety of the ship, or accomplishment of the voyage. The money advanced should at the time appear to be needed for the supplies or repairs, but all that the law requires is an apparent necessity. A bot- tomry bond may be given to pay off a former bond ; and if such former bond was valid, the latter -will be so likewise : The Aurora, 1 Wheat. 26. It would seem not to be incumbent upon a foreign mer- chant, advancing money upon bottomry for the repairs of a vessel, to calculate the expediency of such repairs : The Vibelia, 1 W. Rob. 10. A public advertisement for the sale of a bottomry bond, by auction, to the lowest bidder, at a foreign port, will not dis- charge a bond fide purchaser, from the necessity of making reasonable inquiry as to the actual existence of" an unprovided necessity." Such " an unprovided neces- sity " is essential to the validity of a bottomry bond, and therefore the want of it will render a bond void, even against a bona fide vendor ignorant of all the cir- cumstances : The Prince of Saxe Cobourg, 3 Hagg. 387. 2. There must be an inability on the part of the master to procure funds of the owner, or funds on the personal credit of the owner, at the port of distress. It seems to be an open question, whether the bond would be valid if the master has the requisite funds, or could procure them on his own credit: Abb. on Ship. 156. A bottomry bond by a master is not valid, unless it has been given to enable the vessel to leave a port where she is detained either for necessary repairs, or for claims upon her, the master having there no funds nor credit, nor means of getting money : Gibbs v. The Texas, Crabbe 236. But the necessity of the supplies and re- pairs being once made out, it is incum- bent upon the owners, who assert that they could have been obtained upon their personal credit, to establish that fact by competent proofs, unless it is apparent from the circumstances of the case. It is OF INSURANCE. 182 no objection that the owner had funds in the hands of his consignees, at the same port, provided the master applied for and could not obtain them. The non-existence of funds, and the inability to get at them, must be deemed precisely equal predica- ments of distress. Nor is it an objection, that the supplies and repairs were in the first instance made upon the master's credit. The lender may well trust to the credit of the master, as auxiliary to the lien, which the foreign law would give on the ship, or the general responsibility of the owners. And the fact that the master ordered the supplies and repairs before the bottomry bond was given, can have no legal effect to defeat that security, if they were so ordered by the master, upon the faith, and with the intention, that a bottomry bond should ultimately be given, to secure the payment of them : The Virgin, 8 Peters 538; The Yuba, 4 Blatch. C. .C. 352. The bond may pledge both the ship and the personal responsi- bility of the captain : Kelly v. Cushi :g, 48 Barb. 269. A bottomry bond may be valid, though the money was not advanced in one sum, nor at the same time the bond was given. If advanced before the bond was made, or in separate sums, it is only necessary that it should have been ad- vanced on the faith and understanding that the bottomry security was to be given: La Ysabel, ] Dod. 273 ; The Virgin, 8 Peters 538. Such a bond, to be valid, should be given for repairs or outfits of a vessel, and not for a pre-existing debt ; and should appear to be risked on the vessel, and not on the personal liability of the owner: Greeley v. Smith, 3 Wood. & M. 236. But small advances, originally made with- out any express stipulation for a bond, but followed by a bond of bottomry, may be included in the bond : The Trident, 1 W. Rob. 34 ; The Fair Haven, Law Rep. 1 Adm. & Ecc. 67. And though a loan upon per- sonal credit cannot be changed into a loan upon bottomry, it is a totally dif- ferent thing from this, to take a bottomry bond for a loan, where the money was at first advanced on the security of a lien, or the right of lien on the ship : Tiie Ship Vibelia, 1 Robinson, Jr. 1. And in as- certaining the original character of the loan, where the question is personal credit or not, the law of the place where the advances have been made may be properly invoked, if that law gives a lien for the advances, because it renders the contem- plation of bottomry security more probable than it would otherwise be, by furnishing a presumption against the contracting of the loan on mere personal credit : La Ysabel, 1 Dod. 273 ; The Alexander, Id. 280 ; The Virgin, 8 Peters 538. The lender is always expected to prove, by other eveidence than the bond, that the money was lent, and that the repairs were made, and the materials furnished to the amount claimed, and that thej' were neces- sary to enable the vessel to perform her voy- age, or for her safety: Crawford «. The Wil- liam Penn, 3 Wash. C.C. 354. Necessityfor repairs is proved, when such circumstances of exigency are shown, as would induce a prudent owner, if present, to order them ; and if the fact of such necessity be left unproved, evidence is required of due inquiry, and of reasonable grounds of belief, that the necessity was real and exigent : The Grapeshot, 9 Wall. U. S. 130; but it is not necessary further to prove, that the money lent was actually employed in repairing or refitting the vessel : Cunard V. The Atlantic Ins. Co , 1 Peters 436 ; The Jane, 1 Dod. 461. Where once the transaction is shown to have been clearly and indisputably of a bottomry character, that is, where the distress is admitted or established, the want of personal credit is beyond question, and the bond in all essentials is correct ; the strong presumption of the law, under such circumstances, is in favor of its validity; and this is not to be impugned without clear and conclusive evidence of fraud, or unless it shall be proved beyond all doubt, that although the contract is in form a bottomry transaction, the money was in fact advanced on different consider- ations : The Vibelia, 1 Robinson, Jr. 1. And prima facie, and until the contrary is shown, the master is presumed to have acted with good faith, upright intentions, and reasonable diligence : The Fortitude, 3 Sumner 228. [*183] ♦CHAPTER VII, OF ARBITRATION.^ Instead of the ultimate remedy of an action at law or suit in equity, recourse is sometimes had for the settlement of disputes to the more ami- ' The laws of all the states contain pro- visions on the subject of arbitration and reference, and in almost all of them any personal controversy, whether litigated or not, may be referred under a rule of court. This is the case in Alabama, Florida, Georgia, Kentucky, Louisiana, California, Michigan, Mississippi, New Jersey, Ohio, Tennessee, Vermont, Virginia and Penn- sylvania ; and in New Hampshire the re- ference is of the same effect as if under a rule of court. In Maine, Massachusetts and New York any personal controversy may be made the subject of arbitration. The statutes of Delaware, Iowa and Texas allow a reference of any matter in litiga- tion ; and those of Arkansas authorize a reference, by agreement in writing, in cases where no suit is pending. In gen- eral, there is no necessity for the choice of an umpire, as the statutes either direct the arbitrators to be of an uneven num- ber, or else allow them to be so chosen ; thus, in Florida, Kentucky, California, Massachusetts, Mississippi, New Hamp- shire, New Jersey, New York, Ohio and Vermont, the dispute may be referred to one or more persons ; if one only should be chosen, he is of course the umpire; but it is customary to choose an uneven num- ber at first, obviating the necessity of an umpire. In Arkansas, any number of referees, not exceeding five, may be cho- sen ; while in Delaware the number is fixed at three. The laws of Texas and Louisiana, regulating arbitrations and awards, prescribe the manner of choosing an umpire ; the former requiring, that where one is necessarv to be chosen, on account of the difference of opinion of the arbitrators, and they cannot agree in the choice, he shall be appointed by the clerk of the court ; and the latter giving power to the arbitrators themselves to appoint an umpire, although it also allows the parties, at discretion, to fix upon their umpire at the time the other arbitrators are appointed. The Pennsylvania sj'stems of arbitration are peculiar, being in number no less than six, five of which are by agreement of the parties, and the sixth at the pleasure of either, and commonly called the compul- sory rule of arbitration. In the case of Williams v. Craig, 1 Dall. 313, Chief Jus- tice McKean gives a description of four of these kinds of reference in the following words : " There are four species of awards : First, those made by mutual consent, in pursuance of arbitration-bonds entered into out of court ; secondli/, those which are made in a cause depending in a court of law or equity, upon consent of the par- ties to refer the matter in variance (which are awards at common law) ; thirdlj/, those which are made under a rule of court, by virtue of the statute of 9 & 10 Will. 3, c. 15, which was calculated to remedy the delay and circuity of action attendant upon awards made merely in pursuance of arbitration-bonds, without the interven- tion of a controlling power to compel the acquiescence of the parties. These are the onlj' awards in use at this day in Eng- land ; but the legislature of Pennsylvania, in the year 1705, introduced another spe- cies here, which are, fourthlj/, those awards, or reports, that are made in pur- OF AKBITRATION. 183 cable expedient of arbitration. And in some transactions, especially in articles of co-partnership between traders, it is usual to stipulate that, suance of the Act of Assembly, setting forth that ' when the plaintiff and defend- ant consent to a rule of court for referring the adjustment of their accounts to certain persons, mutually chosen by them in open court, the award, or report, of such refer- ees being made according to the submis- sion of the parties, and approved by the court, and entered upon the record, or roll, shall have the same effect and be as available in law as a verdict by twelve men :' 1 State Laws 48 ; 4 Ann. c. 36 ; Act of-lTOS, 1 Sm. Laws 50. " This act differs essentially from the statute of Will. 3, in many respects, but particularly that to render a report, or award, valid and effectual, the former re- quires that it be approved by the court; but no such provision is made by the latter, and, therefore, awards under rules of court are conclusive in England, unless some corruption, or other misbehavior in the arbitrators, is proved. The courts of equity, indeed, have taken a wider ground, and wherever a plain error appears, either in matter of fact or law, it seems, they will make it an object of inquiry: 2 Vern. 705; 1 Vern. 157; 3 Atk. 494. From some expressions in the authority, we might presume that the error must be ap- parent on the award ; but as the chancel- lor, at the same time, speaks generally, that it must be set forth in the bill for re- lief, there is, at least, great room to doubt upon the subject. " In Pennsylvania, however, since the revolution, as the approbation of the court is made a necessary ingredient in the confirmation of reports, we have thought it our duty, from time to time, to inquire into the allegations against them, before we gave them our sanction. But in doing this we have always confined ourselves to two points : First, whether there is an evident mistake in matter of fact ; or, seco7idIy, whether the referees have clearly erred in matter of law. If either of these is satisfactorily proved, the argument is surely as strong for setting a report aside, as where injustice has been done by the corruption, or other miscon- duct, of the referees." The fifth species of award is that created by the Act of the 21st of March, 1806 (4 Sra. Laws 326), wherein it is provided, " That it shall be lawful for any person or persons, desirous of settling any dispute or controversy, by themselves, their agents or attorneys, to enter into an agreement in writing to refer such dispute or controversy to certain persons to be by them mutually chosen," &c. By the 3d section of the Revised Act of 1836, on the subject of voluntary arbitrations, a new modification of the voluntary system is in- troduced, it being enacted that '■ It shall be lawful, also, for the parties to any suit to consent, as aforesaid, to a rule of court for referring all matters of fact in contro- versy in such suit to referees as aforesaid, reserving all matters of law arising there- upon for the decision of the court, and the report of such referees, setting forth the facts found by them, shall have the same effect as a special verdict, and the court shall and may proceed thereupon in like manner as upon a special verdict," &c. And see Steele v. Lineberger, 59 Penn. St. 308. The last species of award, being the compulsory system, authorizes either party to enter a rule of reference and regulate the proceedings on arbitration. The pro- visions of this system will be found in the Acts of 20th March, 1810, 5 Sm. Laws 131; 25th of February, 1813, 6 Sm. Laws 28 ; 28th of March, 1820, Pamph. L. 172 ; and the revised act on compulsory arbi- tration, of the 16th of June, 1836. This system originated from the violent opposi- tion at one time felt in Pennsylvania to the common law ; it is alluded to by Mr. Duponceau in his Treatise on Jurisdiction, p. 102, thus: "In Pennsylvania it was for some time believed that the legislature would abolish the common law altogether. 183 OF CIIOSES IN ACTION. if any dit:pute shall arise, it sliall be referred to the determination of two indifferent persons as arbitrators, or of their umpire, who is usually and Violent pamjihlets were published to in- stipiite tlu'in to that measure. The wiiolc, however, ended in a law for determining all suits by arbitrators in the first in- stance at the will of either partj'." A re- cent act of the legislature, passed May 1, 1861 (Paraph. L. 521), has repealed the act of 1836 in reference to compulsory arbi- tration, so far as the same relates to the city and county of Philadeliihia, so that this mode of settling disputes and contro- versies cannot now be there resorted to. The still more recent Acts of April G, 1869, January 20, 1870, and April 6, 1870, are comparatively local in their character, extending only to a few counties of Penn- sylvania : Pamph. L. 1869, p. 725; Pamjih. L. 1870, pp. 85, 948. By the voluntary system of arbitration in Pennsylvania, any person or persons may be chosen as arbitrators b}' the par- ties ; and by the compulsory system, the number of arbitrators is to be either three or five, and if they cannot agree, the dis- cretion of appointment is left with the prothonotary of the court; but the parties may agree to refer the dispute to one per- son ; and the act of 1836 contains precise directions as to the practice of appointing arbitrators, or an umpire. Tlie fact that the statutes of a state have provided a method of arbitration and reference, does not abrogate the common law system, which will still remain in ex- istence unless expressly abolished : Martin V. Chapman, 1 Ala. 278; Byrd v. Odeur, 9 Id. 755; Titus v. Scantling, 4 Blackf. 90; Tyler i-. Dyer, 13 Maine 41 ; Mooer's Admr. t'. Allen, 35 Id. 276 ; Camp et al. v. Root, 18 Johns. 22 ; Waine v. Elderkin, 1 Chand- ler's (Wis.) 219; Wells v. Lain, 15 Wend. 99 ; Valentine v. Valentine et al., 2 Barb. Ch. 430; Gray v. Wilson, 4 Watts 39; Graham et al. v. Hamilton, 1 Binn. 461 ; Graham v. Graham, 9 Penn. St. 254 ; s. c. 12 Penn. St. 128; Allen v. Chase, 3 Wis. 249 ; and where an arbitration is had under the common law, an umpire may of course be chosen, if a necessity for one should arise, as well as in those cases where the statutes of the state make pro- vision for the election of an umpire, and he will be subject to the regulations of the common law on that subject, unless the laws of the state provide otherwise : Ram- sey V. Edwards, 17 Conn. 309; Falconer v. Montgomery, 4 Dall. 232 ; Passraore v. Pettit ctal.. Id. 271 ; Crabtree v. Green, 8 Ga. 8 ; Keans v. Rankin, 2 Bibb 88 ; Tyler V. Webb, 10 B. Mon. 123 ; Knowlton v. Horner, 29 Maine 552 ; Rigden v. Martin, 6 Har. & Johns. 403; McKinstry v. Solo- mons, 2 Johns. 57; 8. c. 13 Id. 27; Van Courtlandt et al. v. Underhill et al., 17 Id. 405 ; Butler v. The Mayor, &c., of New York, 1 Hill (N. Y.) 489 ; Boyer t>. Aurand, 2 Watts 74 ; Graham v. Graham, 9 Penn. St. 254 ; s. c. 12 Id. 128 ; Sharp v. Lipsey, 2 Bail. 113 ; Pack v. Wakeley et al., 2 Mc- Cord 27&; Shields v. Penn, Overt. 313; Richards v. Brockenborough's Admr., 1 Rand. 449 ; Rison v. Berry, 4 Id. 275 ; Bas- sett's Admr. v. Cunninghams Admr., 9 Gratt. 684. This kind of submission may be revoked at any time before the award is made : Martin v. Chapman, 1 Ala. 278 ; Randal v. Chesapeake, &c., Canal Co., 1 Harring. 235 ; Peter's Admr. v. Craig, 6 Dana 307; Allen v. Watson, 16 Johns. 205 ; Frets v. Frets, 1 Cowen 335 ; Erie v. Tracy, 2 Grant's Cas. 20 ; Davis v. Max- well, 27 Ga. 368 ; and it is ipso facto re- voked by the death of either party Mooer's Admr. v. Allen, 35 Maine 276; Ferris v. Mann, 2 Zabr. 161 ; Freeborn v Denman, 3 Halst. 116; Frets w. Frets, 1 Cowen 335 ; Tyson v. Robinson, 3 Ired. 333 ; unless there should be an agreement to the contrary : Bailey v. Stewart, 3 W. & S. 560 ; but where the reference is made a rule of court, the death of one of the parties will not revoke it, if the cause of action survives: Bacon v, Crandon, 15 Pick. 79 ; Tyson v. Robinson, 3 Ired. 333 ; but see, contrary to the last. Power v . Power, 7 Watts 205, which decides that a OF ARBITRATION. 183 very properly required to be chosen by the arbitrators before they pro- ceed to take the subject in question into consideration. (a) And it is agreed that the award in writing of the arbitrators, or of their umpire in case of their disagreement, shall be binding and conclusive on all parties. As the courts of law and equity have full jurisdiction on all questions arising out of agreements of any kind, it follows that they retain a juris- diction over matters which the parties themselves have agreed should be (a) See Bates v. Cooke, 9 B. & C. 407, 408 (E. C. L. R. vol. IV). submission even by a rule of court, is, like any other naked authority, counternianda- ble. An award, however, which has been accepted or carried into effect, bars all further action: Kendall v. Stokes et al., 3 How. (U. S.) 87; United States v. Ames, 1 Wood. & Min. 76 ; Martin v. Chapman, 1 Ala. 278 ; Gerrish et al. v, Ayres et al., 3 Scam. 245 ; Coleman v. "Wade, 2 Seld. 44 ; Patton's Admr. v. Baird, 7 Ired. Eq. 255. Awards must conform to the sabmission or agreement by which they are referred : Daniel v. Daniel's Admr., 6 Dana 99 ; An- derson V Farnham et al., 34 Maine 161 ; Reeves v. Goff, Penning. 105 ; Young v. Young, 2 Halst. Ch. 450 ; Welty v. Lent- myer, 4 "Watts 75 ; Coleman et al. v. Lukens, 4 Whart. 347 ; Okinson w. Flickin- ger, 1 "W. & S. 257 ; Sharp v. Lipsey, 2 Bail. 113; Speer v. Bidwell, 44 Penn. St. 23; Burchell v. Marsh, 17 How. (U. S.) 344 ; and if not required by the submis- sion to be in writing, may be by parol : Jones V. Dewey, 17 N. H. 596 ; but all the arbitrators must concur, unless the sub- mission provides otherwise : Mackey v. Neill, 8 Jones L. 214; Bakus'sAp., 58 Penn. St. 186; and, where an award is partly good and partly bad, it will be valid so far as it is good, and void as to the rest, ex- cept where the good and bad are so in- termingled that the one cannot be sepa- rated from the other, in which case the whole award will be bad : Reynolds v. Reynolds, 15 Ala. 398 ; Galway's Heirs v. Webb, Hardin 318; Dickey v. Sleeper, 13 Mass. 244; Walker v. Walker, 28 Ga. 140; Griffin v. Hadlej^, 8 Jones L. 82 ; and awards must be certain : Etnier y.Shope, 43 Penn. St. 110; Stanley v. South wood, 45 Id. 189; Pettibone v. Perkins, 6 Wis. 616; and final : Bayne v. Morris, 1 Wall. (U. S.) 97 ; McCracken v. Clarke, 31 Penn. St. 498; Owen v. Boerum, 23 Barb. 187; Smith V. Potter, 27 "Vt. 304; Carter v. Calvert, 3 Md. Ch. Dec. 199 ; and a second award is void : Bayne v. Morris, 1 Wall. (U. S.) 97 ; as to what is sufficient to set an award aside, see further : State, to the use of, &c., V. Williams, 9 Gill 172; Bean V. Farnam et al., 6 Pick. 269; Newman v. Labeaume, 9 Miss. 30 ; Eaton v. Eaton, 8 Ired. Eq. 102; Conger v. James, 2 Swan 213; Webber v. Ives, 1 Tyler 441 ; Ligon V. Ford, 5 Munf. 10; Taber v. Jenny, Sprague 315. In the State of New York, upon a motion to refer a cause then pending, the refer- ence may be opposed on the ground that a material point of law will arise : Lusher V. Walton, 1 Caines 149 ; Low v. Hallett, 3 Id. 82; Adams v. Bayles, 2 Johns. 374; Salisbury v. Scott, 6 Id. 329 ; De Hart v. Covenhoven, 2 Johns. Cas. 402 ; Shaw v. Ayrs, 4 Cowen 52 ; Anon., 5 Id. 423. As to the time within which an award is to be made, see Minton v. Moore, 4 Blackf. 315 ; Shaw v. Pearce, 4 Binn. 485 ; Abbot V. Pinchin, 1 Dall. 349 ; White v. Puryean, 10 Yerg. 441 ; Willard v. Bickford, 39 N. H. 536; Keller v. Sutrick, 22 Cal. 471. An agreement to arbitrate does not divest courts of their jurisdiction: Allcgre V. Insurance Co., 6 Har. & Johns. 408 ; Haggart v. Morgan, 1 Seld. 422; but see, to the contrary : Monongahela Navigation Co. V. Fenlon, 4 W. & S. 205 ; Leonard r. House, 15 Ga. 473. 183 OF CIIOSES IN ACTION. referred to arbitration. (7>) NotAvitlistanding, therefore, an agreement to refer disputes to arbitration, either party may bring the matter into court.(c) But the Common Law Procedure Act, 1854, now provides, that, whenever the parties to any deed or instrument in writing to be r*1fti1 thereafter executed shall agree to refer *their differences to *- arbitration, and one of such parties shall nevertheless commence an action at law or suit in equity against the others in respect of the matters so agreed to be referred, the court may stay the proceedings on such terms as it may think fit, on being satisfied that no sufficient reason exists why such matters cannot be or ought not to be referred to arbitra- tion, and that the defendant was at the time of the bringing of such action or suit and still is ready and willing to concur in all acts neces- sary for causing such matters to be decided by arbitration. (tZ) And a contract may be so worded as to amount to merely an agreement to pay so much as an arbitrator may award, in which case there can be no right to sue until the award has been made.(c) The reference of disputes to arbitration appears to have been early adopted by the courts of law, with the consent of the parties to an action, in cases where the matter in dispute could be more conveniently settled in this mode. A verdict was taken for the plaintiff by consent, subject to the award of an arbitrator agreed upon by the parties, and the reference was made a rule of court. This plan is still continually adopted. The arbitrators and the parties to the reference by this means become subject to the jurisdiction of the court, which has power to set aside any award which may appear to have been given unjustly or through mistake of the law ; or if the award be valid, its performance may be enforced under the penalty of imprisonment for contempt r:^-|Qr-i *of court. And by the Common Law Procedure Act, 1854, the. court has power, upon the application of either party, to order any matter in dispute, which consists wholly or in part of matters of mere account, to be referred to arbitration, upon such terms as to costs and otherwise as the court may think reasonable. (/) In order to extend (b) Wellington v. Mackintosh, 2 Atk. 569. (c) Waters v. Taylor, 15 Ves. 10, 18 ; Mexborongh v. Bower, 7 Beav. 127, 132 ; Hor- ton V. Sayers, 4 H. & N. 643 ; Cook v. Cook, V.-C. W., 15 W. R. 981. {(l) Stat. 17 & 18 Vict. c. 125, s. 11 ; Hirsch v. Im Thurn, 4 C. B. N. S. 5G9 (E. C. L. R. vol. 93). See Mason v. Haddan, 6 C. B. N. S. 526 ; Wheatley v. Westminster Brymbo Coal and Coke Company, Limited, 2 Drew. & Sm. 347 ; Cook v. Catchpole, V.-C. W. 10 Jur. N. S. 1068. («) Scott V. Avery, 5 H. of L. Cases 811 ; Scott v. Corporation of Liverpool, 3 De G. & J. 334 ; Elliott v. Royal Exchange Assurance Company, Law Rep. 2 Ex. 237. (/) Stat. 17 & 18 Vict. c. 125, ss. 3, 6, 7. OF ARBITRATION. 185 the benefits of this mode of submission to arbitration to all cases of con- troversies between merchants and traders or others concerning matters of account or trade or other matters, an act of parliament was passed in the reign of William the Third, intituled " An Act for determining Differences by Arbitration. "(^) This act empowers all merchants and traders and others desiring to end by arbitration any controversy, for which there is no other remedy but by personal action or suit in equity, t{\ agree that their submission of their suit to the award or umpirage of any person or persons shall be made a rule of any of her majesty's courts of record which the parties shall choose. And it provides, that, in case of disobedience to the arbitration or umpirage to be made pur- suant to such submission, the party neglecting or refusing to perform and execute the same, or any part thereof, shall be subject to all the penalties of contemning a rule of court when he is a suitor or defendant in such court. And the process to be issued accordingly shall not be stopped or delayed in its operation by any order, rule, command or pro- cess of any other court, either of law or equity, unless it shall be made to appear on oath to such court that the arbitrators or umpire misbehave themselves, and that such award, arbitration or umpirage was procured by corruption or other undue means. It is also further provided,(/i) that any arbitration or umpirage procured by corruption or undue means shall be *judged void, and be set aside by any court of law or r*i op-i equity, so as complaint of such corruption or undue practice be made in the court where the rule is made for submission to such arbitra- tion or umpirage before the last day of the next term after such arbitra- tion or umpirage is made and published to the parties. The Court of Chancery is a court of record within the meaning of this act.(«) And it is now provided, that every agreement or submission to arbitration by consent, whether by deed or instrument in writing not under seal, may be made a rule of any one of the superior courts of law or equity at Westminster, on the application of any party thereto, unless such agree- ment or submission contain words purporting that the parties intend that it should not be made a rule of court ; but where it is provided that it shall be made a rule of one of such courts in particular, it may be made a rule of that court only.(,/) A parol submission cannot be made a rule of court, oven though made in pursuance of an agreement to refer con- tained in a deed.(/c) (ff) Stat 9 & 10 Will. III. c. 1.5. (h) Sect. 2. [i) Heming v. Swinnerton, 2 Phil. 79. (y) Stat. 17 & 18 Vict. c. 125, s. 17; Re Newton and Hetherington, 19 C. B. N. S. 342 (E. C. L. R. vol. 115) ; Parkes v. Smith, 15 Q. B. 297 (E. C. L. R. vol. 69). {k) Ex parte Glaysher, 3 H. & C. 442. 186 OF cnosES in action. Previously to a recent statute citlier party might have revoked his sulmiission, and thus determined the authority of the arbitrators; and this may still be done, if the submission relate to criminal matters, which are not within the statutc.(/) But it is now enacted,(?H) that the power and authority of any arbitrator or umpire, appointed by or in pursuance of any rule of court or judge's order or order of nisi prius in any action, or by or in pursuance of any submission to reference containing an agreement that such submission shall be made a *rule of any of •- ^ her majesty's courts of record, shall not be revocable by any party to such reference without the leave of the court by which such rule or order shall be made, or which shall be mentioned in such submission, or by leave of a judge. (w) And the arbitrator or umpire is empowered and required to proceed with the reference notwithstanding any such revocation, and to make such award although the person making such revocation shall not afterwards attend the reference. The court, or any judge, is also empowered under any such reference, by rule or order, to command the attendance and examination of witnesses, or the production of any document.(o) And by the act to amend the law of evidence it is now provided, that every arbitrator or other person, having by law or by^ consent of parties authority to hear, receive and examine evidence, may administer an oath to all such witnesses as are legally called before them respectively.(/?) The Common Law Procedure Act, 1854, provides, that if reference is authorized to be made to a single arbitrator, and all the parties do not, after differences have arisen, concur in the appointment of an arbitrator ; or if any appointed arbitrator refuse or become incapable to act, or die, and the terms of the document authorizing the reference do not show that it was intended that such vacancy should not be supplied, and the parties do not concur in appointing a new one; then any party may serve the remaining parties with a written notice to appoint an arbitra- tor ; and if within seven clear days after such notice shall have been served no arbitrator be appointed, it shall be lawful for any judge of any of the superior courts of law or equity at Westminster, upon summons r*1881 *^ ^® taken out by the party *having served such notice, to ap- '- -^ point an arbitrator, who shall have the same power to act in the {I) 2 Wms. Saund. 133 e, n. (d) ■ Rex v. BardcU, 5 Ad. & E. 619 (E, C. L. R. vol. 31) ; 8. c. 1 Nev. & P. 74. [m) Stat. 3 & 4 Will. IV. c. 42, s. 39. (n) See Scott v. Van Sandau, 1 Q. B. 102 (E. C. L. R. vol. 41). (o) Stat. 3 & 4 Will. IV. c. 42, s. 40. {p) Stat. 14 & 15 Vict. c. 99, s. 16. OF ARBITRATION. 188 reference and to make an award as if lie had been appointed bj consent of all parties. (^) The authority of arbitrators is liable to be determined not only by a revocation of the submission, but also by the death of either of the par- ties previously to the making of the award. (r) In order to obviate this inconvenience, it is now usual to insert in the order or rule of court, by which reference is made to arbitration, a provision that the death of either of the parties shall not operate as a revocation of the authority of the arbitrators, but that the award shall be delivered to the executors or administrators of the parties, or either of them, in case of their or his decease.(a) And the same stipulation may be effectually made in a sub- mission to arbitration by private agreement.(^) The bankruptcy of either party is not a determination of a submission to arbitration. (w) When the reference is made to two arbitrators, one appointed by each party, it is now provided, (v) that either party may, in case of the death, refusal to act or incapacity of any arbitrator appointed by him, substi- tute a new arbitrator, unless the document authorizing the reference show that it was intended that a vacancy should not be supplied. And if on such a reference one party fail to appoint an arbitrator, either originally or by way of substitution as aforesaid, for seven clear days *after the other party shall have appointed an arbitrator, and r*-ioQ-i shall have served the party so failing to appoint with notice in writing to make the appointment, the party who has appointed an arbi- trator may appoint such arbitrator to act as sole arbitrator in the refer- ence ; and an award made by him shall be binding on both parties as if the appointment had been by consent ; provided, however, that the court or a judge may revoke such appointment on such terms as shall seem just. When no time is limited for the making of the award it must be made within a reasonable time •,{x) but if a given time be limited, the award must be made within that time, unless the time for making it be en- (q) Stat. 17 & 18 Vict. c. 125, s. 12. (r) Cooper v. Johnson, 2 B. & Aid. 394; Brooke v. Mitchell, 6 M. & W. 473. («) Tyler v. Jones, 3 B. & C. 144 (E. C. L. R. vol. 10) ; Prior v. Hembrow, 8 M. & W. 873 ; 2 Wms. Saund. 133 d, n. (d). (t) Macdougall v. Robertson, 2 You. & Jer. 11 ; s. c. 4 Bing. 435 (E. C. L. R. vol. 13) ; 1 M. & P. 147. (m) Hemsworth v. Bryan, 1 C. B. 131 (E. C. L. R. vol. 50). {v) Stat. 17 & 18 Vict. c. 125. s. 13. (z) Macdougall v. Robertson, ubi supra. 189 OF CIIOSES IN ACTION. large(l.(y) Ami if the award is required to be made and ready to be delivered to the parties by a certain day, it will be considered as r«ady to be delivered if it be niadc,(z) unless the arbitrators should fail to deliver it to either of the parties on request made for that purpose on the last day.(a) The submission to arbitration frequently contains a power for the arbitrators or umpire to enlarge the time for making the award ; and in this case the time may be enlarged from time to timo(6) by such arbi- trators or umpire,(tf) provided the enlargement be made on or before the expiration of the time originally limited for making the award.(c?) And if the submission be made a rule of court, then, whether the arbitrators or umpire have power to enlarge the time or not,(<') the . Lowndes, 1 East 276 ; ante, p. 185. (Z) Pedley v. Goddard, 7 Term Rep. 73. (m) Lucas v. Wilsoq, 2 Burr. 701. («) Macarthur v. Campbell, 5 B. & Ad. 518 (E. C. L. R. vol. 27) ; Smith v. Wliit- more, 1 Hem. & Mill. 576, affirmed 10 Jur. N. S. 1190. (o) Rawsthorn v. Arnold, 6 B. & C. 629 (E. C. L. R. vol. 13) ; s. c. 9 D. & R. 556. (j») Stat. 17 & 18 Vict. c. 125, s. 9. {q) Ibid. s. 8. (r) Ibid. s. 14. 11 104 OF CnOSES IN ACTION. arbitrators arc at liberty to appoint an umpire or third arbitrator, such r*lQ'-l *P^^'fies or arbitrators do not appoint an umpire or third arbi- ^ ^ trator, or if any appointed umpire or third arbitrator refuse to act, or become incapable of acting, or die, and the terms of the document authorizing the reference do not show that it was intended that such a vacancy should not be supplied, and the parties or arbitrators respect- ively do not appoint a new one, then any party may serve the remain- ing parties, or the arbitrators as the case may be, with a written notice to appoint an umpire or third arbitrator ; and, if within seven clear days after such notice shall have been served no umpire or third arbitrator be appointed, it shall be lawful for any judge of any of the superior courts of law or equity at Westminster, upon summons to be taken out by the party having served such notice, to appoint an umpire or third arbitra- tor, who shall have the same power to act in the reference and make an award as if he had been appointed by consent of all parties.(s) If an umpire be appointed, his authority to make an award commences from the time of the disagreement of the arbitrators, (^) unless some other period be expressly fixed ; and if, after the disagreement of the arbitrators, he make an award before the expiration of the time given to the arbitrators to make their award, such award will nevertheless be valid. (w) And it is now provided that if the arbitrators shall have allowed their time, or their extended time, to expire without making an award, or shall have delivered to any party, or to the umpire, a notice in writing stating that they cannot agree, the umpire may enter on the reference in lieu of the arbitrators. (a;) r*1Qn ^^® umpire must be chosen by the *arbitrators in the exercise of their judgment and at the same time,(y) and must not be deter- mined by \ot,{z) unless all the parties to the reference consent to his ap- pointment by such means. (a) In order to enable him to form a proper de- cision, he ought to hear the whole evidence over again,(6) unless the parties should be satisfied with his deciding on the statement of the arbitrators. (c) And the whole matter in difference must be submitted to his decision, and not some particular points only on which the arbitrators may disagree.(c?) (») Stat. 17 & 18 Vict. c. 125, s. 12 ; sec Re Lord, 1 Kay & Johns. 90' ; Collins v. Col- lins, 26 Beav. 306. (<) Smailes v. Wright, 3 M. & Selw. 559; Sprigens v. Nash, 5 M. & Selw. 193. («) Sprigens v. Nash, ubi sup. (x) Stat. 17 & 18 Vict. c. 125, s. 15. (y) Re Lord, Q. B. 1 Jur. N. S. 893 ; 5 E. & B. 404 (E. C. L. R. vol. 85). (2) In Re Cassell, 9 B. & C. G24 (E. C. L. R. vol. 17) ; Ford v. Jones, 3 B. & Ad. 248 (E. C. L. R. vol. 23) ; European, &c. Shipping Company v. Crosskey, 8 C. B. N. S. 397 (E. C. L. R. vol. 98). See, however. Re Hopper, Law Rep. 2 Q. B. 367 ; 8 B. & S. 100. (a) Re Jamieson, 4 Ad. & E. 945 (E. C. L. R. vol. 31). (6) Re Salkeld, 12 Ad. & E. 767 (E. C. L. R. vol. 40) ; Re Hawley, 2 De G. & S. 33. (c) Hall V. Lawrence, 4 Term Rep. 589. (rf) Tollit v. Saunders, 9 Price 612. OF ARBITRATION. 196 An award for the payment of money creates a debt from one party to the other, for which an action may be brought in any court of law,(e) and which will be sufficient to support a petition for adjudication of bankruptcy. (/) But when the award is made a rule of court, its per- formance may, as we have seen,(^) be enforced by attachment. And where the reference is made by order of the Court of Chancery,(7i) or where the award requires any act to be done which cannot be enforced by an action at law,(«) equity will decree a specific performance. And it is now provided that when any award directs possession of any lands or tenements to be delivered to any party, the court, of which the docu- ment authorizing the reference is or is *made a rule or order, r*-j oy-i may order any party to the reference who shall be in possession of such lands or tenements, or any person in possession of the same, claiming under or put in possession by him since the making of the docu- ment authorizing the reference, to deliver possession of the same to the party entitled thereto pursuant to the award ; and such rule or order to deliver possession shall have the eifect of a judgment in ejectment against every such party or person named in it, and execution may issue, and pos- session shall be delivered by the sheriff as on a judgment in ejectment.(^) The award of arbitrators or of an umpire, though indented and under hand and seal, is not a deed unless delivered as such.(?) It is now sub- ject to stamp duty according to the table in the note.(m) (e) 2 Wms. Saund. 62 a, n. (5). (/) Ex parte Lingard, 1 Atk. 241. (ff) Ante, p. 184. (h) MarquisofOrmondv. Kynnersley, 2Sim. &Stu. 15; Wood jj. Taunton, llBeav. 449. (f) Hall V. Hardy, 3 P. Wms. 190. {k) Stat. 17 & 18 Vict. c. 125, s. 16. (Z) Brown v. Vawser, 4 East 584. (m) Stat. 28 & 29 Vict. c. 96, s. 3, where the amount or value of the matter in dispute shall not exceed £5 And where it shall exceed £5 and not exceed £10 10 20 30 40 50 100 200 500 750 20 30 40 50 100 200 500 750 1000 £ s. d. 3 6 1 1 6 2 2 6 5 10 15 1 1 5 And where it shall exceed £1000, and also in all other cases not above provided for 115 01 1 Awards are not made liable to stamp duty by the Internal Revenue Law of the United States. [*i98] 'TART III. OF INCORPOREAL PERSONAL PROPERTY. CHAPTER L OF PERSONAL ANNUITIES, STOCKS AND SHARES. In addition to goods and chattels in possession, which have always been personal property, and to debts which have long since been con- sidered so, there exists in modern times several species of incorporeal personal property, to which we now propose to direct our attention. These species of property are certainly not clioses in possession, neither yet are they like debts strictly chases in action, though often classed as such. In analogy, therefore, to the well-known division of real estate into corporeal and incorporeal, we have ventured to place these kinds of property together into a class to be denominated incorporeal persojial •property. A debt no doubt is also incorporeal, but it is still well charac- terized by its ancient name of a cliose in action. The first kind of incorporeal personal property which we shall men- tion is a personal annuity.^ This kind of property is not indeed of so modern an origin as some of those which we shall hereafter mention. It consists of an annual payment, not charged on real estate ; but it may nevertheless ^be limited to the heirs, or the heirs of the body of the grantee. In former times it was doubted whether an annuity was not a 1 As a part of the law of this country, pies relating to life insurance, which em- this subject has become of far more practi- brace most, if not all, of those applicable cal importance than formerly, from the to personal annuities, gradual development of the legal princi- OF PERSONAL ANNUITIES, STOCKS AND SHARES. 198 mere chose in action, and therefore incapable of assignment ;(a) but *tliis objection has long been overruled. When limited to the r*-|nn-| heirs of the grantee it will, on his intestacy, descend, like real estate, to his heir ; but it is still personal property,(6) and will pass by his will under a bequest of all his personal estate.((?) When given to the grantee and the heirs of his body, the grantee does not acquire an estate tail ; for this kind of inheritance is not a tciiement within the meaning of the statute Dc Donis Conditionalihus.{d) The grantee has merely a fee simple conditional on his having issue, such as a grantee of lands would have had under a similar grant prior to the statute De Donis,{e) or as a copyholder would now take in manors where there is no custom to en- tail.(/) When the grantee has issue, he may therefore alien the annuity in fee simple by a mere assignment ; but should he die without issue the annuity will fail. A personal annuity given to a man for ever will de- volve on the executor, and not on the heir of the grantee.(^)^ The next kind of incorporeal personal property to be considered is stock in the public funds, or bank annuities. Previously to the Revolu-- tion in 1688 there was no funded debt properly so called ; although King Charles I. and King Charles II. both found occasion to raise money by the grant of annuities in fee simple chargeable on particular branches of the revenue. These annuities, not being payable out of real estate, appear to have been the first instances of personal annuities lim- ited to the grantees and their heirs, and they *gave occasion to r^QAA-i those lawsuits by which the legal nature and incidents of per- sonal annuities have been determined ; although some mention of such an- nuities is certainly to be found in the old books. (A) Soon after the Revolu- (ffl) Co. Litt. 144 b, n. (1). (b) Earl of Stafford v. Buckley, 3 Ves. sen. 171 ; Radbura v. Jervis, 3 Beav. 450, 461. (c) Aubin v. Daly, 4 B. & Aid. 59 (E. C. L. R. vol. 6). (d) Turner v. Turner, 2 Amb. 116, 782 ; Earl of Stafford v. Buckley, ubi sup. (e) See Principles of the Law of Real Property 30, 36, 2d ed. ; 32, 38, 3d & 4th eds.; 35, 41, 5th, 6th, 7th & 8th eds. (/) Ibid. 286, 2d ed. ; 295, 3d ed. ; 299, 4th ed. ; 310, 5th ed. ; 327, 6th ed. ; 334, 7th ed.; 349, 8th ed. (ff) Taylor v. Martindale, 12 Sim. 158. (h) Co. Litt. 144 b, Fitz. N. B. 152 a. 1 Where an annuity is given by will, and 281 ; Wiggin v. Swett, 6 Mete. 194 ; Eyre there is no direction as to the time when v. Golding, 5 Binn. 474 ; Hilj'ard's Est., 5 it shall commence, it commences at the W. & S. 30 ; Santee v. Santee, 64 Penn. St. testator's death : Craig v. Craig, 3 Barb. 474 ; Cooke v. Meeker, 36 N. Y. 15. Ch. 76; Hall v. Hall, 2 McCord's Ch. 200 OF INCORrOREAL PERSONAL PROPERTY. tion, however, a portion of the public debt was funded, or transferred into perpetual annuities, payable, by way of interest, on the capital advanced, which capital was to be repaid by the government in the manner agreed on. And from that time to the present, the funded debt of the country has, by several acts of parliament, been greatly increased. Stock in the funds, therefore, is merely a right to receive certain annuities, by half- yearly dividends, as they become duc,{i) subject to the right of govern- ment to redeem such annuities on payment of a stipulated sum, which sum is the nominal value of the stock. Thus, lOOZ. <£3 per cent. Con- solidated Bank Annuities is a right to receive SI per annum for ever, subject to the right of government to redeem this annuity on payment of 100/. sterling. The actual value of 100?. <£3 per cent. Consolidated Bank Annuities (or Consols as they are shortly termed) of course de- pends on the state of the stock market, being generally lower, though it has been higher, than the nominal price, which is called par. The public funds are composed of several separate stocks, of which, however, by far the largest and most important are the consols. In this fund alone the Court of Chancery formerly invested all the money com- mitted to its care belonging to the suitors in that court ; and, as it is a rule of equity, that whatever the Court would certainly order to be done may be done without applying to the Court, every trustee and executor r*9011 "^^as justified *in investing in consols any money which he might have held in trust, without any express direction for that pur- pose.(^) But should he have invested trust money upon any other security, Avithout express authority so to do, he would have been answer- able to his cestuis que trust for the amount of the money so invested, should the security have failed ; and it seems also, that the cestui que trust had an option either to claim the money, or to have so much stock as the money improperly invested would have purchased at the time when the improper investment was made.(Z) But when the trustee was author- ized by the terms of his trust to invest either in the funds or on real securities, it was decided, after much conflict of opinion, that the cestui que trust had no option to charge the defaulting trustee with any larger (i) Wildman v. Wildman, 7 Ves. 174, 177 ; Rawlings v. Jennings, 13 Ves. 38, 45. Dividend warrants may now be sent by post, stat. 32 & 33 Vict. c. 104. [k) Howe V. Lord Dartmouth, 7 Ves. 150; Holland v. Hughes, 16 Ves. 114; Tebbs V. Carpenter, 1 Mad. 306 ; Norbury v. Norbury, 4 Mad. 191. (I) Forrest v. Elwes, 4 Ves. 497 ; Pride v. Fooks, 2 Beav. 430 ; Robinson v. Robin- son, Lords Justices, 1 De G., M. & G. 247. OF PERSONAL ANNUITIES, STOCKS AND SHARES. 201 sum than the amount of the money lost, with interest at four per cent. For had the trustee chosen, as he might, to invest on real security, the cestui que trust would huve gained nothing by the subsequent rise in the funds. (w) Recent enactments have, however, now largely extended the investments in which trust funds may be placed.(w)^ The legal nature and incidents of stock in the public funds have been fixed by the various acts of parliament by which these funds have been created. These statutes are far too numerous to be here mentioned; but their provisions are generally similar. By one of the earliest of these statutes,(o) it is provided, that all persons who *sha.ll be entitled r*2021 to any of the annuities thereby created, and all persons lawfully claiming under them, shall be possessed thereof as of a personal estate, and the same shall not he descendible to the heir. And the same rule holds with respect to all the public funds which now exist. The transfer of stock in the public funds is effected only by the signa- ture of the books at the Bank of England in the manner prescribed by act of parliament ; and this transfer may be effected either in person or by attorney duly appointed for the purpose by writing, under hand and seal, attested by two or more credible witnesses. (^) The legal title to stock belongs to the person in whose name it is standing in the Bank books ; and the Bank refuses to recognize trusts, or to keep more than one account for the same person ; neither will it allow of the transfer of any stock into the names of more than four persons. Formerly the right to stock always carried the right to the current half-year's divi- dends, and the transfer books were closed for some days prior to the days of payment of the dividends. But a day for closing the books is now fixed in the month preceding that in which the dividends are payable, and the person whose name then appears inscribed in the books as pro- prietor is, as between him and the transferee, entitled to the current half-year's dividend ; and after that day the person to whom any transfer (m) Robinson v. Robinson, ubi sup., overruling Watts v. Girdlestone, 6 Beav. 188 ; Ames V. Parkinson, 7 Beav. 379, and Ouseley v. Anstruther, 10 Beav. 456. (n) Seejuoi^, the chapter on "Settlements." (o) Stat. 1 Geo. I. st. 2, c. 19, s. 9. {p) Stat. 1 Geo. I. st. 2, c. 19, s. 11, and subsequent acts. 1 As a general rule, the courts having vestment of trust funds, in the debt of the jurisdiction, on application made to them United States, or of some State ; in some for that purpose, would authorize the in- municipal loan, or on real security. 202 OF INCORPOREAL PERSONAL PROPERTY. is mailc is not entitled to the current tlivi(lencl.(^) When stock is standing in the name of a trustee, the beneficial owner may transfer his equitable interest in any manner he pleases. As the claim of the beneficial owner is equitable only, there will be no occasion to give to the transferee a power of attorney to sue in the name of the transferor ;(r) and the trans- feree, on 'living notice of *the transfer to the trustee, Avill be L -'^'^J entitled to a legal transfer of the stock into his own name in the books at the Bank. A recent act of parliament contains provisions for the conversion of stock, transferable only at the Bank, into stock cer- tificates payable to bearer, and transferable accordingly from hand to hand.(8) As the constant fluctuations of the value of the funds were long since found to present a great temptation to gambling on the chance of their rise or f\ill, an act was passed in the reign of Geo. II.{t) for the purpose of suppressing such transactions. This act was introduced into parlia- ment by Sir John Barnard, whose name it bears, and it was intituled " An Act to prevent the infamous Practice of Stockjobbing."^ It con- {g) Stat. 24 Vict. c. 3, s. 1. (s) Stat. 26 Vict. c. 28. (?•) See ante, p. 6. {() Stat. 7 Geo. II. c. 1 A provision similar to that referred to in the text, -was formerly the law of New York, whereby it was declared that all contracts, written or verbal, for the sale or transfer of stocks, are void, unless the party contracting to sell, be at the time in the actual possession of the evidence of the debt or interest, or otherwise entitled in his own right, or has due authority to sell the same. Under this statute it was held, that where, at the time of the purchase of stock, the persons with whom the con- tract was made, had no stock standing in their names, upon the books of the corpo- ration that had issued the stock, and there was no other evidence to prove that they were the owners of the stock con- tracted to be sold, the would-be pur- chasers could not maintain an action against them, the transaction being void: Ward V. Van Duser, 2 Hall 1*;2. And see, also. Gram v. Stebbins et al., 6 Paige Ch. 124. In Massachusetts, upon an interpreta- tion of this statute, it has been decided that, although a person contracting for the sale and transfer of stock, be in pos- session of the certificate or other evidence of the title to such stock, as required by statute, at the time of the contract, yet if he is nevertheless then already under a liability or obligation for the sale and transfer of an equal or greater number of shares of the same stock, the contract is absolutely void : Stebbins et al. v. Leo- Avolf, 3 Cush. 137 ; but that a contract for the sale of railroad stock, by one who has previously pledged it, and of which the pawnee holds the certificate, but which the pawnor is authorized by the pawnee to sell whenever he has an opportunity, is not within the New York statute concern- ing stock-jobbing : Thompson v. Alger, 12 Mete. 428. But this law has since been repealed ; see N. Y. Rev. Stats. 1859, vol. ii. p. 980 i Washburn v. Franklin, 28 Barb. 27. See also ante, p. 92, note. OF PERSONAL ANNUITIES, STOCKS AND SHARES. 203 tained several provisions directed against the practice of fictitious sales of stock for a future time, where the seller had not the stock he sold, neither intended to procure it, and the buyer had no intention to pur- chase the amount he contracted for; but the only object of the parties was that, should the stock rise, the vendor should pay the buyer the difference occasioned by the increase in price, and should it fall, the buyer should pay the vendor the difference occasioned by the decrease. (m) But this act, having been found to interfere with legitimate transactions, has lately been repealed.(x) *It seems that stock is not goods, wares or merchandise r*204"| within the 17th section of the Statute of Frauds,(?/) so that it does not require a written memorandum for a contract for its sale, if the value exceeds ten pounds and the buyer does not accept and receive any part, nor give something in earnest to bind the bargain or in part pay- ment. (2) Contract notes for the sale or purchase of Government or other public stocks or shares, to the amount or value of five pounds or upwards, are now liable to a stamp duty of one penny. (a)^ By a modern act of parliament, the Court of Chancery is empowered to order the dividends of stock belonging to infants to be applied for their maintenance.(6) By another act the Lord Chancellor is empow- (w) See Child v. Morley, 8 Term Rep. 610 ; Heckscher v. Gregory, 4 East 607, 614. The buyer who is interested in the rise of the funds is called, in the language of the Stock Exchange, a bull, the seller is a bear, but either party, if unable to pay his dif- ferences, becomes a lame duck. A stockjobber, properly so called, is a person who supplies the public, through the medium of the brokers, with money or stock to the exact amount they may require, making a profit only of l-8th per cent, on each trans- action ; a course of business altogether different from the "infamous" practices usually called stockjobbing by the public. (x) Stat. 23 Vict. c. 28. (y) Stat. 29 Car. 2, c. 3. See ante, p. 40. (z) See Numes v. Scipio, 1 Com. 356 ; Pickering v. Appleby, 1 Com. 354 ; 2 P.Wms. 308 ; Pawle v. Gunn, 4 Bing. N. C. 445 (E. C. L. R. vol. 33) ; Humble v. Mitchell, 11 Ad. & E. 205 (E. C. L. R. vol. 39) ; Knight v. Barber, 16 M. & W. 66. (a) Stat. 23 & 24 Vict. c. HI. (6j Stat. 11 Geo. IV. & 1 Will. IV. c. 65, s. 32. 1 By the Internal Revenue Act, a bro- sales or contracts for the sale of stocks, ker's note or memorandum of sale is, liable bonds, &c., made by brokers, banks or to a stamp duty of ten cents. And by the bankers. Sects. 99 & 170 of the Act of same Act, as amended by the Act of July June 30, 1864, as amended by the Act of 13, 1866, a stamp duty at the rate of one July 13, 1866, 2 Brightly's U. S. Dig., pp. cent for every one hundred dollars or 357, 379, sects. 279, 365. fractional part thereof, is to be paid on all 204 OF INCORPOREAL PERSONAL PROPERTY. ered to appoint a person to transfer stock and receive and pay over dividends standing in the name of or vested in any lunatic, idiot or per- son of unsound mind beneficially entitled thereto, or standing in the name of or vested in the committee of a lunatic who may have died in- testate, or himself become lunatic, or may be out of the jurisdictionof or not amenable to the process of the Court of Chancery, or if it be uncer- tain whether such committee be living or dead, or if he should neglect or refuse to transfer such stock and to receive and pay over the dividends thereof.(c) And the Lord Chancellor is also empowered to appoint a person to transfer stock standing in the name of or vested in any lunatic residing' out of England ; and also to receive and pay over the dividends thereof to the curator of such lunatic or otherwise, *a3 the Lord L " ^-' Chancellor shall think fit.(cZ) By another recent act it is pro- vided, that when stock shall be standing in the name of any infant or person of unsound mind jointly Avith any person not under any legal disability, such person may alone give a power of attorney to receive the dividends.(e) And generally, the land or stock of any lunatic, in pos- session, reversion or expectancy, may be sold or mortgaged for the payment of his debts, or for his maintenance and otherwise for his benefit. (/) When any person has an interest in stock standing in the name of another he is enabled to restrain the transfer of such stock, or, as it is said, to put a sto]) upon it, by means of a writ of distringas, to be served upon the Bank of England. This writ appears to be in strictness a pro- ceeding in a suit supposed to have been commenced by the party obtain- ing it against the Bank and the legal owner of the stock ; but in practice a suit is not commenced, unless the right to stop the stock be disputed. (^) This writ formerly issued only out of the equity side of the Court of Exchequer ; but when the equitable jurisdiction of that court was trans- ferred to the Court of Chancery, it was provided that a writ of distringas, in a prescribed form, should issue out of the latter court, the force and effect of which, and the practice relating to the same, should be such as was previously in force in the Court of Exchequer.(/t) The writ com- mands the sheriff to distrain the Bank by their lands and chattels, so that they appear in court to answer a bill of complaint lately ex- hibited against them and other defendants by the person obtaining the (c) Stat. IG & 11 Vict. c. 70, s. 140. (d) Sect. 141. (e) Stat. 8 & 9 Vict. c. 97, s. 3. (/) Stat. 16 & 17 Vict. c. 70, s. 116 ; 25 & 26 Vict. c. 86, ss. 12-14. Iff) See Wilkinson on the Funds 235-252 ; Re Cross, 1 Drew. & Sm. 580. (A) Stat. 5 Vict. c. 5, 8. 5. OF PERSONAL ANNUITIES, STOCKS AND SHARES. 205 writ. The object of the *writ is stated in a notice, which is r*9Ar>-] served along with it, to be for the purpose of restraining any transfer of the stock in question until the order of the court be obtained. An appearance is accordingly entered by the Bank, and the transfer of the stock is thus delayed. When the distringas is required to be removed, an order of the court may be readily obtained for the dismissal of the supposed suit. It is surprising that a course by which a cestui que trust of stock may be so effectually protected from any fraudulent transfer by his trustee should not be more frequently adopted. Stock, being a kind of cliose in action, could not formerly have been sold under o. fieri facias issued in execution of a judgment against the owner.{2y And in fact, in the acts by which stocks were created, it was declared that they should not be taken in execution. (/t) But by the act for extending the remedies of creditors against the property of debtors, (?) it is provided that any judge of one of the superior courts of common law,(m) on the application of any judgment creditor, may order that any government stock of the debtor standing in his own name, or in the name of any person in trust for him, shall stand charged with the payment of the judgment debt and interest, and such order shall entitle the judgment creditor to all such remedies as he would have been entitled to if such charge had been made in his favor by the debtor ; but no proceedings are to be taken to have the benefit of such charge until after the expira- tion of six calendar months from the date of such order.(w) And by a subsequent act of *parliament,(o) this provision is declared to r*2071 extend to the interest of any judgment debtor, whether in pos- (t) Dundas v. Dutens, 1 Ves. jun. 198. (Jc) Bank of England v. Lunn, 15 Ves. 577. (I) Stat. 1 & 2 Vict. c. 110, s. 14. (m) Miles v. Presland, 4 Myl. & Cr. 431. (n) See Watts v. JefiFeryes, 3 Macn. & G. 372 ; Watts v. Porter, Q. B. 1 Jur. N. S. 133 ; 3 E. & B. 743 (E. C. L. R. vol. 77). Contra, Beavan v. Earl of Oxford, 6 De G., M. & G. 524, 525, 532 ; Scott v. Lord Hastings, 4 Kay & J. 633, 638 ; Crow v. Robinson, Law Rep. 4 C. P. 264, 267 ; Pickering v. Ilfracombe Railway Co., Law Rep. 3 C. P. 235, 251. (o) Stat. 3 & 4 Vict. c. 82, s. 1. See Hulkes v. Day, 10 Sim. 41. 1 In Maryland, New Jersey, Wisconsin, transfer of bank stock can be made by a and Pennsylvania, stock may be taken in debtor, after a judgment obtained against execution for the payment of debts: Md. him: New Dig. Laws of Ga., vol. i. p. 512. Code, p. 49, art. 10, § 19; Suppl. (1868), p. In Ohio the statutes give certain regula- 92, art. 26, sees. 198, &c. ; Nixon's Dig. lions respecting the manner in which a Laws of N. J. (1868), p. 294, | 7, Rev. creditor may proceed in chancery, against Stats, of Wis. (1858), p. 787, ^ 33 ; Purd. his debtor's equities, stock, &c., see 2 Rev. Dig. (1861), p. 432, § 12. In Georgia no Stats, of Ohio (1861), p. 1086, I 458, &c. 207 OF INCORPOREAL PERSONAL PROPERTY. session, reniaiiulcr or reversion, and whether vested or contingent, as well in such stock as in the dividends or annual produce thereof, and also to stock in which the debtor may be interested standing in the name of the accountant-general of the Court of Chancery. (jo) And in order to pre- vent any judgment debtor from disposing of the stock authorized to be charged, an order may be procured by the creditor, in tlie first in- stance ex parte^ restraining the Bank of England from permitting a transfer of the stock until the order shall either be made absolute (that is, confirmed and continued) or discharged ; and no disposition of the judgment debtor in the meantime is to be valid or effectual as acainst the creditor. And the order will be made absolute if the debtor do not, within a time mentioned in the order, show cause to the contrary.(5') When the debtor is entitled to the dividends of stock standing in the names of trustees, the order obtained by the creditor charging such dividends will be binding on the trustees ; but the Bank must still pay the dividends to the trustees as legal owners. (r) The history of the law respecting the transmission of stock by will affords a curious instance of the enactments of the legislature having been virtually overruled by the decisions of the Court of Chancery. The acts by which the funds were created provided, that any person possessed of r*9081 ^^^^^ might devise the same by will *in writing attested hy tivo or more credible witnesses, but that such devisee should receive no payment till so much of the will as related to the stock had been entered in the ofifice at the Bank ; and in default of such devise the stock should go to the executors or administrators. (s) The Court of Chancery however held, that as stock had been declared by parliament to be per- sonal estate, it must, like all other personal estate, devolve, in the first instance, on the executor for payment of debts, even though it should have been specially bequeathed ;(t) and that the executor, having it in his hands by virtue of his office of executor, was bound after payment of debts to dispose of it according to the will of his testator, even although such will were unattested.(w) For, previously to the act for the amend- {p) See Warburton v. Hill, 1 Kay 470 ; Haly v. Barry, Law Rep. 3 Ch. Ap. 452, 456, 457. (j) Stat. 1 k 2 Vict. c. 110, s. 15. (r) Churchill v. Bank of England, 11 M. & "W. 323 ; Bristead v. Wilkins, 3 Hare 235 ; and see Taylor v. Turnbull, 4 H. & N. 495. {«) Stat. 1 Geo. I. stat. 2, c. 19, s. 12, and subsequent acts. {t) Bank of England v. MofFatt, 3 Bro. C. C. 260 ; Bank of England v. Parsons, 5 Ves. 665; Bank of England v. Lunn, 15 Ves. 509. (m) Ripley v. Waterworth, 7 Ves. 440; Franklin v. Bank of England, Id. 575, 589. OF PERSONAL ANNUITIES, STOCKS AND SHARES. 208 ment of the laws with respect to wills,(a;) a will of personal estate required no attestation. In effect, therefore, a person was enabled to bequeath his stock by a will unattested. All wills, however, are not required to be attested by two witnesses. And by a recent act of par- liament the provisions of the old acts, which had virtually been disre- garded, have been formally repealed ; and it is declared that the stock of a deceased person may be transferred by his executors or administrators, notwithstanding any specific bequest or disposition thereof contained in the will ; but the Bank are not to be required to allow of such transfer, or of the receipt of any dividend on the stock, until the probate of the will or the letters of administration shall have been first left at the Bank for registration.^ And the Bank may require all the executors who (x) Stat. 7 Will. IV. & 1 Vict. c. 26. ^ The assent of the executor must be obtained, before a legatee can take pos- session of his legacy : McClanahan's Admr. V. Davis et. al., 8 How. 170 ; Rea v. Rhodes, 5 Ired. Eq. 148 ; Nunn v. Owens, 2 Strobh. 101 ; Hudson, Exr. v. Reeve, 1 Barb. S. C. 89 ; in which last case it was held, that where the executrix and legatee are the same person, the executrix, as such, might assent to the legacy to herself, and that assent would vest the title in her; and this is true also of specific legacies : West V. Smith et al., 8 How. 411 ; Lark et al. v. Linstead et al., 2 Md. Ch. Dec. 162 ; Christ V. Christ, Admr., 1 Cart. (Ind.) 570; Finch V. Rogers, 11 Humph. 559. And, if an exe- cutor refuses to assent to a legacy without adequate cause, the legatee may come into equity to compel an assent : Vaughan v. Vaughan, 30 Ala. 329 ; Lewis v. Darling, 16 How. (U. S.) 1. But the consent of the executor may be implied from the nature of the circumstances : Squires et ux. V. Old, 7 Humph. 454; Hall v. Hall, 27 Miss. 458; and the assent of an executor to the bequest of a life estate, operates as to the bequest of the remainder over, so that no new assent is necessary : Thrasher V. Ingram, 32 Ala. 645 ; Hotchkiss v. Thomas, 6 Jones L. 537 ; Gay v. Gay, 29 Ga. 549 ; and when once given cannot be retracted: Ross v. Davis, 17 Ark. 113; Dunham v. Elford, 13 Rich. Eq. 190 ; but the assent is no waiver of his right to a refunding bond: Nelson v. Cornwell, 11 Gratt. 724 ; and see, also, Rea v. Rhodes, 5 Ired Eq. 148 ; White v. White, 4 Dev. 257 ; Gums v. Capehart, 5 Jones Eq. 242 ; Suggs V. Sapp, 20 Ga. 100. A transfer agent of a corporation, before permitting the transfer of a portion of its stock, ap- pearing on the face of the certificate to be held in trust, has a right, especially if the cestui que trust is named, to require the exhibition of the authority to transfer, be- yond the certificate : Bayard v. F. & M. Bank, 52 Penn. St. 232. In the case of Norman et ux. v. Storer et al., 1 Blatch. C. C. 593, where $1000 was given to a legatee by will, the money to be raised out of the testator's estate, and paid over to the legatee, and the executor and trustee under the will, having raised the money, instead of paying it as 're- quired, purchased bank stock with it, in his own name, in trust for the legatee ; and afterwards, when called upon to account, sold the bank stock, and paid over the proceeds, $1460 34, to the duly authorized agent of the beneficiary, which •he received as and for the $1000 legacy, the stock having been sold with his knowledge and assent; it was held, that as there was no evidence that the legatee was advised of the purchase of the bank stock, or ever assented to it, the executor had a right to sell the stock and pay over the proceeds, for the stock did not belong to the legatee, and the executor was guilty of no conversion or wrong in selling it. 208 OF INCORPOREAL PERSONAL PROPERTY. shall have proved the will to concur in the transfer.(y) And the registry of specific bequests of *stock is no longer required, but merely [ -^"'J the rc'^istry of the names of the deceased party, and of his exe- cutor and administrators. (2) The next kind of incorporeal personal property which we shall men- tion are shares in joint stock companies. Joint stock companies were formerly of two kinds, those which were incorporate, or made into cor- f orations and those which were not so. Corporations are legal personages, always known by the same name, and preserving their identity through a perpetual succession of natural persons. They are either corporations 8o?g, composed only of one per- son, such as a bishop, a parson, or the chamberlain of London ; or cor- porations aggregate., composed of many persons acting on all solemn occasions by the medium of their common seal ;{a) and it is of such cor- porations that we are now about to speak. Such corporations may be created either by charter conferred by the queen's letters-patent, or by act of parliament.^ And, till a few years ago, all joint stock companies which had not obtained this expensive sanction were in fact private part- nerships on an extended scale. In the present reign however, as we shall hereafter see, provision has been made for the incorporation of all public joint stock companies ;(5) but such companies as are incorporated by letters-patent or special act of parliament still enjoy peculiar privileges. These companies therefore first require notice. The nature and incidents of shares in the joint stock of companies r*9101 incorporated by letters-patent or act of *parliament have gener- erally been determined by their respective charters or acts of incorporation. And in the great majority of cases, and in all the (y) Stat 8 & 9 Vict. c. 97, s. 1. {z) Sect. 2. (a) See Bac. Abr., tit. Corporations, 1 Black. Com. ch. 18. (6) Stat. 7 & 8 Vict. c. 110; partly repealed by stat. 20 & 21 Vict. C; 14, s. 23 ; 7 & 8 Vict. c. 113, partly repealed by stat. 20 & 21 Vict. c. 49, all now repealed by the Companies Act, 1862, stat. 25 & 26 Vict. c. 89. 1 In the United States, corporations are pursuing certain formalities. Special acts created in all cases, under the authority of incorporation, whether of Congress or of Acts of Congress, or of Acts of Assem- of Assembly, either themselves create the bly. These may be general or special corporations, or authorize the executive, acts. The former confer authority on on compliance with certain stipulated con- courts to grant charters in designated ditions, by the persons who desire to be cases, or allow individuals when associ- incorporated, to issue to such persons let- ated together, to incorporate themselves by ters-patent of incorporation. OF PERSONAL ANNUITIES, STOCKS AND SHARES. 210 modern charters and acts of incorporation, the shares are declared to be personal estate, and transmissible as such. In a few of the older com- panies, of which the New River Company is an instance,(e) the shares are real estate in t|he nature of incorporeal hereditaments. For the future, however, all the provisions contained in special acts for the incor- poration of joint stock companies will, as far possible, be the same. For an act of parliament has been passed "for consolidating in one act cer- tain provisions usually inserted in acts with respect to the constitution of companies incorporated for carrying on undertakings of a public nature."((^)^ Other acts have also been passed for consolidating certain provisions usually inserted in acts authorizing the taking of lands for undertakings of a public nature ;(e) in acts authorizing the making of railways ;(/) in acts for constructing or regulating markets and fairs ;(^) in acts authorizing the making of gasworks for supplying towns with gas :{h) or of waterworks for supplying towns with water ;(z) in acts for the making and improving of harbors, docks and piers ;{k) in acts for paving, draining, cleansing, lighting and improving towns ;{l) and in acts authorizing the making of cemeteries.(wi) In each of these acts enactments are made with respect to various matters ♦usually contained in acts of incorporation for the above pur- r^n-ji-i poses ; and it is provided that the clauses and provisions of these (c) Drybutter v. Bartholomew, 2 P. Wms. 127. (d) Stat. 8 & 9 Vict. c. 16, extended by stat. 26 & 27 Vict. c. 118, amended by stat. 32 & 33 Vict. c. 48. (e) Stat. 8 & 9 Vict. c. 18, extended by stat. 23 & 24 Vict. c. 106. (/) Stat. 8 & 9 Vict, a 20, extended by stat. 26 & 27 Vict. c. 92. See also stat. 27 & 28 Vict. c. 120, 27 & 28 Vict. c. 121, 30 & 31 Vict. c. 127, 32 & 33 Vict. c. 114. {g) Stat. 10 & 11 Vict. c. 14. (A) Stat. 10 & 11 Vict. c. 15. {{) Stat. 10 & 11 Vict. c. 17, extended by stat. 26 & 27 Vict. c. 93. {k) Stat. 10 & 11 Vict. c. 27. (l) Stat. 10 & 11 Vict. c. 34. (m) Stat. 10 & 11 Vict. c. 65. 1 General provisions relative to all cor- statutes analogous to the 8 & 9 Vict. c. porations have been enacted by the legis- 16, s. 4, &c., have not been without prece- latures of several of the states, Thomps. dentin this country: New Dig. Laws of Dig. of the Laws of Florida 268 to 284 ; Georgia (1851), by T. R. R. Cobb, vol. 1., Revis. Stats. Mass. (1860), pp. 384 to 389 ; 431 to 434 ; Stats, of S. C, vol. VI., 302 2 Compiled Laws, Michigan (1857), pp. to 306. The Manufacturing Companies' 699 to 706 ; N. H. Compiled Stats. (1867), Act, Purd. Dig. (1861), pp. 689 to 696; p. 275, &c. ; Nixon's Dig. Laws of N. J. and Purd. Dig. Suppl. (1871), pp. 1347 to (1868), pp. 167 to 173 ; 2 Revis. Stats, of 1351 ; Th« Turnpike Bridge and Plank N. Y. (1859), pp. 476 to 825 ; Revis. Stats. Road Companies' Act, Purd. Dig. (1861), of Vt. (1839), 378 to 394; 1 Matthews' Dig. pp. 979 to 988 ; The Railroad Companies' of Laws of Va. (1856), pp. 421 to 433; Act, Id. 835 to 850, and their respective Purd. Dig. (1861), pp. 194 to 202. And supplements. 211 OF INCORPOIIEAL PERSONAL PROPERTY. general acts, save so far as they shall be expressly varied or excepted by any special act, shall apply to every undertaking which shall there- after be authorized by act of parliament for any of the purposes above referred to. A uniformity is thus given to the constitution of such com- panies, and the length of the acts of parliament required to establish them has been greatly diminished. A short title, for the convenience of reference, is given to each act. The act first mentioned is called " The Companies Clauses Consolidation Act, 1845 ; "(w) the acts amending it are called "The Companies Clauses Act, 1863,"(o') and "The Com- panies Clauses Act, 1869; "(j)) and all the others have similar titles. The Companies Clauses Consolidation Act^ contains provisions with respect to the distribution of the capital of the company into shares, "which are to be personal estate, and transmissible as such ;[q) with re- spect to the transfer of shares, which must be by deed duly stamped, in which the consideration shall be truly stated,(r) and which cannot take place until the transferor shall have paid all calls for the time being due on every share held by him ;(.s') with respect to the transmission of shares by will, intestacy, marriage of a female, &c. ;{t) with respect to the pay- r*9i9-| meut of calls,(M) which *may be made payable by instalments,(t;) and the forfeiture of shares for nonpayment of calls ;{w) with respect to the remedies of creditors of the company against the share- holders,(a') which are confined to the extent of their shares in the capital (w) Stat. 8 & 9 Vict. c. 16, s. 4. (o) Stat. 2G & 27 Vict. c. 118. (p) Stat. 32 & 33 Vict. c. 48. (q) Stat. 8 & 9 Vict. c. 16, s. 7. (r) Sect. 14. («) Sect. 16 ; Hall v. Norfolk Estuary Company, Q. B. 16 Jur. 149; Regina v. Lon- donderry and Coleraine Railway Company, 13 Q. B. 998 (E. C. L. R. vol. 66) ; Hub- bersty v. Manchester, Sheffield and Lincolnshire Railway Company, 36 L. J. N. S. Q. B. 198. (l) Sects. 18, 19. (m) Sects. 21-28; see Wolverhampton New Waterworks Company v. Hawkcsford, 6 C. B. N. S. 336 (E. C. L. R. vol. 95). (v) Ambergate, &c. Railway Company v. Norcliffc, 6 Ex. Rep. 629. (w) Sects. 29-35. (z) Sect. 36. 1 In the preceding page, a reference has corporations, as for manufacturing pur- been made to several acts, analogous to poses, and the like. The advantage of the " Companies' Clauses Consolidation these enactments is found in the fact, that Act," and " the act for the registration, in- they form a general law, applicable to all corporation, and regulation of joint stock corporations falling under the class to companies," and among others, to the which they relate, and as such are drafted Pennsylvania Turnpike Act, and the Man- with more care, and more thoroughly con- ufacturing Companies' Act, of the same sidered ihan private bills of incorporation. State. Some of these acts are not entirely whereby many of the dangers resulting general, but relate to certain kinds of from hasty legislation are avoided. I OF PERSONAL ANNUITIES, STOCKS AND SHARES. 212 of the company not then paid up, and may be exercised only in case there cannot be found sufficient property or effects- of the company whereon to levy execution •,[y) with respect to the borrowing of money by the company,(2) the conversion of the borrowed money into capital, (a) the consolidation of the shares into stock, (5) general meetings,(c) the appointment and rotation of directors, ((?) the powers,(e) proceedings and and liabilities of the directors,(/) the appointment and duties of audit- ors,((7) the accountability of the officers of the company,(/i) the keeping of accounts,(«') the making of dividends(^) and of by-laws,(?) the settemcnt of disputes by arbitration, (w) the giving of notices,(n) the recovery of damages and penalties,(o) and appeals with respect to such damages or penalties to the quarter sessions ;(j^) and, lastly, with respect to aiford- ing access to the special act by all parties interested.(5') The provisions of the other acts are not of a nature to require enumeration. By a recent act of *parliament provision has been made for the exon- r^c)-i o-i eration from stamp duty of transfers of bonds and mortgages ^ *^ J given by public companies for money which by their acts of parliament they may be authorized to borrow on the original bond or mortgage being stamped in the first instance with three times the amount of the ad valorem duty over and above such duty.(r)^ Joint stock companies which had not obtained letters-patent or special acts of incorporation were formerly subjected to very great inconvenience whenever they had occasion to take legal proceedings against any person who happened to be a shareholder. And every shareholder in such companies was subjected to the like inconvenience whenever he' had (y) Devereux v. Kilkennj^, &c. Railway Company, 5 Ex. Rep. 834 ; Ilitchins v. Kil- kenny, &c. Railway Company, 10 C. B. 160 (E. C. L. R. vol. 70) ; Nixon v. Brownlow, 3H. & N. 686. (z) Stat. 8 & 9 Vict. c. 16, ss. 38-55. (a) Sects. 56-00. [b) Sects. 61-64. (c) Sects. 66-80. {d) Sects. 81-89. [e) Sects. 90, 91. (/) Sects. 92-100 ; Wilson v. West Hartlepool Harbor and Railway Company, Lds. Js., 11 Jur. N. S. 124. {g) Sects. 101-108. {h) Sects. 109-114.. (?) Sects. 115-119. {k) Sects. 120-123.. (I) Sects. 124-127. {m) Sects. 128-134.. (n) Sects. 135-139. (o) Sects. 142-158. {p) Sects. 159, 160. (?) Sects. 16L, 162. (/•) Stat. 16 & 17 Vict. c. 59, s. 14. 1 By the 170th sec. of the Act of Con- signment of a mortgage, where It, or the gress of June 30, 1804, as amended by the instrument it secures, has been once duly 4th sec. of the Act of July 13,1870, no stamped: Stats, at Large (1869-1870), stamp is required upon the transfer or as- p. 257. 18 213 OF INCORPOREAL PERSONAL PROPERTY. occasion to proceed against the company. For such a company, however extensive, was in law merely a partnership ; and a partner who owes money to the partnership of which he is a member, evidently owes a portion of it to himself according to his interest in the joint stock: and in like manner a partner who is a creditor claims part of his demand against himself. In each case, therefore, an account must be settled before the exact debt or credit of the partner can be asccrtained.(s) In order to obviate the difficulties which thus arose, many joint stock com- panies obtained special acts of parliament, enabling them to sue and be sued in the name of some officer. And an act of parliament(^) was passed empowering the crown to grant, by letters-patent, charters to companies for any trading or other purposes whatsoever, which, without incorpor- ating such companies, would empower them to sue and be sued in the name of some officer appointed and registered for the purpose. This r*oii"| *'^^* ^^ ^^^^^ ^^ force, and it contains a valuable provision, em- '- " powering the crown to limit, by the letters-patent, the liability of the individual members of the company for its engagements to a given extent per share.(w) Banking companies, whose shareholders are generally their customers, were peculiarly subject to the inconvenience above referred to in suing and being sued. Accordingly by modern statutes,(a;) all such banking companies as consisted of more that six mem- bers were allowed to appoint some public officer who must sue and be sued on behalf of the company.(y) More recently, however, two acts of parlia- ment were passed, the one incorporating public joint stock companies, the other for providing for the incorporation of joint stock banks. Each of these acts require some notice. The first act was intituled " An Act for the Registration, Incorpoi-a- tion and Regulation of Joint Stock Companies. "(2) This act applied to every joint stock company established for any commercial purpose, or for any purpose of profit, (a) or for the purpose of insurance (except banking companies, schools and scientific and literary institutions, and (s) Sec Richardson v. Bank of England, 4 Myl. & Cr. 1G5. [t) Stat. 7 WiU. IV. & 1 Vict. c. 73, repealing a former statute for a similar purpose, 4 & 5 Will. IV. c. 94. (m) Stat. 7 Will. IV. & 1 Vict. c. 73, s. 4. {x) Stats. 7 Geo. IV. c. 46, s. 9 et seq. ; 1 & 2 Vict c. 96 ; extended, 3 & 4 Vict. c. Ill ; made perpetual, 5 & 6 Vict. c. 85 ; 27 & 28 Vict. c. 32. (y) Chapman v. Milvain, 5 E.x. Rep. 61; Steward v. Greaves, 10 M. & W. 711. (z) Stat. 7 & 8 Vict. c. 110, amended by stat. 10 & 11 Vict. c. 78. (a) See The Queen r. Whitemarsh, 15 Q. B. 600 (E. C. L. R. vol. 69) ; Bear v. Bromley, 21 L. J. Q. B. 354.; .18 Q. B. 271 (E. C. L. R. vol. 83). OF PERSONAL ANNUITIES, STOCKS AND SHARES. 214 friendly, loan and benefit building societies duly certified and enrolled under the statutes in force respecting such societies ;{b) and the term "joint stock company" comprehended every partnership whereof the capital was divided or agreed to be divided into shares, and so as to be transferable without the express consent of all the copartners ; and also every insurance *company ; whether of lives, ships, or against fire p^o-i r-, or storm ; and every company for granting or purchasing jinnuities on lives ; and every friendly society insuring to an amount ex- ceeding 200^. upon one life or for any one person ; and also every part- nership which at its formation, or by subsequent admission (except any admission consequent on devolution or other act of law), should consist of more than twenty-five members. But the act did not apply to com- panies incorporated by statute or charter, nor to companies 'authorized to sue and be sued in the name of some officer or person. (c) This act, however, has since been repealed.(c^) It provided for the establishment of a registry oflfice, in which the name and business of every projected company, together with the names, occupations and places of business and residence of the promoters of the company, were required to be registered before they could proceed to make public, whether by way of prospectus, handbill or advertisement, any intention or proposal to form the company.(e) Further particulars were also to be registered as they should be decided on from time to time.(/) This registration, however, only enabled the company to act provisionally, and it was therefore termed jjrovisional registration. And before the company could act otherwise than provisionally, it was required to obtain a certificate of comjylete registration. This certificate could only be obtained on pro- duction of a deed of settlement of the company, according to the form set forth in the act, signed by at least one-fourth in number of the per- sons who at the date of the deed had become subscribers, and who should hold at least one-fourth of the maximum number of shares in the capital of the company. ((/) *This deed was required to be certified by r*2l «! two directors of the company in a given form, and along with it was to be produced a complete abstract or index of the deed, together with a copy of it for registration. Provision was also made for the registration, half-yearly or oftener, of all transfers of shares, and of changes in the names of the shareholders, (/i) and for an annual return (b) See post, p. 230. (c) Sect. 2. (d) Stat. 25 & 26 Vict. c. 89. (e) Stat. 7 & 8 Vict. c. 110, s. 4. See also stat. 10 & 11 Vict. c. 18, s. 7 ; Abbott v. Rogers, C. P. 1 Jur. N. S. 804 ; 16 C. B. 277 (E. C. L. R. vol. 81). (/) Stat. 7 & 8 Vict. c. 110, s. 4 ; 10 & 11 Vict. c. 78, ss. 4, 5, 6. (g) Stat. 7 & 8 Vict. c. 110, s. 7. (h) Stat. 7 & 8 Vict. c. 110, ss. 11-13. 21G OF INCORPOREAL PERSONAL PROPERTY. of tlic name and business of every company. (/) On complete registration being certified the company became incorporated{k) as from the date of the certificate, by the name of the company as set forth in the deed of settlement, with power to have a common seal, but on which was to be inscribed the name of the company, and with other poAvers necessary to the conduct of their aifairs,(Z) including a power to hold lands on obtain- ing a license for that purpose from the Board of Trade.(r/j) Provision was also made for the registry of joint stock companies then existing, and for the alteration of their deeds of settlement in order to comply with the provisions of the act.(w) The transfer of shares was required to be effected by deed in a given form, to be duly stamped, and in which the full amount of the pecuniary consideration for the sale was to be truly expressed. (o) But no sale or mortgage of any share was valid until the company had obtained a certificate of complete registration and the subscriber had been duly registered as a shareholder in the Registry Office ;(jo) and no transfer could be made if the transferor should not then have paid up the full amount due to the company on ever}'^ share held by him, unless there were a provision to the contrary in the deed r^oiTn of settlement.(^)* *Shareholders in these companies were liable .to the creditors of the company, if such creditors had used due diligence to obtain satisfaction by execution against the property of the company ; but after the expiration of three years next after any person should have ceased to be a shareholder, his liability ceased.(r) The act which provides for the incorporation of banking companies was intituled "An Act to regulate Joint Stock Banks in England. "(s) This act has now been repealed. (^) The incorporation eff'ected under the provisions of this act was by letters-patent, obtained, on petition, from the crown. The petition was referred to the Board of Trade, (?) Stat. 7 & 8 Vict. c. 110, s. 14. [k) Banwen Iron Company v. Barnett, 8 C. B. 406 (E. C. L. R. toI. 65). {l) Stat. 7 & 8 Vict. c. 110, s. 25. (m) Stat. 10 & 11 Vict. c. 78, 89. I, 2, 3. {n) Sects. 58, 5a. (o) Sect. 54. \p) Sect. 26 ; Ex parte Neilson, 3 De G., M. k G. 55G. {q) Sect. 54. (r) Sects. 66-68 ; Greenwood's case, 3 De G., M. & G. 459, 478 ; s. c. 18 Jur. 387, (a) Stat. 7 & 8 Vict. c. 113. {t) Stat. 25 & 26 Vict. c. 89. ^ Most of the charters of incorporation brief letter of attorney, signed by the in the United States, contain a clause en- owner of the stock, in the presence of a acting, that the shares thereof shall only witness, and directed to an officer of the be transferred on the books of the institu- bank, or in blank, authorizing him to tioD. This is, in general, eflFected by a transfer to the vendee- OF PERSONAL ANNUITIES, STOCKS AND SHARES. 217 on whose report a charter was granted to the company(tt) for a term not exceeding twenty years.(a;) Other provisions were also made for the registration of the company, the transfer of shares, the liability of shareholders, and other matters which it is now unnecessary to state.^ The main object of the two statutes above referred to was evidently to give publicity to the names of the real promoters and shareholders of joint stock companies, so that the public might know with whom they were dealing, and that those who reaped the benefit of such undertakings might also bear their proper share of the risk. Another object was to recognize, as legal personages, bodies which before had a legal existence, but had no convenient means of acting or of being acted on. In the same spirit another act of parliament was passed in the same session, " for facilitating the winding-up the affairs of joint stock companies unable to meet *their pecuniary engagements."(?/) By this act all incor- r;t:.9-|o-| porated or privileged companies for any commercial or trading purposes, including banking companies, (2) and also all joint stock com- panies within the definition contained in the act for their incorporation, (a) were made liable to bankruptcy in the same manner as private indi- viduals ; but the bankruptcy of the company was not to be construed to be the bankruptcy of any member of the company in his individual capacity.(6)^ This act, however, was almost entirely superseded by the (m) Stat. 7 & 8 Vict. c. 113, s. 3. (z) Sect. 6. (y) Stat. 7 & 8 Vict. c. Ill, amended by stat. 20 & 21 Vict. c. 78. (z) Stat. 7 & 8 Vict. c. 113, s. 48. (a) Stat. 7 & 8 Vict. c. 110, s. 2; ante, p. 214. (b) Stat. 7 & 8 Vict. c. Ill, s. 2. 1 By the laws of Pennsylvania, any nura- tion, cannot authorize the secretary to file ber of persons not less than five, asso- a petition for the purpose of having the elating together under the rules and corporation adjudicated a bankrupt. Such regulations, prescribed by the act of the action can only be taken by the majority legislature of that state, passed May 1, of the corporators; — that is, by the corpo- 1861, and known as the Banking Compa- rators holding a majority of the shares of nies Act, may become a body corporate, stock : Lady Bryan Mining Co., 4 B. R. for the period of twenty years: Purd. Dig. 36, 131. (1861), p. 78, &c., and Supplements. Railroad corporations are within the ^ See ante, p. 132, note 2 y. operation of the U. S. Bankrupt Act: A corporation created for the purpose of Adams t\ Boston, Hartford & Erie R. R. carrying on any lawful business, defined Co., 4 B. R. 99 ; 5 Id. 234 ; Alabama & by its charter, and clothed with power to Chattanooga R. R. Co. v. Jones, 5 Id. 97, do so, is such as is contemplated by the When the charter of a corporation does U. S. Bankrupt Act : Rankin v. Florida, not authorize it to carry on the business Atlantic & Gulf Central R. R. Co., 1 B. R. of a banker, broker, manufacturer, miner 196. The board of trustees of a corpora- or trader, it cannot come within the pro- 218 OF INCORPOREAL PERSONAL PROPERTY. "Joint Stock Companies Winding-up Act, 1848,"(c) as amended by the "Joint Stock Companies AVinding-up Amendment Act, 18-49,"(f^) under which an official manager was appointed, and a list of contributoriesmade out, on whom calls were made from time to time for payment of the debts and lial)ilities of the company. These acts again did not apply to com- panies registered under the " Joint Stock Companies Act, 1856,"(e) by which act° as several times amended,(/) joint stock companies were regu- lated, until the passing of the "Companies Act, lS6'2."{g) This act has repealed and consolidated all the former acts relating to joint stock companies. An act of parliament was passed in 1855 for limiting the liability of members of certain joint stock companies.(/2) Under this act any joint stock company to *be formed under the act 7 & 8 Vict. c. 110, '-"'-' other than an assurance company, with a capital to be divided into shares of a nominal value of not less than 10?. each, might obtain a certificate of complete registration with limited liability, upon complying with certain conditions. With reference to this act it was remarked in the third edition of the present work,(i) that it seems that all that can now be expected of an act of parliament is to introduce a principle to be worked out by subsequent amendments ; and that it was to be hoped that the principle of limited liability then introduced might by some future act be both more widely extended and more accurately applied. This was afterwards done by the Joint Stock Companies Acts, 1856,(^) and 1857,(?) and the Joint Stock Banking Companies Act, lSi>l,{m) as (c) Stat. 11 & 12 Vict. c. 45. (d) Stat. 12 & 13 Vict. c. 108, amended by stat. 20 & 21 Vict. c. 78; and see, as to railways, stat. 13 & 14 Vict. c. 83. (e) Stat. 19 & 20 Vict. c. 47, s. 108. (f) Stat. 20 & 21 Vict. c. 14; 20 & 21 Vict. c. 49 ; 21 & 22 Vict. c. GO; 21 & 22 Vict. c. 91. {ff) Stat. 25 & 26 Vict. c. 89; amended by stat. 30 & 31 Vict. c. 131. (A) Stat. 18 & 19 Vict. c. 133. («) Pp. 182, 183. (A) Stat. 19 & 20 Vict. c. 47. {I) Stat. 20 & 21 Vict. c. 14. (m) Stat. 20 & 21 Vict. c. 40. visions of the Bankrupt Act, as to suspcn- or member thereof, where such liability sion of commercial paper: Alabama & must be predicated of such judgment and Chattanooga R. R. Co. V. Jones, 5 B. 11.97. execution returned unsatisfied, a motion Where the effect of granting a stay upon on the part of such corporation defendant a judgment against a corporation bank- to stay proceedings after judgment must be rupt before execution returned, or setting denied, the corporation not being dis- aside an execution issued thereon, the chargeable under the Bankrupt Act : Allen stockholders being personally responsible, v. Soldiers' Business Messenger and Dis- would be to discharge a person, or officer, patch Co., 4 B. 11. 17G. OF PERSONAL ANNUITIES, STOCKS AND SHARES. 219 amended by subsequent acts,(w) all of -which are now repealed and con- solidated by the Companies Act, 1862, (o) as amended by the Companies Act, 1867.(2?) Under these acts seven or more persons associated for any lawful pur- pose, may by subscribing their names to a memorandum of association, and otherwise complying with the requsitions of the acts in respect of registration, form an incorporated company, with or without limited liability.(f/)^ But no banking company claiming to issue notes in the United Kingdom shall be entitled to limited liability in respect of such issue.(r) Not more than ten persons may carry on the business of bank- ing as partners, unless they are registered under this act, or are formed in pursuance of some other act of *parliament or of letters- r*2201 patent ; and no partnership consisting of more than twenty persons can now be formed for the purpose of carrying on any other business that has for its object the acquisition of gain by the partnership or by the individual members thereof, unless it be registered as a com- pany under this act, or be formed in pursuance of some other act of parliament, or of letters-patent, or be a company engaged in working mines within and subject to the jurisdiction of the Stannaries.(s) The liability of the members of a company formed under this act may, according to the memorandum of association, be limited either to the amount, if any, unpaid on the shares respectively held by them, or to such amount as the members may respectively undertake by the memo- randum of association to contribute to the assets of the company in the event of its being wound up.(^) In the former case, the company is said to be limited by shares ; and in the latter to be limited by guarantee. And the Companies Act, 1867, now provides, that the liability of the directors or managers, or managing director of a limited company, may, if so provided by the memorandum of association or fixed by special resolution, be unlimited.(w) (n) Stat. 20 & 21 Vict. c. 80 ; 21 & 22 Vict. c. 60; 21 & 22 Vict. c. 91. (o) Stat. 25 & 26 Vict. c. 89. (p) Stat. 30 & 31 Vict. c. 131. {g) Stat. 25 & 26 Vict. c. 89, s. 6. (r) Sect. 182. (s) Sect. 4. (t) Sect. 7. (u) Stat. 30 & 31 Vict. c. 131, ss. 4-8. 1 The liability of the stockholders of in- most generallj' limited, either upon the corporations, is in general regulated by the amount the stockholder has subscribed, charter, or the general laws under which or the amount he has actually paid up the incorporation has come into existence ; towards the capital stock of the corpora- this liability is sometimes absolute ; but tion, or is bound to contribute. 220 OF INCORPOREAL PERSONAL PROPERTY. The memorandum of association of a company limited by shares must contain the following things : — 1. The name of the company with the addition of the word "limited," as the last word of such name. 2. The part of the United Kingdom in which the registered office of the company is proposed to be situate. 3. The object for which the company is to be established. *■!. A declaration, that the liability of the members is ^ -■ limited. 5. The amount of capital with which the company proposes to be reo-istered, divided into shares of a certain fixed amount ; sub- ject to the following regulations : 1. That no subscriber shall take less than one share. 2. That each subscriber of the memorandum of association shall write opposite to his name the number of shares he takes. (a:) When the company is limited by guarantee, its memorandum of asso- ciation must contain the first three of the above-mentioned requisites; and, (4), a declaration, that each member undertakes to contribute to the assets of the company, in the event of the same being wound up during the time that he is a member, or within one year afterwards, for pay- ment of the debts and liabilities of the company contracted before the time at which he ceases to be a member, and of the costs, charges and expenses of winding up the company, and for the adjustment of the rights of the contributories amongst themselves, such amount as may be required, not exceeding a specified amount.(?/) If no limit be placed on the liability of the members the company is called an unlimited company, and its memorandum of association must contain only the following things : — 1. The name of the company. 2. The part of the United Kingdom in which the registered office of the company is proposed to be situate. [*222] *3. The objects for which the company is to be established.(z) The memorandum of association must bear the same stamp as if it were a deed, and must be signed by each subscriber in the presence of and be attested by one witness at the least. When registered, it binds the company and the members thereof to the same extent as if each (x) Stat. 25 & 2G Vict. c. 89, s. 8. (y) Sect. 9. (z) Sect. 10. OF PERSONAL ANNUITIES, STOCKS AND SHARES. 222 member had subscribed his name and affixed his seal thereto, and there were contained in the memorandum a covenant on the part of himself, his heirs, executors and administrators, to observe all the conditions of such memorandum, subject to the provisions of the act. (a) No altera- tion can be made by any company in the conditions contained in its memorandum of association ; except that a company limited by shares may increase its capital by the issue of new shares of such amount as it thinks expedient, or may consolidate and divide its capital into shares of larger amount than its existing shares, or convert its paid-up shares into stock ;{b) and except that any company may, with the sanction of a special ' resolution of the company as after mentioned, and with the approval of the Board of Trade, change its name ; but such change will not affect any of the rights or obligations of the company.(c) And the Companies Act, 1867, now empowers any company limited by shares to modify by special resolution the conditions of its memorandum of association so as to reduce its capital, provided the sanction of the court be obtained.((^) The same act also empowers any company limited by shares to divide its capital or any part thereof into shares of a smaller amount than originally fixed by its memorandum of association ; provided that *the proportion r*223'| between the amount which is paid, and the amount (if any) which is unpaid, on each share of reduced amount, shall be the same as it was in the case of the existing share or shares from which the share of reduced amount is derived. (e) The memorandum of association may in the case of a company limited by shares, and must in the case of a company limited by guarantee or unlimited, be accompanied, when registered, by articles of association signed by the subscribers to the memorandum of association, and pre- scribing such regulations for the company as the subscribers shall deem expedient. These articles must be expressed in separate paragraphs numbered arithmetically. The act contains a Table marked A, in the first schedule thereto, of provisions, all or any of which may be adopted in the articles of association. (/) The regulations contained in this Table will, if not excluded or modified by the articles, be deemed, so far as they are applicable, to be the regulations of every company limited by shares.(^) The articles of association must be printed and stamped as if they were contained in a deed, and must be signed and attested in the (a) Stat. 25 & 26 Vict. c. 89, s. 11. (b) Sect. 12. (c) Sect. 13. (d) Stat. 30 & 31 Vict. c. 131, s. 9-20. (e) Stat. 30 & 31 Vict. c. 131, s. 121. (/) Stat. 25 & 26 Vict. c. 89, s. 14. Iff) Sect. 15. 223 OF INCORPOREAL PERSONAL PROPERTY. same manner as the memorandum of association ; and when registered, tliey bind the company and the members thereof to the same extent. (A) The memorandum and articles, if any, are to be registered by the regis- trar of joint-stock companies ;{{) and thereupon the company is incorpo- rated, with power to hokl lands ; and a certificate of the incorporation of any company given by the registrar shall be conclusive evidence that all the requisitions of the act in respect of registration have been complied r*oo n '^vith.(A-) No company formed for the *purpose of promoting art, science, religion, charity or any other like object, not involving the acquisition of gain by the company, or by the individual members thereof, shall, without the sanction of the Board of Trade, hold more than two acres of land : but the Board of Trade may, by license under the hand of one of their principal or assistant secretaries, empower any such company to hold lands in such quantity and subject to such condi- tions as they think fit.(Z) All shares are to be personal estate.(w) Every company is required to keep a register of its members ;(w) and every company having a capital divided into shares is required to make out an annual list of its members, with other particulars, and to forward a copy thereof to the registrar of joint-stock companies.(o) No notice of any trust, expressed, implied or constructive, is to be entered on the register. (p) And a certificate under the common seal of the company, specifying any shares or stock held by any member, is pn'w^c? facie evi- dence of his title to the shares or stock therein specified. (g) And the register of members is primd facie evidence of any matters by the act directed or authorized to be inserted therein. (r) Every company is bound by the act to have a registered office, to which all communications and notices may be addressed. (s) And every limited company must keep its name painted or afiixed on the outside of every office or place of business of the company, in a conspicuous posi- tion, in letters easily legible, and must have its name engraven in legible characters on its seal, and must have its name mentioned in legible characters *in all notices, advertisements, bills, notes, endorse- ments, checks, orders for money or goods on behalf of the com- pany, and in all bills of parcels, invoices, receipts and letters of credit of the company.(^) But associations not for profit may, by license of the [*22o] (A) Stat. 25 & 2G Vict. c. 89, s. (k) Sect. 18. (wi) Sect. 22. (o) Sect. 26. (g) Sect. 31. («) Sect. 39. 10. (i) Sect. 17. (/) Stat. 25 & 26 Vict. c. 89, (n) Sect. 25. (p) Sect. 30. (r) Sect. 37. (/) Sect. 41. s. 21. GF PERSONAL ANNUITIES, STOCKS AND SHARES. 225 Board of Trade, be registered with limited liability, without the addition of the word limited to their names.(w) Every limited company is re- quired to keep a register of all mortgages and charges specifically affect- ing the property of the company, (a;) And every limited banking company, and every insurance company, and deposit, provident or benefit society under the act, is required before it commences business, and afterwards on the the first Monday in February and the first Monday in August in every year, to make a statement of its capital, liabilities and assets in a given form, to be put up in a conspicuous place in the office of the company.(7/) Subject to the provisions of the act, and to the conditions contained in the memorandum of association, any company formed under the act may, in general meeting, from time to time, by passing a special resolution in manner after mentioned, alter all or any of the regulations of the com- pany contained in the articles of association, or in the table marked A. in the first schedule, where such table is applicable to the company ; or make new regulations to the exclusion of or in addition to all or any of the regulations of the company ; and any regulations so made by special resolution shall be deemed to be regulations of the company of the same validity as if they had been originally contained in the articles of asso- ciation, and shall be subject in like manner to be altered or modified by any subsequent *special resolution. (s) A resolution passed by r>i:oo(:?-| a company under the act is deemed to be special whenever a resolution has been passed by a majority of not less than three-fourths of such members of the company for the time being entitled, according to the regulations of the company, to vote as may be present, in person or by proxy (in cases where by the regulation of the companies proxies are allowed), at any general meeting of which notice specifying the inten- tion to propose such resolution has been duly given ; and such resolution has been confirmed by a majority of such members for the time being entitled, according to the regulations of the company, to vote as may be present, in person or by proxy, at a subsequent general meeting, of which notice has been duly given, and held at an interval of not less than fourteen days, nor more than one month from the date of the meet- ing at which such resolution was first passed : At any such meeting, unless a poll is demanded by at least five members, a declaration of the chairman that the resolution has been carried shall be deemed conclusive evidence of the fact, without proof of the number or proportion of the (2i) Stat. 30 & 31 Vict. c. 131, s. 23. (z) Stat. 25 & 26 Vict. c. 89, s. 43. (y) Sect. 44. (z) Sect. 50. 226 OF INCORPOREAL PERSONAL PROPERTY. votes recorded in favor or apjainst the same. Notice of any such meet- ing shall be deemed to be duly given, and the meeting to be duly held, whenever such notice is given and meeting held in manner prescribed by the regulations of the company. In computing the majority when a poll is demanded, reference shall be had to the number of votes to which each member is entitled by the regulations of the company. (a) A copy of every special resolution must be printed and registered, (6) and must be annexed to or embodied in every copy of the articles of association that may be issued after the passing of such resolution.((?) r^.o.^T-i -^Contracts on behalf of any company may be made as fol- *( lows : — (1.) Any contract which, if made between private persons would be by law required to be in writing, and if made according to English law to be under seal, may be made on behalf of the company in writing under the common seal of the company, and such contract may be in the same manner varied or dis- charged. (2.) Any contract which, if made between private persons would be by law required to be in writing and signed by the parties to be charged therewith, may be made on behalf of the company in writing signed by any person acting under the express or implied authority of the company, and such contract may in the same manner be varied or discharged. (3.) Any contract, which, if made between private persons would by law be valid, although made by parol only and not reduced into writing, may be made by parol on behalf of the company by any person acting under the express or implied authority of the company, and such contract may in the same way be varied or discharged, (c?) Shares in joint stock companies are transferred by deed registered at the office of the company. But the Companies Act, 1867, provides, in the case of a company limited by shares, for the issue of share warrants with respect to shares fully paid up, or with respect to stock ;{e) and these warrants entitle the bearer to the shares or stock specified in them, and such shares or stock may be transferred by delivery of the share warrant. (/) (a) Stat. 25 & 2G Vict. c. 89, s. 51. (b) Sect. 53. (c) Sect. 54. (d) Stat. 30 & 31 Vict. c. 131 s. 37. (e) Sects. 27-33. (/) Sect. 28. OF PERSONAL ANNUITIES, STOCKS AND SHARES. 228 *Provision is made for the winding-up of Joint Stock Compa- r*99g-| nies either by the court(^) or voluntarily ;(A) and if volun- tarily, the winding-up may by the order of the court be subject to its supervision. (i) The court to which this jurisdiction is given is the Court of Chancery, except in the case of mines subject to the jurisdic- tion of the Stannaries ; but where the Court of Chancery makes an order for winding up a company under the act, it may, if it think fit, direct all subsequent proceedings for Avinding up the,same to be had in the County Court.(A:) The winding-up is effected by liquidators appointed for that purpose, and who if appointed by the court are styled official liquida- tor8.(Z) All persons liable to contribute to the assets of a company under the act, in the event of its being wound up, are called contributo- ries.(w) The liability of contributories is regulated by the following rules :(n) — 1. No past member shall be liable to contribute to the assets of the company, if he has ceased to be a member for a period of one year or upwards prior to the commencement of the winding-up : 2. No past member shall be liable to contribute in respect of any debt or liability of the company contracted after the time at which he ceased to be a member : 3. No past member shall be liable to contribute to the assets of the company unless it appears to the court that the existing mem- bers are unable to satisfy the contributions required to be made by them in pursuance of the act : 4. In the case of a company limited by shares, no *contribu- r*2291 tion shall be required from any member exceeding the amount, if any, unpaid on the shares in respect of which he is liable as a present or past member: 5. In the case of a company limited by guarantee, no contribution shall be required from any member exceeding the amount of the undertaking entered into on his behalf by the memorandum of association : 6. Nothing in the act contained shall invalidate any provision con- tained in any policy of insurance or other contract, whereby the liability of individual members upon any such policy or (g) Stat. 25 & 26 Vict. c. 89, ss. 79-128. See also stat. 30 & 31 Vict. c. 131, s. 40. {h) Stat. 25 & 26 Vict. c. 89, ss. 129-146. (t) Sects. 147-152. (k) Stats. 25 & 26 Vict. c. 89, s. 81 ; 30 & 31 Vict. c. 131, ss. 41, 42. (l) Stat. 25 & 26 Vict. c. 89,-ss. 92-97, 133-144. (m) Sect. 74. («) Sect. 38. 229 OF INCORPOREAL PERSONAL PROPERTY. contract is restricted, or whereby the funds of the company are alone made liable in respect of such policy or contract : 7. No sum due to any member of a company, in his character of a member, by way of dividends, profits or otherwise, shall be deemed to be a debt of the company payable to such member in a case of competition between himself and any other creditor not being a member of the company ; but any such sum may be taken into account for the purposes of the final adjustment of the rights of the contributories amongst themselves. Acts have since been passed to enable joint-stock companies carrying on business in foreign countries to have official seals to be used in such countries, (o) and to enable certain companies to issue mortgage deben- tures founded on securities upon or affecting land, and to make provi- sion for the registration of such mortgage debenture and securities.( j^) *Shares in joint stock companies are not goods^ wares or mer- •- " -^ chandise within the 17th section of the Statute of Frauds ; so that they do not require a written memorandum for a contract for their sale, when the value exceeds 10?., and the buyer does not accept and receive any part, nor give something in earnest to bind the bargain or in part-payment. (5) And such shares Avere not considered to be stock within the meaning of the Stock Jobbing Act above mentioned and now repealed.(r) But the sale of shares in joint stock banks is now void un- less the contract shall set forth in writing the numbers of the shares in the registry of the company, or, where there is no register by distin- guishing numbers, then the names of the registered proprietors of the shares at the time of making the contract. (s) Several acts of parhament have been passed for the encouragement of friendly societies, for the mutual relief of their members and their families in case of sickness, old age, death, or other contingencies ;(0 all of which are now consolidated into one act.(w) The rules of these (o) Stat. 27 Vict. c. 19. (p) Stat. 28 & 29 Vict. c. 78. (q) Humble v. Mitcliell, 11 Ad. & E. 205 (E. C. L. R. vol. 39) ; Kniglit v. Barber, IG M. & W. 66 ; Bowlby v. Bell, 3 C. B. 284 (E. C. L. R. vol. 54). See ante, p. 40. (r) Hewitt v. Price, 4 M. & G. 355 (E. C. L. R. vol. 43) ; Williams v. Tyre, 18 Beav. 366 ; ante, p. 203. (s) Stat. 30 Vict. c. 29. (t) Stat. 10 Geo. IV. c. 56, amended by 4 & 5 Will. IV. c. 40 ; 3 & 4 Vict. c. 73 ; 9 & 10 Vict. c. 27 ; 13 & 14 Vict. c. 115 ; 15 & 16 Vict. c. 65 ; 16 & 17 Vict. c. 123 ; 17 & 18 Vict. c. 101. (u) Stat. 18 & 19 Vict. c. 63, amended by stats. 21 & 22 Vict. c. 101 ; 23 & 24 Vict. c. 58 ; 30 k 31 Vict. c. 117, and 32 & 33 Vict, c. 61. OF PERSONAL ANNUITIES, STOCKS AND SHARES. 230 societies are required to be certified by the registrar of friendly societies, and in whose custody a transcript of the rules of every friendly society is now required to be kept. (a;) And it is now provided that *the r*23ll registrar of friendly societies shall not grant any certificate to any society assuring to any member thereof a certain annuity or super- annuation, deferred or immediate, unless the table of contributions pay- able for such kind of assurance shall have been certified under the hand of the actuary to the commissioners for the reduction of the national debt, or by an actuary to some life assurance company in London, Edin- burgh, or Dublin who shall have exercised the profession of actuary for at least five years. (?/) On the death or removal of any trustee of one of these societies, the whole property of the society vests in the succeeding trustee for the same estate and interest as the former trustee had therein, and subject to the same trusts, without any assignment or conveyance T/hatever, except the transfer of stock and securities in the public funds. (2) And on the death, bankruptcy or insolvency of any officer of any such society, or on any execution issuing against him, or on his making any assignment or conveyance for the benefit of his creditors, the money or effects in his hands belonging to the society are to be paid over and delivered to the society before any other of his debts are paid. (a) Acts of parliament have also been passed to legalize the formation of industrial and provident societies for carrying on trades or handicrafts in common, (6) and many of the provisions which relate to friendly societies apply also to these institutions. (c) Loan societies are regulated by another act of parliament, which, after having been long periodically con- tinued, is now made perpetual. ((^) Other acts of *parliament r^ooQ-i have recently been passed for the regulation of savings banks ;(e)^ and particularly for the establishment of savings banks in connection with the post-office, (/) — banks which, having the security of a govern- ment guarantee, are a great boon to the poorer classes. (x) Stat. 18 & 19 Vict. c. 63, s. 26. A transcript of the rules was formerly required to be enrolled with the clerk of the peace. Stat. 4 & 5 Will. IV. c. 40, s. 4. {y) Stat. 18 & 19 Vict. c. 63, s. 26. (z) Sect. 18. (a) Sect. 23. (6) Stat. 15 & 16 Vict. c. 31, amended by stats. 17 & 18 Vict. c. 25, and 19 & 20 Vict. c. 40 ; repealed and consolidated by stat. 25 & 26 Vict. c. 87, amended by stat. 30 & 31 Vict. c. 117. (c) Stats. 25 & 26 Vict. c. 87, s. 15 ; 30 & 31 Vict. c. 117, s. 3. {d) Stat. 3 & 4 Vict. c. 110, made perpetual by stat. 26 & 27 Vict. c. 56. (e) Stat. 26 & 27 Vict. c. 87. (/) Stats. 24 Vict. c. 14; 26 Vict. c. 14, and 32 & 33 Vict. c. 59, 1 For statutory regulations resembling respecting Savings Institutions and Loan those spoken of in the text, see the acts Companies, Purd. Dig. (1861), p. 106. 232 OF INCORPOREAL PERSONAL PROPERTY. An act of parliament also exists for the regulation of benefit building Societies.((/)' The funds of these societies are raised bj monthly con- tributions of the members, which must not exceed 20s. per share, and by fines for non-payment. These shares must not exceed the value of 150/. each ; but any member may hold more than one share.(7i) When the amount of the shares has been realized, the money is divided amongst the members, and the society is dissolved. Such members, however, as may wish to buy land or to build, may receive the amount of their shares in advance on payment of an additional subscription by way of interest, and also on payment of a bonus for the advance, which of course is deducted from the amount of the share advanced. This bonus is usually determined by competition amongst the members, the shares to be paid in advance being put up by auction by the society ; and the subscrip- tions and fines to become due in respect of the advanced shares are then secured to the society by the purchasers, by mortgage of land or houses of sufficient value.(«) These mortgages are not *liable to stamp L'iiodJ (-1^^^,^^^^ provided they be made by a member for securing the repayment to the society of money not exceeding five hundred pounds ; but in other cases the stamp duty now attaches.(/) These mortgages were also exempt from any of the forfeitures or penalties formerly in force against us\xrj.{inf And a receipt for the moneys secured, endorsed (g) Stat. 6 & 1 Will. IV. c. 32. {h) Morrison v. Glover, 4 Ex. Rep. 430. (i) See Moseley v. Baker, 6 Hare 87 ; 3 De G., M. & G. 1032 ; Doe d. Morrison v. Glover, 15 Q. B. 103 (E. C. L. R. vol. 69) ; Seagrave v. Pope, 1 De G., M. & G. 783; Fleming v. Self, Kay .518; 3 De G., M. & G. 997 ; Farmer v. Smith, 4 H. & N. 19G; Sparrow v. Farmer, 26 Beav. 511 ; Smith v. Pilkington, 1 De G., F. & J. 120. {k) Walker v. Giles, 6 C. B. 662 (E. C. L. R. vol. GO) ; Williams v. Hayward, 22 Beav. 220. [1) Stat. 31 & 32 Vict. c. 124, s. 11. (m) Stat. 6 & 7 Will. IV. c. 32, s. 2. 1 An act of the legislature of Pennsyl- and provisos therein mentioned. By an vania, passed the 22d day of April, 1850, act of the 3d of April, 1851, the above empowers, " any number of persons, citi- provisions are extended to Montgomery zens of the city and county of Philadelphia, county. By the Act of the 2Ist of April, and the counties of Schuylkill and Berks," 1852, they are extended to Delaware " who are associated, or who mean to as- county ; and by the Act of the 14th of sociate'' "for the purpose of forming April, 1853, they are extended to Alle- rautual savings fund, land and building gheny county ; and by subsequent stat- associations,' to make application for in- utes, the act is still further extended : corporation "to the Court of Common Purd. Dig. (1861), p. 129. Pleas of the proper county, in which said ^ But such a provision, will not exoner- corporation or body politic in law, is in- ate all contracts made by such associations tended to be situated ;" and the said courts with their members, from the operation of are thereby authorized to incorporate the the statute relating to usury : Savings Bk. said associations, •^nder the stipulations v. Wilcox, 24 Conn. 147 ; Martin v. Nash- OF PERSONAL ANNUITIES, STOCKS AND SHARES. 233 by the trustees of the society upon any such mortgage, vests the estate comprised in the security in the person entitled to the equity of redemp- tion, without any reconveyance.(w) Under cover of the Building Socie- ties Act, many societies called freehold land societies have been established for the purpose of buying freehold land and selling it again in lots to the * different members ; but these societies are not within the scope of the building and friendly societies acts, and can only be certified as such by the concealment of their real object.(o) An act has also been passed for facilitating the erection of dwelling- houses for the laboring classes,(|)) under which any number of persons, not less than six, may by subscribing articles of association form them- selves into a company for the purposes of the act. The articles are to be in a given form, and to be registered by the registrar of joint stock companies. And the Companies Clauses Consolidation Act, 1845, is incorporated into the act, the articles of association being deemed the special act. The provisions above referred to for charging the *stock of r^Qg n any debtor with the payment of any judgment debt,(^) extend to stock and shares in any public company in England, whether incor- porated or not.(r) (n) Stat. 6 & 7 Will. IV. c. .32, s. 5 ; Prosser v. Price, 28 Beav. G8 ; Pearce v. Jack- son, Law Rep. 3 Ch. Ap. 576. (o) See Grimes v. Harrison, 26 Beav. 435 ; Hughes v. Layton, Q. B., 10 Jur. N. S. 513. {p) Stat. IS & 19 Vict. c. 132. See also stat. 29 Vict. c. 28 ; 30 Vict. c. 28, and 31 &32 Vict. c. 130. [q) Ante, p. 206. (r) Stat. 1 & 2 Vict. c. 110, s. 14. See Nicholls v. Rosewarne, 6 C. B. N. S. 480 (E. C. L. R. vol. 95). ville Building Association, 2 Cold. 418. it is declared, that the true intent and In Pennsylvania it has been held, that meaning of the acts of the legislature, in building associations cannot recover on relation to building associations is, that their mortgage loans, more than the sum premiums taken by the said associations loaned, with the actual interest thereon: should not be deemed usurious. Houser v. Hermann Building Association, See also further on the subject of build- 41 Penn. St. 478; Denny f. West Phila- ing associations, the following decisions delphia Association, 39 Id. 154 ; Reiser v. supporting the doctrine stated in the text : Saving Fund, Id. 137; and this judgment Poraeroy v. Ainsworth, 22 Barb. 118; has been reiterated in McGrath v. Haniil- Citizens' Mutual Loan Association v. ton Savings and Loan Association, 44 Webster, 25 Id. 263; West Winstead Saving Penn. St. 385, decided subsequently to the Bank v. Ford, 27 Conn. 282. Act of 1859, in the eighth section of which 19 234 OF INCORPOREAL PERSONAL PROPERTY. The prerogative of the crown in the grant of letters-patent is fre- quently exercised not only for the incorporation of joint stock companies, but also for conferring on private individuals certain exclusive rights and privileges. These rights, called patents from the letters-patent which confer them, will be considered in the next chapter. ♦CHAPTER II. [*235] OF PATENTS AND COPYRIGHTS. A PATENT is the name usually given to a grant from the crown, by letters- patent, of the exclusive privilege of making, using, exercising and vending some new invention. The granting of such letters-patent is an ancient prerogative of the crown, a prerogative which remains unaffected by the ' Patent Law Amendment Act, 1852. (a) In the reign of Queen Elizabeth this prerogative was stretched far beyond its due limits, and the mono- polies thus created formed one of the grievances which King James, her successor, was at last obliged to remedy. Accordingly by a statute passed in the" twenty-first year of his reign, and commonly called the Statute of Monopolies,(6) it was declared and enacted that all such monopolies were altogether contrary to the laws of this realm, and so were and should be utterly void and of none effect, and in no wise put in use or execution. In this statute, however, there are certain exceptions, and particularly one on which the modern law with respect to patents maybe said to be founded. This exception is as follows: "Provided also and be it declared and enacted, that any declaration before men- tioned shall not extend to any letters-patent and grants of privilege for the term of fourteen years or under, hereafter to be made, of the sole working or making of any manner of new manufactures within this realm, to the true and first inventor and inventors of such manufactures, which others at the time of making such letters-patent and *grants r*236'| shall not use, so also they be not contrary to the law or mischiev- ous to the state, by raising prices of commodities at home, or hurt of trade, or generally inconvenient; the said fourteen years to be accounted from the date of the first letters-patent or grant of such privilege here- after to be made: but that the same shall be of such force as they should be if this act had never been made, and of none other."(c) It will be seen that the granting of letters-patents is not expressly warranted by this statute; but that it merely reserves to such letters- patent as fall within the terms of the exception, such force as they should {a) Stat. 15 & 16 Vict. c. 93 ; see sect. 16. (i) Stat. 21 Jac. I. c. 3. (c) Stat. 21 Jac. I. c. 3, s. 6. 236 OF INCORPOREAL PERSONAL PROPERTY. have bad if the act had never been made, and none other force. As, however, all grants of exclusive privilege by letters-patent, which do not fall within this exception, and some others of little importance, are now rendered void by the statute, the construction of this exception has become a matter of great practical importance. And, first, the term must hefourteeyi years from the date of the letters-patent, or under; and the full term of fourteen years is usually granted. But it is now pro- vided, that all letters-patent for inventions, granted under the provisions of the Patent Law Amendment Act, 1852, shall be made subject to the condition that the same shall be void, and that the powers and privileges thereby granted shall cease, at the expiration of three and seven years respectively from the d'ate thereof, unless there be paid before the expira- tion of the said three and seven years respectively, certain stamp duties mentioned in the act, namely, 50?. stamp duty before the expiration of the third year, and 100?. stamp duty before the expiration of the seventh year.(tZ) These payments appear high, but they are a great improve- ment on the old law, under which heavy fees and duty were payable *on taking out every patent ; whereas now, if a patent prove useless, *- '^ -'it may be discontinued, and the payment saved, liy a modern act of p!irliament,(e) a prolongation of the term granted by the original letters-patent may be granted, either to the original grantor or to his assignee,(/) for a term not exceeding seven years after the expiration of the first term in case the Judicial Committee of the Privy Council shall, upon proper application, report to her Majesty, that such further exten- sion of the term should be granted. And if such further period of seven years can be shown to be insufficient for the reimbursement and remuneration of the expense and labor incurred in perfecting the invention, then, by a subsequent statute,(,9) the crown may grant to the inventor, or his assignee, an extension of the patent for any time not QXCQdiWwg fourteen years. ^ {d) Stat. 16 & 17 Vict. c. 5, 3. 2 ; Williams v. Frost, 28 Bear. 93. (e) Stat. 5 & 6 Will. IV. c. 83, s. 4, amended 2 & 3 Vict. c. 67 ; and extended by stats. 15 & 16 Vict. c. 83, s. 40, and 16 & 17 Vict c. 115, s. 7. (/) Russell V. Ledsam, 14 M. & W. 574; affirmed, 10 M. & W. 633 ; 1 H. of L. Cases 687. {g) Stat. 7 & 8 Vict. c. 69, ss. 2, 4, continued by stats. 15 & 10 Vict. c. 83, s. 40, and 16 & 17 Vict. c. 115, s. 7; In Re Norton's Patent, P. C, 9 Jur. N. S. 419; 11 W. R. 720; Re Hill's Patent, P. C, 9 Jur. N. S. 1209 ; 12 W. R. 25. 1 The acts of Congress in relation to pat- that day. And by the last section of an ents, which had been enacted prior to act entitled " An Act to revise, consolidate the 4th of July, 1836, were repealed by and amend the statutes relating to patents the last section of the act approved on and copyrights, approved on the eighth of OF PATENTS AND COPYRIGHTS. 237 Secondly, the patent must be for "new manufactures within this realm, which others at the time of making such letters-patent and grants July, 1870, Statutes at Large (1869-1870), p. 198, the said act of the fourth of July 1836, and all other acts relating to patents and copyrights, as enumerated in the last section of the said act of 1870, were repealed. This last act, was the re- sult of an effort to condense or codify under one single title, all the laws of the United States on the subject of patents and copyrights, and the general features of those laws as existing before the pass- age of the latter act, have been therein re-enacted, so that its provisions may be regarded as substantially the same as those contained in the former laws of the United States on these subjects. By the twenty-fourth section of this act, it is enacted " that any person who has invented or discovered any new and useful art, machine, manufacture, or composition of matter, or any new or useful improvement thereof, not known or used by others in this country, and not patented, or described in any printed publication in this or any foreign coun- try, before his invention or discovery thereof, and not in public use or on sale for more than two years prior to his application, unless the same is proved to have been abandoned, may upon pay- ment of the duty required by law, and other due proceedings had, obtain a patent." The twenty-fifth section of this act pro- vides, that an inventor shall not be debarred of his right to a patent by reason of a prior patent for the discovery or invention in a foreign country, provided that the same has not been introduced into the United States for more than two years previous to his application for a patent, and that the patent shall expire at the same time with the foreign patent, or in case of there being more than one foreign patent, with the expiration of that one having the shortest time to run, but in no case to exceed the limitation of seventeen years, which by the twenty-second section of said act is fixed upon as the period during which a patent shall run. The "due proceedings" for the obtaining of a patent prescribed by said act, are contained in sections twenty-six to thirty-four inclu- sive, wherein the mode of making claim therefor is regulated, and the rules in rela- tion to the certainty of specification neces- sary to the perfecting of a claim for a patent presented ; and a schedule of the offi- cial charges is contained in the sixty-eighth section of said act ; but no patent is to be held void on account of previous use in a foreign countrj', if the patentee believed himself to be the original and first inven- tor and discoverer, if it had not been patented or described in a printed publi- cation : sec. 62 ; and patents granted prior to the second of March, 1861, may be extended for the period of seven years and to have the same effect as if origin- ally granted for twenty-one years, upon terms therein prescribed : sec. 67. In case of the death of the inventor en- titled to a patent, it is to be issued to his administrator or executor, in trust for his heirs, provided the decedent has made no otherprovisionbyhiswill: sec. 35. Butfau- less the word "patented," together with the day and year the patent was granted, is marked upon the thing patented, or when this cannot be done, on account of the char- acter of the article, a label containing the same, attached to a package of the said articles, no damages can be recovered for the use thereof, unless upon proof of use after prior actual notice. By the seventy-first section of the same act, " any person who by his own indus- try, genius, efforts and expense has in- vented or produced any new and original design for a manufacture, bust, statue, alto-relievo, or bas-relief; any new and original design for the printing of woollen, silk, cotton or other fabrics ; any new and original impression, ornament, pattern, print or picture to be printed, painted, cast, or otherwise placed on or worked 237 OF INCORPOREAL PERSONAL PROPERTY. shall not use." The tise here mcntionod has been held to mean a use in public ; if therefore the invention, for which the patent is sought to be obtained, has been previously used in public within the realm, the patent will be void.(/i) And the realm in this statute has been determined to r^oqon mean the united *kingdom of Great Britain and Ireland ; so that when separate letters-patent were granted for England and Scot- land, if any invention had been publicly known or practiced in England, a patent for Scotland was void.(i) By an act of parliament to Avhich we have before referred, it is, how- ever, provided, that letters-patent may be confirmed, or new ones granted, for any invention or supposed invention, Avhich shall have been found by the verdict of a jury, or discovered by the patentee or his assigns, to have been ^ther wholly or in part invented or used before, if the Judi- cial Committee of the Privy Council, upon examining the matter, shall be satisfied that the patentee believed himself to be the first and original inventor, and that such invention, or part thereof, had not been publicly and generally used before the date of the first letters-patent.(A;) It is also now provided by the Patent Law Amendment Act, 1852, that any invention may be used and published for six months from the date of the application for letters-patent for the invention, without prejudice to the letters-patent, provided the provisional specification^ which describes the nature of the invention, and is to accompany the petition for the letters- {h) Lewis v. Marling, 10 B. & C. 22 (E. C. L. R. voL 21) ; Carpenter v. Smith, 9 M. & W. 300; Re Newell, 4 C. B. N. S. 269 (E. C. L. R. vol. 93) ; Betts v. Menzies, 10 H. of L. Cases 117; 9 Jur. N. S. 29; Hills v. Liverpool United Gaslight Company, 9 Jur. N- S. 140 ; Harwood v. Great Northern Railway Company, 35 L. J. Q. B. 27 ; Young v Fernie, Giff. 577 : 10 Jur. N. S. 526. {i) Brown v. Annondale, 8 CI. & Fin. 214. (A) Stat. 5 & 6 Will. IV. c. 83, s. 2. into any article of manufacture, the same ceodings to be the same as provided in the not having been known or used by others, case of patents for inventions and disco- before his invention or production thereof, veries, and the fees as provided in section or patented or described in any printed seventy-five : sees. 71, 73, 74 and 75. publication, may upon payment of the Under the act of the eighth of July, duty required by law, and other due pro- 1870, the invidious distinction formerly ceedings had, the same as in cases of in- existing between citizens and foreigners Tentions or discoveries, obtain a patent as regards the fees to be paid in patent therefor " for three years and six months, cases is removed, and in fact no distinc- or for seven years, or for fourteen years tion whatever against aliens now appears as the applicant may in his application to exist, except that to be entitled to the elect," and patentees of designs issued privilege of filing a caveat, they must prior to the second of March, 1861, shall have resided for one year previous, in the be entitled to extensions of their respec- United States, and declared their intention tive patents for seven years, the pro- of becoming aitizens. OF PATENTS AND COPYRIGHTS. 238 patent, be allowed by the proper law officer.(Z) It is also provided that the applicant, instead of having a provisional specification, may, if he think fit, file a complete specification under his hand and seal, particularly describing and ascertaining the nature of his invention, and in what manner the same is to be performed, in which case the invention will be protected for six months from the date of the application, and may be used and published without prejudice *to any letters-patent to r*90Q-| be granted for the same.(my It is also provided, that if any application for letters-patent be made in fraud of the true and first in- ventor, any letters-patent granted to the true and first inventor, shall not be invalidated by reason of any use or publication of the invention subsequent to such application, and before the expiration of the term of protection.(w) Thirdly, a patent must be granted " to the true and first inventor and inventors." If therefore the original inventor should sell his secret to another person, such person cannot obtain letters-patent for the invention in his own name ; but the original inventor must obtain the letters-patent, and then assign them to the other. If two persons should both make the same discovery, he who first publishes it by obtaining a patent for it, will be the true and first inventor within the meaning of the statute, although he may not actually have been the first to make the discovery. (o) But a person cannot obtain a patent for an invention which has been com- municated to him by another within the realm. (jo) If, however, a person (l) Stat. 15 & 15 Vict. c. 83, s. 8 ; Re Newall, 4 C. B. N. S. 260 (E. C. L. R. vol. 93) ; Re Bates and Redgate, Law Rep. 4 Ch. Ap. 577 ; 38 L. J. Chan. 501. (m) Sect. 9. See also stat. 16 & 17 Vict. c. 115, s. 6. (w) Stat. 15 & 16 Vict. c. 83, s. 10. (o) Boulton V. Bull, 2 H. Black. 487. (p) Hill V. Thompson, 8 Taunt. 395 (E. C. L. R. vol. 4) ; s. c. 2 J. B. Moore 452. 1 By the 40th section of the Act of the in the United States one year, next pre- 8th of July, 1870, Stats, at Large (1869- ceding the filing of his caveat, and made 70), p. 203, wherever further time may be oath of his intention to become a citizen, desired to mature an invention, it may be The filing of a caveat is not however lawful to file in the Patent Office, a caveat, necessary for the preservation of the right, praying protection of the right until the but merely enables the inventor to receive invention is matured ; whereupon, on ap- notice of any interfering application : Hil- plication for a patent made within one dreth v. Heath, Cranch's Patent Decs. 101 ; year after filing the caveat, by any other so as to offer him some protection from person, for a patent for an invention which the rule of law, which gives to the in- may in any way interfere, notice will be ventor who first adapts his invention to given to the person who has filed the practical use, the right to the grant of the caveat, of such application; and an alien patent: Phelps v. Brown, 4 Blatch. C. C. shall have this privilege who has resided 362. 239 OF INCORPOREAL PERSONAL PROPERTY. should be in possession of an invention communicated to him from abroad, such person, if he be the first introducer of the invention into this country, is regarded by the hiw as tlie true and first inventor thereof within the meaning of the statute of James ;{cj) and it is no objection that the patent is taken out in trust merely for the foreign inventor.(r) But it is now provided that wliere letters-patent are granted in the United Kingdom for any invention first invented in any foreign country, r*oi(n ^^ ^y *^^^ subject of any foreign state, *and a like privilege for the exclusive use or exercise of such invention in any foreign country is there obtained before the grant of such letters-patent in the United Kingdom, all rights and privileges under such letters-patent shall (notwithstanding any term in such letters-patent limited) cease and be void immediately upon the expiration or other determination of the term of the like privilege obtained in such foreign country ; or where more than one such like privilege is obtained abroad, immediately upon the expiration or determination of the term of such privileges which shall first expire or be determined. And no letters-patent granted for any invention, for which any patent or like privilege shall have been obtained in any foreign country, shall be of any validity, if granted after the ex- piration of the term for which the foreign patent or privilege was in force, (s) The remaining restrictions imposed by the act of James I. require no comment. The granting of letters-patent is, as has been observed, a prerogative of the crown ; and although a patent may now be always obtained for any new invention, yet the grant is still a matter of favor and not of right, and all grants of letters-patent for inventions are at the present day clogged with certain conditions. Of these conditions, the most im- portant is that which requires the inventor particularly to describe and ascertain the nature of his invention, and in what manner the same is to be performed, by an instrument in writing under his hand and seal, called the specification, and to cause the same to be filed in the High Court of Chancery within a given period, generally six calendar months from the r*94Tl ^^^e.(^) This instrument *was formerly required to be enrolled, instead of being merely filed as at present. And it is provided by the act of 1852 that, if a complete specification be filed along with (7) Edgcberry v. Stephens, 2 Salk. 447. (r) Beard ;■. Edgerton, 3 C. B. 97, 129 (E. C. L. R. vol. 54). («) Stat. 15 & 16 Vict. c. 83, s. 25; Daw v. Eley, V.-C. \Y., 36 L. .J. N. S. 482 ; Law- Rep. 3 Eq. 496. (t) Ibid. 8. 27. See stat. 16 & 17 Vict. c. 115, s. 6. As to munitions of war, see Stat. 22 Vict. c. 13. OF PATENTS AND COPYRIGHTS. 241 the petition for the letters-patent, then, in lieu of a condition for making void the letters-patent in case the invention be not described and ascer- tained by a subsequent specification, the letters-patent shall be condi- tioned to become void, if such complete specification filed as aforesaid does not particularly describe and ascertain the nature of the invention, and in what manner the same is to be performed. (li)' The object of requiring a specification is to secure to the public the benefit of the knowledge of the invention after the term granted by the patent shall have expired. The framing of the specification is a matter of great nicety ; for the description contained in it must correspond with the title of the invention contained in the letters-patent,(v) and must clearly describe the invention,(?(^) neither covering more than the proper subject of the patent,(a;) nor omitting anything necessary to make the descrip- tion intelligible.(7/) Provision however has been made by an act of par- liament before referred to,(z) for enabling the grantee or assignee of any letters-patent to enter a disclaimer of any part either of the title of the invention, or of the specification, stating the reason of such disclaimer, or to enter a memorandum of any alteration in the title or specification, not being such disclaimer or such alteration as shall extend the exclusive right granted by the patent.^ Under these provisions, letters-patent (w) Stat. 15 & 16 Vict. c. 83, s. 9. {v) Rex V. Wheeler, 2 B. & Aid. 345, 350. See Nickels v. Haslam, 7 M. & G. 378 ; (E. C. L. R. Tol. 49) ; Beard v. Egerton, 3 C. B. 97 (E. C. L. R. vol. 54). (w) Bloxham v. Elsee, 6 B. & C. 169 (E. C. L. R. vol. 13). (x) Hill V. Thompson, 3 Meriv. 629. (y) Rex V. Wheeler, ubi supra; Neilsoa v. Harford, 8 M. & W. 805. (z) Stat. 5 & 6 Will. IV. c. 83, s. 1. See also stat. 7 & 8 Vict. c. 69, ss. 5, 6. 1 Whenever a patent is inoperative or shall have, through inadvertence, acci- invalid by reason of a defective or insufii- dent, or mistake, made his specification of cient specification, or by reason of claim- claim too broad, claiming more than that ing more than the patentee had a right to, of which he was the original or first inven- without any fraudulent intent in so doing, tor, some material and substantial part of he may surrender, and obtain a new patent the thing patented being truly and justly upon a corrected specification ; said re- his own, any such patentee may make issued patent with corrected specification disclaimer of such parts of the thing to have the same effect as if the same had patented, as the disclaimant shall not been filed in such corrected form : Stats, claim to hold by virtue of the patent or atLarge (1869-1870), 205, sec. 53. And by assignment, stating therein the extent of the thirty-third section of the said act, the his interest in such patent. And such benefit of this section is extended to the disclaimer shall thereafter be taken and assignee of a patent: Id. 202. considered as part of the original specifi- 2 A provision of the same character is cation, to the extent of the interest which contained in the fifty-fourth section of the shall be possessed in the patent, or right act of the 8th of July, 1870, which in sub- secured thereby to the disclaimant: Stats, stanceprovides that whenever any patentee at Large (1869-70), p. 206. On the sub- 241 OF INCORPOREAL PERSONAL PROPERTY. r*0A9l originally void may in many *cases be rendered valid, the dis- -^ claimer being read as part of the original title or specifica- tion. (a) But the object of the act is merely to allow of the removal from the specification of that which is superfluous ; and a disclaimer will not be allowed which converts a description, in itself unintelligible or impracticable, into a practicable description of a useful invention. (J) The above-mentioned provisions have been extended to letters-patent granted and specifications filed under the Patent Law Amendment Act, 1852. (c) This act also provides for the printing, publishing and sale, under the direction of the commissioners of patents, of all specifications, disclaimers, and memoranda -of alterations deposited or filed under the Q.ct.{d) A "register of patents" is also directed to be kept, where shall be entered and recorded, in chronological order, all letters-patent granted under the act, the deposit or filing of specifications, disclaimers and memoranda of alterations filed in respect of such letters-patent, all amendments in such letters-patent and specifications, all confirmations and extensions of such letters-patent, the expiry, vaoating or cancelling of such letters-patent, with the dates thereof respectively, and all other matters and things afiecting the validity of such letters-patent as the commissioners may direct ; and such register, or a copy thereof, is to be open at all convenient times to the inspection of the public, subject to such regulations as the commissioners may make.(e) Another condition formerly inserted in letters-patent rendered them void, in case the letters-patent, or the liberty and privileges thereby granted, should become *vested in or in trust for more than the ■- -I number of twelve persons, or their representatives, at any one time, as partners, dividing or entitled to divide the benefit or profit obtained by reason thereof; but it is now enacted that, notwithstanding any proviso that may exist in former letters-patent, it shall be lawful for a larger number than twelve j^ersons hereafter to have a legal and bene- ficial interest in such letters-patent. (/) (a) The Queen v. Mill, 10 C. B. 3T9 (E. C. L. R. vol. 70) ; Seed v. Higgins, 8 H. of L. Cases 550. (6) Ralston v. Smith, 11 H. of L. Cases 223. (c) Stat. 15 & 16 Vict. c. 83, s. 39. (d) Sect. 29. (e) Sect. 34. (/) Sect. 36. See post, the chapter on joint ownership and joint liability. ject of disclaimer, see the following deci- 273; Reed v. Cutter et al., Id. 590; Hall v. sions made prior to the law of 1870: Wiles, 2 Blatch. C. C. 194 ; Silsby v. Foot, O'Reilly et al. r. Morse et al., 15 How. 63; 20 How. U. S. 378; McCormick v. Sey- Whitney et al. v. Emmett et al., 1 Baldw. mour, 3 Blatch. C. C. 209. 303 ; Wyeth et al. v. Stone et al., 1 Story OF PATENTS AND COPYRIGHTS. 243 In letters-patent a clause is usually contained forbidding all persons from using tlie invention without the consent, license or agreement of the inventor, his executors, administrators or assigns, in writing, under his or their hands and seals, first had and obtained in that behalf (^) The granting of licenses to use a patent is one of the most profitable ways of"turning it to account. All licenses are now required to be registered in the registry to be presently mentioned. Letters-patent obtained in England formerly conferred an exclusive privilege only within England, Wales, and the town of Berwick upon Tweed ; and also within the islands of Guernsey, Jersey, Alderney, Sark and Man, and her Majesty's colonies and plantations abroad, if so ex- pressed in the patent. In order to obtain the like exclusive privilege for Scotland, it was necessary to obtain separate letters-patent under the seal appointed by the treaty of union to be used instead of the great seal of Scotland ; and in the same manner the like privilege for Ireland was required to be obtained by letters-patent under the great seal for Ireland. But it is now provided that letters-patent shall extend to the whole of the United Kingdom of Great Britain and Ireland, the channel islands, and the Isle *of Man ; and in case the warrant for granting r* 944-1 the patent shall so direct, such letters-patent shall be made ap- plicable to her Majesty's colonies and plantations abroad, or such of them as may be mentioned in such warrant.(/i) But where separate letters for England, Scotland or Ireland have been already granted, separate letters- patent may still be granted for the other countries, on payment for such country of one-third the stamp duties payable for a patent for the whole kingdom. (2) Letters-patent and the privileges thereby granted are freely assignable from one person to another, and the assignee by such assignment is placed in the same position as his assignor previously stood.^ The as- (g) See the form of letters-patent in Appendix (A). (h) Stat. 15 & 16 Vict. c. 83, s. 18. («) Stat. 16 & 17 Vict. c. 5, s. 4. 1 See Act of Congress of eiglith of July, signee, in all cases taking subject to the 1870, sec. .36 ; Stats, at Large (1869-1870), legal consequences of the previous acts 203. Under the law as it existed prior to of the assignor (McClurg v. Kingsland et this act, it has been held that an assign- al., 1 How. 202), may maintain an action ment of a patent right may be made before in his own name : Brooks et al. v. Bicknell the issuing of a patent: Gayler v. Wilder, et al., 3 McLean 250; but the assignment 10 How. 477 ; so also, of the assignment must be in writing Gibson v. Cook, 2 of the extension of a patent : Railroad Co. Blatch. C. C. 144. An extension of a V. Trumble, 10 Wall. 367; and the as- patent, procured by the executor or ad- 244 OF INCORPOREAL PERSONAL PROPERTY. signee may consequently bring in his own name the same actions and suits both at law and in equity against those who have infringed upon the patent as the patentee himself might have done.(^) The privileges granted by letters-patent are therefore plainly an instance of an incor- poreal kind of personal property, different in its nature from a mere chose in action, which never has been assignable at law. A deed is said to be necessary for the valid legal assignment of letters-patent ; but the author is not aware of any authority for this position ; and the general (k) Godson on Patents 237; Walton v. Lavater, 8 C. B. N. S. 162 (E. C. L. R. voL 98). ministrator of the inventor, did not enure to the benefit of the assignees : Wilson v. Rousseau et al., 4 How. 646 ; for under the statute law prior to 1870, an assign- ment of a patent, or a license to use the privilege during the term for which letters were granted, although including a re- issue, did not include an extension : Hodge V. Railroad, 3 Fish. Pat. Cas. 410 ; Wood V. Railroad, Id. 464; but, by the sixty- seventh section of the act above referred to, "the benefit of the extension of a patent, shall extend to the assignees and grantees of the right to use the thing patented, to the extent of their interest therein ;" and an assignee who was in the use of the thing patented, at the time of the renewal, has still a right to use it Wilson V. Rousseau et al., 4 How. 646 Wilson V. Simpson et al., 9 Id. 109 Bloomer v. McQuewan, 14 Id. 539 ; Bloomer V. Millenger, 1 Wall. 340; ChaflFee v. Boston Belting Co., 22 How. U. S. 217. A covenant by a patentee, made prior to the law authorizing extensions, that the covenantee should have the benefit of any improvement, or alteration, or renewal of the patent, does not include the extension obtained by an administrator under the act of 1836, but only the renewal obtained upon a surrender of the patent, on account of a defective specification : Wilson v. Rousseau et al., 4 How. 646 ; but see act of July 8, 1870, sec. 67; and a covenant, .by which a licensee will become entitled to an extension under the act of 1836, will not entitle him to an extension under a special act: Bloomer v. StoUey, 6 McLean 158. An assignee of a patent, is one who has had transferred to him in writing, the whole interest of the original patent, or any undivided part of such whole interest, for every portion of the United States. A grantee, is one who has had transferred to him in writing, the exclusive right under the patent, to make and use, and to grant to others to make and use, the thing patented, within some specified part of the United States. A licensee, is one who has had transferred to him, in writing or orally, a less or different interest, than either the interest in the whole patent, or an undivided part of such whole interest, or an exclusive sectional interest : Potter v. Holland, 4 Blatch. C. C. 206. When an assignment is made under the act of 1836, of the exclusive right within a specified part of the country, the as- signee may sue in his own name, provided the assignment be of the entire and un- qualified monopoly ; but any assignment short of this, is a mere license, and will not carry with it a right to the assignee to sue in his own name : Gayler et al. v. Wilder, 10 How. 477; but one cannot divide his right into parts, and grant to one man the right to use it in connection with, or application to, one class of sub- jects, and to another, in its connection with, or application to, another class of subjects, to such an extent that purchasers from any of these persons, may not use the thing purchased exactly as they please : Washing Machine Co. v. Earle, 3 Wall. Jr. 320. OF PATENTS AND COPYRIGHTS. 244 rule appears to be, that the assignment of incorporeal personal property may be made without deed. Perhaps, however, the necessity of an as- signment by deed may be implied from the clause in the letters-patent, which forbids the use of the invention " without the consent, license or agreement of the inventor, his executors, administrators or assigns, in •writing, under his or their hands *and seals, first had and r*9j^p-i obtained in that behalf." All assignments of letters-patent are now required to be registered under the Patent Law Amendment Act, 1852.^ The act provides that there shall be kept at the office appointed for filing specifications in chancery under this act, a book or books entitled " The Register of Proprietors," wherein shall be entered, in such manner as the commissioners shall direct, the assignment of any letters-patent, or of any share or interest therein, any license under letters-patent, and the district to which such license relates, with the name or names of any per- son having any share or interest in such letters-patent or license, the date of his or their acquiring such letters-patent, share and interest, and any other matter or thing relating to or affecting the proprietorship in such letters-patent or license ; and a copy of any entry in such book certified under such seal as may have been appointed, or as may be n directed by the Lord Chancellor, to be used in the said office, shall be given to any person requiring the same, on payment of the fees therein provided ; and such copies so certified shall be received in evidence, in all courts and in all proceedings, and shall be prima facie proof of the assignment of such letters-patent, or share or interests therein, or of the license or proprietorship as therein expressed ; provided always, that until such entry shall have been made, the grantee or grantees of the letters-patent shall be deemed and taken to be the sole and exclusive proprietor or proprietors of such letters-patent, and of all the licenses and privileges thereby given and granted. (Z)^ (/) Stat. 15 & 16 Vict. c. 83, s. 35. See Green's Patent, 24 Bear. 145 ; Chollett v. Hoffman" T E. & B. 686 (E. C. L. R. vol. 90). 1 Act of Congress of eighth of July, patents in the United States prior to the 1870, sec. 33 ; Stats, at Large (18G9-I870), act of 1870, may still be found useful in p. 202 : Gayler et al. v. Wilder, 10 How. construing that statute. 477 ; Wyeth et al. v. Stone et al., 1 Story The improvements in mechanics, con- 273; Gibson V. Cook, 2 Blatch. C. C. 144; sist of new adaptations or combinations but the registration of an assignment of a of the six primary mechanical powers ; but patent right, is not necessary as between any combination of mere theory, existing the parties : Black v. Stone, 33 Ala. 327. only in the brain of the inventor, and not 2 The cases referred to in the fol- rendered effective practically and materi- lowing note, as interpreting the law of ally, although its advantages, and its use- 245 OF INCORPOREAL PERSONAL PROPERTY. Closely connected with the subject of patents is that of copyright. fulness to the public, may be demonstra- ted with mathematical certainty, cannot be the subject of a patent, beinp; merely an abstract principle : Odwine v. Winkley, 2 Gall. 51 ; Blanchard v. Sprague, 3 Sumn. 535 ; Stone i'. Sprague et al., 1 Story 270 ; Smith V. Ely, 5 McLean 76. In the case of Le Roy et al. v. Tatham et al., 14 How. 156, Justice McLean says: " A principle is not patentable. A principle in the ab- stract is a fundamental truth ; an original cause; a motive; these cannot be patented, as no one can claim in either of them an exclusive right . . . the elements of power existing, the invention is not in discover- ing them, but in applying them to useful objects." But the original inventor of an abstract principle, who has reduced it to a practical and useful form, is entitled to a patent ; Woodcock v. Parker et al., 1 Gall. 438 ; Bedford v. Hunt et al., 1 Mass. 302 ; Le Roy et al. v. Tatham et al., 14 How. 156 ; "Washburn et al. v. Gould, 3 Story 1 22 ; Lowell v. Lewis, 1 Mass. 182 ; Whitely V. Swayne, 7 Wall. U. S. 685 ; if, however, the thing patented had been previously known and used, the patent is void : Bed- ford V. Hunt et al., 1 Mass. 302 ; Shaw v. Cooper, 7 Peters 292 ; Whitney et al. v. Emmet et al., 1 Baldw. 303 ; Morris v. Huntington, 1 Paine C. C. 348 ; Pennock et al. V. Dialogue, 2 Peters 1 ; Reed v. Cutter et al., 1 Story 590 ; for the appli- cant must be the sole inventor; Thomas v. Weeks, 2 Paine C. C. 92 ; and this is the case, even where the inventor was entirely ignorant of such previous use : Evans v. Eaton, 3 Wheat. 454; s. c. 1 Peters C. C. 322; Dawson v. Pollen, 2 Wash. C. C. 311 ; Delano v. Scott, Gilp. 489 ; so where an original inventor allows his invention to be used by the public, this is consi- dered as an abandonment of his right, and of course will furnish a good objection to his obtaining a patent: Gayler et al. v. Wilder, 10 How. 477 ; Shaw v. Cooper, 7 Peters 292 ; Whittemore et al. v. Cutter, 1 Gall. 478 ; Melius v. Silsbee, 4 Mass. 108 ; Pennock et al. v. Dialogue, 2 Peters 1 ; but it should be clearly established by proof, that such public use was with the knowl- edge and consent of the inventor : neither acts alone, nor declarations alone, being suflRcient to prove an abandonment: McCormick v. Seymour, 2 Blatch. C. C. 194 ; and the mere user by the inventor of his discovery, in trying experiments, or by his neighbors, with his consent, as an act of kindness, for temporary and occa- sional purposes only, will not destroy the right of the discoverer to a patent : Wycth et al. V. Stone et al., 1 Story, 273 ; Winans V. Schenectady and Troy Railroad Com- pany ; 2 Blatch. C. C. 229 ; Agawam Co. V. Jordan, 7 Wall. U. S. 583 ; nor experi- ments made by another, although tliose experiments led to the invention subse- quently patented : Allen v. Hunter, 6 McLean 303 ; Cahon v. King, I Clif. C. C. 592 ; but the use of several machines in public, for more than two years prior to applying for a patent, slightly varying in form and arrangement, yet substantially the same as afterwards patented, cannot be alleged as experimental, so as to avoid the consequences of such prior use ; Sanders v. Logan et al., 9 Am. L. Reg. 47G ; Tappan v. National Bank Co., 4 Blatch. C. C. 509 ; so, too, the inventor will not be deprived of his patent, where the knowledge of the discovery is surrep- titiously obtained and communicated to the public : Shaw v. Cooper, 7 Peters 292 ; Whitney et al. v. Emmett et al., 1 Baldw. 303 ; Ryan et al. v. Goodwin et al., 3 Sumn. 514 ; and in like manner, any intermediate knowledge or use, between the time of dis- ^ covery and the application for a patent, by a subsequent inventor, will not deprive the original discoverer of his right to a patent, who is during that time perfecting his invention, or using due diligence to secure his patent : Whitney et al. v. Emmett et. al., 1 Baldw. 303 ; Morris v. Huntington, 1 Paine C. C. 348; Reed v. Cutter et al., I Story 590 ; nor, on the other hand, will the idea of the discovery, though it has occurred to others, deprive the invention of its originality, unless the idea had been embodied in a practical form: Teese v. OF PATENTS AND COPYRIGHTS. 245 Copyright may be defined to be the *exclusive right of multiply- [*246] Phelps, 1 McAll. C. C. 48 ; Ellithorp v. Rob- ertson, 4 Blatch. C. C. 307 ; and the time of the description in a printed publication, must be when the invention by the paten- tee was made, and not when he presented his application : Bartholomew v. Sawyer, 4 Blatch. C. C. 347. A previous discovery in a foreign country, will not render a patent obtained here void, unless such discovery had been patented, or described in a printed publi- cation : O'Reilly et al. v. Morse et al., 15 How. 68 ; Brooks et al. v. Bicknell et al., 3 McLean 250 ; Bartholomew v. Sawyer, 4 Blatch. C. 0. 347. If a machine produce several different effects by a particular combination of machinery, and these effects are produced in the same way in another machine, and a new effect added, the inventor of the latter is not entitled to a patent for the ■whole of the machine, but merely for the improvement: Whittemore et al. v. Cutter, 1 Gall. 478 ; Odwine v. Winkley, 2 Id. 51 ; Barrett et al. v. Hall et. al., 1 Mass. 447 ; Seymour v. Osborne, 11 Wall. U. S. 518 ; Goodyear v. Matthews, 1 Paine C. C. 300 ; and for each improvement of a machine, there must be a separate patent : Barrett et al. V. Hall et al., 1 Mass. 447 ; McCor. mick V. Talcott, 20 How. U. S. 402 ; and a claim for a combination of several devi- ces, so as to produce a particular result, is not good for a claim for any mode*of com- bining those devices : Case v. Brown, 2 Wall. 320 ; Burr v. Duryee, 1 Id. 531. The description contained in the specifi- cation, must be so clear, that any one skilled in the art to which it appertains, may compound or use the thing patented, witliout making experiments : Wood v. Underbill, 5 How. 1 ; Gray et al. v. James et al., 1 Peters C. C. 394 ; Burr v. Cow- perthwait, 4 Blatch. C. C. 163 ; Seymour V. Osborne, 11 Id. 516. In the case of Lowell V. Lewis, 1 Mass. 182, however, it •was decided, that if the invention be definitely described in the patent, so as to distinguish it from what is before known, the patent will be good, though the speci- fication does not describe the invention, in such full, exact, and clear terms, that a person skilled in the art or science of which it is a branch, could construct or make the thing invented ; but the inven- tion must be so clearly described, as to enable the public to appropriate it, after the expiration of the patent right : Sulli- van V. Redfield et al., 1 Paine C. C. 441 ; Evans v. Chambers, 2 Wash. C. C. 125 ; Ames V. Howard et al., 1 Sumn. 482 ; and not leave the person attempting to use the discovery to find it out by experiment : Tyler v. Boston, 7 Wall. U. S. 327. If a patent has been granted upon a specification defective by reason of its obscurity, the proper course is to surren- der the patent and take out a new one : Stimpson v. The West Chester Railroad Company, 4 How. 380 ; Wilson v. Rousseau et al. Id. 646 ; Odwine v. The Amesbury Nail Factory, 2 Mass. 28 ; and the second patent will be considered as emanating, at the time the first was granted : Shaw v. Cooper, 7 Peters 292 ; Morris v. Hunting- ton, 1 Paine C. C. 348; Grant et al. v. Raymond, 6 Peters 218 ; The Philadelphia and Trenton Railroad Company v. Stimp- son, 14 Id. 448 ; Godfrey v. Eames, 1 Wall, 317. If a patent includes more than the ac- tual invention, it is void : Wood v. Under- bill et al., 5 How. 1 , O'Reilly et al. v. Morse, et al., 15 Id. 63 ; Whitney et al. v. Emmit et al., 1 Baldw. 303 ; Batten v. Taggart, 2 Wall. Jr. 101; and the proper course under these circumstances, is for the inventor to enter a disclaimer for the excess. See ante, p. 241, note 2. Nothing useless or frivolous, or injuri- ous to the moral health or comfort of society, can be the subject of a patent : Bedford?;. Hunt et al., 1 Mass. 302 ; Whit- ney et al. V. Emmett et al. 1 Baldw. 303 ; Lowell V. Lewis, 1 Mass. 182 ; Langdon v. De Groot, 1 Paine C. C. 203 ; consequently, where the principle of two machines is entirely similar, and the only difference consists, in the latter being constructed of materials better adapted to the purposes 24G OF INCORPOREAL PERSONAL PROPERTY. ing copies of an original work or composition. (w)' From the nature (to) 14 M. & W. 316. for which it was made than the former, it was not consiticred as entitled to a patent, not being sutliciently useful : Hotchkiss et al. V. Greenwood et al., 11 How. 26G ; Stimpson v. The Baltimore and vSusque- hanna Railroad Company, 10 Id. 343. On the subject of infringements of pa- tents, see McChirg et al. v. Kingsland et al., 1 How. 202 ; Gayler et al. v. Wilder, 10 Id. 477 : "Wilson v. Barnum, 8 Id. 258 ; Silsbee f. Foote, 14 Id. 219; Gray et al. v. James et al., 1 Peters C. C. 394; Di-Von v. Mover, 4 Wash. C. C. 69 ; Sawin et al. v. Guild, 1 Gall. 485 ; Evans v. Jordan et al., 1 Brockenb. 248 ; Livingston & Co. v. Jones & Co., 3 Wall. Jr. 330; Batten v. Silli- man, Id. ; Jones v. Morehead, 1 Wall. 155; Kendall v. Winsor, 21 How. U. S. 322. 1 By the eighty-sixth section of the act already referred to on the subject of patents and copyrights, it is provided, "That any citizen of the United States, or resident therein, who shall be the author, inventor or designer, or proprietor of any book, map, chart, dramatic or musical composition, engraving, cut, print, or pho- tograph, or negative thereof, or of a paint- ing, drawing, chromo, statue, statutary, and of models or designs intended to be perfected as works of the fine arts, and his executors, administrators or assigns, shall upon complying with the provisions of this act, have the sole libertj' of printing, reprinting, publishing, completing, copy- ing, executing, finishing, and vending the same ; and in the case of a dramatic com- position, of publicly performing or repre- senting it, or causing it to be performed or represented by others ; and authors may reserve the right to dramatize or translate their own works." And by the eighty-seventh section thereof, the period during which this privilege may be en- joyed, is limited to twenty-eight years, to be continued, however, for a further term of fourteen years, or in case of the death ofthe authororinventor,tohiswidow and children upon conforming to the regu- lations contained in the eighty-eighth sec- tion of said act. No person shall be entitled to a copy- right unless he shall before publication, deposit in the mail a printed copy of the title of the book or other article, or a de- scription of the painting, drawing, chromo, statue, statuary, or model or design for a work of the fine arts, for which he desires a copyright, addressed to the Librarian of Congress, and. within ten days from the publication thereof, deposit in the mail two copies of such copyright book or other article, or in case of a painting, drawing, statue, statuary, model or design for a work of the fine arts, a photograph of the same, to be addressed to said Librarian of Congress, as thereafter in said act provided. The ninety-first section provides, "That the Librarian of Congress shall record the name of such copyright book or other article, forthwith, in a book to be kept for that purpose, in the words following: " Library of Congress, to wit, Be it re- remembered that on the day of Anno Domini A. B. of hath de- posited in this office, the title of a book, (map, chart, or otherwise, as the case may be, or description of the article), the title or description of which is in the following words, to wit: (here insert the title or de- scrij)tion), the right whereof he claims as author, originator, (or proprietor, as the case may be), in conformity with the laws of the United States respecting copyrights. C. D., Librarian of Congress." And he shall give a copy of the title or description, under the seal of the Librarian of Congress, to said proprietor, whenever he shall require it." But by the ninety-seventh section there- of, no person shall maintain an action for the infringement of his copyright, unless he shall give notice thereof by inserting in the several copies of every edition pub- lished, on the title page, or the page im- mediately following, if it be a book ; or if a map, chart, musical composition, print, cut, engraving, photograph, painting, draw- I OF PATENTS AND COPYRIGHTS. 24G of this right it must almost necessarily have had its origin at a period subsequent to the invention of the art of printing. It is, however, the better opinion that such a right existed prior to the Statute of Anne,(n) by which the term of an author's copyright was first limited by the legislature. (o) But this statute, together with others by which the copyright of authors Avas further secured,(jj) has been repealed by the act of the present reign to amend the law of copyright, on which the law of copyright now depends.(^) By this act the copyright of every book (which term includes for the purposes of the act every pamphlet, sheet of letterpress, sheet of music, map, chart or plan) published after the passing of the act in the lifetime of the author shall endure for his natural life, and for the further term of seven years from his death, and shall be the property of such author and his assigns; but if the term of seven years shall expire before the end of forty-tw^o years from the fiirst publication of the book, the copyright shall in that case endure for such period of forty-two years ; and the copyright in every book published after the death of its author shall endure for forty-two years from the first publication thereof. (r) By the same act the existing copyright in books then published is extended for the full term provided by the act in the case of books thereafter published. But if the copyright belong wholly or partly to a publisher or other person, who has acquired it for any other consideration than that of natural love and affection, the copyright is not to be extended by the act, ♦unless the author, if living, or his personal representative if he r*2471 be dead, and the proprietor of such copyright, shall, before the expiration of the subsisting term of copyright, consent and agree to accept the benefits of the act, and shall register a minute of such consent in the prescribed form ; in which case the copyright shall endure for the full term provided by the act, and shall be the property of the person or persons expressed in the minute.(s) And in order to provide against (n) 8 Anne, c. 19. (o) Miller v. Taylor, 4 Burr. 2303 ; Donaldson v. Beckett, 4 Burr. 2408 ; 2 Bro. P. C. 129 ; Boosey v. Jefferys, 6 Exch. Rep. 592. (p) Stats. 41 Geo. III. c. 107 ; 54 Geo. III. c. 156. {q) Stat. 5 & 6 Vict. c. 45. (r) Sect. 3. («) Stat. 5 & 6 Vict. c. 45, s. 4. ing, chromo, statue, statuary, or model or ed, the following words, viz., " Entered design intended to be perfected and com- according to the Act of Congress, in the pleted as a work of the fine arts, by in- year by A. B., in the office of the Li- scribing upon some portion of the face or brarianof.Congress at Washington." Stats. front thereof, or on the face of the sub- at Large (1869-1870), p. 212, &c. stance on which the same shall be mount- 20 247 OF INCORPOREAL PERSONAL PROPERTY. the suppression of books of importance to the public, the Judicial Com- mittee of the Privy Council are authorized, on complaint made to them, that the proprietor of the copyright in any book, after the death of its author, has refused to allow its republication, to grant a license to the complainant to publish the book in such manner and subject to such con- ditions as they may think fit.(^) And with regard to encyclopaedias, reviews and other periodical works, it is provided, that the copyright in every article shall belong to the proprietor of the work for the same term as is given by the act to authors of books, whenever any such article shall have been or shall be composed on the terms that the copy- right therein shall belong to such proprietor and be paid for by him ;(m) but payment must be actually made by the proprietor before the copy- ri'^ht can vest in him ;(a:) and after the term of twenty-eight years from the first publication of any such article, the right of publishing the same in a separate form shall revert to the author for the remainder of the term given by the act ; and during such term of twenty-eight years the proprietor shall not publish any such article separately without pre- viously obtaining the consent of the author or his assigns. But any r^OlRl ^^^^0^ ™^y reserve to himself the *right to publish any such ^ "" composition in a separate form, and he will then be entitled to the copyright in such composition when published separately, without prejudice to the right of the proprietor of the encyclopjEdia, review or other periodical in which it may have first appeared.(«/) By the same act the sole liberty of representing any dramatic piece at any place of dramatic entertainment, and of performing any musical composition in any public place,(z) is secured to the author and his assigns for the same term as is provided for the duration of copyright in books. (a) The pro- perty in dramatic works had previously been secured to the authors for a shorter period by an act of the reign of King William the Fourth, which is still in operation. (J) It is now decided that a foreigner residing abroad is not entitled to the copyright of any work composed by him and first published in this country ; but a foreigner residing in England or in {t) Stat. 5 & 6 Vict. c. 45, s. 5. (u) See Bishop of Hereford v. Griffin, 16 Sim. 190; Sweet v. Benning, 16 C. B. 459 (E. C. L. R. vol. 81). (z) Richardson v. Gilbert, 1 Sim. N. S. 336. (y) Stat. 5 & 6 Vict. c. 45, s. 18. (z) Russell V. Smith, 15 Sim. 181 ; 12 Q. B. 217 (E. C. L. R. vol. 64). (a) Stat. 5 & 6 Vict. c. 45, s. 20. (6) Stat. 3 & 4 Will. IV. c. 15. See Morton v. Copeland, 16 C. B. 517 (E. C. L. R. vol. 81) ; Marsh v. Conquest, 17 C. B. N. S. 418 (E. C. L. R. vol. 112) ; 12 W. R 1006 ; Lacy V. Rhys, 4 B. .k S. 873 (E. C. L. R. vol. 116). OF PATENTS AND COPYRIGHTS. 248 a British colony at the time of the first publication of his work is entitled to the copyright. (c)^ By the same act a book of registry is required to be kept at Stationers' Hall, open to public inspection on payment of a small fee, in which may be registered the proprietorship and assignment of copyrights.((i) And no proprietor of copyright in any book which shall be first published after the passing of the act can maintain any action or suit at law or in equity, or any summary ^proceeding, in any respect of any r*04Q'i infringement of such copyright, unless he shall, before com- mencing such action, suit or proceeding, have caused such book to be registered pursuant to the act ; but the omission to register will not affect the copyright in the book, but only the right to sue or proceed in respect of the infringement thereof. And the remedies of the proprietors of the sole liberty of representing any dramatic piece under the above- mentioned act of Will. IV. are not to be prejudiced, although no entry shall be made in the register book.(e) And every registered proprietor is empowered to assign his interest by making entry in the book of registry of such assignment and of the name and place of abode of the (c) Jefferys v. Boosey, H. of Lords, 1 Jur. N. S. 615 ; 4 H. of L. Cases 815 ; Low v. Routledge, V.-C. K., 10 Jur. N. S. 922, affirmed 11 Jur. N. S. 939; Law Rep. 3 H. ofL. 100. {d) Stat. 5 & 6 Vict. c. 45, ss. II, 19, 20. See Ex parte Davidson, 18 C. B'. 297; (E. C. L. R. vol. 86) ; Ex parte Davidson, 2 E. & B. 577 (E. C. L. R. vol. 75), qu? (e) Stat. 5 & 6 Vict. c. 45, s. 24. ^ In the recent case of Low v. Routledge, Law Rep. 1 Cli. 42, referred to by the author, it was decided that an alien friend, coming into a British colony, and residing there for the purpose of acquiring copyright, during and at the time of the publication in England, of a work composed by him, and first published in that country, is entitled to copyriglit in England in the work so published, though he va&y not, under the laws in force in the colony where he is residing, be entitled to copy- right there. The facts of this case were these : Maria S. Cummins, author of the story called "Haunted Hearts," was a native of this country, but in April and May of 1864, resided in Montreal, Canada. In the month of April, 1864, Sampson, Low, Son & Co., of London, the plaintiffs, paid the said M. S. Cummins, the purc-hase-money for the manuscript and copyright of the said production ; and thereupon she signed' at Montreal, and from thence transmitted to the plaintiffs, due authority for enabling them to procure entries of her proprietor- ship in the copyright, and of an assignment thereof by her tothe plaintiffs, pursuant to statute. It was alleged also, that the book was printed arid published on the 23d day of May, 1864. The principle, however, above alluded to, did not control the case, which went off on a demurrer, on the ground that in the entry of the proprietorship of the copj'- riglit, the name of the plaintiff's firm was different from the name stated in the bill ; and that the date of publication was un- truly stated. Stfej:)os^, p. 253, note. 249 OF INCORPOREAL PERSONAL PROPERTY. assignee, in the form given in a schedule to the act ; and such assign- ment so entered is declared to he effectual in law to all intents and pur- poses whatsoever, without being subject to any stamp or duty, and to be of the same force and effect as if such assignment had been made by deed.(/)' But if the right of representing any dramatic piece or per- forming any musical composition is intended to pass to the assignee of the copyright, an entry must be expressly made of such intention. ((/) The act also expressly provides, that all copyrights protected by the act shall be deemed personal property, and shall be transmissible by be- quest ; or in case of intestacy, shall be subject to the same laws of distri- bution as other personal property. (A) ■ In order to give more effectual protection to persons entitled to the r*9'^m copyright of books, it is also provided *that no person, not being the proprietor of the copyright, or some person authorized by (/) Stat. 5 & 6 Vict. c. 45, s. 13. [g] Sect. 22. {h) Sect. 25. 1 The 89th section of the Act of Con- gress of the 8th of July, 1870, prescribes "that copyrights shall be assignable by law, by anj- instrument of writing, and such assignment shall be recorded in the oflBce of the librarian of Congress, within sixty days after its execution, in default of which it shall be void as against any sub- sequent purchaser or mortgagee for a valu- able consideration without notice." But under the laws of the United States existing previous to this act, it has been decided, that the assignment, if not re- corded, is nevertheless valid as between the parties, and also, as to all persons not claiming under the assignors : Webb et al. V. Fowel et al., 2 Wood & M. 497. An assignment made by one entitled to a copyright, will only convey the present right of the author, and will not cover any future right to which he may be entitled, by reason of the renewal of his right, un- less it is clearly indicated that such future right shall also have been assigned ; this is based upon the principle, that the laws were intended for the benefit of the authors themselves : Pierpont v. Fowlc, 2 Wood & M. 23. Where a non-resident alien, author of an unprinted comedy, had for a valuable consideration transferred his proprietor- ship of it for the United States, to a resi- dent of New York, who adopted measures for procuring a copyright, and in the meantime represented the comedy, some- what modified, upon the public stage, it was held, that the assignee could not sus- tain a suit under the statutes of the United States, against one, who, having obtained his Ivuowledge from the English copy, and from witnessing the performance in New York, was representing the comedy on the stage in another city. But it was also held, that notwithstanding the foreign author's assignment, was at law nothing more than a mere license, it was still, in equity, valuable as an assignment for the United States, of such literary pro- perty as could exist in his composition, and that consequently the suit could be maintained before an equitable tribunal : Keenc v. Wheatley et al., 9 Am. L. Reg. 33. An author does not abandon any of his rights in a play, by consenting to its public representation while in manuscript, and before it is copyrighted : Boucicault v. Fox, 5 Blatch. C. C. 87. OF PATENTS AND COPYRIGHTS. 250 him, may import into any part of the United Kingdom, or into any other part of the British dominions, for sale or hire any printed book first composed or -written or printed and published in any part of the United Kingdom, wherein there shall be copyright, and reprinted in any country or place whatsoever out of the British dominions. (i) And by subsequent acts,(y) books, wherein the copyright is subsisting, first composed or written or printed in the United Kingdom, and printed or reprinted in any other country, are absolutely prohibited to be imported either into the United Kingdom or into the British possessions abroad, provided the proprietor of such copyright, or his agent, shall have given notice in writing to the commissioners of customs that such copyright subsists, and in such notice shall have stated when the copyright will expire. But by another act(^) it is provided, that in case the proper legislative authorities in any British possession shall make any act or ordinance to make due provision for securing the rights of British authors in such possession, her Majesty, on the same being transmitted to the Secretary of State, may, if she think fit so to do, express her royal approval of such act or ordinance, and thereupon may issue an order in council de- claring that, so long as the provisions of such act or ordinance continue in force within such colony, the prohibitions contained in the above-men- tioned acts, or in any other acts, with respect to foreign reprints of books first composed, written, printed or published in the United King- dom, and entitled to copyright therein, shall be suspended so far as regards such colony ; and thereupon such act or ordinance shall come into operation, except so far as *may be otherwise provided there- r»cO(^in in, or as may be otherwise directed by such order in council. (^) By acts of parliament of an older date, copyright has also been created in prints, engravings, maps, charts and plans for the term of tAventy- eight years, to commence from the day of first publishing thereof; which day, together with the proprietor's name, is to be truly engraved on each plate, and printed on every print.(m)^ But these acts do not apply to illustrative wood engravings printed on the same sheet as the letter-press (i) Stat. 5 & 6 Vict. c. 45, s. 17. (j) Stat. 8 & 9 Vict. c. 93, s. 9, and 16 & IT Vict. c. 107, ss. 44, 160. (k) Stat. 10 & 11 Vict. c. 95. (I) Several British colonies have obtained Orders in Council under this act. See 6 Jur. N. S. pt. 2, p. 45. (m) Stat. 8 Geo. II. c. 13, amended by 7 Geo. III. c. 38, and rendered more effectual by 17 Geo. III. c. 57; Gambart v. Sumner, 5 H. & N. 5 ; Gambartv. Ball, 14 C. B. N. S. 306 (E. C. L. R. vol. 108). 1 See ante, p. 246, note 1. 251 OF INCORPOREAL PERSONAL PROPERTY. of a book, as such engravings form part of the book and are comprised within its copyright.(w) Under these acts the assignee of the copyright may bring an action in his own name against any person who may pirate it.(o) And by a modern statute(;?) all the provisions contained in these acts are extended to the United Kingdom of Great Britain and Ireland. And it is provided, (7) that if any person shall, during the existence of the copyright, engrave, etch or publish any engraving or print of any description whatever, either in whole or in part, already published in anv part of Great Britain or Ireland, without the express consent of the proprietor or proprietors thereof first obtained in writing signed by him, her or them respectively, with his, her or their own hand or hands, in the presence of and attested by two or more credible witnesses, then every such proprietor may, by a separate action upon the case, to be brought . against the person so offending, *in any court of law in Great L -^-J Britain or Ireland, recover such damages as the jury shall assess, together with double costs of suit. By a more recent act it is declared that the provisions of the above-mentioned statutes are intended to in- clude prints taken by lithography, or any other mechanical process by which prints or impressions of drawings or designs are capable of being multiplied indefinitely.(r) By other acts of parliament copyright has been granted to the makers of new and original sculptures, models, copies and casts for the term of fourteen years from their first putting forth or publishing the same,(s) with a further term of fourteen years to the original maker, if he shall be then living ;{t) provided that in every case the proprietor cause his name, with the date, to be put on every such sculpture, model, copy or cast before the same shall be put forth or published.(M)^ And it is also provided that no person who shall purchase the right or property of any such sculpture, model, copy or cast of the proprietor, expressed in a deed in writing signed by him with his own hand, in the presence of and at- tested by two or more credible witnesses, shall be subject to any action for copying, casting or vending the same.(a;) By the Designs Act, 1850,(//) provision has been made for the registration of sculptures, (n) Bogue v. Houlston, 5 De G. & Sm. 267 ; s. c. 16 Jur. 272. (o) Thompson v. Symonds, 5 Term Rep. 41. (p) Stat. 6 & 7 Will. IV. c. 59, s. 1. (?) Sect. 2. (r) Stat. 15 & 16 Vict. c. 12, s. 14. (s) Stat. 38 Geo. III. c. 71, amended by 54 Geo. III. c. 56. {t) Stat. 54 Geo. III. c. 56, s. 6. (m) Sect. 1. (x) Sect. 4. (y) Stat. 13 & 14 Vict. c. 104, s. 6. 1 See ante, p. 246, note 1. OF PATENTS AND COPYRIGHTS. 252 models, copies and casts within the protection of the Sculpture Copyright Acts, which registration entitles the proprietor of the copyright to certain penalties in case of piracy.(3) And with regard to paintings, drawings and photographs, it is now provided that the exclusive right of copying, engraving, ^reproducing and multiplying them by any means r*253i and of any size shall belong to the author, being a British subject or resident within the dominions of the Crown, for the term of his life and seven years after his death, (a) And a register of proprietors 'of copyright in paintings, drawings and lithographs is established at Sta- tioners' Hall, subject to similar regulations to that established for the registry of copyright in books.(6) By an act of parliament recently passed to amend the law of interna- tional copyright,(c) her Majesty is empowered by any order in council to grant the privilege of copyright for such period as shall be defined in such order (not exceeding the terra allowed in this country), to the authors, inventors and makers of books, prints, articles of sculpture and other works of art, or any particular class of them, to be defined in such order, which shall, after a future time to be specified in such order, be first published in any foreign country, to be named in such order.^ And her Majesty is also empowered(Mayor, &c., of Annapolis, 6 Har. & V. Jenkins, 7 Sm. & Mars. 487 ; The Wid- Johns. 529 ; although the legislatures of OF SETTLEMENTS OF PERSONAL PROPERTY. 260 An apparent exception to the above rule has long been established in the case of a bequest by will of a tei'm of years to a person for his life : some of the States have enacted, that un- der certain circumstances, they shall be considered real property, and in other States, they have been made subject to the rules and regulations, prescribed with respect to real estate . thus, by the Re- vised Statutes of Mass., 1860, ch.90, ? 20, p. 471, " When land is demised for the term of one hundred years or more, the term shall, so long as fifty years of the same remain unexpired, be regarded as an estate in fee simple, as to everything con- cerning the descent and devise thereof, upon the decease of the owner, the right of dower therein, and the sale thereof by executors, administrators, or guardians, by license from any court ; and also con- cerning the levy of executions thereon, and the redemption thereof, when taken in execution or when mortgaged;" and by Revis. Stats, of N. Y. 3d V^ol. (5th ed.), p. 12, § 24, " A freehold estate, as well as a chattel real, may be created to com- mence at a future day ; an estate for life may be created in a term of years, and a remainder limited thereon ; a remainder of a freehold or chattel real, either con- tingent or vested, may be created expec- tant on the determination of a term of years." In Ohio, " Permanent leasehold . estates, renewable forever, shall be subject to the same law of descent and distribu- tion, as estates in fee are or may be sub- ject to;" Ohio Revis. Stats. (1860), ch, 36, ^ 20, p. 505, and ch. 87, | 1, p. 1142. The laws of Pennsylvania, enjoin the re- cording of leases for a longer term than twenty-one years, as deeds of lauds are recorded: Purd. Dig., by Brightly (1861), p. 321, ^^ 2 and 3. The General Stats, of N. H. (1867), p. 252, g 4, contain a simi- lar provision with respect to leases of a longer duration than seven years : and the Stats, of Vt. (1839), p. 312, § 6, fix the term of years which must be acknowl- edged by the grantor, and recorded, at any period greater than one year. In Maryland a leasehold estate under a lease for ninety-nine years, renewable forever, so far partakes of the realty that the title can only pass by deed executed with all the solemnities which are prescribed for the sale of real estate, and a vendor's lien for the purchase money of such an estate may be enforced in equity : Beatt v. Beatt, 21 Md. 578. See ante, p. 2, note 1. Notwithstanding the statute of Ohio making permanent leaseholds subject to all the laws and rules applicable to land, with regard to descent and distribution, it is still to be doubted whether they are to be regarded as realty in that State : the early case of The Lessee of Bisbee v. Hall, 3 Ohio 465, which occurred before the enactment of the statute above referred to, decided that leases were subject to the laws of personal property ; the subsequent case of Murdock et al. v. Ratcliffe, 7 Ohio 123, in interpreting a statute then in force, which declared that the tenants or lessees, should enjoy all the rights and privileges which they would be entitled to enjoy, did they hold their lands in fee simple, says, this provision was " de- signed, in our opinion, to secure to ten- ants, civil and political privileges, not to change the quality of their estates." ■ It having been enacted, that permanent leasehold estates, should be subject to the laws of real estate, as to descent and dis- tribution, it was ruled in Loring v. Mc- Clendy et al., 11 Ohio 335, that a perma- nent leasehold estate is not a chattel, but realty ; which is shaken, if not overruled, in The Lessee of Boyd et al. v. Talbert, 12 Ohio 213, where Chief Justice Lane re- marks : " The question whether a lease be realty or personalty, need not be here determined ; but I take the opportunity to express my apprehension, that the case reported last year" (Loring ?;. McClendy etal., 11 Ohio 355) "does not conclude this point, and I shall be ready to consider it when it becomes necessary." This is followed by The Northern Bank of Ken- tucky V. Roosa, 13 Ohio 334, explaining 260 OF PERSONAL ESTATE GENERALLY. in this case the intention of the testator is carried into effect by the application of a doctrine similar *to that of executory devises of real Loring i'. McClendy, and deciding that judgments are liens, without levy, for one year, on permanent leaseholds as upon other real estate. And this doubt is perhaps increased, by the opinion of Spalding, J., in the case of Buckingham v. Reeve et al., 19 Ohio 399, wherein he says, that if he was called upon to decide the question directly, he should hesitate to say that a judgment at law would have a lien upon any leasehold estate whatever ; and adds further, that the law then in force in Ohio regulating permanent leaseholds, had " respect only to the treatment, after an order of sale, or the levy of an execution." But in Phillips et al. V. Knox County Mutual Insurance Company, 20 Ohio 181, it was said, that ■where a lease had been made for ninety- nine years, it was equivalent to the fee. And see also McAlpin v. Woodruff, 11 Ohio 120. Strictly speaking, there cannot be a limitation of personal property after an estate for life in it ; nevertheless, this may be attained by means of an executory . devise, or deed of trust : Cooper v. Cooper, 2 Brevard 355 ; and the only question to be determined, in order to decide upon the validity of the limitation, is, whether it tends to create a perpetuity : that is, whether it is impossible for it to take effect, and be executed, within a life or lives in being, and twenty-one years added to the period of gestation, afterwards ; if it will, it is a valid limitation : Griggs v. Dodge, 2 Day 28 ; Taber v. Packwood, Id. 52 ; Nevison et al. v. Taylor, Admr., 3 Halst. 43 ; Home et al. v. Lycth, 4 Har. & Johns. 431 ; Keating v. Reynolds, Bay 80; Cordle's Admr. v. Cordle's Exr., 6 Munf. 455; Timberlake v. Graves, Id. 174; Drury et al. v. Grace, 2 Har. & Johns. 356; Jackson v. Blanshaw, 3 Johns. 292; Pater- son V. Ellis's Exrs., 11 Wend. 259; Scott, Exr., V. Price, Exr., 2 S. & R. 59 ; Miffiin^. Neal, Admr., G Id. 460 ; Cassilly et al. v. Meyer et al., 4 Md. 1 ; Hubley v. Long, 2 Grant's Cas. 268 ; Ingram v. Smith, 1 Head (Tenn.) 411; Thornton v. Burch, 20 Ga. 191 ; Condict v. King, 2 Bcasley (N. J.) 375. In Home et al. v. Lyeth, 4 Har. & Johns. 431, Chief Justice Dorsey uses the follow- ing words : " Having thus briefly examined what would have been the operation of this bequest, if the subject-matter had been a frank-tenant (and in doing this, we were necessarily led upon an inquiry con- cerning the meaning and legal effect, of the word ' heirs ' and ' heirs of the body,' when limited upon a preceding estate of freehold), we shall now consider the be- quest as applicable to chattel interest, or leasehold property. " At one period of our law, if a term for years or chattel was bequeathed to one for life, and after his death to a third person, the ulterior limitation was considered void, and the whole interest of the term or thing, became vested in the first devisee ; but in process of time, this doctrine was aban- doned, and courts of justice, on grounds of general utility and public convenience, sustained the superadded limitation as an executory devise If a leasehold estate is limited to one for life, remainder to the ' heirs of his body,' the whole inter- est vests in the first taker, and the words 'for life,' will not be sufficient to restrain his interest to a life estate. But if words of limitation are superadded to the words ' heirs of the body,' such additional limita- tion is considered as indicative of au in- tention, to give only a life estate If the words 'heirs of the body' (which naturally point to children and their de- scendants), are considered as words of limitation, and enlarge the estate of the first devisee to an absolute interest, why should not the word ' heirs,' so compre- hensive in its signification, give as great an interest?" In accordance with the doctrine, that if personal property be given to one for life, remaiuder to his heirs, or to the heirs of I OF SETTLEMENTS OF PERSONAL PROPERTY. 260 estates, (c) The whole term of years is considered as vesting in the legatee for life, in the same manner as under an assignment by deed ; but on his decease the term is held to shift away from him, and to vest, by way of executory bequest, in the person to be next entitled.(rZ) Ac- cordingly, if a term of years be bequeathed to A. for his life, 'and after his decease to B., A. will have, during his life, the whole term vested in him, and B. will have no vested estate, but a mere possibility, as it is termed,(e) until after the decease of A. ; and this possibility, like the possibility of obtaining a real estate, was formerly inalienable at law unless by will,(/) though capable of assignment in equity.(^) But by the act to amend the law of real property,(A) which repeals an act of the previous session passed for the same purpose, (if) it is provided that an (c) See Principles of the Law of Real Property 249, 2d ed. ; 256, 3d ed. ; 259, 4th ed. ; 270, 5th ed. ; 284, 6th ed. ; 292, 7th ed. ; 301, 8th ed. {d) Matthew Manning's Case, 8 Rep. 95 ; Lampert's Case, 10 Rep. 47. (e) See Princeples of Law of the Real Property 223, 2d ed. ; 230, 3d ed. ; 231, 4th ed. ; 240, 5th ed. ; 250, 6th ed. ; 256, 7th ed. ; 267, 8th ed. (/) Shep. Touch. 230. {g) Fearne, Cont. Rem. 548. (A) Stat. 8 & 9 Vict. c. 106, s. 6. {i) Stat. 7 & 8 Vict. c. 76, s. 5. his body, he will take absolutely, unless there be words to show that only an estate for life was intended, see the following cases : Keating v. Reynolds, 1 Bay 80 ; Exrs. of Moffat v. Strong, 10 Johns. 12; Guery v. Vernon, 1 Nott & McC. 09 ; Dott et al. V. Cunnington, 1 Bay 453 ; Powell v. Glenn et al., 21 Ala. 458 ; Durden's Admr. V. Burns's Admr. et al., 6 Id. 363 ; Cruger et al. V. Heyward, Exr., et al., 2 Dessaus. 94; McGran v. Davenport, 6 Port. 319; Williams v. Graves, Exr., 17 Ala. 62; Ewing V. Standifer et al., 18 Id. 400; Woodley v. Findlay et al., 9 Id. 716; Machen v. Machen, 15 Id. 373; Powell v. Brandon, 24 Miss. 344; Barker v. Crosby, 32 Barb. 184; Rewalt v. Ulrich, 23 Penn. St. 388 ; Amelia Smith's Ap., Id. 9 ; Moore V. Brooks, 12 Gratt. 135 ; but very slight circumstances will be regarded as suffi- cient to indicate such intention : Hagerty V. Albright, 52 Penn. St. 274. But see to the contrary : Paterson v. Ellis's Admr., 11 Wend. 259. A bequest of a life estate in personal property, gives the donee a right to con- sume or wear out such articles as cannot 21 otherwise be enjoyed ; and the donee's lia- bility to the remainderman, is to be gov- erned by the intent of the donor, collected from the whole will : German v. German, 27 Penn. St. 116; Holman's Ap., 24 Id. 174; and if the bequest is not specific, the personalty should be converted into money, of which the interest only would go to the tenant for life : Akerman v. Vreeland, 1 McCarter's (N. J.) 23 ; but where a bequest for life is made of personalty, which can be enjoyed without being consumed or decreased, though waste or destruction is practicable, and it is the intention of the testator that the legacy should be in the possession of the first taker, but also that it should be preserved for the subsequent enjoyment of the remainderman ; the exe- cutor, under the act of the legislature of Pennsylvania of 24th of February, 1834, may require security from the first legatee for the proper return of the gift, before placing it in his possession : Clevenstine's Ap., 15 Penn. St. 496 ; Rodgers v. Rodgers, 7 Watts 15. See also, Act of I7th May, 1871, I 1 ; Purd. Dig. Suppl. p. 1652. And see also, Clarke v. Terry, 34 Conn. 170. 260 OF PERSONAL ESTATE GENERALLY. executory and future interest, and a possibility coupled with an interest, in any tenements or hereditaments of any tenure may be disposed of by deed. B. may, therefore, during the life of A., assign his expectancy by deed ; and such ^assignment will entitle the assignee to the whole '-*'-' term on A.'s decease. If, however, no such assignment should have been made,B. will become, on the decease of A., possessed of the whole term, which will then shift to B. by virtue of the executory bequest in his favor. The mere circumstance, indeed, of the term being bequeathed to A. for his life only, will operate to shift away the term on his de- cease,(y) independently of the bequest to B. ; so that, if there had been no bequest over to B., the interest of A. would continue only during his life, and the residue of the term would then remain part of the undis- posed of property of the testator. It may, however, be doubted whether the doctrine of executory bequests is applicable in law to any other chattels than chattels real.(^)^ The strict and ancient doctrine of the indivisibility of a chattel, though still retained by the courts of law, has no place in the modern Court of Chancery, which, in administering equity, carries out to the utmost the intentions of the parties. In equity, therefore, under a gift of personal property of any kind to A. for his life, and after his decease to B., A. is merely entitled to a life interest, and B. has, during the life of A., a vested interest in the remainder, of which he may dispose at his pleasure, and the Court of Chancery will compel the person to whom the courts of law may have awarded the legal interest to make good the disposition.^ Accordingly, if the personal property so given should consist of movable goods, equity will compel A., the owner for life, to furnish and sign an inventory of the goods, and an undertaking to take proper care of (y) Ej-res V. Faulkland, 1 Salk. 231 ; Kcr v. Lord Dungannon, 1 Dru. War. 509, 528.' {k) Fcarne, Cont. Rem. 413. See, however, 1 Jarm. Wills, V93 ; 747, 2d ed. ; Hoare V. Marker, 2 Term Rep. 376. 1 But see Cooper v. Cooper, 2 Brevard son v. Ellis's Exr., 11 Wend. 259; Bell f . 355; Griggs w. Dodge, 2 Day 28; Taber v. Hogan, 1 Stew. 536; Scott, Exr. Packwood, Id. 52; Nevison et al. t;. Tay- Price, Exr., 2 S. & R. 59 ; Williams lor, Admr., 3 Halst. 43 ; Cordle's Admr. v. Graves, Exr., 17 Ala. 62 ; Mifflin v. Neal, Corde's Exr., 6 Munf. 455; Timberlake v. Admr., 6 S. & R. 460; Usilton v. Usilton Graves, Id. 174; Giiery v. Vernon, 1 Nott et al., 3 Md. Cb Decs. 36; Woodley v. k McC. 69; Biscoe v. Biscoe, 6 Gill & Findley et al., 9 Ala. 716; Machen v. Johns. 232; Raborg v. Hammond, 2 Har. Machen, 15 Id. 373; Rowe v. White, 1 & G. 42 ; Royal v. Eppes, Admr., 2 Munf. Green 411. And see also ante, p. 259, 479 ; Dashiel v. Dashiel, 2 Har. & Gill 127 ; note. Powell V. Glenn et al., 21 Ala. 458 ; Patter- « See ante, p. 259, note. OF SETTLEMENTS OF PERSONAL PROPERTY. 262 *them.(Z) This doctrine, ho^vever, is comparatively of modern r*262'l date ; for formerly the Court of Chancery followed the rules of law in the construction of such gifts ; and if a gift of movable goods had been made to A. for his life, and after his decease to B., they would not have aflforded to B. any assistance after A.'s decease.(m) But if the gift had been of the 2ise or enjoyment of the goods only to A. for his life, and after his decease to B., the court would then have assisted B. by declar- ing A.'s representatives after his decease to be trustees only for the benefit of B.(?i) But this distinction is now exploded; and the only case in which the tenant for life is now entitled absolutely to things given to him for life is, that of articles quae ipso usu consumuntur, as wines, &c., a gift of which to a person for his life vests in him the absolute owner- ship.(o) In all other cases, as we have said, modern equity will assist the donee in remainder, to whom any gift of personal estate may be made after the decease of another who is to have them only for his life.(jt)) When, therefore, it is wished to make a settlement of any kind of personal property, the doctrine of the Court of Chancery is at once resorted to. The property is assigned to trustees, in trust for A. for his life, and after his decease in trust for B., &c. This assignment to the trustees vests in them the whole legal interest in the pro- perty ; and in a court of law they are held to be absolutely entitled to it; for the Statute of Uses(^) has no application to any kind of personal estate. But in equity the trustees are compellable to pay the entire income to A. for his life, and after his decease to B., and so on according to the *trusts of the settlement ; and if B. should alien p2631 his interest during the life of A., the trustees will be bound, on having notice of the disposition, to stand possessed of the property, after A.'s decease, in trust for the alienee.(r) When shares in joint stock companies are settled in the manner above mentioned, it sometimes becomes a question whether any extraordinary profit which may be divided amongst the shareholders by way of bonus should be considered as capital or as interest. The equitable tenant for life is too frequently inclined to consider himself entitled to any bonus in the (l) Fearne, Cont. Rem. 407 ; Conduitt v. Soane, 1 Coll. 285. (m) Fearne, Cont. Rem. 402. (n) Ibid. 404. (o) Randall v. Russell, 3 Merir. 190 ; Andrew v. Andrew, 1 Coll. 690. (p) Fearne, Cont. Rem. 406. (q) 21 Hen. VIII. c. 10 ; Principles of the Law of Real Property 126, 2d ed. ; 131, 3d and 4th eds. ; 136, 5th ed. ; 142, 6th ed. ; 146, 7th ed. ; 152, 8th ed. (r) A form of marriage settlement of stock and other personal estate upon the usual trusts will be found in Appendix (B). 263 OF PERSONAL ESTATE GENERALLY. same manner as to ordinary dividends. The Court of Chancery, how- ever, usually considers every bonus, whether consisting of additional joint stock or shares,(s) or simply of money,(i) as part of the capital, unless it appear to be nothing more than an increased dividend arising from the increased profits of the year.(M) In the absence, therefore, of any special provision to the contrary, every bonus ought to be invested upon the trusts of the settlement, and the income only paid to the tenant for life.^ By a modern act of parliament, (v) on the decease of a person entitled to a life interest in any income, made payable or coming due at fixed periods, of any property, whether real or personal, his executors or r*9ftn administrators *are entitled to recover from the remainderman '- "^ -^ an apportioned part of the next payment of the income, ac- cording to the time which shall have elapsed since the last period of payment, up to and including the day of the decease of such person.^ (s) Brander v. Biander, 4 Ves. 800; Hooper v. Rossiter, 13 Price 774; s. c. M'Cleland 527. (t) Paris V. Paris, 10 Ves. 185 ; Ward v. Combe, 7 Sim. 634. See also Gilly v. Burley, 22 Beav. 619, 624, and the cases there collected. (m) Barclay v. Wainewright, 14 Ves. 66; Price v. Anderson, 15 Sim. 473; Preston v-. Melvill, 16 Sim. 163; Maclaren v. Stanton, 3 De G. F. & J. 203. {v) Stat. 4 & 5 Will. IV. c. 22, s. 2; Re Maxwell's Trusts, V.-C. W., 9 Jur. N. S. 350; 1 Hem. & Mill. 610. 1 In Earp's Ap., 28Penn. St. 368, where a 256, approving Earp's Ap., it was held testator devised and bequeathed the resi- that the earnings and profits of stock of a due of his estate to his executors, in trust, decedent made after his death, are income, to collect the rents, income, and interest, though in the form of capital, by the and to pay one equal fourth part to and issue of new stock. for the use of each of his four children, ^ ^^^ common law there can be no ap- respectively ; and among his residuary portionment of rent: Zule v. Zule, 24 estate, was stock held by the testator in a Wend. 76; Stillwell v. Doughiy, 3 Bradf. manufacturing company, upon which 359 ; Marys v. Anderson, 24 Penn. St. 272 ; large surplus profits, over and above the Wegtly v. R. R., 2 Grant Gas. 243; Bank current dividends declared, had accumu- of Penna. v. AVise, 3 Watts 397, in which lated, and continued to accumulate for last case it was decided that "the idea of several years after his death : It was held apportioning the rent that becomes pay- that the surplus fund accumulated by the able, after the purchaser of a reversionary company, over and above the current interest in fee, at a sheriff's sale, has paid dividends at the time of the death of the the purchase money, and received his deed testator, was a part of the principal of the of conveyance for it, between him and the fund, and was sv'ibject to the trusts de- defendant in the execution, as whose estate dared in the will; and that the accumula- it was sold, is unknown to the law, and tions on the stock after the death of the cannot be reconciled with any of its ana- testator, were as much a part of the in- logons and fixed principles." See also, come of the principal as the current divi- Martin v. Martin, 7 Md. 368. And where dends. And in Wiltbauks Ap., 64 Id. a lease continued beyond the termination OF SETTLEMENTS OF PERSONAL PROPERTY, 264 And when any other limited interest determines, a similar right to an apportionment is also given. But the act makes no apportionment of rent between the heir or devisee and the executor of a tenant in fee of a life estate, it was held that there could be no apportionment thereof, and that the rent belonged to whosoever had the estate on the rent day; Marshall v. Moosley, 21 N. Y. 280. By a statute of Pennsylvania, where a tenant fraudulently removes from the premises the goods and chattels liable to distress, in order to de- prive the landlord of his remedy, the rent may be apportioned up to the time of such fraudulent removal, and a distress forth- with made : Brightly's Purd. Dig. 611, sect. 6 ; so too where a levy under an execution is made on the tenant's goods in the de- mised premises liable to distress, the rent for the current year or quarter, apportioned to the time of the levy, is by statute pay- able out of the proceeds of the sale of the goods: Wickey v. Eyster, 58 Penn. St. 501 ; and where a reversioner disposes of a portion of the reversion, the rent may be apportioned between himself and his ven- dee : Linton v. Hart, 25 Penn. St. 193. It is in accordance with the doctrine that rent cannot be apportioned as to time, that it has been decided, that where a tenant has been evicted of any portion of the demised premises by his landlord, the eviction is a bar to any claim by the land- lord for rent: Shumway v. Collins, 6 Gray 227; Linton v. Hart, 25 Penn. St. 193; Wright V. Lattin, 38 111. 293. If one is entitled for life, to the interest of a certain sum charged on real estate, and dies, the income may be apportioned, so that the interest which may accrue, between the day on which the interest was regularly payable, and the day of the death, will be paid to the executor or administrator: Sweigart v. Frey, Adrar., 8 S. & R. 299 ; see also Green, Exr., v. Osborn, 17 Id. 171; Cole V.Patterson, 25 Wend. 456. The rule of law which refuses appor- tionment of rent in respect of time, is ap- plicable to all periodical payments becom- ing due at fixed intervals ; not to sums accruing de die ad diem. Annuities, there- fore, and dividends on money in the funds, are not apportionable, as a general rule. But dower, and sums for the maintenance of a wife and child are exceptions, and an annuity in lieu of dower will last as long as the dower would have lasted: Blight v. Blight, 51 Penn. St. 420. And interest, whether the principal is secured by mort- gage or by bond, notwithstanding that it is expressly made payable half yearly, may be apportioned, for although reserved at fixed periods, it becomes due de die ad diem for forbearance of the principal, which the creditor is entitled to recall at plea- sure: McKeen's Ap., 42 Penn. St. 484; Wertz's Ap., 65 Id. 306. In accordance with the principle that the contract is terminated by the act of God, it has been held, that where one enters into a contract of hire for a year, and dies before the expiration of the year, his wages should be apportioned: Bacoti'. Parnell, 2 Bail. 424; George v. Elliott, 2 Hen. & Munf. 5 ; Wolf v. Howes, 20 N. Y. 197; Babbitt I'. Riddell, 2 Grant Cases 161. In the state of South Carolina, an over- seer hired for a year, who is turned away for misconduct, may nevertheless recover for the services actually performed while he conducted himself properly : Eakin v. Harrison, 4 McCord 249; but if he has been negligent in his duties, or loss has occurred by his leaving the service, he can recover nothing: Byrd v. Boyd, Id. 246, and of these matters a jury will judge, as well as of the amount to which he may be entitled: McClure v. Pyatt, Id. 26. It seems, also, in the same state, that "if one rents a house for a year, and during the term it is rendered untenable hj a storm, the rent ought to be apportioned according to the time it was occupied ; " Ripley v. Wightman, 4 McCord 447. 264 OF PERSONAL ESTATE GENERALLY. simple.(w) And where the property ceases with the interest, and does not go over to another, as in the case of a life annuity, the act appears inapplicable; and the right to an apportioned part should therefore, if desired, be expressly conferred. (2;) The act extends only to instruments executed, and wills coming into operation after the passing of the act, which took place on the 16th June, 1834 ;(^) and its provisions do not apply to any case in which it is expressly stipulated that no apportionment shall take place, or to annual sums made payable in policies of assurance of any description. (2) Previously to this act no apportionment was made of annuities, or of the dividends of stock settled in trust for one person for life, with remainder to another ; but the remainderman was entitled to the whole of the annuity or dividend which fell due next after the decease of the person entitled for life.(a) But in a case where the tenant for life of stock died on the day on which a half-year's dividend became due, it was held that it belonged to his personal estate.(5) If an r^nnr-i annuity were *given for the maintenance of an infant,(e) or of a "- -^ married woman living separate from her husband,((^) the neces- sity of the case was considered a ground for presuming that an appor- tionment was intended. The interest of money lent was also always apportioned ; for though the payment of such interest be made half-yearly, yet it becomes due de die in diem, so long as the principal remains un- paid. (e) An estate tail, such as that created by a gift of lands to a man and the heirs of his body,(/) has nothing analogous to it in personal pro- perty. An estate tail cannot be held in such property at law, neither does equity admit of any similar interest. A gift of personal property (w) Brown v. Amyot, 3 Hare 173, 183; Beer v. Beer, C. P. 16 Jur. 223, 225; 12 C. B. 60 (E. C. L. R. vol. 74); Re Clulow, 3 Kay & J. 689. (z) But see Carter v. Taggart, 16 Sim. 447; Trimmer v. Danby, V.-C. "K. 23 L. J., Chan. 979. (y) Mitchell v. Mitchell, 4 Beav. 549; Knight v. Boughton, 12 Beav. 312; Wardroper V. Cutfield, V.-C. K., 10 Jur. N. S. 194, (z) Stat. 4 & 5 Will. IV. c. 22, s. 3. (a) Pearly v. Smith, 3 Atk. 260; Sherrard t>. Sherrard, 3 Atk. 502; Warden v. Ash- burner, 2 De G. & S. 366; The Queen v. The l^ords of the Treasury, 16 Q. B. 357 (E. C. L. R. vol. 71). (b) Paton V. Sheppard, 10 Sim. 186. (c) Hay V. Palmer, 2 P. Wms. 501 ; 1 Swanst. 349 note. {d) Howell V. Hanforth, 2 W. Black. 1016 (e) Edwards v. Countess of Warwick, 2 P. Wms. 176; Banner v. Lowe, 13 Ves. 135; Re Roger's Trusts, 1 D. & S. 339. (/) See Principles of the Law of Real Property 28, 2d ed. ; 30, 3d and 4th eds. ; 33, 5th, 6th, 7th and 8th eds. OF SETTLEMENTS OF PERSONAL PROPERTY. 265 of any kind to A. and the heirs of his body will simply vest in him the property given.(^) And in the construction of wills, where many infor- mal expressions are allowed to vest an estate tail in lands, the general rule is, that expressions, which if applied to real estate would confer an estate tail, shall, when applied to personal property, simply give the absolute interest.(7i) The same eifect will be produced by a gift of such property to a man and his heirs. The words " heirs," and " heirs of his body," are quite inapplicable to personal estate; the heir, as heir, has nothing to do with the personal property of his ancestor.^ Such property has nothing hereditary in its nature, but simply belongs to its owner for the time being. Hence, a gift of personal property to A. simply, with- out more, is sufficient to *vest in him the absolute interest.(^) r*2661 Whilst, under the very same words, he would acquire a life interest only in real estate,(y) he will become absolutely entitled to per- sonal property. Thus a gift of lands to A. for life, and after his decease to B., gives to B. a mere life interest in remainder expectant on the {g) Fearne, Cont. Rem. 461, 463 ; Doncaster v. Doncaster, 3 Kay & J. 26. {h) 2 Jarm. Wills, ch. 44, p. 534, 3d ed. (i) Byng V. Lord Stafford, 5 Beav. 558. (y) Principles of the Law of Real Property 17, 114, 2d ed. ; 18, 119, 3d and 4th eds.; 18, 125, 5th ed. ; 18, 131, 6th ed. ; 18, 134, 7th ed, ; 19, 140, 8th ed. 1 Comfort V. Mather, 2 W. & S. 450, was the case of a bequest " to S. E., wife of J. E.," of the sum of $1000, "to have and to hold to her the said S. E., her heirs and assigns, forever ;" and S. E. having died before the testator, it was held, that the bequest lapsed. Sergeant, J., remarking, that it had been " repeatedly and uniformly decided, in conformity to a principle of law, which is said to have been borrowed from the civil law, that every legacy im- plies a condition that the legatee shall survive the testator, and that where the legatee dies in the lifetime of the testator, the legacy lapses. The legislature of this State (Pennsylvania) has, by the act of 8th of April, 1833, corrected the rule, where a legacy is in favor of a child, or other lineal descendant of the testator, declaring that in such case it shall survive to the issue ; but they have not thought fit to go further." See act of 8th of April, 1833, Purd. Dig. (1861), p. 1017. See also to the same point. Sword v. Adams, 3 Yeates 34; Dickinson v. Parvis et al.. Exrs. 8 S. & R. 71 ; Bendall v. Bendall, 24 Ala. 295; Coffin v. Elliott, 9 Rich. Eq. 244 ; Hutchinson's Ap., 34 Conn. 300. By a subsequent enactment of the same State (Act of 6th May, 1844 ; Purd. Dig. 1017), it was provided, that " no devise or legacy, hereafter made in favor of a brother or sister, or the children of a deceased brother or sister, of any testator, such testator not leaving any lineal descendants, shall be deemed or held to lapse, or become void by reason of the decease of such devisee or legatee, in the lifetime of the testator, if such devisee or legatee shall leave issue surviving the testator; but such devise or legacy shall be good or available in favor of such surviving issue, with like effect as if such devisee had survived the testator, saving always to every testator the right to direct otherwise." Under this last act it has been decided, that a bequest by a testator to his sister, who was dead at the time the will was written, but who left children who survived the testator, was not void: Minter's Ap., 40 Penn. St. 111. 266 OF PERSONAL ESTATE GENERALLY. decease of A. ;(/r) unless indeed tbe gift be by will under the act for the amendment of the laws with respect to wills.(/) But a gift of personal property to A. for life, and after his decease to B., gives to B. a vested equitable interest in the corpus or body of the fund, to which he becomes absolutely entitled, subject only to A.'s life interest; and the circum- stance of B.'s dying in the lifetime of A. would be immaterial. (m) It is true that in deeds and other legal instruments it is usual to transfer personal estate absolutely, by the use of the words " executors, administrators and assigns." As real estate is conveyed to a man, his heirs and assigns,(7i) so personal property is assigned to him, his exe- cutors, administrators and assigns. The executor or administrator is, as we shall see, the person who becomes legally entitled to a man's personal estate after his decease ; in the same manner that a man's heir or assign becomes entitled to his real property. But the analogy extends no fur- r*9fi71 ^^^^' There is no necessity for the use of these terms(o) as there is for the employment of the *word " heirs." These terms, however, are constantly employed in conveyancing as words of limitation of an absolute interest ; and a rule has sprung up with respect to their construction similar to the rule in Shelley's Case, by which the word "heirs," when following a life estate given to the ancestor, is merely a word of limitation, giving to such ancestor an estate in fee.{p) Thus, if money or stock be settled in trust for A. for life, and after his decease in trust for his executors, administrators and assigns, A. will be simply entitled absolutely •,{q) in the same manner as a gift of lands to A. for his life, with remainder to his heirs and assigns, gives him an estate in fee simple. But as the rule, so far as it applies to personal property, is not founded on the same strict principle as the rule in Shelley's Case, a gift of such property to the executors or administrators (not adding assigns) of a person who has taken a previous life interest is sometimes (k) Goodtitle d. Richards v. Edmonds, 7 Terra Rep. 635. {1} Stat. 1 Will. IV. & 1 Vict. c. 26, s. 28. (m) Benyon v. Madison, 2 Bro. C. C. 75. (n) Principles of the Law of Real Property 115, 2d ed. ; 120, 3d and 4th eds. ; 126, 5th ed. ; 132, 6th ed. ; 135, 7th ed. ; 141, 8th ed. (o) Elliott V. Davenport, 1 P. Wms. 84. See Earl of Lonsdale v. Conntess of Berch- toldt, 1 Kay 646. {p) See the Principles of the Law of Real Property 207, 2d ed. ; 214, 3d ed. ; 215, 4th ed. ; 224, 5th ed. ; 234, 6th ed. ; 240, 7th ed. ; 250, 8th ed. (q) Co. Litt. 54 b ; Hames v. Hames, 2 Keen 646 ; Grafftey v. Humpage, 1 Beav. 46 ; Howell V. Gayler, 5 Beav. 157; Meryon i'. CoUett, 8 Beav. 386; Morris t;. Howes, 4 Hare 599. OF SETTLEMENTS OF PERSONAL PROPERTY. 267 construed as giving him no further interest in such property ;(r) whilst, under the same circumstances, the Avord " heirs" in a gift of real estate would have given him the fee simple. As no estates can subsist in personal property, it follows that the rules, on which contingent remainders in freehold lands depend for their exist- ence, have never had any application to contingent dispositions of personal property. Such dispositions partake rather of the indestructible nature of executory devises and shifting *uses. Thus a gift of lands to r*2681 A. for his life, and after his decease to such son of A. as shall first attain the age of twenty-one years, creates a contingent remainder, which will fail in the event of no son of A. having attained the pre- scribed age at the time of his decease.(s) The reason of this failure depends on the ancient rule, that there must always be some defined owner of the feudal possession ; and. consequently, between the time of the death of A. and the time of his son's attaining the age of twenty- one years, some owner of the freehold ought to have been appointed, in whom the feudal possession might continue.(«) Personal property, hoAV- ever, has evidently nothing to do with these feudal rules relating to pos- session. If, therefore, a gift be made of personal property to trustees, in trust for A. for his life, and after his decease, in trust for such son of A. as shall first attain the age of tAventy-one years ; or if a term of years be bequeathed to A. for his life, and after his decease to such son of A. as shall first attain the age of twenty-one years ; it will be immaterial whether or not the son attain the age of tAventy-one years in the lifetime of his father. On his attaining that age, he will become entitled quite independently of his father's interest. His ownership will spring up, as it Avere, on the given event of his attaining the age. But as the inde- structible nature of these future dispositions of personal estate might lead to trusts of indefinite duration, the rule of perpetuities, which confines executory interests within a live or lives in being, and twenty-one years afterwards, with a further allowance for the time of gestation, should it exist,(M) applies equally to personal as to real estate. And the (r) Wallis v. Taylor, 8 Sim. 241 ; see 1 Beav. 52 ; Daniel v. Dudley, 1 Phi. 1 ; Attor-' ney-General v. Malkin, 2 Phi. 64 ; Mackenzie v. Makenzie, 3 Macn. & G. 559. See also Alger v. Parrott, V.-C. W., Law Rep. 3 Eq. 328. (s) resting v. Allen, 12 M. & W. 279 ; 5 Hare 573 ; Holmes v. Prescott, V.-C. W. 10 Jur.N. S. 507; 12 W. R. 636. {t) Principles of the Law of Real Property 209, 1st ed. ; 217, 2d ed. ; 224, 3d and 4th eds.; 233, 5th ed. ; 246, 6th ed. ; 250, 7th ed. ; 259, 8th ed. (m) Principles of the Law of Real Property 242, 1st ed. ; 251, 2d ed. ; 259, 3d ed. ; 262, 4th ed. ; 272, 5th ed. ; 286, 6th ed. ; 294, 7th ed. ; 305, 8th ed. 269 OF PERSONAL ESTATE GENERALLY. r*o«q-i *further restriction on the accumulation of income imposed by the Thellusson Act,(v) applies to trusts for the accumulation of of the income of personal estate as well as real.^ Equitable interests in personal property of a future kind may be created through the instrumentality of powers, in a similar manner, and to the same extent, as future estates in land.(2;) Thus stock in the funds may be vested in the trustees upon such trusts as B. shall by any deed or by his will appoint, and in default of and until any such appointment, in trust for C, or upon any other trusts. Here C. will have a vested interest in the stock, subject to be divested or destroyed by B.'s exercis- ing his power of appointment ; and B., though not owner of the stock, has power to dispose of it by deed or will, and may if he please appoint to himself ; in which case the trustees will be found to transfer it to him. If the power should not be exercised by B., C. will then be entitled ab- solutely ; and will not, as was formerly the case with respect to landed property, be subject to judgment debts incurred by B.,(^) or to any other of his debts. But if B. should exercise his power by deed without valuable consideration, or by will, in favor of a third person, the stock so appointed would be considered in equity as part of the assets of B. the appointer, and would be subject to the demands of his creditors in pref- r*27m ^'^"^^^^ ^0 *^® claim of the appointee.(2) *In case of bank- ruptcy, it was provided by the former acts(a) that all powers vested in the bankrupt, which he might legally execute for his own benefit (except the right of nomination to any vacant ecclesiastical bene- fice), might be executed by the assignees for the benefit of the creditors in the same manner as the bankrupt might have executed the same. (v) Stat. 39 & 40 Geo. III. c. 98 ; Principles of tlie Law of Real Property 243, 1st ed. ; 253, 2d ed. ; 260, 3d ed. ; 263, 4th ed. ; 274, 5th ed. ; 288, 6th ed. ; 295, 7th ed. ; 307, 8th ed. (x) See Principles of the Law of Real Property 231, etseq. 1st ed. ; 236, 2d ed. ; 243, 3d ed. ; 245, 4th ed. ; 255, 5th ed. ; 266, 6th ed. ; 272, 7th ed. ; 283, 8th ed. (y) Ibid. (z) Lassells v. Cornwallis, 2 Vern. 465 ; Bainton v. Ward, 2 Atk. 172. The doctrine applies also to appointments of real estate. See Fleming v. Buchanan, 3 De G., M. A G. 976. (a) Stat. 12 & 13 Vict. c. 106, s. 147, repealing stat. 6 Geo. IV. c. 16, s. 77, to the same effect, and now repealed by stat. 32 & 33 Vict. c. 83. ^ For American statutes against accumu- except during the minority of one, who, if lation, following the " Thellusson Act," and then of full age, would be entitled to the closely resembling it, see 1 Rev. Stats. N. accumulated fund: Ilawley v. James, 5 Y. 726, sects. 37 & 38 ; Purd. Dig. 853, sec. Paige Ch. 481 ; Washington's Est., 28 Leg. 9. Under these acts it has been held, that Intel. 204. no accumulation of money will be valid, OF SETTLEMENTS OF PERSONAL PROPERTY. 270 And by the Bankruptcy Act, 1869, such powers may now be exercised by the trustees for the creditors. (6)^ The rules respecting the necessity of a compliance with the terms and formalities of the power, whenever it is exercised otherwise than by will,(741 ^^^ ^® obliged to refund it on becoming the eldest.(«) The word *" younger," however, is not, in parental provisions,(i) taken literally, but as meaning any child who may not be entitled to the family estate. Therefore a danghter, who may be the eldest child, would be considered as a proper object of a power to appoint amongst the younger children, Avhilst her younger brother, being the eldest son entitled to the family estate, would not be allowed to participate. (w) And in the same manner a second son becoming the eldest, but not ob- (o) Wilson V. Piggott, 2 Ves. jun. 351 ; Wombwell v. Hanrott, 14 Beav. 143; Walms- ley V. Vanghan, 1 De G. & J. 114. {p) Alexander v. Alexander, 2 Ves. sen. 640 ; Bristow v. Warde, 2 Ves. jun. 336. {qj Falkner v. Butler, Amb. 514 ; Waring v. Lee, 8 Beav. 247. (r) Chadwick v. Doleman, Vern. 528 ; Lord Teynham v. Webb, 2 Ves. sen. 198 ; Gray V. Earl of Limerick, 2 De G. & Sm. 370. See Sandeman v. Mackenzie, 1 John. & H. 613. (s) 2 Sugd. Pow. 293 ; 680, 8th ed. (/) Hall V. Hewer, Amb. 203 ; Lyddon v. Ellison, 19 Bear. 505. (u) Pierson v. Garnet, 2 Bro. C. C. 38 ; Heneage v. Hunloke, 2 Atk. 456 ; Beale v. Beale, 1 P. Wms. 244. ' See ante, p. 271, note. OF SETTLEMENTS OF PERSONAL PROPERTY. 274 taining the family estate, would be allowed a share.(?') A power to ap- point amongst children living at their father's decease includes a child en ventre sa mere.{tv) In some cases where the power only authorizes an appointment amongst children, an appointment in favor of the issue of a child may be sustained as being, in eftect, first an appointment to the child, and then an assignment by such child in favor of his issue.(.'r) But this of course can only be done when the child is of age, and is a party to and executes the deed by which the appointment is made. And the more regular plan in such cases is, for the father first to make the appointment in favor of the child, and then for the child to make an assignment of the fund ap- pointed to trustees in trust for his children in the manner intended. An appointment by a father in fiivor of his child, in exercise of a power for that purpose, ought to be made for the benefit of the child who is the object of the *provision, and not indirectly for the r*97r.-| benefit of the father who makes the appointment or of any other person.^ Accordingly, any exercise of the power under a bargain for, or even with a view to the benefit of the appointor, or of any other per- son than one of the objects of the power, will be considered as, in tech- nical phrase, a fraud on the power and will be void.(?/) But when there is no evidence that the appointment is made under a bargain for the benefit of the father, although there may be strong suspicion that such is the case, the appointment cannot be set aside.(3) Powers of appoint- ment amongst children usually enable the parent to fix the age or time at which the fund appointed shall vest in any child. But, on the prin- (d) Spencer v. Spencer, 8 Sim. 87 ; Macoubrey v. Jones, 2 Kay & J. 684 ; Sing v. Leslie, 2 Hem. & Mil. 68. (w) Beale v. Beale, 1 P. Wms. 244. {x) Routledge v. Dorril, 2 Ves. jun. 357; West v. Berney, 1 Russ. & My. 431, 439; Goldsmid v. Goldsmid, 2 Hare 187 ; Limbard v. Grote, 1 Myl. & K. 1, (y) Daubeney v. Cockburn, 1 Meriv. 626; Palmer i'. Wheeler, 2 Ball & B. 18 ; Jack- son V. Jackson, 1 Dru. 91 ; Thompson v. Simpson, 2 Jones & Lat. 110 ; Topham v. Duke of Portland, 1 De G., J. & S. 517 ; Pryor v. Pryor, 2 De G., J. & S. 205. (z) M'Queen v. Farquhar, 11 Ves. 467 ; Hamilton v. Kirwan, 2 Jones & Lat. 393 ; Campbell v. Home, 1 You. & Col. N. C. 664. 1 Bostick V. Winton, 1 S.need 524, may father, the appointor, and to become secu- be referred to in illustration of the doc- rity for the father's debts, with the un- trine stated in the text ; in which case it derstanding that the land was to be re- was decided, that a conveyance made to a conveyed, was not such an appointment child, in order that he might have suffi- in good faith, as would defeat the re- cient property to become bail for the mainders. 22 275 OP PERSONAL ESTATE GENERALLY. ciple just stated, a father ^vill not be allowed to make an immediate appointment to an infant child, for the sake of becoming himself entitled to the fund appointed, as the child's personal representative in the event of its decease. (a) An appointment to an infant is not, however, neces- sarily void on account of the circumstance that the father, who has made the appointment, Avill become entitled to the property appointed in the event of the child's decease. (6) In the exercise of powers of appointment amongst children, care should be taken not to postpone the vesting of their shares to a L " -J period which may exceed the *limits allowed by the law of per- petuity. (e) When the powers of appointment is a general power, ena- blinrr the appointor to make a disposition in favor of any object he may please, the property is evidently not tied up so long as such a power exists over it; and neither the reason nor the rule which forbids a per- petuity has any application till some settlement is made in exercise of such a power. In such a case, therefore, the limits of perpetuity com- mence from the time of the appointment, (c?) But where the power of appointment is to be exercised only in favor of a particular class of ob- jects, the property subject to the power is evidently already tied up in favor of that class. The limits of perpetuity are therefore in this case to be reckoned, not from the time of the exercise of the power, but from the date of its creation. The interest given by the power must, for this purpose, be regarded as if they had been inserted in the settlement by which the power was created ; and if such interests would have been too remote, if inserted in the original settlement, they will be too remote when given in exercise of thfe power.(e) Thus a person having a general power of appointment by will over a fund, may by his will appoint a share of it in favor of any unborn child of his own, to be vested in such child on his attaining the age of twenty-three years. The limit of per- petuities is reckoned from the time of the appointment, which in this case is the death of the appointor, when his will begins to take effect. The child must necessarily then be born, or in ventre sa mere, and the child's life is accordingly the life then in being within which the share r*977T ^^^^ necessarily vest. But if by a marriage settlement a fund be settled in trust for the father for his life, and *afcer his de- (a) .Cunynghame v. Tliurlow, 1 Russ. & My. 436; Lord Sandwich's Case, cited 11 Ves. 479; Gee v. Guruey, 2 CoU. 486. (h) Butcher v. Jackson, 14 Sim. 444; Fearon v. Desbrisay, 14 Beav. 635. (c) See ante, p. 268. {d) 1 Sugd. Pow. 249, 495 ; 395, 8th ed. (e) Co Litt. 271 b, n. (1), vii. 2; 1 Sugd. Pow. 498; 396, 8th ed. ;■ Routledge v. Dor- ril, 2 Ves. jun. 357. OF SETTLEMENTS OF PERSONAL PROPERTY. 277 cease in trust for the children, in such shares as he shall appoint by his will, he cannot make an appointment in favor of any unborn child, to be vested on his attaining the age of twenty-three years. For in this case the limit of perpetuities counts from the date of the settlement, when the property was first tied up for the benefit of the children ; and this limit would be exceeded if the child should not attain the given age within twenty-one years after the decease of the father, who was the life in being at the date of the settlement. And the rule is, that every limita- tion which may exceed in duration a life or lives in being, and twenty- one years afterwards (allowing for the period of actual gestation), is void as tending to a perpetuity. (/) When personal property is directed to be paid to any persons at a future time, the leaning of the courts is always in favor of vested inter- ests ; that is to say, the courts lean to that construction which will give to the parties a present assignable and transmissible right to that which is not payable till a future time.^ Thus if a legacy be given to a person (/) See Principles of the Law of Real Property 242, 1st ed. ; 251, 2d ed. ; 259, 3d ed. ; 273, 5th ed. ; 287, 6th ed. ; 294, 7th ed. ; 305, 8th ed. 1 The fundamental rule, that the inten- tion of the testator is to govern the con- struction of a will, is the primary test to discover whether a legacy is vested or contingent : Chighizola v. Le Baron, Exr., 21 Ala. 406; Marr, Exr., v. McCuUoch, Admr., 6 Port. (Ala.) 507 ; Stone et al., Admrs., v. Massy, 2 Yeates 363 ; Scott, Exr., V. Price, Exr., 2 S. & R. 59 ; Lemon- ier V. Godfroid, G Har. & Johns. 474. It is often, however, a matter of great diffi- culty, to decide whether, from the inten- tion of the testator, it was designed that a legacy should be vested or contingent : Shattuck, Admr., v. Stedman et al., Exrs., 2 Pick. 468. The legal construction of wills favors the vesting of legacies : Johnson v. Valen- tine, 4 Sandf. S. C. 36 ; Reed v. Buckley, 5 W. & S. 517 ; Roberts's Exrs. v. Brinker, 4 Dana 572 ; Cowdin v. Perry et al., Exrs., 11 Pick. 503; The State v. Mann, 3 Har. 6 Johns. 338; Eldridge v. Eldridge, 9 Cush. 516;'Manderson v. Lukens, 23 Penn. St. 31; Chew's Ap., 37 Id. 23; Young v. Stoner, Id. 105 ; Devane v. Larkins, 3 Jones Eq. 377. Thus, words of survivor- ship are always to be referred to the period of the testator's death, unless there is a plain intent to the contrary : Moore v. Lyons, 25 Wend. 119; Hulburt v. Ericson et al., 16 Mass. 241 ; Drayton v. Drayton et al., 1 Dessaus. 325 ; Elliott v. Exrs. of Smith, Id. ; Sealy v. Laurens, Id. ; Fulton V. Fulton, 2 Grant's Cas. 28 ; Dominick v. Moore, 2 Bradf. 201. Where time is annexed to the payment only, and not to the gift itself, the legacy is vested ; Chighizola v. Le Baron, Exr., 21 Ala. 406; Seibert's Appeal, 13 Penn. St. 501 ; Moore v. Smith, 9 Watts 403 ; Lamb v. Lamb, 8 Id. 184 ; Bayard v. At- kins, 10 Penn. St. 17 ; Schriver v. Cobeau, 4 Watts 130 ; Patterson, surviving Exr., v. Hawthorne, Admr., 12 S. & R. 112; Ma- goffin, Admr., v. Patton et al., Exrs., 4 Rawle 113 ; Jackson's Admr. v. Subett, 10 B. Mon. 572 ; Furness, Exr., v. Fox, 1 Cush. 134; Ware v. Cook, 1 Halst. Ch. 193; Marr, Exr., v. McCuUough, Admr., 6 Port. 507; Patterson v. Ellis, 11 Wend. 269; Donner's Appeal, 2 W. & S. 372 ; Roberts's Exrs. V. Brinker, 4 Dana 572 ; Gregg et al. V. Bethea, 6 Port. (Ala.) 9; Goddard v. 277 OF PERSONAL ESTATE GENERALLY. to be payable when he attains the age of twenty-one years, the legacy is considered to be immediately vested, and -will accordingly be payable to the administrator of the legatee in case he should die under age.(^) So if personal estate be settled in trust for A. for life, and after his decease for all his children in equal shares, each of his children will be entitled to a share, whether such child survive his parent or not, and although such child should die in infancy.(/<) If, however, the property should rs^n-DT consist of money charged on *land or other real estate, such as ^ *" the portions of younger children Avhen the family estate is en- tailed on the eldest son, the rule is different ; and if any of the children should die before the time when his or her portion becomes payable, it will, in the absence of special provision to the contrary, sink into the land for the benefit of the estate.(e) In the settlement of personal property upon children there are two plans, either of which may be adopted with respect to the vesting of the interests given. The one plan is, to vest the interests of the children in {q) 2 Black. Comm. 513 ; Co. Litt. 237 a, note (1). (h) Skey v. Barnes, 3 Mer. 335; Templeton v. Warrington, 13 Sim. 267. See Swallow V. Binns, 1 Kay & John. 417. (i) Co. Litt. 237 a, n. (1). See Evans v. Scott, 1 H. of L. C, 43, 57. Johnson, Exr., 14 Pick. 352 ; Lemonier v. Godfroid, 6 Har. & Johns. 474; Boone v. Sinkler, 1 Bay 369; Carpenter v. Heard, 14 Pick. 449 ; Gifford v. Thorn, 1 Stockt. 702; Bowman's Ap., 34 Penn. St. 19; Burd's Exr. r. Burd's Admr., 40 Id. 182; Roome v. Phillips, 24 N. Y. 463 ; Snow v. Snow. 49 Maine 159; Colt v. Hubbard, 33 Conn. 281 ; and in like manner, when the division, merely, of the property, is post- poned to a future time, and not its dis- tribution, the legacy is considered vested: Spruill V. Moore, 5 Ircd. Eq. 287; Womack V. Greenwood, 6 Geo. 299; Smith v. Wise- man, 6 Ired. Eq. 540 ; McLemore v. Mc- Lemore, 8 Ala. 687 ; Christian v. Christian, 3 Port. (Ala.) 351 ; Etheridge, Admr., v. Bell, 5 Ired. 87 ; Candler v. Dinkle, 4 Watts 143 ; Fanty v. Kline, Penning. 551. If something out of the principal is to be immediately paid to the legatee, or ap- propriated in his favor, the legacy will be Tested; as the giving of interest on the principal sum until the time of payment arrives : Schriver v. Cobeau, 4 Watts 130; Heleman v. Heleman et al., 4 Rawle 440 King V. King, 1 W. & S. 205 ; Marr, Exr., V. McCullough, Admr., 6 Port. 507 ; Patter- son V. Ellis, 11 Wend. 269; Hopkins v. Jones, 2 Penn. St. 69; Kelso v. Dickey, 7 W. & S. 279 ; Lemonier v. Godfroid, 6 Har. & Johns. 474; Boone v. Sinkler, Exr., 1 Bay 369 ; Cassilly et al. i'. Meyer et al., 4 Md. 1. When there is a gift to a class of per- sons, to take effect in enjoyment at a future period, the property vests in the persons as they come in esse, subject to be opened and let in others, as they may be born afterwards : Johnson v. Valentine, 4 Sandf. S. C. 36 ; Barnes et al. v. Prevost et al., 4 Johns. 61 ; and see, also. Hall v. Eddy, 2 Green 169; Ward v. Saunders, 3 Sneed 387 ; Yeaton v. Roberts, 8 Foster 459; Cooper v. Hepburn, 15 Gratt. 551; Nichols V. Denny, 37 Miss. 59; Tucker v. Bishop, 16 N. Y. 402 ; Hocker v. Gentry, 3 Mete. (Ky.) 463; Chambers v. Payne, 6 Jones Eq. 275. OF SETTLEMENTS OF PEKSONAL PROPERTY. 278 them immediately as they come into being, divesting from each of them proportionate shares as others are born, and also divesting the shares altogether in favor of the others, in the event of the decease of any son under age, or of any daughter under age and without having been mar- ried. The other plan is, to vest the interests given only in those who, being sons, attain the age of twenty-one years, or, being daughters, attain that age or marry under it. So far as the corpus of the fund is concerned, the result of each of these plans is the same, the property being ultimately divided only amongst those children who, being sons, live to come of age, or, being daughters, come of age or previously marry. But with regard to the income of the fund the plans are diflFerent. In the first case, the income belongs to the children whilst under age ; but in the second no interest either in the income or in the principal is given during minority, or, in the case of daughters, until marriage under age. In the first case, therefore, if the father be dead, the income will be payable to the guardian of the children toward their maintenance and education ; but in the second case there will be no provision for these purposes in the *absence of express directions. Such directions therefore should poTQi in such case be always inserted, with a provision for the accumu- lation of the surplus income by way of increase of the principal. If, however, the whole property is ultimately to go amongst the children,(A:) or if the persons entitled, in the event of the children not living to at- tain vested interests, should agree,(Z) the Court of Chancery will direct the income to be applied for the children's maintenance in the absence of sufficient provision for that purpose, and even in the face of an express direction to accumulate the income. (m) And a recent act of parliament now provides that, in all cases where any property is held by trustees in trust for an infant, either absolutely or contingently on his attaining the age of twenty-one years, or on the occurrence of any event previously to his attainincr that age, it shall be lawful for such trustees, at their sole discretion, to pay to the guardians (if any) of such infant, or otherwise to apply for or towards the maintenance or education of such infant, the whole or any part of the income to which such infant may he entitled in respect of such property, whether there be any other fund applicable to the same purpose, or any other person bound by law to provide for such maintenance or education, or not ; and such trustees shall accumulate all the residue of such income by way of compound interest, by invest- ing the same and the resulting income thereof from time to time in pro- (*) Haley v. Bannister, 4 Mad. 275 ; Errat v. Barlow, 14 Ves. 202. {I) Turner v. Turner, 4 Sim. 430 ; Cannings v. Flower, 7 Sim. 523. (tti) Greenwell v. Greenwell, 5 Ves. 194. 279 OF PERSONAL ESTATE GENERALLY. per securities, for the benefit of the person who shall ultimately become entitled to the property from which such accumulations shall have arisen : provided always, that it shall be lawful for such trustees at any time, if it shall appear to them expedient, to apply the whole or any part of such r*9Rm *accumulations as if the same were part of the income arising in the then current ycar.(w) This enactment applies only to deeds executed, and wills executed or confirmed or revived by codicil executed after the passing of the act, which took place on the 28th of August, 1860.(0) The act, it will be observed, applies only to income to which the infant may be entitled; so that if the infant should not be entitled to the income irrespectively of the act, it would scarcely be safe for the trustees to apply it for the infant's maintenance without express authority. In marriage settlements a life interest is usually and properly given to the father and mother, so that no provision is required for the main- tenance of the children until after the decease of the survivor. And where life interests are not given to the parents, but provision is made for the maintenance of the children during the father's lifetime out of the settled fund, such provision is considered as primarily applicable for the maintenance of the children accordingly. (^) But the general rule is, that every father is bound to maintain his children, if of ability so to do ;{q) and a provision contained in a gift to an infant child, for his maintenance and education, will not be applied for that purpose during his father's lifetime, if the father is able to maintain him in a manner suitable to his condition and prospects. (r)^ When, therefore, it is in- (w) Stat. 23 & 24 Vict. c. 145, s. 26. (o) Sect. 34. (p) Stocken v. Stocken, 4 Sim. 152 ; Meacher v. Younge, 2 Myl. & K. 490 ; Ransome V. Burgess, V.-C. K., Law Rep. 3 Eq. 113. See Thompson v. Griffin, 1 Craig & Phillips 317, (q) Andrews v. Partington, 3 Bro. C. C. 60. (r) Maberley v. Turton, 14 Ves. 499 ; Jervoise v. Silk, G. Cooper 52 ; Ex parte Wil- liams, 2 Collyer 740. 1 A father will not be allowed for the 2 Dessauss. 94 ; In the matter of Harland's maintenance and education of his chil- Accounts, 5 Rawle 323 ; Dawes v. Howard dren, out of their fortunes, if he is of et al., 4 Mass. 97 ; Guion v. Guion's ability to support them : In the matter of Admr., 16 Mo. 52 ; Sparhawk et al. v. Kane et al., 2 Barb. Ch. 375 ; Walker et Admr. of Buell et al., 9 Vt. 70 ; Presley v. al. V. Prowder et al., 2 Ired. Eq. 478; Davis, 7 Rich. Eq. 105; Harring v. Coles, Whilden et" al. v. Whilden Exr., et al., 2 Bradf. 349 ; Hines v. Mullins, 25 Geo. Riley Ch. Cas. 205; Addison v. Bowie, 2 696; Phelan.r. Phelan, 12 Fla. 449 ; and Bland Ch. 606 ; In the matter of Bost- this is true also, where the child, by tlie wick, 4 Johns. Ch. 100 ; Jones v. Stockett, father's consent, is in the custody of the 2 Bland Ch. 431 ; Crugar v. Haywood, mother, who has been guilty of miscon- OF SETTLEMENTS OF PEKSONAL PROPERTY. 280 tended that the income of property given to children should be applied to their maintenance during their father's lifetime, Avithout *refer- r^Qo-i-i ence to his ability to maintain them, the application of the in- come, without reference to his ability, should be expressly directed; and, if such application be so directed, the income must of course be ap- plied accordingly. (s) When two funds are provided for the maintenance of an infant, it is frequently difficult to decide to which fund recourse should be first had.^ The general rule is, that the interest of the infant determines the order of application ;{t) but, in order to avoid questions, it is very desirable, when two funds are provided for an infant's mainte- nance, to direct that one of them shall be in aid only of the provision afforded by the other. But the act to which we have just referred gives, (s) See Wetherell v. Wilson 1 Keen 80 (t) Foljambe v. Willoughby, 2 Sim. Sim 41. ; White v. Grane, 18 Beav. 571. & Stu. 165 ; Lygon v. Lord Coventry, 14 duct : Gill v. Read, 5 R. I. 343 ; but the father's situation in life, the future pros- pects of the children, the extent of their fortune, and all other circumstances, must be taken into consideration in deter- mining the ability of the father : In the matter of Kane et al., 2 Barb. Ch. 375 ; Walker et al. v. Crowder et al., 2 Ired. Eq. 478; Ellerbe v. The Heirs, &c., of Ellerbe, 1 Speer Eq. 328 ; Brown v. De- loach, 28 Geo. 486 ; Alston v. Alston, 34 Ala. 15. The case is, of course, different where the father is not of ability : Myers v. Myers, 2 McCord Ch. 255 ; Dawes v. Howard et al., 4 Mass. 97 ; Newport et al. V. Cook et al., 2 Ash. 332 ; Tompkins v. Tompkins, 3 Green 303 ; and where, on that account, sums from, the child's in- come have been paid over to the father, by the trustee of the child, in the due exercise of his discretion, for the support of the child, it has been held, that no promise of repayment can be implied, on account of a subsequent change for the better, in the circumstances of the father : Pearce v. Olney, 5 R. I. 269 ; and it seems that a mother will be allowed for the sup- part of her children, out of their estates, notwithstanding she may be of ability to maintain them : Wilkes v. Rogers et al., 6 Johns. 506 ; Whipple v. Dow, 2 Mass. 415; Dawes v. Howard et al., 4 Id. 97 ; Guion V. Guion's Admr., 16 Mo. 52 ; Osborne v. Van Horn et al., 2 Florida 360. But where a mother has maintained a child, she will not be allowed to recover what she has expended, upon an implied promise of the child to refund, for the law will presume that she has furnished her means gratuitously : Cummings v. Cummings, 8 Watts 366 ; and the same is true of a step- father : Brown v. Sockwell, 26 Geo. 380 ; Gillett V. Camp, 27 Mo. 541 ; Brush v. Blanchard, 18 HI. 46. In all cases, however, the court will consult the permanent interests of the children : In the matter of Burke, 4 Sand. Ch. 617 ; and will make exceptions to ordinary rules of law in their favor, as has been done by allowing interest upon legacies left to children, from the time of the death of the testator, where there was no other means of support: Sullivan v. Winthrop et al., 1 Sumn. 1 ; Miles v. Wis- ter, 5 Binn. 479 ; Lupton et al. v. Lupton et al., 2 Johns. Ch. 614; Leiby's Ap., 49 Penn. St. 182. 1 Where a fund has been appropriated to the maintenance and education of chil- dren, it must be completely exhausted before a further allowance will be made by the court : In the matter of Davison et al , 5 Paige Ch. 136. 281 OF PERSONAL ESTATE GENERALLY. as we have scen,(?<) a disscrption to the trustees to apply the income of of the infant's property f<>i" his inaintenancc, whether there be any other fund applicable to the same purpose, or any other person bound by law to provide for such maintenance or education, or not. In settlements of personal property, it has long been usual to provide for the investment of the fund settled in the parliamentary stocks or public funds of Great Britain, or at interest upon government or real securities in England or Wales, but not in Ireland; and at the present dav investments in railway debentures, preference shares and other se- curities yielding a larger income, are often authorized. Government securities, as distinguished from stocks or funds, seem to be nothing else than Exchequer bills, in which trustees appear to be justified, even without express authority, in investing the property for any temporary r*9«o-i purpose, as during the necessary delay in completing a *contem- '- '^ " plated mortgage security. (r) But whore a permanent investment is intended, a trust to lay out money in government securities will not authorize the purchase of Exchequer bills. (w) Real security means the mortgage of real estate, namely, freehold or copyhold hereditaments of sufficient value.(2:) And if it be desired that the trustees should have power to invest the trust money on mortgage of leasehold estates, or in railway debentures, (,?/) or shares, or any other securities, or to lend it to any person on his bond, express authority ought to be given to the trustees for the purpose. But the Improvement of Land Act, 1864, now pro- vides, that all trustees, directors and other persons who may be directed or authorized to invest any money on real security shall (unless the con- trary be provided by the instrument directing or authorizing such invest- ments) have power at their discretion to invest money in the charges authorized by that act, or on mortgages thereof.(2:) And it is further provided, that no charge on land made by any absolute order of the In- closure Commissioners by virtue of that act shall be deemed such an incumbrance as shall preclude a trustee of money, with power to invest (u) Ante, pp. 2T9, 280, (r) Matthews v. Brise, 6 Beav. 239, 244. (w) Ex parte Chaplin, 8 You. & Col. 397 ; as to the issue of Exchequer Bills, see Stat. 24 Vict. c. 5. (z) See Stickney v. Sewell, 1 Myl. & Cr. 8 ; Phillipson v. Gatty, 7 Hare 516 ; Mant v. Leith, 15 Beav. 524; Drosier v. Brereton, 15 Beav. 221. Turnpike bonds are real se- curities for some purposes : Robinson v. Robinson, Lords Justices, 1 De G., M. & G. 247, 272. (y) Mortimore v. Mortimore, 4 De G. & J. 472. (z) Stat. 27 & 28 Vict. c. 114, s. 60. OF SETTLEMENTS OF PERSONAL PROPERTY. 282 the same in the purchase of land or on mortgage, from investing it in a purchase or upon a mortgage of the land so charged, unless the terms of his trust or power expressly provide that the land to be so purchased or taken in mortgage be not subject to any prior charge.(a) Investments in *Ireland were often expressly prohibited, on account of an r*283"i act of parliament, which empowered trustees, who were author- ized by their trust to lend money at interest on real securities in England, "Wales or Great Britain, to lend the same at interest on real securities in Ireland.(5) But all loans of money on real securities in Ireland under the act, in which any minor or unborn child, or person of unsound mind, might be interested, were required to be made by the direction and under the authority of the Court of Chancery in England, to be obtained in any cause or upon petition in a summary way ;(c) and every such loan was to be made with the consent of the person or persons, if any, whose consent might be required as to the investment of such money upon real securities in England, Wales or Great Britain, testified in the manner required by the trust.((i) And it was also provided that the act should not apply to cases where there was an express restriction against the investment of the trust money on securities in Ireland. (e) A recent statute now provides, that when a trustee, executor or administrator shall not, by some instruments creating his trust, be expressly forbidden to invest any trust fund on real securities in any part of the United Kingdom, or on the stock of the Bank of England or Ireland, or on East India Stock, it shall be lawful for such trustee, executor or administrator to invest such trust fund on such securities or stock ; and he shall not be liable on that account as for a breach of trust, provided that such in- vestments shall in other respects be reasonable and proper.(/) This provision *has been made retrospective by act of parliament.(^) r*2841 And by a subsequent act of parliament the term " East India Stock," as above used, has been explained to mean as well East India Stock then existing as East India Stock charged on the revenues of India and created under any act or acts of parliament which subsequently received the royal assent.(A) A further enactment empowers the making (a) Stat. 27 & 28 Vict. c. 114, s. 61. (6) Stat. 4 & 5 Will. IV. c. 29. Leaseholds for lives perpetually renewable at a head rent form real securities in Ireland : Macleod v. Annesley, 16 Beav. 600. (c) Stat. 4 & 5 Will. IV. c. 29, s. 2; Ex parte French, 7 Sim. 510; Ex parte Lord William Pawlett, 1 Phill. 570 ; Norris v. Wright, 14 Beav. 291. {d) Sect. 4. (e) Sect. 5. (/) Stat. 22 & 23 Vict. c. 35, s. 32. {g) Stat. 23 & 24 Vict. c. 38, s. 12 ; Cockburn v. Peel, 3 De G., F. & J. 170; Hume V. Richardson, 4 De G., F. & J. 29. [h) Stat. 30 & 31 Vict. c. 132. 284 OF PERSONAL ESTATE GENERALLY. of general orders from time to time as to the investment of cash under the control of the Court of Chancery, and for the conversion of any 3Z. per Cent. Bank Annuities, standing in the name of the accountant- general of the Court of Chancery, in trust in any cause or matter, into any stocks, funds, or securities, upon Avhich by any such general order cash under the control of the court may be invested. (^) And when any such general order shall have been made, trustees, executors or adminis- trators, having power to invest their trust funds upon government secu- rities, or upon parliamentary stocks, funds or securities, or any of them, may invest such trust funds or any part thereof in any of the stocks, funds or securities, in or upon which, by such general order, cash under the control of the court may from time to time be invested. (/) In pur- suance of this enactment a general order has been made dated the 1st of February, 1861, authorizing the investment of cash under the control of the court in Bank Stock, East India Stock, Exchequer Bills, and 21. 10s. per Cent. Annuities, and upon mortgage of freehold and copyhold estates respectively in England and "Wales, as well as in Consolidated SI. per Cent. Annuities, Reduced 3?. per Cent. Annuities, and New 3?. per Cent. Annuities.(A;). P^^Q *A still later enactment of the same session authorizes trustees, having trust money in their hands which it is their duty to invest at interest, at their discretion to invest the same in any of the parliamentary stocks or public funds, or in government securities, and at their discretion to call in any trust funds invested in any other securities, and to invest the same on any such securities as aforesaid, and also from time to time at their discretion to vary any such investments as aforesaid for others of the same nature; provided that no . such original invest- ment as aforesaid (except in 3?. per Cent. Consolidated Bank Annuities), and no such change of investment as aforesaid, shall be made where there is a person under no disability entitled in possession to receive the income of the trusts fund for his life or for a term of years determinable with his life, or for any greater estate, without the consent in writing of such person. (?) This last enactment, however, like the other provisions in the same act, extends only to persons acting under a deed executed, or a will executed or confirmed or revived by a codicil executed afterthe 28th of August, 18(30, the date of the act.(w) (t) Stat. 23 & 24 Vict. c. 38, s. 10. (/) Sect. 11. {k) See Equitable Reversionary Interest Society v. Fuller, 1 ^ohn. & Hem. 379 ; Re Langford, 2 John. & Hem. 458 ; Re Warde, 2 John. & Hem. 191. (l) Stat. 23 & 24 Vict. c. 145, s. 25. (m) Sect. 34. OF SETTLEMENTS OF PERSONAL PROPERTY. 285 The consent of the persons for the time being entitled to the income of the property is generally required, in settlements, to any change of investment Avhich the trustees may be authorized to make; and this con- sent is sometimes required to be in writing, and occasionally to be testified by deed. Where consent is required, it must be given previously to or at the time of the change of investment ;(m) for as the consent is required as a *check upon the trustees, a subsequent consent, when the r*2861 mischief may be done, is evidently unavailing. The person whose consent is required is not, however, the sole judge of the pro- priety of any change of investment: the trustee, by virtue of his office, has also a discretion; and if he should consider the investment ineligible, he may refuse to make it, although requested so to do by the person whose consent ought to be obtained.(o) But the terms of the instrument may require the trustees to change the investments at the request of any given person ; and in this case they will generally be bound to act accor- dingly, unless the circumstances of the case should be such as were evidently not contemplated when the settlement was made.(j?) In settlements of personal property authority is sometimes given to the trustees to make investments in the purchase of landed estates. As land devolves in a diiferent manner from personal property, it is obvious that a simple change of property from personalty to land would in many cases materially disarrange the destination of the property. Thus if a person entitled under the settlement to a revisionary interest in the settled fund should have died intestate, his administrator would be entitled to such interest, so long as the property continued personal, but, on its being changed into real estate, it would shift to his heir-at-law. In order to obviate this inconvenience, it is so contrived that the lands to be purchased should, from the moment the purchase is made, be considered as personal property.^ To effect this object, the lands when purchased (n) Bateman v. Davis, 3 Madd. 98; Greeaham v. Gibbson, 10 Bing. 363 (E. C. L. R. vol. 25) ; Wiles v. Gresham, 2 Drewry 258. (o) Lee V. Young, 2 You. & Col. N. C. 532. (p) Boss V. Godsall, 1 You. & Col. N. C. 617; Cadogan v. Earl of Essex, 2 Drewry 227. 1 It is a well-established rule of equity, Peter, Exr., et al., v. Beverly et aL, 10 that where land is directed to be sold, and Peters 534; Hawley et al. v. James et thereby converted into money, it shall be al., 5 Paige Ch. 318; Smith et|al. v. Mc- considered as money; and that money, Crary et al., 3 Ired. Eq. 204; Golt et al., which is to be employed in the purchase Exrs. v. Cook et al., 7 Paige Ch. 521; of hand, shall be regarded as real pro- Kane v. Golt et al.. Id. ; s. c, 24 Wend, perty: Craig v. Leslie, 3 Wheat. 377; 641; The Commonwealth t). Martin's Exrs. 286 OF PERSONAL ESTATE GENERALLY. are directed to be held by the trustees upon trust to sell them, -with the r*o&7-[ consent of the equitable tenant for life, during their *lives, and after their decease at the discretion of the trustees.(5') '^his trust (q) See Appendix B. &c., 5 Munf. 121; Pratt v. Talli.aferro, 3 Leigh 419; Siter et aL v. McGIanchan et aL, 2 Gratt. 280 ; Reading v. Blackwell, 1 Baldw. 166; Fairly v. Kline, Penning. 551; Hurlt v. Fisher, 1 Har. & Gill. 88; Leadenham's Exr. t'. Nicholson et al., Id. 267; Morrow v. Brenizer, 2 Rawle. 185; Burr V. Sim et al., 1 Whart. 252; Allison Exr. V. Wilson's Exrs., 13 S. & R. 332; Price V. Watkins, 1 Dall. 8; Rice v. Bix- ler, 1 W. & S. 445; Willing v. Peters, 7 Penn. St. 287; Lorillard et al. v. Coster et al., 5 Paige Ch. 172; Drake v. Pell, 3 Edwd.Ch. 267; Rineharti'. Harrison's Exrs. 1 Baldw. 177; Marsh v. Wheeler, 2 Edwd. Ch. 160; Tazewell et al. t-. Smith, Admr., 1 [Rand. 313; Parkinson's Est., 32 Penn. St. 457; Holland v. Craft, 3 Gray 162; Loughborough v. Loughborough, 14 B. Mon. 549; High r. Worley, 33 Ala. 196; Forsyth v. Rathbone, 34 Barb. 388; Dun- das's Ap., 64 Penn. St. 325, and the con- version is so effectual, that where real estate was directed to be sold by will, it was considered as so converted at the death of the decedent, that a purchaser at an execution, of an heir's interest, ac- quired no title therein: Brolasky v. Gaily, 51 Id. 509 ; and the conversion will operate, through the gift to which the proceeds were to be applied is void under the statute: Evan's Ap., 63 Id. 1830. This rule will apply, even though the sale or purchase is not to be made until a future time, provided there is no contingency, upon the happening or not happening of which, the intended conversion will be defeated: Reading v. Blackwell, 1 Baldw. 166; Fairly i). Kline, Penning. 551; Price V. Watkins, 1 Dall. 8; Rinehart v. Harri- son's Exrs., 1 Baldw. 177; Brothers v. Cartwright, 2 Jones Eq. 113; Harcura v. Hudnall, 14 Gratt. 369; Hocker v. Gentry, 3 Mete. (Ky.) 363. But where the intend- ed transformation is to be effected upon a contingency, there will be no conversion until that contingency has happened: Evans v. Kingsberry, 2 Rand. 120; Storer V. Zimmerman, 21 Penn. St. 324; Clay et al. V. Hart, 7 Dana 11 ; Nagle's Appeal, 13 Penn. St. 260; Bleight v. Manufac. & Mechan. Bank, 10 Id. 132 ; Wright v. The Trustees of the M. E. Church, I Hoff. 213; Henry v. McCloskey, 9 Watts 142; Ane- walt's Ap., 42 Penn. St. 414 ; Ross v. Drake, 37 Id. 373; Millers & Bowman's Ap., 60 Id. 404, and a mere authority to sell at dis- cretion, and not a positive direction does not work a conveslon: Drayton's Ap., 61 Id. 172. Where land is directed to be sold for a particular purpose, and is sold accordingly, and there is a balance of money after the accomplishment of the purpose for which the sale was made, that money will be considered as land, unless the testator, donor, or other person by whose direction the conversion was made, has clearly shown that it was his wish that the character of personalty should be stamped upon the whole pro- perty; and this rule applies equally, where a part of the fund is sufficient to accom- plish a purpose to be attained through the purchase of land : Craig v. Leslie, 3 Wheat. 577; Hawley et al. v. James et al., 5 Paige Ch. 318; Smith et al. v. McCrary et al., 3 Ired. Eq. 204; The Commonwealth v. Martin's Exrs., 5 Munf. 121; by this last case it seems that the conversion will not be enforced, if it should operate inju- riously upon the beneficiary, so as to thwart or turn aside the bounty of the grantor, for, to quote the words of Judge Coulter, " Money directed to be employed in the purchase of land, and land directed to be sold and turned into money, are to be considered as that species of property into which they are directed to be con- verted. ... It is also an established prin- ciple, that, if a party having such fund OF SETTLEMENTS OF PEKSONAL PROPERTY, 287 for sale converts the land into money in the contemplation of equity; for it is a rule of equity, that whatever is agreed to done shall be considered as done already. In the words of Sir Thomas Sewell,(r) "Nothing is better established than this principle, that money directed to be em- ployed in the purchase of land, and land directed to be sold and turned into money, are to be considered as that species of property into which they are directed to be converted ; and this in whatever manner the direction is given, whether by will, by way of contract, marriage articles, settlement or otherwise, and whether the money is actually deposited or only covenanted to be paid, whether the land is actually conveyed or only agreed to be conveyed. The owner of the fund or the contracting parties may make land money, or money land." And if land is clearly directed to be sold, the circumstance that the consent of some person or persons is required to the sale will not prevent the immediate conversion of the land into money in the contemplation of equity, although such a circumstance may often cause a long postponement of the period of its actual conversion. (s) Notwithstanding a trust for the sale of land, if all the parties interested should be of full age,(^) and if females unmar- ried,(M) they may elect that the land shall not be sold : and after such election the land will be considered as real estate in equity as well as at law.(a;) And the election of the parties need not be expressed r*2881 in so many *words, but may be inferred from any acts by which their intention is clearly shown. ^(?/) (r) In Fletcher v. Ashburner, 1 Bro. C. C. 499, approved by Lord Alvanley in Wliel- dale V. Partridge, 5 Ves. 396, 397. See also Griffith v. Ricketts, 7 Hare 299. (s) See Lechmere i'. Earl of Carlisle, 3 P. Wms. 218, 219. (t) Van V. Barnett, 19 Ves. 102. (m) Oldham v. Hughes, 2 Atk. 452. [x) Davies v. Ashford, 15 Sim. 42. {y) Lingen v. Sowray, 1 P. Wms. 172 ; Cookson v. Reay, 5 Beav.22 ; 12 CI. & Fin. 121. dies, it will go to his real or personal estate, under an order of court : Davis's representatives, as money or land, ac- Ap., 60 Penn. St. 118. cording as he himself would have taken Conversion in short, is a question of it; but this rule of considering money as intention; and to effect it by will, the land, or land as money, will not apply if direction to convert must be positive and the special purpose for which the conver- explicit: Chew v. Nicklin, 45 Penn. St. 84; sion is to be made fail ; 7ieither does it Edward's Ap., 48 Id. 144. Where by apply, if the effect would operate an escheat." equitable conversion money is considered Real estate belonging to an infant, sold as land, it cannot in any case retain its under a direction of the Court for the inheritable quality as real estate, further purpose of distribution, is not thereby than the first descent: Dyer r. Cornell, 4 converted into personalty: Jones v. Id. 361, and the converse of this is also Edwards, 8 Jones L. 336; Oberley v. the law. Lerch, 3 Green 346; Nelson w. Hagerstown, i In all cases where there would be an 27Md.ol. See State r. Hirons, iHoust. 252. equitable conversion of land into money. And so of personalty invested in real or money into land, the person for whose 288 OF PERSONAL ESTATE GENERALLY. All properly drawn settlements of personal estate formerly contained a power for the trustees or trustee for the time heing, acting in the exe- cution of the trusts, to give receipts for any money payable to them or him under the trusts, which receipts, it was declared, should eflfectually discharge the persons paying the money from all responsibility as to its application. The necessity of this provision arose from a rule of equity, by which any person who paid money to another, whom he knew to be merely a trustee, was bound to see the money applied according to the trusts.(3) If, however, the trusts were of such a kind as to require time and discretion to carry them into effect, the receipt of the trustees would, from the nature of the case, have been an effectual discharge, without an express clause for this purpose.(a)^ But by a recent act of parliament it is provided, that the bonii fide payment to and receipt of any person (z) Spalding v. Shalmer, 1 Vern. 301 ; Lloyd v. Baldwin, 1 Ves. sen. 173. (a) Doran v. Wiltshire, 3 Swanst 699; Balfour v. Welland, 16 Ves. 151. use the property is given, may elect to re- ceive it as money or land according to his option : The Commonwealth v. Martin's Exrs., 5 Munf. 121 ; Burr v. Sim et al., 1 Wheat. 252 ; Smith v. Starr, 3 Id. 65 ; Rice V. Bixler, 1 W. & S. 445 ; Willing v. Peters, 7 Penn. St. 287 ; Tazewell et al. v. Smith, Admr., 1 Rand. 313 ; but in order to make this election, he must be entitled to the whole estate, or fund : Craig v. Leslie, 3 Wheat. 577; Rinehart v. Harrison's Exrs., 1 Baldw. 177; and where there is more tlian one distributee, they must all agree in determining the character of the pro- perty, for the election of one alone is not sufficient : Willing v. Peters, 7 Penn. St. 286; Shallenberger v. Ashworth, 25 Id. 152 ; Evan's Ap., 63 Id. 183 ; Rhinehart v. Harrison's Exrs., 1 Baldw. 167, in which last case, it was also decided, that election can only be made by the person or persons first entitled. 1 Where trust property has been sold, and the purchase-money is to be rein- vested upon trusts which require time and discretion, or the acts of sale and rein- vestment are contemplated to be at a dis- tance from each other, the purchaser is not bound to look to the application of the purchase money : Wormley et al. V. Wormley et al., 8 Wheat. 421; Lining V. Peters et al., 2 Dessaus. 375; Hauser et al. V. Sh«re et al., 5 Ired. Eq. 357 ; nor is he so bound, where, in accordance with a power for that purpose, lands are sold for the payment of debts generally : Hannum et al. V. Spear, 2 Dall. 291 ; s c. 1 Yeates 553; Hauser et al. v. Shore et al., 5 Ired. Eq. 357 ; Davis v. Christian, 15 Graft. 11 ; Goodrich v. Proctor, 1 Gray 567 ; Stall v. Cincinnati, 16 Ohio St. 169; though it is otherwise, of debts scheduled or specified : Grant v. Hook, 13 S. & R. 262 ; and so where trust property has been sold for the purpose of distribution among the owners, the purchaser has been held not liable for the misapplication of the proceeds : Hunt et al. V. The State Bank et al., 2 Dev. Eq. 60. The proper mode of discovering whether the purchaser of property held in trust, is to look to the application of the purchase- money, is, to ascertain whether the trust is for general, or specific purposes ; if the former, the purchaser is not bound ; thus^ in Grant v. Hook, 13 S. & R. 262, Judge Duncan says, " Where the trust is for the payment of debts generally, the purchaser is not bound to see to the application of the purchase-money, although he has notice of the debts. For a purchaser can- not be expected to see to the observance of a trust so unlimited and undefined. or SETTLEMENTS OF PERSONAL PROPERTY. 288 to "whom ^nj purchase or mortgage money %)\q\\ be payable upon any express or implied trust shall effectually discharge the person paying the same from seeing to the application or being answerable for the misap- plication thereof, unless the contrary shall be expressly declared by the instrument creating the trust or security.(6) It is the better opinion that this enactment is not retrospective ; for it can scarcely be supposed that the legislature contemplated the existence of a prescience of this act in the authors of old settlements, inducing them to insert therein an ex- press declaration that the act should not apply. And with respect to instruments executed and wills or codicils confirmed or *revived r^.oQq-i by codicil executed after the 28th August, 1860, it is now pro- • vided that the receipts in writing of any trustees or trustee for any money payable to them or him, by reason or in the exercise of any trusts or powers reposed or vested in them or him, shall be sufficient discharges for the money therein expressed to be received, and shall effectually exonerate the person paying such money from seeing to the application thereof, or from being answerable for any loss or misapplication thereof, (c) Every settlement, the trusts of which were likely to be of long dura- tion, formerly contained a power of appointing new trustees in the event of any trustee dying, going to reside beyond the seas, desiring to be dis- charged, refusing, or becoming incapable to act in the execution of the trusts. (fZ)^ And as the mere appointment of a trustee was not sufficient {b) Stat. 22 & 23 Vict. c. 35, s. 23. (c) Stat. 23 & 24 Vict. c. 145, s. 29, (^d) See Ai^pendix B. But, if the trust be of such a nature, that from a trustee with a power to sell, must the purchaser can reasonably be expected see to the application of the purchase- to see to the application of the purchase- money: Rutledge v. Smith, 1 Busbee Eq. money, as if it be for the payment of lega- 283. cies, which are scheduled or specified, he See also, NichoUs w. Peak, 1 Beasley 69 ; is bound to see that the money is applied Cftrdwell v. Cheatham, 2 Head 14 ; Penn accordingly." See also, Dalzell v. Craw- Life Ins. Co. v. Austin, 42 Penn. St. 267; ford, 2 Pa. L. Jour. 23 ; s. c, 1 Pars. Eq. and Hill on Trustees, 4th Am. ed., p. 342, Cas. 37 ; Cadbury v. Duval, 10 Penn. St. note 2. 267 ; St. Mary's Ch. v. Stockton, 4 Halst. ^ For the American Statute Law on the Oh. 520. " In all cases . . . where the subject of the appointment of trustees, by objects are not so defined as to be brought the courts, in the place of others dying, at once to the view of the purchaser, it is resigning, &c., see N. H. Compiled Stats, settled that he is not affected by them, (1867), p. 380, sec. 5; 3 Rev. Stats, of N. and has only to pay the purchase-money :" Y. (5th ed.), p. 22, ^ 90; Matthew's Dig. of Garrett v. Macon et al., 2 Brockenb, 234. the Laws of Va. (1857), vol. 1, pp. 263-4; In North Carolina, however, it seems to Rev. Stats, of Vt. (1839), 300; Vol. ii. be an open question, whether a purchaser Compiled Laws of Michigan (1857), p. 828, 289 OP PERSONAL ESTATE GENERALLY. to vest the trust property in him, it was usual and proper to direct that, on every such appointment, the trust property should be so conveyed, assigned, transferred or paid as eft'ectually to vest the same in the new trustee jointly with the surviving or continuing trustees, or solely, as the case might require. Every new trustee was also invested with the same powers as the original trustees. But the act to which we have already referred,(t') now provides that whenever any trustee, either original or substituted, and whether appointed by the Court of Chancery or other- wise, shall die, or desire to be discharged from or refuse or become unfit or incapable to act in the trusts or powers in him reposed, before the same shall have been fully discharged and performed, it shall be lawful r*9Qm *^^^' ^^'^ person or persons nominated for that purpose by the deed, will, or other instrument creating the trust (if any), or if there be no such person, or no such person able and willing to act, then for the surviving or continuing trustees or trustee for the time being, or the acting executors or executor, or administrators or administrator of the last surviving and continuing trustee, or for the last retiring trustee, by writing, to appoint any other person or persons to be a trustee or trustees in the place of the trustee or trustees so dying or desiring to be discharged, or refusing, or becoming unfit and incapable to act as afore- said ; and so often as any new trustee or trustees shall be so appointed as aforesaid, all the trust property (if any) which for the time being shall be vested in the surviving or continuing trustees or trustee, or in the heirs, executors or administrators of any trustee, shall, with all con- venient speed, be conveyed, assigned and transferred so that the same may be legally and efiectually vested in such new trustee or trustees, either solely or jointly with the surviving or continuing trustees or trustee as the case may require, and every new trustee or trustees to be ap- pointed as aforesaid, as well before as after such conveyance or assign- ment as aforesaid, and also every trustee appointed by the Court of (e) Stat. 23 & 24 Vict. c. 145, s. 27, ante, pp. 279, 280, 285. This act applies also to trustees appointed by the Court of Chancery of the County Palantine of Lancaster. Stat. 28 Vict. c. 40. sec. 27 ; Maryland Code ( 1 860), p. 579, sec. (1786 to 1814), vol. v., pp. 277, 278 ; Caru- 118 ; Suppl., 1870, p. 33, sub. sec. 2 ; Code ther's and Nicholson's State Laws of Tenn. of Ala. (1852), p. 535, § 3000; Howards. 693; Maxwell v. Finnic, 6 Cold. (Tenn.) Gilbert, 39 Ala. 726; Gen. Stats of Mass. 434; Vol. ii. Rev. Stats, of Ohio (1801), p (1860), p. 501, sec. 7; Shaw v. Paine, 2 1630, sec. 67; Stats, of Minnesota (1849- Allen 293 ; Rev. Stats, of Maine (1857), p. 1858), p. 384, sec. 27 ; Purd. Dig. (1861), 435, sec. 5 ; Nix. Dig. Laws of N.J. (18G8), p. 970, g 23, and p. 972, ^ ^ 38-41 ; p. 975, p. 642, sec. 13 ; Rev. Stats, of Wisconsin ^ 57 ; and Suppl. 1679, sec. 1. (1858), p. 532, sec. 27; Stats, of S. C. OF SETTLEMENTS OF PERSONAL PROPERTY. 290 Chancery, either before or after the passing of the act, shall have the same powers, authorities and discretions, and shall in all respects act, as if he had been originally nominated a trustee by the deed, will, or other instrument creating the trust. This act, as we have before observed, extends only to instruments executed, or wills confirmed or revived by codicil executed after the 28th of August, 1860. A mere power to ap- point a new trustee does not render such appointment imperative ; and in case of the death of any trustee, the survivors or survivor may still carry on the ordinary business of the trust.(/) When a trustee *has once accepted the office, he has no right to retire, unless r*oQi"| the person having the power to appoint another trustee in the event of his retiring should consent to do so ;{g) or unless, from unfore- seen circumstances, the duties of the trust should have become more onerous than was contemplated by the trustee when he accepted the office. (A) When several deeds are required for the appointment of a new trustee, it is now sufficient if one of the deeds be stamped with a duty of 11. 15s. and the others with the same duty as would be payable on a duplicate thereof, (i) The Trustee Act, 1850,(^) the provisions of which have been extended by a more recent act,(Z) empowers the Court of Chancery to appoint a new trustee in all cases where it is inexpedient, difficult or impracticable so to do without the assistance of that court, and either in substitution for, or in addition to, any existing trustee,(wi) and whether there be any existing trustee or not.(w) Provision is also made for the appointment of a new trustee in lieu of any trustee who may have been convicted of felony,(o) and for the infancy,(j3) lunacy or idiotcy of any trustee or executor,(g) and for his being out of the jurisdiction of the court, or not being found, and for its being uncertain whether he is living or r*9Qo-| dead,(r) and for his neglecting or refusing *to transfer any (/) Warburton v. Sandys, 14 Sim. €22. (g) Adams v. Paynter, 1 CoU. 532. (A) Coventry v. Coventry, 1 Keen 758. (i) Stat. 24 & 25 Vict. c. 91, s. 30. See Principles of the Law of Real Property 136, 6th ed.; 139, 7th ed. ; 145, 8th ed. {k) Stat. 13 & 14 Vict. c. 60. See Principles of the Law of Real Property 136, 3d. and 4th eds. ; 148, 5th ed. ; 155, 6th ed. ; 158, Ith ed. ; 166, 8th ed. {I) Stat. 15 & 16 Vict. c. 55. (m) Stat. 13 & 14 Vict. c. 60, ss. 32, 35. (n) Stat. 15 & 16 Vict. c. 55, s. 9. (o) Sect. 8. Ip) Sect. 3. {q) Stat. 13 & 14 Vict. c. 60, ss. 5, 6 ; 15 & 16 Vict. c. 55, ss. 10, 11. (r) Stat. 13 & 14 Vict. c. 60, ss. 22, 25. 23 292 ' OF PERSONAL ESTATE GENERALLY. stock, or to receive the dividends or income thereof, or to sue for or re- cover any chose in action. («)* The office of trustee of a settlement is one involving great responsi- bility, and frequently much trouble, -without any renumeration ; for a trustee is not allowed to make a profit of his trust. And if he be a soli- citor, he cannot receive payment for his professional trouble incurred in the business of the trust,(i) unless he expressly stipulate before accepting the office, that he shall be permitted to do so,(w) or unless his charges be voluntarily paid by the cestui que trust with full knowledge that they might have been resisted.(a;) But a trustee may charge against the trust property all costs and expenses properly incurred in the conduct of the trust. And, it has been held, that in the event of a suit being brought against the trustees, one of the trustees, being a solicitor, may be employed by his co-trustees, and may make the usual charges against them, provided the amount of the costs be not thereby increased. (j/)^ And every trustee is allowed in a suit his full costs, as between solicitor and client.(z) But his right to costs may be forfeited by his negligence and misconduct ;(«) or he may even be made to pay the costs of the other r*0Q<^1 *parties.(5) As the trustee has the legal title to the property, ^ -^ he is often enabled, if fraudulently inclined, to sell it or spend it for his own benefit. It is therefore highly proper that his conduct should be narrowly scrutinized, and that he should be invariably pun- ished for any breach of faith. But the Court of Chancery goes further than this, and punishes, with almost equal severity, his neglect of duties, which in many cases he scarcely knows that he has undertaken. Thus, if a trustee, by his negligence or misplaced confidence in his co-trustee, (s) Stat. 13 & 14 Vict. c. 60, ss. 23, 24, 25 ; stat. 15 & 16 Vict. c. 55. ss. 4, 5. (i) Moore f. Frowd, 3 Myl. & Cr. 45 ; Fraser v. Palmer, 4 Yon. & Col. 515 ; Collins v. Carey, 2 Bear. 128 ; Bainbrigge v. Blair, 8 Beav. 588 ; Todd v. Wilson, 9 Beav. 486. See Ex parte Newton, 3 De G. & Sm. 584. (w) Re Sherwood, 3 Beav. 388. (x) Stanes v. Parker, 9 Bear. 385. See Gomley t;. Wood, 3 Jones & Lat. 678. (y) Cradock v. Piper, 1 Macn. & G. 664 ; Clack v. Carlon, V.-C. W., 7 Jur. N. S. 441. See, however, Lincoln v. Windsor, 9 Hare 158 ; Lyon v. Baker, 5 De G. & Sm. 622 ; Broughton, L. C, 1 Jur. N. S. 965 ; 5 De G., M. & G. 160. (z) 2 Fonb. Eq. 176. (a) Campbell't). Campbell, 2 Myl. & Cr. 25 ; Howard v. Rhodes, 1 Keen 581. (i) Wilson V. Wilson, 2 Keen 249 ; Willis v. Hiscok, 4 Myl. & Cr. 197 ; Firmin v. Pulham, 2 De G. & Sm. 99. 1 See ante, p. 289, note. able note, the whole subject of the com- » See the case of Robinson v. Pett, 2 pensation of trustees is considered. Leading Cases in Equity 206, where in an OF SETTLEMENTS OF PERSONAL PROPERTY. 293 gives him an opportunity to commit a breach of trust, of "which opportu- nity the co-trustee avails himself, the innocent trustee will be made to replace the whole of the fund abstracted by the other. (c) So if the trus- tee should depart from the letter of his trust, as by investing the trust fund on an unauthorized security, although at the importunity of some of the parties interested, and with a bona fide desire to benefit them all, he will be answerable for any loss which such departure may have occa- sioned.((^) And if, being ignorant of law, he should give himself up entirely to his professional adviser, he may still sufier from the mistake of his solicitor or conveyancer ;{e) and in such a case he will scarcely perhaps see the justice of the remark that he might (had he known how) have chosen a wiser ^soljcitor, or a more learned counsel. (/)^ r*9Q4T In all ordinary settlements, clauses used to be inserted for the (c) Lord Shipbrook y. Lord Hinchinbrook, 11 Ves. 252; Brice v. Stokes, 11 Ves. 319 : Hanbury v. Kirkland, 3 Sim. 265 ; Booth v. Booth, 1 Beav. 125 ; Broadhurst v. Balguy, 1 You. & CoL N. C. 16 ; Styles v. Guy, 1 Macn. & G. 422 ; Dix v. Burford, 19 Beav. 409. (d) Driver v. Scott, 4 Russ. 195 ; Pride v. Fooks, 2 Bear. 430 ; Forrest v. Elwes, 4 Ves. 497 ; Watts v. Girdlestone, 6 Beav. 188. {e) Willis V. Hiscox, 4 Myl. & Cr. 197 ; Angier v. Stannard, 3 MyL & K. 566 ; Hamp- shire V. Bradley, 2 Coll. 34 ; Boulton v. Beard, 3 De G., M. & G. 608 ; see, however, Poole V. Pass, 1 Beav. 600 ; Holford v. Phipps, 3 Beav. 434, 4 Beav. 475. (/) 3 Myl. & K. 572. 1 Where trustees act bond fide, and with due diligence, they have always received the favor and protection of courts of equity, and their acts are regarded with the most indulgent consideration ; but, where they have betrayed their trust, grossly violated their duty, or been guilty of unreasonable negligence, their acts are inspected with the severest scrutiny, and they are dealt with according to the rules of strict justice : Diffenderffer v. Winder, 3 Gill & Johns. 312 ; Gilbert v. Sutliff, 3 Ohio 129 ; EUig v. Naglee, 9 Cal. 683 ; Smith V. Vertrees, 2 Bush (Ky.) 63. A trustee may, in the discharge of his duty, consult the opinion of counsel, and if it has been reasonably and properly done, he will be entitled to an allowance for the expense incurred, out of the trust estate : Jones v. Stockett, 2 Bland. Ch. 409 ; Green v. Mumford, 4 R. L 313 ; but the advice so given, will not protect the trustee from the consequences of a failure to discharge his duty properly, for if he has doubts, or there was room for them, he should apply to a court of equity, which will always give him directions upon which he may rely with entire con- fidence : Freeman et al. v. Cook et al., 6 Ired. Eq. 373; Weber v. Samuel, 7 Barr 510 ; Hayden's Exrs. v, Marmaduke, 19 Mo. 403 ; Ihmsen's Ap., 43 Penn. St. 431. But see Neff's Ap., 57 Id. 91. In the case of Rogers et al., Exrs., v. Benson et al., 5 Johns. Ch. 540, where a trustee, in his character of counsel, gave an opinion in writing concerning the title to certain lands not included in the trust, but the opinion was so loosely drawn as to apply to the trust estate, and the per- son to whom the opinion was given made sale of the trust property, it was held that the trustee should not be liable for the act of the person to whom he had given the opinion, there having been no fraud on his part. But a trustee, who, after accepting the trust, voluntarily permits his co-trustee 294 OF PERSONAL ESTATE GENERALLY. indemnity and reimbursement of trustees, to the effect that they should not be answerable the one for the other of them, or for signing receipts for the sake of conformity, or for involuntary loss ; and that they might reimburse themselves out of the trust funds all costs and expenses in- curred in relation to the trust. But these clauses, though often very highly valued by trustees, really afforded them little, if any, further protection than they would have been entitled to, if left to the ordinary rules of equity.(^) It has, however, been recently enacted that every deed, will or other instrument creating a trust, either expressly or by implication, shall be deemed to contain these clauses.(/i) It would have been more direct, and therefore more philosophical, to alter the rules of equity with respect to trustees, if alteration were required, rather than to enact that a deed shall be deemed to contain clauses which in fact are not there. In order to provide means for securing trust funds, and for relieving trustees from the responsibility of administering them, an act of parlia- ment has been passed,(2) whereby all trustees, executors, administrators or other persons having in their hands(^) any moneys belonging to any trust whatsoever, or the major part of them,(?) may pay the same, with the privity of the accountant-general of the Court of Chancery, into the Bank of England, to the account of such accountant-general in the mat- r*9Q''"l *^^ ^^ ^^® trust, in trust to attend the *orders of the court. Bank annuities, East India and South Sea stock, and govern- ment and parliamentary securities, held upon trust, may also be trans- ferred or deposited in like manner. The trust is then administered by the court upon petition in a summary way, without a bill, unless the court direct any suit to be instituted. (m)^ Where the fund does not ex- (^r) Fcnwick v. Greewell, 10 Beav. 412 ; Brumridge v. Brumridge, 27 Beav. 5. {h) Stat. 22 & 23 Vict. c. 35, s. 31. (») Stat. 10 & 11 Vict. c. 96, s. 1. {k) Buckley's Trust, 17 Beav. 110. {I) See stat. 12 & 13 Vict. c. 74. (m) Stat. 10 & 11 Vict. c. 96, s. 2. to take the entire management of it, and where the investigation may involve in- the possession and control of the trust quiries, calculated by protracting the property, is, equally, with him, liable to cause, to delay parties not interested in account : Royall v. McKenzie, 25 Ala. such new inquiries, the proceeding must 363; Wayman ?'. Jones, 4 Md. Ch. Decs, be by bill. A petition is the proper 500 ; McMurray v. Montgomery, 2 Swan course, when no other persons are to be 374 ; Schenck v. Schenck, 1 Green 174. made parties to litigate the questions pre- 1 Proceedings in courts of equity are sented by it, than such as are, or ought to originated by bill or by petition. But have been, parties to the original bill : where new parties are to be brought in, Hayes v. Miles et al., 9 Gill & Johns. 193; not necessary to the original bill, or Dyckman et al. v. Kernochan et al., 2 OF SETTLEMENTS OF PERSONAL PROPERTY. 295 ceed in amount or value the sum of five hundred pounds, jurisdiction is now given to the county courts ; the fund, if money, being paid into a post-office savings bank established in the town in which the county court is held, in the name of the registrar of the court, in trust to attend the orders of the court. And stocks or securities may be transferred into or deposited in the names of the treasurer and registrars of the court upon the like trust. (ii) Where there is not a treasurer, a person shall be nominated, by rule of practice, to whom the transfer or deposit, in conjunction with the registrar, may be made.(o) A salutary act has recently been passed for the punishment of fraudulent trustees, bankers, directors, and public officers. (^:>) More recent acts em- power any trustee, executor or administrator, by petition or statement to be signed by counsel, to apply to any judge of the Court of Chancery, for his opinion, advice or direction on any question respecting the man- agement or administration of the trust property. (^) In some marriage settlements, in addition to the settlement actually (n) Stat. 30 & 31 Vict. c. 142, ss. 24, 25. (o) Sect. 24. Ip) Stat. 20 & 21 Vict. c. 54. (g) Stat. 22 & 23 Vict. c. 35, s. 30 ; 23 & 24 Vict. c. 38, s. 9. Paige Ch. 26 ; Duval v. The Farmers' Bank of Maryland, 4 Gill & Johns. 292 ; Maccubbin v. Cromwell, 2 Har. & G. 443 ; Griggs V. Detroit, &c., Co., 10 Mich. 117. Thus, it is the proper course to pursue, for joining a party who ought to have been joined in the original proceedings : Williams v. Hall, &c., 1 B. Mon. 295 ; but where a person is a necessary party, in consequence of an act performed by him- self after the commencement of the suit, the proper proceeding to bring him into court is an original bill in the nature of a supplemental bill : Winter v. Ludlow (Ct. Court U. S. for the East. Dist. of Pa.), 3 Phila. 464. A lunatic who wishes to traverse his inquisition of lunacy, may apply by petition : In the matter of Chris- tie, 5 Paige Ch. 242 ; and it is the proper course also for a lunatic to take who wishes to compel his guardian to account: Tally V. Tally, 2 Dev. & Bat. Eq. 385 ; and so of an application for a rehearing, whether it be by supplemental bill, or bill of review : Hunt v. Smith et al., 3 Rich. Eq. 466; Huison, Admr., v. Pickett, 2 Hill Ch. 353; Wiser v. Blackly et al., 2 Johns. Ch. 488 ; Livingston v. Hubbs et al., 3 Id. 124; Haskell et al. v. Raval, 1 McCord's Ch. 28 Colomb et al. v. The Br. Bank at Mobile, 18 Ala. 454 ; Em- erson V. Davies et al., 1 Wood. & M. 21; Jenkins v. Eldredge, 3 Story 299; Baker v. Whiting et al., 1 Id. 218; Green's Ap., 59 Penn. St. 235 ; Elliott v. Balcom, 11 Gray 286. Application for maintenance may also be made by petition : In the matter of Bostwick, 4 Johns. Ch. 102. In South Carolina, by statute, any equitable claim, under the value of lOOL, may be brought to the notice of the court by petition : Skilling v. Jackson, 1 Hill Ch. 185. In Pennsylvania, the proceedings in the matter of the accounts of trustees, and others acting in a fiduciary capacity, are usually commenced by filing the accounts, or by petition, — a bill to account, is as- sumed as having been filed. 295 OF PERSONAL ESTATE GENERALLY. made, a covenant is inserted for the settlement of all such property as the intended wife shall become entitled to during the coverture or marriage, n^^-jqp-. It *sometimes happens that at the time when such covenant is entered into, the wife is, without being aware of it, entitled to other property besides that actually settled. In such a case, the gen- eral rule is that the property to whicli she is then entitled, is subject to the covenant, and ought to be settled, as well as that which she may sub- sequently acquire.(?') But as the question is entirely one of intention, if the property to which the wife is entitled appear to have been purposely omitted, it will not be bound by such a covenant. («) If the covenant to settle the wife's future property be entered into by the intended husband alone, the wife will not be bound to settle any future property to which she may become entitled for her separate use.(^) Occasionally covenants are unadvisedly entered into by the intended husband to settle on his children, or to leave to them by his will, all the property that he may acquire during the coverture, or all his property generally. (u) So a father may covenant, on the marriage of his daughter, to leave her as great a share in his property as to any of his other children. (v) These covenants will be enforced in equity ; but from their vague and uncer- r*9q7-i t^i^ character, they are *likely to lead to much litigation. A covenant to settle property of a given value, when no time is limited for its performance, creates no lien on any of the property of the covenantor. (?6>) And it appears to be now settled, contrary to what was before supposed to be the law, that no lien is created whether a time for the performance of the covenant be specified or not.(a;) (r) Grafiftey v. Humpage, 1 Beav. 46 ; James v. Durant, 21 Beav. 177 ; Blythe v. Gran- ville, 13 Sim. 190; Ex parte Blake, 16 Beav. 463; Re Mackenzie's Settlement, Law Rep. 2 Ch. Ap. 345. (s) Hoare v. Hornby, 2 You. & Col. N. C. 121 ; Otter v. Melvill, 2 De G. & Sm. 257 ; Wilton V. Colvin, 3 Drew. 617 ; Archer y. Kelly, 1 Drew. & S. 300. (<) Douglas V. Congreve, 1 Keen 410, 423 ; Travers v. Travers, 2 Beav. 179 ; Drury v. Scott, 4 You. & CoL 264; Ramsden v. Smith, 2 Drew. 298 ; Hammond v. Hammond, 19 Beav. 29. See also Butcher v. Butcher, 14 Beav. 222; Cramer v. Moore, 3 Sm. & G. 141 ; Grey v. Stuart, 2 GifF. 398 ; Brooks v. Keith, 1 Drew. & S. 462 ; Coventry v. Cov- entry, 32 Beav, 612 ; Re Mainwaring's Settlement, Law Rep. 2 Eq. 487. (w) Lewis V. Madocks, 17 Ves. 48 ; Needham v. Smith, 4 Russ. 318; Needham v. Kirkman, 4 B. & Aid. 531 (E. C. C. L. R. vol. 6) ; Hardey v. Green, 12 Beav. 182. {v) Willis V. Black, 4 Russ. 170 ; Clegg v. Clegg, 2 Russ. & My. 570 ; Eardley v. Owen, 10 Beav. 572 ; Jones v. How, 7 Hare 267 ; 9 C. B. 1 (E. C. L. R. vol. 67). See Phelp V. Amcotts, V.-C. J., 17 W. R. 703. (w) Freemoult v. Dedire, 1 P. Wms. 429 ; Berrington v. Evans, 3 You. & Col. 384. (z) Mornington v. Kcanc, 2 De G. & J. 292, explaining Roundell v. Brearey, 2 Vern. 482, and questioning Wellesley v. Wellesley, 4 Myl. & Cr. 561, 581. OF SETTLEMENTS OF PERSONAL PROPERTY. 297 Marriage as we have seen,{t/) is a valuable consideration.^ Every settlement, therefore, made by parties of full age, previously to and -in (y) Ante, p. 74. 1 Not only is marriage regarded as a valu- able consideration : Magniac v. Thompson, 1 Baldw. 344, affirmed 7 Peters 348 ; Car- roll V. Lee, Admr. 3 Gill & Johns. 504; Bray v. Dugeon, 6 Munf. 132 ; Smith v. Smith's Admr., Id. 581 ; Hutcher v. Robert- son, Exr., 4 Strobh. Eq. 179 ; De Barante v. Gott et al., 6 Barb. 492 ; Dunn v. Thorp, Admr. &c., 4 Ired. Eq. 7 ; Freeman et al. v. Hill, Exr. et al., 1 Dev. & Bat. 389 ; Tren- ton Banking Co. v. Woodruff et al , 1 Green Ch. 117; Armfield v. Arrafield, 1 Freeman Ch. 311 ; Cummings v. Boston, 25 Geo. 277; Cloud v. Dupree, 28 Id. 170; Albert v. Winn, 5 Md. 66 ; Frank's Ap., 59 Penn. St. 190; but it is looked upon as the highest of considerations : Tunno et al. V. Trezevant et al., 2 Desauss. 267 ; and equity will uphold an agreement made in consideration of marriage, in cases where by law, no remedy could be sought; as, where one in contemplation of marriage, gave a bond to his intended wife, that he would allow her to hold all her personal property to her sole and separate use ; though, by the marriage, such bond was, as a legal instrument, extinguished, yet the agreement was upheld, in accordance with the intention of the parties : Baldwin V. Carter, 17 Conn. 201 ; Smith v. Chapell, 31 Id. 589 ; but a verbal agreement, though founded upon marriage, will not be valid : Andrews & Bro. v. Jones et al., 10 Ala. 400 ; Montgomery v. Henderson, 3 Jones Eq. 113; unless falling within the princi- ple of the statute of frauds : Neale v. Neales, 9 Wall. U. S. 1 ; nor will an agree- ment in consideration of marriage be sup- ported, unless the circumstances of the parties are such as to warrant the making of a marriage settlement ; thus in the case of Keith V. Woombwell, 8 Pick. 213, which was an agreement made between two very poor persons in anticipation of marriage, C. J. Parker says, " That two very poor people, depending upon their labor for their living, should, upon a contemplated marriage enter into an agreement, the effect of which would be that the labor of one should go to the support of both, and that the labor of the other should be to the profit of that one only, would be a very unequal bargain, and hardly sustain- able in a court of equity. It would be without consideration, and as respects future creditors even, would be fraudulent, for the visible means of the husband in such case, upon which he would gain his daily credit, would be continually dimin- ished, by a secret, invisible consumption, which would keep him down, and render him wholly unable to pay his debts." And see, Quidort v. Pergeaux, 3 Green 472. Where, however, the contract of mar- riage is valid, it is interpreted like an ordinary contract of sale; if the contract is executed, the wife is regarded as a pur- chaser, and if executory, as a creditor : Magniac v. Thompson, 1 Bald. 344, affirmed, 7 Peters 348 ; Armfield v. Armfield, 1 Freem. Ch. 311 ; but courts of law will not estimate the value of the marriage, in comparison with the settlement, though equity may do it : Magniac v. Thompson, 1 Baldw. 344, affirmed, 7 Peters 348 ; so, a contract based upon the consideration of marriage, will be valid, even though the husband was indebted at the time : Magniac V. Thompson, 1 Baldw. 344 ; Fones v. Rice, et al., 9 Gratt. 568 ; Rivers v. Thayer, 7 Rich. Eq. 136 ; Tisdale v. Jones, 38 Barb. 523 ; Jones's Ap., 62 Penn. St. 324 ; just as one may sell his property for a good consideration, even though indebted : Wheaton v. Sexton's Lessee, 4 Wheat. 503 ; but, of course, existing liens will not be defeated by such sale or settlement : Arm- field V. Armfield, 1 Freem. Ch. 311; Byrod's Ap., 31 Penn. St. 241 ; and to make the contract void for fraud against creditors, both parties must concur in the fraud : Magniac v. Thompson, 1 Baldw. 344; Andrews & Bros. v. Jones et al., 10 297 OF PERSONAL ESTATE GENERALLY. consideration of marriage, or made subsequently to marriage in pursu- ance of written articles,(2) stands on the footing of a purchase, and has (z) Stat. 29 Car. II. c. 3, s. 4. See ante, p. 78. Ala. 400 ; Marshall v. Morris, IG Geo. 368 ; and generally, almost any agreement which is reasonable, and made bona fide before marriage, to secure property to the wife, will be enforced in equity : Stilley v. Folgcr et al., 14 Ohio G49 ; Brooks et al. V. Dent, Admr., et al., 1 Md. Ch. Decs. 523 ; Wood V. Savage, "Walk. Ch. 471 ; Miller v. Goodwin, 8 Gray 542 ; Robson v. Jones, 27 Geo. 266 ; Snyder v. Webb, 3 Cal. 83 ; Page V. Kendrick, 10 Mich. 300; but a post-nuptial settlement, made in pursu- ance of a parol agreement made before marriage, is void as to antecedent creditors : Reade v. Livingston, 3 Johns. Ch. 481 ; Izard V. Izard, 1 Bailey Ch. 288 ; Davidson r. Graves, Riley Ch. 219; Borst r. Covey et al., 16 Barb. 136; it is otherwise, how- ever, in regard to a post-nuptial settle- ment, made in accordance with a written ante-nuptial agreement; Reade, Admr., w. Livingston et al., 3 Johns. Ch. 481 ; Wood- ward V. Woodward, 5 Sneed 49 ; Kinnard V. Daniel, 13 B. Mon. 496. Where post- nuptial settlements are made without con- sideration, they will be governed by the same rules as voluntary settlements ; thus they are regarded as valid, if made by one not indebted at the time : Sexton v. Wheaton, 8 Wheat. 229; Picquet u. Swan, 4 Mass. 443; Simpson v. Graves, Riley Ch. 232 ; United States Bank v. Ennis, Wright 605 ; Beach v. White, Walker Ch. 495 ; Barker v. Coneman, 13 Cal. 9 ; Reynolds v. Lansford, 16 Texas 286 ; Townsend v. May- nard, 45 Penn. St. 198 ; Larkin v. McMullen, 49 Id. 29 ; Dygert v. Remerschneider, 39 Barb. 417 ; and even though he be in- debted, provided he has sufficient pro- perty in addition to that settled, to pay his debts, or those debts are amply secured by the covenants of the settlement : Reade, Admr., v. Livingston et al., 3 Johns. Ch. 481; Picquet v. Swan, 4 Mass. 443; Thompson v. Dougherty, 12 S. & R. 448 ; Ridgway v. Underwood, 4 Wash. C. C. 137 ; Hopkirk v. Randolph, Admr., &c., 2 Brockenb. 130 ; Pinney ct al. v. Fellows, 15 Vt. 536 ; Rundle v. Murgatroyd, 4 Dall. 304 ; Moritz v. Hoffman, 35 111. 553 ; Levitt V. Levitt, 47 N. H. 329 ; or he conveys nothing more than what the equity of the wife would entitle her to: Poindexter i-. Jef- fries, 15 Gratt 363 ; Coates v. Gerlach, 44 Penn. St. 43 ; Butler t>. Rickets, 1 1 Iowa 107 ; Shaffner v. Renter, 37 Barb. 44 ; or where the settlement merely returns to the wife, property equivalent to that of hers, which had been appropriated by the husband : Wiley V. Gray, 36 Miss. 510; Harris v. Brown, 30 Ala. 401 ; Stockett v. HoUiday, 9 Md. 480 ; William & Mary College v. Powell, 12 Gratt. 372; Tripner v. Abra- hams, 47 Penn. St. 227 ; Latimer v. Glenn, 2 Bush 535; such a deed, however, Avill be only void as to antecedent, and not as to subsequent creditors : Hinds, Lessee, v. Longworthy, 11 Wheat. 199 ; Reade, Admr. V. Livingston et al., 3 Johns. Ch. 481 ; Bennett v. The Beford Bank, 11 Mass. 421 ; Ridgway i'. Underwood, 4 Wash. C. C. 137 ; Davis V. Herrick, 37 Maine 397 ; Niller v. Johnson, 27 Md. 6 ; but it has been held that a subsequent creditor, would partici- pate in the benefit of a decree instituted by a prior creditor : Ammon's Ap., 63 Penn. St. 284 ; where such a conveyance was made at the commencement of a new and hazardous business, it was held void as against debts contracted in that business: Mullen V. Wilson et al., 44 Penn. St. 413. And see Snyder v. Christ, 39 Id. 499; Case V. Phelps, 39 N. Y. 164 ; Clayton v. Brown, 30 Geo. 490. In the case of Salmon v. Bennett, 1 Conn. 525, C. J. Swift remarks, " Where there is no actual fraudulent intent, and a voluntary conveyance is made to a child in consideration of love and affection, if the grantor is in prosperous circumstances, unembarrassed, and not considerably in- debted, and the gift is a reasonable pro- vision for the child, according to his state and condition in life, comprehending but OF SETTLEMENTS OF PERSONAL PROPERTY. 297 equal validity. But a voluntary settlement is liable to be defeated by the creditors of the settlor, if be was so much indebted at the time as a small portion of his estate, leaving ample funds unencumbered for the pay- ment of the grantor's debt ; then such a conveyance will be valid against creditors existing at the time." A voluntary settlement is also void, as to a subsequent purchaser, with notice : Sterry v. Arden et al., 1 Johns. Ch. 2G1, af- firmed, 12 Johns. 536 ; Cathcart et al. v. Robinson, 5 Peters 264 ; in which last case, C. J. Marshall uses the following language : "There is some contrariety and some ambiguity in the old cases on this subject ; but this court conceives that the modern decisions, establish the absolute conclusiveness of a subsequent sale, to fix fraud upon a family settlement, fraud not to be repelled by any circumstances whatever." And it does not matter whether the sale be from the grantor or grantee under the voluntary deed, save that if from the latter, it must be previous to a sale by the grantor, or before it is taken in execution by his creditors: An- derson et al. V. Roberts et al., 18 Johns. 516; other cases, however, hold that a vol- untary settlement, though void as to cred- itors, is good as to the grantor and all claiming under him : Thompson v. Doug- herty, 12 S. & R. 448; Church v. Church, 4 Yeates 280 ; Shunk v. Endress, 3 W. & S. 253; Worrall's Accounts, 5 Id. 113; Huey's Ap., 29 Penn. St. 219 ; but there is no question, that a voluntary settlement will be good as to existing creditors, or subsequent purchasers, by matter ex post facto ; as if one gains credit by such set- tlement, so as to found a consideration for a marriage presently had : Sterry v. Arden etal., 1 Johns. Ch. 261, affirmed, 12 Johns. 536 ; Huston's Admr. v. Cantril et al., 11 Leigh 137 ; Hopkirk v. Randolph, Admr., 2 Brockenb. 130. And a post-nuptial set- tlement for a valuable consideration is good, as an ordinary transfer of property : Barron v. Barron et al., 24 Vt. 376 ; Pinney et al. V. Fellows, 15 Id. 536 ; Brooks et al. V.Dent, Admr., et al., 1 Md. Ch. Decs. 523 ; Livingston v. Livingston, 2 Johns. Ch_ 537 ; Ryan, Admr., v. Bull et al., 3 Strobh. Eq. 86 ; U. S. Bank et al. v. Brown et al., 2 Hill Ch. 562 ; Keith v. Wombwell, 8 Pick. 213. It is not absolutely indispensable that there should be a trustee to a marriage settlement: Carroll v. Lee, Admr., 3 Gill & Johns. 504 ; Exr. of Allen v. Rumph et al., 2 Hill Ch. 4 ; Crostwaight, &c., v. Hutchinson, &c., 2 Bibb 407 ; Barron u. Barron et al., 24 Vt. 376 ; Fox v. Jones, 1 W. Va. 205 ; for, if no trustee is named, the husband will take that office : Hamilton V. Bishop et al., 8 Yerg. 33; Picquet v. Swan, 4 Mass. 443 ; Griffith's Admr. v. Griffith, 5 B. Mon. 118 ; Baldwin v. Carter, 17 Conn. 201 ; Kenley v. Kenley, 2 How. (Miss.) 751 ; Parks v. Noble, 9 Rich. Eq. 85 ; Resor v. Resor, 9 Ind. 347 ; Riley v. Riley, 25 Conn. 154 ; but, agreements en- tered into between husband and wife during coverture are void at law : Wallings- ford V. Allen, 10 Peters 583; Sheppard v. Sheppard, 7 Johns. Ch. 57 ; Harkins et al. V. Coulter et al., 2 Port. 463 ; Dufiy v. The Insurance Co., 8 W. & S. 413 ; Wood v. Warden, Admr., &c., 20 Ohio 521 ; Hutton V. Hutton's Admr., 3 Penn. St. 100 ; Johnston v. Johnston, 1 Grant Cas. 468 ; Bear v. Bear, 33 Penn. St. 525 ; Fowler v. Trebein, 16 Ohio St. 493 ; though they are good in equity, if upon a valuable consid- eration : Wallingsford v. Allen, 10 Peters 583 ; Sheppard v. Sheppard, 7 Johns. Ch. 57 ; Harkins et al. v. Coulter et al., 2 Port. 463 ; McKennan v. Phillips, 6 Whart. 571 ; Trenton Banking Co. v. Woodruff et al., I Green Ch. 117; Shirley v. Shirley et al., 9 Paige Ch. 363 ; Griffith's Admr. v. Griffith, 5 B. Mon. 118 ; Bridges v. Wood, 4 Dana 610 ; Smith v. Smith's Admr., 6 Munf. 581 ; Duffy V. The Insurance Co., 8 W. & S. 413; Wood v. Warden, Admr., 20 Ohio 521 ; Stiles v. Fleming, Exr., et al., 1 Dev. Eq. 185 ; Ex parte Wells, 3 Desauss. 158 ; Hutton V. Hutton's Admr., 3 Penn. St. 100; Wells v. Wells, 35 Miss. 638 ; Deming 297 OF PERSONAL ESTATE GENERALLY. to bring the settlement within the provisions of the statute of the 13th of Elizabeth(a) already noticed, (i) by which the alienation of goods and chattels made for the purpose of delaying, hindering or defrauding creditors, is rendered void as against them. For although by the phrase " goods and chattels " was intended only such personal property as could be taken by the sheriff- under an execution on a judgment,(c) but as almost all kinds of personal property may now be taken in execution, (cZ) or charged with the payment of judgment debts,(e) all such property is r*0Q81 "*^^ within the compass of the statute.(/)^ *The voluntary assignment of goods or chattels, or delivery or making over of bills, bonds, notes or other securities, or the voluntary transfer of any debts made by a person being at the time insolvent,(^) was by the former bankruptcy acts void in the event of his bankruptcy. (/i) This provision embraced all personal estate capable of assignment or transfer :(z') but it did not extend to a gift of money.(y) The provisions of the Bank- (a) Stat. 13 Eliz. c. 5 ; Sharf «. Soulby, 1 Macn. & G. 364. (6) Ante, p. 48. (c) Sims V. Thomas, 2 Ad. & E. 536 (E. C. L. R. vol. 29). See ante, p. 51. (d) Stat. 1 & 2 Vict. c. 110, s. 12. See ante, p. 119. (e) Stats. 1 & 2 Vict. c. 110, s. 14 ; 3 & 4 Vict. c. 82, s. 1 ; ante, p. 119. (/) See Edwards v. Cooper, 11 Q. B. 33 (E. C. L. R. vol. 63) ; Barrack r. M'Culloch, 3 Kay & John. 110; Jenkyn v. Vaughan, 3 Drew. 419. (g) See Cutten v. Sanger, 2 You. & Jer. 459. (h) Stat. 12 & 13 Vict. c. 106, s. 126, repealing stat. 6 Geo. IV. c. 16, s. 73, to the same effect. (t) Brown v. Bellaris, 5 Mad. 53. (j) Ex parte Shortland, 1 Ves. 88 ; Kensington v. Chandler, 2 M. & Selw. 3G ; Ex parte Skerett, 2 Rose 384. V. Williams, 26 Conn. 226 ; Simons v. Mc- tion, is void as against public policy; but Elwain, 26 Barb. 420 ; but an agreement when made in contemplation of the con- between husband and wife to live sepa- tinuance of a previous separation, or of rate and apart from each other, is good disagreements which have already taken neither at law nor in equity, unless place, is good : Gaines v. Poor, 3 Mete, through the intervention of a trustee : (Ky.) 503. McKennan v. Phillips, 6 Vt. 571 ; Simpson ^ But in Pennsylvania, lands are con- V. Simpson, 4 Dana 141 ; Carson v. Murray sidered as chattels for the payment of et al., 3 Paige 483; Reed v. Beazley, 1 debts ; creditors have a legal right to take Blackf. 07 ; Rogers v. Rogers, 4 Paige 516 ; the property of their debtors in execution, Champlin v. Champlin et al., 1 Hoff. Ch. and any conveyance made to defeat them 55 ; the contrary has, however, been held, is void : Reichart v. Castator, 5 Binn. 112 ; where the agreement was consummated; and in case of insolvency, the assignees see Hutton v. Button's Admr., 3 Penn. St. have power to recover and dispose of all 100. such real or personal estate, as the insol- A contract by a husband during mar- vent shall have (prior to the assignment) riage, while living in amity, or before conveyed or transferred with intent to de- marriage, to pay an allowance for the sup- fraud his creditors : Purd. Dig. (1861), pp. port of his wife in case of a future separa- 542, 543. OF SETTLEMENTS OF PERSONAL PROPERTY. 298 ruptcy Act, 1869, on this subject are very stringent, and have been already mentioned. And the word " property," which is employed by the act, is expressly defined by it to include money as well as every other description of property. (^)^ Although a voluntary settlement may thus be defeated by creditors, yet when once completed, it is binding on the settlor, who cannot by any means undo it.(Z) Thus, in one case,(w) a maiden lady not immediately contemplating marriage, but thinking such an event possible, transferred a sum of stock into the names of trustees in trust for herself until she should marry, and, after her marriage, in trust for her separate use for her life, free from the control of any person or persons with whom *she might intermarry, and after her decease, upon trusts for r^QQQ-i the benefit of any such husband, and her child or children by any husband or husbands. She afterwards being still unmarried, filed a bill in Chancery, praying that the settlement might be delivered up to her to be cancelled, and that the stock might be ordered to be re- transferred by the trustees. But the court held that she was bound by the settlement she had made, and was not entitled to any assistance to release her from it.^ If however the object of the settlor is merely his own benefit or convenience, the settlement will be revocable by him- at his pleasure. Thus where a man, without any communication with his creditors, puts property into the hands of trustees for the purpose of paying his debts, his object is said to be, not to benefit his creditors, but to benefit him- self by the payment of his debts.(7i) He may accordingly revoke the trust thus created(o), so long as the creditors remain in ignorance of (k) Ante, pp. 153, 154. Stat. 32 & 33 Vict. c. 71, s. 4. (1) Ellisoa V. Ellison, 6 Ves. 656; Edwards v. Jones, 1 Myl. & Cr. 226 ; Newton v. Askew, 11 Beav. 145 ; Kekwich v. Manning, 1 De G., M. & G. 176 ; Bentley v. Mackay, 15 Beav. 12 ; Bridge v. Bridge, 16 Beav. 315 ; Re Way's Settlement, Lds. Jus. 13 W. R. 149; 2 De G., J. & S. 365. (m) Bill V. Cureton, 2 Myl. & K. 503. See also Petre v. Espinasse, 2 Myl. & K. 496; M'Donnell v. Hesilridge, 16 Beav. 346; Donaldson v. Donaldson, 1 Kay 711. («) Per Sir C. Pepys, M. R., 2 Myl. & K. 511 ; cited by Wigram, V.-C, in Hughes v. Stubbs, 1 Hare 479. (o) Garrard v. Lord Lauderdale, 3 Sim. 1 ; Acton v. Woodgate, 2 Myl. & K. 492; Ravenshaw v. HoUier, 7 Sim. 3 ; Law v. Bagwell, 4 Dru. & Warren 398 ; Smith v. Keat- ing, 6 C. B. 136 (E. C. L. R. vol. 60) ; Driver v. Mawdesley, 16 Sim. 511. 1 See ante, p. 135, note, and 154, note. * See ante, p. 297, note. 299 OF PERSONAL ESTATE GENERALLY. it.{p) This rule, however, though well established, seems to attribute to debtors a somewhat light estimation of the claims of their creditors; and there appears to be no disposition in the courts to extend \t.{q) The statute of Elizabeth,(r) by which voluntary *settlement3 ^ -'of lands and other hereditaments are void as against subsequent purchasers for valuable consideration, though it extends to chattels real,(s) does not apply to purely personal estate. («y A voluntary settlement of personal estate cannot therefore be defeated by a subsequent sale of the property by the settlor. Settlements of any definite and certain principal sum of money, of any denomination or currency, whether British, foreign or colonial, or of any definite and certain share in the funds, or Bank, East India, or South Sea stock, or in the stock or funds of any other company or corporation, or in the stocks or funds of any foreign or colonial govern- ment, state, corporation or company whatsoever, are now liable to an ad valorem duty of one-fourth per. cent., or five shillings per hundred pounds, on the amount of the money or the value of the stock or share settled, according to the table contained in the Stamp Act,{u) with a progressive duty of ten shillings for every eyitire quantity of 1080 words beyond the first 1080. The duty on the settlement of money secured {p) Browne v. Cavendish, 1 Jones & Lat. 606, 635 ; Griffith v. Ricketts, 1 Hare 299, 307 ; Mackinnon v. Stewart, 1 Sim. N. C. 76, 89, 90 ; Harland v. Binks, 15 Q. B. 713 (E. C. L. R. vol. 69) ; Smith v. Hurst, 10 Hare 30. But see Cornthwaite v. Frith, 4 De G. & Sm. 552. (q) See Wilding v. Richards, 1 Coll. 661 ; Simmonds v. Palles, 2 Jones & Lat. 489 ; Kirman v. Daniel, 5 Hare 493, 499-501. (r) Stat. 27 Eliz. c. 4; Principles of the Law of Real Property 56, 1st ed. ; 59, 2d ed. ; 62, 3d and 4th eds. ; 67, 5th ed. ; 71, 6th ed. ; 73, 7th ed. ; 74, 8th ed. («) Co. Litt. 3 b; 6 Rep. 72. (t) 2 Myl. & K. 512. (m) Stat. 13 & 14 Vict. c. 97 ; 27 Vict. c. 18, ss. 11-13. 1 On the subject of voluntary settle- Admr., «;. Cantrill et al., 11 Leigh 157; ments of personal estates, and that their Bentley et al. v. Harris, Admr., 2 Gratt. validity or invalidity is, in this country, 357; Beckham v. Secrest, 2 Rich. Eq. 54 ; as a general thing, determined by the Worthington et al. v. Shipley, 5 Gill 445 ; same rules which regulate such settle- Fleming jj. Townsend, 6 Geo. 103 ; Wilson ments of land, see Bayard et al. v. Hoff- v. Buchanan, 7 Gratt. 334 ; Smith v. Stern, man et al., 4 Johns. Ch. 450; Bank U. S. 18 Penn. St. 360 ; McVicker v. May, 3 Id. et al. V. Huth, 4 B. Mon. 444 ; Bohn v. 227 ; Penrod v. Morrison, Admr., 2 Penna. Headley, 7 Har. & Johns. 257 ; Toumin v. R. 126 ; Clemens v. Davis, 7 Penn. St. 264 ; Buchanan's Exr., 1 Stew. 67 ; Backhouse's Streeper v. Eckert, 2 Whart. 302 ; Stark v, Admr. v. Jett's Admr., 1 Brockenb. 500 ; Ward, 3 Penn. St. 328 ; Forsyth v. Mat- Thayer v. Thayer et al., 14 Vt. 107 ; Davis thews, 12 Id. 100. V. Payne's Admr., 4 Rand. 332 ; Huston, OF SETTLEMENTS OF PERSONAL PROPERTY. 300 by a policy of assurance is now charged on the sum secured ; but if there be not any certain covenant, contract or provision made for keeping up such policy or for paying the premiums which may become payable in that behalf, then the ad valorem duty is chargeable only on the value of the policy at the date of the settlement. (a;) By the Succession Duty Act, 1853,(y) provision has been made for charging certain duties on the succession *to property upon the r^qn-i-i death of any person dying after the 19th of May, 1853. These duties are at the same rates as the lagacy duty, of which an account will be given in the chapter on wills, increasing in proportion to the distance in consanguinity between the predecessor, from whom the interest succeeded to is derived, and the successor.^ {z) Stat. 27 Vict. c. 18, s. 12. (y) Stat. 16 & 17 Vict. c. 51. 1 A provision similar to that referred to in the text was enacted by the Act of Con- gress, approved June, 30, 1864, and known as the " Internal Revenue Law." The 124th and 125th sees, of said act, relate to the tax upon legacies and distributive shares of personal property. Sec. 126, and some subsequent sees, of the same act, refer to the succession of real estate, and the amount and manner of levying tax thereon . But the third section of the Act of Con- gress, of the 14th of July, 1870, repealed the taxes imposed by the Internal Revenue Law on legacies and successions. Stats, at Large (1869-70), p. 256, sec. 3. [*302] *CHAPTER II, OF JOINT OWNERSHIP AND JOINT LIABILITY. There may be a joint ownership of any kind of personal property, in the same manner as there may be a joint tenancy of real estate ;(a) and the four unities of possession, interest, title and time, which characterize a joint tenancy of real estate, apply also to a joint ownership of chattels. But as no estates can exist in personal property, the distinction's which hold with respect to joint estates for life, in tail, or in fee, do not occur in a joint ownership of personalty. If personal property, whether in possession or in action, be given to A. and B. simply, they will be joint owners, having equal rights as between themselves, during the joint ownership, and being, with respect to all other persons than themselves, in the position of one single owner. Hence it follows, that if a bond or covenant be given or made to two or more jointly, they must all join in suing upon it ;(5) and a release by one of them to the obligor is sufficient to bar them all.() Ettricke v. Ettricke, 2 Anibl. 056. (c) Lewen v. Dodd, Cro. Eliz. 443. (d) 1 Atk. 580 ; 1 Ves. sen. 104. 1 Where there has been an assignment patentee, become joint owners of the pat- of an undivided part of the whole original ent: Potter v. Holland, 4 Blatch. C. C. patent, the assignee of such part, and the 206. And see ante, p. 244, note. OF JOINT OWNERSHIP AND JOINT LIABILITY. 307 joyed alike, "(e) will make such persons tenants in common, and not joint tenants, as they would have been without the insertion of such words. In this respect the rule is the same *whether the sub- r*qAo-i ject of the devise or bequest be real or personal estate.(/) -' Owners in common or personal estate, like tenants in common of lands, have merely a unity of possession : the interest of one may be larger or smaller than that of the other, one having, for instance, one- third, and the other, two-thirds of the property. So the title need not be the same, as one may have been originally a joint tenant with a third person, who may have severed the joint tenancy by assigning his moiety to the other. The right of survivorship, which springs from a unity of interest and title, has accordingly no place between owners in common.(^) Connected with the subject of joint ownership is that of joint liability. Two or more persons may be jointly liable to the same debt or demand. In a joint bond, the obligors, according to the usual form, bind them- selves, their heirs, executors and administrators jointly; and in a joint covenant, they in like manner, covenant for themselves, their heirs, exec- utors and administrators jointly. In every case of joint liability, each is liable for the whole debt,(7i) yet they are all, like joint owners, con- sidered as one person.^ They must accordingly all be sued together (e) Loveacres d. Mudge v. Blight, Cowp. 352. (/) See 2 Jarra. Wills, 161 et seq. 1st ed. ; 211, 2d ed. ; 231, 3d ed. (^r) Litt. sect. 321. {h) 1 B. & Aid. 35. 1 Whether a contract be joint, or joint those bound: Ward v. Johnson,- 13 Mass- and several, each of the contractors is 148 ; Crane, Adrar., v. Ailing, 3 Green liable for the whole debt : Ward y. John- 423; Dudley (Geo.) 423; Merrick v. The son et al^, 13 Mass. 148 ; McMahan v. Mur- Bank of the Metropolis, 8 Gill 61 ; Morris phy, 1 Bailey 535 ; though it has been v. McAnally, 3 Cold. (Tenn.) 304 ; Kent v. held in a joint covenant, to secure the Wells, 21 Ark. 411; and the rule is the payment of rent, that the sureties could same as to joint tort feasors : Buckler v. not be sued without joining the principal : Lambert, 4 Mete. (Ky) 330; Laverty v. Ciij of Phila. v. Reeves et al., 48 Penn. Vanarsdale, 65 Penn. St. 507; but the suit St. 472 ; for persons jointly liable must all must be against one, or all, and cannot be be made defendants in an action to en- against any intermediate number: Minor force the. liability : Keller v. Blasdel, 1 et al. v. The Mechanics' Bank of Alexan- Nev, 491 ; Beale v. Trudeau, 18 La. Ann. dria, 1 Peters 73; and the personal repre- 129 ; though the contrary has been holden sentatives of one deceased, are equally under a statute of Iowa : Ryerson v. Hen- liable with their testator or intestate : drie, 22 Iowa 480 ; and where an obliga- Bulkley v. Wright et al., Exrs., 2 Root tiou is joint and several, proceedings may 70 ; Miller v. Reed, 3 Grant Cas. 52. So, be instituted against either one, or all, of the fact of one of several joint and several 308 OF PERSONAL ESTATE GENERALLY. during their joint lives :{i) and a release to one of them will discharge them all.(y) It is, however, provided by the Bankruptcy Act, 1869, that the order of discharge of a bankrupt shall not release any person who at the date of the order of adjudication was a partner with the bank- r*oAq-| rupt, or was jointly bound, or *had made any joint contract with *- "^ ' -^ him.(y^y And if any person jointly liable upon any simple con- tract shall be discharged by the Statute of Limitations, but his co-con- tractor or co-contractors shall be liable by virtue of a new acknowledgment or promise, judgment may be given and costs allowed against the latter person or persons on]y.{l}- And if such person or persons shall plead in abatement that the other ought to be jointly sued, and it shall appear that he was discharged by the statute, the issue joined on such plea shall be found against such person or persons pleading the same.(w) The fact of (?) 1 Wms. Saund. 291 b, n. (4). (/) 2 Rol. Abr. 412 (G), pi. 4; Clayton v. Kynaston, 2 Salk. 574; 2 Wms. Saund. 47 gg, n. (1) ; Warwick v. Richardson, 14 Sim. 281. (k) Stat. 31 & 32 Vict. c. 71, s. 50 ; ante, p. 158. The former enactment was stat. 24 & 25 Vict. c. 134, s. 163, repealing stat. 12 & 13 Vict. c. 106, s. 200, repealing stats. 6 Geo. IV. c. 16, s. 121, and 5 & 6 Vict. c. 122, s. 37, to the same effect. (Z) Stat. 9 Geo. IV. c. 14, s. 1. (m) Sect. 2. covenantors having been sued, will not thereto, such judgment shall not be a bar prevent a subsequent action as to another, to a recovery in any subsequent suit or or all jointly, provided, of course, the suits, against any person or persons, who previous action has not resulted in a satis- might have been joined in the action in faction of the demand : Ward v. Johnson which such judgment was obtained, et al. 13 Mass. 148 ; Sheeby v. Mande- whether the same shall be obtained ami- ville, 5 Cranch 254; Townsend v. Riddle, cably or by adversary process." Purd. 2 N. H. 448 ; Anderson v. Neef et al., 32 Dig. (1861), p. 578, sec. 38. Penn. St. 379 ; White v. Smith et al., 33 i See ante, p. 132, note 2 ff. j(j_ ]^8G. * One of several joint contractors, can- In the case of Willings et al. v. Conse- not by his admissions revive the lia- qua, Peters C. C. 301 ; it was held, that bility of the other obligors, extinguished " where two or more persons are liable by the statute of limitations, though he for a simple contract debt, a judgment ob- may his own: Mott v. Petrie, &c., 15 tained against one of them, is an extin- Wend. 317 ; Bowdre «. Hampton, 6 Rich- guishment of the claim on the other ard. 208. But the acknowledgment of a debtors, in the same manner, as a bond, debt, by one partner, after a dissolution of given by one of two persons liable on a the firm, is sufficient to take a case out of simple contract, is an extinguishment of the statute as regards the others: Smith, the original debt." By a statute of Penn- Admr., v. Ludlow et al., 6 Johns. 267 ; but sylvania, however, it is now enacted, that see to the contrary, Kauffman v. Fisher, 3 " where a judgment shall be hereafter re- Grant Cas. 302 ; and the mere acknowledg- covered against, one or more of several ment by one, is not considered a sufficient copartners, or joint and several obligors, proof of an existing debt, to bind the promisers, or contractors, without any other : Hackley i). Patrick, 3 Johns. 536 ; plea in abatement, that all the parties to Burns v. McKenzie, 23 Cal. 101 ; Thomp- the instrument or contract on which the son v. Bowman, 6 Wall. U. S. 316; Conery suit is founded, are not made parties v. Hays, 19 La. Ann. 325. OF JOINT OWNERSHIP AND JOINT LIABILITY. 309 one joint debtor being beyond the seas at the time when the cause of action accrues, will not deprive the others of the benefit of the Statutes of Limita- tion ; and the recovery of judgment against any who were not beyond seas, will be no bar to an action against the absent debtors on their return. And for this purpose no part of the United Kingdom, nor the Isle of Man, nor the Channel Islands, are to be considered as beyond seas.(w) After the decease of any one joint debtor the survivors or survivor of them may still be sued for the whole debt, as though the deceased had no share in it,(o) and the estate of the deceased will be discharged from all liability both at law and in equity. (jo)^ So if a judgment be obtained against two or more jointly, and one of them die, the estate of the survivor or sur- vivors, whether real or personal, will be exclusively liable to be taken in execution ; although *the real estate of the deceased, having [*310] formerly been bound from the date of the judgment, was until recently liable to contribute equally with the real estate of the survivors. (g-) (n) Stat. 19 & 20 Vict. c. 97, ss. 11, 12. (o) Richards v. Heather, 1 B. & Aid. 29. Ip) Richardson v. Horton, 6 Beav. 185 ; Wilmer v. Currey, 2 De G. & Sm. 347 ; Crossley v. Dobson, 2 De G. & Sm. 486 ; Other v. Iveson, 3 Drew. 177. (q) 3 Rep. 14 b ; Smarte v. Edsun, 1 Lev. 30 ; 2 Wms. Sauud. 51. See now stat. 27 & 28 Vict. c. 112; Principles of the Law of Real Property, p. 82, 7th ed. ; 83, 8th ed. 1 In all cases of joint obligation, the surviving debtor is the party liable, who must be sued alone, without being joined with the representatives of the decedent : Hott V. Petrie, &c., 15 Wend. 317 ; Water's Representatives v. Riley's Admr., 2 Har. & G. 305 ; Preston v. Preston, 1 Har. & Johns. 366 ; Murphy's Admrs. v. The Branch Bank of Alabama, 5 Ala. 421 ; Boykin v. Wat- son's Admrs., 3 Brev. 260; Poole v. Mc- Leod, 1 Smed. & Mar. 391 ; The State Treasurer v. Friott et al., Admrs., 24 Vt. 134 ; Bradley v. Burwell, 3 Denio 61 ; Teller v. Wetherell, 9 Mich. 464 ; Black v. Struthers, 11 Iowa 459; Roth well v. Dewees, 2 Black (U. S.) 613; Hoskinson V. Eliot, 62 Penn. St. 393. But by statutes of Tennessee, Massachusetts, Mississippi, Ohio, and North Carolina, the representa- tives of a deceased obligor may be joined in an action against the survivor : Perkins V. Hadley, 4 Hayw. 152 ; Claribon v. Goodloe, Cook 391 ; Simpson et al. v. Young et al. 2 Humph. 514 ; Foster et al. V. Hooper, Admr., 2 Mass. 572 ; Henderson et al. V. Talbert, 5 Smed. & Mar. 109 ; Smith V. Fagan et al., 2 Dev. 298 ; Taylor V. Taylor, 5 Hump. 110 ; Burgoyne v. 0. Life Ins. and Trust Co., 5 Ohio St. 586; and in Pennsylvania an action may be brought against the executors of a de- ceased partner : Moore's Ap., 34 Penn. St. 411 ; though they cannot be joined with the surviving partners : Hoskinson v. Eliot, 62 Id. 393. See also ante, p. 305, note. In Georgia, in an action against joint contractors, the plaintiff has his election in case of the death of one of them, to suggest the death of record, and to pur- sue the survivors, or to join the represen- tatives of the decedent ; but having elected to take the former course, he cannot after- wards be allowed to join the legal repre- S'entatives of the decedent with the survi- vors: Harrell v. Park, 32 Ga. 555; but see, Pearce v. Bruce, 38 Id. 444. Some few cases also hold, that in equity, a bond will be treated as several, so as to make the representatives of a deceased obligor, proportionably liable : Smith et al., Exrs., W.Martin etal., Exrs.,4 Desauss. 148 ; Haggins v. Peck, Admr., 10 B. Mon. 217. 310 OF PERSONAL ESTATE GENERALLY. A liability, however, may be both joint and several at the same time ; and as such a liability is more beneficial to the creditor, it is more usual than a liability which is simply joint. A joint and several bond has hitherto run in this form : — " for which payment to be well and truly made, we bind ourselves, and each of us, and the heirs, executors and administrators of us and of each of us, jointly and severally :" or if there were a larger number of obligors, say five, the better form was : — " for which payment to be well and truly made, we bind ourselves, and each of us, and any two, three, or four of us, and the heirs, executors and administrators of us, and of each of us, and of any two, three, or four of us, jointly and severally." But now, as we have seen,(r) all mention of heirs, executors and administrators may be omitted. In the case of a joint and several bond, an action may be brought against all the obligors, or against any one, two, three or four of them whom the oWigee may select ; otherwise he must have sued either all of them jointly, or any one of them singly.(s) A joint and several covenant was usually in this form : — " And the said A. B. and C. D. do hereby, for themselves, their heirs, executors and administrators jointly, and each of them doth hereby for himself respectively, and for his respective heirs, executors and administrators, covenant," &c. ; or if there were more than two eovenantors, the better form was, for the reason r*3in *^^<5'^6 given, "And the said A. B., C. D., E. F. and G. H., do hereby, for themselves, their heirs, executors and administra- tors jointly, and any two or three of them, do hereby, for themselves, their heirs, executors and administrators jointly, and each of them doth hereby for himself respectively, and for his respective heirs, executors and administrators, covenant," . Consequa, Peters C. C.301 ; "Walker v.Uc- Culloch, 4 Greenl. 421 ; Abel v. Forgue, 1 Root 502 ; Crane, Admr., v. Ailing, 3 Green 423 ; Averill v. Lyman, 18 Pick. 352; Goodnow v. Smith et al.. Id. 414; Bronson et al. v. Fitzhugh et al., 1 Hill 185 ; Clagett et al. v. Salmon, 5 Gill & Johns. 315 ; McAUester etal.v. Sprague et al., 34 Maine 296 ; Kirby v. Taylor et al., 6 Johns. Ch. 242; Frink v. Green, 5 Barb. 455 ; Bozeman v. The State Bank, 2 Eng. 328 ; HofFman v. Dunlop et al., 1 Barb. 185 ; Benjamin et al. v. McConnell, et al., 4 Gilm. 536 ; Gray's Exrs. v. Brown, 22 Ala. 262 ; Taylor v. Gallaud, 3 Iowa 17 ; Booth V. Campbell, 15 Md. 569; Elliott v. Hol- brook, 33 Ala. 659 ; Cornell v. Hasten, 35 Barb. 157; Evans v. Pigg, 3 Cold. (Tenn.) 395 ; and it seems to have been determined upon the principle, that whether the obli- gation be joint, or joint and several, the debt is entire, " and when once satisfied or released, can no longer be enforced against any party to it :" Wiggin v. Tudor et al., 23 Pick. 444 ; but it may well be doubted whether the case of Burson v. Kincaid, 3 Penna. R. 57, which decides that the release of one joint co-obligor is a release of all, but a release of an obligor in a joint and several obligation is not a release of all, is not more in accordance with general prin- ciples of law. The reasoning of Judge Kennedy in that case, is certainly entitled to very great respect. "In the abstract," he says, " it is certainly true, and the prin- ciple of law well settled, that if a creditor release one of two joint debtors, whether they be indebted upon a simple contract, bond, or judgment, it will also be a dis- charge of the other from the debt. Why is it so ? Because otherwise the whole burden of the debt would be thrown upon one of theip, instead of both, which would be directly contrary to their undertaking and contract. Upon the same principle, it has been held, that if the obligee in a bond, given to him by two or more jointly, tear off the seal of one of the joint obli- gors, or in any manner cancel the bond as to one of them, it discharges all the rest. It was in its concoction the joint bond of the whole ; but the moment it is cancelled by the obligee as to one of the obligors, it ceases to be the bond or deed of all ; in short, it ceases to be the same bond, if bond at all it can be called. By the orig- inal contract under which it was given, it was agreed, and made to be, the joint ob- ligation of all ; and without a new agree- ment between the same parties, it cannot be changed, and made a bond singly of any one or more of them, short of the whole number, without their consent. But the obligee or covenantee may release one of two several obligors named in a bond, or one of two several covenantors in a deed, or cancel the bond or deed as to one, by tearing off his seal, without the consent of the other, and for this reason too, that it does not increase the responsi- bility of the other obligor or covenantor, or change in any manner the nature of his obligation or covenant. It was the bond or deed of each singly before, and the ob- ligee or covenantee had a right to look to either singly for the fulfilment of it, and the one, therefore, can in nowise be in- jured, by cancelling the bond or deed as to the other." Since the above decision was made, it has been enacted by the legislature of the same state, that when a compromise or composition is made with an individual joint debtor, it shall not be so construed as to discharge the other joint debtors, nor shall it impair the right of the cred- itor to proceed against such of the joint debtors as have not been discharged : Purd. Dig. Suppl. (1871), p. 1283, sees. 3 and 5 ; and in Burke et al. v. Noble, 48 Penn. St. 168, it has been decided, that a 311 OF PERSONAL ESTATE GENERALLY. against the others ; and in this case, each of the remaining debtors 'will continue severally liable.(?4) So he may covenant with one of the debtors (ti) Ex parte Gifford, G Vcs. 807 ; Thompson v. Lack, 3 C. B. 540 (E. C. L. R. vol. 54) ; Kearsley v. Cole, IG M. & W. 136; Price v. Barker, Q. B. 1 Jur. N. S. 775 ; 4 E. & B. M 7G0 (E. C. L. R. vol. 82) ; Willis v. De Castro, 4 C. B. N. S. 21G (E. C. L. R. vol. 93). I release of one of several joint debtors, on payment of bis proportion of the debt, does not discharge the others, if it was not the intention of the parties : and the same is trne as to joint-tort-feasers : Matthews V. Chichopee Manuf. Co., 3 Rob. (N. Y.) 711 ; see also, Hope v. Johnston, 11 Rich. 135; Seymour v. Butler, 8 Clarke 304. Where all parties agree to the release of one of the obligors, or covenantors, of a joint bond or deed, the contract will still be binding as to the remaining parties ; for, as the learned judge continues to ob- serve, in the case last cited: "It is well settled, that if the name of one of two, or more joint obligors be stricken out or erased, or his seal torn from a bond by the consent of the obligee and the other ob- ligors, it shall cease to be the bond of him whose name is so stricken out or erased from it, but shall from that time be the bond of the others. And for what reason ? Because it was their agreement that it should be so. Their agreement alone, in this respect, without more, is equivalent to a new, and re-execution and redelivery of the bond, as their act and deed." And see Barringtonet al. D.The Bank of Wash- ington, 14 S. & R. 405 ; Bronson et al. v. Fitshugh et al., 1 Hill 185; Rogers v. Hosack's Exrs., 18 Wend. 319; Campbell V. Booth, 8 Md. 107; Irwin v. Scribner, 15 La. Ann. 583. A release, however, of one joint con- tractor, to be binding, must be a techni- cal release, that is, under seal, thereby importing a good consideration: Bank of Catskill V. Messenger et al., 9 Cowen 37 ; Harrison v. Close et al., 2 Johns. 448 ; Rowley v. Stoddard, 7 Id. 207 ; Walker v. McCulloch, 4 Greenl. 421 ; Shaw v. Pratt, 22 Pick. 305 ; De Zeng v. Bailey et al., 9 Wend. 336 ; McAllester et al. i'. Sprague et al., 34 Maine 296; Frink v. Green, 5 Barb. 455 ; Shock v. Miller, 10 Penn. St. 401 ; Armstrong v. Hayward, 6 Cal. 183 ; McAllister v. Denin, 27 Miss. 40 ; Drink- water V. Jordan, 46 Maine 432 ; Ayer v. Ashmead, 31 Conn. 447; but a release which is made a part of the decree of a court, is a technical release, though not under seal : Benjamin et al. v. McConnell et al., 4 Gilm. 536. Some of the cases hold, that equity will not relieve against releases of this description: Willings et al. V. Consequa, Peters C. C. 301 ; Joy v. Wurtz, 2 Wash. C. C. 266 ; while others determine that equity will interpret the release according to the intentions of the parties, and the justice of the case : Clag- gett et al. v. Salmon, 5 Gill. & Johns. 315; Norris's Admr. v. Hammett et al., Charlt. 267 ; Kirby v. Taylor et al., 6 Johns. Ch. 242 ; but fraud, of course, avoids the re- lease : Carter v. Connell et al., 1 Whart. 392. Anything, however, which operates as a complete voluntary discharge of one joint debtor, will discharge the others also; thus, where the obligee in a joint and several bond, appointed one of the administrators of one obligor, having as- sets, to be one of his own executors, the debt will be thereby paid, and the surviv- ing obligor discharged : Griffith v. Chew, Exr., 8 S. & R. 17 ; and where there was a joint execution against two persons, and one of them was taken in execution, and then voluntarily discharged by the cred- itor, it was held, that this was a release of both: Gould v. Gould et al., 4 N. H. 173 ; so, where one injured by several jointly, gave a receipt to one of them " in full" of said L.'s trespass, when he and Wilson P. Hunter (another defendant) were in com- pany together with others, it was held to operate as a discharge of the other joint trespassers: Gilpatrick v. Hunter et al., 24 Maine 18 ; but the taking;_ of a new OF JOINT OWNERSHIP AND JOINT LIABILITY. 311 never to sue him ; and in such a case he will retain his remedy against the others severally.(v) On account of the several liability, the estate {v) Lacy v. Kynaston, 2 Salk. 575; 2 Wms. Saund. 48, n. (1). security from one of two joint debtors, will not operate as a release, unless it is intended to have that effect: Parker v. Cousins, 2 Gratt. 372 ; Anderson v. Neef et al., 32 Penn. St. 379; Bowers v. Stile, 49 Id. 65 ; Schollenberger v. Seldonridge, Id. 83 ; though at common law, a judgment obtained against one of several joint-con- tractors, extinguishes the joint liability of those not sued, as well as of him who was sued: Mason v. Eldrod, 6 Wallace (U. S.) 231 ; nor will an assignment by a joint debtor to a creditor, of all his interest, in consideration of his indebtedness, have the effect of a release, so far as to dis- charge other joint debtors : McLarren v. Robinson, 20 Penn. St. 127. Where F., one of two common carriers, jointly charged by the plaintiffs with negligence, agreed with the plaintiffs bj- a simple contract in writing, that if the lat- ter would release T., the other carrier, it should not impair or affect any liability which he, F., might have incurred, or was subject to ; and thereupon T. was released accordingly ; it was held that F.'s agree- ment not being under seal, did not qualify the release, so as to prevent its operating the discharge of both F. and T. from the original cause of action : Bronson et al. v. Fitzhugh etal., 1 Hill 185. But a covenant not to sue one of several joint, or joint and several debtors, will not operate as a release, but will only dis- charge the one with whom the covenant was made ; who may have his remedy, if it should be broken by joining him as de- fendant: Tuckerman et al. v. Newhall, 17 Mass. 581; Brown v. Marsh, 7 Vt. 320; Bank of Catskill v. Messenger et al., 9 Cowen 37 ; Harrison v. Close et al., 2 Johns. 448 ; Rowley v. Stoddard, 7 Id. 207 ; Walker v. McCulloch, 4 Greenl. 421 ; Mason et al. v. Jonett's Admr., 2 Dana 107; Reed v. Shaw, 1 Blackf. 245 ; Shed v. Pierce, 17 Mass. 623 ; Sewall v. Sparrow, 16 Id.' 24; Ruggles v. Patten, 8 Id. 480; Crane, Admr., v. Ailing, 3 Green 423 Durell V. Wendell et al., 8 N. H. 369 Goodnow V. Smith et al., 18 Pick. 414 McAllester et al. v. Sprague et al., 34 Maine 296; Fink v. Green, 5 Barb. 455 Bozman v. The State Bank, 2 Eng. 328 Miller v. Fenton, 11 Paige Ch. 19 Couch V. Mills et al., 21 Wend. 424 Browning & Co. v. Grady, Admr., 10 Ala. 999 ; Matthey v. Gaily, 4 Cal. 62 ; City of Carondelet v. Desnoyer, 27 Mo. 36; and the like is true of a bond of indemnity given to one of two joint promissors : Berry v. Gillis, 17 N. H. 9 ; though the principle of this doctrine has been doubted: Jonas v. Bank, 29 Conn. 25; and note a distinction between a covenant not to sue for a limited time, and a cove- nant never to sue : Thurston v. James, 6 R. I. 103 ; nor will a receipt in full to one joint debtor, for his share of the liability, effect the discharge of all ; Rowley v. Stoddard, 7 Johns. 207 ; Andrews v. Andrews et al., 1 Root 72 ; Shotwell v. Miller, Coxe 81 ; Rogers v. Hemstead, Kirby 44; Shock v. Miller, 10 Penn. St. 401 ; and it has-been doubted, whether it will effect tke discharge of the one to whom it is given : Buckingham ?'. Oliver, 3 E. D. Smitk 129; Griffith v. Grogaa, 12 Cal. 317 ; nor can a discharge of one of several joint obligors by operation of law, relieve the other obligors : Ward v. John- son et al., 13 Mass. 148 ; nor a judgment obtained against one, without satisfaction : McLaurine v. Monroe, 30 Mo. 4G2 ; Kauff- man v. Fisher, 3 Grant's Cas. 302 ; but an actual satisfaction of the debt, by one joint debtor, will release all : Walker v. McCulloch, 4 Greenl. 421 ; and so of pay- ment in full, by one of two or more joint trespassers, in satisfaction of the damage committed: Gee v. Overby, 7 Eng. 164. The law as regards joint trespassers or wrongdoers, seems to be the same with that of joint obligors, as respects the effect produced by a release of one, or a cove- 311 OF PERSONAL ESTATE GENERALLY. of a person who lias become jointly and severally bound is not discharged by his decease in the lifetime of his co-debtors, but still remains liable to the entire debt as respects the creditor, and to a portion of it as re- spects the surviving co-debtors. It has been recently enacted, that no co-contractor or co-debtor, whether liable jointly only or jointly and severally, shall lose the benefit of the Statutes of Limitation by reason r*qi'?n only of payment of any *principal, interest or other money by " any other co-contractor or co-debtor.(?^) One of the most usual means of incurring a joint and several liability is the entering into a partnership. At law the liability of partners is joint only, as to debts incurred by the partnership ; so that they ought all to be joined as defendants to an action at law for recovering any such debt.(a;) But a dormant partner, wliosc name may or may not be known, may either be joined or not at the pleasure of the creditor ;(2/)^ unless (w) Stat. 19 & 20 Vict. c. 97, s. 14, not retrospective ; Jackson v. WooUey, 8 E. & B. 784 (E. C. L. R. vol. 35). (x) See Rice v. Shute, 5 Burr. 2G11 ; 1 Wms. Saund. 291 b, n. (4). (y) Do Mautort v. Saunders, 1 B. & Ad. 398 (E. C. L. R. vol. 20) ; Beckham i'. Drake, 9M. & W. 79; 11 M. & W. 315. nant entered into with one to indemnify him from all legal proceedings: Snow u. Chandler, 10 N. H. 92 ; Bronson et al. v. Fitzhugh et al., 1 Hill 185 : Smithwick v. Ward, 7 Jones L. 64; Lovejoy v. Murray, Leg. Intel. July 6, 1866; but they may be sued separately: Gee v. Overby, 7 Eng. 164. Where all the joint obligors or covenan- tors- are dead, the proper parties to pro- ceed against, are the representatives of the last survivor: Beebe et al., Exrs., f. Miller, Minor 364. 1 A secret partner is as much governed by the transactions of the acting partner, as if his name was used : Shead v. Bar- rington et al., 1 Stew. 134 ; Richardson v. Farmer, 36 Mo. 35; but this law is con- fined to trade and commerce, and does not extend to speculation in the purchase of lands : Pitts v. Waugh et al., 4 Mass. 425. An action may be sustained by the ostensible partners, without joining those that are dormant: Lord v. Baldwin, 6 Pick. 350; Wilkes r. Clark, 1 Dev. 178; Shropshire v. Shepherd, 3 Ala. 733 ; Mon- roe V. Ezzell, 11 Ala. 603 ; Clarkson v. Carter, 3 Cowen 84 ; or the dormant partner may be joined as co-plaintiff: Rogers v. Kichline, 3G Penn. St. 293; in Secor v. Keler, 4 Duer 416, which was an action for work and labor done by the firm, it was held that he must be joined ; but the contrary has been held : Artisan's Bank V. Treadwell, 34 Barb. 553 ; Boardman v. Keeler et al., 2 Vt. 65; Clark et al. v. Miller et al., 4 Wend. 628 ; but where the ostensible partners are dead, the surviving dormant partner may sue alone : Beach v. Hayward, 10 Ohio 455. On the other hand, dormant partners, when discovered, may be joined as parties defendant Griffith & Co. v. Buffum et al., 22 Vt. 181 Everett et al. v. Chapman et al., 6 Conn 347 ; Lea v. Guice, 13 Sm. & M. 657 Reynolds v. Cleveland et al., 4 Cowen 282 but they need not be so joined : Sylvester et al. V. Smith, 9 Mass. 119; Carey v. Bright, 58 Penn. St. 70 ; for a dormant partner is an allowable, not an essential party: Desha et al. v. Holland, 12 Ala. 513; Clark et al. v. Miller et al., 4 Wend. OF JOINT OWNERSHIP AND JOINT LIABILITY. 312 the contract be under seal, in which case, as the deed is itself the con- tract, and not merely evidence of it,{z) those only can be sued on it who have sealed and delivered it. In equity, however, in f\ivor of creditors, all partnership debts are considered to be both joint and several. On the decease of a partner, therefore, his estate will be liable in equity to all the partnership debts incurred previous to his decease ;(a) and the creditors may, if they please, resort in the first instance to the estate of the deceased, leaving it to his representatives to recover from the sur- viving partners their share of the debts.(5) It seems, however, that in analogy to the rule in bankruptcy, next stated, the separate creditors of the deceased partner would first be paid in full out of the estate, before its application to the payment of any of the debts of the partnership. (c) *In the case of the bankruptcy of a trading partnership, the r*3;|^3-] rule which is always followed in the payment of the debts is, that the joint assets of the firm are in the first place liable to the part- nership debts ; and that the separate estate of each partner is in the first place liable to his separate debts, which must be paid in full out of such separate estate, before any of it can be applied towards payment of (z) Atite, p. 88. (a) Devaynes v. Noble, 1 Meriv. 529, 563 ; 2 Russ. & My. 495. (b) Wilkinson v. Henderson, 1 Myl. & K. 582 ; Braithwaite v. Britain, 1 Keen 206 ; Thorpe v. Jackson, 2 You. & Col. 553 ; Way v. Bassett, 5 Hare 55. (c) Gray v. Chisvvell, 9 Ves. 118 ; Brown v. Weatherby, 12 Sim. 6, 10; Ridgway v. Clare, 19 Beav. Ill ; Whittingstall v. Grover, M. R., 10 W. R. 53 ; Lodge v. Pritchard, 4 Giff. 294. 628; Brown v. Birdsall, 29 Barb. 549; Black, 9 S. & R. 142, which particularly hence, where in the case of a secret part- noticing the case of Sheey v. Mandevillc, nership, an execution was levied on the nevertheless decided in accordance with goods in the name of the ostensible part- what would seem to be the fixed legal ner, it was held that it should not be principle, that a judgment recovered postponed for a subsequent one, in the against one partner, is a bar to a subse- names of both the partners : Brown's Ap- quent suit against both (where there are peal, 17 Penn. St. 480. two), though the new defendant was a Where one takes a note from an ostensi- dormant partner at the time of the con- ble partner, upon which a judgment is tract, and not discovered until after suit, obtained, an execution issued, and re- But Sheey v. Maudeville has been over- turned, ^^ nulla bona," it has been held, ruled in Mason v. Elrded, 6 Wall. U. S. that the holder of the note will not 231 ; and see aw^e, p. 308, and p. 311, notes, be thereby barred from a suit against all The admission of a dormant partner, the partners : Watson et al. v. Owens et who is proved to be so, may be given in al., 1 Richard. Ill; Sheey v. Mandeville evidence to bind the firm: Kaskaskia et al., 6 Cranch 254; but this has been Bridge Co. v. Shannon et al., 1 Gilm. 15; denied in Pennsylvania, in Smith et al. o. Shepherd v. Ward, 8 Wend. 542. 313 OF PERSONAL ESTATE GENERALLY. the debts of the partnership.((Z)^ Any creditor of a partnership may however be a petitioning creditor in respect of his debt, on the bank- (rf) Ex parte Elton, 3 Ves. 238, 241 ; Ex parte Kensington, 14 Ves. 447; Ex parte Pcake, 2 Rose 54'; Ex parte Harris, I Madd. 583 ; Ex parte Janson, 3 Madd. 229 ; Re Plummer, 1 Phil. 5G;- Ex parte Kennedy, 2 De G., -M. . Gore et al.. Id. 339; Galloway i-. Hughes et al., 1 Bail. 561; Nichols v. Hughes et al., 2 Id. 109; Livingston v. Roosevelt, 4 Johns. 2G5 ; Winship v. The Bank of the United States, 5 Peters 529 ; Miller v. Consolidation Bank, 48 Penn. St. 514 ; Ihmsen v. Negley et al., 25 Id. 297; Fant v. "West, 10 Rich. 149; Kennebec Co. v. Augusta Ins. and Banking Co., 6 Gray 204; Babcock v. Stewart, 58 Penn. St. 179; Hoskinson v. Eliot, 62 Id. 393 ; Storer V. Hinkley et al., Exrs., Kirby 147 ; but " the purposes for which the partnership was created, and the extent of the authority of the individual members, is not to be limited by the articles under which their connection was formed, but is to be ascertained, rather from the char- acter of their dealings, and manner in which they hold themselves out to the world ;" hence, in the case of Catlin et al., V. Gilder's Exrs., 3 Ala. 544, it having been testified that the firm of Catlin, Peoples & Co., dealt in dry goods and gro- ceries, and were in the habit of trading in anything on which they could make money, it was held, that " taking this statement as literally true, and it cannot be questioned, that Catlin might, during the continuance of the partnership, have purchased hogs, or other stock, on ac- count of the firm." See also Cadwallader V. Kraesen, 22 Md. 200 ; Edwards v. Tracy, 62 Penn. St. 374; Michigan Bank v. Eldred, 9 Wall. U. S. 544. But in doubtful cases, it is for a jury to decide, whether the partner was conduct- ing the usual business of the firm, in the usual manner, so as to bind the firm : The London Savings Fund Society v. Hagers- town Savings Bank, 36 Penn. St. 498. A partnership is bound by the fraud of one of its members, in all matters relating to the business of the firm : Beach v. The State Bank, 2 Cart. (Ind.) 488 ; Boardman v. Gore et al., 15 Mass. 331 ; Reynolds v. Waher's Heir and Admr., 1 Wash. (Va.) 164; Venable v. Levick, 2 Head 351; Ncsbit et al. v. Patton et al., 4 Rawle 120 ; Stockwell V. Dillingham, 50 Maine 442 ; for, " by forming the connection, the part- ners publish to the world their confidence in each other's integrity and good faith, and impliedly agree to be responsible for what they shall respectively do, within the scope of their partnership business:" Hawkins et al. v. Appelby et al., 2 Sandf. S. C. 428 ; but it is otherwise if it was known that the partnership funds were being misappropriated, or that the fraudu- lent partner had no authority to act: Yeager v. Wallace, 57 Penn. St. 3G5 ; Fielden v. Lakens, 9 Bosw. 436 ; Mechanics' Bank v. Foster, 44 Barb. 87 ; Graham v. Meger, 4 Blatch. C. C. 129 ; and this holds true in the case of a fraudulent release by one partner : Canal Co. v. Gordon, 6 Wall. U. S. 561. But if money is borrowed, or goods bought, or any other contract is made by one partner, upon his own exclu- sive credit, he alone is liable therefor, although the money, property, or other contract is for the proper use and benefit of the partnership, aud is applied thereto : No. Pa. Coal Co.'s Ap., 45 Penn. St. 185 ; Clay V. Cottrell, 18 Id. 408 ; Broaddus v. Evans, 63 N. C. 633. But see to the contrary. Tucker v. Peaslee, 36 N. H. 167. But one i)artner cannot bind the firm by deed, or instrument under seal : Donaldson V. Kendall et al., 2 Geo. Decs. 227 ; Clement V. Brush, 3 Johns. Cas. 181 ; Green et al. V. W. & T. Beals, 2 Caines 254 ; Napier v. Catron et al., 2 Humph. 534; Anderson et al. V. Tompkins et al., 1 Brockenb. 463 ; Andrew's Heirs, &c., v. Brown's Admr. et al., 21 Ala. 437 ; Davidson et al. v. Kelly, 1 Md. 501 ; Snyder v. May et al., 19 Penn. St. 235 ; Pierce v. Cameron et al., 7 OF JOINT OWNERSHIP AND JOINT LIABILITY. 318 given to one partner, is constructively notice to them all.(^) And any agree- ment between the partners, by which any one of them may be restrained from doing any act to pledge the credit of the firm, though binding as be- [*319] tween themselves, will not be binding on *any creditor(w) who may not have notice of it.(a;) If, however, the transaction be not (t) Per Lord Ellenborough, 1 M. & Selw. 259. (id) Waugh V. Carver, 2 H. Black. 235 ; South Carolina Bank v. Case, 8 B. & C. 427 (E. C. L. R. vol. 15) ; Hawken v. Bourne, 8 M. & W. 703, 710. (z) Minnitt v. Whinery, 5 Bro. Pari. Cas. 489 ; Ex parte Darlington District Joint Stock Banking Company, In re Riches, L. C. 11 Jur. N. S. 122. See also Hogg v. Skeen, 18 C. B. N. S. 426 (E. C. L. R. vol. 114). Richard. 114; Chamberlain et al. v. Mad- den, Id. 395; Dillon v. Brown, 11 Gray 179; except byway of release: Crutwell V. De Rossett, 5 Jones 263 ; Fluck v. Bond, 3 Phila. 207 ; Ormsbee v. Davis, 5 R. L 442 ; and hence, one partner cannot dis- pose of the partnership real estate : Arnold V. Stevenson, 2 Nev. 234; Piatt v. Oliver et al., 8 McL. 27 ; Ely v. Hair, 16 B. Mon. 230 ; though his deed will convey to the grantee the legal title to an undivided moiety, subject to the equities of the part- nership : Jones v. Nagle, 2 P. & H. (Va.) 339 ; but where a partner has a right to dispose of the assets of the firm as sur- viving partner, though his deed to a pur- chaser of real estate will not convey a legal title, yet it will transfer an equitable title, through which he may compel the heir to convey the estate : Andrew's Heirs, &c., V. Brown's Admr. et al., 21 Ala. 437; Rothwell V. Dewees, 2 Black U. S. 616 ; Dubois Ap., 38 Penn. St. 231 ; and it has been held, that in cases of urgency, all the partners need not join in an assignment of the partnershij) property : Robinson v. Gregory, 29 Barb. 560 ; Kemp v. Caruley, 3 Duer 1 ; Stein v. La Dow, 13 Minn. 412. So, one partner cannot by a confession of judgment bind his copartner: Shedd v. Bank of Brattleboro, 32 Vt. 709 ; Edwards V. Pitzer, 12 Iowa 607 ; unless actually brought into court by service of process on himself and copartner : Crane et al. v. French et al., 1 Wend. 311 ; Morgan et al. V. Richardson, 16 Mo. 409 ; and a service of process on one of several partners, is not equivalent to service on all : Rice v. Doniphan et al., 4 B. Mon. 123. But a judgment for a partnership debt recovered against one of the partners, the others being out of the jurisdiction, is payable out of partnership property, in preference to the individual debts of the partner sued : Inbusch V. Farwell, 1 Black U. S. 566 ; and a judgment confessed by one partner, is good as between him and the creditor, though void as to the copartners : York Bank's Ap., 36 Penn. St. 458 ; Grier v. Hood, 25 Id. 430 ; and by the Act of April 6, 1830, of Pennsylvania, will not dis- charge the other partners from liability for the same debt : Kaufifmann v. Fisher, 3 Grant Cas. 302. An absolute transfer of the whole pro- perty of the firm to break up the firm, is not within the power of a single partner : Kimball v. Hamilton, &c., Ins. Co., 8 Bosw. 495 ; Hook v. Stone, 34 Mo. 329 ; Coope v. Bowles, 42 Barb. 87 ; and amounts to a dissolution of the partnership : Welles v. March, 30 N. Y. 344. After the dissolution of a firm, the ad- missions of one of the partners cannot be received in evidence against his copart- ners : Hamilton i^. Summers, 12 B. Mon. 14 ; Daniel v. Nelson, 10 Id. 316 ; Draper V. Bissell et al., 3 McL. 275 ; Bispham v. Patterson et al., 2 Id. 87 ; Robinson et al. V. Taylor et al., 4 Penn. St. 242 ; Berryhill V. McKee, 1 Humph. 31 ; Conery v. Hayes, 19 La. Ann. 325 ; unless the one making such admissions, has an express, or an im- plied authority, to settle the business of the firm : Draper v. Bissell et al., 3 McL. 275; Robinson et al. v. Taylor et al., 4 Penn. St. 242.; Repport v. Colvin, 48 Id. 248. 319 OF PERSONAL ESTATE GENERALLY. in the ordinary course of the business of the partnership, the other partners will not be liable as such in respect of it. Thus one partner cannot bind the firm by a submission to arbitration, (2/) or by confessing a judgment ;{z) and one partner has ordinarily no authority to execute a deed in the names of the others so as to bind the partnership. (a) So a farmer carrying on his business in partnership ^vith another would not be liable on a bill of exchange drawn by his partner in the name of the partnership ;{b) neither would a solicitor be liable on a bill drawn by his partner in the name of his firm, though given to secure a partnership debt ;(c) for bill transactions form no part of the ordinary business of either farmers or solicitors. Again, there is no right or power implied by law in any of the directors of a joint-stock company to bind the company by drawing or accepting bills or notes ;{d) and in like manner notice of any matter relating to the business of a joint-stock company given to any member, even a director, is not constructive notice to the company itself.(t;) For joint-stock companies are essentially different from ordinary partner- ships. It is not necessary that the directors should have any other power to r*^9ni ^^"^ ^^^ company by *bills or notes than such as may be con- " ferred on them by the charter or articles of association. (/) And the business of such companies is always carried on at an office for the purpose, and is not, like that of ordinary partnerships, confided to any one individual member. The Companies Act, 1862, now provides, that a promissory note or bill of exchange shall be deemed to have been made, accepted or endorsed on behalf of any company under that act, if made, accepted or endorsed in the name of the company, by any person acting under the authority of the company, or if made, accepted or endorsed by or on behalf, or on account of the company by any person acting under the authority of the company.(^) The liability of a shareholder in a joint-stock company to the debts of the company has been already noticed. It varies, as we have seen,(/<) (y) Stead V. Salt, 3 Bing. 101 (E. C. L. R. vol. 11) ; s. c, 10 J. B. Moore 389. (z) Hambidge v. De la Croiiee, 3 B. C. 742 (E. C. L. R. vol. 54.) (a) Harrison v. Jackson, 7 Term Rep. 207 ; see Burn v. Burn, 3 Ves. 573, 578. {b) Per Littlcdale, J., 10 B. & C. 138 (E. C. L. R. vol. 21). (c) Hedley v. Bainbridge, 3 Q. B. 3-1(3 (E. C. L. R. vol. 43). {d) Dickinson v. Valpy, 10 B. & C. 128 (E. C. L. R. vol. 21) ; Bramah v. Roberts, 3 N. C. 963. (e) Powles V. Page, 3 C. B. 16 (E. C. L. R. vol. 54) ; Martin v. Sedgwick, 9 Beav. 333. (/) Balfour v. Ernest, 5 C. B. N. S. 601 (E. C. L. R. vol. 94). Iff) Stat. 25 & 26 Vict. c. 89, s. 47 ; and see as to other contracts, stat. 30 & 31 Vict. c. 131, s. 37, ante, p. 227. " (A) Ante, p. 228. OF JOINT OWNERSHIP AND JOINT LIABILITY. 320 according as the company is incorporated with unlimited liabih'ty or with liability limited by shares or by guarantee. The mere circum- stance, however, of a person allowing his name to be published as a pro- visional committee-man of a projected joint-stock company docs not con- fer on the solicitor or secretary of the intended company, or any one else, implied authority to pledge the credit of such person for goods sup- plied to the company, or work done on its account.(2) For to agree to become a member of a committee is merely to agree to become one of a body, to whom others have committed a particular duty, and does not constitute an agreement to share with the other members of that body in profit or loss, which is the characteristic of a partnership. (^) (?■) Reynell v. Lewis, 15 M. & W. 517 ; Barker v. Stead, 3 C. B. 946 (E. C. L. R. voL 54) ; Bailey v. Macauley, 13 Q. B. 815 (E. C. L. R. vol. 66). (k) 15 M. & W. 529. 26 [*321] *CHAPTER III. OF A WILL. All kinds of personal property may be bequeathed by will. This right, in its present extent, has been of very gradual and almost imper- ceptible growth ; for anciently, by the general common law, a man who left a wife and children could not deprive them by his will of more than one equal third part of his personal property. If, however, he left a wife and no children, or children and no wife, he was then enabled to dispose of half, leaving the other half for the wife or for the children. (a) This ancient rule, however, gradually became subject to many exceptions, by the customs of particular places, until the rule itself took the place of an exception and became confined to such places as had a custom in its favor. These places, in later times, were the province of York, the prin- cipality of Wales, and the city of London ; as to all which places, a general power of testamentary disposition was conferred by acts of parlia- ment of William and Mary, Anne and George l.{b) And noAv, by the act for the amendment of the laws with respect to wills, (^) every person of full age is expressly empowered to bequeath by his will, to be executed as required by the act, all personal estate to which he shall be entitled, either at law or in equity, at the time of his decease.^ f-*q.->.9-| *The ecclesiastical courts, as we shall hereafter see, very early acquired the right of determining as to the validity of wills of personal estate ; and, in the exercise of this right, they generally followed (a) 2 Black. Com. 492; Williams on Executors, pt. 1, bk. 1, ch. 1. See also 1 C. P. Cooper's Reports, p. 539. {b) Stat. 4 & 5 Will. & Mary, c. 2, explained by stat. 2 & 3 Anne, c. 5, for the pro- vince of York; stat. 7 & 8 Will. III. c. 38, for Wales; and stat. 11 Geo. 1, c. 18, for London. See 2 Bl. Com. 493. (c) Stat. 1 Will. IV. & 1 Vict. c. 26, s. 3. 1 By the eleventh section of an act of Dig. (1861), p. 1017, sec. 13; and by a the Legislature of Pennsylvania, of the 11th recent statute, the power of a married wo- of April, 1848, the widow of a decedent, man to make a will, has been restricted as who has made a will, shall not be deprived to her depriving her husband of his rights, of her share of his personalty under the in like manner: Id. 1018, sec. 21. See, intestate laws of that State, in case she also, 2 Revis. Statutes of Ohio (1861), p. elects not to take under the will : Purd. 1G23, sees. 43, 44, 45 and 46. I OF A WILL. 322 the rules of the civil law. By this law males at the age of fourteen, and females at the age of twelve, were allowed, if of sufficient discretion, to make a testament ;{d) and the same rule, accordingly, prevailed in this country with respect to wills of personal property, (e) although, by some authorities, seventeen and even eighteen was said to be the proper age.(/) The act for the amendment of the laws with respect to wills, has, however, now made the law uniform with respect to all wills, whether of real or of personal estate, and has enacted that no will made by any person under the age of twenty-one years shall be valid. ((7)^ (d) Inst. lib. 2, tit. 12, s. 1 ; Dig. lib. 28, tit. 1, s. 5. (e) 2 Bl. Com. 497. (/) Co. Litt. 89 b, n. (6). iff) Stat. 1 Will. IV. & 1 Vict. c. 26, s. 7. 1 The questions, who may make a will ? and, how is it to be made? are best an- swered by a reference to the statutory pro- visions of each particular state. In Pennsylvania, " Every person of sound mind (married women excepted), may dis- pose by will of his or her real estate, whether such estate be held in fee simple, or for the life or lives of any other person or persons, and whether in severalty, joint tenancy or common, and also of his or her personal estate. Any married woman may dispose, by her last will and testament, of her separate property, real, personal, or mixed, whether the same shall accrue to her before or during coverture : provided, that the said last will and testament be executed in the presence of two or more witnesses, neither of whom shall be her husband. And provided, also, that no will shall be effectual unless the testator were, at the time of making the same, of the age of twenty-one years or upwards, at which age the testator may dispose of real as well as personal or mixed property, if in other respects competent to make a will. Every will shall be in writing, and, unless the person making the same shall be prevented bj- the extremity of his last sickness, shall be signed by him at the end thereof, or by some person in his presence, and by his express direction, and in all cases shall be proved by the oaths or affirmations of two or more competent witnesses, otherwise such will shall be of no effect. Provided, that personal estate may be bequeathed by a nuncupative will, under the following restrictions: 1. Such will shall in all cases be made during the last sickness of the testator, and in the house of his habi- tation or dwelling, or where he has re- sided, for the space of ten days or more next before the making of such will ; ex- cept where such person shall be surprised by sickness, being from his own house, and shall die before returning thereto. 2. Where the sum or value bequeathed shall exceed one hundred dollars, it shall be proved that the testator, at the time of pronouncing the bequest, did bid the per- sons present, or some of them, to bear witness that such was his will, or to that effect ; and in all cases the foregoing re- quisites shall be proved by two or more witnesses, who were present at the making of such will. Provided, that notwith- standing this act, any mariner being at sea, or any soldier being in actual military service, may dispose of his movables, wages, and personal estate, as he might have done before the making of this act. No will in writing concerning any real estate shall be repealed, nor shall any de- vise or direction therein be altered, other- wise than by some other will or codicil in writing, or other writing declaring the same, executed and proved in the same manner as is hereinbefore provided, or by burning, cancelling, or obliterating or de- stroying the same by the testator himself, or by some one in his presence, and by his express direction. W^hen any person shall 322 OF PERSONAL ESTATE GENERALLY. Personal property was anciently of so little account that a Avill of it might be made by word of mouth, if proved by a sufficient number of make his last will and testament, and afterwards shall marry, or have a child or children not provided for in such will, and die leaving a widow and child, or either ii widow, or child, or children, although such child or children be born after the deatli of their father, every such person, so far as shall regard the widow, or child or children after born, shall be deemed and construed to die intestate, and such widow, child or children, shall be entitled to such purparts, shares, and dividends of the estate, real and personal, of the de- ceased, as if he had actually died without any will. A will executed by a single woman shall be deemed revoked by her subsequent marriage, and shall not be re- vived by the death of her husband :" Purd. Dig. (1861), pp. 1016, 1017, 1018. In New York, " All persons, except idiots, persons of unsound mind, married women and infants, may devise their real estate, by a last will and testament, duly executed, according to the provisions of this title. Every male person of the age of eighteen, years or upwards, and every female not being a married woman, of the age of sixteen years or upwards, of sound mind and memory, and no others, may give and bequeath his or her personal estate, by will in writing. No nuncupa- tive or unwritten will, bequeathing per- sonal estate, shall be valid, unless made by a soldier, while in actual military ser- vice, or by a mariner, while at sea. Every last will and testament of real or personal property, or both, shall be executed and attested in the following manner: 1. It shall be subscribed by the testator at the end of the will. 2. Such subscription shall be made by the testator, in the pres- ence of each of the attesting witnesses, or shall be acknowledged by him to have been so made, to each of the attesting wit- nesses. 3. The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare Ihe instrument so subscribed, to be his last will and testament. 4. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness at the end of the will, at the request of the testator. The witnesses to any will, shall write opposite to their names their respective places of residcHce ; and everj-- person who shall sign the testator's name to any will by his direction, shall write his own name as a witness to the will. No will in writing, except in the cases hereinafter mentioned, nor any part thereof, shall be revoked or altered, otherwise than by some other will in writing, or some other writing of the testator declaring such revocation or alteration, and execu- ted with the same formalities with which the will itself was required by law to he executed ; or unless such will be burnt, torn, cancelled, obliterated, or destroyed, with the intent, and for the purpose of re- voking the same, by the testator himself, or by another person in his presence, by his direction and consent ; and when so done by another person, the direction and consent of the testator, and the fact of such injury, or destruction, shall be proved by at least two witnesses. If, after the making of any will, disposing of the whole estate of the testator, such testator shall marry, and have issue of such marriage, born, either in his lifetime, or after his death, and the wife, or the issue of such marriage, shall be living at the death of the testator, such will shall be deemed revoked, unless provision shall have been made for such issue, by some settlement, or unless such issue shall be provided for in the will, or in such way mentioned therein, as to show intention not to make such provi- sion ; and no other evidence to rebut the presumption of such revocation shall be received. A will executed by an unmar- ried woman shall be deemed revoked by her subsequent marriage. Whenever a testator shall have a child, born after the making of his will, either in his lifetime, or after his death, and shall die, leaving OF A WILL. 322 ■witnesses, as well as by writing ; and a will made by word of mouth was termed a nuncupative testament.(7<) By the Statute of Frauds, however, a nuncupative testament, where the estate bequeathed exceeded the value of thirty pounds, was surrounded by so many requirements as to cause its complete disuse.(2) But no provision was made for guarding the execution of a written will of personal estate ; although by the same statute(A:) a will of real estate was required to be attested by three or (h) "U'cntworth's Executors, 11 ctseq.; Williams on Executors, pt. 1, bk. 2, ch. 2, s. 6. {i) Stat. 29 Car. II. c. 3, ss. 19-21, explained by stat. 4 Anne, c. 16, s. 14. \k) Sect. 5. such child, so after born, unprovided for by any settlement, and neither provided for, nor in any way mentioned in his will, every such child shall succeed to the same portion of the father's real and per- sonal estate, as would have been descended or distributed to such child, if the father had died intestate ;" N. Y. Revis. Stats. 5th ed., vol. iii., pp. 138, 141, 144, 145. As to power of a married woman over her separate estate, see Id. 240. Nearly all the statutes on this subject, require that a person should be of the age of twenty-one years, to make a will, either of real or personal estate ; but in New York, as has been seen, a male of the age of eighteen, and a female who has reached sixteen, may make a will of their person- alty ; in Virginia, North Carolina, Ken- tucky, Alabama, California and Arkansas, any person who has attained the age of eighteen years, may bequeath their per- sonal property by will ; and in Maryland and Mississippi, a female of eighteen may make a will other real estate. The number of witnesses required, is different in the different States. In most of them, three is required ; but in Penn- sj-lvania, New York, California, Arkansas, Ohio, Delaware, Tennessee, Kentucky, North Carolina, Alabama, Texas, Michigan, Iowa and Virginia, two only are neces- sary. The statute of Mississippi requires three witnesses to a will of real estate, but one is sufficient to a will of personalty ; and three witnesses are also necessary in Virginia to a will of real estate. In some of the States it is requisite that these should be subscribing witnesses, as in New Hampshire, Iowa, Georgia and New' Jersey, but it does not follow that they must all join in proving the will : Meckle V. Matlack, 2 Harrison 86. There is a diversity, too, as respects the making of nuncupative wills. In almost all the States they are allowed, but the statutes enjoin, that if the personal pro- perty thereby bequeathed should be be- yond a certain value they must be strictly proved in the manner pointed out in the respective acts. In Texas, this sum is fixed at §30; and in South Carolina at $10; in New Jersey, at $80 ; in Pennsylvania, New Hampshire, Alabama, Maine, and Mississippi, at $100 ; in Georgia, at 30Z. ; in Vermont, North Carolina and Dela- ware, at $200; in Tennessee, at $250; and in Michigan, Iowa and Maryland, at $300. But in New York, Florida, Massa- chusetts and Ohio, no nuncupative will can be deemed valid, unless proved as re- quired by the statutes of those States ; and in California, Alabama and Arkansas, no such will can be valid unless under the value of $500, nor unless proved as the legislative acts of those respective States demand. It is, however, expressly enacted by the statutes of the different States, that nothing therein contained shall be construed to deprive a mariner at sea, or a soldier in actual military service, from making such will as he might have done before those acts became laws. Whether a seal is necessary to the validity of a testament is determined by the statutes of the several States. 322 OF PERSONAL ESTATE GENERALLY. four witnesses. No attestation, therefore, was required to a will of per- r*o9q-| sonal estate, nor was it even necessary that *such a will should "be sio-ned by the testator. Thus, instructions for a Avill com- mitted to writing, given by a person who died before the instrument could be formally executed, though such instructions were neither reduced into writing in the presence of the testator, nor ever read over to him, have been held to operate as fully as a will itself.(/) It was, however, pro- vided by the Statute of Frauds, that no will in writing of personal estate should be repealed or altered by word of mouth only, except the same were, in the life of the testator, committed to writing, and after the writ- ing thereof, read unto the testator, and allowed by him, and proved to be so done by three witnesses at the least. (m)^ By the recent act for the amendment of the laws with respect to wills, every will of personal estate must now be in writing, and signed at the foot or end thereof by the testator or by some other person in his pres- ence and by his direction ; and such signature shall be made or acknow- ledged by the testator, in the presence of two or more witnesses present at the same time ; and such witnesses shall attest and shall subscribe the will in the presence of the testator.(?i) The act, in fact, requires the same mode of execution and attestation to every will, whether the property be real or personal. But an exception is made in favor of soldiers being in actual military service, that is, on an expedition, (o) and of mariners and seamen, being at sea, Avho may dispose of their personal estate as they might have done before the making of the &ct;{p) a similar exception r*^94"l ^^^ contained *in the Statute of Frauds.(5) The wills of sol- diers on an expedition may accordingly be made by an unattested writing, or by a mere nuncupative testament or declaration of their will by word of mouth, made before a sufficient number of witnesses. But the wills of petty officers and seamen in the royal navy, and of mai'ines and non-commissioned officers of marines, so far as relates to any wages, pay, prize money or other moneys payable by the admiralty, are required (l) Carey v. Askew, 3 Bro. C. C. 58 ; s. c. 1 Cox 241. (m) Stat. 29 Car. II. c. 3, s. 22. («) Stat. 1 Will. IV. & 1 Vict. c. 26, s. 9, explained by stat. 15 k 16 Vict. c. 24. See Principles of the Law of Real Property 1G8, 169, 4th ed. ; 175, 176, 5th ed. ; 183, 184, 6th ed. ; 187, 7th ed. ; 106, 197, 8th ed. (o) Druramond v. Parish, 3 Curt. 522. (p) Stat. 7 Will. IV. & 1 Vict. c. 26, s. 11. {q) Stat. 29 Car. II. c. 3, s. 23. 1 See ante, p. 322, note 1. OF A WILL. 324 by act of parliament(r) to be executed in the presence of and to be attested by a commissioned officer, or certain other officers or persons mentioned in the act ; and the wills of such persons are also guarded by other requisitions in order to prevent their being imposed upon.^ And by the Merchant Shipping Act, 1854, it is now provided that the Board of Trade may, in its discretion, refuse to pay or deliver the wages or effects of any deceased merchant seaman to any person claiming to be entitled thereto under any will made on board ship, unless such will is in writing, and is signed or acknowledged by the testator in the presence of the master or first or only mate of the ship, and is attested by such master or mate. And the Board may, in its discretion, refuse to pay or deliver any such wages or effects to any person, not being related to the testator by blood or marriage, who claims to be entitled thereto under a will made elsewhere than on board ship, unless such will is in writing and is signed or acknowledged by the testator in the presence of two wit- nesses, one of whom is some shipping master appointed under the act, or some minister or officiating minister or curate of the place in which the same is made, or, in a place where there are no such persons, some jus- tice of the peace, or some British consular officer, or some officer of cus- toms, and *is attested by such Avitn esses. (s) By the act to rstcooc-i amend the laws with respect to wills it is provided, that no will or codicil, or any part thereof, shall be revoked, otherwise than by the marriao-e of the testator or testatrix (which will of itself effect a revoca- tion),(i) or by another will or codicil executed in the manner thereby re- quired, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is thereby required to be executed, or by the burning, tearing or otherwise destroying the same by the testator, or by some person in his presence, and by his direction, with the intention of revoking the same.(M)^ A will of personal estate was formerly required to be made according to the law of the domicile of the testator at the time of his decease.(.i;) A person's domicile is the place which he makes his home. But with (r) Stat. 28 & 29 Vict. c. 72, superseding stats. 11 Geo. IV. & 1 Will. IV. c. 20, ss. 48-51 ; 1 Will. IV. & 1 Vict. c. 26, s. 12. («) Stat. 17 & 18 Vict. c. 104, s. 200. {t) Stat. 7 Will. IV. & 1 Vict. c. 26, s. 18. See Principles of the Law of Real Pro- perty 153, 1st ed. ; 163, 2ded. ; 170, 3ded. ; 171, 4th ed. ; 179, 5th ed, ; 187, 6tli ed. ; 191, 7th ed. ; 200, 8th ed. (m) Stat. 7 Will. IV. & 1 Vict. c. 26, s. 20. {x) Stanley v. Bernes, 3 Hagg. 373. 1 See anie, p. 322, note 1. « See ante, p. 322, note 1. 325 OF PERSONAL ESTATE GENERALLY. regard to many persons the circumstances connected with their change of residence are such as to render it an exceedingly difficult question of fact, — what country is their domicile at any given time. In order to remedy the inconveniences thus occasioned, it is provided by a recent act,(i/) that Avith regard to persons who may die after the 6th of August, 1861, the date of the act, every testamentary instrument made out of the United Kingdom by a British subject, Avhatever may be his domicile at the time of making it, or at his death, shall, as regards personal estate, be held to be well executed for the purpose of being admitted to probate, if the same be made according to the forms required either by the law of r*^op"i *^^ place where the same was made, or by the *law of the place " where such person was domiciled when the same was made, or by the laws then in force in that part of her Majesty's dominions where he had his domicile of origin. (^y It is further provided,(a) that every testamentary instrument made within the United Kingdom by any British subject, whatever may be his domicile at the time of making the same, or at his death, shall, as regards personal estate, be held to be Avell executed, and shall be admitted to probate, if the same be executed according to the forms required by the laws of that part of the United Kingdom where the same is made. And no testamentary instrument is to be revoked or to become invalid, nor is the construction thereof to be altered by reason of any subsequent change of domicile of the person making the same.(5) Another act of parliament, passed on the same day,(e) provides that whenever her Majesty shall, by convention with any foreign state, agree that provisions to the eifect of the enactments therein contained shall be applicable to the subjects of her Majesty and of such foreign state respectively, her Majesty may by order in council direct that, after the pubhcation of such order in the "London Gazette," no British subject resident at the time of his death in the foreign country named in such order shall be deemed, under any circumstances, to have acquired a domicile in such country, unless he shall have been resident in such country for one year immediately preceding his decease, and shall also have made and deposited in a public office of such foreign country (such office to be named in the order in council) a declaration in writing of his intention to become domiciled in such foreign country. And any British subject dying resident in such foreign country, but without hav- iy) Stat. 24 & 25 Vict. c. 114. (z) Stat. 24 & 25 Vict. c. 114, s. 1. {a) Sect. 2. (6) Sect. 3. (c) Stat. 24 & 25 Vict. c. 121. 1 For a provision somewhat similar to Statutes of Kentucky (18G0), p. 459, that referred to in the text, see 2 Revised sec. 8. OP A WILL. 326 ing so resided, and made such declaration *as aforesaid, shall be ^ , „^„^ • • r 3271 deemed, for all purposes of testate or intestate succession as to ^ -'J movables, to retain the domicile he possessed at the time of his going to reside there. ((7) Similar provisions may be made, after any such conven- tion, with regard to the subjects of such foreign country dying in Great Britain. (e) But this act is not to apply to any foreigners who may have ob- tained letters of naturalization in any part of her Majesty's dominions.(/) Connected with the subject of wills is that of donations mortis causa, which may here be noticed. A donation mortis causa is a gift made in contemplation of death, to be absolute only in case of the death of the giver. (^) Being a gift, it can be made only of chattels, the property in which passes by delivery ^{h) although a bond debt has, contrary to this principle,(z) been allowed to pass by way of donation mortis causa by delivery of the bond.(/{;) And a policy of life assurance has also recently been held a proper subject for such a gift,(Z) also bills or notes though payable to order and unendorsed. (?n) An actual or constructive deli- very of the subject of gift to the donee is essential to a donation mortis causa ;(w) it must also be made in expectation *of the donor's r*q9Q-i decease,(o) and must be on condition that the gift be absolute only on that event.(jt)) It is no objection, however, that the donation is clogged with a trust to be performed by the donee.(5') A donation mortis causa is revocable by the donor during his life,(r) and after his decease it is subject to his debts,(s) and also to legacy duty.(i;)^ {d) Stat. 24 & 25 Vict. c. 121, s. 1. (c) Sect. 2. _(/) Sect. 3. Iff) Inst. tit. Y, De Donationibus, cited by Lord Loughborough, iu Tate v. Hilbert, 2 Ves. jun. 119 ; Walter v. Hodge, 2 Swanst. 99. (A) See a7ite, p. 34 ; Miller v. Miller, 3 P. Wras. 356. (?) Duffield V. Elwes, 1 Sim. & Stu. 244. (k) Snellgrove v. Baily, 3 Atk. 214 ; and see Boutts v. Ellis, 4 De G., M. & G'. 249 : Moore v. Darton, 4 De G. & Sm. 517. (l) Witt V. Amis, 1 B. & Sm. 109 (E. C. L. R. vol. 101). {m) Veal v. Veal, 27 Beav. 303; Rankin v. Weguelin, 27 Beav. 309. As to checks, see Hewitt v. Kaye, L. E. 6 Eq. 198, M. R. ; Bromley v. Brunton, L. R. 6 Eq. 275, V.-C. S. (m) Wood V. Turner, 2 Ves. sen. 431 ; Bryson v. Brownrigg, 9 Ves. I ; Bunn v. Mark- ham, 7 Taunt. 224 (E. C. L. R. vol. 2) ; Ruddell v. Dobree, 10 Sim. 244; Farquharson V. Cave, 2 Coll. 356; Powell v. Hellicar, 26 Beav. 261.. (o) Tate V. Hilbert, 2 Ves. jun. Ill ; 4 Bro. C. C. 286. . (p) Edwards v. Jones, 1 Myl. & Cr. 226 ; Staniland v. Willott, 3 Mac. & Gord. 664. [q) Blount V. Burrow, 4 Bro. C. C. 72 ; Hills v. Hills, 8 M. & W. 401. (r) 7 Taunt. 232 (E. C. L. R. vol. 2). (s) 1 P. Wms. 406 ; 2 Ves. sen. 434. (t) Stat. 36 Geo. III. c. 52, s. 7 ; 8 & 9 Vict. c. 76, s. 4. 1 An endeavor to determine the nature by comparing the English and American and requisites of donations cauna mortis, decisions with the doctrines and priuci- 328 OF PERSONAL ESTATE GENERALLY. The mode of operation of a will of personalty is essentially different pies of the civil law, must produce great embarrassment, and perhaps end in con- fusion, as will be seen by a review of the two cases of Wells v. Tucker, 3 Binn. 370, and Nicholas v. Adams, 2 Whart. 17. In contrasting these cases, it appears that in Pennsylvania this subject has undergone considerable modification, as regards the sentiments entertained of its qualities and attributes ; in the former, Chief Justice Tilghrnan says, "^ donatio causa mortis, is a gift of a personal chattel, made by a person in his last illness, subject to an implied condition, that if the donor re- covers, the gift shall be void. So also it shall be void if the donee dies before the donor. In this, and some other circum- stances (being subject to the debts of the donor, &c.), it is in the nature of a legacy. ... It is a wise principle of our law, that the delivery is essential, because delivery strengthens the evidence of the gift. Too much care cannot be taken in insisting on the most convincing evidence, in cases of this kind, for these donations do, in effect, amount to a revocation pro tanto, of writ- ten wills ; and not being subject to the forms prescribed for nuncupative wills, they are certainly of a dangerous nature. Now let us consider the delivery which was made in this case. In the first place it was not to the donee, but to the donor's wife, to be delivered over. There is no objection to this mode of delivery. Whether made to the donee immediately, or to another for his use, is immaterial. . . Without absolutel}' committing mj'self, I incline to the opinion, that in this, as in several other particulars, it partakes of the nature of a legacy, and is revocable. . . . Upon the whole, then, the donation was perfect ; it was made in the testator's last illness, and accompanied with the delivery of the bonds, which is all that the nature of the case admits of." Subsequently, in the case of Nicholas v. Adams, Chief Jus- tice Gibson, after quoting from the civil law, and saying that there is not one word of sickness from first to last, proceeds : " I would, therefore, briefly define a donatio causa mortis to be a conditional gift, de- pendent on the contingency of expected death. ... In the donatio causa mortis, both are implied from the occasion. But it is certainly not necessary to be in such extremity as is requisite to give effect to a nuncupation, which is sustained from necessity merely, where the donor was prevented by the urgency of dissolution, from making a formal bequest. Donatio causa mortis is sometimes spoken of as being distinct from a gift inter vivos; the former having sometimes been supposed to be made in reference to the donor's death, and not to vest before it, but in- accurately, as it seems to me ; as this gift, like every other, is not executory, but executed in the first instance, by delivery of the thing, though defeasible by reclama- tion, the contingency of survivorship, or deliverance from peril. The gift is conse- quently inter vivos. All agree that it has no property in common with a legacj', ex- cept that it is revocable in the donor's lifetime, and subject to his debts in the event of deficiency. I, therefore, cannot subscribe to the doctrine, that the making of a subsequent will, is conclusive evi- dence of the gift having not been made during such a last illness, as the law re- quires ; and that if the degree of sickness was such as to induce an expectation of immediate death, the subsequent making of a formal will is conclusive that the donor had escaped from the peril of death, which he supposed to impend at the time of the gift; and that under these circum- stances, it cannot take effect as a donatio causa mortis. ... To say nothing of the fallacy, that the making of a will indicates even a respite from sickness, or the appre- hension of death, a disposition by donatio causa mortis, is not to be disturbed by the alternation of hope and despair, dependent on the doubtful spinning of the. die, but only by the turn-up of life." By the still more recent decision of Hea'dley v. Kirby, 18 Penn. St. 326, Judge OF A WILL. 328 from the operation of a will of lands in this respect, that in strictness Lowrie utterly repudiates the idea, that the civil law can be of any practical assistance in determining the attributes of donations of this description, saying, " Though we derive the law as to dona- tiones mortis causa, from the Roman law- yers, yet their rules on that subject are no guide to us in the administration of our law, for the stringent severity of their law of wills, occasioned and excused larger equitable exceptions, by way of gifts in prospect of death, than can at all be sanctioned under our much more reasonable statute of wills." What then is a donatio causa mortis, con- sidered with regard to the American cases, only? Many of them define it as a gift made by a person in his last illness, sub- ject to the implied condition, that if the donor recovers the gift shall be void : Wells w. Tucker, 3 Binn. 370; Weston v. Hight, 17 Maine 287 ; Grattan, Admr., v. Appleton et al., 3 Story 755 ; Harris v. Clark et al., Exrs., 2 Barb. 94 ; Hebb et al., Exrs., V. Hebb, Exrx., 5 Gill 506; Lee v. Luther, 3 Wood. & M. 524 ; Michener v. Dale, 23 Penn. St. 59 ; Merchant v. Mer- chant, 2 Bradf. 432 ; Avhile others say, that it must be made in expectation of death; Nicholas v. Adams, 2 Whart. 17; Raymond v. Sellick et al., Admrs., 10 Conn. 480 ; Holly v. Adams, 16 Vt. 206 ; Smith, Admr., v. Downey, Admr., 3 Ired. Eq. 268 ; Dole, Admr., v. Lincoln, 31 Maine 422 ; Huntington, Exr., v. Gilmore, 14 Barb. 243 ; Michener v. Dale, 23 Penn. St. 59 ; Merchant v. Merchant, 2 Bradf. 432 ; but in all of the latter cases, the donor was actually ill of the sickness of which he died; and in Rhodes v. Childs, 64 Penn. St. 18 ; confirming Gourley v. Linsenbigler, 51 Id. 345, it was held that in order that the validity of such a gift should be established, the donee must show that it was made in the donor's last illness, in apprehension of death, and upon condition that it was to take effect only on the donor's death by his existing dis- order, or in his illness ; if, however, the donor is neither out of health, nor in apprehension of death, he cannot make a valid donatio mortis causa ; Smith et al. v. Kittridge, Admr., 21 Vt. 238; Sessions v. Moseley, 4 Cush. 87. A gift by a volunteer soldier, in daily expectation of being ordered to the seat of war, made to a friend in the presence of witnesses, to keep until his return, and if he did not return, the property to belong to the donee, has been held not to be a gift by reason of death, although the donor died ten months afterwards in service : Irish V. Nutting, 47 Barb. 370 ; Gourley v, Lesenbigler, 51 Penn. St. 345. But see Gass V. Simpson, 4 Cold. 288. In all cases of gifts in expectation of death, delivery is absolutely essential : Bowers v. Hurd, Admr., 10 Mass. 427 ; Windows v. Mitchell, 1 Murph. 127 ; Shir- ley V. Whithead, 1 Ired. Eq. 130; Craig t). Craig, 2 Barb. Ch. 78 ; Lewis v. Walker, 8 Humph. 503; Jones, Admr., y. Deyer, 16 Ala. 221; McCraw v. Edwards et al., 6 Ired. Eq. 202 ; Chevallier, Admr., v. Wil- son, 1 Texas 161 ; Hitch v. Davis et al., 3 Md. Ch. Decs. 266 ; Michener v. Dale, 23 Penn. St. 59; Singleton v. Cotton, 23 Geo. 261. If possible, the gift should be put into the hands of the donee : Harris v. Clark, 3 Comst. 93 ; McDowell v. Murdock, 1 N. & McCord 239 ; Pennington, Admr., V. Gettiugs, Exr., 2 G. & Johns. 208 ; Win- dows V. Mitchell, 1 Murph. 127; Smith, Admr., v. Downey, Admr., 3 Ired. Eq. 268 ; Miller v. Jeffres et al., 4 Gratt. 479 ; Cut- ting V. Gilman, 41 N. H. 147 ; but, if not capable of actual delivery, to the donee, the means of obtaining it should be de- livered: Harris v. Clark, 3 Comst. 93, and other cases just cited. That an after-ac- quired possession of the thing given, or a previous and continuing possession of it, will not dispense with the necessity of a delivery, see Milleri'. Jeffres et al., 4 Gratt. 479, where Judge Baldwin says: "A de- livery is indispensable to the validity of a donatio mortis causa. It must be an actual delivery of the thing itself, as of a watch or a ring ; or of the means of getting the possession and enjoyment of the thing, as 328 OF PERSONAL ESTATE GENERALLY. the appointment, of an executor was formerly essential to a will of per- of the key of a trunk or a warehouse, in which the subject of the gift is deposited ; or if the thing be in action, of the instru- ment by using which, the chose is to be re- duced into possession, as a bond, or a re- ceipt, or the like It is not the possession of the donee, but the delivery to him by the donor, which is material in VI. donatio mortis causa ; the delivery stands iu the place of nuncupation, and must ac- company and form a part of the gift ; an after-acquired possession of the donee is nothing ; and a previous and continuing possession, though by the authority of the donor, is no better. The donee, by being the debtor, or bailee, or trustee of the donor, in regard to the subject of the gift, stands upon no better footing than if the debt or duty were owing from a third per- son. A debt or duty cannot be released bv mere parol, without consideration ; and where there is nothing to surrender by de- livery, the only result is, that in such a case, there cannot be a donatio mortis cdusa ; and the release, without valuable consideration therefor, must be by testa- ment, or by some instrument of writing which would be effectual for the purpose inter vivos:" French i\ Raymond, 39 Vt. 623. See, however, Champney v. Blanch- ard, 39 N. Y. 111. But a delivery to a third person to be by him delivered over to the donee, has been held a good delivery : Wells v. Tucker, 3 Binn. 370 ; Bonneman, Admr., v. Sidlinger et al., 15 Maine 429, and 21 Id. 185 ; Cou- tant V. Schuyler et al., 1 Paige 316 ; Jones, Admr.,tJ. Deyer, 16 Ala. 221 ; Dale, Admr., V. Lincoln, 31 Maine 422 ; Sessions v. Moseley, 4 Cush. 87 ; Michener v. Dale, 23 Penn. St. 59 ; Dresser ik Dresser, 46 Maine 48 ; Kemper v. Kemper, 1 Duvall 401 ; and in the case of Richardson v. Adams, 10 Yerg. 273, where the testator gave express directions to a residuary legatee, to de- liver an article of property to an individ- ual as a gift, and such legatee promised the testator that he would deliver it, the Court of Chancery declared the legatee a trustee, and enforced a delivery of the article. But the court refused to extend this rule, and in the following case de- clared no trust was created, because the promise was not made to the testatrix by the residuarj' legatee, but by an executor, who subsequently declined acting: Sims V. Walker, 8 Humph. 503 ; and the deliv- ery of any such gift, in trust for benevo- lent purposes, has been held void : Dole, Admr., v. Lincoln, 31 Maine 422. Gifts causa mortis differ from those i}iter vivos, in that they may be made to a wife, or husband, are subject to the debts of the donor, and revocable by him during his life, besides being subject to the contin- gency of the donee surviving the donor: Harris v. Clark et al., Exrs., 2 Barb. 94; Wells V. Tucker, 3 Binn. 370 ; Meach v. Meach etal., 24 Vt. 591 ; Marshall v. Berry, 13 Allen 43 ; though Chief Justice Gibson, in Nicholas v. Adams, as we have seen, denies that there is any difference between them, at the time of the gift, where he says, " This gift, like every other, is not executory, but executed, in the first in- stance, by delivery of the thing, though defeasible by reclamation, the contingency of survivorship, or deliverance from peril. The gift is consequently inter vivos. And see Bedell v. Carll, 33 N. Y. 581. In those respects in which these gifts differ from those i?iter vivos, they resemble legacies ; thus, they are subject to the debts of the donor : Wells v. Tucker, 3 Binn. 370 ; Bon- nerman, Admr., v. Sidlinger et al., 15 Maine 429 ; Harris v. Clark et al., Exrs., 2 Barb. 94 ; Gaunt v. Tucker, 18 Ala. 27 ; Huntington, Exr., v. Gilmore, 14 Barb. 243; Michener V. Dale, 23 Penn. St. 59; Bloomer v. Bloomer, 2 Bradf. 339 ; and they are revocable by the donor during his lift, as well as given upon the implied condition, that if the donee dies before the donor, the gift shall fail : Wells v. Tucker, 3 Binn. 370 ; Huntington, Exr., v. Gilmore, 14 Barb. 243 ; Parker v. Marston, 27 Maine 196 ; Jones v. Brown, 34 N. H. 439 ; Rhodes V. Childs, 64 Penn. St. 18 ; but they differ OF A WILL. 328 sonalty ;(ii) and, at the present day, the usual and proper method is to (m) Wentworth's Executors 3, 4, 14th ed. ; 2 Black. Com. 503. from legacies, in that they do not require the assent of the legal representative of the decedent, to make a good title in the donee : Doyle, Admr., v. Lincoln, 31 Maine 422 ; Gourley v Linsenbigler, 51 Penn. St. 345. Negotiable securities, which pass by de- livery, may be the subject of a gift in view of death : Grover v Grover, 24 Pick. 261 ; Bradley v. Hunt, Admr., 5 Gill & Johns. 58 ; in which last case, Chief Justice Buchanan remarks: "To constitute a donatio causa mortis, the gift should be full and complete at the time, passing from the donor the legal power and dominion over the thing intended to be given, and leaving nothing to be done by him, or his execu- tor, to perfect it. Hence, bank notes are the subject of such gifts, they being con- sidered as money, and the property in them passing by delivery ; and so, as to promissory notes payable to bearer, which pass by delivery, and the property, and legal dominion over the thing intended to be given, passing with the possession from the donor to the donee, they do not re- quire to be sued in the name of the execu- tor, and nothing is necessary to be done by him to perfect the gift of the money. But not so with the delivery of a promis- sory note payable to order, which has been held to be insufficient to pass to the donee the money, the thing intended to be given ; upon the ground, that no property in it passes by delivery ; and being a mere chose in action, it must, notwithstanding the delivery, be sued in the name of the executor. So that the gift of money is not complete at the time, the legal do- minion over it remaining in the donor, and on his death, passing to his executor, without the use of whose name it cannot be perfected. This may seem to be tech- nical ; but if the rule is admitted, that a delivery of the thing intended to be given, is essential to the perfection of the gift, it must follow, that a promissory note, pay- able to order, is not capable of being the subject of a donatio mortis causa. And if we were at liberty to do so, vre should not be disposed to relax the rule, which would be to open still wider the door, already sufficiently wide, to frauds, and perjuries, and the exercise of undue influence, by the artful and designing, upon the weak and unwary." By more recent decisions, however, " It seems now to be well settled, that any chose in action, whether negotiable or not, whether simple contract or specialty, if it be the contract, or promise, of some other than the donor, and do not consti- tute any obligation upon the donor, may, by mere delivery, constitute a good gift by reason of anticipated death :" Meach v. Meach et al., 24 Vt. 291 ; Brunson v. Brun- son, 1 Meigs 630 ; Bonneman, Admr., v. Sidlinger et al., 21 Maine 185 ; hence, a bond is the subject of such a gift : Wells v. Tucker, 3 Binn. 370; Braitley v. Hunt, Admr., 5 G. & Johns. 58 ; Harris v. Clark et al.,Exrs.,2Barb. 94 ; Miller w.Jefifress etal., 4 Gratt. 479; Waring v. Edmonds, 11 Md. 424 ; Caldwell v. Renfrew, 33 Vt. 213 ; and a certificate of deposit : Westerlo v. De W^itt, 36 N. Y. 340 ; and a policy of life assurance: Gourley v. Linsenbigler, 51 Penn. St. 345 ; or a check on a banker, Id. ; and so, of the note of a third persou : Bonneman v. Sidlinger et al., 15 Maine 429; Holly y. Adams, Admr., 16 Vt. 206; Parker r. Marston, 27 Maine 196; Harris V. Clark etal., Exrs., 2 Barb. 94; Smith et al. f. Kittridge, Admr., 21 Vt. 238; Ses- sions V. Moseley, 4 Cash. 78 ; Bates v. Kempton, 7 Gray 382 ; Chase v. Redding, 13 Id. 418 ; Turpin v. Thompson, 2 Mete. (Ky.) 420 ; for, as was said in the case of Coutant V. Schuyler et al., 1 Paige 316, " Notwithstanding the attempts which have been made in England, to distin- guish between a promissory note aiul a bond, in relation to the validity of a gift of a chose in action, there cannot, in reason, by any difference. A gift of either is valid, as a symbolical delivery of 328 OF PERSONAL ESTATE GENERALLY. appoint an executor as to the personal estate ; whereas under a devise of the debt due on the note, or bond, and all the deliverj' of which the subject is capable." And the fact, that the note is payable to order, and unendorsed, will not alter the case : Harris v. Clark et al., Exrs., 2 Barb. 94 ; Brown, Exr., v. Brown et al., 18 Conn. 410 ; Gourley t). Linsenbig- ler, 51 Penn. St. 34.5. But that a valid gift, in prospect of death, cannot be made of a certificate of stock, see Pennington Admr. v. Gitting's Exr., 2 G. & Johns. 208, and Westerlo v. De Witt, 35 Barb. 215; nor will money deposited in a bank, pass by the deliver^' of the pass book : Ashbrook v. Ryan, 2 Bush 228. It has been held, that a sealed note, will not pass by delivery only, and without en- dorsement: Overton v. Sawyer, 7 Jones L. 6. And see Phipps v. Hope, 16 Ohio St. 586. It was at one time held that the dece- dent's own note, could be made to operate as a gift by reason of death : Wright v. Wright et al., 1 Cowen 598 ; Bowers v. Hurd, Admr., 10 Mass. 427 ; McConnell v. McConnell, 11 Vt. 290; Jones, Admr., «. Deyer, 16 Ala. 221 ; but these cases were overruled, and the opinion at present pre- vailing, is against the validity of such a gift : Parish v. Stone, 14 Conn. 198 ; Ray- mond V. Sellick et al., Admr., 10 Id. 480 ; Craig V. Craig, 2 Barb. Ch. 78 ; Smith et al. V. Kittridge, Admr., 21 Vt. 238 ; Brown V. Moore, 3 Head 671. "A mere promise," said Judge Hibard in the case of Holly v. Adams, Admr., 16 Vt. 206, "to pay a sum of money is not a donatio causa mortis, within the meaning of the law. . . . This was not a gift ; it was merely a promise to give, and required the same interposi- tions of law to make it available, that are required in any case. ... I am unable to see any distinction in principle, or indeed any reason, why a note of a third person may not as well pass by a gift causa mortis, as a horse, or a piece of furniture, or any other species of personal property. . . . The doctrine of the case from lOth Mass., before alluded to, upon which the plaiu- tiff has relied, is, that where the maker of a note has acknowledged that it was given for value, he is not at liberty to deny it. . . . But although that doctrine once ob- tained in Massachusetts, it is not law there now, and I am not aware that it was ever adopted in this State. We think, there- fore clearly, that this note was but the evidence, which the daughter held, that the deceased, in his lifetime, had promised to give her the sum of monej^ therein ex- pressed, and to be treated like any other note which is void for want of a consider- ation." So in the case of the donor's own draft, or order, upon some third person, Judge Gridley, in Harris v. Clark et al., Exrs., 2 Barb. 94, delivered an opinion somewhat analogous to the one just pre- ceding, as follows : " The question is, ■whether the executory promise of the donor, made without consideration, can be made the subject of a gift ca^isa mortis. Such a gift inter vivos, has been held void for the want of a legal consideration to sup- port the promise, in several adjudged cases, in this court. . . . The gift was merely a void promise, which though sub- sisting in the form of a written security, was as valueles as waste paper, and there- fore incapable of being made the subject of a delivery or donation. ... So far as it represents a valid claim against a third person, we can see no force in the direc- tion that it was not delivered. But inas- much as it is sought to be enforced against the executors of the donor, as represent- ing and creating a legal obligation upon him, and available against them, as the representatives of the estate, it appears to us to be open to the objections : 1st, That being without consideration, it was a void promise, incapable of being made the sub- ject of a delivery, or a gift ; and 2d, That the draft being intended as a voluntary gift, rebuts the implication, which might otherwise arise, of a guarantee on the part of the drawer, that the draft should be ac- cepted and paid." And see also, 3 Comst. 93, and Craig v. Craig, 3 Barb. Ch. 78 ; Mich- i OF A WILL. 328 landed property, the lands pass at once to the devisee, and the interven- tion of an executor is quite unnecessary and inapplicahle.(i;)^ The (v) In the goods of Harden, Law Rep. 1 P. & D. 325. ener v. Dale, 23 Penn. St. 59 ; Candor & Henderson's Ap., 27 Id. 119 ; Flint v. Pat- tee, 33 N. H. 520 ; Second Nat. Bank v. Williams, 13 Mich. 282. The title to real estate will not pass by a donatio causa mortis : Meach v. Leach et al., 24 Vt. 591 ; and in the case of Head- ley V. Kirby, 18 Penn. St. 226, it was decided, that a decedent cannot thus dis- pose of all his property. Judge Lowrie using the following language : "It is not pre- tended that any gift like this has ever been held good, and it may be safely declared that no mere gift made in prospect of death, and professing to pass all one's property to another, to take effect after death, can be valid under our statute of wills, no matter what delivery may have accom- panied it. If this is not true, then it is plain that the statute of wills, so far as it is intended to exclude all modes of dis- posing of personal property at death, which it does not provide for, is repealed by the decisions of the courts." But sub- sequently, in the case of Meach v. Meach et al., 24 Vt. 591, in which the Pennsyl- vania case appears to have been fully ex- amined, it was held, that a gift of all one's personal property in view of death was valid, and in a note to that case, the ques- tion as to the amount or value of property which may pass by a donatio mortis causa, is thus considered: " I find no case, ex- cept the late case in Pennsylvania, where any attempt has been made to limit its operation, on account of the comparative or absolute extent of the property disposed of. And the more I have reflected on the subject, and compared the cases, with a view to evolve some rational and practi- cable principle of limitation to the extent of its operation, the more I have felt con- strained to declare, that it cannot be done by any powers of abstraction or general- ization, which my short sight is able to command." See also, Michener v. Dale, 23 Penn. St. 59. A delivery of a deed of a gift, without a delivery of the thing given, is not suffi- cient to pass the title by way of a donatio causa mortis: Smith, Admr., v. Doaney, Admr., 3 Ired. Eq. 2G8 ; and any such deed of gift must be proved as a will : Grattan, Admr., v. Appleton et al., 3 Story 755 ; Miller v. Jeffress et al., 4 Gratt. 479. But see Exrs. of Blake v. Low, 3 Desaus. 266 ; Brinkerhoff" v. Lawrence, Admr., &c., 2 Sandf. Ch. 400; Meach v. Meach et al., 24 Vt. 291. A donatio causa mortis may be upon a condition, other than those which are im- plied from the very nature of such a gift : Currie v. Steele et al., 2 Sandf. 542. 2 The testamentary disposition of pro- perty, without the appointment of an executor, is, in technical language, de- nominated a codicil ; for, " a codicil is a just sentence of our will, touching that ' which any would have done after their death, without the appointing of an execu- tor. Which definition doth agree, almost word for word, with the definition of a testament; saving that some words are here expressed, which are there omitted, absque executoris constilutione, without the appointment of an executor. By force of which words, the codicil is made to difi"er from a testament ; for a testament can no more consist or be without an executor, than a codicil can admit an executor. . . . Whereupon, the writers, conferring a tes- tament and a codicil together, and per- ceiving the odds betwixt the one and the other, they call a testament a great will, and a codicil a little will. And do com- pare the testament to a ship, and the codicil to a boat, tied most commonly to the ship. And not unjustly, as well because the codicil is not able to sustain the heavy burden of an executor, who, representing the person of the testator doth, as it were (like Atlas, who is feigned to carry the world on his shoulders), bear upon his back the whole mass and 328 OF PERSONAL ESTATE GENERALLY. executor of a will of personal estate becomes entitled, from the moment of the death of the testator, to all his personal property,(3:) which after payment of the debts of the deceased he is bound to apply according to the directions of the will. Thus if the testator should specifically be- queath any part of his personal property, the property so bequeathed will not belong absolutely to the legatee until the executor has assented to the bequest f and this assent must not be given until the executor is {x) Co. Litt. 388 a ; Com. Dig. tit. Biens (C) ; Williams on Executors, pt. 2, bk. 2. weight of all the goods and chattels, which did belong to the deceased, and on whose neck are laid all the actions, which either might be intended against the testator, by others, or against others, by the testator," &c. : Swineburne on Wills, vol. 1, part 1, sec. 5, pp. 28, 29. ' A legatee's title is not perfect, until the executor has assented to his legacy : Moore v. Barry, 1 Bail. 504 ; Lenor v. Syl- vester, Id. 504 ; Upchurchv. Norsworthy, 12 Ala. 532 ; Kelly's Admr. v. Kelly's Dis- tributees, 9 Id. 908; Rea v. Rhodes, 5 Ired. Eq. 148 ; Johnson v. The Connecticut Bank, 21 Coun. 156 ; Saggs v. Sapp, 20 Geo. 100; and this is true of every kind of be- quest ; as well of specific : Moore v. Barry, 1 Bail. 504 ; Lenoir v. Sylvester, Id. 504 ; Smith V. Towne's Admr. 4 Munf. 191 ; Lillard v. Reynolds, 3 Ired. 370 ; Everitt v. Lane, 2 Ired. Eq. 550 ; Frouty v. Frouty, 1 Bail. Ch. 51Y ; Lark et al. v. Linstead et al., 2 Md. Ch. Decs. 162; Crist v. Crist, Admr., 1 Cart. 570 ; as of general : Wilson V. Rine, 1 Har. & Johns. 138 ; Lark et al. V. Linstead et al., 2 Md. Ch. Decs. 162 ; Crist V. Crist, Admr., 1 Cart. 570. And the assent ofthe legatee is equally necessary : Johnson V. The Connecticut Bank, 21 Conn. 156. But " a very slight assent," on the part of the executor, "is held sufficient; and it may be either express or implied, absolute or conditional. He may not only, in di- rect terms, authorize the legatee to take possession, but his assent may be inferred, either from direct expressions, or particu- lar acts, and such constructive permis- sion will be equally available. His assent may be implied ; as, if the executor con- gratulate the legatee," &c. : Lynch v. Thomas, 3 Leigh 686 ; Lillard v. Reynolds, 3 Ired. 37) ; Hearne v. Kevan et al., 2 Ired. Eq. 34 ; Chester et al. v. Greer et al., 5 Humph. 26 ; Hudson, Exr., &c., v. Reeve, 1 Barb. 89; Rea v. Rhodes, 5 Ired. Eq. 148; Cox V. McKinney, 32 Ala. 461; Ed- ney v. Bryson, 2 Jones L. 365 ; and he may by imjjlication assent to a legacy to him- self: Hearne v. Kevan et al., 2 Ired. Eq. 34 ; Hudson, Exr., &c., v. Reeve, 1 Barb. 89 ; Walker v. Walker, 26 Ala. 262. In accordance with these principles, it has been held, that the mere acquiescence of the executor, without any formal consent, is sufficient, where the subject-matter of the legacy, is in the hands of the legatee, at the death of the testator : Andrews, Exrx., V. Hunneman et al., 6 Pick. 126; Lowry «;. Mountjoy, 6 Call 55 ; Finch et al. V. Rogers, 11 Humph. 583; in which it was said, that, " In such case, the legatee being actually in possession, and that, too, by the act of the testator, in his lifetime, the reason of the rule, which requires the executor's assent, does not seem to apply. The executor, in the case stated, would not be chargeable with such chattel ; it would not be assets in his hands; nor could he maintaifa any action against the legatee for its recovery, except in the event of a deficiency of assets, to discharge the debts of the estate, after having fully administered the residue of his personal estate." So, too, the assent of the execu- tor to a specific legacy, will be presumed, after possession by the legatee, for a con- siderable time : Alexander v. Williams, 2 Hill (S. C.) 522 ; White v. White, 4 Dev. 257 ; Merritt v. Windley, 3 Id. 399 ; White V. White, 4 Dev. & Bat. 401 ; Birney v. OF A WILL. 328 satisfied that there is sufficient to pay the debts of the deceased *without having recourse to the property so specifically given. (3/) L -J If the testator should appoint as his sole executor an infant under the age of twenty-one years, such infant will not be allowed to exercise his [y) Toller's Executors, bk. 3, s. 2 ; Williams on Executors, pt. 3, bk. 3, cli. 4, s. 3. Richardson, 5 Dana 424 ; Squires v. Old, 7 Humph. 454; Rea v. Rhodes, 5 Ired. Eq. 148 ; Jordan v. Thornton et al., 7 Geo. 517 ; Lottt'. Meacham, 4 Fla. 144 ; Finch et al. V. Rogers, 1 1 Humph . 563 ; Gums v. Cape- hart, 5 Jones Eq. 242 ; and an assent to a legacy for life, is effectual as to the subse- quent interest bequeathed by the will : Conner v. Satchwell, Admr., 4 Dev.. & Bat. 76 ; Ingram v. Terry et al., 2 Hawk. 122; Hearne v. Kevan et al., 2 Ired. Eq. 34 ; Acheson et al., v. McCombs et al., 3 Id. 554 ; Rea v. Rhodes, 5 Ired. Eq. 148 ; Jordan v. Thornton et al., 7 Geo. 517; Lott V. Meacham, 4 Fla. 144; Finch et al. V. Rogers, 11 Humph. 563 ; Judge of Pro- bate V. Alexander, 31 Miss. 297 ; Parker V. Chambers, 24 Geo. 518; Thrasher v. Ingraham, 32 Ala. 645 ; Gay v. Gay, 29 Geo. 549. The executor may give his consent, within the time allowed by law for the [layment of debts : Thomson v. Schmidt, J Hill (S. C.) 156; and after that assent, a creditor of the testator, can no longer pursue the property in the hands of the kgatee, through a judgment and execu- tion against the executor ; but he rriay still follow the specific legacies, by mak- ing all the legatees parties to a bill in ciiuity : Burnley v. Lambert, 1 Wash. oOL); Alexanders. Williams, 2 Hill (S.C.) 522; Lyon v. Vick et al., 6 Yerg. 42; Nunn V. Owens, 2 Strob. 101 ; Buchanan I'. Pue, Jr., Exr., 6 Gill 112; and where an assent has once been given, an execu- tor cannot, in general, follow the property in the hands of the legatee, even though tliere should be a deficiency of assets to pay debts, unless he has taken a refund- ing bond, and even then, in the case of a specific legacy, he cannot recover the thing, but merely the value : Ross v. 27 Davis, 17 Ark. 113; but it has been held, that where the assent was given upon condition that a refunding bond should be delivered, and that condition was not complied with, the administrator might recover from the distributee : Howell v, Johnston, 4 Jones L. 502. Where an executor is refractory, and refuses to confirm the title of a legatee, a court of equity will compel him : Lark et al. V. Linstead et al., 2 Md. Ch. Decs. 162 ; Huckabee, Admr., v. Swoope, 20 Ala. 491; Crist v. Crist, Admr., 1 Cart. 570; Vaughan v. Vaughan, 30 Ala. 329. The opinion of Judge Nelson in the case of McClanahan, Admr., v. Davis et al., 8 How. 178, may be here quoted, as contain- ing a summary of the law on this subject : " The legatee, whether general or specific, or whether of chattels real or personal, must first obtain the executor's assent to the legacy, before his title can become perfect. He has no authority to take pos- session of the legacy without such assent, although the testator by the will expressly direct that he shall do so. . . . But the law has prescribed no particular form by which the assent of the executor shall be given, and it may be, therefore, either express or implied. It may be inferred from indirect expressions, or particular acts ; and such constructive permission shall be equally available. An assent to the interest of tenant for life of a chattel, will inure to vest the interest of the re- mainder, and e converso, as both constitute but one estate. So an assent to a bequest of a lease for years, carries with it an as- sent to a condition or contingency annexed to it; and it may be implied, from the possession of the subject bequeathed, by the legatee, for any considerable length of time." 329 OF PERSONAL ESTATE GENERALLY. office during his minority : but during this time the administration of the goods of the deceased will be granted to the guardian of the infant, or to such other person as the Court of Probate may think fit.(z) Such person is called an administrator durante minore cetate.{af If a married woman should appoint an executrix, she cannot accept the office without the consent of her husband,(6) and having accepted it with his consent, she is unable, without his concurrence, to perform any act of adminis- tration which may be to his prejudice ; whilst he, on the other hand, may release debts due to the deceased or make an assignment of the deceased's personal estate, without his wife's concurrence ;(c) for as the general rule of law is that a husband and wife are but one person, the power, and with it the responsibility, are vested in the husband. Nevertheless, a married woman, being an executrix, may make a will without the consent of her husband, confined to the personal estate of which she is executrix ',{d) and the executor of her will so made will be the executor of the original testator. For it is a general rule, (2) Stat. 38 Geo. III. c. 87, s. 6. (a) Williams on Executors, pt. 1, bk. 5, ch. 3, s. 3. {b) Ibid. pt. 1, bk. 3, ch. 1. (c) Ibid. pt. 3, bk. 1, ch. 4; 5 Rep. 27 b. [d) Ibid. pt. 1, bk. 2, ch. 1, s. 2. 1 By the 23d section of an act of the legislature of Pennsylvania, of the 15th of March, 1832, it is enacted, that "Whenever all the executors named in any last will and testament, or all the persons entitled, as kindred, to the admin- istration of any decedent's estate, shall happen to be under the age of twenty-one years, it shall be lawful for the register to grant administration .... to any other fit person or persons, suVjject nevertheless to be terminated, at the instance of any of the said minors, who shall have arrived at the full age of twenty-one years." Purd. Dig. (1861), p. 277, sec. 29. A similar provision is in force in Massa- chusetts : " When a person appointed exe- cutor is under the age of twenty-one years, at the time of proving the will, administration may be granted with the will annexed, during his minority, unless there be another executor who shall ac- cept the trust, in which case, the estate shall be administered by such other exe- cutor, until the minor shall arrive at full age, when he may be admitted as joint executor with the former, upon giving bond as before provided." Gen. Stats, of Mass. (1860), p. 482, sec. 7. In the State of New York it is provided, that " If any person, who would otherwise be entitled to letters of administration, as next of kin, or to letters of administration with the will annexed, as residuary or specific legatee, shall be a minor, such letters shall be granted to his guardian, being in all respects competent, in prefer- ence to creditors or other persons." Rev. Stats, of N. Y. (5th ed.), vol. iii. p. 160, sec. 33. And see also, Gen. Stats. N. H. (1867), p. 361, sec. 3 ; Thomps. Dig. of the Laws of Fla., p. 195, sec. 2; Rev. Stats, of Vt. (1839), pp. 260, 261, sec. 6 ; Rev. Stats, of Me. (1857), pp. 411, 412, sec. 15; Laws of Del., Rev. Code of 1852, p. 297, sec. 7; 1 • Rev. Stats, of Ohio (1860), p. 568, sec. 8 ; Stats, of Min., p. 432, sec. 6 ; Gen. Stats, of Kansas, p. 431, sec. 8. And see Watson v. Warnock, 3 Geo. 694. OF A WILL. 329 that if an executor should die before having completely administered the estate of his testator, the executor appointed by the will of such execu- tor will be entitled to complete the distribution of the estate of the former testator. (e)^ *The testator however may, and usually does, appoint more r^ggQ-i than one person his executors. In this case the law regards all the co-executors as one individual person ; and consequently any one of the executors of full age may, during the life of his companions, perform, without their concurrence all the ordinary acts of administration, such as giving receipts, making payments, and selling and assigning the pro- perty.(/) But all the executors, infants included, must join in bringing (e) Bla. Com. 506. And it seems that he is bound to do so : Brooks v. Haynes, Law- Rep. 6 Eq. 25, M. R. (/) Shep. Touch. 484. 1 The statute law in the United States, generally, is, that an executor of an executor, cannot be the executor of the first testator. Thus, in New York, "No executor of an executor, shall, as such, be authorized to administer on the estate of the first testator ; but, on the death of the sole or surviving executor of any last will, letters of administration, with the will annexed, of the assets of the first testator left unadministered, shall be issued," &c. Rev. Stats, of N. Y. (5th ed.), vol. iii., p. 156, sec. 17. In Massachusetts, " The executor of an executor shall not, as such, administer the estate of the first testator," Rev. Stats, of Mass. (1860), p. 482, sec. 9. In Pennsylvania, " Whenever a sole exe- cutor, or the survivor of several executors shall die, leaving goods or estate of his testator unadministerfid, the register having . jurisdiction, shall notwithstanding such ex- ecutor may have made his last will and testa- ment, and appointed an executor or execu- tors thereof, grant letters of administration of all such goods and estate, in the same manner as if such executor had died without having made any testament or last will ; and the executor of such deceased executor shall in no case be deemed executor of the first testator." Purd. Dig. (1861), p. 275, sec. 16. And see 2 Matthews's Dig. (1857), p. 558, sec. 8 ; Rev. Stats, of Vt. (1839), p. 262, sec. 12 ; Laws of Del., Rev. Code of 1852, p. 297, sec 10 ; 2 Compil. Laws of Michigan p. 874, sec. 12 ; Rev. Stats, of Maine (1857), p. 412, sec. 18; 1 Rev. Stats, of Ohio (1860), p. 568, sec. 10 ; 2 Rev. Stats, of Ky. (1860), p. 499, sec. 11; Nix. Dig. N.J. (1868), p. 309, sec. 38; Gen. Stats. N. H. (1867), p. 361, sec. 8; Gen. Stats, of Kansas, p. 432, sec. 10. But in South Carolina it has been en- acted that " executors of executors shall have actions of debt, account, and of goods carried away, of the first testator, and execution of judgments obtained by, or recognisances made to the first testator, in any court of record, in tlie same man- ner as the first testator should have had if he were in life, as well of actions of the time past, as of the time to come ; and the same executors of executors, shall answer to others, of as much as they have re- covered of the goods of the first testator, as the first executors should do if they were in life :" Rev. Stats, of S. C, vol. ii., p. 439. And similar provisions are in force in North Carolina : Code of N. C. (1855), p. 290, sees. 42 and 43. 330 OF PERSONAL ESTATE GENERALLY. actions respecting the estate. (. Liv- ingston, Exr., 2 Johns. Cas. 97 ; Sorelle's Exrs. V. Sorelle, 5 Ala. 245; Stagg v. Beekman, 2 Edw. Ch. 89; Zeigler et al., Exrs., V. Eckhart, 6 Penn. St. 13 ; Lewis v. Thompson, 2 Richard. Eq. 75 ; Gallego v. Gallego's Exr., 2 Brockenb. 291. both just and generous, where the interest of third persons are not affected. And courts of justice will now lay hold of slight circumstances to get rid of the rule. Legacies are considered as gratuities, and are always construed favorably. If they be less than the sum due, payable on a contingency, or a future day, on these, and the like circumstances, they will be con- strued as additional bounties, and not as satisfactions. And, although the contin- gency does not actually happen, and the legacy thereby becomes due, yet it shall not go in satisfaction of the debt, because a debt which is certain, shall not be merged or lost by an uncertain and con- tingent recompense. For, whatever is to be a satisfaction of a debt, ought to be so in its creation, and at the very time it is given, which such contingent provision is not. . . . According to the most modern decisions, it is presumed, that the legacy must be, in all respects, ejusdem generis, to cause a satisfaction of the debt, and an apparent intention, in the will, that the testator meant it as such." See, also, to the same effect: Smith, Exr., v. Marshall, 1 Root 159; Strong v. Williams, Exr., 12 Mass. 392 ; Williams v. Crary, 5 Cowen 370, s. c. 8 Id. 246, and 4 Wend. 449; Byrne et al. v. Byrne et al., Exrs., 5 S. & R. 54; Edelen's Exrs. v. Dent's Admrs., 2 Gill & Johns. 185; Fitch v. Peckham, OF A WILL. 346 portion either in part or in whole, notwithstanding such legacy may be less than the portion, or payable at a different period. (^) A r^.q 171 *bequest of the residue, or of a share in the residue, of the testa- tor's estate, will also be considered as a satisfaction pro tanto.(ti) The presumption of satisfaction is indeed so strong, that it is difficult to say what circumstances of variation between the portion and the legacy will be sufficient to entitle the child to both. By a statute of George the Second, commonly called the Mortmain Act, (a;) no hereditaments, nor any money, stock in the public funds, or other personal estate whatsoever to be laid out in the purchase of here- ditaments, can be conveyed or settled for any charitable uses (with a few exceptions), otherwise than by deed, with certain formalities mentioned in the act.(t/) And all gifts of hereditaments, or of any estate or inter- est therein, or of any charge or incumbrance affecting or to affect any hereditaments, or of any personal estate to be laid out in the purchase of any hereditaments, or of any estate or interest therein, or of any charge or incumbrance affecting or to affect the same, to or in trust for any charitable uses whatsoever, are rendered void if made in any other form than by the act is directed. (2) This has been very strictly con- strued, and has been held to prohibit the bequest for charitable pur- poses of personal estate in any degree savoring, as it is said, of the realty. Thus, it has been decided that money secured on mortgage of real estate,(a) shares in a canal navigation, (i) *and leasehold r^oio-i estates,(c) cannot be left by will for any charitable purpose. But more recently, the strictness of the courts appears to have relaxed ; and it has lately been held that money secured by a policy of assurance, although the company may invest their funds in real estates,(£?) and shares in a banking company authorized to invest money on mortgage of real estates,(e) or in a mining company,(/) are not within the statute. {t) Hinchcliffe v. Hinchcliffe, 3 Yes. 516 ; Weall v. Rice, 2 Riiss. & My. 251. {u) Rickman v. Morgan, 2 B. C. 0. 394; Earl of Glengall ». Barnard, 1 Keen 769; affirmed 2 H. of L. C. 131 ; Beckton v. Barton, 27 Beav. 99, lOG ; Montefiore v. Guedalla, 1 De G., F. & J. 93; Coventry v. Chichester, 2 H. & Mill. 149; 2 De G., J. & S. 336, reversed Law Rep., 2 H. of L. 71. (x) Stat. 9 Geo. IL c. 36, s. 1. (/) See Principles of the Law of Real Property 55, 1st ed. ; 58, 2d ed, ; 60, 3d and 4th eds. ; 63, 5th ed. ; 65, 6th ed. ; 67, 7th ed. ; 66, 8th ed. (z) Sect. 3. (a) Attorney-General v. Meyrick, 2 Ves. sen. 44. (6) House V. Chapman, 4 Ves. 542. (c) Attorney-General v. Graves, Amb. 155. (d) March v. Attorney-General, 5 Beav. 433. (e) Ashton v. Lord Langdale, 4 De G. & Sm. 402 ; s. c. 15 Jur. 868 ; Myers v. Peri- gal, 2 De G., M. & G. 599. (/) Hayter v. Tucker, 4 Kay & J. 243. See Morris v. Glynn, 27 Beav. 218. 348 OF PERSONAL ESTATE GENERALLT. So railway scrip, (//) and shares in gas companies, (7<) clocks, railways and canals,(/) although such shares may not be expressly declared by the acts establishing tlie undertakings to be personal estate, are now held to be unaffected by the statute. But debentures, by which such under- takings with their rates and tolls are mortgaged, have been held to be within the act ;{k) though such debentures as are mere bonds or covenants to pay money, and not mortgages, are clearly unaffected by it.(Z) AVith regard to the bequest of money to be laid out in the purchase of here- ditaments, it ])as been decided that a bequest of money to be laid out in building on land already in mortmain is good ;(wi) but if some land already in mortmain be not distinctly referred to, a r*^-lQ1 Acquest of money for building for any charitable purpose *will be void, as implying a direction for the purchase of land on which to build. (n) And it has also been held that a gift is void Avhich tends directly to bring fresh lands into mortmain, as a gift of money to a charity on condition that other persons provide the land.(o) This however has been overruled. (j)) And if the purchase of land be not involved in the gift, there is no law which prevents the be- quest of purely personal property to any amount for charitable pur- poses.^ A bequest to a charity ought, therefore, to be directed to be paid out of such part of the testator's personal estate as he may lawfully bequeath for such a purpose. For if this precaution should be neglected, (g) Ashton v. Lord Langdale, ubi supra. (h) Thompson v. Thompson, 1 Coll. 381 ; Sparling v. Parker, 9 Beav. 450. (i) Hilton V. Giraud, 1 De G. & Sm. 183 ; Sparling v. Parker, ubi supra; WalkeV v. Milne, 11 Beav. 507 ; Ashton v. Lord Langdale, ubi supra ; Edwards v. Hall, 6 De G., M. & G. 74 ; Linley v. Taylor, 1 GifF. 67 : affirmed, 2 De G., F. & J. 84. [k) Ashton v. Lord Langdale, ubi supra ; Re Langham's Trust, 10 Hare 446. [I) Ashton V. Lord Langdale, ubi supra. (m) Glubb V. Attorney-General, Amb. 373. («) Pritchard v. Arbouin, 3 Russ. 456 ; Smith v. Oliver, 11 Beav. 481 ; In re "Wat- mough's Trusts, V.-C. M., Law Rep. 8 Eq. 272. (o) Attorney-General v. Davies, 9 Ves. 535; Mathew v. Smith, 2 Keen 172; Trye v. Corporation of Gloucester, 14 Beav. 173. . {p) Philpott V. St. George's Hospital, 6 H. of L. C. 338. 1 By the 11th section of an act of the leg- by deed or will, attested by two credible, islature of Pennsylvania (commonlj' called and, at the time, disinterested witnesses) the " Price Act," from the name of its at least one calendar month before the originator), passed 26th April, 1855, it is decease of the testator or alienor ; and all provided, that "No estate, real or per- dispositions of property contrary hereto, sonal, shall hereafter be bequeathed, de- shall be void, and go to the residuary lega- vised, or conveyed, to any body politic, tee or devisee, next of kin, or heirs, or to any person, in trust for religious or according to law," etc. Purd. Dig. (1861), charitable uses, except the same be done p. 1018, sec. 22. OF A WILL. 349 the charitable legacies will fail in the proportion which the personal assets savoring of the realty may bear to those which are purely per- sonal. (^) Other bequests which require some care are those to illegitimate children. It has been held that a bequest to the future illegitimate children of a particular woman is void as tending to encourage immo- ra.lity.(r) And it is clear that a bequest to the future illegitimate child- ren of a particular man is also void, as the courts cannot enter into the inquiry which would be necessary to identify such children. («) A child prima facie means a legitimate child ; a bastard is considered by *thelaw as nullius films. Accordingly, an illegitimate child can r*qcA-| never take under a gift to children, unless it be clear, upon the terms of the will, or according to the state of facts at the making of it, that legitimate children never could have taken. (i) An illegitimate child may, however, take under any gift in which he is sufficiently iden- tified as the object of the testator's bounty. Thus, a bequest to the child of which a woman is now pregnant is good.(M) And if illegitimate child- ren have acquired the reputation of being the children of the testator or any other person, and it appear by necessary implication on the face of the will that such persons were intended in a bequest to children, they will be entitled, not only on account of their being children, but on account of their reputation as such.(a;)^ After payment of the testator's debts and legacies, the residue of his personal estate must be paid over to the residuary legatee, if any, named (g) Attorney-General v. Tyndall, 2 Eden 207 ; s. c. 2 Amb. 614; Hodson v. Black- burn, 1 Keen 273 ; Philanthropic Society v. Kemp, 4 Beav. 581 ; and see Robinson v. Geldard, 3 Macn. & G. 735 ; Tempest v. Tempest, 7 De G., M. & G. 470 ; Beaumont v. Oliveira, LL. J., Law Rep. 4 Chan. 309. (r) Medworth v. Pope, 27 Beav. 71. See also 2 Jarm. Wills, 153, 202, 2d ed. ; 204, 3d. ed. (s) Wilkinson v. Adams, 1 Ves. & B. 466. (t) Cartright v. Vawdry, 5 Ves. 530 ; Godfrey v. Davis, 6 Ves. 43 ; Harris v. Lloyd, 1 T. & Russ. 310 ; Bagley v. Mollard, 1 Russ. & My. 581 ; Dover v. Alexander, 2 Hare 275 ; Re Overhill's Trust, 1 Sm. & G. 362. (m) Gordan v. Gordan, 1 Meriv. 141. (x) Wilkinson v. Adam, 1 Ves. & B. 422 ; Gill v. Shelley, 2 Russ. & My. 336 ; Mere- dith V. Farr, 2 You. & Col. 525. 1 By the 3d section of an Act of the shall respectively have capacity to take Legislature of Pennsylvania, approved the or inherit from each other personal estate 27th of April, 1855, ""illegitimate children, as next of kin, and real estate as heirs in shall take and be known by the name of fee simple," &c. Purd. Dig. (18(31), p. their mother, and they and their mother 565, sec. 40. 350 OF PERSONAL ESTATE GENERALLY. in the will. A will of personal estate has always been considered as speaking from the death of the testator ; and it is now expressly enacted, that every will shall be construed, with reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.(y) Hence, it follows that all personal property acquired by the testator between the time of making his will and his decease will pass under it. If any legacy should lapse by the death of r*Q'n *^^^® legatee in the testator's lifetime, or should fail from being contrary to law, it will fall into the residue, and belong to the residuary legatee. And a legacy will lapse by the death of the legatee in the testator's lifetime, although given to the legatee, his executors, administrators and assigns,(3) for these words are merely inserted in analogy to the limitation of real estate to a man and his heirs. If a bequest be made to two or more as joint tenants, and one of them die in the lifetime of the testator, his share will, not lapse, but will survive to the others. (a) But if the bequest be to two or more in common, and one of them die in the testator's lifetime, his share will lapse ;(6) unless the bequest be made to a class, as to the children of A. in equal shares, in which case all who answer that description at the testator's decease,((?) and also (if the period of distribution be postponed by the will) all who come into being before such period, (f?) will be entitled to divide the bequest amongst them. It is, however, provided by the recent act for the amendment of the laws with respect to wills, that where any person, being a child or other issue of the testator, to whom any personal estate shall be bequeathed for any interest not determinable at or before the death of such person, shall die in the testator's lifetime leaving issue, and any such issue shall be living at the death of the testator, such bequest shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless [-♦qco-i a contrary intention shall appear by the will.(e)^ *The effect of this provision is curious. If the legatee had died immediately (y) Stat. 7 Will. IV. & 1 Vict. c. 26, s. 24. (z) Elliott V. Davenport, 1 P. Wms. 83. (a) Morley v. Bird, 3 Ves. 628, 631. (b) Bagwell V. Dry, 1 P. Wms. 700 ; Page v. Page, 2 P. Wms. 489 ; Barber v. Barber, 3 Myl. & Cr. 688 ; Bain v. Lescher, 11 Sim. 397. (c) Viner v. Francis, 2 Cox 190 ; 2 Jarm. Wills 74 ; 126, 2d ed. ; 142, 3d ed. ; Lee V. Pain, 4 Hare 250. (d) Ayton v. Ayton, 1 Cox 327 ; 2 Jarm. Wills 75 ; 127, 2d ed. ; 143, 3d ed. (e) Stat. 7 Will. IV. & 1 Vict. c. 26, s. 33. 1 Statutes resembling this provision, are but in many of them, these enactments are in force in most of the States of the Union ; more comprehensive than those prescribed OF A WILL. 352 after the testator, leaving a will, it is evident that the estate bequeathed to him would have passed under his will. It has been decided, there- by the laws of England, including devises as well as legacies, within the letter of the acts, and embracing other than lineal de- scendants. Thus, in New Hampshire, " The heirs in the descending line, of any devisee or legatee deceased before the testator, shall take the estate devised or bequeathed, in the same manner the legatee or devisee would have taken the same, if he had sur- vived." Gen. Stats, of N. H. (1867), ch. 174, p. 358, sec. 12. The same is true of the laws of Pennsylvania, which also con- tain provisions in favor of brothers and sisters and their children, as regards such devises or legacies; as will be seen by a reference to Purd. Dig. (1861), p. 1017, sees. 14 and 15, which are in these words: "No devise or legacy in favor of a child, or other lineal descendant of any testator, shall be deemed or held to lapse, or become void, by reason of the decease of such devisee or legatee, in the lifetime of the testator, if such devisee or legatee shall leave issue surviving the testator ; but such devise or legacy, shall be good and available in favor of such surviving issue, with like effect as if such devisee or legatee had survived the testator, saving always to every testator the right to direct other- wise. No devise or legacy hereafter made in favor of a brother or sister, or the chil- dren of a deceased brother or sister of any testator, such testator not leaving any lineal descendants, shall be deemed or held to lapse, or become void, by reason of the decease of such devisee or legatee, in the lifetime of the testator, if such devisee or legatee shall leave issue sur- viving the testator ; but such devise or legacy, shall be good and available in favor of such surviving issue, with like effect as if such devisee or legatee had survived the testator, saving always to every testator the right to direct other- wise." In Georgia, it is enacted, that " From and after the passage of this act, where any person named as legatee in the will of any other person, shall die before the tes- tator, leaving issue that shall be alive at the death of such testator, the legacy, pro- vided the same be absolute, and without remainder or limitation, shall not lapse as heretofore, but shall vest in such issue." T. R. R. Cobb's New Dig. of the Laws of Geo. (1851), vol. i., p. 34£, sec. 194. In some of the states, it is provided in addition to what has been already stated, that the devise or legacy so left to a legatee or devisee who has died, shall go to his child or children, as if he had died intes- tate ; and in New Jersey, it is expressly said, that this shall be the case, even where the deceased devisee or legatee has left a wilL; for, to quote the words of the act, " Whensoever any estate of any kind, shall or may be devised or bequeathed, by the testament and last will of any testator or testatrix, to any person being a child or other descendant of such testator or tes- tatrix, and such devisee or legatee shall, during the life of such testator or testa- trix, die testate or intestate, leaving a child or children, or one or more descend- ants of a child or children who shall sur- vive such testator or testatrix, in that case, such devise or legacy to such person so situated as above mentioned, and dying in the lifetime of the testator or testatrix, shall not lapse, but the estate so devised or bequeathed, shall vest in such child or children, descendant or descendants, of such legatee or devisee, in the same man- ner, as if such legatee or devisee had sur- vived the testator or testatrix, and had died intestate," &c. Nixon's Dig. of the Laws of N. J. (1868), pp. 1031, 1032, sec. 22. For such differences as have been noticed, existing between the statutes of the several States, see Rev. Stats, of Vt. (1839), pp. 257, 258, sec. 28; Laws of Tenn. (Supplem. 1846), p. 147, sec. 3 ; Dig. of the Stats, of Ark., p. 991, sec. 14; Pate V. Pate, 40 Miss. 750; Paschall's Annot. Dig. Laws of Texas, p. 914, art. 5365; Matthew's Dig. (Va.), pp. 874, 875, sec. 13 ; 352 OF PERSONAL ESTATE GENERALLY. fore, that the will of the legatee shall, after his death, operate on the estate bequeathed to liim in the same manner as if he had been living.(/) This provision has been held to apply to a testamentary appointment under a general power of appointment,((/) but to be inapplicable to a testamentary appointment under a power to appoint amongst the testator's children :(h) and it docs not extend to gifts to children or issue as a class, and not individually. (/) If there Avere no residuary legatee, the residue of the testator's personal estate, after payment of debts and legacies formerly belonged to the executor for his own benefit, unless a contrary intention appeared from his being left executor in trust,(A;) or from his having a legacy left him for his trouble,(Z) or from other circumstances. (m) But by a modern statute,(?i) it is enacted, that when any person shall die, having by will or codicil appointed any executor, such executor shall be deemed by courts of equity to be a trustee for the person or persons (if any) who would be entitled to the estate under the Statute of Distributions, in respect P^orq-i of any residue not expressly disposed of, unless it shall *appear by the will or any codicil thereto,(o) that the person so appointed executor was intended to take such residue beneficially. The Statute of Distributions is that under which the personal estate of any one dying intestate is distributed between his widow and next of kin. An account of this statute will be found in the next chapter. (/) Johnson v. Johnson, 3 Hare 157. Probate duty attaches: Perry's Executors v. The Queen, Law Rep. 4 Ex. 27. (g) Eccles v. Cheyne, 2 Kay & J. 676. (h) Griffiths v. Gale, 12 Sim. 354 ; Freeland v. Pearson, M. R., 36 L. J. N. S. Chan. 374. (i) Browne v. Hammond, Johnson 210. Ik) Pring v. Pring. 2 Vern. 99; Bagwell v. Dry, 1 P. Wms. 700. {l) Rachfieldf. Careless, 2 P. Wms. 158. {m) Mullen v Bowman, 1 Coll. 197. (re) Stat. 11 Geo. IV. & 1 Will. IV. c. 40. (o) Love v. Gaze, 8 Beav. 472. Rev. Stats, of N. Y. (5th ed.), vol. iii., p. (N. C), Eq. 163 ; Rev. Stats, of Wis. (1858), 146, sec. 47; Md. Code, vol. i., p. 686, art. p. 581, sec. 29; 2 Compil. Laws of Mich. 93, sec. 304 ; Rev. Stats, of Maine (1857), (1857), p. 868, sec. 28 ; Rev. Stats, of R. I. p. 454, sec. 10; Rev. Code of N. C. (1855), (1857), p. 358, sec. 12; Geu. Stats, of Mass. p. 611, sec. 28; Scales v. Scales, 6 Jones (I860), p. 479, sec. 28. ♦CHAPTER IV. [*354] OF INTESTACY. The ecclesiastical courts until recently had jurisdiction not only over the wills of testators, but also over the goods of persons dying intestate. This jurisdiction, though of long standing, appears to have been at first gradually acquired. In early times the clergy, being possessed of almost all the learning, appear to have been the principal framers of wills. The power they thus acquired was exercised for their own benefit, every man being expected, on making his will, after bequeathing to his lord his heriot, in the next place to remember the church. (a) If, however, a man should have died intestate, without opportunity of making this provision, the distribution of his goods devolved on the church, together with his friends, the lords first having taken his heriot.((^) The wife and the children were entitled to their shares ; and that part of the goods Avhich the intestate had power to dispose of by his will (called the portion of the deceased) was applied by the church in pios iisus. This application to pious uses appears to have been as follows : in the first place, the bequest, which it was to be presumed the intestate would have made to the church, was retained, and the residue was then disposed of in paying the debts of the deceased, and distributed amongst his wife and children, his parents and their relatives. That this was the case appears from the complaints' which were made by the clergy of those days, of the interference of the temporal *lords in cases of intestacy, whereby the distribution r*^^^-] of the effects in the manner pointed out was prevented. (c) The clergy themselves, however, do not appear to have been always free from blame; for they are accused of having frequently taken the whole of the intestate's portion to themselves, making no distribution, or at least an undue one, amongst the creditors and relatives of the de- (a) Glanville, lib. 7, c. 5 ; Bract. 60 a ; Fleta, lib. 2, c. 57. (6) Bract. 60 b ; Fleta, ubi supra. (c) Matthew Paris 951, Adrlitamenta 201, 204, 209 (Wats's ed., London, 1640) ; Con- stitutions of Boniface, Constitutiones Provinciales 20, at the end of Myndcwood's Pro- vinciale (Oxon. 1679), recited also in a Constitution of Archbishp Stratford (Lynd. Prov. lib. 3, tit. 13). See Gent. Mag. New Series, vol. ii., 355, 474. See also Dyke v. Walford, Privy Council, 12 Jurist 839. 355 OF PERSONAL ESTATE GENERALLY. ceased ;{d) and in order to remedy this evil, it was enacted in the reign of Edward I., by one of the very few statutes then passed relating to personal estate,(^) that the ordinary should be bound to answer the debts of an intestate, so far as his goods would extend, in the same manner as the executors would have been bounden if he had made a testament. The right of the creditor was thus clothed with a remedy ; for, under this statute, an action at law might be brought by the creditor against the ordinary for the payment of his debt :(/) but the right of the rela- tives to the surplus still remained undefined. The duty of administering intestates' effects was not, .as may be sup- posed, usually performed by the bishops in person. For this purpose they usually appointed an administrator ; but, as personal property rose in importance, it became desirable that this administrator should not be considered as the mere agent of the bishop, but should himself have a locus standi, in the king's courts. It was accordingly enacted by a stat- ute of the reign of Edward III.,((7) that where a man died intestate the j-^or^-i *ordinaries should depute the next and most lawful friends of the deceased to administer his goods, which persons so deputed should have action to demand and recover as executors the debts due to the deceased, to administer and dispend for the soul of the dead; and should answer also, in the king's courts, to others to whom the deceased was holden and bound, in the same manner as executors should answer. By a subsequent statute(A) administration might be granted to the widow of the deceased, or to the next of his kin, or to both, as by the discretion of the ordinary should be thought good. The widow was usually preferred to the next of kin in the grant of administration •,{{) and a joint grant was seldom made, so seldom, indeed, that the powers of co-administrators appear to be still a matter of doubt.(y) In grant- m)^ (to) Williams on Executors, pt. 1, bk. 5, ch. 2, s. 1. (n) Stat. 20 & 21 Vict. c. 11, amended by stat. 21 & 22 Vict. c. 95. (o) Ante, p. 332. {p) Stat 21 & 22 Vict. c. 95, s. 19. 1 In the State of New York, "Adminis- tration, in case of intestacy, shall be grant- ed to 'the relatives of the deceased, who would be entitled to succeed to his per- sonal estate, if they, or any of them, will accept the same, in the following order: First, to the widow ; second, to the chil- dren ; third, to the father ; fourth, to the brothers ; fifth, to the sisters ; sixth, to the grandchildren ; seventh, to any other of the next of kin, who would be entitled to share in the distribution of the estate. If any of the persons, so entitled, be mi- nors, administration shall be granted to their guardians ; if none of the said rela- tives or guardians will accept the same, then to the creditors of the deceased ; and the creditor first applying, if otherwise competent, shall be entitled to a prefer- ence ; if no creditor apply, then, to any other person or persons legally compe- tent ; but in the city of New York, the public administrator shall have preference, after the next of kin, over creditors and all other persons. And in the case of a mar- ried woman dying intestate, her husband shall be entitled to administration, in preference to any other person, as herein- after provided. " Where there shall be several persons, of the same degree of kindred to the intes- tate, entitled to administration, they shall be preferred in the following order : First, males to females ; second, relatives of the whole blood, to those of the half blood ; third, unmarried women, to such as are married ; and when there are several per- sons equally entitled to administration, the surrogate may, in his discretion, grant letters to one or more of such persons ;" 3 Rev. Stats, of N. Y. (5th ed.), pp. 158, 159, sees. 21 and 28. In Massachusetts, " Administration of the estate of an intestate, shall be granted to some one or more of the persons here- inafter mentioned ; and they shall be re- spectively entitled thereto, in the follow- ing order, to wit : " First, his widow, or next of kin, or both, as the judge of probate shall think fit ; and if they do not voluntarily either take or renounce the administration, they shall, if resident within the county, be cited by the judge for that purpose. " Secondly, if the persons so entitled to administration, are incompetent, or evi- dently unsuitable for the discharge of the trust, or if they neglect, without any sutfi- cient cause, for thirty days after the death of the intestate, to take administration of his estate, the judge of probate shall com- mit it to one or more of the principal creditors, if there be any competent, and willing to undertake the trust. " Thirdly, if there be no such creditor, the judge shall commit administration to such other person as he shall think fit ; provided, however, "Fourthly, that if the deceased were a married woman, administration of her estate shall in all cases be granted to her husband, if competentand willing to under- 357 OF PERSONAL ESTATE GENERALLY. The administrator, when appointed, has the same right to and power over all the personal estate of the intestate as his executors would have had if he had made a will,(7) and this right and power relate back to the time of the intestate's decease.(r) The same duty also devolves upon the administrator of paying the debts in the first place. The provisions of the recent statutes for protection of executors in distributing the [q) Williams on Executors, pt. 2. bk. 1, ch. I. (r) Tharpe v. Stalhvood, 5 M. & G. 7G0 (E. C. L. R. vol. 44) ; Foster v. Bates, 12 M. & W. 226 ; Welchman v. Sturgis, 13 Q. B. 552 (E. C. L. R. vol. GG). take the trust, unless she shall, by force of a marriage settlement, or otherwise, have made some testamentary disposition of her separate estate, or some other pro- vision, which shall render it necessary or proper to appoint some other person to administer her estate ; and provided, also, "Fifthly, that if the deceased leaves no widow or next of kin in this State, ad- ministration^f his estate shall be granted to a public administrator in preference to creditors:'' Gen. Stats, of Mas*. (1860), p. 483, I 1. In Pennsylvania, "Whenever letters of administration are by law necessary, the register having jurisdiction shall grant them in such form as the case shall require, to the widow, if any, of the decedent, or to such of his relations or kindred, as by law may be entitled to the residue of his personal estate, or to a share or shares therein after payment of his debts, or he may join with the widow in the admin- istration, such relation or kindred, or such one or more of them, as he shall judge will best administer the estate, pre- ferring always of those so entitled, such as are in the nearest degree of consan- guinity with the decedent, and also pre- ferring males to females ; and in case of the refusal or incompetency of every such person, to one or more of the principal creditors of the decedent, applying there- fore or to any fit person at his discretion ; provided, that if such decedent were a married woman, her husband shall be entitled to the administration in prefer- ence to all other persons : and provided further, that in all cases of an administra- tion with the will annexed, where there is a general residue of the estate bequeathed, the right to administer shall belong to those having the right to such residue, and the administration in such case shall be granted by the register, to such one or more of them as he shall judge will best administer the estate." Purd. Dig. (1861), p. 277, sec. 28. For the statutes of the several States on this sqbject, see Gen. Stats, of N. H. (1867), p. 360, ch. 176, sec. 2; Stats, of S. C, vol. i., pp. 108, 109, sec. 16 ; Caru- thers & Nicholson's Stat. Laws of Tenn., p. 72, sec. 8 ; Laws of Del., Rev. Code (1852), p. 297, sec. 9 ; Dig. of the Stats, of Ark., p. Ill, sees. 6, 7 and 8; How. & Hutch. Stat. Laws of Miss., p. 395, sec. 35 ; Pas- chall's Annot. Dig. Laws of Texas, p. 304, arts. 1273, 1274 ; 2 Matthews's Dig. (Va.), p. 554, § 4 ; 2 Compiled Laws of Michigan (1857), p. 876, art. 2879, sec. 3; Code of Ala. (1852), p. 338, § 1667; 1 Md. Code (1860), p. 621, art. 93, sees. 18-31; Rev. Stats, of Maine (1857), p. 411, sec. 13; Nixon's Dig. Laws of N. J. (1868), p. 303, sec. 7 ; Rev. Code of N. C. (1855), p. 282, sec. 2 ; vol. i., Rev. Stats, of Ky. (1860), p. 502, art. 2 ; 1 Rev. Stats, of Ohio (1860), p. 568, sec. 12; Laws of Iowa (1860), p. 409, sec. 2343 ; Cobb's New Dig. of the Laws of Geo. (1851), vol. i., p. 305, sec. 59; Thomps. Dig. of the Laws of Fla., p. 196, sec. 5 ; Rev. Stats, of Vt. (1839), pp. 263, 264, sec. 3; Civil Code of La., arts. 1114 to 1117; Gross's Stats, of 111. (1869), p. 808, sec. 71. I OF INTESTACY. 357 assets of tlieir testator extend also to the administrator of tlie effects of an intestate. (s) He has also the same privilege as an executor of retain- ing his own debt in preference to all others of the same degree.(f) But the surplus, after payment of the debts, must be distributed amongst the relatives of the intestate in proportions to be hereafter mentioned. In order to enable the administrator to inform himself of the state of the assets, and to pay the debts of the deceased, the same period of a year from the time of the decease as is allowed to an executor is also given to the administrator before he can be required to make any distribution. (m) But, notwithstanding this delay, the interest of the persons entitled to the surplus vests in them from the time of the decease *of the r*qco-i intestate ; so that in case any of them should die within a twelve- month after the decease of the intestate, the share of the person so dying will pass to his own executors or administrators. (a;) In some instances administration is granted for a limited purpose, or confined to a given time. Of this Ave have already had an instance in the case of administration durante minore estate, when the sole executor named in a will is under age ;(^) and the same sort of administration is granted on intestacy, in case of the minority of the next of kin. (2;) So if the executor or next of kin, as the case may be, should be out of the realm at the time of the decease of the testator or intestate, the court will grant a limited administration durante ahsentid, which will expire the moment of the return of such executor or next of kin. And if the executor should prove the will, or if any person should obtain letters of administration, and afterwards go to reside out of the jurisdiction of the English courts, the court is empowered by act of parliament(a) to grant administration, at the end of the year from the death of the testator or intestate. Again, when a suit concerning the right of administration is pending in the Court of Probate, that court may appoint an administra- tor pendente lite, who will have all the rights and powers of a general administrator, other than the right of distributing the residue of the personal estate ;(5) and the administrator so appointed may receive such reasonable remuneration for his trouble as the court may think fit.(c) (s) Stats. 13 & 14 Vict. c. 35, s. 19 ; 22 & 23 Vict. c. 35, ss. 27, 28, 29 ; 23 & 24 Vict. c. 38, s. 14, ante, pp. 341, 342 ; but not stat. 23 & 24 Vict. c. l45, s. 30, ante, p. 340. {t) Warner v. Wainsford, Hob. 127 ; Williams on Executors, pt. 3, bk. 2, ch. 2, s. 6. {u) Stat. 22 & 23 Car. II. c. 10, s. 8. {z) Edwards v. Freeman, 2 P. Wms. 442.. {y) Ante, p. 329. (2) Williams on Executors, pt. 1, bk. 5, ch. 3, s. 3. (a) Stat. 38 Geo. III. c. 87, ss. 1-5, extended by stats. 20 & 21 Vict. c. 77, s. 74; 21 & 22 Vict. c. 95, s. 18. {b) Stat. 20 & 21 Vict. c. 77, s. 70. (c) Sect. 72. 29 358 OF PERSONAL ESTATE GENERALLY. r*qran The court also may appoint such *administrator or any other person receiver of the real estate of the deceased pending any suit touching the validity of his will, if it affect such real estate.(c?) So if a will should have heen made, but the executors should have re- nounced, or died before their testator, the court will appoint the person having the greatest interest in the effects, generally, the residuary legatee, to administer the same according to the directions of the will, in which case the administration granted is termed an administration cum testamento annexo, with tlie will annexed. (e) And it is now provided, that, if by reason of the insolvency of the estate of the deceased, or other special circumstances, the court shall think it necessary or convenient to appoint as administrator tuny other person than the person by law enti- tled to the grant, the court may do so ; and every such administration may be limited as the court shall think fit.(/)' Letters of administration, as well as probates, are liable to the pay- ment of an ad valorem stamp duty on the value of the personal estate of the deceased within the United Kingdom, if it exceeds in value the sum {d) Stat. 20 & 21 Vict. c. 77, s. 71. [e) Williams on Executors, pt. 1, bk. 5, oh. 3, s. 1. (/) Stat. 20 & 21 Vict. c. 77, s. 73 ; In the Goods of Llanwarne, Law Rep. 1 P. & D. 306 ; In the Goods of Eraser, Law Rep. 1 P. & D. 327, 1 This— last ^kind of administrator is discretion of tUie court, in <;ase the per- called a special administrator, or .an^id- sonal estate of the deceased shall be sup- ministrator ad colligendum, who may be posed to be in different counties." Vol. i, appointed by the officer having the proper Md. Code (1860), p. 630, art. 93, sec. 60. authority, according to his discretion, for And see, for the provisions of the diflfer- the purpose of preserving the estate of the ent States, Cobb's New Dig. of the Laws of decedent, until .regular letters testament- Geo. (1851), p. 283, sec. 6, and p. 311, ary or of administration are granted, or sec. 73 ; Thompson's Dig. of the Laws of until the will is established, and in such Fla., p. 198, sec. 1 ; How. & Hutch. Stat, like cases. Laws of Miss., pp. 391, 392, sec. 24; Gen. "Letters ad colligendum, may be granted Stats, of Mass. (1860), p. 484, sec. 6; Rev. by the Orphans' Court of the county in Stats, of N. Y. (5th ed.), vol. ill., pp. 160, which the will was proved or authenti- 161, sec. 38 ; 2 Compil. Laws of Michigan cated, or where letters of :administration (1857), p. 877, art. 2881, sec. 5; Code of ought to be granted, in cases of delay, on Ala. (1852), p. 339, sec. 1676; Rev. Stats, account of absence from the State of an of Maine (1857), p. 413, sec. 27; Rev. Code executor, a contest relative to the will, or of N. C. (1855), p. 283, sees. 9 and 10 ; I right of administration, or the absence or Rev. Stats, of Oliio (1860), p. 569, sec. 14 j neglect of an executor or person entitled Gross's Stats, of 111. (1869), pp. 803, 804, to administration, to qualify, or from any sec. 38,i&c. ; Paschall's Annot. Dig. Laws of other cause; and such letters may be Texas, pp. 305, 306, arts. 1287, 1288, 1289. granted to one or more persons, in the OF INTESTACY. 359 of 100?. ; (g) but the duty on letters of administration, where there is no will, is after a higher rate than the duty on probates, or on letters of administration with the will annexed. (A)^ A heavy penalty is imposed by the Stamp Act on any person who shall take possession of, or in any manner administer any part of the personal estate of any deceased person, without obtaining *probate or administration within six calendar r^opn-i months after his or her decease, or within two calendar months after the determination of any suit or dispute respecting the will or the right to administration. (2) The same exemptions from duty in favor of seamen, marines and soldiers, which have been established with respect to the probate duty,(yfc) apply also to the duty on letters of administration. The office of administrator is not transmissible, like the office of exe- cutor.^ On the decease of an administrator, before he has distributed all the effects of the intestate, a new administrator must be appointed ; for the administrator or executor of such administrator has no right to intermeddle. So if an executor should die intestate, without having completely distributed his testator's effects, an administrator must be appointed to distribute, according to the will of the testator, such of his effects as were not distributed by the deceased executor.(?) In each of these cases the administration granted is called an administration de bonis non administratis, of the goods not administered, or, more shortly, de bonis non.{m) All second and subsequent grants of probate or letters of administration must be made in the principal registry of the Court of Probate, or in the district registry where the will is registered or the original grant of administration has been made, or to which it may have been transmitted.(w) The application of an intestate's effects, after payment of his debts, is now regulated by statutes of the reign *of Charles II. and James pog]^-] II.,(o) commonly called the Statutes of Distribution, by which (ff) Ante, p. 336. (h) Stat. 55 Geo. III. c. 184. (j) lOOZ., an(f ten per cent, on the stamp duty. Stat. 55 Geo. III. c. 184, s. 37. (k) Ante, pp. 337, 338. (Z) Shep. Touch. 465; Williams on Executors, pt. 1, bk. 3, ch. 4. (m) Williams on Executors, pt. 1, bk. 5, ch. 3, s. 2. (w) Stat 21 & 22 Vict. c. 95, s. 20. (0) 22 & 23 Car. II. c. 10 ; 1 Jac. II. c. 17, s. 7. See Watkins on Descents, Appen- dix, 257 et seq. 4th edit. ^ In this country, there is no distinction with the will annexed. See ante, note 1, made, as to revenue duty, between letters p. 336. of administration, where there is no will, ' See antt, p. 329, note, and probates, or letters of administration, 361 OF PERSONAL ESTATE GENERALLY. Statutes the rights of the relations of the deceased appear to have been first definitely ascertained and rendered legally available.^ Under these statutes, if the intestate leave a widow and any child or children, or de- scendant of any child, the widow shall take a third part of the surplus of his effects. If he leave no child, nor descendant of any child, she shall have a moiety. In this respect, the distribution is the same as took place under the ancient law. The husband of a married woman is entitled to the whole of her effects.(^) If the intestate leave children, two-thirds of his effects if he leave a widow, or the whole if he leave no widow, shall be equally divided amongst his children, or, if but one, to such one child. But the descendants of such children as may have died in the intestate's lifetime, shall stand in the place of their parent or ancestor.(5') Such children, however, as have been advanced by the parent in his life- time must bring the amount of their advancement into hotchpot, so as to make the estate of all the children to be equal, as nearly as can be esti- mated. But the heir at law, notwithstanding any lands he may have by descent or otherwise from the intestate, is to have an equal part in the distribution with the rest of the children, without any consideration of the value of such land.(r) If the intestate leave no children or repre- sentatives of them, his father, if living, takes the whole ; or, if the intes- tate should have left a widow, one-half. If the father be dead, the mother, brothers and sisters of the intestate shall take in equal shares, (s) r*^fi91 *subject, as before, to the widow's right to a moiety ; and brothers or sisters of the half blood have an equal claim with those of the whole blood. (^) If any brother or sister shall have died in the lifetime of the intestate, leaving children, such children shall stand in loco parentis, provided the mother or any brother or sister be living.(w) If there be no brother or sister, nor child of such brother or sister, the mother shall take the whole, or, if the widow be living, a moiety only, as before; but a stepmother can take nothing. (a:) If there be no mother, the brothers and sisters take equally, the children of such as may^e^ead standing in loco i^arentis. Beyond brothers' and sisters' children, no {p) Stat. 29 Ca. II. c. 3, s. 25. [q) See Burton's Compendium, pi. 1402. (r) Stat. 22 & 23 Car. II. c. 10, s. 5 ; Boyd v. Boyd, V.-C. W., Law Rep. 4 Eq. 302. (a) Stat. 1 Jac. II. c. 17, s. 7. {t) Jessopp V. Watson, 1 Myl. & K. 665 ; Burnet v. Mann, 1 Myl. & K. 672, n. (m) Lloyd V. Tench, 2 Ves. sen. 215 ; Durant v. Prestwood, 1 Atk. 454; West 448. {x) Duke of Rutland v. Duchess of Rutland, 2 P. Wms. 216. 1 Each State of the Union has its own modifications of the Statutes of Charles Statute of Distributions ; and these, IL, and James II. slightly diflfering from each other, are but OF INTESTACY. 362 right of representation belongs to the children of relatives with respect to the shares which their deceased parents would have taken. And if there be neither brother, sister or mother of the intestate living, his per- sonal estate will be distributed in equal shares amongst those who are next in degree of kindred to him. In t racin g the degrees of kindred in the distribution of an intestate's personal estate, no preference is given to males over females, nor to the paternal over the maternal line,(?/) nor to the whole over the half blood, as in the case of descent of real estate; nor does the issue. stand iri. the plu(5e of ■tbe'ancestor. The degrees of kindred are reckoned according to the crviT'law, both upwards to the ancestor and downwards to the iisue^eacli generation counting for a degree. (2) Thus from *father r^opo-i to^on, or~lrom~son to father, is one degree ; from grandfather to grandson, or from grandson to grandfather, is two degrees ; and from brother to brother is also two degrees ; namely, one upwards to the father, and onFdownwards to the other son. So from uncle to nephew is"!&F^e'ttegrees, one upwards to the common ancestor, and two down- wards from him ; and from nephew to uncle is also three degrees, two upwards and one downwards. If therefore there be neither issue, father, brother, sister nor mother of the intestate living, such persons as are his next of kin, according to the rule above laid down, are entitled in equal shares /-Jcr capita to his personal estate, subject to his wife's right to a moiety, should she survive him. As the kindred becomes more distant, the number of persons entitled, if living, as well as the difficulty of proving their respective pedigrees, becomes prodigiously augmented. " It is at the first view astonishing," says Blackstone,(rt) " to consider the number of lineal ancestors which every man has within no very great number of degrees : and so many different bloods is a man said to con- tain in his veins as he hath lineal ancestors. Of these he hath two in the first ascending degree, his own parents ; he hath four in the second, the parents of his father and the parents of his mother ; he hath eight in the third, the parents of his two grandfathers and two grandmothers ; and, by the same rule of progression, he hath an hundred and twenty- eight in the seventh ; a thousand and twenty-four in the tenth ; and at the twentieth degree, or the distance of twenty generations, every man hath above a million of ancestors, as common arithmetic will demon- (y) Moor v. Barham, 1 P. Wins. 53. (z) Mentney v. Petty, Pre. Cha. 593; Wallis v. Hodson, 2 Atk. 117; 2 Black. Com. 504, 515. (a) 2 Black Com. 203. 363 OF PERSONAL ESTATE GENERALLY. strate." The number of collateral relations who may claim through such ancestors is of course far more numerous. r*^C4~\ *The estates of intestate freemen of the city of London,(5) and of persons having their fixed or general residence within the archiepiscopal pi-ovince of York (excepting the diocese of Chester), were until recently distributed according to peculiar customs, apparently de- rived from the ancient mode of distribution. (c) Some parts of Wales also appear to have been subject to peculiar customs of distribution ; for these several customs, though postponed to the right of testamentary disposition by the statutes to which we have already referred,((i) were nevertheless not abolished by those statutes in the event of no will being made. But a recent statute has now altogether abolished all customary modes of administration. (<^) The shares of persons claiming any personal estate of the amount or value of 201. or upwards under an intestacy are subject to the same duty as legacies to persons of the same degree of kindred. (/)^ If there be no next of kin, the crown, by virtue of its prerogative, will stand in their place,(^) but subject always to the widow's right to a moiety in case she should survive.(/i) The division of the personal estate of an intestate, effected by the Statute of Distributions, is remarkable for its fairness. The only provision which might be amended is that which places the half blood on an equality with the whole. A corresponding equality in interest and feeling but rarely exists in actual life. The *proper place •- -I for the half blood appears to be that now assigned to them in the descent of real estate, according to the recommendation of the Keal Property Commissioners, namely, next after those of the same de- gree of the whole blood. (z) The appointment of an executor or adminis- trator, in whom the whole personal property is vested, with full power of (b) Onslow V. Onslow, 1 Sim. 18. (c) Williams on Executors, pt. 3, bk. 4, ch. 2. (d) Ante, p. 321. (e) Stat. 19 & 20 Vict. c. 94. (/) Stat. 55 Geo. III. c. 184. See ante, pp. 342, 343. Iff) Taylor v. Haygarth, 14 Sim. 8 ; Powell v. Merrett, 1 Sm. & Giff. 381. See Stat. 15 & 16 Vict. c. 3. (h) Cave v. Roberts, 8 Sim. 214. («■) See Principles of the Law of Real Property TT, 1st ed. ; 82, 2d ed. ; 8C, 3d and 4tli eds. ; 91, 5th ed.; 97, 6th ed. ; 100, Vth ed. ; 103, 8th ed. 1 See ante, p. 343, note. I I OF INTESTACY. 365 disposition, tends greatly to simplify the title to leasehold estates and other property of a personal nature. It could be wished, however, that the oflBce of an administrator were transmissible in the same manner as that of an executor. In other respects, the distribution of personal estate on intestacy approaches far more nearly to the disposition which the deceased himself would probably have made, than the descent of real property, either at the common law or according to the custom of gavel- kind. A person possessed only of small landed property usually de- vises it to trustees for sale, with full power to give receipts to pur- chasers, and directs the division of the produce by his trustees amongst bis children in such shares as he may think just, with regard to the pro- vision already made for any of them in his lifetime. He does not leave his younger children to beggary in order that his whole property may devolve to his eldest son, according to the course of the common law, a course pursued, as the author believes, in no other civilized country in the world. (^) Neither does he leave it to all his sons equally in undi- vided shares, thus inflicting an injustice on his daughters, and allowing all plans for the improvement of the lands to be checked by one dissen- tient voice, unless a partition should be resorted to, by which the pro- perty would be split up into parcels too small for the convenience of agriculture. If by any accident a man *should die without r^gggi making his will, it would seem to be the province of an equitable legislature to make such a disposition of his property as would, in ordi- nary circumstances, most nearly correspond with his intention. It is true that when property is large, it is usually entailed on the eldest son and his issue, subject to moderate portions for the younger children. This custom of primogeniture is suited to the institutions of our country, and to the habits of the class to which large landed property usually belongs, and the author has no wish to see it disturbed. The settlements, however, by which these entails are created are more frequently made by deed than by will. They almost invariably contain provisions for the portions of younger children, varying in amount with the value of the property; and, whether made by deed or will, they are usually long and intricate in their nature, providing for the numerous contingencies which may arise under the peculiar circumstances of each family. Nothing in fact can be more different than the devolution of an estate to the eldest son under a f\vmily settlement, and the descent on an intes- tacy to the eldest son as heir at law. In the one case he takes subject to the proper claims of the other members of his family ; in the other he is bound to them by no obligation at all. There seems to be no method of (k) Co. Litt. 191 a, n. (1), vi. 4. 366 OF PERSONAL ESTATE GENERALLY. making, in case of intestacy, any sort of disposition of landed property which might be reasonably simple, and at the same time resemble an ordinary family settlement. If such a settlement be not made by deed, the owner has ample power of effecting the same object by his will. In- testacy, in fact, rarely happens to the owner of large landed property- The property which descends to heirs under intestacies, though large in the aggregate, is generally small in individual cases. When the wishes of all cannot be consulted, that which would have been the wish of the rHcQr"! generality of intestates ought apparently *to form the founda- ^ -^ tion of the rule. From a consideration of these circumstances the reader may perhaps be induced to think, that if, in case of intestacy, the rules for the devolution of real and personal estate were identical, and with some slight variations similar to those which now exist as to personalty, the law on this subject would be rendered both more simple and more just. The descent of real estate to distant heirs, and the devolution of per- sonalty to distant kindred, involve an amount of learning and litigation, the abolition of which would perhaps be desirable. The family and near relations of an intestate have generally claims upon his bounty, which ou'^ht not to be disappointed by the accident of his decease without making a will. But distant relatives have seldom any such claims, nor consequently any expectation of such claims being fulfilled. To with- hold from them, therefore, that which they had never expected to enjoy, would not be to inflict a loss. Under the present system, the property of an intestate who has no near relations, is not unfrequently frittered away in expensive contests between opposing claimants, or else it devolves unexpectedly upon persons who, for want of previous education, are unable to make use of it with benefit either to themselves or to the com- munity. In a country so heavily burdened as our own, any addition to the public income, not having the pressure of a tax, would be a very desirable acquisition. Such an addition might, as it appears to the author, be very properly made by the devolution to the public of the properties of intestates having none but distant relatives. The country in which a man has lived, and in which his property has been acquired, or at any rate protected, has certainly some claims upon him, — claims which seem preferable to those of the man who, in the case of real estate, PQ-i founds his title on his descent from the mo8t *remote male pater- ^ -' nal ancestor of the intestate,(Z) or who claims a share in the (Z) See Principles of the Law of Real Property 18, 1st ed. ; 83, 2d ed.; 87, 3d and 4th eds. ; 92, 5th ed. ; 98, 6th ed. ; 101, 7th ed. ; 104, 8th ed. OF INTESTACY. 368 personalty because he chances to be a survivor amongst the multitude standing in the fifth or sixth degree of a series of kindred which increases, as it grows distant, in geometrical progression. (m) (m) The author's attention has since been called to a similar proposal in Mill's Political Economy, vol. 1, pp. 272, 273, 2d ed. [*369] *CHAPTER V. OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. Marriage, being essential to the welfare of the community, and also involving important consequences to the individuals concerned, is not on the one hand allowed to be unduly restrained, nor on the other to be brought about by unfair means. Amongst the many striking differences between the laws of real and personal property, by which our legal system is complicated, will be found the rules relating to attempted restraints on marriage. Real estate is governed by the rules of the common law ; but personal estate, when bequeathed by will, has, as we have seen, (a) long been subject to the jurisdiction of the ecclesiastical courts. These courts have adopted, with some modification, the rules of the civil law, which is more favor- able than the common law of England to liberty of choice in marriage. Hence it follows that some restrictions on marriage, which are valid when applied to a gift of real estate, are void when attempted to be imposed on a gift of personal property. The rules respecting real and personal estate so far agree that a condition annexed to a gift of either, that a person shall not marry at all, is void. (6) But a gift of either by a husband to his wife during her widowhood is valid ;{c) neither would a gift of the income of property to a single person until marriage, with a r*^7m ^^^^ ^^^^ °^ *marriage appear to be invalid.((i) When, however a gift is made, with a condition that it shall be forfeited if the donee marry without the consent of certain trustees or other persons, the difference between the laws of real and personal estate becomes con- spicuous. If the gift be of real estate, or of money charged on real estate, it will cease on the event of marriage without the required con- (a) Ante, p. 333. (6) Shep. Touch. 132 ; Perrin v. Lyon, 9 East 170, 183 ; Rishton v. Cobb, 9 Sim. .615 ; 5 MyL & Cr. 145 ; Morley v. Rennoldson, 2 Hare 570. (c) Barton v. Barton, 2 Vern. 308. (d) See Right d. Compton v. Compton, 9 East 2G7 ; Morley v. Rennoldson, 2 Hare 570, 580 ; Webb v. Grace, 2 Phil. 701 ; Lloyd v. Lloyd, 2 Sim., N. S. 255 ; Heath v. Lewis, 3 De G., M. & G. 954 ; Evans v. Prosser, V.-C. \V., 10 Jur. N. S. 385. OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 370 sent.(e) But if it be a bequest of personal property, the condition is regarded as merely in terrorem and void,(/) unless accompanied by a bequest over to some other person on the marriage taking place without consent ;[g) so that the legatee will be entitled to retain the legacy, not- withstanding his or her marriage without consent, unless on that event it be expressly given in some other manner. Such conditions in bequests of personalty when unaccompanied by a gift over, are called in terrorem, because, says Lord Eldon, " they are supposed to alarm persons, when we know they contain no terror whatsoever. "(7iy (e) Reynish v. Martin, 3 Atk. 330, 333. (/) Bellasis v. Ermine, 1 Cha. Ca. 22. {g) Stratton v. Grjmes, 2 Vern. 357 ; Harvey v. Aston, 1 Atk. 361 ; Clarke v. Parker, 19 Ves. 1, 13. {h) 19 Ves. 13. 1 Contracts in restraint of marriage, are regarded as contrary not only to the law and order of our nature, but also as con- trary to sound policy, and hence are ille- gal and void. " Marriage, no doubt, may be made the subject of regulation by quali- fied restrictions, under certain circum- stances, but under no circumstances what- ever, ought a general and entire restriction of it, to be countenanced and sanctioned by law. . . . Conditions, also, in re- straint of marriage, are odious; and are, therefore, held to the utmost rigor and strictness. They are contrary to sound policy." Middleton v. Rice, 6 Pa. L. J. 240. A condition in restraint of mar- riage, is void, therefore, when it is an- nexed to a legacy, without a limitation over; but if there is a limitation over, the condition is good : Mcllvaine v. Gethen et al., 3 Whart. 583; Hoopes v. Dundas, 10 Penn. St. 77; Commonwealth v. Stauffer, Id. 350 ; Middleton v. Rice, 6 Pa. L. J. 230 ; Bennett v. Robinson, 10 Watts 350 ; Stroud V. Bailey, 3, Grant's Cas. 310; Hughes v. Boyd, 2 Sneed 512; Hotz's Est., 48 Penn. St. 422 ; Otis v. Prince, 10 Gray 581 ; Par- sons V. Winslow, 6 Mass. 169 ; in the last of which cases. Judge Sedgwick remarks: " It is a general rule, that a condition an- nexed to a devise or bequest for life, whereby it is to be divested by the mar- riage of the devisee or legatee, is to be considered as intended purely in terrorem, and it is therefore void. To this rule there is an exception, that such condition shall be effectual, if the subject of the devise or bequest be given over, so as to create an interest in another person. And again, this exception is restrained and limited. To give it effect, the giving over to a third person, must be an express giving over of the particular devise or legacy, unincorpo- rated with any other subject; and it must also be immediate, to take effect at the time of the marriage." But the doctrine just stated, will not apply to any case of conditional limitation ; for, as was said in Middleton v. Rice, " we must be careful not to confound limitations with condi- tions, for limitations may be good, notwith- standing they are seemingly in restraint of marriage, and were so by the civil, as well as by the common law. As, for instance, where the meaning of the testa- tor is not to forbid marriage, but to grant the use of the thing bequeathed until the legatee shall marry ; or where the prohi- bition of marriage is notmade conditionally by this word, if, . ■ ■ but by other words or adverbs of time ; as when the testator willeth that his daughter or wife shall be executrix, or have the use of his goods, so long as she shall remain unmarried." And see, also, Coppage v. Alexander's Heirs, 2 B. Mon. 314 ; Napier v. Davis et al., 7 J. J. Marsh. 286 ; Hoopes v. Dundas, lOPenn. St. 77 ; Bennett v. Richardson, 10 Watts 350. 370 OF PERSONAL ESTATE GENERALLY. In order to prevent marriages from being unfairly obtained, it is a rule in equity that all contracts for reward for procuring marriages (called marriage brocage) are void.(^') And if a parent or guardian should stipulate for any private benefit for the marriage of his child or ward, such stipulation would be void, and money actually paid under it would be decreed to be refunded. (y) [*371] *Few marriages are now contracted between persons possess- ing any amount of property, without a previous settlement of such property being made, in some stipulated manner, for the benefit of the intended husband and wife and the children of the marriage. As marriage is a valuable consideration, (^) such settlements are binding on both parties if of full age. And an act of parliament has recently been (i) Hall V. Potter, 3 Leviiiz 411 ; Shower's Par. Cas. 76. (/) 1 Fonblanque on Equity 262 ; Smith v. Bruning, 2 Vern. 392. (k) Ante, p. 74. In the case, however, of a devise of real estate, to cease on the event of a subse- quent marriage, it matters not whether the gift be coupled with a condition or a con- ditional limitation; for, in either ease, it will be good : Phillips v. Medbury, 7 Conn. 573 ; Bailey v. Teackle et al., Exrs., Wythe 173; Vance v. Campbell's Heirs, 1 Dana 229; Commonwealth v. StauflFer, 10 Penn. St. 350 ; Bennett v. Robinson, 10 Watts 350; Arnold v. Gilbert, 5 Barb. 191 ; Cor- nell V. Lovett's Exr., 35 Penn. St. 103; Vaughn v. Lovejoy, 34 Ala. 437 ; and al- though in Middleton v. Rice, 6 Pa. L. J. 230, the learned judge seemed to incline to the opinion, that a devise of real estate, upon a condition subsequent in restraint of marriage generall}', would be void as to the condition, yet that decision may be considered as overruled by Commonwealth V. Stauffer, and McCullough's Appeal, 12 Penn. St. 197; in which last it was said, " The provision for the wife, in this case, is a devise of the profits, and, consequently, of the land, to her for life, in the first instance ; but coupled with a condition, or a conditional limitation, no matter which, that she do not marry. Whether it be the one or the other, a limitation over is un- necessary, to give it effect; for it is a familiar principle, that devises of land, whether to a widow or any one else, are governed, not by the civil, but by the common law, which knows nothing of a condition in terrorem." In the case, how- ever, of Williams et al. v. Cowden, 13 Mo. 211 ; where one, by his will, devised to his son, and to his daughter, in equal moieties, a tract of land, with the provision, that "if his said daughter should marry or die," the land should belong exclusively to his said son, it was held that the above con- dition attached to the estate of the daugh- ter, is in restraint of marriage, and is void. And see also, Otis v. Prince, 10 Gray 581. "A condition annexed to the vesting of a legacy, requiring the guardian's appro- bation of the legatee's marriage, is not in terrorem only, when the condition is con- firmed to marriage under twenty-one, and there is a limitation over:" Collier, Exr., V. Slaughter's Admr., 20 Ala. 263. For further instances of gifts or devises during widowhood, see Drury et al. v. Grace, 2 Har. & Johns. 356 ; Crosby v. Wendell et al., 6 Paige Ch. 548 ; Picot v. Arraistead, 2 Ired. Ch. 226; Bankhead, Admr., v. Carlisle, Admr., 1 Hill Ch. 358; Williams v. Vancleave, 7 Mon. 388 ; Dandridge et al. v. Dorrington, 6 Call 351 ; Blunt et al. v. Gee et al.. Id. 481 ; Taylor V. Birmingham, 29 Penn. St. 306, OF THE MUTUAL KiUlITS OF nUSBAND AND WIFE. 371 passed,(Z) enabling every infant not under twenty if a male, and not under seventeen if a female, to settle his or her property, whether real or personal, upon marriage, provided the sanction of the Court of Chan- cery be obtained. But if the settlement be not made under the pro- visions of this act, and either husband or wife should be under age, the settlement will not be binding on him or her,(ryt) although the other party, if of full age, will be bound by it.(w) And if both of them should be under age, neither of them will be bound by it. The circumstance of the settlement of an infant's personal property being fair and reasonable, and made with the approbation of his or her guardians, was formerly considered as giving it validity ;{o) but this circumstance seems now to have no weight.^ It has, however, been decided that a competent legal jointured^) settled on the intended wife, then an infant, with the con- currence of her guardians, in lieu of her right to dower out of her husband's freehold lands, and in lieu of her distributive share of his per- sonal estate in the event of his intestacy, was sufficient to deprive her both of her *dower and of her distributive share in her bus- r^oncy-i band's personalty.(5') When the intended wife only is an infant, a settlement of her personal estate in possession is valid, on account of the interest which, as we shall see, the law gives to the husband in such personal estate. The settlement in such a case is in. fact not made by the wife, but by the husband, who being adult, is bound by its provisions to the extent of the interest which he would have taken had no settle- ment been made.(r) If no settlement be made, the principles which govern the rights of husband and wife to personal property must still be traced to the cir- cumstances of ancient rather than of modern times. In ancient times (I) Stat. 18 & 19 Vict. c. 43 ; Re Dalton, 6 De G., M. & G. 201, extended to the Court of Chancery in Ireland, by stat. 23 & 24 Vict. c. 83. (m) Ellison v. Elwin, 13 Sim. 309; Le Vasseur v. Scratton, 14 Sim. IIG. («) Durnford v. Lane, 1 Bro. C. C. 106; Milner v. Lord Harewood, 18 Ves. 259. (o) 2 Roper's Husband and Wife 26. (p) See Principles of the Law of Real Property 1T4, 1st ed. ; 184, 2d ed. ; 191, 3d ed. ; 192 4th ed. ; 201, 5th ed. ; 211, 6th ed. ; 216, 7th ed. ; 225, 8th ed. (q) Earl of Buckingham v. Drury, 3 Brown's Par. Cas. 492. (r) Trollope v. Linton, 1 Sim. & Stu. 477, 487. 1 The beneficial contracts of infants, are 446 ; Proctor v. Sears, 4 Allen 95 ; McCor- voidable only, and may be ratified by them mic v. Leggett, 8 Jones L. 425; Henry after arriving at maturity, by express v. Root, 33 N. Y. 526 ; but mere acquies- agreement, or by positive acts, equivalent cence, without anything else, is not gene- thereto : N. H. M. F. Ins. Co. v. Noyes, 32 rally sufficient evidence of affirmance : N. H. 345; Manning v. Johnson, 26 Ala. Irvine v. Irvine, 9 Wall. U. S. 617. 372 OF PERSONAL ESTATE GENERALLY. landed property was by far the most important ; and the wife was ac- cordingly entitled to a provision out of the lands of her husband, in the event of her surviving him, which no alienation that he could make, nor any debts which he might incur, were able to set aside.(«) But in those days personal property was of too insignificant a value to be the subject of any such provision. And if a woman now marry without a settle- ment, she has still no claim on her husband's personal estate, however large, unless he should happen to die intestate, in which case, as we have already mentioned, she is entitled to a third or a half of what he may leave, according as he may or may not leave issue surviving him. A husband, on the other hand, was in ancient times considered absolutely entitled to such personal chattels as his wife might possess. In this respect the law was then both simple and sufficient. By the act of mar- riage, the wife placed herself under the coverture or protection of her r*Q'"Qi husband. She became in *the law French of those days a feme L ^ covert. Thenceforth all demands to which she was personally liable were to be answered by her natural protector. The wife was con- sidered as merged in her husband, and both were regarded as but one person. (^) So long therefore as the coverture continued, that is, during the joint lives of the husband and wife, the husband was absolutely en- titled to all personal property which his wife might acquire, and was also liable to the payment of all debts which she might previously have in- curred.^ These simple principles still pervade the law relating to the («) See Principles of the Law of Real Property 172, 1st ed. ; 182, 2d ed. ; 189, 3d ed. ; 190, 4th ed.; 199, 5th ed ; 209, 6th ed.; 213, 7th ed. ; 223,8th ed. (t) Principles of the Law of Real Property 164, 1st ed. ; 176, 2d ed. ; 183, 3d ed. ; 184, 4th ed. ; 190, 5th ed. ; 200, 6th ed. ; 207, 7th ed. ; 214, 8th ed. ^ For the statutes of the several states shall accrue to any married woman during on this subject, see generally, the titles coverture by will, descent, deed of convey- Husband and Wife, Abatement, Alimony, ance or otherwise, shall be owned, used Conveyance, Curtesy, Divorce, Dower, and enjoyed by such married woman as her Feme Covert, Jointure, Marriage, Married own separate property ; and the said pro- Women, Widow, &c. &c., as contained in perty, whether owned by her before mar- the respective Digests. riage, or which shall accrue to her after- By the sixth section of the Act of the wards, shall not be subject to levy and Legislature of Pennsylvania of the eleventh execution for the debts or liabilities of her of April, 1848, it is provided that "Every husband, nor shall such property be sold, speeies and description of property, conveyed, mortgaged, transferred or in whether consisting of real, personal or any manner encumbered by her husband, mixed, which may be owned by or belong without her written consent first had and to any single woman, shall continue to be obtained, and duly acknowledged . . . the property of such woman, as fully after that such consent was not the result of her marriage as before ; and all such pro- coercion on the part of her said husband, perty, of whatever name or kind, which but that the same was voluntarily given 1 OF THE MUTUAL RIGHTS OP HUSBAND AND WIFE. 373 husband's interest in his wife's personal estate ; although the several different species of personal estate to which modern civilization has given rise, conjoined with the rules of equitable administration laid down by the Court of Chancery, have given to this branch of law a perplexity unknown to the simple, though somewhat harsh, rules of our ancestors. In the first place, then, personal property of the ancient kind, namely, chattels, personal or movable goods, belonging to the wife at the time of her marriage, or given to her afterwards, become the absolute pro- perty of her husband in the same manner precisely as if they had been originally his own, or had been subsequently given to him.(w) He may dispose of them as he pleases in his lifetime or by his will ; they will be subject to his debts; and if he should die intestate, the wife will have no further claim to them than to any other of his effects. So impera- tive is this rule, that if chattels personal be given to a married woman jointly with a stranger, the law will instantly sever the jointure, ^^07 ^-i *and make the husband and the stranger tenants in common. (z') L J The only exceptions to this sweeping rule are the wife's parapher- nalia^ so called from the Greek napa. McDermott, Admr., 8 Id. 500 ; Mowry et al. v. Walsh, 8 Cowen 238 ; Wheelright v. Depeyster, I Johns. 480; Dane v. Baldwin, 8 Mass. 518; Browning V. Magill, 2 Har. & Johns. 308 ; McGrew v. Browder, 2 Condeus. Rep. S. C. La. 579; Roland v. Grundy, 5 Ohio 202 ; Griffith i-. Fowler, 18 Vt. 390; Worthy et al. v. Johnson et al., 8 Geo. 236 ; Hoffman et al. V. Carow, 22 Wend. 285; Fawcett v. Os- born, 32 Ills. 411. For the general rule regulating this matter is, that a second vendee is not entitled to stand in any bet- ter position than his vendor, in regard to the title of personal property; but this rule is not applicable to negotiable instru- ments : Putnam v. Lamphier, 36 Cal. 151. In the case of Vcntress et al. v. Smith, 10 Peters 175, Judge Thompson said : " It is a general rule of law, that a sale by a per- son who has no right to sell, is not valid against the rightful owner It was a maxim of the civil law, that 7icmo plus juris in alium transferre potest^ quam ipse habet ; and this is a plain dictate of com- mon sense. It was a principle of the English common law, that a sale out of market overt, did not change the property from the rightful owner; and the custom of the city of London, which forms an ex- ception to the general rule, has always been guarded and restricted by the courts with great care and vigilance, that all such sales should be brought strictly within the custom. It has sometimes been contended, that a bonci fide purchase for a valuable consideration, and without notice, was equivalent to a purchase in market overt under the English law, and bound the property against the party who had the right. But we are not aware that this Sa.\on institution of markets overt, which controls and interferes with the ap- plication of the common law, has ever been recognised in an^^ of the United States, or received any judicial sanction." OF TITLE. 396 every shop in the city of London, where goods are openly sold, is con- sidered as a market overt Avithin this rule, for such things as by the trade of the owner are put there for sale.(/) But the shops at the west end of the town do not appear to possess this privilege. If the sale is not made in market overt, the purchaser, though he purchase bond fide, acquires no further property in the article sold than was possessed by the vendor.((/) And formerly, if a writ of execution should have been actually in the hands of the sheriff on a judgment against the vendor, the goods, if not sold. in market overt, were subject, in the hands of the pur- chaser, to the sheriff's right to seize, in the same manner as if they had remained in the hands of the vendor.(/i) But a recent enactment now protects a purchaser bond fide for valuable consideration, without notice of any writ.(z') So if the goods have been stolen, a bond fide purchaser, who has not bought them in market overt, will be bound to restore them to the true owner ;(y) whereas, a sale in market overt would have given the *purchaser a valid title. There is one case, however, in which r*oQ'7-i even a sale in market overt will not protect a purchaser, namely, the case of the goods having been stolen, and the true owner prosecuting the thief and obtaining his conviction. In this case the property in the goods, wherever they may be, vests, on the conviction, in the true owner ;(k) and the only exception allowed is, where the article stolen is some valuable security, which shall have been paid or discharged bo7id fide by the person liable, or being a negotiable instrument, shall have been bond fide transferred or delivered for a just and valuable considera- tion, without any notice, and without any reasonable cause to suspect that the same had been obtained by any felony or misdemeanor. (Z) If a person suifer the loss of his goods by theft, he cannot by any civil action recover them from the felon. (w) To do this, he is bound to suffer the further loss of time or money incurred in a prosecution. If he should succeed in obtaining a conviction, he is then rewarded for his good fortune by a restitution of his property, whether in the hands of the felon himself, or of any innocent purchaser who may have chanced (/) The Case of Market Overt, 5 Rep. 83 b ; Lyons v. De Pass, 11 Ad. & E. 326 (E. C. L. R. vol. 39). (ff) Peer v. Humphrey, 2 Ad. & E. 495 (E. C. L. R. vol. 29) ; White v. Spettigne, 13 M. & W. 603. (h) Samuel v. Duke, 3 M. & W. 622. See ante, p. 51. (i) Stat. 19 & 20 Vict. c. 97, s. 1, ante, p. 52, not retrospective. Williams v. Smith, 2 H. & N. 443. (y) White V. Spettigue, 13 M. & W. 603. (k) Scattergood v. Sylvester, 15 Q. B. 506 (E. C. L. R. vol. 69). (1) Stat. 7 & 8 Geo. IV. c. 29, s. 57. {m) Stone v. Marsh, 6 B. & C. 551, 564 (E. C. L. R. vol. 13) ; 2 Wms. Saund. 47 b, n. {p). 397 OF TITLE. to buy them, although in open market.^ Such is the application made by the law of the righteous principle of restitution.(M) With regard to horses, a sale in market overt will not confer on the purchaser any further title than is possessed by the vendor, unless the sale be made according to the directions of certain statutes ;{o) and even P^oQQ, then the true owner may, at any time within six *months after '- -■ his horse has been stolen, recover his property on tender to the person in possession of the price he bond fide paid for. it. (p) A factor or agent in the possession of goods could not by the common law give any further title to the goods than he was authorized to do by his principal, either expressly or by implication arising from the usual course of his employment.(5) And when one man is appointed the agent of another for any particular purpose by power of attorney, his authority must still be strictly pursued, otherwise his principal will not be bound. (rf (n) See Chowne v. Baylis, 31 Beav. 351. (o) Stats. 2 & 3 P. & M. c. 7 ; 31 Eliz. c. 12 ; 2 Black. Com. 450. {p) Stat. 31 Eliz. c. 12, s. 4. (q) Pickering v. Busk, 15 East 38, 43. (r) Attwood V. Mannings, 7 B. & C. 278 (E. C. L. R. vol. 14). 1 Bell I'. Troy, 35 Ala. 184 ; and see Pis- cataqua Bank v. Turnley, 1 Miles 314, which decided, that where one had stolen a quantity of bank notes, the bank could not maintain foreign attachment against him, because the foundation of the claim was matter ez delicto ; and in the compara- tively recent case of Hutchinson v. Bank of Wheeling, 41 Penn. St. 42, it was held, that the public prosecution for the theft, does not supersede or in any way control, the private action for the value of the thing stolen, though it is suspended until the public prosecution for the offence, has been duly conducted and ended; and as the person wronged by the theft is not chargeable with the conduct of the prose- cution, he cannot be affected by the result, even though it be a verdict of acquittal. But in New York, the doctrine that the private injury is merged in the public wrong, is abolished by statute ; see a note to the case of Hoffman et al. v. Carow, 22 Wend. 285. * " That an agent is bound to pursue the orders of his principal, and is answerable for any injury consequent on his depar- ture from them, however fair may have been his motives for such departure, is a plain principle of law :" Manella, Pujalls & Co. y. Barry, 3 Cranch 415; Keener t>. Harrod et al., 2 Md. 63 ; Bruce v. Daven- port, 3G Barb. 349 ; Imboden v. Richardson, 15 La. Ann. 534; Sawyer v. Mayhew, 51 Maine 398 ; nor will the principal be bound for his acts, whether the agency be general or special, if it was known to the party with whom he dealt, that the agent was ex- ceeding his powers: Sandford v. Handy, 23 Wend. 260 ; State of Illinois v. Dela- field, 8 Paige Ch. 527 ; Fox v. Fisk, 6 How. (Miss.) 328; Longworth v. Conwell, 2 Blackf. 469 ; Walsh et al. v. Peirce, 12 Vt. 138 ; Hemphill v. The Bank, 6 Sm. & M. 44; Goad v. Hurts's Admrs., 8 Id. 787; Robertson v. Ketchum, 11 Barb. 652; Reeves et al. v. Baldwin, 1 Cart. 216; McCoy V. McKowen, Admr., 26 Miss. 487; Lewin v. Delie et al., 17 Id. 64; North River Bank v. Aymar, 3 Hill 266 ; Bank of the United States v. Dunn, 6 Peters 51 Bank of the Metropolis v. Jones, 8 Id. 12 Angel V. The Town of Pownal, 3 Vt. 461 Huntington et al. v. Wilder, 6 Id. 334. OF TITLE. 398 But by modern acts of parliament a more extended authority has, for the convenience of commerce, been conferred on factors and agents. (s) The (s) Stats. 4 Geo. IV. c. 83 ; 6 Geo. IV. c. 94; 5 & 6 Vict. c. 39. A special agent is one who is employed about one specific act, or certain specific acts, alone : Walker v. Skipwith, 1 Meigs 507 ; Bryant v. Moore, 26 Maine 86 ; a general agency, however, is not the reverse of this, and does not mean the substituting one in the place of another, for transacting all manner of business, since there are few instances in common use of an agency of that description, but is an authority not unlimited, and must necessarily " be re- strained to the transactions and concerns, appurtenant to the business of the princi- pal :"Odiorne et al. V. Maxcy et al., 13 Mass. 181 ; Salem Bank v. Gloucester Bank, 17 Id. 29 ; Walker v. Skipwith, 1 Meigs 507 ; Anderson v. Coonley, 21 Wend. 279 ; Rossiter v. Rossiter, 8 Id. 494 ; Stowe et al. V. Wyse, 7 Conn. 214; Hodge v. Combs, 1 Black (U. S.) 192 ; Stevenson et al. V. Hoy, 43 Penn. St. 191 ; but a general agent, is one whom a man puts in his place, to transact all his business of a par- ticular kind : Loudon, &c., Soc. v. Hagers- town, &c.. Bank, 36 Penn. St. 498. A distinction is to be noticed between general and special agencies, as regards third persons ; for although in the former an attorney in fact will be responsible to his principal, if he exceeds any private instructions which may be given limiting his general powers, yet the persons with whom he deals will not be bound bj' such private instructions, for they cannot be supposed to know anything about them : Lobdel V. Baker, 1 Mete. 193 ; Mann v. The Commis. Co., 15 Johns. 54 ; Beals v. Allen, 18 Johns. 363; Allen v. Ogden, 1 Wash. C. C. 174; Gordon et al. v. Bu- chanan et al., 5 Yerg. 71; Rossiter v. Rossiter, 8 Wend. 494 ; Tradesman's Bank V. Astor et al., 11 Id. 90 ; Jaques v. Todd, 3 Id. 83; Fisher et al. v. Campbell, 9 Port. 213 ; Longworth v. Conwell, 2 Blackf. 469 ; Morrison's Exr. v. Taylor, 6 B. Mon. 85 ; Johnson v, Jones, 4 Barb. 369 ; Walsh et al. V. Peirce, 12 Vt. 138 ; Gibbs et al. v. Linsley, 13 Id. 208 ; Arnold et al. v. Hal- enbrake et al., 5 Wend. 34 ; Bryant v. Moore, 26 Maine 86 ; Lamothe v. St. Louis Marine Railway and Dock Co., 17 Mo. 204; Lightbody v. The N. A. Ins. Co. 23 Wend. 22 ; Lance v. Barrett, 1 Hill (S. C.) 204 ; Lagow v. Patterson. 1 Blackf. 252 ; Loudon, &c., Soc. v. Hagerstown, &c.. Bank, 36 Penn. St. 498 ; Williams v. Getty, 31 Id. 461; Baltimore v. Reynolds, 20 Md. 1; Davenport v. Ins. Co., 17 Iowa 276; Edwards v. Schaifer, 49 Barb. 291 ; Butler V. Maples, 9 Wall. U. S. 766 ; whereas in special agency, the authority must be strictly pursued, or the principal will not be bound : Schimmelpenich et nl.v. Bayard et al., 1 Peters 264; Andrews v. Kneeland, 6 Cowen 354 ; Lightbody v. The N. Ameri- can Ins. Co,, 23 Wend. 22 ; Lobdell v. Baker, 1 Mete. 193 ; Anderson v. Coonley, 21 Wend. 279 ; Mann v. The Commis. Co., 15 Johns. 54 ; Beals v. Allen, 18 Id. 363 ; Thompson v. Stewart, 3 Conn. 183 ; Allen V. Ogden, 1 Wash. C. C. 174; Bleene v. Proudfit, 3 Call 207 ; Gordon et al. v. Buchanan et al., 5 Yerg. 71 ; Rossiter y. Rossiter, 8 Wend. 494 ; Tradesmen's Bank V. Astor et al., 11 Wend. 90; Denning v. Smith, 3 Johns. Ch. 344; State of Illinois V. Delafield, 8 Paige Ch. 527 ; Jaques v. Todd, 3 Wend. 83 ; Fisher et al. v. Camp- bell, 9 Port. 213; Dresser Manufacturing Co. V. Waterston et al., 3 Mete. 18 ; Cowan V. Adams et al., 10 Maine 374; Morrison's Exr. V. Taylor, 6 B. Mon. 85 ; Lance v. Barrett,! Hill(S.C.) 204; Lagow j;. Patter- son, 1 Blackf. 252 ; Thorndike v. Godfrey, 3 Greenlf. 431 ; Dehart, &c., v. Wilson, &c., 6 Mon. 581 ; Admrs. of Mitchell et al. v. Sproul, 5 J. J. Marsh. 267 ; Powell v. Buck, 4 Strobh. 427 ; Scott v. McGrath, 7 Barb. 53; Reany v. Culbertson, 21 Penn. St. 507 ; Shepley v. Little, 6 Watts 500 ; Par- sons V. Webb, 8 Greenl. 38 ; Stewart v. Donnelly, 4 Yerg. 177; Snow v. Perry, 9 398 OF TITLE. provisions of these acts are too long to be here inserted ; but their general effect is to render valid sales and pledges made by factors or agents, not- Pick. 539 ; Arnold et al. v. Hallenbrake et al., 5 Wend. 34 ; Pursley ?'. Morrison, 1 Ind. 356 ; and one dealing with a special agent is bound to inquire, and ascertain the extent of his authority: Schimmelpe- nich et al. v. Bayard et al., 1 Peters 2G4 ; Snow V. Perry, 9 Pick. 539 ; Fisher et al. V. Campbell, 9 Port. 213; Murdock v. Mills et al., 11 Mete. 5; Powell v. Buck, 4 Strobh. 42V; Powell v. Henry, 2T Ala. 612; Tidrick «. Rice, 13 Iowa 214; Berry V. Anderson, 22 Ind. 36 ; particularly where one is acting in a public capacity, or as the representative of a corporation, for then the limit of his power may be readily ascertained by a reference to statute or records : Salem Bank v. Gloucester Bank, 17 Mass. 29; Bryant v. Moore, 26 Maine 86; Denning v. Smith, 3 Johns. Ch. 344; Baltimore v. Eschbach, 18 Md. 276 ; Murray V. Carothers, 1 Mete. (Ky.) 171 ; State v. Haskell, 20 Iowa 276 ; but even in the case of a limited agency, the deputy may have a general authority to accomplish the pur- pose for which he was created, " or be limited to do it in a particular manner. If the limitation, respecting the manner of doing it, be public, or known to the person witk whom he deals, the principal will not be bound, if the instructions are exceeded and violated. If such limitation be private, the agent may accomplish the object in violation of his instructions, and yet bind his principal by his acts:" Bryant V. Moore, 26 Maine 86 ; Hotch v. Taylor, 10 N. H. 538 ; WaJker v. Skip with, 1 Meigs 507 ; Lightbody v. The N. A. Ins. Co., 23 Wend. 22 ; N. River Bank v. Aymar, 3 Hill 266 ; and if the principal has by( his decla- rations, given rise to the opinion, that he has granted greater powers than have in fact been given, he will not be allowed to avail himself of the imposition, to ward oS' responsibilities which have arisen from his representations : Schimmelpenich et al. V. Bayard et al., 1 Peters 264 ; Perkins V. The Washington Insurance Co., 4 Cowen 645; Dodge v. McDonnell, 14 Wis. 553. In accordance with the above princi- ples, it has been held, that a factor cannot pledge the goods of his principal : Kinder et al. V. Shaw et al., 2 Mass. 398 ; Van Amringe v. Peabody et al., 1 Mass. 440 ; Rodrighez v. Hofferman et als., 5 Johns. Ch. 417; Evans v. Potter, 2 Galls. 13; Kelly et al. v. Smith et al., 1 Blatch. 290 ; Michigan State Bank v. Gardner, 15 Gray 362 ; First, &c., Bank v. Nelson, 38 Geo. 391 ; and the reason is, that his authority is only to sell : Laussatt v. Lippincott et al., 8 S. & R. 391 ; nor can he deliver the goods of his principal, to a creditor in payment of his own debt, even though he have a lien upon them : Benny et al. v. Rhodes, 18 Mo. 147; Same v. Pegram, Id. 191 ; but if the factor has a lien, he may pledge the goods for his own debt, to the amount of the lien : Warner v. Martin, II How. 209 ; where, however, an agent has pledged his employer's goods, he does not thereby lose his right to sell them ; and if he does so, and the pledgee afterwards disposes of them, he will be liable to the purchaser : Nowell et al. v. Pratt et al., 5 Gush. Ill ; but by statute, generally, a factor may pledge his principal's goods, and if the pledgee takes with notice that the pledgor is a factor, he will acquire only the lien which the factor had ; if, however, he takes without notice, he will have the same interest as he would if the factor had been owner. An agent authorized to assist in a settlement, has no power to pledge : Swelt et al. v. Brown, 5 Pick. 178 ; Wood v. McLain, 7 Ala. 800; Jones V. Farley, 6 Greenl. 226 ; Hewes v. Dodd- ridge, 1 Rob. (Va.) 143 ; nor is a power to settle, a power to arbitrate : Huber v. Zimmerman,. 21 Ala. 488 ; nor a power to sell land, a power to exchange : Reese v. Medlock, 27 Texas 120; or to make parti- tion : Bosel v. Rollins, 30 Cal. 408. A power to draw notes is not fulfilled by giving a bond : Banorgee v. Hovey et al., 5 Mass. 11 ; and when authorized to be drawn or endorsed for one purpose, the OF TITLE, 398 withstanding any notice of the fact of their being merely factors or agents, provided the party dealing with them have no notice that they are acting authority does not extend to negotiating them for any other object : Hortons et al. V. Townes, 6 Leigh 47 ; Planters' Bank v. Cameron et al., 3 Sm. & M. 609 ; Suckley V. Turner et al., 1 Brev. 257, s. c, 2 Bay 505 ; Palmer v. Garrington, 1 Ohio St. 253 ; so, if directed to be drawn payable on a certain day, they cannot be made payable at an earlier time : Batty v. Carswell et al., 2 Johns. 48 ; Tate et al. v. Evans et al., 7 Mo. 419 ; Johnson v. Craig, 21 Ark. 533; in the case of The Bank of the United States v. Bevine et al., 1 Gratt. 539, where nine persons jointly author- ized J. B. S. to endorse for them, jointly, all notes drawn payable to J. B. S., it was held that this power did not extend to the endorsing of a note drawn payablii to one of the principals. On the other hand, an agent cannot bind his principal, by giving a note, when he is merely authorized to pay a sum of money : Webber v. The President, &c., of Williams College, 23 Pick. 302 ; Savage v. Rix et al., 9 N. H. 203 ; or to make purchases : Taber v. Cannon et al., 8 Mete. 456 ; Emerson et al. V. The Providence Hat Manufacturing Company, 12 Mass. 237; Dennison v. Ty- son, 17 Vt. 550 ; or to manage a grocery: Smith et al. y. Gibson, 6 Blackf. 369 ; or to take care of a plantation : Scarborough V. Reynolds, 12 Ala. 252; nor will a power to receive and pay debts, or take notes, or construct carriages, authorize the issuing of a promissory note : Martin v. Walton & Co., 1 McCord 16; McCuUoch v. McKee, 16 Penn. St. 289 ; Paige v. Stone et al., 10 Mete. 160 ; Hays et al. v. Lynn, 7 Watts 524; Temple v. Pomroy, 4 Gray 128. A power to purchase, with money furnished for that purpose, is no power to buy on credit : Boston Iron Company v. Hale, 8 N. H. 363; Patton v. Brittain, 10 Ired. 8; Weight V. Burbank, 64 Penn. St. 247 ; nor is the credit system allowable, to one who is empowered to conduct a business on cash principles : Stoddard & Co. v. Mcllvain et al., 7 Rich. 525; and special authority to sell does not authorize a sale on credit : Payne v. Potter, 9 Iowa 549 ; or include a power of substitution : Coxe V. England, 15 Penn. St. 212 ; or to receive confederate notes in lieu of money : Thomas v. Thompson, 19 La. Ann 487; Shiner v. Green, 3 Cold. (Tenn.) 419 ; or, even to receive the purchase-money : Law V. Stokes, 3 Vroom 249. There are many similar cases, deciding that an agent's power is to be 'restricted to the authority creating him : Hefferuan v. Adams, 7 Watts 116; Hopkins v. Blanc, 1 Call 361; Calef V. Foster, 32 Maine 92 ; Shriver v. Stevens, 2 Jones L. 258 ; Hampton et al. V. Matthews et al., 14 Penn. St. 105 ; Nash V. Drew, 5 Cush. 422 ; Soule v. Dougherty, 24 Vt. 92 ; Yrquhart v. Mclver, 4 Johns. 113; Ives v. Davenport, 3 Hill 273; Woodbury v. Larned, 5 Min. 339; Cochran v. Richardson, 33 Vt. 169 ; Ha- gerstown Bank v. Loudon Saving Fund So- ciety, 3 Grant's Cas. 135 ; Tate v. Citizens, &c., Insurance Company, 13 Gray 79 ; Hazletine v. Miller, 44 Maine 177; Seiple V. Irwin, 30 Penn. St. 513 ; Brander v. Co- lumbia Insurance Company, 2 Grant's Cas. 412; and see, Cox et al. v. Robinson, 2 Stew. & Port. 91. Where a personal trust or confidence is reposed in an agent, and especially where the exercise or appli- cation of the power, is made subject to his judgment or discretion, the authority is purely personal, and cannot be dele- gated to another, unless he has a special power of substitution : Lyon v. Jerome, 26 Wend. 485 ; Warner et al. v. Martin, 11 How. 209; Blantin et al. v. Whitaker et al., 11 Humph. 313 ; Pruitt v. Miller, 3 Port. 16. In the cases of Gibson v. Colt et al., 7 Johns. 390 ; Nixon v. Hyserott et al., 5 Id. 159, and Liscomb v. Kitcrell, 11 Humph. 256, it was held that a power to sell, did not authorize a covenant of warranty; but the two former cases have been over- ruled, and the prevailing opinion is, that an agent who is empowered to sell, is 398 OF TITLE. •without authority or mala fide. The authority of an agent acting under a power of attorney, determines by the decease of the person giving the presumed to possess the power of warrant- ing, unless the contrary appear: Nelson V. Cowing et a!., 6 Hill 336 ; Woodford V. McClanahan, 4 Gilm. 85; Peters v. Farnsworth, 15 Vt. 155; Taggart v. Stan- berry, 2 McLean 543 ; Skinner i'. Gunn et al., 9 Port. 305 ; Gaines v. McKinley, 1 Ala. 446; Milburn v. Belloni, 34 Barb. 607 ; Egell v. Franklin, 2 Sneed 236 ; Cocke V. Campbell, 13 Id. 286 ; in other words, a power to sell, implies a power to warrant; unless there is some restriction in the power of sale: Schuchardt v. Al- iens, 1 Wall. (U. S.) 359 ; and this is cer- tainly the case where the sale is usually attended with warranty : Smith v. Tracy, 36 N. Y. 79 ; for everj^ power whether general or special, includes all means necessary for carrying it into effect or operation, in accordance with the legal maxim cut cunque aliquid concedilur etiam et id sine quo res ipsa non esse potest : Peck et al. I'. Harriott et al., 6 S. & R. 146 ; Andrews v. Kueeland, 6 Cowen 354; The Chesapeake Insurance Company v. Stark, 6 Cranch 268 ; Perrotin v. Cuculla, 6 La. 587 ; N. River Bank v. Aymar, 3 Hill 266; The Merchants' Bank of Georgia V. The Central Bank of Georgia, 1 Kellj- 418 ; Rouse et al.. Overseers, &c., v. Moore et al., Overseers, kc, 18 Johns. 407 ; And- over V. Grafton, 7 N. H. 298 ; Sandford v. Handy, 23 Wend. 260 ; Valentine v. Piper, 22 Pick. 92 ; Vanada's Heirs v. Hopkins, Admr., &c., 1 J. J. Marsh. 285 ; Wilson v. Troup, 2 Cowen 197 ; Goodale v. Wheeler, II N. H. 424; Babcock j;. The Western Railroad Corporation, 9 Mete. 556 ; Mc- Alpin V. Cassidy, 17 Texas 449; hence, •where an agent is directed to purchase, and no money is furnished, he may buy on credit: Sprague et al. v. Gillett et al., 9 Mete. 91; Chomqua v. Mason etal., 6 Gall. 342 ; or power to collect, authorizes insti- tution of suit : Joyce v. Duplessis, 15 La. Ann. 242 ; and it is presumed that goods are to be sold, when placed in the posses- sion of one whose business it is to sell : Gibbs et al. v. Linsley, 13 Vt. 208 ; so in all cases where no express direction is given in regard to the manner of perform- ing the duty, it is implied that it is to be done in the ordinary way, and that any custom or known usage shall be followed : Van Allen v. Vanderpoel, 6 Johns. 69; James et al. v. McCredie et al., I Bay 294; State of Illinois v. Delafield, 8 Paige Ch. 527 ; McClure v. Richardson, Rice 218 ; Ives v. Davenport, 3 Hill (N. Y.) 373 ; May V. Mitchell, 5 Humph. 365; Leland v. Douglass, 1 Wend. 490; Frost v. Wood, 2 Conn. 23 ; Bates v. The Keith Iron Com- pany, 7 Mete. 225; Owings v. Hall, 9 Peters 608 ; Fraser & Co. v. Tenants & Co., 5 Richard. 375 ; Northern, &c.. Rail- road Company v. Bastian, 15 Md. 494; Hutchings v. Ladd, 16 Mich. 493; Mer- chants' Bank v. State Bank, 10 Wall. (U. S.) 604. But the implied powers of agents, will not extend, beyond the regu- lar and general course of their business employment: Jones v. Warner, 11 Conn. 11; Pourie et al. v. Fraser, 2 Bay 269; Topham v. Roche, 2 Hill (S. C.) 307 ; Kerns V. Piper, 4 Watts 222 ; Washington Bank v. Lewis, 22 Pick. 24 ; Cox v. Hoffman, 4 Dev. & Bat. 180 ; xMorton v. Scull, 23 Ark. 289. The principal may ratify the acts of an agent who has exceeded his powers; and if, being informed of the disobedience ot his orders, the principal makes no objec- tion, or is silent respecting it, it is con- sidered a recognition of his agent's acts : Courcier v. Ritter, 4 Wash. C. C. 549 ; Snow V. Perry, 9 Pick. 539; Cox et al. v. Robinson, 2 Stew. & Port. 91 ; The Mer- chants' Bank of Geo. v. The Central Bank of Geo., 1 Kelly 418 ; Wood v. McCain, 7 Ala. 800 ; Despatch Line of Packets v. Bellamy Manufacturing Co., &c., 12 N. H. 205 ; Weed et al. v. Carpen- ter, 4 Wend. 219; Bosley v. Farquhar et al., 2 Blackf. 01 ; Hotch v. Taylor, 10 N. H. 538; Patton v. Britton, 10 Ired. 8; Burrit's Survivors v. Bench et al., 4 McLean 325 ; Very v. Levy, 13 How. 345 ; OF TITLE. 398 power.(t) But by a recent act, no trustee, executor or administrator making any payment or doing any act bond fide in pursuance of any power of attorney, in ignorance of the death of the person who gave the (t) Bacon's Abridgment, tit. Authority (E) ; Lepard v. Vernon, 2 Ves. & B. 51. Otherwise where expressed to be valid notwithstanding death. Kiddill v. Farnell, 3 Sm. & G. 428. Cowen V. Wheeler, 31 Maine 439 ; Bigelow et al. V. Denison, 33 Vt. 565 ; Blantier et al. V. Whitaker et al., 11 Humph. 313; Little V. Stillheimer, 13 Mo. 5'72 ; Law v. Cross, 1 Black (U. S.) 533 ; Klopp v. Wit- moyer, 43 Penn. St. 226 ; Seymour v. Wyckoff, 10 N. Y. 213 ; Wright v. Boyn- ton, 37 N. H. 9 ; Workman v. Guthrie, 29 Penn. St. 495 ; Phila. W. & B. Railroad Co. V. Cowell, 28 Id. 329 ; Blen v. Com- pany, 20 Cal. 602 ; Overby v. Overby, 18 La. Ann. 546 ; and tacit recognition by voluntary execution is as conformatory as express ratification : Decuir v. Leguire, 15 La. Ann. 569 ; such a ratification relates back to the time of the granting of the original power, and is equivalent to an authority given in the first instance : Perry v. Hudson, 10 Geo. 362 ; Irons v. Reyburn, 6 Eng. 378 ; Baleston Spa Bank V. Marine Bank, 16 Wis. 120; Lowry v. Harris, 12 Minn. 255 ; but this adoption cannot be apportioned, extending only to a part of the acts of the agent, and reject- ing others, but must embrace the whole or nothing : Hoductt v. Tatum, 9 Ga. 70 ; Crawford et al. v. Barkley, 18 Ala. 270 ; Widner v. Lane, 14 Mich. 124 ; Hender- son V. Cummings, 44 His. 325 ; Mundorf v. Wickersham, 63 Penn. St. 87. In order to authorize the inference of a general agency, it is not necessary that the person should have done an act, the same in species with that in question ; for if he have usually done things of the same gen- eral character and effect, with the assent of his principal, it is enough : Com. Bank V. Norton etal., 1 Hill (N.Y.) 501 ; Arnold etal.v.Halenbrake etal., 5 Wend. 34 ; Kelly t'.Lindsey, 7 Gray 287 ; and where an agency is proved, and its extent is not shown, the presumption is, that it is a general agency : MethuneCo. v. Hayes, 33 Maine 169. The opinion of Chief Justice Collin, in the case of Bearing v. Lightfoot, 16 Ala. 31, contains an epitome of the subject of this note ; he says, " Powers of attorney are ordinarily subject to a strict construc- tion, and the authority is never extended beyond that which is given in terms, or is necessary and proper for carrying the authority so given into full effect But in all cases, whether the agency be general or special, it is said to be a uni- versal principle, that unless the inference is expressly excluded, by other circum- stances, it includes all the usual modes and means of accomplishing the objects and aims of the agency The dis- tinction between a general and universal agent is recognised, and it was said that such a universal authority as the latter may exercise, will never be inferred from any general expression, however broad, but the law will restrain them to the par- ticular business of the party, in respect to which it is presumed, his intention to delegate the authority was principally directed. . . . The difference between a general and a special agent, is said to be this : the former is appointed to act in the affairs of his principal, generally, and the latter to act concerning some particu- lar object. In the former case, the prin- cipal will be bound by the acts of his agent, within the scope of the general author- ity conferred on him^ although those acts are violative of his private instructions and directions. In the latter case, if the agent exceeds the special power conferred on him, the principal is not bound by his acts. . . Although the acts of the agent may be inoperative against the principal, yet it is competent for the latter to ratify them." 398 OF TITLE. power, or of his having clone some act to avoid the power, shall be liable for the money so paid or the act so done.(w) *In ancient times the sale of lands was usually accompanied [ ^^^J \)y a warranty of their title ; and some words, such as the word give in a feoffment, had the effect of an implied warranty, when none was expressed.(y)^ When warranties fell into disuse, the purchasers of lands acquired a right to covenants for the title, varying in their strin- gency according to the nature of the title of the vendor.(a:) No war- ranty, however, rises from the mere sale of goods, unless it be expressly given, or implied from the custom of the trade or the nature of the con- tract ;(?/) but the sale of goods in an open shop or warehouse has lately been held to be an implied warranty that the seller is the owner of the goods. (2) Every affirmation made by the vendor at the time of sale respecting the goods is an express warranty, if it appear to have been so intended.(rt) And if the vendor state that the goods are his own, this amounts to a warranty of his title ;(6) but if the contract for sale be in writing, the warranty must be in writing also.(c) And a warranty made subsequently to the sale is void for want of consideration. (<:?) Contracts made in the course of any trade are always subject to the custom of that trade ; and if by the custom of the trade a warranty is implied in any contract, the vendor *will be bound by it, in the same manner L -I as if he had given an express warranty.(e) So the nature of the contract may be such as to imply a warranty. Thus a contract to furnish goods for a particular purpose, contains an implied warranty that they are fit for that purpose ;(/) and a contract to furnish manufac- (u) Stat. 22 & 23 Yict. c. 35. s. 26. (y) See Principles of the Law of Real Property 344, 1st ed. ; 346, 2d ed. ; 359, 3d ed. ; 365, 4th ed. ; 376, 5th ed. ; 399, 6th ed. ; 407, Tth ed. ; 426, 8th ed. {x) Ibid, 348, 1st ed. ; 349, 2d ed. ; 362, 3d ed. ; 368, 4th ed. ; 379, 5th ed. ; 402, 6th ed. ; 410, 7th ed. ; 429, 8th ed. (.y) Chanter v. Hopkins, 4 M. & W. 399 ; Burnby v. Bollett, 16 M. & W. 644 ; Morley V. Attenborough, 3 Exch. Rep. 500 ; Bagueley v. Hawley, Law Rep. 2 C. P. 625. (z) Eicholtz I'. Bannister, C. P., 11 Jur. X. S. 15 ; 17 C. B. N. S. 708 (E. C. L. R. vol. 112). (a) See Richardson v. Brown, 1 Bing. 344 (E. C. L. R. vol 8) ; Sheppard v. Kain, 5 B. & Aid. 240 (E. C. L. R. vol. 7) ; Power v. Barham, 4 Ad. & E. 473 (E. C. L. R. vol. 31); Carter v. Crick, 4 H. & N. 412. (b) Furniss v. Leicester, Cro. Jac. 474 ; Medina ;'. Stoughton, 1 Salk. 210. (c) Pickering v. Dowson, 4 Taunt. 779. (d) Finch, L. 189. See ante, p. 73. (e) Jones v. Bowden, 4 Taunt. 847. (/) Jones V. Bright, 5 Bing. 533 (E. C. L. R. vol. 15) ; Brown v. Edgington, 2 Man. & Gr. 279 (E. C. L. R. vol. 40). 1 See "Rawle on Covenants for Title," p. 4G7, et seq. OF TITLE. 400 tured goods implies a -warranty that they shall be of a merchantable quality. (^)^ And an important addition to the law of warranty has been {g) Laing v. Fidgeon, 6 Taunt. 108 (E. C. L. R. vol. 1). ^ No particular form of words is required to constitute a warranty of personal pro- perty, nor is tiie word "warrant" neces- sary : Bacon v. Brown, 3 Bibb 35 ; Chap- man V. Murch, 19 Johns. 290 ; Roberts v. Morgan, 2 Cowen 438 ; The Oneida Manu- facturing Soc. V. Lawrence et al., 4 Id. 440 ; Osgood et al. v. Lewis, 2 Har. & G. 429 ; Whitney «. Sutton, 11 Wend. 411 ; Ricks, Admr. v. Dillahunty, 8 Port. 134; Towell et al. V. Gatewood, 2 Scam. 22 ; Beeman V. Black, 3 Vt. 53 ; Banfield v. Brutton, 7 B. Mon. 108; Corley v. Wilkins, 6 Barb. 557 ; Hawkins tJ. Berry, 5 Gilm. 36; Rogers V. Ackerman, 22 Barb. 134 ; and, even where the word " warrant" has been used," there is still room to doubt whether a tech- nical warranty was intended : Starnes et al. V. Erwin, 10 Ired. 226 ; Isley v. Stewart, 4 Dev. & Bat. 160. But a mere representa- tion, affirmation, or description, does not amount to a warranty, even though the property should turn out to be entirely dif- ferent from the article described, or spuri- ous : Barrett t-. Halls, 1 Aik. 269 ; Dyer v. Lewis, 7 Mass. 284 ; Jackson v. Wetherill, 7 S. & R. 480; Hyatt v. Boyle, 5 Gill & Johns. ,110; Hogins v. Plympton,'ll Pick. 97 ; Steward v. Doughterty, 3 Dana 479 ; Welsh V. Carter, 1 Wend. 185 ; Whitman V. Freese et al., 23 Maine 212 ; Wason v. Rowe, 10 Vt. 525 ; McFarland v. Newman, 9 Watts 55 ; Banfield v. Brutton, 7 B. Mon. 108; Lamb v. Crafts, 12 Mete. 355; The Richmond Trading and Manufacturing Co. V. Farquhar, 8 Blackf. 89 ; Humphreys v. ' Comline, Id. 508 ; Hawes et al. v. Lawrence etal.,4 Comst. 345 ; Mackay f.Rhinelander et al., 1 Johns. Cas. 408 ; Wetherill v. Neil- son, 20 Penn. St. 448; Weimer w. Clement, 37 Id. 149 ; Rockafellow v. Baker, 41 Id. 319 ; Hotchkiss v. Gage, 26 Barb. 141 ; O'Neal V. Bacon, 1 Houst. 215; Wheeler y. Read, 36 111. 81 ; and the purchaser can- not claim indemnity, if the goods differ in quality or kind from those represented, unless there has been an express warranty, or fraud, or such circumstances as will amount in law, to an implied warranty : Snell et al. v. Moses et al., 1 Johns. 86 ; Perry v. Aaron, Id. 129 ; Seixas et al. v. Woods, 2 Caiues 48 ; Holden v. Dakin, 4 Johns. 421 ; Davis v. Meeker, 5 Id. 354 ; Sands et al. v. Taylor et al.. Id. 404; Cun- ningham V. Spier, 13 Id. 392 ; Kimmel v. Lichty, 3 Yeates 262 ; Allen v. Cockerill ; 4 Bibb 264 ; Wilson v. Shackleford, 4 Rand 5 ; Neilson et al. v. Dickerson, 1 Desauss. 133 ; Kingsbury v. Taylor, 29 Maine 508 ; Carley v. Wilkins, 6 Barb. 557 ; Weimer v. Clement, 37 Penn. St. 147 ; Eagan v. Call, 34 Id. 236; nor can he complain, for "if he is unwilling to trust his own judgment, he may insist upon a warranty of the quality;" and this will be binding, even where the goods have been examined by the buyer : Willings et al. v. Consequa, Peters C. C. 317; s. c. Id. 172; Pinney «;. Andrus, 41 Vt. 631 ; where, however, a representation or description, is understood by the parties as an absolute assertion, as contradistin- guished from a mere expression of opinion, it is a warranty : The Oneida Manufactur- ing Co. V. Lawrence et al., 4 Cowen 440 ; Osgood et al. v. Lewis, 2 Har. & G. 495 ; Kinley t^. Fitzpatrick, 4 How. (Miss). 59; Morrill v. Wallace et al., 9 N. H. HI; Baum V. Stevens, 2 Ired. 411 ; Erwin v. Maxwell, 3 Murph. 241 ; Ayres v. Parks, Admr., 3 Hawkes 89 ; Gilchrist v. Marrow, 2 Carol. L. Repos. 608 ; Foggart v. Black- welier et al., 4 Ired. 238 ; House v. Firt, 4 Blackf. 293 ; Winsor et al. v. Lombard, 18 Pick. 57 ; McFarland i'. Newman, 9 Watts 55; Foster v. Caldwell, 18 Vt. 176; Bee- man V. Buck, 3 Id. 53 ; Carley v. Wilkins, 6 Barb. 557 ; Tyre v. Causay, 4 Harring. 425 ; Hawkins v. Berry, 5 Gilm. 36 ; Hil- man w. Wilcox, 30 Maine, 170; Ender v. Scott, 6 III. 35 ; Taymon v. Mitchell et al., 1 Md. Ch. Decs. 496; Beals t>. Olmstead, 24 Vt. 114; Lamme v. Gregg, 1 Mete. (Ky). 400 OF TITLE. made by the Merchandise Marks Act, 1862, to the provisions of which we have before referred. (A) (h) Stat. 25 & 26 Vict. c. 88, ante, p. 257. 444; Warren v. Van Pelt, 4 E. D. Smith 202 ; Randall v. Thornton, 43 Maine 226 ; Hahn v. Doolittle; 18 Wis. 196; Jones v. Quick, 28 Ired. 125. In the case of Towell et al. V. Gatewood, 2 Scam. 22, this dis- tinction was lucidl}' drawn by Chief Jus- tice Wilson, who saj-s : " Where the repre- sentation is positive, and relates to a mat- ter of fact, it constitutes a warranty, as that a ship is an American or French ship, or that a crew consists of so many hands. But where the representation relates to that which is a matter of opinion, or fancy, as, for example, the value of a horse or painting, in such case, the representation is to be regarded as an expression of opinion, rather than such a verification of a fact, as will amount to a warranty, unless that idea is excluded by an express warranty, or such other declaration, as leaves no doubt of the intention to make a war- ranty." So, also, if the affirmation be ac- companied with a declaration, that the owner would not be afraid to warrant, it amounts to such : Cooky. Mosely, 13 Wend. 277. Whenever it is doubtful whether a warranty was intended by the parties to a contract, the question is one lying within the province of a jury to determine : Duf- fee I'. Mason, 8 Cowen 25 ; Osgood et al., V. Lewis, 2 Har. & G. 495 ; Whitney v. Sutton, 11 Wend. 411 ; Kinley v. Fitzpat- rick, 4 How. (Miss.) 59; Baum v. Stevens, 2 Ired. 411 ; Foggart v. Blackweller, 4 Id. 238; House v. Firt, 4 Blackf. 293; McFar- land V. Newman, 9 Watts 55; Foster v. Caldwell, 18 Vt. 176 ; Bigler v. Flickenger, 55 Penn. St. 279; Terhune v. Dever, 36 Ga. 648; Bradford, &c., v. Bush, 10 Ala. 386 ; but where the contract is in writing, it must be interpreted by the court : Os- good et al. V. Lewis, 2 Har. & G. 495. Where a person has purchased an arti- cle with the ability or opportunity of an inspection, he will be considered as hav- ing purchased on his own judgment, and will not be entitled to look to the seller, should he be disappointed in the value or quality of the article : Rose et al. v. Beatie, 2 N. «fe McC. 538 ; McFarland v. Newman, 9 Watts 55 ; Salisbury et al. v. Stainer et al., 19 Wend. 159; Barnett v. S'tanton, 2 Ala. 195 ; Baird v. Matthews, 6 Dana 129 ; Dillard v. Moore, 2 Eng. 166 ; Simpson v. Wiggin et al., 3 Wood. & M. 413 ; Tay- mon V. Mitchell et al., 1 Md. Ch. Decs. 496 ; Calhoun v. Vechis, 3 Wash. C. C. 165; Curcier et al. v. Pennock, 14 S. & R. 51 ; Carson v. Baillie, 19 Penn. St. 375 ; Hill v. North, 34 Vt. 604; Hadley v. Cleiton & Co., 13 Ohio St. 502; McGuire v. Kearney, 17 La. Ann. 295 ; and this is upon the prin- ciple, " that the vendee has it in his power to guard against any latent defect or de- ception in the article purchased, by exact- ing a warranty from the vendor ; but if, instead of taking this precaution, he will trust to his own sagacity and judgment, he should bear the loss, if they deceive him:" Welsh V. Carter, 1 Wend. 185; but if the seller has acted fraudulently, he will, not- withstanding, be liable : Henshaw et al. v. Robbins, 9 Mete. 83 ; Hanks v. McKee, 2 Litt. 227. In accordance with the above doctrine, where an article was sold at auc- tion as barilla, and was examined by the purchaser, and a sample exhibited at the sale, and the article turned out to be kelp, it was held, that there was no warranty : Swett V. Colgate et al., 20 Johns. 196 ; and generally speaking, in executed contracts, for the sale of personal property, where there is neither fraud nor express warranty, the purchaser takes the property at his own risk, as to the quality and condition : Moses et al. v. Mead et al., 1 Denio 378 ; s. c. 5 Id. 617 ; Ricks, Admr., v. Dillahunty, 8 Port. 134 ; Lindsay v. Davis, 30 Misso. 406 ; Deming v. Foster, 42 N. H. 165. Some of the states hold, that a sound price implies a sound commodity; this is the law of North and South Carolina : OF TITLE. 400 If goods and chattels should have come into the possession of persons having no title to them, such persons will, in course of time, be quieted Crawford v. Wilson, 2 Constitutional R. 352; Whitefield v. McLeod, 2 Bay 380; State V. Gaillard et al., Id. 19 ; Lester v. Exrs. of Graham, 1 Constitutional R. 182 ; Timrod v. Shoolbred, 1 Bay 324 ; Barnard V. Yates, 1 N. & McC. 142 ; Missroon et al. V. Waldo et al., 2 Id. 76 ; Rose et al. v. Beatie, 2 N. & McC. 538 ; Ashley v. Reeves, 2 McC. 432; Toris v. Long, 1 Tayl. 17; Vaughan v. Campbell, 2 Brev, 53 ; Furman V, Miller, Id. 127; but most of the states entirely repudiate this doctrine : Sexas et al. V. Woods, 2 Caines 48 ; Fleming v. Slocum, 18 Johns. 403 ; Johnston v. Cope et al., 3 Har. & Johns. 89 ; Penniman v. Pierson, Chip. (Vt.) 394 ; Dean v. Mason, 4 Conn. 428 ; Cozzins v. Whitaker, 3 Stew. & Port. 322 ; Hart et al. v. Wright, 17 Wend. 267 ; s. c. 18 Id. 449 ; West v. Cun- ningham, 9 Port. 104 ; Mixer et al. v. Co- burn, 11 Mete. 559; Hoe v. Sanborn, 21 N. Y. 552 ; Weimer v. Clement, 37 Penn. St. 147 ; Mason v. Chappell, 15 Gratt. 572 ; Hawkins v. King, 30 Geo. 909 ; and in those states, where this principle is ac- knowledged, it is held, that there will not be an implied warranty of soundness, in a case free from fraud, where the purchaser is acquainted with the defect in the article sold : Britain v. Israel et al., 3 Hawks 222 ; Miller v. Yarborough, 1 Rich. 48 ; Porcher, ads. Caldwell, 2 McM. 329 ; Exrs. of Hart v. Edwards, 2 Bail. 306 ; Williams v. Vance, Admr., Dudley L. & Eq. 97 ; Lyles v. Bass, Cheeves L. & Eq. 85 ; Venning v. Gault, Id. 87 ; Watson et al., Admr., v. Boatwright, 1 Rich. 402 ; Wood, Admr., v. Ashe, 1 Strobh. 407 ; Hudgins v. Perry, 7 Ired. 102 ; for a general warranty of soundness does not cover defects which are known to the vendee : Williams v. Ingram, 21" Texas 300 ; of course, there can be no implied warranty, from a sound price, where the vendor positively refuses to warrant : Farr V. Gist, 1 Rich. 68 ; McLean v. Green, 2 McM. 17 ; Limehouse v. Gray, 3 Brev. 321. In cases of sales by sample, most of the decisions maintain that the vendor is re- 32 sponsible, if the quality of the bulk of the commodity is not equal to the sample shown : The Oneida Manufacturing Co. v. Laurence et al., 4 Cowen 440 ; Rose et al. V. Beatie, 2 N. & McC. 538 ; Gallagher et al. V. Waring, 9 Wend. 20 ; Moses et al. v. Mead et al., 1 Denio 378 ; s. c, 6 Id. 617 ; Magee v. Billingsley, 3 Ala. 679 ; Brantley V. Thomas, 22 Texas 270 ; Hall v. Plassau, 19 La. Ann. 11 ; and this principle has been held to apply, even though the purchaser himself takes a sample from the goods : Beebe v. Robert, 12 Wend. 413 ; Boorman V. Jenkins, Id. 566 ; Williams v. Spafford, 8 Pick. 250 ; and so where the sample was made by a warehouseman : Whittaker v. Hueske, 29 Texas 355 ; but in Pennsylvania, where there is a sale by sample, there is no implied warranty that the quality of the goods shall be the same as the sample, but merely that they shall be the same in species : Borrekins v. Bevan et al., 3 Rawle 23 ; Jennings et al. v. Gratz, Id. 168 : Wil- lings et al. v. Consequa, Pet. C. C. 317 ; s. c, Id. 172; Carson et al. v. Baillie, 19 Penn. St. 375 ; Lord v. Grow, 39 Id. 91 ; Fraley v. Bispham, 10 Id. 320 ; in the last of which decisions, Judge Coulter says : " If that case " (Borrekins v. Bevan) "means anything, it means this, that when the thing is sold by sample, and without express warranty, the purchaser takes it at his own risk, unless it should prove to be an article different in kind ; all gradations in quality are at the hazard of the buyer ;" and in Maryland, it has been held, that in order that a sale by sample, should amount to a warranty that the bulk of the article is of the same quality as the sample, it is necessary that the sample should have been so used in contracting, as would amount to an ex- press averment on the part of the seller of the condition and quality of the goods sold : Gunther v. Atwell, 19 Md. 157 ; some of the cases, however, seem to hold an in- termediate doctrine, deciding that there is an implied warranty, that a sample taken 400 OF TITLE. in their enjoyment by virtue of the Statute of Limitations.(/) By this statute all actions of trespass, detinue and replevin for goods or cattle (i) Stat. 21 Jac. I. c. 16. in the usual way, is a fair specimen of the thing sold : Sands et al. v. Taylor et al., 5 Johns. 404; Hargons v. Stone, 1 Seld. ^3 ; Bevine et al. v. Dord, 2 Sandf. 95 ; and in Bradford v. Manly, 13 Mass. 139, it vras held, that a sale by sample, is tantamount to a warranty that the article sold is of the same kind Avith the sample ; but if an opportunity bad been given for examina- tion or inspection, it is a strong circum- stance to prove that the sale has not been by sample : Bevine et al. v. Dord, 2 Sandf. 89 ; and where the sample as well as the bulk of the article contained a latent de- fect, it was held, that there was no im- plied warranty against such defect : Dick- inson t'. Gay, 7 Allen 29. In the sale of provisions for domestic use, there is an implied warranty of fresh- ness: Van Bracklin v. Fonda, 12 Johns. 468 ; Moses et al. v. Mead et al., 1 Denio 378; s. c, 5 Id. 617; but the circum- stances of the sale may be such that there will be no implied warranty, as where the vendor, equally with the vendee, relies upon the brand of the inspector, or the goods are not sold for consumption : Em- erson V. Brigham, 10 Mass. 197; Jones v. Murray, &c., 3 Mon. 83; Moses et al. v. Mead et al., 1 Denio 378 ; s. c. 5 Id. 617 ; Hyland v. Sherman, 2 E. D. Smith 234 ; and generally, wherever articles are sold for a particular use or purpose, there is an implied warranty that they are fit for that purpose : Brenton v. Davis, 8 Blackf. 89 ; Otts V. Alderson, 10 Smed. & Mar. 480 ; Singleton's Admr. v. Kennedy, 9 B. Mon. 222; Beals v. Olmstead, 24 Vt. 114; Cun- ningham V. Hall, Sprague 404 ; Rodgers v. Niles, 11 Ohio St. 48; Overton v. Phe- lan, 2 Head 445 ; Brown v. Murphee, 31 Miss. 91 ; Fish v. Tank, 12 Wis. 276 ; Pease V. Sabin, 38 Vt. 432 ; Divine v. McCor- mick, 50 Barb. 116 ; Street v. Chapman, 29 Ind. 142 ; Hoover v. Peters, 18 Mich. 51 ; but where there is no fraud in the seller, neitlier suppressio vert, nor suggestio falsi, and the purchaser is in possession of all the information necessary to enable hira to make a correct estimate of the value of the thing he is about to purchase, or which, from its nature, would occur to an ordinary observer, the law will not raise an implied warranty on the part of the seller, that it shall answer the pur- pose for which the purchaser bought it : Carnochan v. Gould, 1 Bail. 179. Where a purchase is made without an examination, or an opportunity for it, it seems that there is an implied warranty the thing sold shall be merchantable : Gallagher et al. v. Waring, 9 Wend. 20 ; s. c. 18 Id. 425 ; Howard et al. v. Hoey, 23 Id. 350; Fish v. Roseberry, 22 111. 288; Lanata v. O'Brien, 13 La. Ann. 229 ; Ketchum v. Wells, 19 Wis. 25 ; and there may be an implied warranty by custom ; but it must be either a general usage, or both plaintiff and defendant must be ac- quainted with the custom, in order to raise the warranty: Stevens v. Smith, 21 Vt. 90. Where it is customary to examine an article before shipping it away, it has been held, that the purchaser who neglects to do so, admits the quality to be good : Vanderhorst & Co. v. McTaggart, 2 Bay 498. And see Thompson v. Ashton, 14 Johns. 316. In every sale of a note, or other negotia- ble instrument, there is an implied war- ranty of genuineness : Turner v. Tuttle, 1 Root 350; Jonson v. Titus et al., 2 Hill 606; Herrick v. Whitney et al., 15 Johns. 240 ; Coolidge v. Brigham, 1 Mete. 547 ; s. c. 5 Id. 68 ; Thrall v. Newall, 19 Vt. 203 ; Aldrick v. Jackson, 5 R. I. 218 ; Thompson v. McCuUough, 31 Mo. 224 ; Flynn v. Allen, 57 Penn. St. 482 ; McCay V. Barber, 37 Ga. 423; but in the sale and assignment of a judgment, without re- course, it is not warranted that the pro- ceedings are free from error : Glass v. OF TITLE. 400 must be brought within six years next after the cause of such action ;(/) but if the person entitled to any such action be under age, feme covert, (J) Sect. 3. Reed, 2 Dana 168. In the sale of every personal chattel, there is an implied war- ranty of title : Defreeze v. Trumper, 1 Johns. 274; Rew r. Barber, 3 Cowen 272 ; Hermance v. Vernoy, 6 Johns. 5 ; Gookin et al. V. Graham et al., 5 Humph. 480; Ricks, Admr., v. Dillahunty, 8 Port. 134 ; Boydv. Bopst, 1 Dall. 91 ; Chism v. Woods, Hard. 231 ; Forsythe, &c., v. Ellis, 4 J. J. Marsh. 298 ; Lanier v. Auld, Admr., 1 Murp. 138 ; Moore et al. v. Laugham, 3 Hill (S. C.) 299 ; Chancellor v. Wiggins, 4 B. Mon. 201; Trigg v. Faris, 5 Humph. 343 ; Charlton v. Lay, Id. 496 ; McCoy et al. V. Artcher, 3 Barb. 323 ; Dorsey v. Jackman, 1 S. & R. 42 ; Lines v. Smith, 4 Fla. 47 ; Beninger v. Corwin, 4 Zabr. 257 ; Robinson v. Rice, 20 Mo. 229 ; Sherman v. Champlain Trans. Co., 31 Vt. 162 ; Wil- liamson V. Sammons, 34 Ala. 691 ; and it extends to freedom from prior liens or in- cumbrances : Dresser v. Ainsworth, 9 Barb. 619; Davis v. Smith, 7 Minn. 414; Miller v. Van Tessel, 24 Cal. 458 ; but where the sale of personal property is by a sheriff, constable, or other judicial officer, or by an executor, administrator, or other trustee ; or if the article sold is not, at the time of sale, in the possession of the o^yner, but in that of some third person, there is no implied warranty of title : Morgan v. Fencher, 1 Blackf. 10 ; The Monte Allegre, 9 Wheat. 616 ; Davis v. Murray, 2 Consti- tutional R. 143 ; Robinson v. Cooper, 1 Hill (S. C.) 286; Fuller v. Fowler, 1 Bail. 75 ; Ricks, Admr., v. Dillahunty, 8 Port. 134; Forsythe, &c.. v. Ellis, 4 J. J. Marsh. 298 ; Hensley v. Baker, 10 Mo. 157 ; McCoy et al. V. Artcher, 3 Barb. 323 ; Edick v. Crim, 10 Barb. 445 ; Worthy et al. v. Johnson et al., 8 Geo. 236 ; Scott v. Hix, 2 Sneed 192 ; Long V. Hickingbottom, 28 Miss. 772 ; where, however, a judicial officer "steps out of his oSicial duty, and does what the law has given him no authority to do, he may make himself personally responsible :" The Monte Allegre, 9 Wheat. 616. The law of implied warranties extends as well to cases of exchange, as to those of purchase : Rivers v. Crugett, 1 MoCord 100. Where an express warranty has been given, it does not matter whether the seller knew any unsoundness in the chattel sold or not, for in either case he will be respon- sible : Kimmel v. Lichty, 3 Yeates 262 ; Smith t'. Williams, 1 Car. L. Repos. 263, n. ; Ricks, Admr., v. Dillahunty, 8 Port. 134 ; Beeman v. Buck, 3 Vt. 53 ; Carley v. Wil- kins, 6 Barb. 557; Tyre v. Causay, 4 Bar- ring. 425 ; Bartholomew v. Bushnell, 20 Conn. 271 ; Trice v. Cochran, 8 Graft. 442 ; such a warranty, however, does not extend to anything not included within its terms : Porcher, ads, Caldwell, 2 McMull. 329; Stucky V. Clyburn, Cheeves L. & Eq. R. 186 ; Rodrigues, ads, Habersham, 1 Spear 314 ; McLaughlin v. Horton, 1 Hill (S. C.) 383 ; Wood, Admr., v. Ashe, 1 Strobh. 407 ; thus, a warranty of quality is no warranty of value : Lightburn v. Cooper, 1 Dana 274-; nor will one of title extend to soundness : Smith, &c., v. Miller, 2 Bibb 617 ; Wells v. Spears, 1 McCord 421 ; Hughes, ads, Banks, Id. 537 ; nor will quantity cover quality : Jones v. Murray, &c., 3 Mon. 83 ; Taymon v. Mitchell et al., 1 Md. Ch. Decs. 496 ; but in those places where a sound price implies a sound article, an express warranty of title will not exclude an implied warranty of soundness : Roderigues, ads, Habersham, 1 Spear 314; Wells v. Spears, 1 McCord 421 ; Wood v. Ashe, 3 Strobh. 64. Even an express warranty, will not extend to open and palpable defects : Schuyler v. Russ, 2 Caines 202 ; Long v. Hicks, 2 Humph. 305; Caldwell v. Smith, 4 Dev. & Bat. 64; Stucky v. Clyburn, Cheeves L. & Eq. R. 186; Mulvany v. Rosenberger, 18 Penn. St. 203 ; Fisher v. Pollard, 2 Head 314; hence a wilful and fraudulent repre- sentation by the seller of a fire engine that it was as good as another designated 400 OF TITLE. or non compos mentis, such person shall be at liberty to bring the same action within six years after the disability is removed. (^) The disabili- ties of absence beyond seas and imprisonment have been abolished by a recent statute.(?)^ {k) Sect. 7. (Z) Stat. 19 & 20 Vict. c. 97, ss. 10, 12. engine, and a warranty that it would per- form as well as any other in the western country, is not to be considered violated, because the warranted engine is inferior to others in the country, much larger and more costly, if the inferiority be evident to a common observer : The President, &c., V. Wadleigh, 7 Black. 102 ; but see Wilson V. Ferguson, Cheeves L. & Eq. R. 190. In the case of Otts v. Alderson, 10 Sm. & M. 480, Judge Clayton, in speaking of warranties, uses the following language : " On this subject the general rule is, that the purchaser buys at his own peril, caveat emptor, unless the seller either gives an express warranty, or unless the law imply a warranty from the circumstances of the case, or the nature of the thing sold ; or unless the seller be guilty of fraudulent representation or concealment, in respect to a material inducement to the sale. No particular form of words is necessary, to the creation of a warranty — any affirma- tion or representation, in relation to the article sold, is sufficient, if it be intended to have that effect. There is certainly a tendency in modern cases ... to extend the doctrine of implied warranty . . 1st. A warrant is implied, that the seller has title. 2d. That the articles are merchantable, when, from their nature or situation at the time of the sale, an exam- ination is impracticable. This rule is most frequently brought into requisition where the seller is a manufacturer. 3d. Upon an executory contract to manufac- ture an article, or to furnish it for a par- ticular use or purpose, a warranty will be implied, that it is reasonably fit and proper for such purpose and use, as far as any article of such kind can be. 4th. A war- ranty is implied, against all latent defects, in two cases; first, where the seller knew the buyer did not rely on his own judg- ment, but on that of the seller, who knew, or might have known, the existence of the defects ; and second, where a manufac- turer, or producer, undertakes to furnish articles of his manufacture or produce, in answer to an order. 5th. That goods sold by sample, correspond with the sample, in quality. Another exception to the rule, that a purchaser ordinarily buys at his own risk, is, where the vendor has been guilty of fraudulent representation or con- cealment." 1 The time within which a personal ac- tion may be brought, is different in the different States. In Pennsylvania, by an act of the 27th of March, 1713, it is en- acted, that "All actions of trespass guare clausumf regit, all actions of detinue, trover, and replevin, for taking away goods, and cattle, all actions upon account, and upon the case, other than such accounts as con- cern the trade of merchandise, between merchant and merchant, their factors or servants, all actions of debt, grounded upon any lending or contract, without specialty, all actions of debt for arrearages of rent, except the proprietaries' quit- rents, and all actions of trespass, of as- sault, menace, battery, wounding, and imprisonment, or any of them, which shall be sued or brought at any time after the 25th day of April, which shall be in the year of our Lord, 1713, shall be com- menced and sueii within the time and limitation hereafter expressed, and not after ; that is to say, the said actions upon the case, other than for slander, and the said actions for account, and the said ac- tions for trespass, debt, detinue, and re- plevin for goods or cattle, and the said actions of trespass guare clausum fregit, within six years next after the cause of such actions or suit, and not after. And the said actions of trespass, of assault, OF TITLE. 400 Choses in action, whether legal or equitable, differ from choscs in possession in this, that the title to them is endangered rather than strengthened by the Statutes of Limitation. This difference arises from the nature *of the property. Goods and chattels may exist n^,,^^-, without any owner ; but if there cease to be a person entitled to ^ -^ a debt, the debt itself ceases to exist. The time within which actions or suits may be brought for the recovery of choses in action varies accord- ing to the nature of the security. The law on this subject has been ren- dered somewhat difficult by two different acts of parliament(m) varying from each other, passed the same session of parliament, and each intended to amend the law. The following, however, appear to be the distinctions. If the chose in action be money secured by any mortgage, judgment(7i) or lien, or otherwise charged upon or payable out of any real estate at law or in equity, or any legacy, (o) or the personal estate or any share of the personal estate of a person who has died intestate,(p) no action or suit can be brought to recover the same but within twenty years next after a present right to receive the same shall have accrued to some person capable of giving a discharge for or release of the same ; unless in the meantime some part of the principal money, or some interest thereon, shall have been paid, or some acknowledgment of the right thereto shall {m) Stats. 3 & 4 Will. IV. cc. 27, 42. (o) Sheppard v. Duke, 9 Sim. 567. (w) Watson v. Birch, 15 Sim. 523. {p) Stat. 23 & 24 Vict. c. 38, s. 13. menace, battery, wounding, imprisonment, or any of them, within two years next after the cause of such actions or suits, and not after. And the said actions upon the case for words, within one year next after the words spoken, and not after :" Purd. Dig. (1861), p. 655. In New Hampshire, it is provided, that "Actions of trespass to the person, and actions for defamatory words, may be brought within two years, and all other personal actions within six years after the cause of action accrued, and not after- ward. Actions of debt upon judgments, recognisances, and contracts under seal, may be brought within twenty years after the cause of action accrued, and not after- ward:" Gen. Stats, of N. H., p. 408, Chap, ccii., sees. 3 & 4. For statutes of limita- tion of personal actions, see Stats, of S. C. vol. ii., p. 585, &c. ; Caruthers & Nichol- son's Stat. Laws of Tenn., p. 439, &c. ; Laws of Del. Rev. Code (1852), p. 440, &c. ; Dig. of the Stats, of Arkansas, p. 696, &c. ; How. & Hutch. Stat. Laws of Miss., p. 569, &c. ; New Dig. Laws of Ga. (1851) by T. R. R. Cobb, vol. 1, pp. 561, 562, 564, 566 ; Thompson's Dig. Laws of Fla., p. 441, &c. ; Rev. Stats, of Vt. (1839), p. 305, &c. ; Clay's Ala. Dig. p. 326, &c. Rev. Stats, of ^. C. (183G-7), p. 372, &c. Paschall's Dig. Laws of Texas, p. 758, art 4604; 2 Mattbews's Dig. Va. (1857), p. 405 &c. ; 3 Rev. Stats, of New York (5th ed.) p. 505 ; Compiled Laws of Michigan, vol ii. (1857), p. 1406, &c. ; 1 Md. Code (1860) p. 395, &c. ; Supple. Md. Code, p. 153, art 57, sec. 1 ; Gen. Stats, of Mass. (1860) p 777, &c. ; Rev. Stats, of Maine (1857) p 509, &c. ; Nixon's Dig. of N.J. (1868) p 509, &c. ; 2 Rev. Stats, of Ky. (I860) p, 126, &c. ; 2 Rev. Stats, of Ohio (1860), p. 947 &c. > Wood's Cal. Dig. (1860), p. 45, &c. Rev. Stats, of Miss. (1845), p. 716, &c. Gen. Stats, of Kansas (1868), art. iii., p 632, &c. 401 OF TITLE. have been given in Avriting signed by the person by whom the same shall be payable, or his agent,(r/) to the person entitled thereto or his agent ;{r) and in such case no such action or suit shall be brought but within twenty years after such payment or acknowledgment, or the last of such payments or acknowledgments, if more than one, was made or given. (s) If the f'^dOOl *chose in action be rent due upon an indenture of demise, or money secured by bond or other specialty, or by a recognisance, an action must also be brought within tivcnty years after the cause of such action, (^) or wuthin twenty years after the removal of any of the disabilities of infancy, coverture or lunacy.(w) And if any person against whom there is any such cause of action shall be beyond the seas at the time such cause of action accrued, the person entitled to any such cause of action may bring the same against him within twenty years after his return. (t;) And the absence of a joint debtor beyond the seas will not prevent time from running in favor of the others, who may not be beyond the seas ; and the recovery of judgment against them will not prevent the creditor from commencing an action against the absent debtor after his return.(a;) If any acknowledgment shall have been made, either by writing signed by the party liable,(?/) or his agent, or by part pay- ment or part satisfaction on account of any principal or interest then due, the person entitled may bring his action for the money remaining unpaid, and so acknowledged to be due, within twenty years after such acknowledgment, or within twenty years after any of the above mentioned disabilities shall have ceased, or the party liable shall returned from beyond the seas, as the case may be. (2) If the chose in action consist of arrears of dower, neither such arrears nor damages on account thereof can be recovered or obtained by any action or suit for a longer period than six years next before the r*4-0m *commencement of such action or suit.(a) Arrears of rent or of interest in respect of any sum of money charged upon or payable out of any real estate or in respect of any legacy, can be re- covered only within six years next after the same shall have become due, {q) Lord St. John v. Boughton, 9 Sim. 219. (r) Blair v. Nugent, 3 Jones & Lat. 673, 677. (s) Stat. 3 & 4 Will. IV. c. 27, s. 40. {t) Stat. 3 & 4 Vill. IV. c. 42, s. 3. (m) Stat. 3 & 4 Will. IV. c. 42, s. 4 ; 19 & 20 Vict. c. 97, s. 10; Pardo v. Bingham, L. C, 17 W. R. 419. {v) Stat. 3 & 4 Will. IV. c. 42, s. 4. (z) Stat. 19 & 20 Vict. c. 97, s. 11. (;/) See Roddam v. Jlorley, 1 De G. & J. 1 ; Moodie v. Bannister, 4 Drew. 432 ; Coope V. Crcsswell, L. C, Law Rep. 2 Ch. Ap. 112. {z) Stat. 3 & 4 Will. IV. c. 42, s. 5 ; Kempe v. Gibbon, 9 Q. B. 609 (E. G. L. R. vol. 58). (a) Stat. 3 & 4 Will. IV. c. 27, s. 41. OF TITLE. 403 or next after an acknowledgment of the same in writing shall have been given to the person entitled thereto, or his agent, signed by the person by whom the same was payable, or his agent.(5) But if such arrears are secured to the claimant(c) by indenture of demise, ((?) or by bond or other specialty,(. Cranel'edlt, 3 Myl. & Cr. 499. \y) Stats. 56 Geo. III. c. 60 ; 8 & 9 Vict. c. 62. (z) Stat. 56 Geo. III. c. 60, s. 4. {a) Stat. 50 Geo. III. c. 60, s. 5 ; 24 Vict. c. 3, s. 8 ; Ex parte Ram, 3 Myl. & Cr. 25 ; Hunt V. Peacock, 6 Hare 301. OF TITLE. 407 shall soon appear and make out his claim. And when the stock or divi- dends are directed to be transferred or paid by any order of tlie Court of Chancery, the notice must also state the purport or effect of such order •,{b) and any person may at any time before the actual retransfer of the stock, or payment of the dividends to any such claimant, apply to the Court of Chancery by motion or petition to rescind, alter or vary any order made for such transfer or payment. (c) When a chose in action, whether legal or equitable, is transferred from one person to another, notice of the assignment should be given by the transferee to the person liable to the action at law or suit in equity, the right to bring which is the subject of the transfer.(cZ) Thus if a debt be as- signed, notice of assignment should be given to the debtor.^ If the (b) Stat. 8 & 9 Vict. c. G2, s. 2. (c) Sect. 3. (d) Dearie v. Hall, Loveridge v. Cooper, 3 Russ. 1 ; Bright's Trusts, 21 Bear. 430. ^ An assignment of a chose in action is valid, in equity, if made upon a good con- sideration, and witli notice to the debtor: Admr. of Sheftall v. Admr. of Clay, Charlt. 230 ; Anderson et al. v. Van Allen, 12 Johns. 343 ; Briggs v. Dorr, 19 Id. 95 ; Van Vechten v. Graves, 4 Id. 403 ; Littlefield w. Story, 3 Id. 425 ; Wardell v. Eden, 2 Johns. Cas. 121 ; Henry v. Milham, 1 Green 266; Perkins v. Parker, 1 Mass. 117; Corser u. Craig, 1 Wash. C. C. 424 ; Noyes v. Brown, 33 Vt. 431 ; but the debtor should have notice of the transfer : Wood v. Partridge, 11 Mass. 491 ; Foster v. Sinkler, 4 Id. 450; Comstock V. Faruum, 2 Id. 97 ; Davenport V. Woodbridge 8 Greenlf. 18 ; for, as was said in the latter case, "although upon the assignment, the original creditor ceases to be, for any beneficial purpose, the owner of the demand, and cannot receive it, or any part of it, to his own use ; yet if the debtor, ignorant of such assignment, make payments to him, they are to be allowed in his favor. And this qualification of the right of the assignee, is for the equitable protection of the debtor. But if the latter has notice of the assignment, what he afterwards pays to the original debtor, he pays in his own wrong ;" and notwith- standing such payments, he will still be liable to the assignee : Stevens v. Stevens, 1 Ash. 190 ; Jones v. Whitter, 13 Mass. 307 ; Jenkins v. Brewster, 14 Id. 291 ; Littlefield V. Story, 3 Johns. 425 ; Clark v. Rogers, 2 Greenl. 143 ; Swett v. Green, 4 Id. 384 ; Holland v. Dale, Minor 265 ; and so also, if after an assignment with notice, the ori- ginal creditor execute a release, the claim is not thereby extinguished : Welsh v. Manderville, 1 Wheat. 236 ; s. c, 5 Id. 277 ; Cowan V. Shields, 1 Overt. 314 ; Dunn v. Snell, 15 Mass. 485 ; Raymond v. Squire, 11 Johns. 47 ; Andrews v. Becker, 1 Johns. Cas. 411 ; Strong v. Strong, 2 Aik. 373 ; Eastman v. Wright, 6 Pick. 316; Wheeler V. Wheeler, 9 Cowen 34. Actual notice, however, of a transfer, is not necessary, for if a party acts in the face of facts and circumstances which were sufficient to put him upon inquiry, he acts contrary to good faith, and on his peril : Anderson et al. v. Van Allen, 12 Johns. 343 ; Tritts, Admr., v. Colwell's Admr., 31 Penn. St. 228 ; as was said in the case of Johnsouv. Bloodgood, 1 Johns. Cas. 52, " The notice by which parties are affected, is either express or implied ; under the head of implied notice, it has been held in a court of equity, ''that what- ever is sufficient to put the party upon inquiry, is good notice.' " But between the parties to the contract, the assignment will be good without notice, either express or implied : Bishop v. Ilolcombe, 10 Conn. 444. At law, where an assignment of a chose 407 OF TITLE. subject of the assignment be the right to stock standing in the name of a trustee, notice of assignment should be given to such trustee. Until such notice be given, it is evident that the debtor may innocently pay the debt, or the trustee transfer the stock to the transferor; or the transferor may fraudulently transfer his right over again to a r*4081 *^^"'^^ person. The transferee, therefore, until he has *given ^ -^ notice to the party liable, has not done all that lies in his power to perfect his title. The chose in action still remains the apparent pro- perty of the transferor ; and in the event of his bankruptcy it would formerly have passed to his assignees as property in his order and dis- position with the consent of the true owner thereof.(e) This, however, is now altered by the Bankruptcy Act, 1869, which expressly excepts things in action, other than debts due to the bankrupt in the course of his trade or business. (/) Even the assignees themselves would formerly not have been safe, unless they had given a similar notice to the person liable to the action, the right to bring which was transferred to them by the bankruptcy. (^y The importance of giving notice suggests the pre- caution that every person about to accept an assignment of a chose in action should inquire of the person liable to the action or suit, whether he has had notice of any prior assignment. And if there be two or more persons liable, inquiry should be made of every one of them ; for notice by a prior assignee to any one of them would be equivalent to notice to all.(A) It is also advisable that a written answer should be obtained to every such inquiry, in order that if the assignee should be misled by a false answer, he may be enabled to recover damages for the misrepresen- tation. For it has been doubted whether the answer to such an inquiry be not a representation concerning the ability of the intended assignor within the meaning of Lord Tenterden's act, which requires *that ■- ^ all such representations be made in writing signed by the party (e) Ex parte Munro, Buck. 300 ; Williams v. Thorpe, 2 Sim. 257 ; Thompson v. Spiers, 13 Sim. 469 ; Bartlett v. Bartlett, 1 De G. & J. 127 ; Re Hughes's Trusts, 2 Hem. & Mil. 89 ; Re Webb's Policy, V.-C. M., 15 W. R. 529 ; see ante, p. 54. (/) Stat. 32 & 33 Vict. c. 71, s. 15, par. (5) (ff) Re Barr's Trusts, 4 Kay & J. 219. (h) Smith V. Smith, 2 Cr. & M. 231 ; Meux v. Bell, 1 Hare 73, 87. See Browne v. Savage, 4 Drew. 635, 640. in action has been made, the claim should bring suit in his own name; Mowry v. generally be sued in the name of the as- Todd, 12 Johns. 281; Tiernan et al. v. signor: Admr. of Sheftall v. Admr. of Jackson, 5 Peters 597 ; De Barry «;. Withers Clay, Charlt. 230; Boylston t>. Green, 8 et al., 44 Penn. St. 356, Mass. 465 ; but where the party who is See ante, p. 5 and 26, notes. bound, has recognised the transfer, and i See ante, p. 270, note, and p. 151 promised to pay the new creditor, he may note. OF TITLE. 409 to be charged therewith. (e) The inquiry, however, thus recommended will not of itself strengthen the title of the assignee, further than by assuring him that no previous assignment has been made. In order to obtain a good title, he must himself give notice to the person or one of the persons liable to the debtor demand assigned to him. When this has been done his title will be secure, and will prevail over that of any un- known prior assignee who may have omitted to give such notice. (y) If the property consist of money or stock standing in the name of the accountant-general of the Court of Chancery, or of securities in his possession, (A;) an order of the court should be obtained restraining transfer or payment without notice to the assignee. This order is called a stop order, and will have the same effect as notice of assignment given to any private debtor.(Z) If the property be stock standing in the name of a trustee, who has died without any administration having been taken out to his effects, a distringas obtained by the assignee to restrain the transfer of the stock will confer on him the same priority as notice to the trustee would have done had he been living.(w) When the property consists of a policy of assurance, or of shares in a joint-stock company, notice of the transfer should be given to the office of the company. (w) And with respect to policies of life assurance, it is, as we have seen, now provided that a written notice of the date and purport of the assignment *must be given to the company in order to pass the right to sue r^A-i at on the policy.(oy The title to personal property sometimes depends upon deeds, wills or {i) Lyde v. Barnard, M. & W. 101 ; Swan v. Phillips, 8 Ad. & E. 457 (E. C. L. R. vol. 35) ; see ante, p. 83. (/) Dearie v. Hall, Loveridge v. Cooper, 1 Russ. 1. [k) Williams v. Sjmonds, 9 Beav. 523. {I) Greening v. Beckford, 5 Sim. 195 ; Swayne v. Swayne, 11 Beav. 463. (m) Etty V. Bridges, 2 You. & Col. N. C. 466 ; see ante, p. 205. {n) Williams v. Thorpe, 2 Sim. 257 ; Thompson v. Spiers, 13 Sim. 469 ; West v. Reid, 2 Hare 249 ; Martin v. Sedgwick, 9 Beav. 333 ; Powles v. Page, 3 C. B. 16 (E. C. L. R. vol. 54). (o) Stat. 30 & 31 Vict. c. 144, s. 3 ; ante, p. 178. 1 Almost every policy of insurance con- panies, after the time limited for notice has tains a stipulation, that in cage of an as- expired, in cases which are free from sus- signment, it shall be approved by the com- picion of fraud or unfair dealing; and pany within a certain specified time, after when so approved, the companies waive such transfer ; and that, in default of such all benefit which they might have taken, approval, the policy shall, ipso facto, from the want of notice within the time become null and void ; but in practice, as- required by the policy, signments are approved by insurance com- 410 OF TITLE. Other documents of title of the like nature, and cannot be shown without their production. Thus a reversionary interest in money in the funds, settled by deed or will, may be mortgaged and sold again and again before it becomes an interest in possession. In these cases the purchaser is entitled to an abstract of the deeds, wills, &c., which compose the title, in the same manner as if the subject of the contract had been real estate ; and the original deeds, and the probates or office copies of the wills, must also in like manner be produced for the verification of the abstract.( j;) The purchaser is also entitled either to the possession of the deeds, or if this cannot be had, to attested copies of them, and a covenant for their production, at the expense of the vendor.(^) And when an assignment of any kind of personal property is made by deed, it is usual for the assignor to enter into covenants for the title similar to those entered into under the like circumstances by the grantor of real estate.(r) The vendor of shares in a joint-stock company is bound merely to give such evidence of the constitution of the company, as to shoAV that the proposed transfer will give a valid title to the shares sold.(s) P^.^-,-, *A recent act of parliament provides that any person shall ^ ^ have power to assign personal property, now by law assignable, directly to himself and another person or other persons or corporation, by the like means as he might assign the same to another.(^) Before this act an assignment by A. to himself and B. of leasehold property or choses in possession vested the whole of the property in B. The same act renders criminally punishable the concealment, with intent to defraud, of any deed or instrument material to a title or of any incumbrance, or the falsification of any pedigree on which a title depends.(w) From what has been said it will appear that the title to personal pro- perty is far more simple than that to real estate. And amongst the plans which have appeared for the amendment of the law has been one for adapting the machinery of the funds to the transfer of landed property. {p) See Principles of the Law of Real Property 349, 1st ed.'; 351, 2d ed. ; 364, 3d ed. ; 370, 4th ed. ; 381, 5th ed. ; 404, 6th ed. ; 412, 7th ed. ; 431, 8th ed. ; Hobson v. Bell, 2 Beav. 17. (q) Ibid. 354, 356, 1st ed. ; 356, 358, 2d ed. ; 369, 372, 3d ed. ; 375, 378, 4th ed. ; 389, 5th ed. ; 412, 6th ed. ; 420, 7th ed. ; 440, 8th ed. (r) See Principles of the Law of Real Property 348, 1st ed.'; 349, 2d ed. ; 362, 3d ed. ; 368, 4th ed. ; 379, 5th ed. ; 402, 6th ed. ; 410, 7th ed. (a) Curling v. Flight, 2 Phil. 613. (<) Stat. 22 & 23 Vict. c. 35, s. 21. (u) Sect. 24, extended by stat. 23 & 24 Vict. c. 38, s. 8. OF TITLE. 411 Upon consideration, however, it will perhaps appear that the greater complexity of the title to lands arises partly from the nature of the pro- perty, and partly from the more full power of disposition to which lands are subject. Lands, unlike stock, may be converted from arable to pasture, may be cut up into roads, canals or railways, may be sold by the foot for building purposes, may be let upon lease for terms absolute or determinable, may be held for life, or in tail, as well as in fee, and may be disposed of by contingent remainders, shifting uses and executory devises, without the intervention of any trustees. Personal property, on the contrary, cannot be settled without the intervention of trustees in whom a great degree of personal confidence must necessarily be placed ; but when so settled, the title to it is sometimes as long and intricate as that to real *estate. If the nature of lands could be altered, r^^io-i or if landowners were willing, in order to save themselves expense, to give up some of their powers of disposition, the title to real estate might doubtless be rendered as simple as that to personal property. To the latter alternative, however, few, if any, would be inclined to submit. Whilst, therefore, much might be done to simplify and improve our laws of property by an assimilation of the rules of real and personal estate, where the history of each forms the only ground of variety, care should be taken to preserve untouched such distinctions as are founded on the broad basis of practical difference. APPENDIX (A), Referred to, p. 243. Form of Letters Patent. Victoria by the grace of God of tlie United Kingdom of Great Britain and Ireland Queen Defender of the Faith to all to whom these presents shall come greeting Whereas A. B. of hath by his petition humbly represented unto us that he is in possession of an invention for which the petitioner conceives will be of great public utility That he is the true and first inventor thereof and the same is not in use by any other person or persons to the best of his knowledge and belief The petitioner therefore most humbly prayed that we would be graciously pleased to grant unto him his executors administrators and assigns our royal letters patent for the sole use benefit and advantage of his said invention within our United Kingdom of Great Britain and Ireland the Channel Islands and Isle of Man [Colonies to be mentioned if any] for the term of fourteen years pursuant to the statutes in that ease made and provided [And WHEREAS the said A. B. hath particularly described and ascertained the nature of the said invention and in what manner the same is to be performed by an instrument in writing under his hand and seal and has caused the same to be duly filed in ] And we being willing to give encouragement to all arts and inventions which may be for the public good are graciously pleased to condescend to the petitioner's request Know ye therefore that we of our espe- cial grace certain knowledge and mere motion have given and granted and by these presents for us our heirs and successors do give and grant unto the said A. B. his executors administrators and assigns our especial license full power sole privilege and authority that he the said A. B. his executors administrators and assigns and every of them by himself *and themselves pr by his or their r^^A-iA-i deputy or deputies servants or agents or such others as he the said A. B. '- -^ his executors administrators or assigns shall at any time agree with and no others from time to time and at all times hereafter during the term of years herein expressed shall and lawfully may make use exercise and vend his said invention within our United Kingdom of Great Britain and Ireland the Channel Islands and Isle of .Man(a) in such a manner as to him the said A. B. his executors administrators and assigns or any of them shall in his or their discre- (a) The Colonies should here be mentioned, if any, though it is not so stated iu the printed form annexed to the Act. 33 414 APPENDIX. tion seem meet and that he the said A. B. his executors administrators and assigns shall and lawfully may have and enjoy the whole profit benefit commodity and advantage from time to time coming growing accruing and arising by reason of the said invention for and during the term of years herein mentioned TO HAVE noLD exercise and enjoy the said licenses powers privileges and advantages hereinbefore granted or mentioned to be granted unto the said A. B. his executors administrators and assigns for and during and unto the full end and term of fourteen years from the day of A. D. next and immediately ensuing according to the statute in such case made and provided And to the end that he the said A. B. his executors administrators and assigns and every of them may have and enjoy the full benefit and the sole use and exercise of the said invention according to our gracious intention hereinbefore declared AVe do by these presents for us our heirs and successors require and strictly command all and every person and persons bodies politic and corporate and all other our subjects whatsoever of what estate quality degree name or condition soever they be within our United Kingdom of Great Britain and Ireland the Channel Islands and Isle of Man [Colonies to be mentioned if any] that neither they nor any of them at any time during the continuance of the said term of fourteen years hereby granted either directly or indirectly do make use or put in practice the said invention or any part of the same so attained uuto by the said A. B. as aforesaid nor in anywise counterfeit imitate or resemble r*Al e^l *^^ same nor shall make or cause to be made any addition *thereunto L -'or subtraction from the same whereby to pretend himself or themselves the inventor or inventors devisor or devisors thereof without the consent license or agreement of the said A. B. his executors administrators or assigns in writing under his or their hands and seals first had and obtained in that behalf upon such pains and penalties as can or may be justly inflicted on such offenders for their contempt of this our royal command and further to be answerable to the said A. B. his executors administrators and assigns according to law for his and their damages thereby occasioned And moreover we do by these presents for us our heirs and successors will and command all and singular the justices of the peace mayors sheriffs bailiffs constables headboroughs and all other officers and ministers whatsoever of us our heirs and successors for the time being that they or any of them do not nor shall at any time during the said term hereby granted in anywise molest trouble or hinder the said A. B. his executors admin- istrators or assigns or any of them or his or their deputies servants or agents in or about the due and lawful use or exercise of the aforesaid invention or anything relating thereto Provided always and these our letters patent are and shall be upon this condition that if at any time during the said term hereby granted it shall be made appear to us our heirs or successors or any six or more of our or their Privy Council that this our grant is contrary to law or prejudicial or inconvenient to our subjects in general or that the said invention is not a new invention as to the public use and exercise thereof or that the said A. B. is not the true and first inventor thereof within this realm as aforesaid these our letters APPENDIX. 415 patent shall forthwith cease determine and be utterly void to all intents and purposes anything herein contained to the contrary thereof in anywise notwith- standing Provided also that these our letters patent or anything herein contained shall not extend or be construed to extend to give privilege unto the said A, B. his executors administrators or assigns or any of them to use or imitate any invention or work whatsoever which hath heretofore been found out or invented by any other of our subjects whatsoever and publicly used or exer- cised unto whom our like letters patent or privileges have been already granted for the sole use exercise and benefit *thereof it being our will and r^ici-ip-i pleasure that the said A. B. his executors administrators and assigns - -' and all and every other person and persons to whom like letters patent or privileges have been already granted as aforesaid shall distinctly use and practise their several inventions by them invented and found out according to the true intent and meaning of the same respective letters patent and of these presents Provided likewise nevertheless and these our letters patent are upon this express condition [that if the said A. B. shall not particularly describe and ascertain the nature of his said invention and in what manner the same is to be performed by an instrument in writing under his hand and seal and cause the same to be filed in within calendar months next and immediately after the date of these our letters patent] [and also if the said instrument in writino- filed as aforesaid does not particularly describe and ascertain the nature of the said invention and in what manner the same is to be performed] and also if the said A. B. his executors administrators or assigns shall not pay or cause to be paid at the office ©f our Commissioners of Patents for Inventions the sums following that is to say the sum of pounds on or before the day of A. D. and the stamp duty payable in respect of the certificate of such payment and the sum of pounds on or before the day of A. D. and the stamp duty payable in respect of the certificate of such pay- ment (&) And also if the said A. B. his executors administrators or assigns shall not supply or cause to be supplied for our service all such articles of the said invention as he or they shall be required to supply by the officers or com- missioners administering the department of our service for the use of which the same shall be required in such manner at such times and at and upon such reasonable prices and terms as shall be settled for that purpose by the said officers or commissioners requiring the same that then and in any of the said cases these our letters patent and all liberties and advantages whatsoever hereby granted shall utterly cease determine and become void anything hereinbefore contained to the contrary thereof in anywise *notwithstandnig r^^j^j-i Provided that nothing herein contained shall prevent the granting of licenses in such manner and for such consideration as they may by law be granted And lastly we do by these presents for us our heirs and successors (b) By Stat. 16 & 17 Vict. c. 5, no fees are now payable, but stamp duties only. See ante, p. 236, 417 APPENDIX. grant unto the said A. B. his executors administrators and assigns that these our letters patent on the filing thereof shall be in and by all things good firm valid sufficient and effectual in the law according to the true intent and meaning thereof and shall be taken construed and adjudged in the most favorable and beneficial sense for the best advantage of the said A. B. his executors adminis- trators and assigns as well in all our Courts of Record as elsewhere and by all and singular the officers and ministers whatsoever of us our heirs and successors in our United Kingdom of Great Britain and Ireland the Channel Islands and the Isle of Man [Colonies to be mentioned if any] and amongst all and every the subjects of us our heirs and successors whatsoever and wheresoever not- withstanding the not full and certain describing the nature or quality of the said invention or of the materials thereunto conducing and belonging In witness whereof we have caused these our letters to be made patent this day of A. D. and to be sealed and bear date as of the said day of A. D. in the year of our reign. APPENDIX (B). Eeferred to, pp. 263, 287, 289, 385, 386. Marriage Settlement of a Share of a Testators Resichiary Personal Estate and of Money in the Funds upon the usual Trusts. This Indenture made the day of 1 860 Between Charles Catch- pole of King Street in the city of London gentleman of the first part Grace Gurney of Harley Street in the county of Middlesex spinster of the second part and Henry Hunter of Brixton in the county of Surrey Esquire John James of Lincoln's Inn in the county of Middlesex Esquire and Leonard Lambert of Brighton in the county of Sussex Esquire of the third part Whereas a marriage has been agreed upon and is intended to be shortly solemnized between the said Charles Catchpole and Grace Gurney And whereas under and by virtue of the last will and testament of John Gurney late of Harley Street aforesaid Esquire deceased which said will bears date on or about the ninth day of January 1840 and was proved in the Prerogative Court of the Archbishop of Canterbury (a) on or about the twelfth day of March 1840 the said Grace Gurney is now entitled to one equal undivided fourth part or share or some other part or share of the residuary personal estate of the said testator or the stocks funds or securities in or upon which the same is or may be invested And whereas the said Grace Gurney is possessed of the sum of £5000 £3 per cent. (a) See ante, p. 333. APPENDIX. 418 f consolidated bank annuities which said sum was lately standing in her own name in the books of the governor and company of the Bank of England And WHEREAS upon the treaty for the said intended marriage it was agreed that the said Grrace Grurney should assign the said one equal undivided fourth part or *share or other part or share to which she is entitled as aforesaid of and in the residuary personal estate of her said late father unto the ^ J said Henry Hunter John James and Leonard Lambert their executors adminis- trators and assigns upon and for the trusts intents and purposes hereinafter expressed and declared of and concerning the same i\.nd it was also agreed that the said Grace Gurney should transfer the said sum of £5000 £3 per cent, consolidated bank annuities of which she is possessed as aforesaid into the names of the said Henry Hunter John James and Leonard Lambert to be held by them upon and for the trusts intents and purposes hereinafter expressed and declared of and concerning the same And whereas the said sum of £5000 £3 per cent, consolidated bank annuities hath been accordingly transferred by the said Grace Gurney out of her name into the names of the said Henry Hunter John James and Leonard Lambert and the same is now standing in their names in the books of the governor and company of the Bank of England as they the said Henry Hunter John James and Leonard Lambert do hereby admit and acknowledge Now this Indenture witnessesh that in pursuance of the said agreement in this behalf and in consideration of the said intended marriage she the said Grace Gurney with the consent and approbation of the said Charles Catchpole testified by his being a party to and executing these presents Hath granted bargained sold assigned and transferred and by these presents Doth grant bargain sell assign and transfer unto the said Henry Hunter John James and Leonard Lambert their executors administrators and assigns All that the one equal undivided fourth part or share or other part or share of her the said Grace Gurney under the hereinbefore mentioned will of her said late father John Gurney of and in the residuary personal estate of her said late father and of and in the stocks funds and securities in or upon which the same now is or shall or may at any time or times hereafter be invested and of and in the dividends interest and annual produce thereof And all the right title claim and demand whatsoever at law and in equity of her the said Grace Gurney in and to the said one equal undivided fourth part or share or other part or share hereby assigned To have hold receive and take the said *one r^ioQi equal undivided fourth part or share or other part or share intended to '- be hereby assigned of and in the residuary personal estate of the said John Gurney and the investments and income thereof unto the said Henry Hunter John James and Leonard Lambert their executors administrators and assigns In trust for the said Grace Gurney. her executors administrators and assigns until the solemnization of the said intended marriage and from and immediately after the solemnization thereof UroN and for the trusts intents and purposes and with under and subject to the powers provisos agreements and declarations hereinafter expressed and declared of and concerning the same And the said 420 APPENDIX. Charles Catchpole and Grace Gurney do and each of them doth hereby irrevocably nominate and appoint the said Henry Hunter John James and Leonard Lambert and the survivors and survivor of them his executors administrators and assigns to be the true and lawful attorneys and attorney of them the said Charles Catch- pole and Grace Gurney and each of them(/>) in their his or her names or name to ask recover and receive from the executors of the will of the said John Gurney and all and every persons and person liable to pay or transfer the same the said one equal undivided fourth part or share hereby assigned and to give effectual discharges for the same and on non-payment or non-transfer thereof or of any part thereof to commence carry on and prosecute any action or actions suit or suits or other proceedings whatsoever for obtaining payment or /ransfer thereof And also for all or any of the said purposes from time to time to substitute or appoint any attorney or attorneys under them or him And generally to do and execute all such other matters and things in the premises as shall be necessary they the said Charles Catchpole and Grace Gurney hereby agreeing to allow and confirm whatsoever the said Henry Hunter John James and Leonard Lambert or the survivors or survivors»of them his executors admin- istrators or assigns shall lawfully do or cause to be done in the premises by virtue hereof And it is hereby agreed and declared by and between the said parties hereto that they the said Henry Hunter John James and Leonard Lambert - *their executors administrators and assigns shall stand possessed of and L -• interested in the said sum of £5000 £3 per cent, consolidated bank annuities so transferred into their names as aforesaid In trust for the said Grace Gurney her executors administrators and assigns until the solemnization of the said intended marriage And from and immediately after the solemniza- tion thereof Upon and for the trusts intents and purposes and with under and subject to the powers provisos agreements and declarations hereinafter expressed and contained of and concerning the same And it is hereby agreed and declared by and between the said parties hereto that from and after the solemni- zation of the said intended marriage the said Henry Hunter John James and Leonard Lambert their executors administrators and assigns shall stand possessed of and interested in the said one equal fourth part or share or other part or share hereinbefore assigned of and in the residuary personal estate of the said John Gurney and the investments thereof and the said sum of £5000 £3 per cent, consolidated bank annuities Upon trust that the said trustees or the trustees or trustee for the time being of these presents do and shall either continue the same respectively in their respective actual states of investment or do and shall lay out and invest the same in any of the parliamentary stocks or public funds of Great Britain or at interest upon government or real securities in England or Wales but not in stock of the Bank of England or Ireland or in East India Stock or on real securities in Ireland(c) and do and shall from time to time alter and vary (6) This power of attorney is not absolutely necessary, as the choses in action which are assigned are equitable only ; see ante, p. 117 (c) See ante, pp. 282, 283 a APPENDIX. 421 the said stocks funds and securities for or into others of a like nature as often as the said trustees or trustee shall think fit Provided that every such invest- ment alteration and variation be made with the consent of the said Charles Catchpole and Grace Gurney during their joint lives and after the decease of either of them with the consent of the survivor of them(rf) and after the decease of such survivor at the discretion of the said trustees or trustee for the time being of these presents And it is hereby agreed and declared by and between the said parties hereto that after the solemnization of the said intended marriage the said trustees or *trustee for the time being of these presents shall stand possessed of and interested in the said share of '- ""'-' the residuary personal estate of the said John Gurney and the investments thereof and the said sum of £5000 £3 per cent. co^oUdated bank annuities and the stocks funds and securities in or upon which the same may be invested and the dividends interest and annual produce thereof Upon and for the trusts intents and purposes and under and subject to the powers provisos agreements and declarations hereinafter expressed and declared of and concern- ing the same that is to say Upon trust that they the said trustees or trustee for the time being of these presents do and shall during the life of the said Grace Gurney pay the interest dividends and annual produce thereof unto such person or persons as the said Grace Gurney shall from time to time notwithstanding her said intended or any future coverture appoint by any writing under her hand but not by any mode of anticipation and in default of such appointment into her own hands for her sole and separate use((^) exclusive of the said Charles Catchpole and of any future husband but so that she shall not dispose thereof in any mode of anticipation And the receipts in writing of the said Grace Gurney or of such person or persons as she shall appoint to receive the said dividends interest and annual produce in manner aforesaid but not in any mode of anticipation shall notwithstanding her said intended or any future coverture be effectual discharges for the same And from and immediately alter the decease of the said Grace Gurney Upon trust that the said trustees or trustee for the time being of these presents do and shall pay the dividends interest and annual produce of the said trust moneys stocks funds and securities unto or permit the same to be received by the said Charles Catchpole and his assigns for and during the term of his natural life And from and immediately after the decease of the survivor of them the said Charles Catchpole and Grace Gurney the said trustees or trustee for the time being of these present shall stand and be possessed of and interested in the said trust moneys stocks funds and secu- rities and the dividends interest and annual produce thereof In trust for all and *every or such one or more exclusively of the others or other of the r^): i.-^o-i children or child of the said intended marriage with such provision '- " -^ for their respective maintenance and if more than one in such shares and pro- portions and subject to such limit.itions and conditions over in favor of any (d) See ante, pp. 285, 286. (c) Sec ante, p. 384. 423 APPENDIX. Others or other of the said children and in such nianner(/) as the said Charles Catohpole and Grace Gurney by any deed or deeds instrument or instruments in writing with or without power of revocation and new appointment to be by them sealed and delivered in the presence of and to be attested by two or more credi- ble witnesses shall jointly direct or appoint And in default of such joint direc- tion or appointment and so far as any such joint direction or appointment if incomplete shall not extend as the survivor of them the said Charles Catohpole and Grace Gurney by any deed or deeds instrument or instruments in writing with or without power of revocation and new appointment to be by him or her respectively sealed and delivered in the presence of and to be attested by two or more credible witnesses or by his or her last will or any codicil or testamentary writing to be by him or l^r respectively duly executed (and as to the said Grace Gurney notwithstanding any future coverture) shall direct or appoint And in default of such direction or appointment and so far as any such direction or ap- pointment if incomplete shall not extend In trust tor all and every the children or child of the said intended marriage who being a son or sons shall attain the age of twenty-one years or being a daughter or daughters shall attain that age or marry under that age with the consent of h.'r or their parent or parents guardian or guardians for the time being and to be divided between or amongst the said children if more than one in equal shares as tenants in common and if there shall be but one such child who being a son shall live to attain the age of twenty-one years or being a daughter shall live to attain that age or marry under that age with such consent as aforesaid then the whole shall be in trust for that one or only child But no child taking any part of the said trust moneys stocks funds r^A9Al ^^^^ securities under any appointment to be made in exercise of *auy of L '^ J the aforesaid powers shall be entitled to any share of tlie unappointed part of the said trust moneys stocks funds and securities without bringing his or her appointed share into hotchpot and accounting for the sanie accordingly ( (7) And if there shall be no child or children of the said intended marriage who shall become entitled to the said trust moneys stocks funds and securities under the trusts hereinbefore declared then the said trustees or trustee for the time being shall stand possessed of the said trust moneys stocks funds and securities or so much thereof as shall not have been disposed of under the powers and authorities herein contained and the dividends interest and annual produce thereof (subject nevertheless to the trusts hereinbefore declared) Upon and for the trusts intents and purposes hereinafter expressed and declared of and con- cerning the same that is to say If the said Charles Catohpole shall depart this life in the lifetime of the said Grace Gurney In trust for the said Grace Gur- ney her ex-, cutors administrators and assigns for her own benefit But if the said Grace Gurney shall depart this life in the lifetime of the said Charles Catch- pole then after the decease of the said Charles Catohpole and such failure of children as aforesaid Upon, and for such trusts intents and purposes and in such (/) See ante, pp. 271, 272. (^) See ante, p. 272. APPENDIX. 424 manner as the said Grace Gurney by her last will or any codicil or testamentary writing ^0 be by her duly executed notwithstanding her said intended coverture shall direct or appoint(/t) And in default of such direction or appointment and so far as any such direction or appointment if incomplete shall not extend In TRUST for the person or persons who under the statutes made for the distribu- tion of the estates of intestates would at the decease of the said Grace Gurney be entitled to her personal estate in case she had died possessed of the same in- testate and without having been married and to be divided between or amongst the same persons if more than one in the shares in which the same would under the same statutes be divided between or amongst them Provided always and it is hereby agreed and declared by and between the said parties hereto that after the decease of the said Charles Catchpole and Grace Gurney *and p*^qp-i whilst any child or children of the said intended marriage being a son '- '^ -• or sons shall be under the age of twenty-one years or being a daughter or daugh- ters shall be under that age and unmarried the said trustees or trustee for the time being of these presents do and shall apply the whole or such part as the said trustees or trustee for the time being shall think fit of the dividends interest and annual produce of the expectant or presumptive share of each such child in the said trust moneys stocks funds and securities for or towards his or her mainte- nance and education or otherwise for his or her benefit and that the said trustees or trustee for the time being may either themselves or himself so apply the same or may pay the same to the guardian or guardians of such child for the purpose aforesaid without seeing to the application thereof (t) And do and shall lay out and invest the surplus if any of the said interest dividends and annual produce in the names or name of the said trustees or trustee for the time being in any of the stocks funds or securities hereinbefore mentioned to be li-om time to time altered and varied for or into any other stocks funds and securities of a like nature as often as the said trustees or trustee shall think fit so that the same may accumulate by way of compound interest and the accumulations to be so made shall be added to the fund or respective funds from which the same shall have proceeded and be subject to the same trusts and provisions in every respect and so that the dividends interest and annual produce of each such ac- cumulated fund may be subject to the provision hereinbefore contained for the maintenance and education at any subsequent period of minority of the child from whose expectant or presumptive share the same shall have proceeded Pro- vided ALSO and it is hereby agreed and declared that it shall be lawful for the said trustees or trustee for the time being of these presents during the joint lives of the said Charles Catchpole and Grace Gurney with their consent in writing and after the decease of either of them with the consent in writing of the survivor of them which consent shall be binding whether the said Grace Gurney shall be covert or sole and after the decease of such survivor at the dis- cretion *of the said trustees or trustee for the time being to raise and ^^.^^-. apply a sufficient part of the expectant share of any child of the said '- {h) See atiie, p. 269. (i) See ante, pp. 278-281. 426 APPENDIX. intended marriage in the said trust moneys stocks funds and securities for or towards his or her advancement in the world notwithstanding he or ^le shall not then have attained the age of twenty-one years or after he or she may have attained that age in the lifetime of the said Charles Catchpole and Grace Gur- ncy or the survivor of them Provided always and it is hereby agreed and de- clared by and between the said parties hereto that it shall be lawful for the said trustees or trustee for the time being at any time or times during the lives or life of the said Charles Catchpole and Grace Gurney or the survivor of them with their his or her consent and approbation in writing signed with their his or her hands or hand to convert into money the whole or any part of the said stocks funds and securities and to lay out the moneys arising thereby in the purchase of any freehold or copyhold estates in England or Wales of an estate of inheritance in fee simple in possession free from all incumbrances except quit rents and copyhold and customary dues and services(^) to be conveyed or surrendered to the said trustees or trustee for the time being their or his heirs and assigns Upon trust nevertheless with the consent and approbation of the said Charles Catchpole and Grace Gurney or the survivor of them to be signified by writing signed with their his or her hands or hand during the lifetime of them or the survivor of them and after the decease of the survivor of tliem then at the dis- cretion and of the proper authority of the said trustees or trustee for the time being of these presents to sell and dispose of the said estates which shall have been so purchased as aforesaid either by public auction or private contract in one lot or in parcels subject to such special conditions of sale and for such price or prices as to the said trustees or trustee for the time being shall seem reason- able with power at any public auction of the said premises or any of them to buy in the same or any of them and also to vary or rescind any contract for the sale of the same or any part thereof and to resell the same in manner r*/f 07n *sft>J'6said without responsibility for any loss to be occasioned thereby •- "^ -^ and to convey and assure the said premises which shall be sold to the purchaser or respective purchasers thereof or as he she or they respectively shall direct And upon trust to apply the moneys arising from such sale after pay- ment of the costs charges and expenses attending the same Upon and for such and the same trusts intents and purposes as the moneys so raised and laid out in the purchase of such estates were subject to before such purchase was made or would have been subject to if the same had not been laid out therein And also upon trust in the meantime and until such estates shall be so resold to apply the rents and profits thereof in such manner as the interest dividends and annual produce of the moneys laid out in the purchase thereof would have been applicable under the trusts hereinbefore declared in case such purchase had not been made It being hereby agreed and declared that the estates to be pur- chased under this present power as aforesaid shall when so purchased be con- sidered as money and be subject to such and the same trusts in all respects as {k) See ante, p. 28G. APPENDIX. 427 the moucys laid out in the purchase thereof were subject to before such purchase was made or would have been subject to if the same had not been laid out therein Provided always and it is hereby agreed and declared by and between the said parties hereto that it shall be lawful for the trustees or trustee for the time being of the estates so to be purchased by virtue of such power as aforesaid with the consent and approbation of the said Charles Catchpole and Grace Grurney or the survivor of them testified by some writing under their his or her hands or hand and after the decease of such survivor then at the discretion and of the proper authority of the said trustees or trustee by deed at any time or times to demise and lease the same estates or any of them or any part thereof to any person or persons whomsoever for any term of years not exceeding twenty-one years to take efiect in possession and not by way of future interest at the best yearly rent that can be had or gotten for the same and without any fine or foregift for the making thereof and upon such other terms and conditions as the said trustees or trustee shall think fair and reasonable Provided always and it is hereby agreed and declared by and between *the said parties ^^.^q-. hereto that it shall be lawful for the trustees or trustee for the time L *" J being of these presents with the consent in writing of the said Charles Catch- pole and Grace Gurney during their joint lives and after the decease of either of them with the consent in writing of the survivor of them and after the de- cease of such survivor at the discretion of the said trustees or trustee to settle and ascertain in such manner as they or he shall deem expedient the amount of any moneys properties or efiects due to or claimed by them or him under these presents by virtue of the will of the said John Gurney deceased and also to pass and allow the accounts of the person or persons paying over or transferring the same moneys properties or effects or any part thereof and to accept any moneys properties or efi"ects which the said trustees or trustee for the time being with such consent or at such discretion as aforesaid shall deem it expedient to accept in lieu of or satisfaction for the whole of the said premises hereby assigned and to give releases and discharges to the accounting party or parties for the same premises or any part thereof as fully and effectually as the trustees or trustee for the time being of these presents might or could do if they or he were absolute and beneficial owners or owner of such premises And if any disputes or diffi- culties shall at any time arise in relation to the said premises hereby assigned or any part thereof it shall be lawful for the trustees or trustee for the time being of these presents if they or he shall think proper with such consent or at such discretion as aforesaid to refer any such disputes or difficulties to arbitration in the usual manner or otherwise to settle and adjust the same in such manner in all respects as the said trustees or trustee for the time being with such consent or at such discretion as aforesaid shall think proper Provided also and it is hereby futher agreed that it shall be lawful for the trustees or trustee for the time being of these presents in their or his discretion to postpone or forbear the exercise and enforcement of all or any of the powers and remedies hereby vested in or which shall or may be exercisable by such trustees or trustee by virtue hereof 428 APPENDIX. anything herein contained or any rule at law or equity to the contrary notwithstand- ing Provided also and it is hereby agreed and declared by and between the said r • 1 OQi psi^rties hereto *that the receipts in writing of the trustees or trustee for the '- " -' time being acting in the execution of the trusts or powers of these presents for any moneys payable to them or him by virtue of these presents shall effectually discharge the person or persons paying the same from all responsibility as to the misapplication or nonapplication thereof and from all obligation of seeing to the application thereof (/) And also that it shall be lawful for the trustees or trustee for the time being of these presents but during the lives of the said Charles Catchpole and Grrace Gurney and the life of the survivor of them with their his or her consent in writing to accept other real securities for any part of the said trust funds which may be invested in real securities and the interest thereof in lieu of and as a substitution for the hereditaments or any part of the hereditaments comprised in any such security And also to discharge from any such security any part or parts of the hereditaments therein comprised and with- out which the said trustees or trustee shall deem the existing security or secu- rities sufficient and every such acceptance of a new security and every release of all or any part of the hereditaments comprised in the existing securities shall be binding on all persons interested in the said trust funds and the interest thereof and the persons deriving title to the hereditaments so released shall not be obliged to inquire into the sufficiency in point of value or title of the substituted or retained security or securities Provided also and it is hereby fui-ther agreed and declared by and between the said parties hereto that if the said trustees hereinbefore appointed or any or either Of them or any future trustee or trustees to be appointed as hereinafter is mentioned shall happen to die or shall go to re- side beyond the seas or shall be desirous of being discharged or shall decline or become incapable to act in the trusts or powers herein contained before the same shall be fully performed or otherwise satisfied then and in every such case it shall be lawful for the said Charles Catchpole and Grace Gurney during -their joint lives and after the decease of either of them for the survivor of them and after decease of such survivor for the surviving or continuing trustees or r*iQrn *tri^istee for the time being of these presents or the acting executors or '- -■ administrators of the last surviving or continuing trustee (and for this purpose a retiring trustee shall if willing to act in the execution of this power be considered a continuing trustee) by any deed or deeds instrument or instru- ments in writing to be by them him or her sealed and delivered in the presence of and to be attested by two or more credible witnesses to substitute and appoint any other person or persons to be a trustee or trustees in lieu of the trustee or trustees so dying going to reside beyond the seas desiring to be discharged declining or becoming incapable to act as aforesaid (m) And that when any new trustee or trustees shall have been appointed as aforesaid all the said trust estates moneys and premises which shall be then vested in the trustees or trustee [1) See ante, p. 288. (m) See ante, p. 289. APPENDIX. 430 for the time being of these presents or in the heirs executors or administrators of the last surviving or continuing trustee shall with all convenient speed be conveyed assigned transferred and paid so as effectually to vest the same in the surviving or continuing trustees or trustee and such new or other trustee or trustees or if there shall be no surviving or continuing trustee then in such new trustees or trustee only upon the same trusts as are hereinbefore declared con- cerning the same or such of the same trusts as shall be subsisting or capable of taking effect And it is hereby agreed and declared that every such new trustee shall in all things act and assist in the management and execution of the trusts and powers to which he shall be so appointed as effectually and with the same powers authorities exemptions and discretion as if he had been originally by these presents nominated a trustee for the purposes aforesaid In avitness whereof the said parties to these presents have hereunto set their hands and seals the day and year first above written. INDEX. Ability, representation as to, 83, 408. Absence beyond the seas, saving of disability of, 402. Abstract of title, 410. Acceptance of goods, what is, 41. of offer, 81. Acceptor of a bill, liability of, 86. Accumulation, restraint on, 268. Acknowledgment, remarks on, by wife, of the conveyance of her real estate, 393. Act of bankruptcy, what is, 50, 113, 123, 124, 134, 135, 136, 137, 138, 151. bond fide transactions valid notwithstanding, 151. — See Bankruptcy. Action, chose in, 4-7, 63, 117, 306, 375, 377.— See also Chose in Action. Actions, real, personal and mixed, 3. ex delicto and ex contractu, 63, 64. personal, 3, 64, 65. for dilapidations, 67. of detinue, 3. of trover and conversion, 24, 46, 49. of replevin, 3. of debt, 5, 70. of debt by husband for arrears of wife's rent, 376. limitation of, 400-405. Ademption of specific legacy, 344. Adjudication of bankruptcy, 140. Administration, stamp on letters of, 359. exemptions from, 360. limited, 358. husband's right to, of his wife's effects, 376. Administrator durante minore letate, 329, 358. who appointed, 355. joint, 356. rights and powers of, 357. his year, ib. durante absentid, 358. pendente lite, ib. cum testamento annexo, 359. office of, not transmissible, 360. de bonis non, ib. not bound to plead the Statute of Limitations, 405. Admiralty, high court of, 61, 96. Admission of debt, 137. Advancement to children, to be accounted for in distribution. 301. form of power of, in a settlement, 425. 434 INDEX. Affidavit of debt, filing an, 137. AFTER-acquired property of bankrupt, 158. Agents, 398. Agreements which are required to be in writing, 40, 42, 77. — See Coktr.\cts. stamp on, 78, n. by letter, 81. bonds for performance of, 109. Alien, 46. may be bankrupt, 133. Alienation of choses in possession, 34, 37. void, 46. involuntary, 50, 118. of choses in action, 117, 118, 199, 372, 380. growth of right of testamentary, 321. — See Assignment. Alimony, 390. Allowance of bankrupt, 149. Alteration of a deed, 88. Animals ferx nafurse, 19. Annuities, bank. — See Stock in the Fcnds. Annuity, apportionment of, 2G3. apportionable if given for maintenance, 2G5. legacy duty on, 344. warrant of attorney to secure, 100. personal, 198. Anticipation, restraint on, 385. Appointment of portions, 271. illusory, ib. • exclusive, ib. voluntary, 269. none to executors or administrators of deceased objects, 272. amongst a class, 273. to issue of a child, when good, 274. fraudulent by a father, 275. creating a perpetuity, 275. of new trustees, 289, 291. by wife, in favor of her husband, 387. powers of, 271, 273, 274, 337. given to wife, 386. form of power of, amongst children, 423. |form of power of, by wife, 424. Apportionment of income, 263. Arbitration, 183. in bankruptcy, 144. jurisdiction of the Courts in matters referred to, 183. act for determining differences by, 185. every submission may be made a rule of court, 186. revocation of submission to, ib. death of parties, 188. Arbitrator may state special case, 192. on failure of parties, judge may appoint, 187, 194. death of, 188. appointment of, ib. two may appoint umpire, 194. Arrange-MENTS by deed between a debtor and his creditors, 121, 123, 124, 144, 145. regulations as to, 164. under control of court of bankruptcy, 125, 126, 128. Arrears of rent, 105. of rent, limitation of actions for, 403. action by husband for, of rent of wife's estate, 376. of interest on bond, 108. of interest, limitation of actions for, 403. of dower, 402. INDEX. 435 Arrest on mesne process, 104. Articles of association, 223. quie ipso usu consumuntur, 262. AssEKT of executor, 328. Assets, executor not liable beyond amount of, 342. Assignees of bankrupt, 53, 141. title of, 150. official, 141. of insolvent, 167. Assignment of choses in possession, 34, 35, 36. of choses in action, IIT, 118, 198, 380. notice of, 118, 407. of breaches, 109. of policies of life insurance, 178, 409. of marine policies, 181. of letters patent, 244. of copyright, 249. in trust for creditors, 123, 124, 135. of wife's reversionary choses in action, 380. inquiry as to prior, of chose in action, 408. a person may assign to himself, 410. of choses in action, form of an, 419 AssociATiox, memorandum of, 222, 223. articles of, 223. Assumpsit, 72. Attorney, warrant of, 98. execution and attestation of warrant of, 100. warrant of, formerly executed by insolvent debtor, 170. power of, on assigning a legal chose in action, 117. power of, construed strictly, 398. form of a power of, 420. not liable as a trader to the bankrupt laws, 133. Auction, sale by, 43. Award, 189. time of making, ib. enlargement of time of making, ib. attendance of parties, 190. mode of proceeding, 191. must be certain and final, ib. setting aside, 193. eflfect of, 196. performance of, ib. for payment of money creates a debt, ib. under seal not a deed, 197. stamp on. ib. limitation of actions on, 404. B. Bailee, possession of. 27, 37, 41. Bailment, 26. Bank annuities. See Stock in the Funds. notes, title to, 395. Banker's protection as to presented draft, 85. Banking companies, 214. act for incorporation of, 217. sale of shares, 230. Bankruptcy of joint stock companies, 217. of a trading partnership, 313. of joint creditors, 306. registration of deed of composition, 123, 124. fiat, 139. goods in bankrupt's possession, order or disposition, o4. 34 436 INDEX. Bankruptcy, choses in action in bankrupt's possession, order and disposition, 152, 408. former revival of debt barred by, 76. court of, 96, 139, 140. assignees, 141. does not determine a submission to arbitration, 188. voluntary settlement void in event of, 153, 154, 297. preference, 168. Act, 1869. 54, 132. who may be bankrupt, 132. act of bankruptcy, 50, 113, 123, 124, 134, 135, 136, 137, 138, 151. petition for adjudication, 139. adjudication, 140, 150. advertisement of order of, 140. trustee, 141, 159. appointment of, 142. how trustee sues for debt, 120, 306. committee of inspection, 142, 144. exercise of powers by trustee, 142, 270. management of property by bankrupt, 144. powers of trustee with sanction of committee, ib. to accept composition or general scheme of arrange- ment, 145. trustee, if a solicitor, may be paid for services, ib. proceeds of sale and seizure of goods, ib. proof of debts, 146, 148, 149, 162. what are considered debts, 146. estimate of contingent liabilities, 147. definition of " liability," ib. power of landlord to distrain for one year's rent, 148. proof in case of rent, ib. interest on debts, ib. proof in respect of distinct contracts, 149. allowance to bankrupt, ib. set-off, ib. secured creditor, provision as to, 138, 150. title of trustee relates back to time of act of bankruptcy, 53, 151, 159, 163. protection of certain transactions with bankrupt, 151, 152. voluntary settlements, avoidance of, 153. covenant for future settlement, avoidance of, 154, fraudulent preferences, avoidance of, ib. debts paid rateably in, ib. bankrupt entitled to surplus, 155. certificate, 156. order of discharge, 135, 156, 169, 308. effect of, 157, 170. exception of joint debtors, 158. uncertificated bankrupt, rights and status of, 158, 159. evidence of proceedings in, 141, 160. gazette, 141. privilege of parliament not to prevent adjudication, 160. vacating seat in House of Commons, ib. liquidation by arrangement, regulations as to, 161. bankruptcy of non-traders, 166. 1 & 2 Vict. c. 110. lb. 5 & 6 Vict. c. 116. 170. 24 & 25 Vict. c. 134; 32 & 33 Vict. c. 71. 172, 173. pauper and lunatic prisoners, 172. half-pay, &c., ib. pay of officers, 173. sequestration of ecclesiastical benefice, 168, 172, 173. salary, 174. Barnard's Act, now repealed, 203, 230. INDEX. 437 Bastard, gift by will to, 349, 350. Benefice, charge by clergymen on, void, 92. right of nomination to, does not pass to trustee in bankruptcy, 270. sequestration of, in bankruptcy, 168, 172, 173. Bequest of stock in the funds, 207. executory, 260. general, operates as an exercise of a general power, 270. to charities, 347. to illegitimate children, 349, 350. to joint tenants, 351. to tenants in common, ib. to a class, ib. Bills of exchange, 84, 110, 118, 130. what, prohibited, 84. endorsement of, 85, 86. liability of drawer and acceptor, ib. of endorser, 86. banker's protection, 85. protest of, 86. consideration presumed, 87. have no preference over other simple contract debts, 110. always carry interest, 113. assignment of, 118. title to, 395. of lading, 37, 62. of sale, registration of, 49. renewal of registration of, 50. Bona notabilia, 333, 337. Bond, 107. to induce cohabitation, void, 89. for past cohabitation, good, ib. single, 107. with condition, ib. stamp on, 108, n. joint, 302, 304, 308. joint and several, 304. for performance of agreements, 109. interest of money secured by, 107. limitation of actions on, 402. voluntary, 110. Bonus, 263. Bottomry, 181. Breaches, assignment of, 109. British possessions abroad, copyright in, 250. ships, 55, 56. Brothers, right of, under Statute of Distribution, 361. Building societies, 232. mortgages to, 233. 0. Capias ad satisfaciendum, writ of, 102, 136. Casts, copyright in, 252. Certificate of ship's registry, 57. bankrupt's, 156. of mortgage and sale of ships, 60. of shares or stock, 224. Chancery, Court of, investments of, 200, 201. order of, restraining transfer, 406. Character, representations as to, 83. Charities, bequest to, 347. Charter party, 61. 438 INDEX. Charter, companies incorporated bv, 209. Chattels •whicli descend to the heir, 9. personal, 2. of wife belong to her husband, 373. real, 1. vegetable, 16. sale of, in market overt, 396. I Children, appointments to, 2*71, 272, 273. younger, 273. in ventre, 274, 276, vesting of portions of, 277. maintenance of, 278, 279, 391. form of power of maintenance of, in a settlement, 424. covenant to settle property on, 295, 296. gifts to illegitimate, 349. gifts to, 343, 351. shares of, under Statutes of Distribution, 361. custody of infant, 388, 391. order to settle property on, 391. form of powers of appointment amongst, 423. form of trusts for, ib. Chose in action, 4, 5, 6, 7, 63, 306, 375, 377. assignment of legal, 117. assignment of equitable, ib. right of husband to wife's legal, 375. right of husband to wife's equitable, 377. Statutes of Limitation as to, 400. notice of assignment of, 407. in possession, 4, 5, 9. alienation of, 34, 37, 49. title to, 396. Statutes of Limitation as to, 400. Civil law, subjection of the law of property to, 1. age at which a will may be made by the, 322. degrees of kindred traced according to the, 362. rules of the, as to restraint of marriage, 369. Civil service, probate of will in, 338. Class, a^ipointment amongst a, 273. bequest to a, 351. ('lapses Consolidation Acts, 210, 211. Clergyman, insolvent, 168. bankrupt, 172, 173. action for dilapidations, 68, 69. , waste by, 68. (]0AT armor, 13. Co-debtor, payment by, 311. Cognovit, 98. execution and attestation of, 100. to be filed within twenty-one days, 101. Cohabitation, bond4o induce, void, 89. bond for past, good, ib. Colonial shipping, 55, n. Colonies, patent for, 243. copyright in, 250. Commission of bankruptcy, 139. (Committee of inspection in bankruptcy, 142, 144, 165. of lunatic entitled to stock, 204. (committeemen, liability of provisional, 320. Common Law Procedure Acts, 1854 and 1860. 119.— And see Statutes. Companies Clauses Acts, 210, 211. joint stock, 209. — See Joint Stock Companies. Comparison of title to real and personal estate, 411. INDEX. 439 Composition with creditors, 121, 124, 126, 144, 145. regulations as to, 128. Consent to change of investments, 285. forfeiture on marriage without, 370. Consideration necessary to a contract, 73. executed, ib. illegal, ib. valuable, 74, 75. legacy for, 345. good, 74. need not always be in writing to form a written contract, 79. why presumed to a note, 87. Consols, 200. — See Stock in the Funds. Contingent liabilities, proof of, in bankruptcy, 147. remainders, none in personal estate, 267. Contracts, 70. by deed, 87. when writing required to, 38, 40, 42, 76, 77, 78, 79, 80. definition of, 72. parol, ib. special, ib. valuable consideration necessary to, 75. with unlawful object, 89. where some objects lawful and others unlawful, 90. and 90, n. with lawful objects, 94. by way of gaming, void, 93. for restraint of trade, 91. usurious, 93. for sale of goods, 38. contributories, 228. Conversion, 23, 46, 49. of money into land or land into money, 286. Conveyance. — See Alienation. Conveyancer, certificated, has no general lien, 31. Convicts, 47. Copyholds estates, limitation of actions for fines for, 404. Copyright, 245. in encyclopaedias, reviews, &c., 247. in dramatic and musical compositions, 248, foreigner entitled to, ib. registry of proprietors, ib. assignment of, 249. personal property, ib. foreign reprints of books, ib, in prints, maps, &c., 251. in sculptures, 252. paintings, drawings and photographs, ib. international, 253. newspapers,- 255. in designs, ib. Corporations, 209. Costs of writ of mandamus, 64. of trustees, 292. Co-sureties, 115. County Courts, 6, n., 79. ' registry of judgments in, 105. bankruptcy jurisdiction, 140. winding-up in, 228. trustee jurisdiction, 295. probate jurisdiction of, 335. Court for Divorce and Matrimonial Causes, 389. dissolution of marriage, 389, 391. 440 INDEX. Court for Divorce and protection of wife deserted by husband, 389. alimony, 390. judicial separation, ib. •wife a feme sole, ib. custody, maintenance, &c. of children, 388, 391. settlement on judicial separation, 391. Courts of Record, 96. Covenant, 106 to insure against fire, 179, 180. stamps on, 108, n. voluntary covenants, 110. for settlement of wife's future property, 295. to settle husband's property, 296. joint, 304, 308. joint and several, 304, 310. not to sue one joint and several debtor, 311. for title, 399, 410. Creditors, gifts for defrauding, 48, 297. remedies of judgment, 102. composition with, 121, 123, 124, 126, 144, 145. assignment in trust for, 120, 123. petitioning on bankruptcy, 139. proof by secured, in bankruptcy, 150. assignees of, in bankruptcy, 141. interest of, in life of debtor, 176. voluntary settlement void as against, 153, 154, 297. trust for payment of, when revocable, 299. may by custom take out administration, 356. Statutes of Limitation not affected by death of, 404. Crops, 17. Crown debts, 97, 110. in bankruptcy, 155, 157. jewels, 13. right of, to intestate's estates if no next of kin, 364. Customs of London and York, 321, 333, 364. of Wales, 321, 364. of trades, 399. D. Damages, actions which sound in, 70. liquidated, 71. limitation of actions for, 404. Death, actions by executors in case of, 65, QQ. of creditor, effect of, 404. of debtor, effect of, ib. De bonis non, administration, 360. Debt, action of, 5. by husband for arrears of wife's rents, 376. Debts, how assignable, 117. barred by bankruptcy, 76. barred by Statute of Limitations, revival of, ib. incurred during infancy, 77, 83. involuntary alienation of, 118. of record, 96, 105, crown, 97, 110, 155, 157. judgment, 97, 101, 102, 110, 155, 159. abolition of imprisonment for debt, 103. the Debtors' Act, 1869, provisions of, ib. execution for sums over 50Z., 51. charge on stock of judgment, 206, 233. specialty, 97, 105, 110. abolition of priority of specialty debts, 97, 106, 109, 113. I INDEX. 441 Debts, simple contracts, 91, 110, 114. interest on, 113. interest on, in bankruptcy, 148. when taken in execution, 118. payment of, 120, 339. appropriation of payments, 120. filing an affidavit of debt, 137. admission of, ib. proof of, in bankruptcy, 146, 148, 149, 162, set-off of mutual, in bankruptcy, 149. all debts in bankruptcy, paid rateably, 154. joint and several, of bankrupt trading partnership, 313. voluntary, when exempt from probate duty, 339. payment of, by executor, ib. power of executor to compound, 340. satisfaction of, by legacies, 346. payment of, by administrator, 357. husband's liability to wife's, 382. covenant to indemnify husband against wife's, 387. limitation of actions for, 400-405. charge of real estate for payment of, 405. notice to debtor on assignment of, 118, 407. Debtor, notice to, on assigning the debt, 118, 407. release of, 126. unreasonable stipulations, 127. reasonable stipulations, ib. bankruptcy of. — See Bankruptcy. insolvent. — See Insolvent Debtors. appointment of executor, 330. effect of death of, 404. joint, in bankruptcy, 158. joint, beyond seas, 309. and creditor, defects in the law of, 110 Debtors' Act, 1869, provisions and exceptions, 103. Decease of person giving power of attorney, 398. Declaration of insolvency, 135. Decree of a court of equity, 102. Deed, title deeds pass by conveyance of the lands, 9. tenant for life entitled to a possession of the deeds, 11. alienation by, 37. contracts by, 87. alteration or rasure of a, 88. immaterial alterations, 88, n. solicitor's lien on, 30. boxes, 13. of arrangement, 124. stamp duty on, 124, 126. Deer, 19, 20. Defeazance to warrant of attorney, 99. Degrees of kindred, how traced, 362. Delivery, alienation of personal chattels by, 35. constructive, 37, 42. order, 37, 395. Demonstrative legacy, 344. Denizen may be bankrupt, 133. Descent, remarks on law of, 365. to distant heirs and kindred, _367. Designs of articles of manufacture, copyright in, 255. Detinue, action of, 3. limitation of action of, 400. Dilapidations, 67, 68, 69, 113. Directors of joint stock companies, powers of, 319. 442 INDEX. Directors of joint stock companies, notice to, 319. Disabilities, savings of, 400, 402, 403. Disclaimer of title or specification of invention, 241. DiSHO.MOR of bill or note, notice of, 86. Dissolution of marriage, 389, 391. Distant heirs and kindred, remarks on descent to, 367. Distress for rent, 33. by husband for arrears of wife's rent, 377. Distribution, Statutes of, 353, 360. remarks on the law, 365. Distringas, 409. on stock, 205. Dividends, apportionment of, 263. unclaimed, of stock in the funds, 406. Divorce, Court for, 389. Dock warrants, 37. Domicile, 325, 326. Donation mortis causa, 327. Dormant partner, liability of, 312, 314. Dower, legacy in lieu of, 345. limitation of actions for arrears of, 402. Dramatic pieces, copyright in, 248. Drawee of a bill, 84. Drawer of a bill, ib. liability of, 86. Drawings, copyright in, 252. Durante absentia, administrator, 358. minore letate, administrator, 329, 358. Dwellings Act, Laborers' 1855. 233. E. East India Stock, what is, 284. government notes, 336. Ecclesiastical benefice, sequestration of, 168, 172, 173. Education of children, provisions for, 278, 279, 391. form of power of, in a settlement, 424. Ejectment, by one executor, 330, n. Election that lands should not be sold, 287. Elegit, writ of, 51. Emblements, 17. EncyloPvEDIAS, copyright in, 247. Engravings, copyright in, 251. Equitable chose in action, 6, 377. Equity, decree of Court of, 102. life interest in, 261. considers as done what is agreed to be done, 287. of wife to a settlement, 377. Erasure, 88. Escape, limitation of action for, 404. Estates, none in personal property, 7, 259. Evidence of proceedings in bankruptcy, 141, 160. required on probate, 334. Exchequer bills, 282, 284. Exclusive appointment, 271. Execution on a judgment, 50. in case of bankruptcy, 171. sale of goods, how affected by, 396. Executor, actions by, for injury to estate of deceased, 65. actions against, for wrong done by deceased, 67. liability of, carrying on trade, 315. appointment of, 328. INDEX. 443 Executor, assent of, 328 of executor, 329. appointment of debtor, 330. survivorship of office of, ib. renunciation by one in the lifetime of another, ib. de son tort, 331. acts of, before probate, 332. power of, 339, 340. purchase from, 339. accounts, 340. his year, ib. liability of, 341. his former right to the residue, 352. now trustee for the next of kin, ib. Executors, any one may perform acts of administration, 330. all must join in bringing actions, ib. as to ejectment, 330, n. administrators and assigns, use of the words as words of limitation, 266. of objects of a power cannnot take under an appointment, 272. protection to, 341. not bound to plead the Statute of Limitations, 405. Executory bequests, 260. interests in personal estate, 268. Executrix, married woman, 329. F. Factors, 398. Farm buildings, 15. Father, appointments by, must not be for his own benefit, 274. bound to maintain his children, 280. right of, under Statute of Distributions, 361. Felony, forfeiture on conviction of, 47. Feme covert, 369. — See Married Woman, and Wife. Ferse naturse, animals, 19. Fiat in bankruptcy, 139. — See Bankruptcy. Fieri facias, writ of, 51, securities which can be taken under, 119. limitation of action for money levied under, 404. Fines for copyhold estates, limitations of actions for, ib. Fire insurance, 179, 180. Fish, 19. Fixtures, 13, 50. trade, 14. agricultural, 15. when demised, 16. Foreign judgment, 102. inventions, 239. Forfeiture of goods, 47. on marriage without consent, 370. for non-insurance, relief against, 180. France, convention with, as to copyright, 254. Fraud on a power, 275. " Frauds, Statute of.— See Statute 29 Car. II. c. 3. Fraudulent conveyance, an act of bankruptcy, 135. debtors, punishment of, 104. preference, 154. Freehold land societies, 232. Freight, 30, 62. Friendly societies, 230. Fruit, 18. Funds, the. — See Stock in the Funds. Future property, covenants to settle, 154, 295, 296. 444 INDEX. G. Game, 19, 20, 21. Gaming, 93. Garnishee, 119. Gazette evidence of bankruptcy, 141. General lien, 30. ship, 62. legacy, 345. Gift and delivery, 35. for defrauding creditors, 48. of personal estate, 259, 261, 262, 265. to children, 343, 351. to illegitimate children, 349, 350. lapse of, 350. for "sole use" of wife, 384. Goods, property in, 23, 51. constructive delivery of, 37. sale of, 38-45, 82, 396. what is an acceptance of, 41. forfeiture of, 47. mortgage of, 48. gift of, for life, in law, 259. in equity, 261, 262. stolen, 396. limitations of actions for, 400. Goodwill, 257, 258. Government securities, what are, 281. Grant of goods, 34. Guardians, effect of concurrence of, in settlements, 371. H. Half blood, claim in distribution equally with the whole, 362, 364. Hawks, 20. Heir looms, 12, 13. Heir, specialty debts in which he is bound, 105. ^ Heirs, word inapplicable to personal estate, 265. remarks on descent to distant, 367. Hire of goods, 27. Holder of a bill or note, 85. Horses, sale of stolen, 397. Hotchpot, clause of, in settlements, 272. advancements to be brought into, on intestacy, 361. form of clause of, in a settlement, 423. Hounds, 20. Husband, covenant to settle his property, 296. no duty on legacy to, 342. ancient rights of, 372. right to wife's chattels personal, 373. gifts by, to wife of jewels and trinkets, 374. his right to wife's legal choses in action, 375. equitable choses in action, 377. effect of his assignment, 379. his assignment of his wife's reversionary choses in action, 380. release of, 381. his liability to his wife's debts, 382. fraud on his marital rights, 383. authority of, to wife, to dispose of personal estate by will, ib. separation of husband and wife, 387. covenant to indemnify, agai nst wife's debts, ib. his right to the custody of infant children, 388. and wife, remarks on law of, 392. INDEX. 445 Idiot, 47. transfer of stock of, 204. Illegality of contracts, 73, 88, 89. Illegitimate children, gift to, 349, 350. Illusory appointments, 271. Immoral publication, 90. Importation of foreign reprints of English books, 249. Imprisonment of debtor in execution, 102. abolition of imprisonment for debt, 103, 173. the Debtors' Act, 1869, provisions of, 103. discharge of insolvent from, 166, 167. saving of disability of, 400. Income, apportionment of, 263. Incorporation of joint stock companies, 216, 223. Incorporeal personal property, 198. anciently none, 4. Indemnity of trustees, 294. Indian government notes, 336. vrhat is East India stock, 284. Indorsement of sale of ship on certificate of registry, 57. of bills and notes, 84, 85, 86. special, 85. in blank, ib. Industrial and provident societies, 231. Infancy, confirmation of debt incurred in, 77, 83. saving of disability of, 400, 402. Infant, 47. cannot be a bankrupt, 133. stock of, 204. executor, 329. legacy to, 343. marriage settlements of, 371. custody of, 388, 391. Inferior courts of records, 96. judgments of, 104. Injunction, writ of, 63. Injury, actions by executors in respect of, 65. actions against executors in respect of, 66, 67. Insolvency, 166-174. declaration of, 135. in the colonies, 136. Insolvent debtors, court for relief of, now abolished, 172. schedule of, 169. discharge of, 166, 169, 170, 172. warrant of attorney formerly executed by, 170, 171. Inspectorship, deed of, 121. committee of inspection, 142, 144, 165. Insurance, 175. of life, 175, 176. interest of creditor, 176. of trustee, 177. assignees of life policies may sue in their own names, 178. fire, 179, 180. ^ ^ ,^^ relief against forfeiture by breach of covenant, 180. lessor to have benefit of informal, ib. protection of purchasers against breach of covenant, ib. of ships, 181. assignee may sue in his own name, lo. companies, 225. Interest, legal rate of, 94. 446 INDEX. Interest, on bills and notes, 94, 113. on judgment debt, 101. on bond, 107. on debts, 113. appropriation of payments towards, 120. on debts proved in bankruptcy, 148. always apportioned, 2G5. limitation of actions for arrears of, 403. International copyright, 253. Intestacy, 354-368. Inventor of patent, 239. Investment of settled funds, 281, 282, 284, 285, 286. form of trust to continue or vary with consent, 421. consent to change, 285. Ireland, real securities in, 282. Irish patent, 243. Issue, appointment to, 274. J. Joint bequest, no lapse by decease of one legatee, 351. bond, all must sue, 302. release by one obligee bars all, ib. form of, 308. and several bond, 304. form of, 310. covenant, 304. form of, 310. and several covenant, 304. and several debts in bankruptcy, 313. creditor, bankruptcy of, 306. debtors, 308, 309, 311. in bankruptcy, 158. liability, 308. and several liability, 310, 311. of partners, 312. owners, 302. trustees made, 303. shares of, under a will, need not vest at the same time, ib. limitation to them, their executors, administrators and assigns, ib. Joint stock companies, 209. incorporated by charter or act, ib. companies clauses acts, 210, 211. inconvenience of unincorporated, 213. registration act, 214. banking, 214, 217. sale of shares in, 230. letters patent, 213. registry office, 215. registered office of, 224. liability of shareholders in, 213, 216, 228, 229, 320. transfer of shares, 216. bankruptcy of, 217. with limited liability, 218, 219. shares in, not goods, wares or merchandife, 230. settlement of shares, 263. powers of directors of, 319. liability of provisional committeemen of projected, 320. provisional registration, 215. complete registration, 215, 223. incorporation, 216, 223. acts, objects of, 277. I INDEX. 447 Joint stock companies, winding up acts, 218, 228. acts 1862 and 1867. 219. liability may be limited, 220. company may have directors with unlimited liability, ib. power to reduce capital, 222. subdivision of shares, 222. memorandum of association, 220, 221, 222. articles of association, 223. shares personal estate, 224. register of members, ib. name of limited company to be painted up, ib. judgment debts, 233. name may be changed, 222. certificates of shares or stock, 224. register evidence, ib. register of mortgages, 225. associations not for profit, registration of, ib. special resolution, 225, 226. contracts, how made, 227. transfer of shares, ib. share warrants, ib, liquidators, 228. contributories, ib. companies seals act, 1864. 229. mortgage debenture act, 1865. Ib. sale of shares not within statute of frauds, 230. Judge's order, 98. to be filed within twenty-one days, 101. Judgment, eflPect of, on goods, 50. debtor summons, 136. on warrant of attorney or cognovit, 98. in case of bankruptcy, 136, 155. debt, a debt of record, 97. carries interest, 101. entitled to preference in administration, 102. but must be registered, ib. foreign, ib. creditors, remedies of, ib. Scotch and Irish judgments, 104. removal of judgments of inferior courts, ib. registry of, in county courts, 105. charge of, on stock, 206. charge of, on shares, 233. limitation of actions for money secured by, 401. Judicial separation of husband and wife, 390. settlement on, 391. K. Kin, next of, their right to administration, 356. how traced, 362. Kindred, degrees of, how traced, ib. remarks on descent to distant, 367. Laborer's Dwellings Act, 1855. 233. Lands, sale of, 38. warranty on, 399. investment of settled funds iil purchase of, 286. Lapse, 350. Leasehold property, succession duty on, 343. 448 INDEX. Legacies, no action at law for pecuniary, 6. payment of, 340, 342. duty on, 342. no duty on, to husband, wife or royal family, 343. to infants, ib. duty on annuities, 344. specific, ib. ademption of, ib. demonstrative, ib. general, 345. for valuable consideration, ib. in lieu of dower, 346. satisfaction of debts by, ib. satisfaction of portions by, ib, to charities, 347. to illegitimate children, 349. lapse of, 350. to children, 351. limitation of suits for, 401. Legatee, rights of residuary, 350. Lessor to have benefit of informal insurance, 180. Letters Patent, 213, 235, 307.— See also Patent. Levari facias, writ of, 52. Liability, limitation of, by letters-patent, 214. in joint stock company, 220. joint, 308-311. discharge by bankruptcy act, 308. by statute of limitations, 309. joint and several, 310, 311. of partners in trade 312-318, of executor carrying on trade, 315. of executor for debts, 341, 342. License, letter of, 121. to use patent, 243. Lien, 28. how lost, 32, 44. of solicitors, 30. of vendor, 43. on property from covenant to settle, 297. Life insurance, 175. policies, assignment of, 118, 409. assignees may sue in their own names, 178. defence or reply on equitable grounds may be pleaded, ib. notice of assignment, ib. acknowledgment of, 179. principal places of business to be specified on policy, 178. no estate for, in personal property at law, 259. bequest of term for, 2G0. interests in equity in personalty, 261, 265. right of tenant for, as to bonus, 263. apportionment of income of tenant for, ib. Limitation to joint owners, 303. Limitations, Statute of, 7G, 82, 83, 309, 400. as to choses in action, 400. executors, or administrators not bound to plead, 405. operation of, barred by charge of real estate, ib. operation of, not barred by charge of personal estate, 406. Limited Liability Act, 218, 220. Liquidated damages, 71. Liquidation by arrangement, regulations as to, 161. power of trustee under, 163. Lithograph, copyright in, 253. INDEX. 449 Loan societies, 231. London, custom of, 321, 364. Lords, House of, a superior court of record, 96. Lost article, 24. Lunatic, 47. transfer of stock, 204. M. Maintenance, crime of, 4. of children, provisions for, 278, 279, 280, 281, 391. form of power of, in a settlement, 424. Maker of promissory note, 84. Mala, fides on receipt of money or negotiable securities, 395. prohibita, 89. in se, 89, 90. Mandamus, writ of, 63. Manufactured goods, property in, 39, 40. contract to furnish, 400. Manufactures, patent for new, 237. copyright in designs for articles of manufacture, 255. Maps, copyright in, 251. Marine insurance, 181. policies, assignment of, 118, 181. assignee may sue in his own name, 181. Marines, wills of, and administration to, 324, 337, 360. Marital rights, fraud on husband's, 383. Market overt, sale of chattels in, 396. sale of stolen goods in, ib. Marks, trade, 256, 257. Marriage, a valuable consideration, 74. restraints on, 369. consent to, 370. brocage, ib. agreement on, must be in writing, 78. settlement on, 297, 371. dissolution of, 389, 391. form of a settlement on, 418. Married woman, 47. when she may be bankrupt, 133. executrix, 329. saving of disability of, 400. See also Wife. Matrimonial causes, court for, 389. Memorandum in writing, what is, 42, 81. Minor, will of, now invalid, 322. See Children and Infant. Models, copyright in, 252. Money, title to, 395. limitation of action for money secured by bond, 402. Monopolies, statute of, 235. Mortgage of goods, 48. of ships, 59. of ships, certificate of, 60. of property of bankrupt, 144. of leaseholds, deduction of amount of debt from probate value, 338. exempt from stamp duty, 61. limitation of action for money secured by, 401. Mortis causa, donation, 327. Mortmain, statue of, 347. Mother, right of, under Statute of Distributions, 361. Musical compositions, copyright in, 248. 450 ■ INDEX. N. Navy wills and administration to seamen in the, 323, 324, 338, 3G0. Necessaries, husband ))ound to supply his wife with, 382, 390. Negotiable securities, title to, 395. See Bills of Exchange and Promissory Notes. Nephews, appointment to, 273. Newspapers, copyright in, 255. Next of kin, right of, to administration, 356. their interest vests from the decease of the intestate, 357. how traced, 362. Note of a contract, what is, 42, 81. Notes, promissory, 84, 110, 118. Indian government notes, 336. not preferred in administration, 110. carry interest, 113. title to, 395. Notice of dishonor of bill or note, 86. to debtor on assigning the debt, 118. of assignment of life policies, 178, 179. to one partner notice to all, 318. to trustees on assigning stock, 407. Nuncupative will, 322. who may now make, 323, 324. 0. Objects of a contract, lawful or unlawful, 90, 94. Offer, acceptance of, 81. Officer, bankrupt, 1G8, 173. probate of will of, 337. Official assignees, 141. Order and disposition, goods in, of bankrupt, 54, 314. choses in action in, of bankrupt, 408. Ownership, personal property the subject of absolute, 7, 9, 259. Paintings, copyright in, 252. Palatine courts, superior courts of record, 96. Paraphernalia, 374. Parliament, the supreme court, 96. privilege of, does not prevent adjudication in bankruptcy, 160. vacation of seat, by bankrupt, ib. Parol contracts, 72. Particular lien, 29. Partners, liability of, 312, 318. bankruptcy of, 313, 317. dormant, 312, 314. ostensible, 314. retiring, 315. deceased, ib. by participation in profits, 316. liability for each other's acts, 318. act to amend law as to, 316. notice to one notice to all, 318. Part owners of ships, 56. Patent, 234, 235. stamps on, 236. term of, ib. for new manufactures only, 2^7. first inventor of, 239. INDEX. 451 Patent, specification of, 238, 240. disclaimer, 241. register of, 242. vesting of, in more than twelve persons, ib. license to use, 243. Scotch and Irish, ib. assignment of, 244. registers of proprietors of, 245. tenants in common of, 307. form of letters-patent, 413. Pawn, 27, 28, 49. Payee, 84. Payment of debts, 120. by executor, 339. charge of real estate for, 405. of interest, 121. Penalty, 71, 108. Penalties, limitation of actions for, 404. Pendente lite^ administrator, 358. Periodical works, copyright in, 247. Perpetuities, 268. in exercise of powers, 275. Personal property, the subject of absolute ownership, 7, 259. succession duty, 343. annuity, 198. Petitioning creditor in bankruptcy, 139. Photographs, coi^yright in, 252. Pious uses, 354. Plans, copyright in, 251. Pledge of goods, 27, 28, 49. ^ by factor or agent, 398. Policy of insurance, 175. assignment of, 409. Portions, appointment of, 271. vesting of, charged on land, 277. satisfaction of, by legacies, 346. Possession, choses in, 4. — See Choses in Possession. goods in, of bankrupt, 54. Possibility, 260. how alienable, ib. , Post-office savings banks, 232. Power of attorney, 117. construed strictly, 398. decease of person giving, ib. payment by trustee, executor, or administrator, in pursuance of, ib. form of a, 420. Powers, 23, 269. over personal property, 270. of appointment, 337. of appointment amongst children, 271, 273, 274. trustee of bankrupt may exercise, 270. frauds on, 275. perpetuity in exercise of, ib. to appoint new trustees, 289. form of power to appoint new trustees, 429. given to married women, 386. form of, of appointment amongst children, 423. form of, given to a wife, 424. Primogeniture, remarks on, 366. Prints, copyright in, 251. Privilege of parliament does not prevent adjudication in bankruptcy, IGO. vacation of seat by bankrupt, ib. 35 452 INDEX. Probate, Court of, 332, 333, 336, 356. of wills, 332. acts of executor before, ib. in what court to be taken out, 333. in principal registry, 334. in district registr}', ib. evidence required on, ib. in common form, 335. per testes, ib. county courts, ib. stamp duties on, 336, 337. when exempt from stamp duties, 337, 338. civil service, and military allowances, 338. of seamen's will, ib. mortgage debt, deduction of amount of, from probate value, ib. duty attaches to estate of deceased legatee, 352. Profits of partnership, participation in, 316-318. Promise, implied, 72. insufficient of itself to form a contract, 74, 76. Promissory Notes, 84, 110, 118, 130. not preferred in administration, 110. carry interest, 113. title to, 395. Proof of debts in bankruptcy, 146, 148, 149, 162. Property, real and personal, 3, 7. in British ships, 56. in goods, 23, 33. requisite to a grant, 34. Protest, 86. Provisional committee-man, liability of, 320. # Public officer of banking company, 213, 214. Publication, immoral, 90. Purchase of land, investment of settled funds in, 286. Purchaser from executor not bound to see to the application of his purchase-money, 339. protection of, in bankruptcy, 150. R. Rasure of deeds, 88. Rates and taxes due from bankrupt, 155. Real estate, charge of, for payment of debts, 405. Real securities, what are, 282. in Ireland, 282, 283. Receipt by surviving joint owner, when good, 306. by one executor a good discharge, 330. by executor on sale a good discharge, 339. by husband of wife's chose in action, 375, 376. clause in settlements, 288. form of a, 428. Recognisance, 105. limitation of actions on, 402. Record, debts of, 96, 105. courts of, 96. of proceedings in bankruptcy, 160. Reference to arbitration, 183, 184. revocation of, 186. Registration of bill of sale, 49, 50. of ships, 56. certificate of, 57. of transfers of ships, 58. of judgment debts, 102. INDEX, 453 Registration of judgments in county courts, 105. of deeds of arrangements, 123, 124. of joint-stock companies, 215, 223. of banking companies, 219. of patents, 242, 245. of copyrights, 248. of sculptures, 252. in court of probate, 334. ^Reimbursement of trustees, 294. Release by one joint obligee bars all, 302. of one joint debtor discharges all, 308. of one joint and several debtor, 311. by husband of wife's reversionary chose in action, 381. of money charged on real estate, ib. Rent, arrears of, 105, 113. distraint for, in bankruptcy, 148, 155. proof in case of rent, 148. limitation of actions for, 403. Renunciation of office of executor, 330. Replevin, action of, 3. limitation of action of, 400. Reputed ownership, 54. of chose in action, 408. Residuary legatee, rights of, 350. Residue, former right of executors to, 352. right of next of kin to, 352. form of assignment of a share in, 419. Respondentia, 182. Restraint of trade, contract in, 91. on accumulation, 268. on anticipation, 385. on marriage, 369. Retainer by executor of his own debt, 332. by administrator of his own debt, 357. Reversionary chose in action of wife, assignment of, 379, 380. Reviews, copyright in, 247. Revocation of submission to arbitration, 186. of the trusts of a settlement, 299. ofa will, 325. Royal family, no duty on legacies to, 343. Rule in Shelley's Case, 267. S, Sale of goods, 38-45, 82 of goods in market overt, 396. of goods by factor or agent, 398. of lands, direction for, converts them into money in equity, 287. warranty on sale of lands, 399. of ships, certificate of, 60. Salvage, 29. Satisfaction of debts by legacies, 346. of portions by legacies, ib. Savings banks, 231, 360. Scire facias to revive a judgment, 99. Scotch patent, 243. Sculptures, copyright in, 252. Sea policies, assignment of, 118, 181. Seamen, wills of, 323, 324. probate of wills of, 338. administration to effects of, 360. Securities of creditor, how affected by composition, 12i. 454 INDEX. Sk( TRITIES for money won at play, 03. sccurcil creditor in l)ankrnptcy, 138, 150. l)roof in bankruptcy by creditor holding, 150. crovernment, what are, 281. real, what are, 282. real, in Ireland, ib. stolen, 397. Sei'.vrate use, trust for woman's separate, 384, 385. gift for " sole use" docs not create trust for, 384. form of a trust, 422. Separation of husband and wife, 387, 390. SE(,irESTRATiON of profits of bankrupt, 168, 172, 173. Set-off in bankruptcy, 149. Settlement of personal property, 259. wife's equity for a, 377. covenant for, of wife's future property, 295. covenant for, of husband's property, 296. voluntary, void as against creditors, 153, 154, 297. voluntary, binding on settlor, 298. for settlor's own benefit revocable, 299. voluntary, of personal estate, not void against subsequent purchasers, 300. stamps on, ib. on marriage, 297. by infants, 371. on judicial separation, 391. antenuptial or postnuptial, itiquiry into on dissolution of marriage, 391. form of a marriage settlement of residuary personal estate and stock in the funds, 418. Shares in joint stock companies, 6, 209, 224. sale of, 230. transfer of, 216, 227, 409. share warrants, 227. title to, 410. Shelley's Case, rule in, 267. Ship.s. 55. colonial shipping, 55, n. register, no trust entered on, 56. transfer of property in, 58. equities may be enforced against owner and mortgagees, 57. mortgage of, 59. no stamp duty on transfer of, 61. certificate of registry, 57. certificate of mortgage of, 60. general ship, 62. insurance of, 181. assignee may sue in his own name, ib. Shops in the city of London are market overt, 396. Signature to contracts, 81. Simple contract debts, 97, 110. limitation of actions for, 403. Slsters, right of, under Statute of Distributions, 361. Soldiers, wills of, 323. probate of wills of, .337, 338. administration to effects of, 360. Sole use. gift for, 384. Solicitor, lien of, 30. not liable as such to bankrujjt laws, 133. cannot charge for professional trouble as trustee, 292. may be paid for services as trustee in bankruptcy, 145. Specialty debts, 97, 105, 110. abolition of priority of specialty debts, 97^ 106, 109, 113. limitation of actions for, 402. INDEX. 45;') Specific legacy, 344. Specification of patent, 238, 240. Stamp duty, none on agreement for sale of goods, 42, n. none on transfer of ships, Gl. on agreements, 78, n. on bills and notes, 87, n. on warrants of attorney, 99, n. on bonds, 108, n. on covenants, ib. on deeds of arrangement, 124, 126. on contract notes, 204. on policies of life insurance, 177, n. on fire insurance, repeal of, 181, n. on sea insurance, ib. on awards, 197. on mortgage to building society, 233. on letters-patent, 236. on appointment of new trustees, 291. on settlements, 300 on probates, 336. on legacies, 301. on letters of administration, 359. on shares of intestate's estates, 3G4. Statute of Frauds. — See statute 29 Car. II. c. 3. Statutes cited. 13 Edw. I. c. 18, (elegit,) 51. c. 19, (intestates,) 355. c. 45, [scire facias,) 99. 4 Edw. III. c. 7, (action by executors,) 65. 15 Edw. III. c. 5, (executors,) ib. 31 Edw. III. c. 11, (administrator,) 355. 21 Hen. VIII. c. 5, (next of kin,) 356. 27 Hen. VIII. c. 10, (Statute of Uses,) 11, 75, 262. 32 Hen. VIII. c. 37, (arrears of rent,) 376. 37 Hen. VIII. c. 9, (interest,) 5, 113. 2 & 3 Phil. & Mary, c. 7, (stolen horses,) 397. 13 Eliz. c. 5, (gifts for defrauding creditors,) 48, 52, 75, 297. c. 7, (bankrupts,) 135, 139. c. 20, (charges on benefices,) 92. 27 Eliz. c. 4, (voluntary settlements,) 299. 31 Eliz. c. 12, (stolen horses,) 397, 398. 21 Jac. I. c. 3, (patents,) 235, 236. c. 16, (Statute of Limitations,) 76, 82, 83, 400, 403. 22 & 23 Car. 11, c. 10, (distribution,) 357, 361. 29 Car. II. c. 3, (Statute of Frauds,) ss. 1, 2. -85, 78, 204, 342 s. 4, (contract in writing,) 43, 297. S. 16, (writ of fieri facias,) 52. s. 17, (sale of goods,) 39, 40. ss. 19-21, (nuncupative testament,) 322. s. 22, (revocation of will of personal estate,) 323. s. 23, (soldiers and mariners,) 324. s. 25, (husband,) 361, 376. 1 Jac. IT. c. 17, (distribution,) 361. 2 Will. & Mary, sess. 1, c. 5, s. 2, (distress for rent,) 33. 4 & 5 Will. & Mary, c. 2, (custom of York,) 321. 7 & 8 Will. III. c. 38, (custom of Wales,) ib. 8 & 9 Will. III. c. 11, (judgments,) 109. 9 & 10 Will. III. c. 15, (arbitration,) 185, 193. 2 & 3 Anne, c. 5, (custom of York,) 321. 3 & 4 Anne, c. 9, (promissory notes,) 5, 118. 4 Anne, c. 16, (nuncupative testaments,) 322. 4 & 5 Anne, c. 16, (bond debts,) 108. 456 INDEX. Statctes cited. 7 Auue, c. 25, (promissory notes,) 5, 118. 8 Anne, c. 19, (copyright,) 246. 9 Anne, c. 14, (money won at play,) 93. 12 Anne, stat. 2, c. IG, (usury,) 93. I Geo. I. Stat. 2, c. 19, (stock,) 201, 202, 208. II Geo. I. c. 18, (custom of London,) 321. 7 Geo. II. c. 8, (stoclv-jobbin(^,) 92, 203. 8 Geo. II. c. 13, (coi)yrii,dit in prints, &c.,) 251. 9 Geo. II. c. 36, (mortm.ain,) 347. 19 Geo. II. c. 37, (ship insurance,) 176, 181. 7 Geo. III. c. 38, (copyright in prints,) 251. 14 Geo. III. c. 48, (life insurance,) 176. c. 78, (Metropolitan Building Act,) 179. 17 Geo. III. c. 30, (bills of exchange,) 85. c. 57, (copyright in prints, &c.,) 251. 36 G*eo. III. c. 52, (legacy duty,) 328, 342, 344. 38 Geo. III. c. 71, (copyright in sculptures, &c.,) 252. c. 87, (infant and absent e.xecutor,) 329, 358. 39 & 40 Geo. III. c. 98, (accumulations,) 269. 41 Geo. III. c. 107, (copyright,) 246. 46 Geo. III. c. 135, (bankruptcy,) 150. 48 Geo. III. c. 88, (bills of exchange,) 84. c. 123, (discharge of small debtors,) 172. 49 Geo. III. c. 121, (bankruptcy,) 150. 54 Geo. III. c. 56, (copyright in sculptures, &c.,) 252. C. 156, (copyright,) 246. 55 Geo. III. c. 184, (stamps,) 42, 336, 337, 343, 359, 360, 364. 56 Geo. III. c. 60, (unclaimed dividends,) 406. c. 137, (bankruptcy,) 150. 3 Geo. IV. c. 39, (warrants of attorney and cognovits,) 99, 101. 4 Geo. IV. c. 83, (factors and agents,) 398. 6 Geo. IV. c. 16, (bankruptcy,) 49, 54, 76, 120, 124, 139, 150, 156, 270, 298, 309, 313. c. 94, (factors and agents,) 398. 7 Geo. IV. c. 6, (bills and notes,) 85. ^ c. 46, (banking companies,) 214. c. 57, (insolvency,) 166. 7 & 8 Geo. IV. c. 29, (stolen goods,) 397. 9 Geo. IV. c. 14, (written contracts,) 40, 77, 82, 83, 309, 404. :. 32, (felony,) 47. 10 Geo. IV. c. 56, (friendly societies,) 230. 11 Geo. IV. & 1 Will. IV. c. 20, (seamen's wills,) 324, 338. c. 38, (insolvency,) 166. c. 40, (executors trustees of residue,) 352. c. 46, (illusory appointments,) 271. c. 65, (infants, idiots and lunatics,) 204. 1 k 2 Will. IV. c. 32, (game act,) 20, 22. c. 56, (bankruptcy court,) 54, 120, 132, 139, 140. 2 & 3 Will. IV. c. 40, rseamen's wills,) 338. 3 & 4 Will. IV. c. 15, (copyright in dramatic works,) 248. c. 27, (limitations,) 401, 403. c. 42, s. 2, (actions by and against executors,) 65, 67, 401. S. 3, (limitation,) 402, 404. s. 4, (disabilities,) ib. s. 5, (acknowledgment,) 402. ss. 28, 29, (interest,) 114. s. 39, (arbitration,) 186, 190. s. 40, (witnesses on arbitration,) 187. c. 47, (bankruptcy,) 132. c. 74, (fines and recoveries,) 380, 382. c. 98, (bills and notes,) 93. c. 105, (dower,) 346. INDEX. 457 Statdtes cited. 4 & 5 Will, IV. c. 22, ^apportionment of income,) 2G3, 2G4. c. 25, (seamen's pay,) 338. c. 29, (real securities in Ireland,) 283. c. 40, (friendly societies,) 230. c. 94, (public officer,) 213. 5 & 6 Will. IV. c. 41, (securities for illegal consideration,) 90, 93. c. 83, (patents,) 237, 238, 241. 6 & 7 Will. IV. c. 32, (building societies,) 232, 233. c. 59, (coi)yright in prints, &c.,) 251. ' c. 76, (newspapers,) 255. 7 Will. IV. & 1 Vict. c.2(>, (wills,) 208,266,321,322,323,324,325,334,335,350,351. c. 73, (public officer,) 213, 214. 1 & 2 Vict. c. 26, (banking companies,) 214. c. 110, (insolvent debtors, 132, 166. ss. 9, 10, (execution of warrants of attorney,) 100. s. 12, (seizure of notes and securities,) 118, 297. s. 13, (judgments a charge on real estate,) 155. ss. 14, 15, (charging stock,) 206, 207, 234, 297. B. 16, (imprisonment,) 103. s. 17, (interest on judgment debt,) 102. s. 22, (judgment of inferior courts,) 104. s. 35, (discharge,) 167. s. 36, (petition by creditor,) ib. B. 37, (vesting order,) ih. 8. 45, (assignees,) 168. 8. 47, (sale,) ib. s. 48, (mortgage,^ ib. s. 55, (benefice,) ib. s. 56, (officer,) ib. s. 59, (voluntary preference,) ib. B. 62, (dividend',) 168. s. 69, (schedule,) 169. ss. 70, 71, 72, (examination,) ib. s. 75, (discharge,) 196. ss. 76, 77, 78, (postponement of discharge,) 169, 170. s. 79, (costs,) 170. s. 80, (annuities,) ib. ss. 87, 88, 89, (future execution,) ib. ss. 90, 91, (freedom from execution,) ib. 2 & 3 Vict. c. 11, (bankruptcy,) 150. c. 29, (bankruptcy,) 132, 156. c. 37, (usury,) 94. c. 54, (custody of infants,) 389. c. 67, (patents,) 237. 3 & 4 Vict. c. 73, (friendly societies,) 230. c. 82, (stock judgments,) 207, 297. c. 110, (loan societies,) 231. c. Ill, (banking companies,) 214. 5 Vict. c. 5, (Court of Exchequer in equity,) 205. 5 & 6 Vict. c. 39, (factors and agents,) 398. c. 45, ((\)pyright,) 246, 247, 248, 249, 250. c. 79, (stamps on probates,) 336. c. 85, (banking companies,) 214. c. 100, (copyright in designs,) 255, 256. p 116 Cinsolvencv,) 170, 171. c 122; (b^ankruptc;!) 54,' 76, 132, 140, 306, 309, 313. 6 & 7 Vict. c. 65, (copyright in designs ) 256. c. 66, (index to -warrants of attorney,poi. 7 & 8 Vict. c. 12, (international copyright,) 253, 254. c. 32, (bank notes,) 85. c. 60, (aliens,) 46. •158 INDEX. Statutes cited. 7 & 8 Vict. c. 69, (patents,) 237, 241. c. 70, (arranpcinents between debtors and creditors,) 172. c. 76, transfer of property,) 2G0. c. 96, (insolvency,) 103, 132, 130, 171. c. 110, (joint stock companies,) 209, 214, 215, 216, 218. c. Ill, (banl