mi ((nrnf U ICam i>rljfloI ICibtarg Cornell University Library KF 385.K37 1884 i V.2 I Commentaries on American law / 3 1924 018 808 661 \ ^ DATE DUE » M \ GAYLORD PRINTED IN U.S /I. Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018808661 COMMENTARIES ON AMERICAN LAW. By JAMES KENT. Vol. II. TWELFTH EDITION, EDITED ET 0. W. HOLMES, Jk. THIRTEENTH EDITION, EDITED BY CHARLES M. BARNES. BOSTON: LITTLE, BROWN, AND COMPANY. 1884. Southern District of New York, bs. BE IT REMEMBERED, That on the twenty-fifth day of November, A. D. 1826, in the fifty-first year of the Independence of the United Statea of America, James Kent, of the said dis- [L. S.] trict, has deposited in this ofiice the title of a Book, the right whereof he claims as auUxor, in the words foIlowiDg, to wit : " Commentaries on American Law. By James Kent. Vol. I.'* In conformity to the Act of the'Congress of the United States, entitled, " An Act for the encourage- ment of learning, by securing the copies of Maps,*|Dharts, and Books to the authors and proprietors of such copies during the times therein mentioned." And also to an Act, entitled An Act, supplemen- tary to an Act entitled An Act for the encouragement of learning, by securing the copies of Maps, Charts, and Books to the authors and proprietors of such copies, during the times therein mentioned, and extending the benefits thereof to the arts of designing, engraTiug, and etching historical and other prints. JAMES DILL, Clerk of the Southern District of New York. Entered according to the Act of Congress, in the year one thousand eight hundred and thirty-two, by Jambs Keht, in the Clerk's Office of the District Court of the United States, for the Southern District of New York. Entered according to the Act of Congress, in the year one thousand eight hundred and forty, by James Kent, in the Clerk's Office of the District Coqrt of the United States, for the Southern District of New York. Entered according to the Act of Congress, in the year one thousand eight hundred and orby eight, by William Kent, in the Clerk's Office of the District Court of the United States, for the Southern District of New York. Entered according to the Act of Congress, in the year one thouftand eight hundred and fifty-one, by William Kent, in the Clerk's Office of the District Court of the United States, for the Southern Dis- trict of New York. Entered according to the Act of Congress, in the year one thousand eight hundred and fifty-four, by William Kent, in the Clerk's Office of the District Court of the United States, for the Southern Dis- trict of New York. Entered according to the Act of Congress, in the year one thousand eight hundred and fifty-eight, by William Kent, in the Clerk's Office of the District Court of the United States, for the Southern Dis- trict of New York. Entered according to the Act of Congress, in the year one thousand eight hundred and sixty, by William Kent, in the Clerk's Office of the District Court of the United States, for the Southern Dis- trict of New York. Entered according to the Act of Congress, in the year one thousand eight hundred and sixty-eix, by Mrs. William Kent, in the Clerk's Office of the District Court of the United States, for the Southern District of New York. Entered according to Act of Congress, in the year 1873, by James Kent, in the Office of the Libra- rian of Congress, at Washington. Entered according to Act of Congress, in the year 1884, by James Kent, in the Office of tl.e Libra- rian of Congress, at Washington. University Press : John Wilson a^id Son, Cambridge. CONTENTS. PART IV. OF THE LAW CONCERNING THE RIGHTS OP PERSONS. Page Lecture XXIV. — Of the Absolute Rights of Persons 1 History and Character of Bills of Eights 1 1. Of the Eight of Personal Security 12 2. Of Slander and Libels 16 3. Of Personal Liberty and Security 26 AND HEREIN, (1) Writ of Habeas Corpus 26 (2) Writ of Homine Replegiando 32 (3) yfrit oi Ne Exeat 33 4. Of Eeligious Opinions and Worship 34 Lecture XXV. — OJ Aliens and Natives 39 1. Of Natives 39 2. The Doctrine of Allegiance and Expatriation 42 3. Of children born abroad 50 4. Of Aliens 53 AND HEREIN, ( 1 ) Disabilities of Aliens 53 (2) Of the Antenati and Posinati ■ 56 (3) Mode of Naturalization 64 (4) Special Privileges to Aliens 69 Lecture XX VL — 0/ the Law concerning Marriage 75 1. Marriage, when Void 75 2. The Age of Consent 78 3. Bigamy 79 4. Marriage between Near Helations 81 iv CONTENTS. Page 5. The Consent of Parents 85 6. The Forms of Marriage 86 7. Foreign Marriages 91 Lecture XXVII. — Of (he Law concerning Divorce, 95 1. Of Divorce a Vinculo 95 AND HEEEIN, (1) For causes rendering the Marriage void 95 (2) For Adultery 97 (3) History of the Law of Divorce 102 (4) Diversity of the Law in the United States 105 2. Of Foreign Divorces 106 3. Effect of Foreign Judgments and Suits 118 AND HEHEIN, (1) Foreign Judgments 118 (2) Of Zis Pendens 122 4. Of Divorce a Mensa et Thoro 125 Lecture XXYlll.— Of Husband and Wife 129 1. The Right which the Husband acquires by Marriage in the Property of the Wife 130 AND HEREIN, (1) To her Lands in Fee 130 (2) To lier Life Estate 134 (3) To her Chattels Real 134 (4) To her Glioses in Action 135 And herein of Wife's Equity. (5) To her Personal Property in Possession 143 2. The Duties which the Husband assumes 143 AND HEREIN, (1) To pay her Debts 143 (2) To maintain her 14g (3) Liable for her Torts , 149 3. Wife's Capacity at Law to act as a Feme Sole 150 AND HEREIN, (1) To purchase and sell Land 150 (2) To sue and be sued j54 4. Wife's Capacity in Equity 2g2 AND HEREIN, (1) Of Property in Trust for Wife 2q2 (2) Her Power under Settlements jq^ CONTENTS. V Page (3) Protection against her Covenants 167 (4) Power to appoint by Will 170 (5) Marriage Settlements 172 5. Other Rights and Disabilities incident to the Marriage Union ... 178 luEOTVRE XXlX. — Of Parent and Child 189 1. Of the Duties of Parents 189 AND HBKEIir, (1) Of maintaining Children 189 (2) Of educating Children 195 2. Of the Rights of Parents 203 3. Of the Duties of Children 207 4. Of Illegitimate Children 208 Lecture XXX.— Of Guardian and Ward 219 1. Guardian by Nature .... 219 2. Guardian by Nurture 221 3. Guardian by Socage ... 221 4. Testamentary Guardians 224 5. Guardians judicially appointed 226 6. The Duty and Responsibility of Guardians 229 Lecture XXXI. — Of Infants 233 1. When of Age 233 2. Acts Void or Voidable 234 3. Acts avoided or confirmed 236 4. Acts binding on the Infant .... 239 5. Their Marriage Settlements 243 6. Suits in Equity against them 245 Lecture XXXII. — Of Master and Servant 247 1. Of Slaves 247 2. Of Hired Servants 258 3. Of Apprentices 261 Lecture XXXIII. — Of Corporations 267 1. Of the History of Corporations 268 2. Of the various Kinds of Corporations, and how created 273 3. Of the Powers and Capacities of Corporations 277 AND HEREIN, (1) Of their Ordinary Powers 277 (2) Of Quasi Corporations 278 (3) Of Corporations as Trustees 279 (4) Of their Capacity. to hold Lands, and to sue and be sued . . 281 Vi CONTENTS. AND HEREIN, Page 1. To hold lands 281 2. To sue and be sued 283 (5) Of their Right to hold to Charitable Uses 285 (6) Their Powers to make Contracts 288 (7) Of the Corporate Name 292 (8) Of the r'ower to elect Members and make By-laws .... 293 (9) Of the Power of Removal 297 (10) Corporate Powers strictly construed . . . . ^ 298 4. Of the Visitation of Corporations 300 5. Of the Dissolution of Corporaticms 305 CONTENTS. VU PART V. OP THE LAW CONCERNING PERSONAL PROPERTY. Page Lecture XXXIV. — Of the History, Progress, and Absolute Rights of Property ■ 317 1. Of Title by Occupancy 318 AND HEREIN, (1) Of Wrecks 321 2. Of Markets Overt 323 3. The Eights of Alienation 326 4. Of Sumptuary Laws 327 5. Of Taxation 332 6. Of the Claim of Improvements of Lands 334 7. The Right of Government to assume Property and control Its Use . 338 Lbctuhe XXXV. — Of the Nature and various Kinds of Personal Properti/ , , 340 1. Chattels Eeal, and Fixtures 342 2. Qualified Property in Chattels Personal 347 3. Joint Tenancy in Chattels 350 4. Rights in Action 351 5. Chattel Interest in Remainder 352 LECTnRE XXXVI. — Of Title to Personal Properti/ bg Original Acquisition , , . 355 1. Of Original Acquisition by Occupancy 355 2. Of the Original Acquisition by Accession 360 3. Of Original Acquisition by Intellectual Labor 365 AND HEREIN, (1) As to Patent Rights for Inventions 366 (2) As to Copyrights of Authors 373 Lecture XXXVII. — Of Title to Personal Propertg by Transfer by Act of Law . 385 1. By Forfeiture 385 2. By Judgment 387 3. By Insolvency 38Q AND HEREIN, (1) Of Bankrupt and Insolvent Laws 889 (2) Of Bankrupt and Insolvent Laws discharging from Imprison- ment 397 (3) Attachments against Property 401 Vin CONTBNTSi Page 4. By Intestacy 408 AND HCREIN, ( 1 ) Of gran ting Administration 409 (2) Of tlie Power and Duty of the Administrator 414 (3) Of tlie Distribution of the Personal Estate 420 AND HEREIN, 1. Of the English statute of distribution . 420 2. Of next of kin by the civil and English laws 422 3. Of distribution by st^e laws 426 4. By the law of domicile 428 5. Distribution as to foreign law 481 Lecture XXXVIII. — Of Title, to Personal Property by Gift 437 1. Gifts Inter Vivos 438 2. Gifts Causa Mortis 444 Lecture XXXIX. — Of Contracts 449 1. Of the Parties thereto 449 2. The Lex Loci as to Contracts 453 AND HEREIN, ^ (1) The Nature and Importance of the Doctrine 453 AND HEREIN, 1. The application to contracts 457 2. The application, to remedies 462 3. Of the Consideration 463 4. Of the Contract of Sale 468 AND HEREIN, (1) Of the Thing sold 468 (2) Of rescinding and completing the Contract 470 (3) Of the Price 477 (4) Of Mutual Consent 477 5. Of Implied Warranty of the Articles sold 478 6. Of the Duty of Mutual Disclosure 482 7. Of passing tlie Title by Delivery 492 AND HEREIN, (1) Of Payment and Tender 452 (2) Of Earnest and Part Payment by Statute of Frauds . . 493 (3) Of Condition attached to Delivery 496 (4) Rule of the Civil Law ^gg (5) Delivery to Agent ^gg (6) Symbolical Delivery qqq (7) Place of Delivery gQj CONTENTS. IX Page 8. Of the memorandum required by the Statute of Frauds 610 9. Of Sales of Goods, as affected by Fraud 512 AND HEREIN, (1) Of Sales without Possession . . 515 (2) Of Voluntary Assignments 532 10. Of Sales at Auction 530 11. Of the Vendor's Right of Stoppage in Transitu 540 ANI> HEREIN, (1) Of the Persons entitled to exercise this Right ...... 542 (2) Of Matters which allow or defeat the Right 543 (3) Of Acts of the Vendee affecting the Right 547 12. Of the Interpretation of Contracts 552 Lectdre XL. — Of Bailment 558 1. Of Depositum 560 2. OtMandatum 568 3. Of Commodatum 573 4. Of Pledging 577 6. Of Locatum, or Hiring for a Reward 585 AND HEREIN, (1) Of letting to hire 586 (2) Of hiring Mechanic Skill 588 (8) Of Innkeepers 592 (4) Of Common Carriers 597 Lecture XLI. — Of Principal and Agent 612 1. Agency, how constituted 612 2. Of the Power and Duty of Agents 617 AND HEREIN, (1) Agent exceeding his Powers . 618 (2) Executing in Part 618 (3) General and Special Agents 620 (4) Sales by a Factor 622 (5) Del Credere Commission ... 624 (6) Cannot pledge .... . 625 (7) When and how personally bound 620 (8) Public and Private Agents , 632 (9) Subagents and Joint Agents 633 3. Of the Agent's Right of Lien 634 AND HEREIN, (1) For Service rendered . 634 (2) On Goods found 6.'^5 (3) General Lien 636 (4) Possession Necessary 638 CONTENTS. Page (5) Right to sell 639 (6) Lien of Attorney 640 4. Of the Termination of Agency 643 AND HEREIN, (1) By Death of Agent 643 (2) Revocation 64r (3) Bankruptcy 644 (4) Lunacy . . 645 (5) Death of Principal = ,645 PART IV. OF THE LAW CONCERNING THE RIGHTS OF PERSONS. LECTURE XXIV. OP THE ABSOLUTE EIGHTS OP PERSONS. X. History and Character of Bills of Rights. — The rights of persons in private life are either absolute, being such as belong to individuals in a single, unconnected state ; or relative, being those which arise from the civil and domestic relations. The absolute rights of individuals may be resolved into the right of personal security, the right of personal liberty, and the right to acquire and enjoy property. These rights have been justly considered, and frequently declared, by the people of this country, to be natural, inherent, and unalienable. The effectual security and enjoyment of them depend upon the existence of civil liberty; and that consists in being protected and governed by laws made, or assented to, by the representatives of the people, and conducive to the general welfare. Right itself, in civil society, is that which any man is entitled to have, or to do, or to requii'e from others, within the limits prescribed by law. The history of our colonial government bears constant marks of the vigilance of a free and intelligent people, who understood the best securities for political happiness, and the true foundation of the social ties. The inhabitants of the colonies of Plymouth and Massachusetts, in the infancy of their establishments, de- clared by law that the free enjoyment of the liberties * which humanity, civility, and Christianity called for was * 2 due to every man in his place and proportion, and ever had been, and ever would be, the tranquillity and stability of the VOL. II. — 1 [ 1 J * 2 OP THE EIGHTS OP PEESONS. [PAET IT. commonwealth. They insisted that they brought with them into this country the privileger of English freemen ; and they defined and declared those privileges with a caution, sagacity, and precision that have not been surpassed by their descendants. Those rights were afterwards, in the year 1692, on the receipt of their new charter, reasserted and declared. It was their fun- damental doctrine that no tax, aid, or imposition whatever could rightfully be assessed or levied upon them without the act and consent of their own legislature ; and that justice ought to be equally, impartially, freely, and promptly administered. The right of trial by jury, and the necessity of due proof preceding con- viction, were claimed as undeniable rights; and it was further expressly ordained that no person should suffer without express law, either in life, limb, liberty, good name, or estate ; nor with- out being first brought to answer by due course and process of law. (jx) (a) Hazard's State Papers, i. 408, 487, ed. Philad. 1792 ; Hutchinson's Hist, of Massachusetts, ii. 64 ; Revised Laws of Massachusetts, published in 1675 ; Baylies's Historical Memoir, i. 229 ; Bancroft's Hist. i. 452. It was a provision in the charters to the Virginia settlers, granted by James I., in 1606 and 1609, and in the charter to the colonists of Massachusetts in 1629, of the province of Maine in 1639, of Con- necticut in 1662, of Rhode Island in 1663, of Maryland in 1632, of Carolina in 1663, and of Georgia in 1732, that they and their posterity should enjoy the same rights and liberties which Englishmen were entitled to at home. Such privileges were implied by law, without any express reservation. The like civil and religious privileges were conceded to New Jersey, by the proprietaries, in February, 1665. Bancroft's Hist. ii. 316. In the free and liberal charter of Massachusetts of 1629, powers were granted to the whole body of the proprietors to make laws not repugnant to the laws of England. The colonists of New Plymouth assumed the necessary powers of gov- ernment by an original compact among themselves, and which they subscribed before they landed on the rock of Plymouth ; and which they had in contemplation before they embarked from Holland. Young's Chronicles of the Pilgrim Fathers, 95. All the New England colonies, on their first establishment, were pure democracies ; none more so ever existed. The governments of Rhode Island, Connecticut, and New Haven were thus formed by voluntary compact. Under the first Massachusetts char- ter the legislative body was composed of the governor, assistants, and the whole free- men of the company in person. The first general court of delegates was in 1634. The freemen had become too numerous to assemble in n, body, and Governor Winthrop directed that the towns should assemble in general court by deputies, to revise and make laws. The statute of 1636 declared that the freemen of each town might choose, hy papers, deputies to the general court. This was introducing voting by ballot. See Digest of Massachusetts Colony Laws, published in 1675 ; Winthrop's Hist, of New England, by Savage, i. 128, 185, 320. For more than eighteen years the whole body of the male inhabitants of the old colony of Plymouth constituted the legislature. Bancroft's Hist. i. 348. In 1688, the election of the governor and assistants by the freemen was declared to be annual, and, in 1638, the personal [2] LECT. XXIV.J OP THE RIGHTS OF PERSONS. * 3 * The first act of the general assembly of the colony of * 3 Connecticut, in 1639, contained a declaration of rights in nearly the same language ; (a) and among the early resolutions of the general assembly of the colony of New York, in 1691 and 1708, we meet with similar proofs of an enlightened sense of the provisions requisite for civil security. It was declared by them (5) that the imprisonment of subjects without due_ commitment for legal cause, and proscribing and forcing them attendance of the freemen at the general court was deemed to be grievous, and each town was thenceforward to choose deputies. Brigham's ed. of Plymouth Colony Laws, 1836, pp. 36, 37, 63. And by statute, in 1671, ib. 258, if any freeman did not appear at election in person, or by proxy, he was for such neglect to be amerced. The free planters of Connecticut, in 1689, provided that the choice of officers was to be by ballot ; and that if the general assembly or court was not at any time duly convened, the freemen might meet and hold the same, in person or by deputy. Chalmers says that the introduction of representative government in Massachusetts was in violation of the charter of 1629 ; and this was the opinion of Sir George Treby, and other high legal authority in England. But though there was no express provision for it in the charter, it would seem to have been necessarily implied when the growth of the col- ony required it; and it was justified by the model of the English House of Commons, where the principle of representation was inherent and vital. The first assembly of Maryland, in 1635, consisted of the whole body of the freemen, and, in 1639, a rep- resentative assembly was established. Sparks's American Biography, n. s. vol. ix. • Life of Governor Calvert. (a) Trumbull's Hist, of Connecticut, i. 98 ; Laws of Connecticut, ed. Boston, 1672, ed. 1702, and ed. New London, 1715, by Timothy Green. The edition of 1702 I have not seen. The edition of 1672 was the first printed code. There was a code of laws compiled in 1650, and it was circulated in uirillen copies read in each town. (h) Journal of the Assembly of the Colony of New York, i. 6, 224. The general assembly of the colony of New York passed an act on the 13th of May, 1691, declara- tory of the rights and privileges of the people of the colony. It was declared that a session of the general assembly should be held annually, and that every freeholder within the province, and every freeman of a corporation, were entitled to vote for members of the assembly ; that no freeman was to be deprived of any rights or liber- ties, or condemned, but by the judgment of his peers or the law of the land ; that no tax of any kind, or on any pretence, should be levied upon the persons or estates of any of the subjects of the province, except by the act of the general assembly ; that all trials were to be by a jury of twelve men, and in all capital and criminal cases there was to be a previous indictment or presentment by a grand inquest ; and that the tenure of all lands was to be in free and common socage. This declaratory act or charter of privileges contained several other provisions, but it was repealed by the king in 1697. Bradford's edition of Colony Laws, 1719. There was a prior act of the same purport, and nearly in the same words, passed by the first general assembly of the province in 1683, under the administration of the Duke of York. It was styled " The charter of liberties and privileges, granted by his royal highness to the inhabi- tants of New York." App. No. 2, to the Revised Edition of the Laws of New York in 1813, vol. ii. [3] *4 OP THE EIGHTS OP PERSONS. [PAET IV. into banishment, and forcibly seizing their property, were illegal and arbitrary acts. It was held to be the unquestionable right of every freeman to have a perfect and entire property in his goods and estate ; and that no money could be imposed or levied, without the consent of the general assembly. The erection of any court of judicature without the like consent, and exactions upon the administration of justice, were declared to be grievances. Testimonies of the same honorable character are doubtless to be met with in the records of other colonial * 4 legislatures. It was regarded * and claimed by the general assemblies in all the colonies, as a branch of their sacred and indefeasible rights, that the exclusive power of taxation oT the people of the colonies resided in their colonial legislatures, where representation of them only existed ; and that the people were entitled to be secure in their persons, property, and privi- leges, and they could not lawfully be disturbed or affected in the enjoyment of either, without due process of law, and the judg- ment of their peers, (a) But we need not pursue our researches (a) See, to this effect, in addition to the acts of Massachusetts, Connecticut, and New Yorlc, already mentioned, the declaratory act of the assembly of the Plymouth colony, in 1635, and also in 1658 and 1671. (Holmes's Annals, i. 232 ; Baylies's His- torical Memoir of the Colony of New Plymouth, i. 229; Plymouth Colony Laws, ed. by Brigham, 1836, 107, 241.) See also the declaration of their rights, by the assembly of Virginia, in 1624 and 1676 (Stith's Hist, of Virginia, 318 ; Chalmers's Annals, p. 64) ; and of the assembly of Pennsylrania in 1682 ; and of the legislature of Maryland in 1639, and again in 1650 ; and of the assembly of Ehode Island in 1663 ; and of the proprietaries of Carolina in 1667 (Proud's Pennsylvania, i. 206, 208; Grahame's Hist, of the Colonies ) ; and of the concessions and agreements of the proprietaries of New Jersey in 1664 ; and of the fundamental constitutions by the proprietaries of East New Jersey in 1683 ; and of the declaratory acts of the general assembly of East New Jersey in 1682 and 1698 ; and of the concessions and agreements of the proprietaries and planters of West New Jersey, and called the great charter of fundamentals, in 1676 ; and of the declaratory act of the general assembly of West Jersey, in 1681. (Learning's and Spicer's Collections, ed. Philad. folio, 1757, 12-26, 153-166, 235, 240, 370, 872, 382, 411; Smith's Hist, of New Jersey, 126, 270- 274, App. No. 1, 2.) The West New Jersey colonists, in 1676, introduced voting by ballot, universal suffrage, the right and obligation of instructions, universal eligibility to office, and abolished imprisonment for debt. All this was done under the auspices of William Penn, whose influence contributed to plant West New Jersey, and who was a joint assignee and trustee of an undivided portion of West Jersey, as well as a joint owner by purchase with other partners of East Jersey. The declaration of the general assembly of Virginia, in 1624, that the governor should not lay, levy, or employ any taxes or impositions upon the colony, except by authority of the general assembly, was the first example of the assertion of such a right ; as that house was the first popular representative body ever convened in America. Hening's Statutes, [4] LECT. XXIV.] OP THE EIGHTS OP PEESONS. * 5 on this point, for the best evidence that can be produced of the deep and universal sense of the value of our natural rights, and of the energy of the principles of the common law, are the memorials of the spirit which pervaded and animated every part of our * country, after the peace of 1763, when the * 5 same parent power which had nourished and protected us attempted to abridge our immunities, and retard the progress of our rising greatness. The House of Representatives in Massachusetts, the House of Assembly in New York, and the House of Burgesses in Virginia, took an early and distinguished part, upon the first promulgation of English measures of taxation, in the assertion of their rights as freeborn English subjects, (a) The claim to common-law rights soon became a topic of universal concern and national vindication. In October, 1765, a convention of delegates from nine colonies assembled at New York, and made and published a declaration of rights, in which they insisted that the people of the colonies were entitled to all the inherent rights and liberties of English i. 118, 122 ; Story's Comm. on the Const, i. 26. The charter of the colony of Maryland, in 1632, was peculiarly liberal. It established an independent colonial legislation in the proprietary and the freemen or their deputies, and the crown stipulated never to levy any tax upon the inhabitants, and the inhabitants were to enjoy all the rights and privileges of English subjects. Chalmers's Annals, i. 202-205 ; Hazard^s Coll. i. 327. The first assembly of Maryland, in 1638, declared the great charter of England to be the measure of their liberties ; and William Penn, in the preface to the plan of government prepared for Pennsylvania, in 1682, declared that any government is free to the people under it, where the laws rule, and the people are a partif to those laws. Proud's Hist, of Pennsylvania, ii. App. p. 7 ; Sacon's Laws, 1638, u. 2. (a) Minot's Hist, of Massachusetts, ii. 175 ; Journals of Assembly of New York, ii. 769-780 ; Jefferson's Notes on Virginia, 189 ; Marshall's Life of Washington, ii. 88, and Appendix note No. 4 ; Wirt's Life of Patrick Henry, sec. 2. The assertion by the English House of Commons, in 1764, and prior to the Stamp Act, of a right to impose taxes upon the colonies, produced spirited and manly remonstrances to the King and Parliament from several of the colonial assemblies. Pitkin's Hist, of the United States, i. 165-169. The general assembly of the colony of New York, in October, 1764, not only asserted their exclusive right of taxing their constituents, • but complained, at the same time, of the grievance of putting an end, by act of Par- liament, to commercial intercourse between the colonies and foreign West India settlements. Journals of N. Y., ib. The Stamp Act was passed the 22d March, 1765, and this was the first measure of indirect taxation laid upon the colonies by the British Parliament for the mere purpose of revenue. The first resolutions of any of the colonial assemblies, after the passage of the Stamp Act, came from the House of Burgesses of Virginia. They were introduced by Patrick Henry, in May, 1765, and asserted the right in the colonists of taxing themselves. Wirt's Life of Patrick Henry, sec. 2. [5] *6 OP THE EIGHTS OP PERSONS. [PART IV. subjects, of which the most essential were, the exclusive power to tax themselves, and the privilege of trial by jury. (6) The sense of America was, however, more fully ascertained, and more explicitly and solemnly promulgated, in the memorable declaration of rights of the first Continental Congress, in October, 1774, and which was a representation of all the colonies except Georgia. That declaration contained the assertion of several great and *6 fundamental principles of American * liberty, and it consti- tuted the basis of thos% subsequent bills of rights which, under various modifications, pervaded all our constitutional char- ters. It was declared, " that the inhabitants of the English col- onies in North America, by the immutable laws of nature, the principles of the English constitution, and their several charters or compacts, were entitled to life, liberty, and property ; and that they had never ceded to any sovereign power whatever a right to dispose of either without their consent ; that their ancestors who first settled the colonies were, at the time of their emigra- tion from the mother country, entitled to all the rights, liberties, and immunities of free and natural-born subjects; and by such emigration they by no means forfeited, surrendered, or lost any of those rights ; that the foundation of English liberty, and of all free government, was the right of the people to participate in the legislative power, and they were entitled to a free and exclu- sive power of legislation, in all matters of taxation and internal policy, in their several provincial legislatures, where their right of representation could alone be preserved ; that the respective colonies were entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law ; that they were entitled to the benefit of such of the English stat- utes as existed at the time of their colonization, and which they had by experience found to be applicable to their several local . and other circumstances ; that they were likewise entitled to all the immunities and privileges granted and confirmed to them by royal charters, or secured by their several codes of provincial laws." (a) Upon the formation of the several state consti- (6) Marshall's Life of Washington, ii. 90, and Appendix, note No. 5. (o) Journals of Congress, i. 28, ed. Phil. 1800. It was a principle of the Eng- lish common law, that acts of Parliament did not bind the English colonies unkss they were specially named. Blankard v. Galdy, 4 Mod. 222; 2 Sall£ 411 s c • Sir [6] ' ■ ■' LECT. XXIV.J OP THE EIGHTS OP PERSONS. * 8 tutions, * after the colonies had become independent states, * 7 it was in most instances thought proper to collect, digest, and declare, in a precise and definite manner, and in the shape of abstract propositions and elementary maxims, the most essential articles appertaining to civil liberty and the natural rights of mankind, (a) The precedent for these declaratory bills of rights was to be found, not only in the colonial annals to. which I have alluded, but in the practice of the English nation, who had frequently been obliged to recover their indefeasible rights by intrepid councils, or by 'force of arms, and then to proclaim them by the most solemn and positive enactments, as a barrier against the tyranny of the executive power. The establishment of Magna Charta, and its generous provision for all classes of freemen against the complicated oppressions of the feudal system ; the petition of right, early in the reign of Charles I., asserting by statute the rights of the nation as contained in their ancient laws, and especially in " the great * charter of the liberties * 8 of England ; " and the bill of rights at the revolution, in 1688, (a) are illustrious examples of the intelligence and spirit of the English nation, and they form distinguished eras in their con- stitutional history, (i) But the necessitj% in our representative Joseph Jekyll, in 2 P. Wms. 75. But the prevalent doctrine in the colonies, and one that was acted upon by some of the legislatures, was, that no act of Parliament was binding upon the colonies, (hough named, unless ratified by the colonial legislatures, and on the ground that they were not represented in Parliament. Hutchinson's His- tory, i. 322 ; Chalmers's Annals, 277, 400 ; Pitkin's Hist, of the United States, i. 91, 92, 96, 97. The original charter of Pennsylvania to William Penn contained a pro- vision that no contribution should be levied on the inhabitants or their estates, unless by the consent of the proprietary or governor and assembly, or hy act of Parliament in England. Charter, sec. 2, Proud's Hist, of Pennsylvania, i. 185. Yet this anoma- lous reservation of a power of taxation in Parliament was always understood by the colonists to imply, that the people of the province were to be allowed to send their representatives to Parliament previous to the exercise of the power. Tliis was so asserted by Dr. Franklin, in his examination before the House of Commons in Eng- land, prior to the American war. (a) Cicero, in his treatise De Eepublica, lib. 1, sec. 32, insisted that equality of rights was the basis of a commonwealth ; for since property could not be equal, and talents were not equal, rights ought to be held equal among all the citizens of the gtate, which was, in itself, nothing but a community of rights. (a) Act of 1 W. & M., sess. 2, c. 2, entitled "An Act declaring the rights and liberties of the subject, and settling the succession of the crown." See also the Act of Settlement, 12 & 13 Wm, III. c. 2, and ante, 293. (b) This free spirit of the English nation at the era of Magna Charta was not [7] *8 OP THE EIGHTS OP PERSONS. [PAKT IV. republics, of these declaratory codes has been frequently ques- tioned, inasmuch as the government, in all its parts, is the creature of the people, and every department of it is filled by their agents, duly chosen or appointed, according to their will, and made responsible for maladministration. It may be observed, on the one hand, that no gross violation of those absolute private rights which are clearly understood and settled b}' the common reason of mankind is to be apprehended in the ordinary course of public affairs ; and as to extraordinary instances of faction and tur- bulence, and the corruption and violence which they necessarily engender, no parchment checks can be relied on as affording, under such circumstances, any effectual protection to public lib- erty. When the spirit of liberty has fled, and truth and justice are disregarded, private rights can easily be sacrificed under the forms of law. On the other hand, there is weight due to the consideration that a bill of rights is of real eiScacy in controlling the excesses of party spirit. It serves to guide and enlighten public opinion, and to render it more quick to detect, and more resolute to resist, attempts to disturb private right. It requires more than ordinary hardiness and audacity of character to trample down principles which our ancestors cultivated with reverence ; which we imbibed in our early education ; which recommend themselves to the judgment of the world by their truth and sim- plicity ; and which are constantly placed before the eyes of the people, accompanied with the imposing force and solemnity of a constitutional sanction. Bills of rights are part of the muniments of freemen, showing their title to protection, and they become of increased value when placed under the protection of an indepen- dent judiciary, instituted as the appropriate guardian of private right. Care, however, is to be taken, in the digest of these peculiar to the Anglo-Saxon race in that island. We have an analogous and almost contemporary case in Denmark, upon the election of King Christopher 11., in 1319. He was called upon by the diet or assembly of great men which elected him to sign a capitulation or charter, taken from preceding models, in which it was declared, not only that the feudal nobility and the clergy should be secure in their priyileges and exemptions, but that the free peasants should not be subject to any tax contrary to the established laws and customs ; that a Parliament should be annually held at Wyborg; that no man should be imprisoned, or deprived of life and property, with- out public trial and conviction according to law ; and that no law should be made or altered without consent of Parliament, consisting of the prelates and best men of the kingdom. Bishop Muller, on the Ancient History and Constitution of Denmark, noted in the Foreign Quarterly Review, No. 21. [8] LECT. XXIV.] OP THE RIGHTS OF PERSONS. * 9 declaratory provisions^ to * confine the manual to a few plain * 9 and unexceptionable principles. We weaken greatly the force of them if we incumber the constitution, and perhaps embarrass the future operations and more enlarged experience of the legis- lature, with a catalogue of ethical and political aphorisms, which, in some instances, may reasonably be questioned, and in others justly condemned, (a) In the revision of the constitution of (a) The following instances may be mentioned as illustrations of the question- able nature of some of these declaratory prorisions : — Thus, seTeral of the state constitutions, as those of New Hampshire, Massachu- setts, Vermont, North Carolina, Ohio, Indiana, and Illinois, have made it an article in their bill of rights, that the people hare a right not only to apply to the legisla- ture by petition or remonstrance, but to " instruct their representatives." If, by this, be meant that they may give to their representatives wholesome advice or informa- tion, it is a, palpable truth, and quite a harmless article ; but if it be intended to declare that the people of a town or county or district may give binding instructions to their immediate delegates, and to which they must conform without any exercise of their own discretion in like manner as an agent or attorney in private business is bound by the directions of his principal, it would then render useless all discussion and deliberation in the legislature. This would be repugnant to the theory of gov- ernment, which supposes that the representatives are to meet and consult together for the common welfare, and to have a regard, in the making of laws, to the greatest general good, and to make the local views and interest of a part of the community subordinate to the general interest of the whole. The principle of the English com- mon law applicable to the members of the British House of Commons is deemed to be the true doctrine on this subject. Though chosen by a particular county or borough, the member, when elected and returned, serves for the whole realm. " When you choose a member," said iVIr. Burke to the electors of Bristol, in 1774, "he is not a member of Bristol, but he is a member of Parliament." The end of his election is not particular, but general ; not barely to advantage his constituents, but for the com- mon weal ; and he is not bound to take and follow the advice of his constituents upon any particular point, unless he thinks it proper and prudent so to do. (4 Inst. 14 ; 1 Bl. Comm. 159.) The representative (to use again the language of Burke) owes to his constituents, not his industry only, but his judgment ; and he betrays, instead of serving them, if he sacrifices it to their opinion. The people cannot debate in their collective capacity. They can only deliberate and make laws by their representa- tives ; and in the ordinary course of human affairs, the exercise of their sovereignty, and the means of their safety, will consist in the discreet selection of the rulers who are to administer the government of their choice. The earliest assertion of this important and undoubted constitutional principle, that each member of the House of Commons was deputed to serve, not only for his immediate constituents, but for the whole kingdom, was, according to Mr. Hallam (Constitutional History of England, i. 352), made in Parliament, in 1571. So, it is declared, in some of the state constitutions, as Maryland, North Carolina, and Tennessee, " that monopolies are contrary to the genius of a free government, and ought not to be allowed." This would seem to restrain the legislature from granting any exclusive privilege, even for a limited time, and prevent them from encouraging the introduction and prosecution of hazardous and expensive experi- ments in some art, science, or business calculated to be extensively useful. " A tem- [9] *11 OP THE RIGHTS OP PERSONS. [PART IV. New York, in 1821, the declaration of rights was consider- * 11 ably enlarged ; and yet * the most comprehensive, and the most valuable and effectual of its provisions, were to be found in the original constitution of 1777, as it was digested by some master statesman, in the midst of the tempest of war and invasion. It was declared, (a) that no authority should be exer- cised over the people or members of the state, on any pretence whatever, but such as should be derived from and granted by them ; and that trial by jury, »as formerly used, should remain inviolate for ever ; and that no bills of attainder should be passed, and no new courts instituted but such as should proceed according to the course of the common law ; and that no member of the state should be disfranchised, or deprived of any bis rights or privileges under the constitution, unless by the law of the land or the judgment of his peers. Several of the early state consti- porary monopoly of that kind," says Doctor Adam Smith (Inquiry into the Wealth of Nations, ii. 272), " may be vindicated upon the same principles upon which a like monopoly of a new machine is granted to its inventor, and that of a new book to its author." If the principle be correct, that all monopolies are contrary to the genius of a free state, it would condemn the power given to Congress to secure to authors and inventors the exclusive right to their writings and discoveries, and which species of monopoly is deemed to be exceedingly just and useful. Again : it is made an article in the declaration of rights, in the constitution of Illinois, that " there shall be no other banks or moneyed institutions in the state but those already provided by law, except a state bank and its branches.'' This is too general and too indefinite a restraint upon the exercise of the legislative discretion, and the subject seems scarcely of sufficient importance to have been classed among the " general, great, and essential principles of liberty and free government." In a commercial state, it would lead to the loss of many useful moneyed establishments, or, what is more probable, it would be a temptation to efforts to elude the force of the article by evasive constructions. So, the provision in the declaration of rights in the constitu- tion of Mississippi, that " no citizen shall be prevented from emigrating, on any pre- tence whatever," seems to be stated in terms too strong and unqualified, and it would require some latitude of interpretation to prevent the unjust application of the injunction to the case of persons emigrating with the fraudulent design of avoiding the payment of debt, or the discharge of a known duty, as the relief of bail or security. It is declared, in the constitution of Ohio, that " every association of per- sons, being regularly formed, and having given themselves a name, m^y, on appli- cation to the legislature, be entitled to letters of incorporation to enable them to hold estates, real and personal, for the support of their schools, academies, colleges, uni- versities, and other purposes." The provision is too indefinitely expressed, and relates to a case of ordinary legislative discretion, and if literally carried into execution, it would be productive of great inconvenience. It does not seem to be deserving of a place among " the essential principles of liberty and free government to be for ever unalterably established." (a) Constitution of 1777, art. 1, 13, 41. [10] LECT. XXiy.] OP THE EIGHTS OF PERSONS. * 12 tutions had no formal bill of rights inserted in them ; and experi- ence teaches iis that the most solid basis of public safety, and the most certain assurance of the uniiiterrupted enjoyment of our personal rights and liberties, consists, not so much in bills of rights, as in the skilful organization of the government, and its aptitude, by means of its structure and genius, and the spirit of the people which pervades it, to produce wise laws, and a pure, firm, and intelligent administration of justice. I shall devote the remainder of the present lecture to ex- amine more particularly the right of personal security and * personal liberty, and postpone the consideration of the * 12 right of private property until we arrive at another branch of our inquiries. ^ 1. Of the Right of Personal Security. — The right of personal security is guarded by provisions which have been transcribed into the constitutions in this country from Magna Charta, and other fundamental acts of the English Parliament, and it is enforced by additional and more precise injunctions. The sub- stance of the provision is, that no person, except on impeach- ment, and in cases arising in the military and naval service, shall be held to answer for a capital or otherwise infamous crime, or for any offence above the common-law degree of petit larceny, unless he shall have been previously charged on the presentment or indictment of a grand jury ; (a) that no person shall be sub- (a) In the case of The State v. Hardie, 1 Ired. (N. C.) 42, it was held that an in- formation in the nature of a quo warranto, to try the right to a franchise, was in the nature of a civil remedy, and not within the province of a bill of rights, that no free- man should be put to answer for any criminal charge, but by indictment, &c. But in New Hampshire the attorney-general raaj', ex officio, and in his discretion, file an information in all cases of offences and misdemeanors not capital or infamous. The State V. Dover, 9 N. H. 468 ; and this seems to be the law also in the States of Maine and Massachusetts. The State v. Kittery, 5 Greenl. 254 ; Commonwealth v. Waterborough, 5 Mass. 259. The constitution of New York does not require an indictment in all criminal cases, for it excepts petit larceny ; nor does it require trial by jury in cases of petit larceny, and of other offences not infamous, as in cases of vagrants, disorderly persons, &c., for the trial by jury had not been previously used in such cases. Duffy v. The People, 6 Hill, 75. In Ohio, also, it is held that the legislature may direct the mode of redress, untrammelled by the constitutional provision of indictment or presentment, as to offences criminal or infamous, when the offences are but quasi criminal, as Sabbath-breaking, selling spirituous liquors con- trary to law, and many other misdemeanors which may be given to the jurisdiction of justices of the peace, mayors, &c. Markle v. Akron, 14 Ohio, 589. These summary convictions are in derogation of the common law, without indictment or trial by jury, and are construed strictly, and rest for their validity on statute provisions. There [11] *12 OF THE EIGHTS OP PERSONS. , [PAET IT. jeet, for the same offence, to be twice put in jeopardy of life or limb ; (5) nor shall he be compelled, in any criminal case, to be must be a record of the proceeding, and an information or charge, and notice to the party, and a conviction, judgment, and execution. A review founded on tlie record may be had by habeas corpus or certiorari. The People v. Philips, N. Y. C. Court. See N. Y. Legal Observer for April, 1847, v. 130. (6) This prohibition, as to putting a party twice in jeopardy, is in the Constitu- tion of the United States, and it has been deemed by Mr. Justice Story to mean, tliat .no person shall be tried a second time for the same offence, after a trial by a compe- tent and regular jury, upon a good indictltiient, whether there be a verdict of acquit- tal or conviction. A new trial cannot, therefore, be granted in a capital case, after a verdict regularly rendered upon a sufficient indictment; but it may where the jury has been discharged from giving a verdict, for then the party has not been put in jeopardy. United States v. Gibert, 2 Sumner, 19. But in opposition to this opinion, it has been adjudged by Mr. Justice McLean, in an equally elaborate opinion, in the case of The United States u. Keen, 1 McL. 429, that the courts of the United States have a constitutional power to grant new trials in capital as well as in other criminal cases. With respect to the right to discharge a jury in a capital case, when they cannot agree upon a verdict, it was held by the Supreme Court of the United States, in the case of the United States v. Perez, 9 Wheaton, 579, that the courts have a discretionary power, even in capital cases (to be exercised with great caution and reserve), to discharge the jury from giving a verdict, and that the prisoner may be tried again for the same offence. This question as to the power of the court to dis- charge a jury, sworn and charged in a capital case, before verdict, and to put the party accused upon trial a second time, for the same offence, after a verdict ren- dered, has been much discussed in the courts in this country, and the vigorous and powerful opposition to the power of the court by Mr. Justice Story, in the case of The United States v. Gibert, has given additional interest to the investigation. The cases in the American courts on the power of discharging a jury, in their sound dis- cretion, before verdict, and of putting the party again on his trial, are fully collected in Wharton's American Criminal Law, ed. Philadelphia, 1846, pp. 146-155, 625-636. The result clearly is, that the power of the courts is settled, by overwhelming prece- dent and authority, in favor of the power of the courts to discharge a jury before ver- dict, after being charged in a capital case, when there is an absolute necessity for it, to be judged of by the court in its sound discretion, and that the accused may be put upon his trial de novo, and also that a new trial, after a verdict of conviction, may be awarded, for the pai;ty is not put in jeopardy a second time. That jeopardy already exists, and the only object of a second trial is to give the accused a chance of being relieved from it. x^ x^ A party is so far put in jeopardy But if the trial come to an end owing when a jury has been impanelled, that, to some physical or moral necessity not if the jury be improperly discharged, or the fault of the prosecution, or by con- if the trial come to end by fault of the sent of the accused, there may be a new prosecution, he cannot be tried again, trial. Commonwealth v. McCormick, 130 Teat o. State, 53 Miss. 439 ; WiUiaras v. Mass. 61 ; State v. Bell, 81 N. C. 591 ; The State, 78 Ky. 93 ; Commonwealth v. State a. Pritohard, 16 Nev. 101 ; In re Scott, 121 Mass. 33 ; Coleman v. Tennes- ScrafEord, 21 Kans. 735 ; State v. Pool, see, 97 U. S. 509. Comp. State v. Jeffors, 4 Lea, 363. 64 Mo. 376. If the court in the first trial had no [•12] LECT. XXIY.] OP THE RIGHTS OF PERSONS. * 13 a witness against "himself ; and in all criminal prosecutions the accused is entitled to a speedy and public trial by an impartial jury ; and upon the trial he is entitled to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence. And as a further guard against abuse and oppres- sion in criminal proceedings, it is declared that excessive bail cannot be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted ; nor can any bill of attainder, or ex post facto law, be passed. The Constitution of the United States, and the constitutions of almost every state in the Union, contain the same declarations in substance, and nearly in the same language, (c) And where express constitutional provisions on this subject appear to be wanting, the same principles are probably asserted by declaratory legislative acts; and they must be regarded as fundamental doctrines in every state, for the col- onies were parties to the national declaration of rights in 1774, in which the trial by jury, and the other rights and liberties of English subjects, were peremptorily claimed as their un- doubted * inheritance and birthright. It may be received * 13 as a proposition, universally understood and acknowledged throughout this country, that no person can be taken or im- (c) In the ordinance of Congress of July 13, 1787, for the goTemmeni of the ter- ritory of the United States northwest of the river Ohio, it was declared to be an unalterable article of compact between the original states and the people and states in the said territory, that the inhabitants thereof should always be entitled to the benefit of the writ of habeas corpus, and of trial by jury ; of judicial proceedings according to the course of the common law ; that all persons should be bailable, unless for capital offences, where the proof shall be evident or the presumption great ; that all fines should be moderate, and no cruel or unusual punishments inflicted ; that no man should be deprived of his liberty or property but by the judgment of his peers, or the law of the land ; that no man's property or services should be taken or demanded for public exigencies, without full compensation ; and that no law ought ever to be made, or have force in the territory, interfering in any manner whatever with or affecting private contracts or engagements bona jide, and without fraud previously formed. This last and valuable provision was at that time new and unprecedented in constitu- tional history. jurisdiction, or if the indictment was de- trial, since in legal contemplation there fective, or if the proceedings were erro- has been no jeopardy. Coleman v. Ten- neous so as to sustain a writ of error or neesee, 97 U. S. 509, 520 ; Smith o. The a motion to set aside the verdict, and State, 41 N. J. L. 598; Kendall u. The any of these defects are taken advantage State, 65 Ala. 492. of by the accused, there may be a new [13] * 13 OP THE RIGHTS OP PERSONS. [PART IV. prisoned; or disseised of his freehold or estate; or exiled or condemned ; or deprived of life, liberty, or property, unless by the law of the land, or the judgment of his peers. The words, ly the law of the land, as used originally in Magna Charta, (a) in reference to this subject, are understood to mean due process of law, that is, by indictment or presentment of good and lawful men ; and this, says Lord Coke, (5) is the true sense and exposi- (a) Chapter 29. (6) 2 Inst. 50, See also The matter of John and Cherry Streets, 19 Wend. 659 ; Taylor v. Porter, 4 Hill (N. Y.), 145, 146, 147. The law of the land, in bills of right, says Ch. J. Buffin, in the elaborate opinion delirered in Hoke v. Henderson, 4 Der. (N. C) 15 (and one replete with sound constitutional doctrines), does not mean merely an act of the legislature, for that construction would abrogate all restrictions on legis- lative authority. The clause means, that statutes which would deprive a citizen of the rights of person or property without a regular trial, according to the course and usage of the common law, would not be the law of the land in the sense of the consti- tution. Mr. Justice Story, in his Commentaries on the Constitution, iii. 661, and Mr. Justice Bronson, in 4 Hill (N. Y.), 146, 147, adopt the same construction. In South Carolina, the law of the land, in the constitution of that state, means the common and the statute law existing in that state at the adoption of its constitution. O'Neall, J., in the State v Simons, 2 Speer, 767. In Tennessee, "the law of the land," in the constitution of that state, is understood in many cases to mean a general and public law, operating equally upon every member of the community ; and every partial law, by which private property and the rights of individuals are abridged or taken away, is'held to be against the constitution of the state. 2 Yerg. 554, 599 ; 10 id. 71. A statute declaring it to be felonj^ to embezzle or make false entries by the officers of a specific bank, is held to be unconstitutional and void, as being a partial law, not em- bracing the officers of other institutions under similar circumstances. ' Budd v. The State, 3 Humph. (Tenn.) 483. The judgment of his peers means trial by a jury of twelve men, according to the course of the common law ; and even in, private suits at common law, the right of trial by jury is preserved in the Constitution of the United States, where the value in controversy exceeds twenty dollars. Const. TJ. S. Amend- ments, art. 7. In the constitution of New York it is declared that trial by jury, " in all cases in which it has been heretofore used," should remain inviolate for ever; and no new court should be instituted, except courts of equity, which should not proceed according to the course of the common law. Const. N. Y. art. 7. Under these provisions it has been adjudged that the provision in the Constitution of the United States, relative to trial by jury, applies only to the federal courts ; and that the provision in the state constitution applies only to cases of trials of issues of fact in civil and criminal proceedings in courts of justice; and that the provision as to new courts referred to courts exercising the usual jurisdiction of courts of law, but pro- ceeding by modes unknown to the common law. In the Matter of Smitli, 10 Wend. 449 ; Cowen, J., In the Matter of John and Cherry Streets, 19 Wend. 676 ; Lee v. Tillotson, 24 Wend. 337. In Georgia, where the provision in the constitution securing trial by jury is the same as in that of New York, it has been adjudged that it did not apply to summary jurisdictions known and in use before the adoption of the constitution. Low V. Commissioners of Pilotage, R. M. Charlton, 302. This has been, also, the contemporaneous and practical exposition of the same words in the constitution of New York. Lee v. Tillotson, 24 Wend. 337. So, in Mississippi, it is held, in Lewis v. [14] LECT. XXIV.] OP THE RIGHTS OF PERSONS. * 14 tion of those words. The better and larger definition of due process of law is, that it means law in its regular course of admin- istration, through courts of justice. (Story, Comm. on the Const., vol. iii. 264, 661.) But while cruel and unusual punishments are universally con- demned, some theorists have proposed the entire abolition of the punishment of death, and have considered it to be an unnecessary waste of power, if not altogether unjust and unwarrantable. It has been supposed that the proper object of punishment, the pro- tection of society by the prevention of crime, can be as well or more effectually attained by the substitution of milder sanctions. The great difficulty is, to effect the salutary ends of punish- ment, and, at the same time, avoid wounding the public sense of humanity. The punishment of death is, doubtless, the most dreadful and the most impressive spectacle of public justice ; and it is not possible to adopt any other punishment equally powerful by its example. It ought to be confined to the few cases of the most atrocious character, for it is only in such cases that public opinion will warrant the measure, or the peace and safety of society require it. Civil society has an undoubted right to use the means requisite for its preservation ; and the punishment of murder with death accords with the judgment and the practice of mankind, because the intensity and the violence of the malignity that will commit the crime require to be counteracted by the strongest motives which can be presented to * the * 14 human mind. Grotius (a) disscusses much at large, and with his usual learning and ability, the design and the lawfulness of punishment ; and he is decidedly of the opinion that capital punishments, in certain cases, are not only lawful, under the divine law, but indispensable to restrain the audaciousness of guilt. He recommends, however, for adoption, in many cases, the advice and even the example of some of the ancients, by the substitution of servile labor and imprisonment for capital punish- ment. This has been done since his time to a very great extent in some parts of Europe, and especially in the United States. In Garrett, 5 Howard (Miss.), 434, that a statute authorizing summary proceedings, by motion against a sheriff and his sureties for official misconduct, is not a violation of the constitution which guaranties the right of trial by jury. That revision was not intended to disturb the ancient and established jurisdiction of the courts, and the modes of trial as regulated by the common law imder Magna Charta. (a) De Jure Belli, b. 2, c, 20. [15] *14 OP THE EIGHTS OF PERSONS. [PART IV. the earlier code of laws prepared by William Penn, and adopted by the legislature of Pennsylvania, in 1682, (J) it was declared that all prisons should be workhouses for felons and vagrants ; and the penitentiary system, founded on labor, discipline, and instruc- tion, accompanied with patient and humane treatment, was first introduced into this country by the wisdom and benevolence of that eminent lawgiver. Though the penitentiary system has not been able sufficiently to answer the expectations of the public, either in the reformation of offenders, or as an example to deter others, yet the more skilful structure and arrangement of the prisons, and the introduction of a stricter and more energetic system of prison discipline, consisting essentially of separate and solitary confinement by night, and hard labor without solitude, and in companies, but without conversation, in the workshops, by day (and which have been carried into effect with beneficial results in the state prison at Auburn, and the new state prison at Sing-Sing, in New York, and at Wethersfield in Connecticut), afford encouraging expectations that they will be able to redeem the credit of the system, and recommend the punishment of soli- tary imprisonment and hard labor, instead of capital and other sanguinary punishments, to the universal approbation of the civilized world, (c) (6) Frond's History of PennsylTania, ii. App. p. 16. (c) In Philadelphia, in 1829, a further reform in prison discipline was introduced, and is spoken of with high approbation by competent judges. It consists of solitary confinement by night, and being separate from associates in guilt by day, and labor by day. Purdon's Dig. 455. Doctor Lieber, in his Letter to the President of the Phila- delphia society for alleviating the miseries of public prisons, and in his Letter to the Governor of South Carolina on the penitentiary system, comes out with great strength in favor of the Philadelphia system in preference to the Auburn plan of discipline. See also the Lettre sur le systfeme p^nitentiare, par M. Demetz, Couseiller S. la cour royale, Paris, 1837, in which the Philadelphia plan of solitude by night and by day is ably enforced ; and the system was approved of, after full discussion by the Conseil G^ne'ral du DcSpartement de la Seine, October 20, 1837. But notwithstanding all this sanction, it would seem that competent persons of experience have raised a doubt as to the good effects of total and absolute solitary confinement by day and night, in consec[uence of its deleterious effects upon the body and mind of the prisoner. Doctor Lieber distinguishes the one system as the Auburn or silent system, and the other as the Pennsylvania separate or ererliitie system. The Boston Prison Discipline Society has been a strenuous and able advocate of the Auburn or congregate system, in opposition to the Pennsylvania or separate system. On the other hand, Miss D. L. Dix, in her " Kemarks on Prisons and Prison Discipline in the United States," 1845, after a thorough review of the penitentiaries in the United States, gives her opinion in favor of the superior efficacy of the separate as distinguished from the conffregate [16} LBOT. XXIV.J OP THE EIGHTS OP PERSONS. ' * 15 * While the personal security of every citizen is protected * 15 from lawless violence by the arm of government and the system, upon the morals of the convicts. The work is written with great good sense and knowledge of facts, and with admirable temper and candor. The Pennsylvania or separate system, by which the convicts are kept separate from each other not only at night, but by day, when at hard labor, is the one now prevalent in Europe, and it has high authorities, both in Europe and America, in its favor. The plan is seclusion from associates by day, accompanied by manual labor, with moral and religious instruction, and solitary confinement at night. The subject of penal laws is replete with difficulties. It is understood, in England, that transportation, as a punishment and discipline, has been a failure, either as means to deter from crime, or to reform the convicts. In a report made in the English House of Commons, in 1838, it was stated, that instead of reforming it had a corrupting influence, and was continually enlarging the Australian territories by colonists, most thoroughly depraved, as re- spected both the character and degree of their vicious propensities. If this be so, the grievance was most alarming, for in Great Britain about 5,000 persons annually undergo the sentence of transportation. But great and most commendable and apparently judicious amendments and improvements were made by the British gov- ernment in 1842, to meliorate the condition of convict discipline in Van Diemen'g Land and Norfolk Island. See the able and interesting despatches of Lord Stanley, Secretary of State for the Home Department, to Sir John Franklin, Lieutenant-Gov- ernor of Van Diemen's Land, published by order of the House of Commons, April, 1843. It appears that 1,000 convicts are sent annually from Great Britain to Norfolk Island in Australia, and the number of convicts resident there is not usually above 3,000. That 8,000 convicts are employed in labor in Van Diemen's Land. The course of discipline is, that every convict is subject to successive stages of punishment, de- creasing in rigor at each successive step, unless the transit to a less severe punishment be withheld, owing to misconduct in the convict: (1.) Detention at Norfolk Island four years ; (2.) The probationary gang removed to Van Diemen's Land and kept at labor two years ; (3.) The probation passes five years; (4.) Tickets of leave ; (5) Par- dons, absolute or conditional. Great efforts are made for the melioration of female convicts, and 600 of them annually pass through the penitentiaries. In the case of wanton and malicious mischief, corporal chastisement seems to be deemed a suitable punishment in whole or in part in the adoption of means to prevent it. Thus, for the better protection of works of art, and of scientific and literary col- lections, the statute of 8 and 9 Victoria, c. 44, declares that such trespassers shall be subjected to six months' imprisonment with hard labor, and with the wholesome discipline of one, two, or three whippings. It appears now (1847) to be the policy of the British government to qualify or abolish transportation to Australia, or to any British settlement more distant than Gibraltar or the Bermudas, where the hulk system, as it exists at Woolwich, is in operation, and to substitute for the present punishment reformatory establishments, or a preparatory period of punishment, and a subsequent system of compulsory labor, and that no released convict shall be permitted to remain thereafter in the United Kingdom. Some modification of that kind has been suggested as a substi- tute for transportation, though with the preservation of transportation to a qualified degree. There were, as early as 1834, sixteen of the United States, viz. : Maine, New Hampshire, Vermont, Massachusetts, Connecticut, New York, New Jersey, Pennsyl- vania, Maryland, Virginia, Kentucky, Tennessee, Georgia, Ohio, Indiana, and Illinois, VOL. 11.-2 r 17 1 * 15 ' OP THE RIGHTS OF PERSONS. [PABT IT. terrors of the penal code, and while it is equally guarded from unjust and tyrannical proceedings on the part of the government itself, by the provisions to which we have referred, every person is also entitled to the preventive arm of the magistrate, as a further protection from threatened or impending danger ; and, on reasonable cause being shown, he may require his adversary to be bound to keep the peace. If violence has been actually offered, the offender is not only liable to be prosecuted and pun- ished on behalf of the state» but he is bound to render to the party aggrieved adequate compensation in damages, (a) The besides the District of Columbia, which had penitentiaries or state prisons, established and supported by government. The system is extending and growing better in this countrj' by the lights of experience, and in 1838 the prisons in eight or nine of the states had become a source of revenue to the public, as the earnings of the convicts, by their labor, left a clear gain above all expenses. It has attracted attention in Europe, and gentlemen of character and ability from England, France, and Prussia have visited the United States, under the auspices of their respective governments, in order to inspect our prisons, and obtain a thorough knowledge of the plan, discipline, and effects of our penitentiary systems. To these visits we are indebted for the inter- esting work of MM. G. de Beaumont et A. de Tocqueville, entitled Du Systfeme Pe'uitentiaire aux ifetats-TJnis, et de son application en France, Paris, 1833; and which has been translated, with notes, by Dr. Francis Lieber, advantageously known to the literary world as the editor of that great work, the Encyclopsedia Americana ; also for the Report of William Crawford, Esq., on the penitentiaries of the United States, pre- sented to the British government, and ordered to be printed in March, 1835. His appendix to this report contains an extraordinary and very valuable mass of facts and details on the subject, collected with great industry and care, and accompanied with excellent plans of our principal state penitentiaries. The whole work is very instruc- tive, and ought to be republished in this country. The French visitants collected also documentary and statistical matter relative to our state prisons, amounting to six volumes in folio, which have not been published, but were deposited in the office of the minister of commerce and public works at Paris. Doctor Julius, a learned professor at Berlin, in Prussia, under the direction of his government, visited the United States on the same errand in the years 1834, 1835, and 1836 ; and in 1839 his work, in two volumes, on the Moral Condition of the United States, was published at Leipsic, in Germany, and the second volume was wholly occupied with the subject of crime and punishment. In 1830, a bill passed the English House of Commons abolishing the punishment of death for forging negotiable securities ; but this alteration in the established law was rejected by a large majority in the House of Lords. (a) The rule or measure of damages, in actions at law, for a compensation for civil injuries to the person or property or character, has been recently extensively dis- cussed, and with superior learning, ability, and candor, in " A Treatise on the Measure of Damages, by Theodore Sedgwick, Esq., New York, 1847," a work greatly wanted, and which, from its intrinsic merits, will recommend itself strongly to the patronage of the profession. The general rule is, that if a case be free from fraud, malice, wil- ful negligence, or oppression, the compensation is taken strictly for the real injury or actual pecuniary loss to the party, and perhaps the natural and legal consequences of [18] LECT. XXIV.J OF THE RIGHTS OP PERSONS. * 15 municipal law of our own as well as of every other country has likewise left with individuals the exercise of the natural right of self-defence, in all those cases in which the law is either too slow or too feeble to stay the hand of violence, (b) Homicide is the act complained of, and the actual costs and expenses sustained. But if fraud, malice, or mala mens mingle in the controversy, the claim goes beyond absolute com- pensation, and punitiye, vindictive, or e-xemplary damages, by way of punishment and for example's sake, seem to be admitted to the jurisprudence of England and of thi. country. This Mr. Sedgwick has shown by numerous cases from 2 Wils. 205; 3 id. 18 ; 13 M. & W. 47 ; 1 Wash. C. C. 152 ; 3 Johns. 66, 64 ; 14 id. 352 ; 2 Mason, 120 ; 10 N. H. 130 ; 15 Conn. 225, 267 ; Story, J., 8 Wheat. 546 ; Baldwin, J., 1 Bald. 138. xi The learned author of the treatise further shows, that in the Scotch courts the rule of absolute compensation for civil injuries is adhered to without converting the suit into a matter of punishment, or going beyond compensatory damages ; and this seems to be the sounder rule in the opinion of Mr. Metcalf and Professor Greenleaf , the eminent jurists to whom Mr. Sedgwick refers, while he frankly gives his own reasons for what he deems the better conclusion in the English and American law. It follows necessarily that, except in matters of contract, the amount of damages, when bad passion or motives are intermixed, must be left to the sound discretion of a jury, to be exercised according to the circumstances, and under the wise superintend- ence of the court. See Measure of Damages by Sedgwick, pp. 27-46, pp. 75, 76, and u. 3 and c. 18 of that treatise. But in cases of loss without aggravation or intentional wrong, the law confines itself to a. complete indemnity, without adding exemplary damages, or estimated profits, or remote consequences. 2 Dallas, 303 ; 2 Wheat. 327 ; 3 id. 546 ; 17 Pick. 543 ; 2 Taunt. 314 ; 23 Wend. 425 ; Sedgwick's Treatise, 89-93. It is difficult to deduce any precise measure of damages from the numerous cases, but the courts have in these cases discountenanced the idea of speculative or remote damages, though it is impossible to ascertain any certain rule from the numerous cases which remarkably illustrate " the oscillations of the judicial pendulum." The numerous cases under the head of remote and consequential damages are most indus- triously collected by Mr. Sedgwick in the 3d chapter of his treatise, and to that I must refer the student. In the Law Keporter, Boston, [ix. 529,] April, 1847, there is an elaborate review of the cases in matters of tort on the subject of exemplary damages, endeavoring to show that the decisions do not, on a strict examination and construc- tion of the language of them, amount to authorities for going beyond compensatory damages. On this subject it appears to me that the conclusions in Mr. Sedgwick's treatise are well warranted by the decisions, and that the attempt to exclude all con- sideration of the malice and wickedness and wantonness of the tort, in estimating a proper compensation to the victim, is impracticable, visionary, and repugnant to just feelings of social sympathy. In trespass, when the party wantonly violates the law, " the jury should not be sparing in the damages." Lord Abinger, 1 M. & W. 842. (6) See infra, 340, note. x^ The later cases, while regarding the lap, 56 N. H. 456 ; Milwaukee, &c. E. R. rule stated as settled, disapprove it. Cox Co. v. Arms, 91 U. S. 489. Mere negli- V. Crumley, 5 Lea, 529. See Kiff v. You- gence does not bring one within the opera- mans, 86 N. Y. 324. It has also been held tion of the rule. Milwaukee, &c. R. R that malice is simply an additional fact Co. o. Arms, supra ; Chicago R. R. Co. v competent to be considered as showing Scurr, 59 Miss. 456 ; City of Parsons v. the real amount of injury. Bixby v. Dun- Lindsay, 26 Kans. 426. [19] * 16 OP THE RIGHTS OP PERSONS. [PART IT. justifiable in every case in which it is rendered necessary in self- defence, against the person who comes to commit a known felony with force against one's person or habitation, or against the person of those who stand near in domestic relations, (c) The right of self-defence in these cases is founded on the law of nature, and is not and cannot be superseded by the law of society. In those instances, says Sir Michael Foster, the law, with great propriety, and in strict justice, considers the individual to be under the protection of the law of nature. There are some important dis- tinctions on this subject, between justifiable and excusable homi- cide, and manslaughter and murder, which it does not belong to my present purpose to examine ; and I will only observe, * 16 that homicide, is never strictly justifiable in defence *of a private trespass, nor upon the pretence of necessity, when the party is not, free from fault in bringing that necessity upon himself, (a) r 2. Of Slander and Libels. — As a part of the right of personal security, the preservation of every person's good name from the vile arts of detraction is justly included. The laws of the ancients, no less than those of modern nations, made private reputation one of the objects of their protection. The Roman law took a just distinction between slander spoken and written ; and the same distinction prevails in our law, which considers the slander of a private person by words in no other light than a civil injury, for which a pecuniary compensation may be obtained. (6) The injury consists in falsely and maliciously charging another with the commission of some public offence, criminal in itself, and indictable, and subjecting the party to an infamous punish- (c) Hawk. P. C. b. 1, i;. 28, sec. 21 ; Foster's Discourse of Homicide, 273, 274. (a) Hawk. P. C. b. 1, v;. 28, sec. 22, 23. In The State v. Morgan, 3 Ired. (N. C.) 186, 193, it was declared that killing a person to prevent a mere trespass on his prop- erty, whether the trespass could or could not be otherwise prevented, is murder. (6) Potter's Greek Antiq. i. 179; Halhed's Gentoo Code, 182 ; Cicero de Republica, lib. 4 ; Tacit. Ann. lib. 1, c. 72 ; Hor. Epist. b. 2, Ep. 1, 1.52 ; Aul. Gel. b. 3, c. 3 ; Inst. 4. 4. 1 ; 3 Johnson's Cases, 382, note, where the reporter, with great learning and accu- racy, has collected the material provisions in tlie Roman law on the subject. Since the publication of that note, the view of the law of defamation among the ancients has been extensively considered in Holt's Law of Libel, b. 1, c. 1. See also the excel- lent introduction to Mr. Starkie's treatise on Slander and Libel, in which illustrations are drawn from the Roman and the Scotch laws.'and the necessity of legal restraints upon slanderous and libellous attacks on the character of individuals is clearly- enforced with strong sense and learning, and with great beauty and simplicity. [20] LECT. XXIV.] OP THE EIGHTS OF PERSONS. 16 meat, or involving moral turpitude, or the breach of some public trust, or with any matter in relation to his particular trade or vocation, and which, if true, would render him unworthy of em- ployment, or, lastly, with any other matter or thing by which special injury is sustained, (c) ^ But if the slander be communi- (c) Brooker v. CofiSn, 5 Johns. 188 ; Spencer, C. J., in Van Ness u. Hamilton, 19 Johns. 367 ; McCueu v. Ludlum, 2 Harr. (N. J.) 12. In Indiana, charging by words a female with incest, fornication, adultery, or whoredom, is made actionable without showing special damages. Revised Statutes of Indiana, 1838, p. 452. 1 (a) Words actionable per se, 4rc. — The language of the text is sustained by Hoag v. Hatch, 23 Conn. 585 ; perhaps by John- son V. Shields, 1 Dutcher, 116 ; and par- tially by Wright v. Paige, 3 Keyes, 581 ; same opinion, 36 Barb. 438, where it is said that words charging an indictable offence which involves moral turpitude are actionable per se. See also Beck v. Stitzel, 21 Penn. St. 522 ; Smith v. Smith, 2 Sneed, 473. a;i Some cases, going farther than the text in that direction, lay it down that it is not enough that tlie offence charged is punishable corporeally, unless it also involve moral turpitude. Murray u. McAllister, 38 Vt. 167 ; Red- way V. Gray, 31 Vt. 292 ; Beck u. Stitzel, supra. Other cases, on the other hand, hold that words do not become actionable per se, merely by charging an indictable offence which involves moral turpitude xi The authorities are reviewed in Pollard V. Lyon, 91 U. S. 22.5, and the true rule is held to be, that spoken words are actionable per se when they charge an indictable crime, which is either punish- able by an infamous punishment or which involves moral turpitude. Geary v. Ben- nett, 53 Wis. 444 ; Lemons i/. Wells, 78 Ky. 117. Words charging a person with having venereal disease are actionable per se. Kaucher v. Blinn, 29 Ohio St. 62 ; Bruce V. Soule, 69 Me. 562. See also Barnett !■. Ward, 36 Ohio St. 107; Hutchinson u. Lewis, 75 Ind. 55. The natural meaning of words may (even adultery), unless it is also punish- able corporeally in the first instance. Wagaman v. Byers, 17 Md. 183 ; Stokes V. Arey, 8 Jones (N. C), 66 ; Wilson v. Tatum, ib. 300. But the last cases were probably decided on the same principles as others which entirely disregard the ele- ment of moral turpitude, and make the only test whether the words charge an indictable offence which would subject the party to bodily punishment in a tem- poral court. Birch v. Benton, 26 Mo. 153; Curry u. Collins, 37 Mo. 324. In Massachusetts, it is actionable to charge a person falsely and maliciously with an offence that may subject him to a pun- ishment which will bring disgrace upon him, though the punishment be not strictly infamous. Brown v. Nickerson, 5 Gray, 1. Words spoken of a man in respect of be controlled by otiier words spoken at the same time, and so held not to charge a crime. Wing v. Wing, 66 Me. 62 ; Fawsett i,. Clark, 48 Md. 494; Hayes V. Ball, 72 N. Y. 418. But the mere fact that the charge was false, and known to be so, does not affect their character. Marble v. Chapin, 132 Mass. 225; West v. Hanrahan, 28 Minn. 385; Holt V. Turpin, 78 Ky. 433. But see Haram ^. Wickline, 26 Ohio St. 81 ; Pe- gram v. Stoltz, 76 N. C. 349. As to the distinction between writ- ten and spoken words, see Pollard v. Lyon, supra ; Foster v. Scripps, 39 Mich. 376. [21] 16 OP THE EIGHTS OP PERSONS. [part ly. cated by pictures, or signs, or writing, or painting, it is calculated to have a wider circulation, to make a deeper impression, and to become proportionably more injurious. Expressions which tend to render a man ridiculous, or degrade him in the esteem and opinion of the world, would be libellous if printed, though they would not be actionable if spoken. Qd) A libel, as appli- (d) Villers . 53 ; Goffin v. Don- nelly, 6 Q. B D. 307; Kennedy v. Hil- of Sir A. Cockburn, ib. ; and also White V. Nichols, 3 How. 266, As to counsel, see note {d), and Mackay v. Ford, 5 H. & N. 792. a;! (6) The rule as to the second class of cases is, that a communication fairly made by a person in the discharge of some pub- lic or private duty, whether legal or moral, or in the conduct of his own affairs where his interest is concerned, is privileged, un- less express malice be shown. Toogood V. Spyring, 4 Tyrwh. 582 ; 1 C, M. & R.- 181 ; Harrison v. Bush, 5 El. & Bl. 344; liard, 10 Ir. C. L. Rep. 195 ; Munster v. Lamb, 11 Q. B. D. 588. But in this country the statements must be relevant. McLaughlin v. Cow- ley, 127 Mass. 316 ; Rice v. Coolidge, 121 Mass. 393, 395; Marsh v. Ellsworth, 50 N. Y..309; Lanning v. Christy, 30 Ohio St. 115 ; Johnson v. Brown, 13 ' W. Va. 71 ; Hutchinson v. Lewis, 75 Ind. 55. See Vinas v. Merchants' Mut. Ins. Co., 83 La. Ann. 1265. [29] *23 OP THE RIGHTS OF PERSONS. [part IV. have been mentioned, and is not quite so. latitudlnary in its indulgence as some of them. It declares, that " in all prosecu- tions or indictments for libels, the truth may be given in evidence to the jury ; and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives and for justifiable ends, the party shall be acquitted." These Whiteley ». Adams, 15 C. B. n. s. 392 ; Force v. Warren, ib. 806 ; Amann v. Damm, 8 C. B. n. s. 597 ; Brow v. Hatl- away, 13 Allen, 239; [Marks w. Baker, 28 Minn. 162; Maurice v. Worden, 54 Md. 233.] So it has been held with re- gard to an oral statement on personal application, made by a mercantile agency which obtained and furnished informa- tion to subscribers as to the standing of business men, Ormsby v. Douglass, 37 N. Y. 477 ; but it would be otherwise as to reports printed in cipher, and circulated among subscribers, Sunderlin v. Brad- street, 46 N. Y. 188. Reports of directors of companies to stockholders on the con- duct of agents were held privileged in Phil., Wil., & Bait. R. R. v. Quigley, 21 How. 202; Lawless v. Anglo-Egyptian Cotton Co., L. R. 4 Q. B. 262. Fair re- ports of judicial proceedings are clearly privileged, Ryalls v. Leader, L. R. 1 Ex. 296; [the privilege extends to trials before justices of the peace, McBee v. Fulton, 47 Md. 403 ;] and it is now set- tled that faithful reports in the news- papers of parliamentary debates are so, Wason V. Walter, L. R. 4 Q. B. 73. So are fair and reasonable comments on matters of public concern, ibid. ; Kelly V. Tinling, L. R. 1 Q. B. 699 ; [Sweeny V. Baker, 13 W. Va. 158 ;] or like criti- cisms on literary productions, or on a tradesman's advertisement or handbill, Paris u. 'Levy, 19 C. B. n. b. 342. See Jenner v. A'Beckett, L. R. 7 Q. B. 11. .r^ But it is to be observed that in all this second class of cases the language may be so much in excess of the oc- casion as to lose its privilege, or to be evidence to the jury of express malice. Kelly V. Tinling, supra ; Fryer v. Kinners- ley, 15 C. B. n. ». 422; Spill v. Maule, L. R. 4 Ex. 232. And if a newspaper goes beyond the criticism of public conduct, and falsely imputes dishonest motives, it is no defence that the imputations were believed to be true. Campbell v. Spottis- woode, 3 Best & Sm. 769; [Sweeny v. Baker, stipra.] See Walker v. Brogden, 19 C. B. N. s. 65. The rule stated above, note (d), that whether the facts found constituted a probable cause is a question for the court, is confirmed with expressions of regret in Lister v. Ferryman, L. R. 4 H. L. 521. See Shaul u. Brown, 28 Iowa, 87. [The rule is affirmed in Stewart v. Sonneborn, 98 U. S. 187 ; Johns w. Marsh, 52 Md. 323.1 x^ Bona fide communications to one in authority, made to procure the removal from, or to prevent the appointment to, a public office of one alleged to be unfit, are privileged. Dickeson v. Hilliard, 9,L. R. Ex. 79 ; Wieman v. Mabes, 45 Mich. 484. A report of a meeting of poor-law guar- dians was held not privileged, in Purcell V. Sowler, 2 C. P. D. 215. The answers of a society formed to ascertain whether [30] persons were fit objects for charity were held privileged, in Waller v. Loch, 7 Q. B. D. 619. If the publication is prompted by other motives than those which are based on the facts which give the privi- lege, there is no protection. Clark v. Molyneux, 3 Q. B. D. 237. For a gen- eral statement, see Dickeson u. Hilliard, 9 L. E. Ex. 79 ; Atkinson u. Detroit Free Press, 46 Mich. 341, 375 et seq. LECT. XXIY.] OF THE EIGHTS OP PERSONS. * 24 provisions in favor of giving the truth in evidence are to be found only in those constitutions which have been promulgated long since our Revolution ; and the current of opinion seems to have been setting strongly, not only in favor of erecting barriers against any previous restraints upon publications (and v?hich v?as all that the earlier sages of the Revolution had in view), but in favor of the policy that would diminish or destroy altogether every ob- stacle or responsibility in the way of the publication of the truth. The subject is not without its difficulties, and it has been found embarrassing to preserve equally, and in just harmony and pro- portion, the protection which is due to character, and the protec- tion which ought to be afforded to liberty of speech and of the press. These rights are frequently brought into dangerous colli- sion, and the tendency of measures in this country has been to relax too far the vigilance with which the common law sur- rounded and guarded character, while we are animated with a generous anxiety to maintain freedom of discussion. The con- stitution of New York makes the facts in every possible case a necessary subject of open investigation ; and however improper or unfit those facts may be for public information, and however painful or injurious to the individuals concerned, yet it would seem that they may, in the first instance, be laid bare before the jury. The facts are to go to them, at all events ; for the jury are to determine, as it shall appear to them, whether the motives of the libeller were good, and his end justifiable. The act of Congress of the 14th of July, 1798, made it an * indictable offence to libel the government, or Congress, * 24 or the President of the United States ; and made it lawful for the defendant, upon the trial, to give in evidence in his defence the truth of the matter contained in the publication charged as a libel. This act was, by the terms of it, declaratory, and was intended to convey the sense of Congress, that in prose- cutions of that kind it was the common right of the defendant to give the truth in evidence. So the case of The People v. Croswell, in New York, was followed by an act of the legislature, on the 6th of April, 1805, enacting and declaring, that in every prosecu- tion for a libel (and which included public and private prosecu- tions) it should be lawful for the defendant to give in evidence in his defence the truth of the matter charged ; but such evi- dence was not to be a justification, unless, on the trial, it should [31] *25 OP THE EIGHTS OP PERSONS. [PART IV, be made satisfactorily to appear that the matter charged as libellous was published with good motives and for justiiiable ends, and this was the whole extent of the doctrine which had been claimed in favor of the press in the case of the People v. Croswell. There appears to have been some contrariety of opinion in the English books on this point, whether a defendant in a private action upon a libel could be permitted to justify the charge by pleading the truth. But the prevailing and the better opinion is, that the truth may, in all cases, be pleaded by way of justifica- tion, in a private action for damages, arising from written or printed defamation, as well as in an action for slanderous words, (a) The ground of the private action is the injury * 25 which the party has sustained, and his consequent * right to damages as a recompense for that injury ; but if the charge, ■ in its substance and measure, be true in point of fact, the law considers the plaintiff as coming into court without any equitable title to relief. And yet it is easy to be perceived that, in the case of libels upon private character, greater strictness as to allowing the truth in evidence, by way of justification, ought to be observed than in the case of public prosecutions ; for the public have no interest in the detail of private vices and defects, when the indi- vidual charged is not a candidate for any public trust ; and pub- lications of that kind are apt to be infected with malice, and to be very injurious to the peace and liappiness of families. If the (a) Holt, C. J., 11 Mod. 99; 3 Bl. Comm. 125; Buller N. P. 8 ; J' Anson v. Stewart, 1 T. R. 748 ; 1 Starkle on Slander and Libel, Wendell's ed. 1842, 210, note. In Massachusetts, a statute passed in March, 1827, not only allows the truth to be pleaded by way of justification in all actions for libels, as well as for oral slander, but every inference to be drawn from such a plea in admission of the fact of pub- lication, or of malice, if the plea be not proved, is destroyed. The statute affords facility and encouragement to the plea. This statute is said to have been passed in consequence of a decision of the Supreme Court of Massachusetts, in the case of Jaclison V. Stetson and Wife, 15 Mass. 48, that a plea of justification, accompanyhig the general issue, was proof of the speaking of tlie words, and that if the defendant failed to establish it by proof, the plea was evidence of malice. The statute has been said to be only declaratory of the common-law rule, and it is undoubtedly just and true, that a failure to prove the plea of justification will not deprive the defendant of the right of adducing such evidence in mitigation of damages under the general issue as would have been admissible if a plea of justification had not accompanied it. Starkie on Slander and Libel, i. Amer. ed. 1843 ; Int. by Wendell, 49-55. Putting a plea in justification of a charge, and failing, is evidence of malice and aggravation of damages. Warwick v. Foulkes, 12 M. & W. 507 ; Matson v. Buck, 5 Cowen, 499. [32] LECT. XXIV,] OP THE EIGHTS OP PERSONS. * 26 libel was made in order to expose to the public eye personal defects, or misfortunes, or vices, the proof of the truth of the charge would rather aggravate than lessen the baseness and evil tendency of the publication ; and there is much justice and sound policy in the opinion, that, in private as well as pubHc prosecu- tions for libels, the inquiry should be pointed to the innocence or malice of the publisher's intentions. The truth ought to be admissible in evidence to explain that intent, and not in every instance to justify it. (a) The guilt and the essential ground of action for defamation consists in the malicious intention ; and when the mind is not in fault, no prosecution can be sus- tained. (5) On the other * hand, the truth may be printed * 26 and published maliciously, and with an evil intent, and for no good purpose, and when it would be productive only of private misery, and public scandal and disgrace, (a) (a) Vinnius in Inst. 4. 4. 1 ; Edin. Review, xxyii. 102, 142; xxxvii. 207. (6) We liave a remarkable illustration of this principle in a decision cited by Lord Coke, when at the bar, and arguing the cause of Brook a. Montague (Cro. Jac. 91). A preacher, in his sermon, recited a story out of Fox's Martyrology, of one Green- wood, as being a very wicked man and a persecutor, who died under signal visitations of God's displeasure. The preacher intended to show, by that example, the judg- ment of Providence iipon great sinners ; but he was totally mistaken as to the fact, for Greenwood was not deadnor diseased, but present at the preaching of the sermon. He brought his action for the defamation ; and the court instructed the jury, that the defendant having read and delivered the words as a matter of history, and without any evil intention, was not liable in damages. (a) Though the plaintiff, in an action for a libel, makes the usual but unnecessary averment in the declaration, of his general good credit and character, the defendant cannot go into proof of his general bad character, by way of mitigation of damages, or in support of avements in his plea to that efiect. Nor can the plaintiff, in order to rebut the defence, go into evidence of his general good character, when the same is not impeached. Cornwall v. Richardson, Ryan & Moody, 305 ; Stow v. Converse, 3 Conn. 326 ; Matthews v. Huntley, 9 N. H. 146. A plaintiff cannot be expected, and ought not to be required, to go into proof of so general a nature, and his good character is always presumed in law, unless by evidence of particular facts, fairly and specifically put in issue, that presumption be negatived. Baron Wood vindicated this rule with great energy and effect, in Jones v. Stevens, 11 Price, 235; and the case of The Earl of Leicester v. Walter, 2 Campb. N. P. 251, was overruled by the Court of Exchequer. In England, the defendant in an action of slander may give in evidence, under the general issue, any defence except that which amounts to a justification of the charge, as, for instance, the truth of it, and the statute of limitations. Introduction, 26, 27, to 1 Starkie on Slander and Libel, and the notes to i. 402 to 406, by Mr. Wendell, the learned editor of the American edition. The defence of privileged communi- cations may be given in evidence, and need not be specially pleaded when it goes to Bhow no malice, and the question of malice is a question of fact for a jury. Lillie VOL. II. — 3 [-33-] * 26 OP THE EIGHTS OP PERSONS. [PAET IV. 3. Of Personal Liberty and Security. — (1.) Writ of Habeas Corpus. — The right of personal liberty is another absolute riglit of individuals, which has long been a favorite object of the Eng- lish law. It is not only a constitutional principle, as we have already seen, that no person shall be deprived of his liberty with- out due process of law, but effectual provision is made against the continuance of all unlawful restraint or imprisonment, by the security of the privilege of the writ of habeas corpus. Every restraint upon a mao's liberty is, in the eye of the law, an imprisonment, wherever may be the place or whatever may be the manner in which the restraint is effected. (6) Whenever any person is detained with or without due process of law, unless for treason or felony, plainly and specially expressed in the warrant of commitment, or unless such person be a convict, or legally charged in execution, he is entitled to his writ of habeas corpus; It is a writ of right, which every person is entitled to, ex merito justicicB ; (c) ^ but the benefit of it was, in a great degree, eluded u. Price, 5 Ad. & El. 645. The facts ought not to he specially pleaded in bar as a justification, when they do not amount to it on the face of the plea ; for whether the libel was with or without malice cannot appear in the pleadings, and is matter for a jury. Turrill v. DoUoway, i? Wend. 426 ; s. c. 26 id. 383. See 1 Starkie, Int. 27-35, 38-49. The cases of Cooper v. Barber, 24 Wend. 105, and Cooper v. Weed and others, cited by Mr. Wendell, in his interesting Introduction to his edition of Starkie, I apprehend were not correctly decided, so far as evidence of the matters contained in the notice annexed to the pleas was not permitted to go to the jury, to explain, mitigate, and repel the inference of malice. The observations of Mr. Wendell on those cases appear to be well founded, and, unless the jury are permitted to take cognizance of the question of malice, and of all the circumstances attending the publication, grievous injustice may be inflicted upon a defenSant. In 1843, the statute of 6 & 7 Vict. c. 96, was passed for the amendment of the law of defamation and libel. It provided that, in actions for defamation, the trutli of the matters charged should not be a defence, unless it were proved ; also, that the pub- lication was for the public benefit, and that the defendant might give his apology in evidence in mitigation of damages. (b) 2 Inst. 589. Words may constitute an imprisonment, if they impose a restraint upon the person, and he be accordingly restrained and submits. Homer v. Battyn, BuUer N. P. 62 ; Pike v. Hanson, 9 N. H. 491. (c) 4 Inst. 290. 1 But the court may consider whether, face of the petition that the petitioner upon the facts presented in the petition would not be entitled to a discharge, the for the writ, the prisoner, if brought be- writ will not be issued. Sims's Case, 7 fore it, could be discharged. Ex parte Cush. 285 ; Passmore Williamson's Case, Milligan, 4 Wallace, 2 ; Ex parte Keeler, 26 Penn. St. 9 ; In re Griner, 16 Wis. Hemp. 306. And when it appears on the 423. iB4] ' LECT. XXIV.] OP THE RIGHTS OP PERSONS. * 27 in England, prior to the statute of Charles II., as the judges only awarded it in term time, and they assumed a discretionary power of awarding or refusing it. (c^) The explicit and peremp- ' tory * provisions of the statute of 31 Charles II. c. 2, restored * 27 the writ of habeas corpus to all the efScacy to which it was entitled at common law, and which was requisite for the due protection of the liberty of the subject. That statute has been reenacted or adopted, if not in terms, yet in substance and effect, in all the United States, (a) The privilege of this writ is also made an express constitutional right at all times, except in cases of invasion or rebellion, by the Constitution of the United States, and by the constitutions of most of the states in the Union. The ■ citizens are declared, in some of these constitutions, to be entitled to enjoy the privilege of this writ in the most " free, easy, cheap, expeditious, and ample manner ; " and the right is equally perfect in those states where such a declaration is wanting. The right of deliverance from all unlawful imprisonment, to the full extent of the remedy provided by the Habeas Corpus Act, is a common- law right ; and it is undoubtedly true, as has been already ob- served, (6) that the common law of England, so far as it was ((£) 3 Bulst. 27. The writ of habeas corpus had been in England, from the time of Magna Charta, a matter of right, but generally and fatally disregarded in cases re- lating to the government. The illegal and arbitrary imprisonments by the privy council and crown oflScers under Elizabeth gave rise to an impressive address from the common-law judges, in 1591, to Chancellor Hatton and Lord Burleigh, complain- ing of them in just and manlj' terms. Anderson's Rep. i. 297. Mr. Hallam, in his Constitutional History of England, i. 317-320, gives from an original manuscript in the British Museum a more full and correct copy of this remarkable document, so honorable to the judges of the common-law courts. " But afterwards, in 1627, when certain knights were imprisoned by the special command of the king, for not yielding to the forced loan, the Court of K. B. refused to bail or discharge them upon habeas corpus, though no cause, other than the kingfs command, was returned. (a) See, for instance, tlie Habeas Corpus Act in Massachusetts of 16th March, 1785, and Massachusetts Revised Statutes, 1836, part 3, tit. 4, o. Ill ; the Babeas Corpus Act of South Carolina of 1712, and referred to in 2 Bay, 563, and 2 Const. Rep. 698 ; the Habeas Corpus Act of North Carolina, R. S. 1837, i. 314 ; the Habeas Corpus Act of Pennsylvania of 18th Feb. 1785, and referred to in 1 Binney, 374 ; the Habeas Corpus Act of New York of 1787 and 1801 ; the Habeas Corpus Act of New Jersey of 1795; the Habeas Corpus Act of Ohio, Statute Law of Ohio, 1831, and of Connecti- cut, Revised Statutes of Connecticut, 1821, and Statutes of Connecticut, 1838, p. 336 ; Ordinance of Congress of July 13, 1787, for the government of the territory of the United States northwest of the river Ohio ; Territorial Act of Michigan, of April 12, 1827 ; the Habeas Corpus Act of Indiana, 1838 ; the Habeas Corpus Act of Arkansas E. Statutes, p. 434. (6) See i. 342. [35] *29 OP THE EIGHTS OP PERSONS. [PART IV. applicable to our circumstances, was brought over by our an- cestors, upon their emigration to this country. The Revolution did not involve in it any abolition of the common law. It was rather calculated to strengthen and invigorate all the just prin- ciples of that law, suitable to our state of society and juris- prudence. It has been adopted or declared in force by * 28 * the constitutions of some of the states, (a) and by statute in others ; (6) and where it has not been so explicitly adopted, it is nevertheless tO(»be considered as the law of the land, subject to the modifications which have been suggested, and to express legislative repeal. (;. 277. (e) l Binney, 376. [36] LBCT. XXIT.] OP THE RIGHTS OF PEESONS. * 29 the Union (for they are all taken from the same source), with the remedy and the sanctions somewhat extended. / All persons restrained of their liberty, under any pretence whatsoever, are entitled to prosecute the writ, unless they be persons detained : (1.) By process from any court or judge of the United States having exclusive jurisdiction in the case.' (2.) Or by final judgment or decree, or execution thereon, of any com- petent tribunal of civil or criminal jurisdiction, other than in the case of a commitment for any alleged contempt, (a) The appli- cation for the writ must be to the Supreme Court, or chancellor, or a judge of the court, or other officer having the powers of a judge at chambers ; and it must be by petition in writing, signed by or on behalf of the party ; and it must state the grounds of the application, and the fact must be sworn to. (6) The English statute did not require the petition to be verified ,by the oath of the applicant. The penalty of f 1,000 is given in favor of the party aggrieved, against every officer and every member of the court assenting to the refusal, if anj'' court or officer authorized to grant the writ shall refuse it when legally applied for. (c) The penalty for refusal to grant the writ was, by the English statute, confined to the default of the chancellor or judge in vacation time ; (a) New York Revised Statutes, ii. 563, sees. 21, 22. (b) lb. sees. 23, 25. (c) lb. sec. 31. The Habeas Corpus Act in Illinois confines the liability of the judge to a penalty for refusing to issue a writ of habeas corpus, when legally applied for, to a " corrupt refusal." Revised Laws of Illinois, ed. 1833, p. 327. The statute law of Connecticut is silent as to any penalty upon any court or judge who does not grant the writ. It only declares it to be the duty of the court or chief justice, on due application and affidavits, to allow the writ. Statutes of Connecticut, 1888, p. 336. The Habeas Corpus Act of Virginia and of North Carolina is a transcript of the English statute, and confines the remedy for a refusal by the judge of the writ in vacation time, to an action by the party aggrieved. R. C. of Virginia, 328 ; N. C. R. S. i. 315. So does the statute of New Jersey of 1847, p. 290. The Habeas Corpus Act of Mississippi makes the refusal or neglect of any judge or judges to grant the writ a high misdemeanor and an impeachable offence. R. C. of Mississippi, 1824, p. 224. The Revised System, reported by Mr. Pray, reduces the penal part of this provision to a penalty of $1,000 to the party aggrieved, but it makes the court or every judge thereof assenting liable to it. So the R. L. of Missouri, 1835, p. 307, applies the penalty to any court or magistrate refusing the writ. [The granting of a writ of habeas corpus is not a matter of course in Texas. The court, to which application is made, must have " probable cause to believe " that the party applying for the writ " is detained in custody without lawful authority." Jordan v. State, 14 Texas, 436.] 1 But see i. 401, n. 1. [37] •30 OF THE RIGHTS OP PERSONS. [PART IV. whereas the penalty and suit for refusal to grant the writ applies, under the New York statute, to the judges of the Supreme Court, sitting in court, in term time. This is the first instance, in the history of the English law, that the judges of the highest common- law tribunal, sitting and acting, not in a ministerial but in a judicial capacity, are made responsible, in actions by private suitors, for the exercise of their discretion, according to * 30 * their judgment in term time, (a) ^ If the person to whom the writ is directed, or on whom it is served, shall not promptly obey the writ, by making a full and explicit return, and shall fail to produce the party without a sufficient excuse, he is liable to be forthwith attached and committed, by the person granting the writ, to close custody, until he shall have obeyed the writ. (6) The former statute, instead of this summary remedy, gave , a penalty to the party aggrieved, recoverable by (a) See Yates v. Lansing, 5 Johns. 282; 6 id. 387, s. c, wliere the principle of the English law on this subject is considered and recognized; [Bradley v. Ksher, 13 Wall. 335 ; Fray v. Blackburn, 3 Best & Sm. 576 ; Kemp v. Neville, 10 C. B. n. s. 523 ; Scott V. Stansfield, L. R. 3 Ex. 220. See, however, the remarks of Cockburn, C. J., in Thomas v. Churton, 2 Best & Sm. 475, 479 ; and Dawkins o. Lord Paulet, L. R. 5 Q. B. 92 ; Randall v. Brigham, 7 Wall. 523, 536.] The Massachusetts Habeas Carpus Act, in their Revised Statutes of 1836, does not contain degrading penalties hanging over the courts and judges. It does not presume that they will, in such particular cases, more than in any other, be wanting in their duty. (6) New York Revised Statutes, ii. 566, sec. 34. 1 If, upon the return of the writ, it 51, 56 ; People «. Sheriff, 29 Barb. 622. appears that the party is committed by The sufficiency of the form of the com- a court of competent jurisdiction under mitment may also be examined. People a regular process, the regularity of the v. Sheriff, supra. In Addison on Torts, u. judgment on which he is committed will 14, sec. 1, it is laid down that the validity not be inquired into, Wyeth v. Richard- of the commitment by a judge of an in- son, 10 Gray, 240, 242; subject to the ferior court may be tested by Aa6easco7-p«s, exceptions, however, that state courts citing In re Boyce, 2 El. & Bl. 521. See cannot interfere with persons imprisoned People i/. Tompkins, 1 Parker Crim. R. under authority of the United States, 224, and cases cited. People v. Martin, ib. ante, i. 401, n. 1 ; nor federal courts with 187 ; Ex parte Keeler, Hemp. 306 ; State prisoners confined by state process, except v. Schlemn, 4 Harr. (Del.) 678; Ex parte that they may testify as witnesses, Ex Van Aernan,3Blatchf. 160. The supreme parte Dorr, 3 How. 103. When the want court of Massachusetts has power to in- of jurisdiction of the court making the quire on habeas corpus into the lawfulness commitment appears on the face of the of imprisonments by order of the House of proceftdings, the prisoner may be dis- Representatives of the state. Burnham charged on habeas corpus. Herrick v. v. Morrissey, 14 Gray, 226. Smith, 1 Gray, 1, 50 ; Adams v. Vose, ib. [38] J:iECT. XXIV.] OP THE RIGHTS OP PERSONS. * 31 suit. The party suing out the writ is to be remanded, if de- tained: (1.) By process from any court of the United States having exclusive jurisdiction. (2.) Or by virtue of a final decree, or judgment, or process thereon, of any competent court of civil or criminal jurisdiction. (3.) Or for any contempt specially and plainly charged, by some court or person having authority to commit on such a charge, and when the time for which the party may be legally detained has not expired, (c) If the party be in custody by civil process from a competent power, he may be dis- charged when the jurisdiction has been exceeded, or the party has become entitled to his discharge, or the process was undulj'' issued, or was not legally authorized. But no inquiry is to be made into the legality of any process, judgment, or decree, or the justice or propriety of, the commitment in the case of persons detained under process of the United States, where the court or officer has exclusive jurisdiction ; nor where the party is detained under the final decree or judgment of a competent court ; nor where the commitment, made by any court, officer, or body, according to law, is for a contempt, and duly charged. The remedy, if the case admits of one, is by certiorari, or writ of error, (c?) The court or officer awarding the writ may, in other cases, examine into * the merits of the commitment, * 81 and hear the allegations and proofs arising thereon in a sum- mary way, and dispose of the party as justice may require, (a) (c) New York Revised Statutes, ii. 567, sec. 40. (d) lb. 568, sec. 41; The People v. Cassels, 5 Hill (N. Y.), 164. In the case of The Commonwealth v. Keeper of Debtor's Apartment, 1 Ash. (Penn.) 10, it was declared not to be competent, upon habeas corpus, to inquire into the regularity of the proceedings of another competent court, nor for a single judge to revise the judg- ment of any other court. The opinion of the Supreme Court of New York, in the case of J. V. N. Yates, 4 Johns. 317, was to the same effect, and that opinion is sup- ported by the Chief Justice of Pennsylvania, in the case of The Commonwealth o. Lecky, 1 Watts, 68 ; N. Y. Revised Statutes, ii. 568, sec. 42. If it appears plainly, on the return of the writ of habeas corpus, that the prisoner stands committed for a con- tempt adjudged against him by the British House of Commons, or by any tribunal or court of competent jurisdiction, the party awarding the writ, or before whom it is brought, cannot judge of the contempt, or bail the prisoner, but must immediately remand him. The adjudication is a conviction, and the commitment an execution. Murray's Case, 1 Wils. 299 ; Crosby's Case, 3 Wils. 188 ; Hobhouse's Case, 3 B. & Aid. 420. (a) lb. sees. 43-48. The Massachusetts and Connecticut Revised Statutes give the like power of examination and trial on the return of the writ of habeas corpus. Massachusetts Revised Statutes, 1835, pt. 3, tit. 4, c. Ill ; Revised Statutes of Con- necticut, 1821, p 265, and of 1838, p. 337. [39] * 32 OF THE EIGHTS OP PERSONS. [PAET IV. A person discharged upon habeas corpus is not to be reimprisoned for the same cause ; but it is not to be deemed the same cause if he be afterwards committed for the same cause by the legal order of the court in which he was bound to appear, or in which he may be indicted and convicted ; or if the discharge was for defect of proof, or defect in the commitment in a criminal case, and he be again arrested on suflBcient proof and legal process ; or if in a civil case, or discharge on mesne process, he be arrested on exe- cution, or on mesne process i© another suit, after the first suit is discontinued. (6) And finally, if aay person solely, or as a member of any court, or in execution of any order, knowingly reimprison such party, he forfeits a penalty of 11,250 to the party aggrieved, and is to be deemed guilty of a misdemeanor, and liable to fine and imprisonment, (c) This last provision is distinguished from that in any former statute on the subject, by applying the penal sanction to the members of any court acting judicially, and by making the act of reimprisonment an indictable offence. This is the substance of the efficacious remedy against the abuse of the right of personal liberty, afforded by the celebrated writ of habeas corpus. Bj' the specific provisions which we have considered, the remedy for all unjust detention is distinctly marked ; and even in cases of valid imprisonment, care is taken that it be not unreasonably or unnecessarily protracted. Persons confined upon any criminal charge, and who shall not have been indicted, are to be discharged within twenty-four hours after the discharge of a grand jury of the county, unless satisfactory * 32 cause be shown for the delay. (cZ) * And prisoners indicted are to be tijied at the next court after such indictment found, or they will be entitled to be discharged, unless the trial was postponed at their instance, or satisfactory cause shown by the public prosecutor for delay, (a) If there be good reason to believe that a person illegally confined will be carried out of the state before he can be relieved by habeas corpus, the court or of&cer authorized to issue the writ may, by warrant, cause the prisoner and the party so detaining him to be forthwith brought up for examination, and be dealt with according to law. (J) (b) N. Y. Revised Statutes, ii. 571, sec. 59. (c) lb. 571, 572, sees. 60, 64. (d) lb. 758, sec. 26. (o) lb. 737, sees. 28, 29. (6) New York Revised Statutes, ii. 572, secB.65,66, 67. Tlie judges in England.in . [40] LECT. XSIT.j OF THE RIGHTS OF PERSONS. * 32 The Habeas Corpus Act has always been considered in Eng- land as a stable bulwark of civil liberty, and nothing similar to it can be found in any of the free commonwealths of antiquity. Its excellence consists in the easy, prompt, and efficient remedy afforded for all unlawful imprisonment, and personal liberty is not left to rest for its security upon general and abstract declara- tions of right. In addition to the benefit of the writ of habeas corpus, which operates merely to remove all unlawful imprisonment, the party aggrieved is entitled to his private action of trespass to recover damages for the false imprisonment ; and the party offending and acting without legal sanction is also liable to fine and imprison- ment as for a misdemeanor. (2.) Writ of Homine Replegiando. — The New York Revised Statutes (c) provided for relief under the common-law writ de homine replegiando, in favor of fugitives from service in any other state. This writ is vexatious in its proceedings, and nearly obso- lete, but it enabled the party suing out the writ to have an issue of fact tried by a jury. It is formally abolished by statute in Mississippi, (^d) Though it was the only remedy at common law for unlawful imprisonment. Sergeant Maynard said (e) he found but one instance of it in the time of Edward I. It was formerly resorted to in Virginia, but the provision relating to it has been repealed. The New York provision on the subject has been held to be contrary to the Constitution and laws of the United States, and void in respect to slaves being fugitives from labor from states where slavery is lawful ; for the Constitution and law of the United States contemplated a summary proceeding, and a surrender on claim made, and not the delay, expense, and vexation of a suit and jury trial in the courts of the state to which the slave had fled. (/*) The Massachusetts Statutes, answer to a question propounded to them by the House of Lords, held that the writ of habeas corpus extended only to cases of imprisonment or restraint for criminal or sup- posed criminal matters. But in Lieutenant Kandolph's ease, before the Circuit Court of the United States in Virginia, in 1833, it was held that the writ lay in a case of civil process issuing from a special jurisdiction. Am. Jurist, No. 22, p. 338; 9 Peters, 12, note, s. c. (c) Vol. ii. 561. (d) R. C. of Mississippi, 1824, p. 224. (e) King ;;. Lord Grey, 2 Show. 218. (/) Jack V. Martin, 12 Wend. 311 ; s. c. 14 Wend. 507. This case, when before the Court of Errors, went off on another point, but Ch. Walworth held that the act of the state was valid, and that the act of Congress of 1793, prescribing the sum- [41] * 32 OF THE RIGHTS OP PERSONS. [PART IT in (ff) 1835, made special provision for the writ, and gave i< whenever any person was restrained of his liberty, or held in duress, unless by virtue of some lawful process issued by compe- tent authority ; and if it should appear, by the return of the writ, that the defendant eloigned the plaintiff's body, the latter was to be entitled to a writ of capias in withernam to take the defendant's body. (A) mary manner of seizing and delivering up fugitives from labor in other states, was unconstitutional and void. The legisl&ture of New York, by the subsequent act of May 6, 1839, c. 350, made an additional provision, declaring that fugitives from justice fi-om other states may be arrested by warrant of a magistrate, and examined ; and if it satisfactorily appears that the crime has been committed by the fugitive charged, the magistrate is to commit the fugitive to jail for a reasonable time, to enable the requisition for a surrender to be made. The magistrate may take bail that the fugitive will appear and surrender on the executive demand. If no appli- cation be made in a reasonable time, to be designated in the warrant or bail bond, the prisoner is to be discharged. Notice of the arrest is to be immediately given to the government of the other state. If the general sessions of the peace be held in the intermediate time, they have jurisdiction given, them over the whole subject. Again, by act of May 6, 1840, c. 225, provision is made that the claim to the services of alleged frigilivesfr'om service or labor in another state, and their identity, and the fact of the escape, shall, upon the return of the writ of habeas corpus duly issued to arrest the fugitive, be determined by jury on summary process. See Constitution U. S. art. 4, sec. 2, No. 3 ; Act of Congress, Feb. 12, 1793, c. 7. [g] Part 3, tit. 4, c. 111. The provision was so reported by the commissioners for the revision of the statute law of Massachusetts, but it was eventually struck out, and the writ de honiine replegiando abolished. Eevised Statutes of Massachusetts, sec. 38. (A) The commissioners admitted that the writ of habeas corpus furnished so complete and effectual a remedy for all cases of unlawful imprisonment, that the other writ was seldom used. They thought, however, that it might be convenient and even necessary, when a person was seized without legal process, as an apprentice or servant, or as held to labor or service in another state, or as the principal for whom another is bail. This writ of personal replevin enabled the person under restraint to try his right to immediate personal liberty before a jury, by presenting an issue in fact, and which the remedy under the writ of habeas corpus does not ; and the legislature of Massachusetts, in 1837, revived in substance the provisions of the writ de homine replegiando, in a bill " to restore the trial by jury on questions of personal freedom." See on s. p. i. 404. The legislature of Indiana, in 1824, and of Vermont and New Jersey, in 1837, and of Connecticut, in 1838, also provided the trial by jury, if either party demanded it, in the case of the claim of fugitives from labor. The doctrine in Jack V. Martin seems therefore to be borne down in' the non-slaveholding states by the force of legislative authority. But the decision of the Supreme Court of the United States, March 1, 1842, in the case of Prigg v. The Commonwealth of Pennsyl- vania, 16 Peters, 539, has restored and established the construction given to the act of Congress of 1793, in the case of Jack v. Martin. It. declared that the act of Congress of 1793 was constitutional, and passed in pursuance of an express provision " in the Constitution of the United States ; it excluded all state legislation on the same subject ; and that no state had a right to modify it by its own legislation, or [42] LECT. XXIV.] OF THE EIGHTS OP PERSONS. * 32 In England, the regular consequence of personal liberty is said to be, that every Englishman may claim a right to abide in his impede the execution of any law of Congress upon the subject of fugitive slares. This decision renders void all statute regulations in the states on the subject. Several of the judges who were in the minority thought that the power of Congress was not so exclusive, but that state legislation might act in aid of the power to seize and recapture fugitive slaves. The decision in the case of Prigg v. The Commonwealth of Pennsylvania has unintentionally thrown much difficulty and hazard in the way of efforts by the owners in the slave states to reclaim in the free states their fugitive slaves. That decision went to silence and render inoperative and void all provisions and aid in the free states in respect to the recovery of such slaves. The state govern- ments are not content to remain passive, and leave unembarrassed the free operation of the provision of the act of Congress. The Supreme Court of the United States in the case of Prigg admitted that state magistrates might, if they chose, and were not prohibited by state legislation, exercise the power of arrest given by the act of Congress, and in aid of it. [Prigg's dase is explained in Moore v. Illinois, 14 How. 13. See, generally, on this obsolete subject, Ableman v. Booth, 21 How. 506; Lem- mon V. People, 20 N. Y. 562.] But such permission is withdrawn by state laws in some of the states, and adjudged to be illegal. Thus, in Ohio, the act to prevent kidnapping (Swan's Statutes, p. 600) prohibited the arrest and carrying out of tlie state of fugitive slaves until they had been taken before a magistrate and proof of property exhibited. But the Supreme Court of that state, in Richardson v. Beebe (Law Reporter for November, 1846), held that the decision in Prigg rendered null and void all state aid and legislation to interfere with the owner's riglit of caption in person or by his agent, and that the state act had become inoperative and null. So the decision in the Circuit Court in the city of New York, in the matter of George Kirk (Law Reporter, [ix. 361,] for December, 1846), was to the same effect, and it was adjudged that the Revised Statutes of New York (N. Y. R. S., 837, sec. 10), making provision oh this subject in favor of the arrest and surrender of fugitive slaves concealed on board of a vessel witliout the knowledge of the captain, was unconstitu- tional and void. The court in Massachusetts, in the case of The Commonwealth v. Tracy (5 Mete. 536), held that the states might secure their peace by causing fugi- tive slaves to be arrested and removed from their borders for their own security, pro- vided it was not the object or purpose of the state provision indirectly to aid the owner of the slaves in recovering them. The statute of Pennsylvania, in February, 1847, was more stringent in its opposition to all state aid and accommodation in the recovery of fugitive slaves. It is made highly penal for any state magistrate to take cognizance of the case of a fugitive slave, or grant any process or certificate in rela- tion thereto. It is also made highly penal for any person claiming his fugitive slave to seize, or attempt to seize, or carry him away " in a violent, tumultuous, or unrea- sonable manner, so as to disturb or endanger the public peace ; " and that it should be unlawful and highly penal for any jailer or keeper of a prison to use any jail or prison for the detention of such fugitive slaves. The judges are likewise authorized at all times to inquire, under a writ of habeas corpus, into the causes of the arrest or imprisonment of any human being. The act of 1780, allowing the owners of slaves to bring in and retain them within the state in involuntary servitude for a transient period, is repealed. Tliere are provisions of a similar effect in some of the other free states, and they amount in their consequences almost to a repeal of the act of Congress of February, 1793, and of sec. 2 of art. 4 of the Constitution of the United States, on which that act was founded. The owner of a fugitive slave would be apt [43] * 32 OP THE RIGHTS OP TERSONS. [PART IV. own country so long as he pleases, and is not to be driven from it unless by the sentence of the law prescribing exportation or to be deterred, under such discouraging and hazardous circumBtances, from under- taking to reclaim his fugitive slaves. The spirit of these provisions appears to be rather repugnant to the principle of compromise and mutual and liberal concession which dictated the section in question, and indeed pervaded every part of the Con- stitution of the United States. With respect to fugitives from justice from one state to another, charged with " trea- son, felony, or other crime," the Constitution of the United States (art. 4, sec. 2) pro- vides that they shall, on demand of tlie executive authority of the state from which they fled, be delivered up, to be removed to the state having jurisdiction of the crime. The act of Congress of 12th February, 1793, c. 7, sec. 1, has made provision for the case, and declared that the demand shall be accompanied with a copy of the indict- ment found, on an affidavit made before a magistrate, charging the person with hav- ing committed " treason, felony, or other crime," and certified by the governor or chief magistrate to be authentic ; and in that case it is declared to be the duty of the executive magistrate of the state to which the person has fled to cause the person to be arrested and secured, and notice thereof given, and the person then to be surrendered to the executive authority making the demand, or its agent. I am not aware that there has been any judicial opinion on this provision ; and as it stands, I should apprehend that on the demand being made, and the documents exhibited, no discretion remained with the executive of the state to which the fugitive had fled, and that it was his duty to cause the fugitive to be arrested and surrendered. But if the executive on whom the reguisition is made should think proper to exercise his dis- cretion, and refuse to cause the fugitive to be arrested and surrendered (as has been done in one or more instances), I do not know of any power under the authority of the United States by which he could be coerced to perform the duty.' Perhaps the act of Congress may be considered as prescribing a duty the performance of which cannot 1 Kentucky v. Dennison, 24 How. 66. John Leary, 10 Ben. 197.] In the same At the same time the surrender is a duty, case it was determined that the courts of and not discretionary. Matter of Voor- the state where the fugitive was found hees, 3 Vroom (32 N. J.), 141 ; [Work v. would not consider the technical suffi- Corrington, 34 Ohio St. 64.] A fugitive ciency of the indictment. It is enough from justice is defined to be one who in- that a crime against the laws of the other fringes the criminal laws of a state, and state is charged. See State v. Buzine and departs therefrom without waiting to Schlemn, 4 Harr. (Del.) 572 ; Nichols u. abide the consequences of his act. Matter Cornelius, 7 Ind. 611. But see Ex parte of Voorhees, supra ;x^ although he was Joseph Smith (the Mormon prophet), 3 there only temporarily and returns to his McLean, 121. [See People u. Donohue, domicile, Kingsbur)-'s Case, 106 Mass. 84 N. Y. 488, and earlier New York cases 223. And the offence need not have been cited ; Davis's Case, 122 Mass. 324 ; a crime by the laws of the state making Tullis v. Pleming, 69 Ind. 15 ; In re the demand, when the Constitution was Hooper, 52 Wis. 699.1 framed. 32 N. J. 141 ; [In the Matter of aA Ex parte Swearingen, 13 S. C. 74. committed is necessary. Jones v. Leon- An actual, not merely a constructive, ard, 50 Iowa, 106 ; Wilcox i.. Nolze, 34 presence in the state where the crime is Ohio St. 520 [44] LECT. XXIV.] OP THE EIGHTS OP PERSONS. * 33 banishment in the given case ; or unless required abroad while in the military or naval service. Exportation for crimes rests entirely, in England, upon statute, for it was a punishment un- known to the common law. A statute under Elizabeth first inflicted banishment for offences. * Some of our American * 33 constitutions (a) have declared that no person shall be liable to be transported out of the state for any offence committed within it. It would not be consistent with the spirit of that pro- vision to prescribe banishment as a part of the punishment, what- ever foreign place or asylum might be deemed suitable for the reception of convicts. In most of the states, no such constitu- tional restriction is imposed upon the discretion of the legisla- ture; and in New York the governor is authorized to pardon, upon such conditions as he may think proper. (6) Convicts have sometimes been pardoned under the condition of leaving the state in a given time, and not returning. This was equivalent, in its effect and operation, to a judicial sentence of exportation or banishment. (3.) Writ of Ne Exeat. — In England, the king, by the preroga- tive writ of ne exeat, may prohibit a subject from going abroad without license. But this prerogative is said to have been unknown to the common law, which, in the freedom of its spirit, allowed every man to depart the realm at his pleasure. The first invasion of this privilege was by the constitutions of Clarendon, be enforced. The provision in the Constitution of the United States is not, however, to be regarded as a null or void provision, or resting on the mere will and pleasure of the state authorities. It is a substantive and essential grant of power by the people of the United States to the government of the United States, and it partakes of a judicial character, and is fitly and constitutionally of judicial cognizance. The judicial power of the United States extends to all cases in law and equity arising under the Constitution, and the courts and judges of the United States within the state to which the fugitive has fled are the fittest tribunals to be clothed with the exercise of this power, so that the claimant might, on due application, with the requisite proof, cause the fugitive to be arrested and removed, or surrendered by the marshal of the district, under regular judicial process, as by habeas corpus. To such a course of proceeding and to such a source of power, I should rather apprehend the act of Con- gress ought to have applied, and given facility and direction. Such a course of pro- ceeding would be efficient and more safe for the fugitive, and more consistent with the orderly and customary administration of justice. It concerns the common interest and intercourse among the several states, and is a branch of international jurisprudence. (a) Constitutions of Vermont, Ohio, Illinois, and Mississippi. (ii) New York Revised Statutes, ii. 745, sec. 21. [45J * 34 OF THE EIGHTS OF PERSONS. [PAET IT. in the reign of Henry II., (c) and they were understood to apply exclusively to the clergy, and prohibited them from leaving the kingdom without the king's license. In the Magna Charta of king John, every one was allowed to depart the kingdom, and return at his pleasure, except in time of war, and saving their faith due to the king, {d) But this provision was omitted in the charter of Henry III., and in the reign of Edward I. it began to be considered necessary to have the king's license to go abroad ; and it became at last to be 20,000, as fully as citi- zens might do ; and by the act of 24th March, 1818, c. 4610, aliens, not subjects of any state at war with the United States at the time of the purcliase, might purchase and hold lands not exceeding 5,000 acres, equally as native citizens. This last act contained no condition with regard to residency. And by the act of March 21, 1837, purchases from aliens, and the titles of the heirs and devisees of aliens, were con- firmed, subject to the vested rights of othei-s. Under the construction given to the above act of 1818 (Reese v. Waters, 4 Watte & S. 145), an alien husband acquires no title in his wife's estate of inheritance, as tenant by the curtesy initiate. In New Yorlj (Laws of N. Y. sess. 56, c. 300, and sess. 57, c. 37), the prerogative right of escheat, in the case of aliens dying seised of lands, is much restricted, and the alien heirs and the persons obliged to deduce title through an alien, are entitled, upon certain moderate conditions, to a release of the interest of the state acquired by the escheat. In New York, it is considered to be a settled rule of construction of statutes permitting aliens to purchase and hold lands within tlie state, to them and their heirs and assigns, that the alien heirs, devisees, and purchasers of and from the alien so allowed to purchase, can take and hold in that capacity, without prejudice to their title from alienism. See the act of April 2, 1798, c. 72, and the proviso thereto : and the acts of March 26, 1802, c. 49; and of April 8, 1808, c. 175, and the decision in Jackson c. Adams, 7 Wend. 367, thereon. See also the cases of Goodell v. Jackson,. 20 Johns. 693 ; of Jackson v. Etz, 5 Cowen, 314, and of The Commonwealth v. Heirs of Andre', 3 Pick. 224, to the same point. Whether the heirs and purchasers of and from the heir§ and purchasers of the first alien taker can so take may he a question, as the privilege is them. Nationality, p. 151; 6 Geo. IV. u. 163). The general tendency of European 16, § 135. And so he is, it would seem, legislation is in the same direction. Many in tliis country. Bankrupt Act of March of the states of the Union have done 2, 1867, §11. By the Itahan Code, art. 3, away with all. disabilities of aliens to the foreigner is admitted to all the civil hold landed property (1 Wash. R. P. 49) ; rights of the citizen. The French law is and all are believed to have much quali- thought to be very nearly as liberal (M. fied the common law. Hue, cited by Sir A. Cockburn, pp. 162, [85] * 71 OP THE EIGHTS OP PERSONS. [PART IV. In North Carolina and "Vermont, there is even a provision inserted in their constitutions, that every person of good character, who comes into the state and settles, and takes au oath of allegiance to the same, may thereupon purchase, and by other just means acquire, hold, and transfer land, and, after one year's residence, become entitled to most of the privileges of a natural-born sub- ject. In Connecticut, the Superior Court is invested with power at large, upon petition, to grant to resident aliens the right to take, hold, convey, and transmit real estate, in like manner as native citizens, (c) These civil privileges, conferred upon aliens by state authority, are dictated by a just and liberal policy ; but they must be taken to be strictly local ; and until a foreigner * 71 is duly naturalized, according to the act of Congress, * he is not entitled in any other state to any other privileges than those which the laws of that state allow to aliens. No other state is bound to admit, nor would the United States admit, any alien to any privileges to which he is not entitled by treaty, or the laws of nations, or the laws of the United States, or of the state in which he dwells. The article in the Constitution of the to the first grantee, his heirs and assigns, and does not necessarily extend to the heirs of the heir, or to the purchaser from the purchaser. The decision in the case of Aldrich u. Manton, 13 Wend. 458, seems to limit the privilege to the immediate heirs and purchaser from the first privileged alien. The legislature of New York, by vari- ous provisions, have very greatly enlarged the capacity of aliens to take and hold real estate. (1.) Any alien who takes and files in the Secretary of State's office a deposition of being a resident, and of the intention of his permanent residence, and to become a citizen as soon as the naturalization laws permit, may take and hold real estate in fee, and for six years thereafter may sell, devise, and dispose of the same, except that he shall not lease or demise the same until naturalized. (2.) Such 'alien shall not, however, take or hold real estate descended, devised, or conveyed to him previously to such residence and deposition, but if he dies within the six years, his heirs being inhabitants, may take by descent as if he had been a citizen. (3.) If any alien sells lands so entitled by him to be held and sold, he may take in fee mort- gages as a security for the purchase-money, and repurchase on the mortgage sales. (4.) All such aliens, so holding real estates, are subject to assessments, taxes, and burdens as if they were citizens. (5.) All titles to lands by conveyance, descent, or devise, before the alien was qualified to take and hold, are confirmed on his naturali- zation, or if not naturalized, if he shall within one year from acquiring the title, file his deposition, he may in that case hold and convey, for the term of five years, real estate. N. Y. Revised Statutes, ii. 3d ed. 3-6. The Revised Statutes, from 3 to 5, were doubtless intended to give a clear and condensed view of all the various statute provisions in favor of the rights and capacities of aliens in respect to real property, but such a view has not been answered, and the successive enactments are so tacked together as to lead to repetition and perplexity. (c) Statutes of Connecticut, 1838, p. 287. [86] LECT. XXV.] OF THE EIGHTS OF PERSONS. * 72 United States, (a) declaring that citizens of each state were entitled to all the privileges and immunities of citizens in the several states, applies only to natural-born or duly naturalized citizens ; and if they remove from one state to another, they are entitled to the privileges that persons of the same description are entitled to in the state to which the removal is made, and to none other. The privileges thus conferred are local and necessarily territorial ' in their nature. The laws and usages of one state cannot be permitted to prescribe qualifications for citizens, to be claimed and exercised in other states, in contravention to their local policy. (6) It was declared in Oorfield v. Coryell, (c) that the privileges and immunities conceded by the Constitution of the United * States to citizens in the several states were * 72 to be confined to those which were, in their nature, funda- mental, and belonged of right to the citizens of all free govern- ments. Such are the rights of protection of life and liberty, and to acquire and enjoy property, and to pay no higher impositions than other citizens, and to pass through or reside in the state at pleasure, and to enjoy the elective franchise according to the regulations of the law of the state, y^ But this immunity does not (a) Art. 4, see. 2. (I) It is a curious fact in ancient Grecian history, that the Greek states indulged such a narrow and excessive jealousy of each other, that intermarriage was forbidden, and none were allowed to possess lands within the territory of another state. When the Olynthian republic introduced a more liberal and beneficial pollcj' in this respect, it was considered as a portentous innovation. Mitford's History, v. 9. The Athenians occasionally granted the right of intermarriage, and even the freedom of the city, to the inhabitants of foreign states. Schbmann's Dissertations on the Assemblies of the Athenians, ed. Cambridge, 1838, p. 319. So the Byzantines, to evince their deep gratitude to the Athenians for their assistance in the war against Philip of Macedon, broke in upon their ordinary policy, and granted, by law, to the Athenians, the right of intermarriage with their citizens, and the power of purchasing and holding lands in the Byzantine and Perinthian territories. Demost. Orat. de Corona, where the original decree is set forth at large. So, also, the inhabitants and colonists of the Latin cities in Latium, in the 6th century of Rome, were so much regarded as for- eigners, that they could not buy or inherit land from Roman citizens, nor had they generally the right of intermarriage with Romans. Arnold's Hist. iii. 14. (c) 4 Wash. 371. yi But women are citizens, though Mass. 376 ; Opinion of the Justices they have not the right to vote, or other- (Mass.), Nov. 19, 1888. wise to take part in the execution of By act of May 6, 1882, the right of governmental powers. Minor v. Happer- Chinese laborers to come into the United sett, 21 Wall. 162 ; Robinson's Case, 131 States is suspended for ten years, and [87] *72 OP THE EIGHTS OP PERSONS. [PAET IV. apply to every right, for some may belong exclusively to resident citizens under the laws of the state ; and it was held that a statute of New Jersey confining the right of taking oysters within the waters of the state to the actual inhabitants and residents of the state, was not an act infringing the Constitution of the United States. The power to regulate the fisheries in the navigable waters of the states, remained in the states respectively, though the United States have a concurrent power, so far as concerns the free navigation of the waters. The act of Congress confines the description of aliens capable of naturalization to " free white persons." I presume this ex- cludes the inhabitants of Africa and their descendants ; and it may become a question, to what extent persons of mixed blood are excluded, and what shades and degrees of mixture of color disqualify an alien from application for the benefits of the act of naturalization, (a) Perhaps there might be difficulties also as to (a) By a statute of Virginia, in 1785, every person t?ho hath one fourth part or more of negro blood is deemed a mulatto, and that act is still in force. 4 Rand. 631. The same rule is declared in Indiana. Revised Statutes of. Indiana, 1838. It is adjudged, in South Carolina, that mulattoes are not white citizens within the meaning of the law, and persons tinged with negro blood are said to be mulattoes. State v. Hayes, 1 Bailey, 275. The term is not precisely defined, nor the line of distinction between whites and men of color accurately ascertained. It means a person of mixed white or European and negro descent, without defining exactly the propor- tions of blood. A remote taint will not degrade a person to the class of persons of color ; but a mere predominance of white blood is not sufficient to rescue a person from that class. It is held to be a question of fact for a jury, upon the evidence of features and complexion, and reputation as to parentage, and that a, distinct and visible admixture of negro blood makes one a mulatto. If the admixture of African blood does not exceed the proportion of one eighth, the person is deemed white. This is the rule in Louisiana, and in the code noir of France for her colonies, and it is deemed in Carolina a proper rule. State v. Davis, 2 Bailey, 558. With respect to India, it was the policy of the British Parliament, in 1833, to effect a complete identi- the state and United States courts are As to the effect of the amendments to forbidden to admit Chinese to citizenship, the Constitution in preventing discrimi- As to who are included within the terms nation against negroes and other persons, " Chinese laborers," see United States v. see ante, i. 391, n. yi. Douglas, 17 Fed. Rep. 6-34; and In re As to the position held by Indians in Ah Lung, 18 Fed. Eep. 28, — cases which our law, and how far the relation may be are directly opposed to each other. It varied by severance from the tribe, see had been held, prior to the statute, that The Legal Position of the Indian, 15 Chinese could not become citizens. In re Am. L. R. 21 ; Ex parte Reynolds, 5 Ah Yup, 5 Saw. C. C. 155. So of a per- Dill. 394. son of half white and half Indian blood. In re Camille, 6 Saw. 541. [88] LECT. XXV. J OP THE EIGHTS OP PERSONS. * 73 the copper-colored natives of America, or the yellow or tawny races of the Asiatics, and it may well be doubted whether any of them are " white persons " within the purview of the law. It is the declared law of New York, South Carolina, and Tennessee, (6) and probably so understood in other states, that Indians are not citizens, but distinct tribes, living under the protection of the government, and * consequently they never can be made * 73 citizens under the act of Congress, (a) Before the adoption of the present Constitution of the United States, the power of naturalization resided in the several states ; and the constitution of New York, as it was originally passed, (J) required all persons born out of the United States, and natural- ized by the legislature, to take an oath abjuring all foreign alle- giance and subjection, in all matters, ecclesiastical as well as civil. This was intended, and so it operated, to exclude from the bene- fits of naturalization Roman Catholics, who acknowledged the spiritual supremacy of the Pope, and it was the result of former fears and prejudices (still alive and active at the commencement fication of the Europeans and natives in the eye of tlie law, without regard to color, birth, or religion. Ann. Eeg. for 1833 ; Hist. 184. In Ohio, it has been held that all persons nearer white than black are white persons, within the constitution of the state. Jeffries v. Ankeny, 11 Ohio, 372, 375. So, by the case of Lane v. Baker, 12 Ohio, 237, youths of negro, Indian, and white blood, but of more than one half white blood, are entitled, under the school law in favor of white children, to the benefit of the common school fund. (6) Goodell V. Jackson, 20 Johns. 693 ; State v. Managers of Elections for York, 1 Bailey (8. C), 215; The State v. Ross, 7 Yerg. 74. (a) By an act of the legislature of New York of the 10th of April, 1843, c. 87, 2 K. S. 3d ed. 4, any native Indian may purchase, take, hold, and convey lands, in the same manner as a citizen ; and whenever he becomes a freeholder to the value of $100, he becomes subject to taxation, and liable on contracts, and subject to the civil jurisdiction of the courts of law and equity as a citizen. This act gives to the Indians new and important privileges. Part of the Seneca tribe of Indians now (1843) own and occupy reservation lands in the S. W. part of the state of New York. So the Oneida Indians, owning lands in the counties of Oneida and Madison, were enabled, by the act of April 18, 1843, c. 185, to hold lands in severalty, and to sell and convey the same, under the care of a superintendent on the part of the state. It is admitted that an Indian is a competent witness in a suit between white men. Coleman v. Doe, 4 Sm. & M. 40. So, by the act of Congress of March 3, 1843, c. 101, provision is made for a just division of the lands belonging to the Stockbridge tribe of Indians, in the territory of Wisconsin, among them individually, and patents to be issued to such individuals, in severalty and in fee; and such Indians are thenceforth to be deemed citizens of the United States, with all the privileges and duties attached thereto, and the powers and usages of those Indians as a tribe thenceforth to cease. {h) Art. 42. [89] * 73 OP THE RIGHTS OF PERSOKS. [PART IT. of our Revolution) respecting the religion of the Romish church, which European history had taught us to believe was incompati- ble with perfect national independence, or the freedom and good order of civil society. So extremely strong and so astonishingly fierce and unrelenting was public prejudice on this subject, in the early part of our colonial history, that we find it declared by law in the beginning of the last century, (c) that every Jesuit and popish priest who should continue in the colony after a given day should be condemned to perpetual imprisonment; and if he broke prison and escaped, and was retaken, he should be put to death. That law, said Mr. Smith, the historian of the colony as late as the year 1766, (c?) was worthy of perpetual duration ! (c) Colony Laws, i. 38, Liyingston & Smith's ed. {d) Smith's History of New York, 111. In the a.ci declaring the rights and privileges of the people o/'the colony of New York, in 1691, all persons " professing faith in God, by Jesus Christ, his only Son,'' were allowed the free exercise and enjoyment of their religious profession and worship, with the exception of " persons of the Roman religion," who were not to exercise their manner of worship contrary to the laws of England. Bradford's edition of the laws of New York, 1719. As late as 1753, the legislature of Virginia passed an act extremely severe upon Popish recusants, placing them under the most oppressive disabilities. [90] LECT. XXVI.] OP THE EIGHTS OF PEESONS. * 76 LECTURE XXVI. OP THE LAW CONCBENING MAEEIAGE. The primary and most important of the domestic relations is that of husband and wife. It has its foundation in nature, and is the only lawful relation by which Providence has permitted the continuance of the human race. In every age it has had a propitious influence on the moral improvement and happiness of mankind. It is one of the chief foundations of social order. We may justly place to the credit of the' institution of marriage a great share of the blessings which flow from refinement of man- ners, the education of children, the sense of justice, and the cultivation of the liberal arts, (a) In the examination of this interesting contract, I shall, in the first place, consider how a marriage may be lawfully made ; and, secondly, how it may be lawfully dissolved ; and, lastly, I shall take a view of the rights and duties which belong to that relation. 1. Marriage when void. — All persons who have not the regular use of the understanding, sufficient to deal with discretion in the common affairs of life, as idiots and lunatics (except in their lucid intervals), * are incapable of agreeing to any contract, * 76 and of course to that of marriage. But though marriage with an idiot or lunatic be absolutely void, and no sentence of avoidance be absolutely necessary, (a) yet, as well for the sake of the good order of society, as for the peace of mind of all per- (a) The great philosophical poet of antiquity, who was, however, most absurd in much of his philosophical theory, but eminently beautiful, tender, and sublime in his poetry, supposes the civilization of mankind to have been the result of marriage and family establishments. Castaque privatse veneris connubia teta Cognita sunt, prolemque ex se videre creatam ; Turn genus humanum primum mollescere coepit. Lucret. de Rer. Nat. lib. 5. (a) Browning v. Eeane, 2 Phillim. 69; ib. 19. [91] * t6 OF THE EIGHTS OP PERSONS. [PART IT. sons concerned, it is expedient that the nullity of the marriage should be ascertained and declared by the decree of a court of competent jurisdiction. (6) The existence and extent of mental disease, and how far it may be sufficient, by the darkness and disorder which it brings upon the human faculties, to make void the marriage contract, may sometimes be a perplexing question, extremely distressing to the injured party, and fatal to the peace and happiness of families, (c) ^ Whether the relation of husband and wife lawfully exists, never should be left uncertain. Suits to annul a marriage, by reason of idiocy or lunacy, have conse- quently been often instituted and sustained in the spiritual courts in England, (ci) The proper tribunal for the investigation of this question, when it is brought up directly, and for the mere purpose of testing the validity of the contract, will depend upon (6) Hays v. Watts, 3 Phil. 44; Sir William Scott, in Pertreis v. Tondear, 1 Hagg. Cons. 138; Crump v. Morgan, 3 Ired. Eq. (N. C.) 91. (c) There is a very interesting judicial discussion in M'Elroy's Case, 6 Watts & S. 451, on the subject of lunacy, and the question is, whether the mind is deranged to such an extent as to disqualify the party from conducting himself with personal safety to himself and others, and from managing and disposing his own affairs, and discharging his relative duties. [d) Asli's Case, Free, in Ch. 203; 1 Eq. Cas. Abr. 278, pi. 6; Ex parte Turing, 1 Ves. & B. 140 ; Turner v. Meyers, 1 Hagg. Cons. 414 ; Countess of Portsmouth v. Earl of Portsmouth, 1 Hagg. Bcc. 355 ; Shelford on Marriage and Divorce, 183-201, 1 Insanity, S^-c. — As to insanity when The ground for interference of the a marriage is questioned collaterally on court in cases .of importance is the prac- that ground, see Wiser v. Lockwood, 42 tieal, rather than the physical, impossi- Vt. 720, 723 ; Goshen v. Richmond, 4 bility of consummation. G v. G , Allen, 458, 460; Legeyt ... O'Brien, Mil- L. B. 2 P. & 1). 287; [H. v. P., 3 L. R. ward, Ir. 325 ; [Stuckey v. Mathes, 24 P. & D. 126. Wilful refusal is not Hun, 461;] and Clement u. Mattison, 3 enough. Ibid. 128; Cowlesii. Cowles, 112 Rich. (S. C.) 93, delirium tremens; Keyes Mass. 298. See L. i>. L., 7 P. D. 16.] V. Keyes, 2 Foster, 553. In a suit for Impotence of the husband makes a inar- nuUity on this ground it has been said riage voidable only, and not void. Hence, that the only question is, whether the after the wife's death the marriage can- mind of the party was diseased at the not be impeached on that ground. A. v. time of entering into the contract, and B., L. R. 1 P. & D. 559. See J. G. u. not as to the extent of the derangement. H. G., 33 Md. 401. Neither can it be Hancock v. Peaty, L. R. 1 P. & D. 335 ; called in question by a third person, when contra. Concord v. Rumney, 45 N. H. 523. neither of the parties concerned has in See Atkinson v. Medford, 46 Maine, 510; any way signified an election to treat the [Banker v. Banker, 63 N. Y. 409 ; Smith contract as void. Cavell v. Prince, L. B. V. Smith, 47 Miss. 211 ;] Banks v. Good- 1 Ex. 246. fellow, L. R. 5 Q. B. 549 ; and other cases, post, iv. 508, II. 1. [92] LECT. XXVI.J OP THE EIGHTS OF PERSONS. * 77 the local institutions of every state. In those states which have equity tribunals, it belongs to them ; (e) and wheii there are no such tribunals distinct from the supreme courts of common-law jurisdiction, for the exercise of equity powers, whatever jurisdic- tion is exercised over the matrimonial contract must be in the common-law courts. A marriage procured by force or fraud is also void, ah initio, and may be treated as null by every court in which its validity may be incidentally drawn in question. (/) The basis of the marriage contract is consent, and the ingredient of * fraud * 77 or duress is as fatal in this as in any other contract, for the free assent of tlie mind to the contract is wanting, (a) The com- mon law allowed divorces a vinculo causa metus, causa impotentice, and those were cases of a fraudulent contract. (¥) It is equally proper in this case, as in those of idiocy or lunacy, that the fraud or violence should be judicially investigated, in a suit instituted for the very purpose of annulling the marriage ; and such a jurisdiction in the case properly belongs to the ecclesiastical courts in England, and to the courts of equity in this country. It is declared in New York by statute, (c) that when either party to a marriage shall be incapable of consenting to it, for want of age or understanding ; or incapable, from physical causes, of entering into the marriage state ; or when the consent was ob- tained by force or fraud, the marriage shall be void from the time its nullit)' shall be declared by a court of competent author- ity ; and the courts of equity are invested with that power, (c?) It is said that error will, in some cases, destroy a marriage, and render the contract void, as if one person be substituted for (e) Wightman v. Wightman, 4 Johns. Ch. 34-S ; Crump v. Morgan, 3 Ired. Eq. (N. C.) 91. In this and many other points relative to domestic rights, the English ecclesiastical law is considered as part of the common law. (/) A marriage would be void if made while one of the parties was in a state of intoxication, such as would incapacitate the party from entering into any other con- tract. The case of Brown v. Johnston, in 1818, is cited by Dr. Irving to this point. (Introduction to the Study of the Civil Law, 102, note.) (a) Voet, ad Pand. lib. 24. 2. 15 ; TouUier's Droit Civil Franyais, i. Nos. 501, 504, 506, 512; Reeve's Domestic Relations, 201, 207; Pothier's Traitd du Coutrat de Mariage, Nos. 307, 308 ; 2 Hag. Cons. 104, 246 ; [Lyndon v. Lyndon, 69 111. 43. As to what is sufficient fraud or duress, see Sickles v. Carson, 26 N. J; Eq. 440 ; Honnett v. Honnett, 33 Ark. 156 ; Varney v. Vamey, 52 Wis. 120.] (b) Bury's Case, 5 Co. 98, b ; Oughton's Ord. Jud. tit. 193, sec. 17. (c) N. Y. Revised Statutes, ii. 139, sec. 4. (d) lb. 142, sec. 20 ; 168, sec. 2. [9S] * 78 OP THE EIGHTS OP PERSONS. [PAET IV. another. This, however, would be a case of palpable fraud, going to the substance of the contract; and it would be difficult to state a case in which error simply, and without any other in- gredient, as to the parties, or one of them, in respect to the other, would vacate the contract. It is well understood that error, and even disingenuous representations, in respect to the qualities of one of the contracting parties, as his condition, rank, fortune, manners, and character, would be insufficient. The law makes no provision for the relief of* a blind credulity, however it may have been produced, (e) * 78 2. The Age of Consent. — * No persons are capable of bind- ing themselves in marriage until they have arrived at the age of .consent, which, by the common law of the land, is fiied at fourteen in males, and twelve in females. The law supposes that the parties, at that age, have sufficient discretion for such a contract, and they can then bind themselves irrevocably, and cannot afterwards be permitted to plead even their egregious indiscretion, however distressing the result of it may be. Mar- riage, before that age, is voidable at the election of either party, on arriving at the age of consent, if either of the parties be under that age when the contract is made, (a) But this rule of reci- procity, however true in its application to actual marriages, does not apply to other contracts made by a competent party with an infant, nor even to a promise of marriage per verba de futuro with an infant, under the age of discretion. The person of full age is absolutely bound, and the contract is only voidable at the elec- tion of the infant. This point was ruled by the K. B. in Holt v. Ward Clarencieux, (6) after the question had been argued by civil- ians, to see what light might be thrown upon it from the civil and canon law. Though this be the rule of the English law, the civilians and canonists are not agreed upon the question; and Swinburne was of opinion that the contract in that case was not binding upon the one party more than upon the other, (c) (e) TouUier, ut supra, Nos. 515, 521 ; Pothier, ut supra, Nos. 310, 314 ; 1 Phillimore, 137 ; 2 Hag. Cons. 248 ; Benton v. Benton, 1 Day, 111 ; Stair's Institutions, by More, i. n. b, p. 14. (a) Co. Litt. 33 a, 79 b. The Massachusetts Eevised Statutes, of 1836, render marriages contracted when either of the parties is within the age of consent, valid, if followed by voluntary cohabitation. (i) 2 Str. 937. (c) Harg. Co. Litt. lib. 2, note 45. [94J LECT. XXVI.] OP THE EIGHTS OF PERSONS. * 79 The age of consent, by the English law, was no doubt bor- rowed from the Roman law, which established the same periods of twelve and fourteen, as the competent age of consent to render the marriage contract binding. Qd) Nature has not fixed any precise period ; and municipal laws must operate by fixed and reasonable rules. The same rule was adopted * in * 79 France, before their revolution ; (a) but by the Napoleon Code, the age of consent was raised to eighteen in males, and fifteen in females, though a dispensation from the rule may be granted for good cause. If without the consent of their parents, or of the father, in case of a difference of opinion, the son must be twenty-five years complete, and the daughter twenty-one years complete, to render them competent to contract marriage. (6) 3. Bigamy. — No person can marry while the former husband or wife is living. Such second marriage is, by the common law, absolutely null and void ; (c) and it is probably an indictable offence in most, if not all, of the states in the Union, (c?) In New York, it is declared by statute to be an offence punishable by imprisonment in a state prison, in all but certain excepted cases. Those cases are, when the husband or wife, as the case may be, of the party who remarries, remains continually without the United States for five years together ; or when one of the married parties shall have absented himself or herself from the other by the space of five successive years, and the one remarry- ing shall not know the other, who was thus absent, to be living (rf) Inst. 1. 10, De Nuptiis ; Co. Litt. 78 b ; 1 Bl. Coram. 436. (a) 1 Domat, Prel. h. 24, 25. The incapacity for marriage ceased when the parties had attained the respective ages of- fourteen and twelve. But if the children were under paternal authority, the son could not marry unless he was thirty years of age, nor the daughter imless she was twenty-five, without the consent of their parents. Ibid. (b) Code Civil, Nos. 144, 148. The New York Revised Statutes, ii. 138, established the ages of consent at seventeen in males, and fourteen in females ; but the provision was so disrelished, that it was repealed within four months thereafter, by the act of 20th April, 1830, which, of course, left the case to stand as before, upon the rule of the common law. In Ohio, Indiana, and Michigan, the age of consent is raised to eighteen years in males, and fourteen in females. Statutes of Ohio, 1831 ; Territorial Act of Michigan, April, 1832; R. Statutes of Indiana, 1838. In Illinois, to seventeen in males, and fourteen in females. Illinois R. Laws, 1833. (c) Cro. Eliz. 858; 1 Salk. 121. (d) In North Carolina, bigamy was a crime punishable with death. Statutes 1790 and 1800. In Alabama, it is punishable by fine, imprisonment, and whipping. Atkins's Dig. 2d ed. 107. [95J * 80 OP THE EIGHTS OP PERSONS. [PAET IV. within that time ; (e) or when the person remarrying was, at the time of such marriage, divorced by the sentence of a competent court, for some other cause than the adultery of such person ; or if the former husband or wife of the party remarrying had been sentenced to imprisonment for life ; or if the former mar- riage had been duly declared void, or was made within the age of consent. (/) This is essentially a transcript of the *80 * statute of 1 James I. c. 11, with a reduction of the time of absence, from seven ♦to five years; and though the penal consequences of a second marriage do not apply in those excepted cases, yet, if the former husband or wife be living, though the fact be unknown, and there be no divorce a vinculo duly pronounced, or the first marriage has not been duly annulled, the second marriage is absolutely void, and the party remarrying incurs the misfortune of an unlawful connection. If there be no statute regulation in the case, the principle of the common law, not only of England, but generally of the Christian world, is, that no length of time or absence, and nothing but death, or the decree of a court confessedly competent to the case, can dissolve the marriage tie. (a) By the statute of James I., if one of the married parties con- tinually remained abroad for five years, and was living, even within the knowledge of the other party, or the parties were at the time only under a divorce a mensa et thoro, yet the second marriage, though void in law, would not be within the penal- ties of the act. It was still a divorce, and the act did not dis- tinguish between the two species of divorce. (J) The crime («J In Ohio, it is three years of continual and wilful absence, next before the second marriage. Statutes of Ohio, 1831. In Massachusetts, it is seven years ; and it is further added, that the legal penalty does not apply if one of the parties had been absent for a year or more at the time of the second marriage, and believed to be dead. Mass. Rev. St. u. 130, § 3. (/) N. Y. Revised Statutes, ii. 139, 687 ; ib. 688, sec. 11. The statute has further provided on this subject, that if one of the married parties absents himself or herself tor five successive years, without being known to the other party to be living during that time, and the other party marries during the life of the absent person, the mar- riage is void, only from the time that its nullity shall be pronounced by a court of competent authority ; and further, that no pardon granted to any person sentenced to imprison- ment for life shall restore to him or her the rights of a previous marriage. N. Y. Revised Statutes, ii. 139, sec. 6, 7. (a) 1 Roll. Abr. 340, pi. 2, 357, pi. 40, 360, F ; Williamson v. Parisien, 1 Johns. Ch. B89 ; Fenton v. Reed, 4 Johns. 52 ; [Glass v. Glass, 114 Mass. 563.] Ib) 4 Bl. Coram. 168, 164. This point was raised and discussed in Porter's Case, [96] LBCT. XXTI.J OF THE BIGHTS OF PERSONS. * 81 of bigamy, of polygamy, as it ought more properly * to * 81 be termed, («) has been made a CHpital offence in some, and punished very severely in other, parts of Europe ; (5) but the new civil code of France (c) only renders such second marriage unlawful, without annexing any penalty for the offence, (d) The direct and serious prohibition of polygamy contained in our law is founded on the precepts of Christianity, and the laws of our social nature, and it is supported by the sense and practice of the civilized nations of Europe, (e) ^ Though the Athenians at one time permitted polygamy, yet, generally, it was not tolerated in ancient Greece, but was regarded as the practice of barba- rians. (/) It was also forbidden by the Romans throughout the Cro. Car. 461 ; and while the court admitted the second marriage to be unlawful and void, yet they did not decide whether the statute penalty would attach upon such a case of bigamy. The New York Revised Statutes, ii. 687, sec. 9, have corrected tiiis imperfection in the English statute, and made the exception to the a,pplication of the penalties of bigamy, in the case of divorce, not to rest on a divorce a mensa et thoro, but to apply only to the dissolution of the former marriage. (a) Harg. Co. Litt. lib. 2, n. 48. {b) Barrington on the Statutes, 401. (c) No. 147. (d) If a woman be induced, by fraudulent means, to marry a man who has a wife living, and who represented himself as single, the children born while the deception lasted are entitled to the rights of legitimate children. Clendenning v. Clendenning, 15 Martin (La.), 4-38. This is also the statute law in New York. New York Revised Statutes, ii. 142, sec. 23. (c) Paley's Moral Philosophy, b. 3, c. 6. (/) Potter's Greek Antiq. 264; Taylor's Elem. Civil Law, 340-344. ' Polygamy. — A curious case has been dismissed the petition, on the ground that determined in England on the validity of a marriage contracted in a country where a Mormon marriage. The parties pro- polygamy is lawful between a man and fessed the Mormon faith, were single, woman who profess a faith which allows and competent to contract marriage, and polygamy, is not a marriage in such a were in fact married by Brigham Young sense as to entitle the parties, as between in Utah, and cohabited and had children each other, to the remedies of the matri- there. Afterwards the husband, who had monial law of England. Hyde v. Hyde, never taken a second wife, while at the L. R. 1 P. & D. 130. Somewhat similar Sandwich Islands renounced the faith, was a case of a marriage between Parsees and wrote to his wife urging her to do so, professing the religion of Zoroaster. Ad- and to join him. This she refused to do, daseer Cursetjee o. Perozeboye, 10 Moore, and the husband prudently not returning P. C. 375. A ijuestion was raised in Ar- to Utah, she obtained a Mormon divorce, raitage v. Armitage, L. R. 3 Eq. 343, as to and made a second marriage there. The an Englishman's marriage in conformity first husband petitioned' in the English with the customs of the native New Zea- courts for dissolution of the marriage on landers, to one Tulii Tuhi, but -jpas not the ground of her adultery. The court answered. VOL. II. -7 [97] * 82 OP THE BIGHTS OP PERSONS. [PART IV. whole period of their history, and the prohibition is inserted in the Institutes of Justinian. (^) Polygamy may be regarded as exclusively the feature of Asiatic manners, and of half-civilized life, and to be incompatible with civilization, refinement, and domestic felicity, (/i) 4. Marriage between Near Relations. — In most countries of Europe in which the canon law has had authority or influ- * 82 ence, marriages are prohibited between near * relations by blood or marriage. Prohibitions similar to the canonical disabilities of the English ecclesiastical law were contained in the Jewish laws, from which the canon law was, in this respect, deduced ; and they existed also in the laws and usages of the Greeks and Romans, subject to considerable alterations of opin- ion, and with various modifications and extent, (a) These regu- lations, as far at least as they prohibit marriages among near relations, by blood or marriage (for the canon and common law made no distinction on this point between connections by con- sanguinity and affinity), (6) are evidently founded in the law of nature ; and incestuous marriages have generally (but with some strange exceptions at Athens) (c) been regarded with abhorrence by the soundest writers and the most polished states of antiquity. Under the influence of Christianity, a purer taste and stricter doctrine have ever been inculcated ; and an incestuous connec- tion between an uncle and niece (it being a marriage within the Levitical degrees) has been adjudged, by a great master of public and municipal law, to be a nuisance extremely offensive to the laws and manners of society, and tending to endless confusion, and the pollution of the sanctity of private life, (c?) (g) Cic. de Orat. 1, 40; Suet. Jul. 52; Inst. 1. 10, b, ad Jin.; Taylor, lb. 344-347. Polygamy was in practice among the Jews in the early patriarcliial ages. Selden's Uxor Ebraica, lib. i. c. 9 ; Antiquities of the Hebrew Republic, by Lewis, iii. 248. (A) Lieber, in his Political Ethics, ii. 9, says that polygamy leads to the patriarchal principle, and which, when applied to large communities, fetters the people in station- ary despotism, while that principle cannot exist long in connection with monogamy. The remark is equally striking and profound. (a) Selden's Uxor Ebraica, lib. i. c. 1-5; 1 Potter's. Greek Antiq. 170; 2 ib. 267, 268, 269 ; Tacit. Ann. 12, sec. 4, 5, 6, 7 ; Lewis's Antiquities of the Jewish Republic, iii. 252. (6) Co. Litt. 2.35, a; Gibson's Cod. 412; 1 Phil. 201, 355; Stair's Institutions by More, vol. i. note b, p. 15. AflBnity is the relation contracted by marriage between a husband and his wife's kindred, and between a wife and hei" husband's kindred. (c) Mltford's History of Greece, vii. 374. {d} Burgess v. Burgess, 1 Hagg. Cons. 386 ; Woods v. Woods, 2 Curteis, 516, s. p. [98] LECT. XXTI.] OF THE EIGHTS OP PERSONS. * 83 It is ver}'- difficult to ascertain exactly the point at which the laws of nature have ceased to discountenance the union. It is very clearly established that marriages between relations by blood or affinity, in the lineal or ascending or descending lines, are unnatural and unlawful, and they lead to a confusion of rights and duties. On this point the civil, the canon, *and * 83 the common law are in perfect harmony. In the learned opinion which Ch. J. Vaughan delivered on this subject in Har- rison V. BuriveU, (a) upon consultation with all the judges of England, he considered that such marriages were against the law of nature, and contrary to a moral prohibition, binding upon all mankind. But when we go to collaterals, it is not easy to fix the forbidden degrees by clear and established principles. (6) In Several of the United States, marriages within the Levitical degrees, under some exceptions, are made void by statute ; but in New York, until 1830, there was not any statute defining the forbidden degrees ; and in England the prohibition to marry within the Levitical degrees rests on the canon law, which, in that respect, received the sanction of several statutes passed in the reign of Henry VIII. (c) It was considered in the case of Such a connection was held in equal abomination by Justinian's code. Code, 6. 8. 2. Consanguinity and affinity are equally impediments in the case of illegitimate relations, and within the purview of the prohibition. Horner v. Horner, 1 Hagg. Cons. 352, 3 ; Blackmore v. Brider, 2 Phil. 361 ; [Queen v. Brighton, 1 Best & Sra. 447.] (a) Vaughan's Rep. 206 ; 2 Vent. 9, s. c. (b) Doctor Taylor, in his Elements of the Civil Law, 314-339, has gone deeply Into the Greek and Roman learning as to the extent of the prohibition of marriage between near relations ; and he says, the fourth degree of collateral consanguinity is the proper point to stop at ; that the marriage of cousins german or first cousins, and who are collaterals in the fourth degree according to the computation of the civilians, and in the second degree according to the canon law, is lawful, and the civil law properly established th<^ fourth as the first degree that could match with decency. The territorial act of Michigan, of April, 1832, stops at the fourth degree, by pro- hibiting marriages nearer than first cousins. (c) By the statute of 5 and 6 William IV. c. 54, marriages between persons within the prohibited degree of consanguinity or affinity are declared to be absolutely null and void. Before that act, such marriages were voidable only by sentence of the ecclesiastical court, pronounced in the lifetime of both the parties. The English statute has not declared what are' the prohibited degrees, and we are to look for tlie Levitical degrees as interpreted by the canon law, and by the statutes of 25 Hen. VIII. c. 22, and 32 Hen. VIII. c 38, and the table of degrees established by Archbishop Parker in 1563. See Shelford on Marriage and Divorce, c i, sec. 1. [99] * 84 OF THE EIGHTS OP PERSONS. [PAET IV. WigUman v. Wightman, (d) that marriages between brothers and sisters in the collateral line were, equally with those between persons in the lineal line of consanguinity, unlawful and void, as being plainly repugnant to the first principles of society, and the moral sense of the civilized world. It would be difficult to carry the prohibition farther without legislative sanction ; and it was observed, in the case last referred to, that in New York, independent of any positive institution, the courts would not probably be authorized to interfere with marriages in the col- lateral line beyond the first degree computed according to the canon law, especially as the Levitical degrees were not con- * 84 sidered * to be binding as a mere municipal rule of obe- dience, (a) The Napoleon code (J) has adopted precisely the same extent of prohibition, as forming the impassable line between lawful and incestuous marriages ; and though the pro- hibition goes deeper into the collateral line, yet the government reserved to itself the power to dispense, at its pleasure, with such further prohibitions. It is evident that the compilers of that code considered the marriage between collaterals in the first degree of consanguinity, prohibited by a rule which was of absolute, uniform, and universal obligation ; because, as to the prohibition between brothers and sistei-s, the sovereign had no dispensing power. In England, the question was considered by the court of delegates in the case of Butler v. G-a»trill;{c) and though the court did not agree to admit marriages between broth- ers and sisters to be against the law of nature, as marriages were so considered between parties connected in the lineal line, yet they admitted them to be against the law of God, and against good morals and policy. In Louisiana, marriages are prohibited among collateral relations, not only between brother and sister, biit ( so far as they might affect the happiness of families and * 86 the control of property, (e) Though * the Roman law marriages are allowed to be lawful. But marriages of this kind, though prohibited by positive law in one state, would be regarded as valid in that and every other state, if made in a state or country where no such prohibition exists. The rule is, however, subject to this limitation, that if a foreign state should allow marriages clearly incestuous by the law of itature, they would not be allowed to have validity elsewhere. Greenwood v. Curtis, 6 Mass. 378. (b) See infra, art. 6, from 86 to 92, showing statute regulations in the several states, as to marriage, and requiring the consent of parents and guardians ; but they do not make void the marriage without that consent, and only impose penalties on the per- sons pronouncing the marriage without that consent. (c) Erskine's Inst. i. 89-91; M'Douall's Inst. i. 112; 2 Addams, 375; 1 id. 64; Shelford on Marriage and Divorce, 91. {d) In Brealy v. Reed, 2 Curteis, 833, in the consistory court of London, a mar- riage was pronounced null by reason of omission of the middle Christian name of the husband in the publication of banns, wilfully and knowingly with the consent of the parties, and for a clandestine purpose. (e) The statute of 4 Geo. IV. c. 76, which reenacted most of the provisions of the statute of George II., punishes clandestine marriages by loss of property, but does not violently make void the contract, when some of the provisions of the statute are broken through. See 1 Addams, 28, 94, 479; Rex •>. Inhabitants of Birmingham, 8 B. & C. 29, and infra, 90, In Wiltshire v. Wiltshire, Hagg. Ecc. iii. 3-32, it was held that a marriage by banns, where, by the consent of both parties, one of the Christian names of the man (a minor) was omitted for the purpose of concealment, was null and void under tlie statute. In England, filing a bill in chancery in behalf of an infant makes her a ward of the court, and marrying such an infant without the consent of the court is a contempt of the court in all concerned, and the contempt will not be discharged until a proper settlement be made for the wife. See this point well examined in Shelford on Marriage and Divorce, pp. 309-322. [102] LECT. XXVI.] OP THE EIGHTS OP PERSONS. * 87 greatly favored marriages by the famous jus trium Uherorum; allowing certain special privileges to the parent of three or more children ; yet it held the consent of the father to be indis- pensable to the validity of the marriage of children, of whatever age, except where that consent could not be given, as in cases of captivity, or defect of understanding, (a) Parental restraints upon marriage existed likewise in ancient Greece, (i) and they exist to a very great extent in Germany, (c) Holland, (c?) and France, (e) The marriage of minors, under these European regulations, is absolutely void, if had without the consent of the father or mother, if she be the survivor ; and the minority in France extends to the age of twenty-five in males and twenty-one in females, and even after that period the parental and family check continues in a mitigated degree. / 6. The Forms of Marriage. -^ No peculiar ceremonies are requisite by the common law to the valid celebration of the marriage. The consent of the parties is all that is required ; and as marriage is said to be a contract jure gentium, that consent is all that is re- quired by natural or public law. (/) The Roman lawyers * strongly inculcated the doctrine, that the very foundation * 87 and essence of the contract consisted in consent freely given, by parties competent to contract. Nihil proderit signasse tabulas, si mentem matrimonii non fuisse constabit. Nuptias non concu- bitus, sed consensus facit. (a) This is the language equally of the common (J) and canon law, and of common reason. If the contract be made per verba de prcesenti, and remains (a) Inst. 1. 10. pr.; Taylor's Elements of the Civil Law, 310-313. If the parent unreasonably withheld his consent, lie might be compelled by the goyernor of the province, at the instance of the child, to give it. Dig. 23. 2. 19. (6) Potter's Greek Antiq. ii. 270, 271. (c) Heinec. Elem. Jur. Ger. lib. 1, sec. 138. TurnbuU's Austria, ii. i;. 7, says that the necessity of certificates of education, to warrant marriage, is a great impediment to the celebration of marriages. (rf) Van Leeuwen's Comm. on the Roman Dutch Law, p. 78. (e) Pothier, Traite' du Contrat de Mar. No. 321-342 ; Code Napoleon, No. 148-160 ; TouUier, Droit Civil !Frau9ais, i. 453-463. But a marriage in France, by a British subject, under the age of twenty-Jive, and with a French woman, is held valid in Eng- land, where there is no such restriction. At least the court would not allow the marriage to be impeached, when the marriage was solemnized according to the directions of an English statute. Lloyd v. Petitjean, 2 Curteis, 251. (/) Grotins, b. 2, c. 6, sec. 10 ; Bracton, lib. 1, c. 5, sec. 7. (o) Dig. 35. 1. 15 ; id. 24, 1. 13 ; id. 50. 17. 30 ; Code, 5. 4. 9, and 22. (b) Co. Litt. 33, a. [103] ^87 OF THE EIGHTS OF PERSONS. [PAET IV. without cohabitation, or if made per verba defuturo, and be fol- lowed by consummation, it amounts to a valid marriage in the absence of all civil regulations to the contrary, and which the parties (being competent as to age and consent) cannot dissolve, and it is equally binding as if made in facie ecalesice. (c)* There (c) The Supreme Court of the United States, in Jewell v. Jewell, 1 How. 219, were equally divided in respect to the above paragraph or proposition in the text, and gave no opinion. The case came up on error from the Circuit Court in South Carolina. So, in the case of The Queen v. Millis, 10 CI. & F. 534, on appeal from Ireland to the House of Lords, the lords were equally divided on the same question ; Lord Brougham, Lord Denman, ph. J., and Lord Campbell being in favor of the validity of the marriage at common law, and Lord Ch. Lyndhurst, Lord Cottenham, and Lord Abinger against it. The question had been referred by the lords to the judges, and Lord Ch. Tindal, in behalf of the judges, gave their unanimous opinion against the validity of the marriage, and held that, by the law of England, as it existed at the time of the Marriage Act, a contract of marriage per verba de prcesenti was indissoluble between the parties themselves, and afforded to either of them, by application to the spiritual court, the power of compelling the solemnization of an actual marriage ; but that such contract never constituted a full and complete mar- riage in itself, unless made in the presence and with the intervention of a minister in holy orders. The civil contract and the religious ceremony were both necessary to a perfect marriage by the common law. The question was most elaborately and learnedly discussed. Catherwood v. Caslon, 13 M. & W. 261, s. p. 1 Form and Evidence. — (a) The text is supported by Cheney v. Arnold, 15 N. Y. 345, 351 ; Bissell v. Bissell, 55 Barb. 325; Comm. w. Stump, 53Penn. St. 132 ; O'Gara V. Eisenlohr, 38 N. Y. 296, 298 ; Hallett .;. Collins, 10 How. 174, 181 ; Patterson v. Gaines, 6 How. 5E»0. x^ But it has often been laid down in this country that a con- tract per verba de futuro is not sufficient, although followed by cohabitation. Che- ney V. Arnold, 15 N. Y, 345 ; Duncan v. Duncan, 10 Ohio, n. s. 181 ; see Holmes c. Holmes, 1 Abb. TJ. S. 525, 539. The question would seem to depend on the actual intent of the parties as a matter of fact, wliere solemnities are not re- quired. At least a promise must not only have been made but accepted, and the copula must be connected with the prom- ar' Floyd v. Calvert, 53 Miss. 37. And this though there may be forms of mar- riage fixed by statute, if the statute does not expressly declare common-law mar- [104] ise. Morrison v. Dobson, Cases decided in Court of Sess. 3d ser. viii. 347 ; Yelver- ton V. Longworth, 2 id. 49 ; [Port v. Port, 70 111. 484; Peck u. Peck, 12 R. L 485.] In England it is settled that to constitute a valid marriage by the common law, it must have been celebrated by a clergy- man in holy orders, and it is not enough that the bridegroom is himself one, and performs the ceremony. Beamish v. Beamish, 9 H. L. C. 274; reversing 8. c. 5 Irish C. L. 136; Du Moulin .-. Druitt, 13 Ir. Com. Law, 212 (the marriage of a British soldier on board ship on the high seas, with all the forms, but no clergy- man). Of course, when the ceremony is understood by all parties to be a jest, although performed by the proper officer, the marriage is void, and may be declared riages void. Meister v. Moore, QQ TJ. S. 76; Port u. Port, 70 111. 484. But see Commonwealth v. Munson, 127 Mass. 469, contra. LECT. XXTI.J OF THE EIGHTS OP PERSONS. ^87 is no recognitioii of any ecclesiastical authority in forming the connection, and it is considered entirely in the light of a civil contract. This is the doctrine of the common law, and also of the canon law, which governed marriages in England prior to the Marriage Act of 26 Geo. II. ; and the canon law is also the gen- eral law throughout Europe as to marriages, except where it has been altered by the local municipal law. ((2) The only doubt (d) Bunting v. Lepingwel, 4 Co. 29; s. c. Moore, 169; Jesson o. Collins, 6 Mod. 155 ; 2 Salk. 437, s. c. ; Dalrymple v. Dalrymple, 2 Hagg. Cons. 54, 64 ; Lautour V . Teesdale, 8 Taunt. 830 ; Fenton v. Reed, 4 Johns. 52 ; Londonderry v. Chester, 2 N. H. 268; Rose v. Clark, 8 Paige, 574; State v. Patterson, 2 Ired. (N. C.) 346; Swinburne on Espousals, sec. 4, cited by Sir Wm. Scott, in Lindo v. Belisario, 1 Hagg. Cons. 232, and see also Swinburne on Wills, part 1, c. 10, sec. 12, and Sir Wm. Scott's opinion in the above case ; and in Dalrymple v. Dalrymple, supra, to the point in the text, that by the canon law, prior to or in the absence of any civil regulations to the contrary, a private marriage, without solemnity, duly attested, and by mutual engagement or betrothment, was good and valid in law without confir- mation, and without the intervention of a priest ; and by the late statute of 6 & 7 Wm. IV. c. 85, sec. 20, marriages may be solemnized in places registered for the pur- pose, in the presence of some registrar and two witnesses, according to any forms and ceremonies at the pleasure of the parties. So the English Marriage Act of 1053 treated marriages as a civil contract, to be solemnized before a justice of the peace. It so by the court. McClurg v. Terry, 6 C. parties whose marriage was void for want E. Green (21 N. J. Eq.), 225. (6) Cohabitation and repute are evi- dence of marriage. [Betsinger v. Chap- man, 88 N. Y. 487. See especially Badger V. Badger, ib. 546 ; Dysart Peerage Case, 6 App. Cas. 489 ;] O'Gara v. Eisenlohr, 38 N. Y. 296. In the Breadalbane Case, L. R. 1 H. L. Sc. 182, it was held that cohabitation as husband and wife, with habit and repute, sufficiently proved the fact that the parties had consented to contract that relation inter se, although their connection was adulterous in the first instance, x'^ O'Gara v. Eisenlohr, 38 N. Y. 296, 300. See CaujoUe ergh u. Hardenbergh, 14 Cal. 654. But see Bishop a. Bisliop, 30 Penn. St. 412 ; Powell V. Powell, 29 Vt: 148. Absence for the statutory time is not prevented from being desertion by the single fact that the party has been imprisoned part of the time. Hews v. Hews, 7 Gray, 279 ; Astrope v. Astrope, 29 L. .J. n. s. (Matr. Cas.) 27; nor by the fact, that after desertion, and within the time, the hus- band became insane and could not re- turn, Douglass V. Douglass, .31 Iowa, 421. Keeping a separate bed-chamber in the same house, and refusing to have sexual intercourse for the statutory time, is not desertion. Southwick v. Southwick, 97 Mass. 327; Eshbach v. Eshbach, 23 Penn. St. 343; see Pritchards's TUg. De- sertion, n. 4. x^ Cruelty. — The rule now established is, that cruelty, to be a cause of divorce, must be such as to cause at least a reasonable apprehension of injury to the life, limb, or health of thelibellant,if the parties should live longer together. Tomkins v. Tom- kins, 1 Sw. & Tr. 168 ; Milford v. Milford, L. R. 1 P. & D. 295; Kelly v. Kelly, L. R. 2 P. & D. 31, 59; Chesnutt v. Chesnutt, 1 Spinks, Ad. & Ec. 196 ; s. c. 28 E. L. & Eq. 603 ; Paterson v. Paterson, 3 H. L. C. 308 ; Bailey v. Bailey, 97 Mass. 373 ; Odom o. Odom, 36 Ga. 286 ; Thomas v. Thomas, 5 C. E. Green, 97. x^ As to " gross mis- behavior and wickedness,'' see Stevens v. Stevens, 8 R. I. 557. x^ To constitute desertion, there must be a cessation of cohabitation by the vol- untary act of one party with the intent to put an end to the performance of the marital duties, and such cessation must be against the will of the complainant. Sergent v. Sergent, 33 N. J. Eq. 204; Hankinson v. Hankinson, ib. 66 ; Schanck V. Schanck, ib. 363 ; Johnson v. Johns6n, 35 N. J. Eq. 20 ; Latham v. Latham, 30 Gratt. 307 ; McGowen v. McGowen, 52 Tex. 657 ; Townsend o. Townsend, 3 L. R. P. & D. 129. But in Hooper v. Hooper, 34 N. J. Eq. 93, it was held that a deliberate and continual refusal by a wife to return to her husband's house, which she had left owing to his fault, was desertion. On the other hand, where the separation was partly the fault of each, it was held that refusal by the wife to allow the husband to return to her was not desertion on her part. Childs v. Childs, 49 Md. 509. Liv- ing separate under authority of a decree of court is not desertion. Weld v. Weld, 27 Minn. 330. x'^ M'Keeverw. M'Keever, 11 Ir. R. Eq. 26; Close «. Close, 25 N. J. Eq. 526; I.ath- am V. Latham, 30 Gratt. 307 ; Johns v. Johns, 57 Miss. 530 ; Beyer v. Beyer, 50 Wis. 254 ; Kennedy v. Kennedy, 73 N. Y. 369 ; Wheeler v. Wheeler, 53 Iowa, 511. Publicly accusing of unchastity has been held sufficient. Palmer o. Palmer, 45 Mich. 150; Graft o. Graft, 76 Ind. 136. So imparting venereal disease. Cook v. Cook, 32 N. J. Eq. 475. Adultery held not sufficient, in Miller V. Miller, 78 N. C. 102. So of utter denial of sexual intercourse. Cowles v. Cowles, 112 Mass. 298. [160] LECT. XXVIII. J OP THE RIGHTS OP PERSONS. * 129 LECTURE XXVIII. OP HUSBAND AND WIFE. The legal effects of marriage are generally deducible from the principle of the common law, by which the husband and wife are regarded as one person, and her legal existence and authority in a degree lost or suspended, during the continuance of the matri- monial union, (a) From this principle it follows, that at law no contracts can be made between the husband and wife, without the intervention of trustees ; for she is considered as being sub potes- tate viri, and incapable of contracting with him ; and except in special cases, within the 'cognizance of equity, the contracts, which subsisted between them prior to the marriage, are dis- solved. (6) The wife cannot convey lands to her husband, though she may release her dower to his grantee ; nor can the husband convey lands by deed directly to the wife without the intervention of a trustee, (c) The husband may devise lands, or (a) Co. I/itt. 112, a, 187, b ; Litt. sec. 168, 291 , 1 Bl. Coram. 441. [See Phillips V. Barney, 1 Q. B. D. 436.] The jus mariti, where it is not restrained by special con- tract, exists with equal force and extent in the Scotch law. The husband acquires the same power over the person and property of the wife, and she is subjected to similar disabilities. Erskine's Inst. b. 1, tit. 6, sec. 19, 22 ; Stair's Inst. b. 1, tit. 4, sec. 13, 16. {b) The disability of husband and wife to contract with each other is founded in the wisest policy, and is an essential muniment to the inriolability of the nuptial contract, and to the maintenance of tlie institution of marriage. The consequent dependence of the wife upon the husband, and the continued liability of the husband to support the wife, and the other incapacity of the parties, by their own mere will, to absolve each other from the reciprocal rights and duties which the law of their contract imposes upon them, furnishes powerful motives to the promotion of harmony and peaceful cohabitation in married life. Marshall, J., in Simpson v. Simpson, 4 Dana (Ky.), 142. (c) Co. Litt. 3, a ; Litt. § 677 ; Martin v. Martin, 1 Greenl. 394 ; Rowe v. Hamilton, 3 Greenl. 63 ; Stickney v. Borman, 2 Barr (Penn.), 67 ; Shepard v. Shepard, 7 Johns. Ch. 60. But though such a conveyance would be void at law, equity will uphold it in a clear and satisfactory case. Wallingsford v. Allen, 10 Peters, 583. See infra, 162. But a court of equity has no jurisdiction, even with the consent of the wife, to transfer VOL. II.- 11 [161] * 130 OP THE RIGHTS OF PERSONS. [PART IT. grant a legacy to his wife, for the instrument is to take effect after his death ; and by a conveyance to uses, he may create a trust in favor of his wife, (c?) and equity will decree perfoi'mance of a contract by the husband with his wife, for her benefit, (e) The general rule is, that the husband becomes entitled, upon the marriage, to all the goods and chattels of the wife, and to * 130 the rents and profits * of her lands, and he becomes liable to pay her debts and perform her contracts. According to the plan of these general disquisitions, I cannot undertake to enter minutely into the numerous distinctions and complex regulations which appertain to the relation of husband and wife. M,y purpose will be answered if I shall be able to col- lect and illustrate the leading principles only ; and that I may be able to do this clearly, and to the satisfaction of the student, I shall consider the subject in the following order : — 1. The right which the husband acquires by marriage in the property of the wife : 2. The duties which he assumes in the character of husband: 3. How far the wife is enabled by law to act during coverture, as &feme sole : 4. Her competency, in view of a court of equity, to deal with her property : 5. Other rights and disabilities incident to the marriage union.^ 1. The Kight -nrliich the Husband acquires by Marriage in the Prop- erty of the Wife. — (1.) To her Lands in Fee. -. — If the wife, at the time of marriage, be seised of an estate of inheritance in land, the husband, upon the marriage, becomes seised of the freehold jure uxoris, and he takes the rents and profits during their joint lives, (a) It is a freehold estate in the husband,^ since it must to her husband personal property settled in trust for her, and to he hers ahsolutely on surviving her husband. Richards v. Cliambers, 10 Ves. 580. (d) Co. Litt. 112, a. (c) Moore w. Ellis, Bunb. 205 ; Livingston w. Livingston, 2 Johns. Ch. 537 ; Shepard u. Shepard, 7 Johns. Ch. 57. (a) Co. Litt. 351, ». In Georgia, the rights of the husband upon marriage in the 1 The rights of married women have of unmarried women, except as to crimi- been very greatly increased by statute in nal liability, and dealings with their hus- most of the states. They are now very bands. See 149, n. 1. generally authorized to hold property, ^ Robertson v. Norris, 11 Q. B. 916 ; contract and sue in their own names. Junction R. R. v. Harris, 9 Ind. 184. See They are put more or less on the footing iv. 29, n. 1. [162] LBCT. XXTIII.] OF THE RIGHTS OP PERSONS. * 131 continue during their joint lives, and it may, by possibility, last during his life. It will be an estate in him for the life of the wife only, unless he be a tenant by the curtesy. It will be an estate in him for his own life if he dies before his wife, and in that event she takes the estate again in her own right. If the wife dies before the husband, without having had issue, her heirs immediately * succeed to the estate. If there has been a *131 child of the marriage born alive, the husband takes the es- tate absolutely for life, as tenant by the curtesy, and on his death 1 the estate goes to the wife, or her heirs ; and in all these cases, the emblements growing upon the land, at the termination of the husband's estate, go to him or his representative. During the continuance of the life estate of the husband, he sues in his own name for an injury to the profits of the land ; but for an injury to the inheritance, the wife must join in the suit, and if the husband dies before recovery, the right of action sur- vives to the wife, (a) If the husband himself commits waste, the coverture is a suspension of the common-law remedy of the wife against him. The husband has an interest in the freehold estate of his wife, which may be seized and sold on execution ; and if the assignee or creditor of the husband, who takes possession of the estate on a sale on execution of his freehold interest, commits waste, the wife has her action against him, in which the husband must join ; for though such assignee succeeds to the husband's right to the rents and profits, he cannot commit waste -with im- punity. (6) So, also, the heir of the wife may sue the husband for the waste, and no doubt the Court of Chancery would stay by injunction the husband's waste, on behalf of the wife herself. But it seems, that, from want of privity, the heir of the wife cannot bring an action of waste against the assignee of the hus- band, though it may be brought against the husband himself, for real estate of the wife are vastly enlarged. That estate passes to the husband ahso- lutely, the same as personal property ; and if the wife dies intestate, the husband is entitled to administer upon her estate, real and personal, and recover and enjoy the same without being subject to distribution. On the other hand, if the husband dies intestate without issue, the wife inherits his whole estate, real and personal, subject to his debts. Hotchkiss's Codification of the Statute Law of Georgia, 1845, p. 426. (a) Weller v. Baker, 2 Wils. 42.3, 424. It is there said to be difficult to reconcile the cases, as to the joinder of husband and wife, in actions relating to the land. [Thacher v. Phinney, 7 Allen, 146 ; Tallmadge i". Grannis, 20 Conn. 296.] (i) Babb v. Perley, 1 Greenl. 6 ; Mattocks v. Stearns, 9 Vt. 326. [163] * 132 OF THE RIGHTS OP PERSONS. [PAET IT. waste done by his assignee, and he shall recover the land of the assignee, (c) The subtle distinction in Walker's case:, {d} and which we have followed, was, that if the tenant by the curtesy assigns over his estate, the heir of the wife can sue him for * 132 waste done after the assignment ; but if the heir * grants over the reversion, the grantee cannot sue the husband, for the privity of the action is destroyed. He can only sue the assignee of the husband, for as between them there is a privity of estate. -^If an estate in land be given to the husband and wife, or a joint purchase be made by them during coverture, they are not prop- erly joint tenants, nor tenants in common, for they are but one person in law, and cannot take by moieties. They are both seised of the entirety, and neither can sell without the consent of the other, and the survivor takes the whole, (aj ^ This species of tenancy arises from the unity of husband and wife, and it applies to an estate in fee, for life, or for years. If the grant be made to husband and wife and B., or to the husband and wife and B. and C, the grantees are all joint tenants as between themselves, but the husband and wife are tenants by entireties, as between each other ; and as for all the purposes of ownership the husband and wife are but one person in law, they take only a moiety of the land in the one case, and only a third of it in the other. (6) If they are tenants by entireties of a term of years, the husband may alien the entirety so as to bind the wife, (c) The same (c) Bates v. Shraeder, 13 Johns. 260. (d) 3 Co. 22. (a)' Preston on Estates, i. 131. (b) Litt, sec. 291 ; Barber v. Harris, 15 Wend. 617 ; Johnson v. Hart, 6 Watts & Serg. 319. (c) Grute v. Locroft, Cro. Eliz. 287. When husband and wife hold the entirety, with the right of survivorship, he cannot aliea the entire estate ; but the husband may execute a mortgage of his interest, or he may make a lease in his own name, or join ' Wales c. Coffin, 13 Allen, 213; Thomas 46 Penn. St. 248; Wright t. Saddler, 20 V. Be Baum, 1 McCart. 37 ; Stuokey v. N. Y. 320. a;i Keefe, 26 Penn. St. 397 ; Bates a. Seely, ,a;i Marburg v. Cole, 49 Md. 402 ; Mc- by statutes regulating the rights of mar- Duff V. Beauchamp, 50 Miss. 531 ; Hall ried women. Cooper v. Cooper, 76 111. u. Stephens, 65 Mo. 670 ; Hulett v. Inlow, 57 ; Clark v. Clark, 56 N. H. 105 ; Zomt- 57 Ind. 412 ; In re Shaver, 31 Up. Can. lein v. Bram, 63 How. Pr. 240. Q. B. 603. So also in England. Edwards & Ham- But in some states this rule has been ilton's Law of Husband and Wife, 388, held to have been incidentally abolished 389 ; In re March, 24 Ch. D. 222. [164] LECT. XXTIII.J OF THE RIGHTS OP PERSONS. *133 words of conveyance which would make two other persons joint tenants, will make the husband and wife tenants of the entirety. This is a nice distinction laid down in the old books, and it continues to this day to be the law. (c?) ^ * The husband * 133 alone may grant or charge the wife's land during their joint lives, and if he be tenant by the curtesy during his own life. He cannot alien or incumber it, if it be a freehold estate, so as to prevent the wife, or her heirs, after his death, from enjoying it, discharged from his debts and engagements. But from the authorities, when closely examined, says Mr. Preston, (a) it seems the husband has the power to transfer the whole estate of his wife, and the estate will be in the alienee of the husband, subject to the right oi entry of the wife, or her heirs, and which entry is necessary to revest the estate after the husband discon- tinues it. She was driven at common law to her writ pf right, as her only remedy ; but Lord Coke says, (6) he found that, in the times of Bracton and Fleta, the writ of entry cui in vita was given to the wife, upon the alienation of her husband, and this with his wife. Jackson «. McConnell, 19 Wend. 175. In the State of Oliio, no joint tenancy exists, and ths doctrine of survivorship is unknown, even as to a devise to husband and wife, and they take as tenants in common, and not as tenants of tlie entirety. Sergeant v. Steinberger, 2 Ohio, 305 ; Wilson v. Fleming, 13 id. 68. (d) Litt. sec. 291 ; Co. Litt. 187, b, 188, a, 351 ; Bro. Abr. tit. Cui in vita, 8 ; 2 Bl. 1214 ; Doe v. Parratt, 5 T. R. 652 ; 16 Johns. 115 ; 5 Johns. Oh. 437 ; Barber v. Har- ris, 15 Wend. 615 ; Den v. Hardenbergh, 5 Halst. [N. J.] 42 ; 3 Rand. 179 ; 5 Mass. 523; 1 Dana (Ky.), 37, 243; Taul v. Campbell, 7 Yerg. 319; Den v. Whitemore, 2 Dev. & Bat. 537 ; Greenlaw v. Greenlaw, 13 Maine, 182 ; Weston, Cli. J., Dickinson V. Codwise, 1 Sandf. Ch. 214, 222. See infra, iv. 362. Mr. Preston (Abstracts of Title, ii. 41) says, that as the law is now understood, husband and wife may, by express wards, be made tenants in common, by a gift to them during coverture. The assistant vice-chancellor, in Dias v. Glover, 1 Hoff. Ch. 71, questions the solidity of Mj. Preston's opinion. [And see Stuckey v. Keefe, 26 Penn. St. 397.] The law in the text does not exist in Connecticut ; but the husband and wife are joint tenants in such case, and the husband may alone convey his interest. Whittlesey v. Fuller, 11 Conn. 337. (a) Essay on Abstracts of Title, i. 334, 435, 436. Sergeant Williams, in his note to Wotton ». Hele, 2 Saund. 180, n. 9, concludes, that as estates for life, being free- hold estates, and commencing by livery of seisin, could only be avoided by entry, leases for life by the husband were voidable only, but that leases for a term of years were absolutely void on the husband's death ; and this Chancellor Johnson considers the better doctrine ; and this, I think, is the correct conclusion. Brown v. Lindsay, 2HillCh. (S. C.) 544. (ft) 2 Inst. 343. 2 Ee Wylde, 2 De G., M. & G. 724 ; Gordon v. Whieldon,. 11 Beav. 170. [165j * 134 OP THE EIGHTS OP PERSONS. [PAET IV. was her only remedy in the age of Littleton, (e) That writ became obsolete after the remedial statute of 32 Hen. VIII. c. 28, which reserved to the wife her right of entry, notwithstanding her husband's alienation ; and the writ of entry lay even if she had joined with her husband in a conveyance by feoffment, or bar- gain and sale, for such conveyances were deemed the sole act of the husband, as the wife was not separately examined, (c?) * 134 (2.) To her Life Estate. — *If the wife, at the time of the marriage, hath an estate for her life, or for the life of another person, the husband becomes seised of such an estate in right of his wife, and is entitled to the profits during the mar- riage. On the death of the wife, the estate for her own life is gone, and the husband has no further interest in it. But if she have an estate for the life of another person who survives her, the husband becomes a special occupant of the land during the life of such other person. After the estate for life has ended, the land goes to the person entitled in reversion or remainder, and the husband, quasi husband, has no more concern with it. This estate the husband can only sell or charge to the extent of his interest in it, and his representatives take as emblements the crops growing at his death. (3.) To her Chattels Real. — The husband, upon marriage, becomes possessed also of the chattels real of the wife, as leases (c) Litt. sec. 594. The extent of the remedy under this ancient writ may be seen in Bro. Abr. tit. Cui in vita, and F. N. B. 193, h. t. (d) Co. Litt. 326, a. The statute of 32 Hen. VIII. was reenacted in New York, in 1787, ty act, 10th sess. c. 48. But it does not appear in the revision of 1830, and the action of ejectment was doubtless deemed commensurate with every right to the recovery of land. New York Revised Statutes, ii. 303. In Massachusetts, it is held that the statute of 32 Hen. VIII., protecting the wife's inheritance or freehold from the husband's act, is still in force in that state, "as a modification and amendment to the common law." Bruce v. Wood, 1 Met. 542. In New Jersey, by statute, it is declared that the husband can do no act or make any default to affect or work any prejudice to the wife's inheritance or freehold, and after his death she may lawfully enter and hold the same, notwithstanding. Elmer's Dig. 77. Tliis is the universal law on the subject. In Maryland, under the statute of 1786, the husband may elect, in right of his wife, to take her ancestor's lands at the valuation of commissioners, and pay or give bonds to the coheirs of the wife for their just proportion of the estate, and that election vests in him the fee as a purchaser, to the exclusion of the wife. Stevens v. Bichardson, 6 Harr. & Johns. 156. In MiUer v. Shackleford, 4 Dana (Ky.), 278, it was held that a woman, whose estate had been wrongfully aliened by her husband, might recover it in ejectment after his death, without notice to the tenant to quit, and no acquiescence in the tenant's holding, short of twenty years, would bar her. [166] LECT. XXTIII.j OP THE EIGHTS OP PERSONS. * 135 for years, and the law gives him power, without her, to sell, assign, mortgage, or otherwise dispose of the same as he pleases, by any net in his lifetime ; (a) except it be such an interest as the wife hath, by the provision or consent of her husband, by way of settle- ment. (6) 1 Such chattels real are also liable to be sold on execu- tion for his debts. If he makes no disposition of the same in his lifetime, he cannot devise the chattels real by will ; (c) and the wife, after his death, will take the same in her own right, without being executrix or administratrix to her husband. If he grants a rent charge out of the same, without altering the estate, the rent charge becomes void at his death. If he survives his wife, the law gives him her chattels real, absolutely, by survivor- ship ; for he was in possession of the chattel * real during * 135 the coverture, by a kind of joint tenancy with the wife, (a) (4.) To her Choses in Action.^ — As to debts due to the wife, at the time of her marriage or afterwards, by bond, note, or other- wise, and which are termed choses in action, they are not vested absolutely in the husband, but the husband has power to sue for and recover, or release or assign, the same ; and when recovered and reduced to possession, and not otherwise, it is evidence of a conversion of the same to his own use, and the money becomes, in most cases, absolutely his own. (6) The rule is the same if a legacy or distributive share accrues to the wife during cover- ture, (c) So, he has power to release and discharge the debts, and to change the securities, with the consent of the debtor, (c?) (a) Co. Litt. 46, b. (b) Sir Edward Turner's Case, 1 Vern. 7. (c) Co. Litt. 351, a. (a) Co. Litt. .351, b ; Butler's note, 304, to Co. Litt. lib. 3, 351, a ; 1 Eol. Abr. 345, pi. 40. (b) Little V. Marsh, 2 Ired. Eq. (N. C.) 18 ; 2 Leigh, 1109. The reduction of the wife's choses in action into possession by the husband is not in all cases conclusive, though it is prima facie evidence of the conversion of it, for there may be satisfactory proof that he took and held the money as her trustee, and for which he would be accountable. Estate of Hinds. 5 Whart. 138. (c) Garforth v. Bradley, 2 Ves. Sen. 675 ; Schuyler v. Hoyle, 5 Johns. Ch. 196 ; Eaviland v. Bloom, 6 id. 178; Carr v. Taylor, 10 Ves. 578; Wildman i,-. Wildman, 9 Ves. 174 ; Parsons v. Parsons, 9 N. H. -309. (d) The husband may release his wife's choses in action, even those in remainder or 1 Except, also, that the power of the session during the coverture. Duberley husband to dispose of the reversionary in- v. Day, 16 Beav. 33. terest of the wife, depends upon whether ^ See 138, n. 1. such interest could have vested in pos- rH,.rr-i flbTl * 135 OP THE EIGHTS OP PERSONS. [PAET JV. But if he dies before lie recovers the money or alters the security, or by some act reduces the chose in action into possession, the wife will be entitled to the debts in her own right, without administering on his estate, or holding the same as assets for his debts. («) If his wife dies, and he survives her before he has reduced the chose in action to possession, it does not strictly sur- vive to him ; but he is entitled to recover the same to his own use, by acting as her administrator. (/) By the statute of dis- tributions of 22 and 23 Charles II., and the 25th section of the statute of 29 Charles II. c. 3, in Explanation thereof, and which have in substance been reenacted in New York (^) and the other states of the Union, the husbands of femes covert, who die intes- tate, have a right to administer upon their personal estate, and to recover and enjoy the same. Under the statute, it is held, that the husband is entitled, for his own benefit, ywre mariti, to administer, and to take all her chattels real, things in action, and every other species of personal property, whether reduced to possession, or contingent, or recoverable only by suit. (K) But if expectancy, which may possibly fall in during the marriage. 1 Roper on Husband and Wifel 227, 237. (c) Kintzinger's Estate, 2 Ashmead, 455 ; Poindexter v. Blackburn, 1 Ired. Eq. (N. C.) 286; Snowhill ,7. Executor of S., 1 Green Ch. (N. J.) 30; Richards v. Rich- ards, 2 B. & Ad. 447 ; Gaters u. Madely, 6 M. & W. 423 ; Scarpellinl u. Atcheson, 7 Q. B. 864. It seems to be now a settled principle in the late English equity jurispru- dence, under the sanction of the highest judicial authority, as that of Eldon, Grant, Plumer, Leach, Lyndhurst, Cottenham, and Sugden, that nothing short of actual and positive reduction into possession by the husband will bar the wife's right by surriror- ship to the full enjoyment of her choses in action, and reyersionary and contingent Interests. See post, 138, u. b. It lias been suggested, by Mr. Sugden, that it would be a good amendment of the law to confer upon the husband the absolute power to dispose of all bis wife's chattel interests or personal estate, whether present or rever- sionary. But the same Lord Chancellor decided, with tlie assistance of the Master of the Rolls, in Box v. Jackson, 1 Drury, 42, in the chancery of Ireland, that the court had no power to take and hold the wife's consent as binding to an assignment of her reyersionary interest or chose in action. (/) Garforth u. Bradley, 2 Ves. 675 ; Lord Tenterden, in Richards c/. Richards, 2 B. & Ad. 447. ig) N. Y. Revised Statutes, ii. 75, sec. 29 ; ib. 98, sec. 79. (A) Whitaker v. Whitaker, 6 Johns. 112. The statute of 29 Chas. II. c. 3, § 25, left the effects of femes covert as at common law ; and the right of the husband, at common law, was not only to administer, but to enjoy exclusively the effects of his deceased wife. 2 Bl. Comm. 515, 516; Hoskins v. Miller, 2 Dev. (N. C.) 360. It seems to be the settled rule, that if the husband is reduced to the necessity of suing, either at law or in equity, in order to recover his deceased wife's choses in action, he must first administer on her estate, and sue in the capacity of administrator. [168] LECT. XXTIII.] OP THE EIGHTS OP PERSONS. * 136 the wife leaves choses in action not reduced to possession in the wife's life, the husband will be liable for her debts dum sola, to that extent ; for those choses in action will be assets in his hands, (i) * It is also settled, that if the husband, who * 136 has survived his wife, dies before he has recovered the choses in action, his representatives are entitled to that species of property ; and in New York, it would seem (though it would be contrary to the English rule), that the right of administration follows the right of the estate, and is to be granted to the next of kin of the husband ; and the representatives of the husband, who administer upon the assets of the wife remaining unadministered, are,liable for her debts to her creditors, in preference to the cred- itors of the husband, (a) So, if, after the husband has adminis- tered in part on his wife's estate, and dies, and administration de bonis non of the wife should be obtained by a third person, or by the next of kin of the wife, he would be deemed a mere trustee for the representatives of the husband. (J) It has been considerably discussed in the books, by what title the husband, surviving his wife, takes her choses in action. It has often been said that he takes by the statute of distribution as her next of kin. But, from the language of the English courts, it would seem to be more proper to say, that he takes under the statute of distribution as husband, with a right in that capacity to administer for his own benefit ; for, in the ordinary sense, neither the husband nor wife can be said to be next of kin to the other, (c) (i) Heard W.Stamford, ? P. Wms. 409, 411; s. c. Cases Temp. Talb. 173; Don- nington v. Mitchell, 1 Green Ch. (N. J.) 243. He is only liable as administrator on the estate of the \*ife for her debts, to the extent of the assets received by him. N. Y. Revised Statutes, ii. 75. (a) N. T. Revised Statutes, iL 75, sec. 29. (i) Butler's note, 304, to lib. 3, Co. Litt. ; Elliot v. Collier, 3 Atk. 526 ; Spencer, J., ^ Johns. 118 ; 1 Hagg. Eccl. 341 ; Betts v. Kimpton, 2 B, & Ad. 273. See also Hunter V. Hallett, 1 Edw. Ch. 388, and inf-a, 411, 412. In Ohio, the law is different. The husband is not next of kin to his wife for inheritance. He may administer on the estate of his deceased wife, but he must account not only to the creditors of the wife, but to the heirs ; and therefore the husband cannot, as survivor, in his own right, pur- sue her choses in action either in law or equity. Curry v. Eulkinson, 14 Ohio, 100. So in Connecticut, the husband, on the death of his wife, does not become entitled as heir or survivor to her personal property. He does not take as administrator, but the property goes to her administrator for distribution. Baldwin v. Carter, 17 Conn. 201. (c) 3 Ves. 246, 247 ; 14 id. 381, 382 ; 15 id. 537 ; 18 id. 49, 55, 56. [169 J ■ *137 OP THE RIGHTS OP PERSONS. [PAET IV. What will amount to a change of property in action belonging to the wife, so as to prevent it from going back to the wife in case she survives her husband, was discussed in the case of Schuyler V. Moyle. (cT) It was there shown that the husband may assign, for a valuable consideration, his wife's choses in action to * 137 a creditor, free from the wife's contingent * right of sur- vivorship. . The doctrine that the husband may assign the wife's choses in action for a valuable consideration, and thereby bar her of her right of survivorship in the debt, but subject, nev- ertheless, to the wife's equity, has Deen frequently declared, and is understood to be the rule best sustained by authority. Such an appropriation of the pi'operty is the exercise of an act of ownership for a valuable purpose, and an actual appropriation of the chattel which the husband had a right to make. («) -^ But a voluntary assignment by the husband of the wife's choses in action without consideration will not bind her if she survives him. (6) The rule is, that if the husband appoints an attorney to receive the money, and he receives it, or if 'he mortgages the wife's choses in action,^ or assigns them without reservation, for a valuable con- sideration, or if he recovers her debt by a suit in his own name, or if he releases the debt, by taking a new security in his own name ; in all these cases, upon his death, the right of survivorship in the wife to the property ceases. And if the husband obtains a judg- ment or decree, as to money to which he was entitled in right of (d) 5 Johns. Ch. 196. (a) Carteret v. Paschal, 3 P. Wms. 197 ; Bates v. Dandy, 2 Atk. 206 ; s. c. 1 Rus- sell, 33, note ; Jewson v. Moulson, 2 Atk. 417 ; Earl of Salisbury v. Newton, 1 Eden, 370 ; Sir William Grant, in Mitford v. Mitford, 9 Ves. 87 ; Johnson v. Johnson, 1 Jac. & W. 472 ; Schuyler i-. Hoyle, above cited ; Kenney v. Udall, 5 Johns. Ch. 464 ; s. c. 3 Cowen, 590 ; Lowry v. Houston, 3 How. 394 ; Siter and another, Guardians of Jordan, 4 Rawle, 468. In this last case the assignment was sustained, not strictly as an assignment for a valuable consideration enuring to the husband, but on the very meritorious ground that the assignment of the wife's chose in action to trus- tees was for the benefit of her and her child. , It was a reasonable anticipation by settlement of a provision for the wife's equity, and valid in equity, though the fund ■was not reduced to possession before the execution of the assignment. But see the note (a), infra, 138, where the power of the husband over the wife's rights in action is more limited. (6) Burnett v. Kinnaston, 2 Vern. 401 ; Sir William Grant, in Mitford v. Mitford, 9 Ves. 87 ; Sir Thomas Plumer, in Johnson a. Johnson, 1 Jac. & W. 472 ; Jewson i;. Moulson, 2 Atk. 420 ; Saddington v. Kinsman^ 1 Bro. C. C. 44 ; Hartman v. Dowdel, 1 Rawle, 279. 1 See 138, n. 1. [170] LZICT. XXVIII.] OF THE RIGHTS OP PERSONS. * 138 his wife, and the suit was in his own name alone, the property vests in him by the recovery, and is so changed as to take away the light of survivorship in the wife. If the suit was in their joint names, and he died * before he had reduced the * 138 property to possession, the wife, as survivor, would take the benefit of recovery, (a) It is settled, that in a suit in chancery by the husband to recover a legacy or distributive share due to the wife, she must be made a pai-ty with him, and then the court will require the husband to make a suitable provision for the wife out of the property. The Court of Chancery has always discovered an anxiety to provide for the wife out of her property in action which the husband may seek to recover. If he takes possession in the character of trustee, and not of husband, it is not such a possession as will bar the right of the wife to the property if she survives him. The property must come under the actual control and possession of the husband, quasi husband, or the wife will take, as survivor, instead of the personal representatives of the husband. A general assignment in bankruptcy, or luider insolvent laws, pasvses the wife's property and her choses in action, but subject to her right of survivorship ; and if the husband dies before the assignees have reduced the property to possession, it will survive to the wife, for the assignees possess the same rights as the hus- band before the bankruptcy, and none other. (6) It has been accordingly held that a legacy in such stock was not reduced to possession by such an assignment,'so as to bar the wife's right (a) Billiard v. Hambridge, Aleyn, 36 ; Lord Hardwicke, in Garforth u. Bradley, 2 Ves. 675; M'Dowl o. Charles, 6 Johns. Ch. 132; Searing v. Searing, 9 Paige, 283. (b) Mitford v. Mitford, 9 Ves. 87; Jewson v. Moulson, 2 Atk. 420; Gayner v. Wilkinson, Dickens, 491 ; Saddington v. Kinsman, 1 Bro. C. C. 44 ; Van Epps v. Van Deusen, 4 Paige, 64 ; Pierce v. Thornely, 2 Sim. 67 ; Outcalt v. Van Winkle, 1 Green, Ch. (N.J.) 516. It is well settled that, at law, an assignment in bankruptcy will, of itself, bar the wife's contingent right of survivorship in a chose in action, and will bar a suit at law on a bond entered into by the wife dum sola. Miles v. Williams, 1 P. Wms.'249, in KB.; Bosvil „. Brander, 1 P. Wms. 458, in K. B. ; Michell ^. Hughes, 6 Bing. 689. But in the late case of Mallory v. Vanderheyden, before Vice- Chancellor Parker, of the 3d circuit. New York Legal Observer, for January, 1846 (No. 4, p. 4), it was held, that though a discharge of the husband in bankruptcy would bar a suit at law against husband and wife for the debt of the wife dum sola, yet, in equity, satisfaction could be had for the debt out of her separate estate, where there had been an appointment by her charging her separate estate with the debt. Vide infra, 146, [and n. 1.] [171 J 138 OP THE EIGHTS OF PERSONS. [PAFT IV. of survivorship, and the wife took it by survivorship as against the assignees, (c) ^ (c) Pierce v. Thornely, 2 Sim. 167, 180. It is difficult to reconcile the more ancient ■with the recent English equity cases, on the subject of the effect to be given to the husband's assignment of the wife's choses in action. Thus, in the cases of Chandos «. Talbot, 2 P. Wms. 601 ; Bates v. Dandy, 2 Atk. 207, and Hawkyns v. Obyn, ib. 549, the language is, that a contingent interest, or the possibility of a term, or a specific possibility of the wife, may be assigned by the husband for a valuable consideration, 60 as to bmd his wife. But in Hornsby v. Lee, 2 Mad. 16; Purdew v. Jackson, 1 Russell, 70, and Honner v. Morton, 3 id. 65, it is held that the husband's assignment of the wife's reversionary interest will not bar her right as his survivor, provided the 1 Wife's Choses in Action. — (a) What are? — In a case where money had been received by the defendant for a married woman, the question, what were a wife's choses in action, as distinguished from her choses in possession, came up as determin- ing whetiier her representative or her husband's was the proper plaintiif . The defendant had written the wife that he held the money at her disposal. The hus- band never interfered in the matter, and died after his wife. A suit for money had and received to her use was held well brought by her administratrix. Fleet u. Perrins, L. R. 3 Q. B. 536; L. R. 4 Q. B. 500 ; 9 B. & S. 575. See Goods of Harding, L. R. 2 P. & D. 394, and generally Harper V. Archer, 28 Miss. 212. [United States Bonds were held choses in action in Brown V. Bokee, 53 Md. 155.] There is no dis- tinction between choses in action that accrue to the wife before, and those that accrue during coverture, as to her right of survivorship. Bond v. Conway, 11 Md. 512; Lenderman v. Lenderman, 1 Hous- ton, 523; Wilder v. Aldrich, 2 R. I. 518 (a note made payable to husband and x^ It is said that the acts relied on as a reduction to possession must be such as to give the husband, at least for a moment of time, absolute dominion over the prop- erty. Nicholson u. Drury Buildings, &c. Co., 7 Ch. D. 48, For acts which have been held sufficient, see In re Barber, 11 Ch. D. 442 ; Rice .^. McReynolds, 8 Lea, 36. For acts which liave been held insuf- [172] wife) ; Hayward u. Hayward, 20 Pick. 517. (6) Assignment by Husband. — In a case where a wife was absolutely entitled to a share of a fund in court, and joined her husband in a mortgage of her interest, it was lield to be settled law that the security was void against her right by survivor- ship, unless something had been done by the husband or his incumbrancer to re- duce the fund into possession (which was not tlie fact). Prole v. Soady, L. R. 3 Ch. 220 ; see Tidd „. Lister, 10 Hare, 140 ; 3 De G., M. & G. 857 ; Life Association of Scotland v. Siddal, 3 De G., F. & J. 271. So in America. George v. Goldsby, 23 Ala. 326 ; Arrington v. Yarbrough, 1 Jones, Eq. 72; State v. Robertson, 5 Harringt. 201 ; Needles v. Needles, 7 Ohio St. 432 ; Bugg V. Franklin, 4 Sneed, 129 ; Sale v. Saunders, 24 Miss. 24 ; Lynn a. Bradley, 1 Met. (Ky.) 232. Contra, Tritt v. Col- well, 31 Penn. St. 228 ; Tuttle v. Fowler, 22 Conn. 58 ; Hill v. Townsend, 24 Texas, 575. Seel46, n. La:' (c) Wife's Equity. — See, generally, Sturgis V. Champneys, 5 My. & Cr. 97. ficient, see Parker o. Lechmere, 12 Ch. D. 256; Brown v. Bokee, 53 Md. 155; Grebill's App., 87 Pa. St. 105 , Hooper v. Howell, 50 Ga. 165 ; Cox v. Scott, 9 Baxt. 305 ; ■Williams v. Sloan, 75 Va. 137. The acts must be done with the intent to assume dominion. Moyer's App., 77 Pa, St. 482. LECT. XXVIII.J OP THE EIGHTS OF PERSONS. 139 ' * The wife's equity to a reasonable provision out of her property for the support of herself and her children makes 139 interest continues reversionary to his deatli. So, Sir William Grant, in Mitford v. Mitford, 9 Ves. 87, doubted the soundness of the rule, that the husband's assignment for a valuable consideration passed the wife's chose in action, freed from her contin- gent right of survivorship, because, in that case, the purchaser would take a greater right than the husband had. He, admitted, however, that a distinction was constantly taken between assignments in bankruptcy, or by operation of law, and a particular assignee for a specific consideration. And in Hornsby v. Lee, Sir Th. Plumer con- sidered that a particular assignee was not better off in this respect than a general assignee in bankruptcy. Afterwards, in Purdew v. Jackson, 1 Russell, 70, the subject was discussed and reargued with great ability ; and Sir Th. Plumer, in an elaborate If a court of equity has jurisdiction to raise and equitably dispose of a fund, it will not allow its power to be defeated through the agency of another court, where the fund may also be recovered. Duncombe v. Greenacre, 2 De G., F. & J. 509, 517 ; 28 Beav. 472. As the wife's equity arises out of the husband's legal riglit to present possession, it does not attach to the wife's reversionary interest in stock, Osborn v. Morgan, 9 Hare, 432 ; 8 E. L. & Eq. 192 ; nor, it is said, to the wife's life interest, as against her Imsband's assignee for value, Re Duffy's Trust, 28 Beav. 386; Tidd v. Lister, 3 De G., M. & G. 857, 868. See In re Carr's Trusts, L. R. 12 Eq. 609 ; [Williams o. Sloan, 75 Va. 137.] But, of course, it does as against such an assignee of her absolute equitable interest. Scott v. Spashett, 3 MacN. & G. 599. Although it is said that this equity is not based on the idea of property in the wife (Osborn V. Morgan, supra), it is one personal to her, which she alone can enforce. Her death before a certain stage of proceed- ings, De la Garde v. Lerapriere, 6 Beav. 344 ; or waiver, Seton on Decrees, 3d ed. 669 (Femes Covert) ; Baldwin v. Baldwin, 5 De G. & Sm. 319 ; Ward v. Amory, 1 Curtis, 419 ; [Clark v. Smith, 13 S. C. 585;] if she be of age, Abraham v. Newcome, 12 Sim. 566 ; [Shipway v. Ball, 16 Ch. D. 376;] will defeat the interest of her children, Barrow v, Barrow, 4 Kay & J. 409, 424. A wife's misconduct may bar her equity, but even her adultery may not have that effect. In re Lewin's Trust, 20 Beav. 378, and cases cited. She may preclude herself by her fraud from claim- ing it against purchasers, In re Lush's Trusts, L. R. 4 Ch. 591 ; see 241, n. 1 ; and she has no equity until her debts con- tracted before marriage have been pro- vided for, Barnard u. Ford, L. R. 4 Ch. 247. In the absence of special circum- stances, the English courts direct one half of the fund to be settled on the wife and her children, with an ultimate limitation, in default of issue, to the husband, or, in case of his bankruptcy, to his assignee. Spirett V. Willows, L. R. 1 Ch. 520 ; L. R. 4 Ch. 407. In Suggitt's Trusts, L. R. 3 Ch. 215, the ultimate limitation was to the wife if she survived her husband, and, if not, to him. It was also said that the court exercises a wide discretion as to tlie amount with reference to the individual case. See Barrow v. Barrow, 24 Vt. 375. Croxton v. May, L. R. 9 Eq. 404, ap- proves Spirett V. Willows, x^ x2 The rule applies to property in which the wife has only a life interest, Taunton u. Morris, 11 Ch. D. 779 ; but not to property held in entireties, In re Bryan, 14 Ch. D. 516 ; Ward v. Ward, ib. 506. The amount to be allowed is a mat- ter of judicial discretion. Taunton v. Morris, supra, [1731 * 139 OF THE RIGHTS OP PERSONS. [PART IV. a distinguished figure in the modern ehanceiy eases, which relate to the claims of the husband upon the property of his wife in action. If the husband wants the aid of chancery to enable him to get possession of his wife's property, or if her fortune be within the reach of the court, he must do what is equitable, by making a reasonable provision out of it for the maintenance of her and her children. Whether the suit for the wife's debt, legacj^ or opinion, declared liis adherence to his former opinion, and carried his doctrine out broadly to the whole extent of it, by holdirfg that all assignments made by the hus- band of the wife's outstanding personal chattels, not then reduced to possession, whether the assignment be in bankruptcy, or under an insolvent act, or to trustees for payment of debts, or to a purchaser for a valuable consideration, pass only the interest which the husband had, subject to the wife's legal right of survivorship ; and the husband could not possibly make an assignment of the reversionary interest of his wife, so as to bar her as survivor, provided the interest remained reversionary. Sir William Grant, in Wright v. Morley, 11 Ves. 12, thought there was great weight in the proposition of Lord Alvanley, that no assignment by the husband, even for a valuable consideration, could convey more than the right he had to reduce the wife's outstanding interest into possession, subject to " the wife's equity ; " and that if the husband died before that fact had occurred, the wife's right as survivor would bar the , assignee. In Ellison v. El win, 13 Sim. 309, the doctrine in the case of Purdew v. Jack- son was reaflSrmed by the vice-chancellor. Again, in Honner v. Morton, B Russell, 65, Ijord Chancellor Lyndhurst gave a decided support to the doctrines of the successive masters of the rolls. Lord Alvanley, Sir William Grant, and Sir Th. Plumer, so far as the reversionary interest of the wife was in question ; but he took a distinction between the case in which the husband had an immediate power at the time of the assignment, of reducing the chose in action into possession, and where he had not. In tlie first case, the assignment ought, in equity, to be regarded as the actual reduction of the property into possession, and a consequent transfer of it, for he had the power to do it, and the assignment amounted to an agreement to do it. These latter cases were reviewed in Siter and another, guardians of Jordan, 4 Eawle, 468, by Ch. J. Gibson, with learning and ability, and the reasoning of ■ Sir Thomas Plumer and of Lord Lyndhurst powerfully combated. Afterwards, in Shuman v. Reigart, 7 Watts & Serg. 169, the court declared their adherence to the doctrine in Siter's case. The doctrine of the English cases, that the efficiency of the assignment depends on the previous reduction of the chose in action to possession, is declared not to be sound, inasmuch as the husband jure mariti has dominion over the property, as well as the power to reduce it to possession, and his fair bona fide transfer of it, for a valuable consideration, passes that whole dominion, capacity, and title. The husband, by marriage, succeeds to the wife's power of disposal; and the distinc- tion between vested and contingent, or reversionary interests of the wife, in respect to the marital dominion and power of the transfer of it, is held to be without founda- tion. The critical review in this last case of the English cases was intended only to show the weak grounds on which the new theory rested ; and the point really decided in Pennsylvania, and the authority of the case, extend only to prove that the assign- ment of a wife's chose in action to trustees, for the benefit of the wife and children, and to place it beyond the power of waste by the husband, was meritorious and valid in equity. [174] LECT. XXVm.J OF THE RIGHTS OF PERSONS. * 140 portion be by the husband or by his assignees, the result is the same, and a proper settlement on the wife must first be made of a proportion of the property, (a) The provision is to be propor- tioned, not merely to that part of the equitable portion of the wife's estate which the husband seeks, but to the whole of her personal fortune, including what the husband had previously received. And perhaps chancery ought, on just principles, to restrain the husband from availing himself of any means, either at law or equity, of possessing himself of the wife's personal property in action, unless he would make a competent provision for her. The English rule in equity is, that where there is a suit in the ecclesiastical courts for subtraction of a legacy, and there is a married woman to be protected, or a trust to be executed, the Court of Chancery will restrain the suit by injunction. (5) Chancery will restrain the husband from proceeding in the ecclesiastical courts, for the recovery of the wife's legacy, until * a provision is made for her ; (a) and, upon that * 140 doctrine, a suit at law for a legacy or distributive share ought equally to be restrained, for such rights in action are of an equitable nature, and, properly, of equitable cognizance. The principle is, that chancery will lay hold of the property of the wife, as far as it may be in its power, for the purpose of providing (a) Howard a. Moffatt, 2 Johns. Ch. 206; 1 Eden, 67, 370, 371 ; 2 Atk. 420, 421, 422 ; Sleech v. Thorington, 2 Ves. Sen. 562 ; 4 Bro. C. C. 139 ; 2 Cox's Cases, 422 ; 11 Ves. 17, 20, 21 ; 1 Mad. 362 ; Clancy's Essay, passim ; Duvall v. Farmer's Bank of Maryland, 4 Gill & J. 282 ; Whitesides v. Dorris, 7 Dana, 106 ; Perryclear v. .Jacobs, Hill Cli. (S. C.) 509 ; Like v. Beresford, 3 Ves. 506. In this last case the assignment of the wife's interest in bank stock to creditors, in trust to pay debts, was held to be subject to the wife's equity, on a bill to enforce the assignment. (6) Anon., 1 Atk. 491 ; Grignion v. Grignion, 1 Hagg. Eccl. 535. (a) 2 Atk. 419. Chancery will interpose on a bill filed by or on behalf of the wife, and restrain the husband, or his assignees, from possessing themselves of the property at law, until a suitable provision be allowed for her support. Van Epps u. Van Deusen, 4 Paige, 64. It has at last, in New York, become a settled rule of the courts of equity that they will interfere and restrain a husband from recovering at law his wife's property, until he makes a provision for her. But this will not be the case if the wife lives apart from her husband without cause, or has sufficient provision from other sources. Fry v. Fry, 7 Paige, 462 ; Martin v. Martin, 1 Hoff. Ch. 462. But equity will not, at the suit of the wife, compel a settlement out of a chose in action bequeathed to her for life, but not expressed to be for her sole and separate use, against a particular assignee for a valuable consideration. The contract of the husband is excluded only by words, showing clearly that the gift was intended to be for her separate use, or in the existence of a case in which he omits duly to provide for her. Elliott V. Cordell, 5 Mad. 149; Stanton v. Hall, 2 Buss. & M. 175; Tyler v. Lake, lb. laa [175] * 141 OP THE EIGHTS OP PERSONS. [PART IT. a maintenance for her when she is abandoned by her husband ; and in Dumond v. Magee, (5) where the husband had abandoned his wife for many years, and married another woman, he was held to have forfeited all just claim to his wife's distributive share of personal estate inherited by her, and the same was appropriated, by decree, to her separate use.^ This subject was considered, and the principal authorities reviewed, in the case of Kenney v. Udall. (e) It was there held that the wife's equity attached upon her personal property when- ever it was subject to the jurisdiction of the court, and was the object of a suit, in any hands to which it might come, or in what- ever manner it might have been transferred. It makes no differ- ence whether the application to the court for the property be by the husband, or his representatives, or assignees, or by the wife, or her trustee, seeking a provision out of the property. This equity is equally binding, whether the transfer of the property be by operation of law, under a commission of bankruptcy, or by act of the partj' to general assignees, or to an individual, or whether the particular transfer was voluntary, or made upon a good and valuable consideration, or in payment of a just debt (^oT). The court may also, in its discretion, give the whole, or part only, of the property to the wife, according to the circumstances of the ease. So, again, in Haviland v. Bloom, (e) the same * 141 subject * came under consideration ; and the rule in equity was considered as settled, that the wife's equity to a suitable provision for the maintenance of herself and her children, out of her separate estate, lying in action, was a valid right, and extended not only to property which she owned dum sola, but to property descended or devised to her during coverture. A new equity arises to the wife upon property newly acquired, and attaches upon it equally as upon that which she brought with her upon marriage, (a) (6) 4 Johns. Ch. 318. (c) 5 Johns. Ch. 464 ; 3 Cowen, 590, s. o. ; Durr v. Bowyer, 2 M'Cord Ch. 368 ; Duvall V. Farmers' Bank of Maryland, 4 Gill & J. 282, s. p. (d) Earl of Salisbury v. Newton, 1 Eden, 370 ; Bosvil v. Brander, 1 P. Wms. 458 ; Ex parte Thompson, 1 Deacon, 90 ; Ex parte King, lb. 143. (e) 6 Johns. Ch. 178. (a) In the case Ex parte Beresford, 1 Desaus. 263, the court, after a full discuasion, ordered a new settlement in favor of the wife on a new accession of fortune. 1 See 188, n. 1. [176] LECT. XXVIII.] OP THE RIGHTS OP PERSONS. * 142 The wife's equity does not, according to the adjudged cases, attach, except upon that part of her personal property in action which the husband cannot acquire without the assistance of a court of equity. The rule in equity does not controvert the legal title of the husband to his wife's personal fortune ; and if he once acquired possession of that property jure mariti, though it should have been of an equitable nature, chancery will leave him in undisturbed possession of it. The claim attaches on that part of the wife's personal fortune for which the husband seeks the aid of a court of equitj'^, or where he makes an assignment of her equitable interests ; or the wife seek6 relief in chancery against her husband and his assignees, in regard to her legal or equitable rights which they are pursuing. (6) If the husband can acquire possession without a suit at law, or in equity, or by a suit at law without the aid of chancery (except, perhaps, as to legacies, and portions by will or inheritance, as has been already suggested), the husband will not be disturbed in the exercise of that right, (c) ^ But it is unnecessary to pursue this subject more minutely ; and it is a vain attempt, says Mr. Justice Story, (d) to ascertain, by general reasoning, the nature or extent of the doctrine, for it stands upon the practice of the court. Tlie cases in chancery, to which I have referred, have incorporated into the equity juris- prudence of New York all the leading provisions and principles of the English courts of equity on this head ; and though such a protection to the wife cannot be afforded in Pennsylvania, where there is no court of * chancery, (a) nor in New * 142 Hampshire, where equity powers, to a specific extent only, are conferred by statute upon the superior court of common-law jurisdiction, (5) yet I presume it exists in most of the other states where courts are established with distinct equity powers, (b) Walworth, Ch., in Van Epps v. Van Deusen, 4 Paige, 64 ; Fry v. Fry, 7 id.- 462 ; Martin v. Martin, 1 HofE. Ch. 462 ; 2 Atk. 419 ; 2 Story Eq. Jur. 632 ; Clancy's Treatise, 468. [r] Howard v. MofEatt, 2 Johns. Ch. 206 ; Thomas v. Sheppard, 2 M'Cord, Ch. 36 ; In the matter of Anne Walker, 1 Lloyd & Goold, 159, Cases temp. Plunket. (d) 2 Story, Eq, Jur, 635, 636. (a) Yohe v. Barnet, 1 Binney, 358. The want of such a power in the Pennsyl- vania courts is deeply regretted by a rery intelligent judge. In the matter of Miller, 1 Ashmead, 323. But the Orphans' Court has, by statute, a limited jurisdiction over the wife's equity. (b) Parsons v. Parsons, 9 N. H. 309. 1 Wiles !,•. Wiles, 3 Md, 1 ; see 340, n, 1. VOL. II. — 12 [ 177 1 * 142 OF THE EIGHTS OP PERSONS. [PAET lY. - according to the English system, or with legal and equitable powers united, according to the more generally prevailing prac- tice in the United States. It exists in Maryland, and Tennessee ; and in the latter state protection is even afforded in their courts of law. (c) In North Carolina, if the aid of a court of equity be required by the husband to enable him to take possession of his wife's property, he must make reasonable provision for her ; and the rule is the same when his legal representatives or assignees claim it. But their decisions go no further, and the wife cannot, by a suit in equity, stop him, though he be insolvent, from taking possession, unless her claim be founded upon a mar- riage settlement. (cZ) The Superior Court of New Hampshire intimates that it may, perhaps, be authorized to apply the prin- ciple of sustaining the wife's equity, when the husband or his assignee aslts the aid of the court to obtain possession of the distributive share of his wife, (e) There is a difference as to choses in action belonging to the wife, whether the husband sues in his own name exclusively, or jointly with his wife. The principle of the distinction is, that if he brings the action in his own name alone (as it is said he may for a debt due to the wife upon bond), (/) it is a disagreement to the wife's interest, and implies it to be his intention that it should not survive her. But if he brings the action in their joint names, the judgment is, that they shall both recover, and the debt sur- vives to the wife. The judgment does not alter the property, or (c) M'Elhatten v. Howell, 4 Haywood, 19 ; Duvall v. Farmers' Bank of Maryland, 4 Gill & J. 282. In Tennessee, It has been adjudged that the wife's equity will be enforced : (1.) When the husband or his assignee is asking the aid of a court of equity to reduce her property into possession. (2.) At the suit of the wife or of her trustee, praying for the provision. (3.) When the trustee designs or is willing to pay or deliver over the property to the husband or his assignee without suit. In that xase, all of them will be enjoined, at the suit of the wife, from changing the possession until provision be made. But if the husband or his assignee has already reduced the property into possession, a court of equity does not interfere. Dearin v. Fitzpatrick, Meigs, 551. These are the settled principles on the subject in the English equity system. (cl) Bryan v. Bryan, 1 Dev. Eq. 47. (e) See Parsons v. Parsons, 9 N. H. 309-336, where Ch. J. Parker has examined the history and doctrine of the wife's equity with accurate and elaborate learning. {/) Lord Chancellor, in Oglander v. Baston, 1 Vern. 396 ; Howell v. Maine, 3 Lev. 403. But Mr. Preston, in his Essay on Abstracts of Title, i. 348, condemns the doctrine in this case in Levinz, and denies that the husband can sue alone on a bond given to the wife alone. [178] LECT. XXVm.J OP THE EIGHTS OF PERSONS. * 143 show it to be his intention that it should be altered. It is also the rule of equity, that if before marriage the husband makes a settlement on the wife, in consideration of her fortune, he is considered in the light of a purchaser of her fortune, and his representatives will be entitled, on his dying in his wife's lifetime, * to the whole of her things in action, though not * 143 reduced to possession in his lifetime, and though there be no special agreement for that purpose. If the settlement be in consideration of a particular part only of her fortune, the right of survivorship in the wife will exist only as to the part of her property not comprised in the settlement, and not reduced to possession by the husband, (a) The settlement must state, or import, that it was in consideration of the wife's fortune, and it must appear to be adequate to the purchase of her fortune, before it will bar her right of survivorship. (A) (5.) To her Personal Property in Possession. — As to personal property of the wife, which she had in possession at the time of the marriage in her own right, and not en autre droit, such as money, goods, and chattels, and movables, they vest immediately and absolutely in the husband, (c) and he can dispose of them as he pleases, and on his death they go to his representatives, as ■being entirely his property. (. some discretion to reliCTe against such 277 ; In re Clarke's Trusts, 21 Ch. D. 748. clauses. See Hodges v. Hodges, 20 Ch. D. It was intimated in In re Ridley, 11 749. [214] LECT. XXVIII.] OF THE EIGHTS OP PERSONS. * 170 (4.) Power to appoint by Will. — A wife cannot devise her lands by will, for she is excepted out of the statute of wills ; nor that in cases of property in trust for a married woman, to be paid into her own Iiands, upon lier own receipts, the wife might still dispose of that interest, and her assignee would take it. Hulme v. Tenant, 1 Bro. C. C. 16; Pybus v. Smith, 3 id. 340 ; I Ves. Jr. 189, s. 0. But in Miss Watson's case, Lord Thurlow altered his opinion, and held that a proTiso in a settlement that the wife should not dispose of her interest by any mode of anticipation would restrain her ; and Lord Alvanley, in Sockett o. Wray, 4 Bro. C. C. 483, held it to be a valid clause ; and so it has been since considered. Lord Eldon, in Brandon v. Eobinson, 18 Ves. 434, and in Jackson u. Hobhouse, 2 Meriv. 487. Vice-Ch. Shadwell said that, when he was in the habit of drawing conveyances, the proviso that he inserted against the power of anticipation was, that the receipts of the lady under her own hand, to be given from time to time for accruing rents or dividends, should be, and that no other receipt should be, sufficient discharges to the trustee. Brown v. Bamford, 11 Sim. 127. This case was reversed on appeal, by Lord Lyndhurst, on the ground that a general limitation in default of appointment did not enable the wife to anticijiate, and it did not depend on the form of the receipt clause. Now, again, such a clause against anticipation, inserted in a will in favor of an unmarried female, and without any connection with coverture, is held to be not valid. See Woodmeston c. Walker, 2 Russ. & My. 197 ; Jones v. Salter, ib. 208 ; Brown v. Pocock, ib. 210 ; Newton v. Reid, 4 Sim. 141 ; and see supra, 165, note a. The Supreme Court of North Carolina, sitting in equity, has followed the spirit of these latter decisions, and held that though peal and personal property be conveyed in trust to apply the proceeds to A. for life, with a clause against a sale or anticipation, but without any disposition over in the case of such sale or anticipation, yet if the cestui que trust be a male or single, the restraint on his alienation or assignment was inoperative and void. Dick v. Pitchford, 1 Dev. & Bat. Eq. 480. The disposition over would seem to be material in the construction of the instrument. Lord Eldon, in Brandon v. Eobinson, 18 Ves. 429, observed that property might be limited to a man until he became a bankrupt, and then over. But that if property be given to a man for life, the donor cannot take away the incidents to a life estate, or add a valid clause that he should not alien it. It cannot be preserved from creditors, unless given to some one else in trust. But we have again, in the English courts of equity, a recur- rence to the old and juster doctrine ; for it was held in TuUett v. Armstrong, 1 Beavan, 1, 21, that a devise and bequest in trust for an unmarried woman, to her separate use, and with an inability to alien, was effectual on any subsequent marriage, both as to the separate use and the restraint upon anticipation, though, if unaccompanied by any restraint, it was subject to her power of alienation. And afterwards, in Dixon v. Dixon, 1 Beavan, 40, it was held that a settlement on the first marriage of a woman, in trust for her separate use, exclusive of any husband, the trust to her separate use attached upon a remarriage. The New York Revised Statutes, i. 728, sec. 55 (as amended in 1830), and 730, marriage, although inoperative while she Wright, 2 J. & H. 647 ; Taylor v. Meads, is discovert, is now entirely established as 13 W. R. SQi.x^ As to Brandon u. Rob- law in England, a. o. 4 My. & Or. 377 ; inson, see iv. 131, n. 1. Baggett V. Meux, 1 Ph. 627 ; Wright u. ri The same rule holds generally in Gratt. 317. Contra, in Pennsylvania, this country. Gray, Restraints on Alien- Snyder's App., 92 Penn. St. 504 ; Gray, ation, § 275; Raymond i^. Jones, 83 Restraints, &e., § 276. [215] *171 OP THE EIGHTS OP PERSONS. [PAET IT. can she make a testament of chattels, except it be of those which she holds en autre droit, or which are settled on her as her separate property, without the license of her husband. He may covenant to that effect, before or after marriage, and the Court of Chancery will enforce the performance of that covenant. It is not strictly a will, but in the nature of an appointment, which the husband is bound by his covenant to allow, (c) The wife may dispose by will, or by act in her lifetime, of her separate personal estate, settled upon her, or held in trust for her, or the savings of her real estate given to her separate use ; and this she may do * 171 without the intervention of trustees, for the * power is incident to such an ownership, (a) i It has been held, even at law, in this country, (6) that the wife may, by the permission of her husband, make a disposition in the nature of a will, of per- sonal property, placed in the hands of trustees, for her separate use, by her husband, or by a stranger, and either before or after marriage. If z, feme sole makes a will, and afterwards marries, the subsequent marriage is a revocation in law of the will. The reason given is, that it is not in the nature of a will to be absolute, and the marriage is deemed equivalent to a countermand of the will, and especially as it is not in the power of the wife, after marriage, either to revoke or continue the will, inasmuch as she is presumed to be under the restraint of her husband, (c) But it is equally clear, that where an estate is limited to uses, and a see. 63 and 65, have thrown an effectual protection over the interests of persons not well able to protect themselves, by declaring, (1) that an express trust may be created to receive the rents and profits of land, and apply them to the use of any per- son, during the life of such person, or for any shorter term ; (2) by declaring that no person beneficially interested in a trust for the receipt and profits of lands can assign, or in any manner dispose of, such interest ; and, (3) that where the trust shall be expressed in the instrument creating the estate, every sale, conveyance, or other act of the trustees, in contravention of the trust, shall be absolutely void. Under these provisions, a father may create a trust in favor of a daughter, and the interest would be unalienable even with the consent of the husband. Nothing can impair such a trust during the life of the cestui que trust ; and the recent English decisions on this subject are wlioUy inapplicable, and not law in New York. (c) Pridgeon v. Pridgeon, 1 Ch. Cas. 117 ; Rex v. Bettesworth, Str. 891 ; Newlin V. Preeman, 1 Ired. (N. C.) 514. (a) Peacock v. Monk, 2 Ves. 190 ; Rich v. Cockell, 6 Ves. 369 ; West v. West, 3 Rand. 373 ; Holman v. Perry, 4 Met. 492. (6) Emery v. Neighbour, 2 Halst. [N. J.] 142. (c) I'orse & HembUng's case, 4 Co. 60, b ; 2 P. Wms. 624 ; 2 T. R. 695, s. p. 1 See 164, n. 1, (c). [216] LECT. XXVIII.J *0P THE RIGHTS OP PERSONS. * 172 power is given to a feme sole, before marriage, to declare those uses, sucli limitation of uses ra&j take effect ; and though a mar- ried woman cannot be said strictly to make a will, yet she may devise, by way of execution of a power, which is rather an ap- pointment than a will ; and whoever takes under the will, takes by virtue of the execution of the power. (cZ) Thus, in the case of Bradish v. Gibbs, (e) it was * held that a, feme * 172 covert might execute by will, in favor of her husband, a power, given or reserved to her while sole, over her real estate. In that case, the wife before marriage entered into an agreement with her intended husband, that she should have power, during the coverture, to dispose of her real estate by will, and she after- wards, during coverture, devised the whole of her estate to her husband ; and this was considered a valid disposition of her estate in equity, and binding on her heirs at law. The point in that case was, whether a mere agreement entered into before marriage between the wife and her intended husband, that she should have power to dispose of her real estate during coverture, would enable her to do it, without previously to the marriage vesting the real estate in trustees, in trust for such persons as she should by deed or will appoint ; and it was ruled not to be necessary ; and the doctrine has received- the approbation of the Supreme Court of Pennsylvania, (a) Equity will carry into effect the will of a feme covert, disposing of her real estate in favor of her husband, or other persons than her heirs at law, pro- (d) She may, under a power of appointment over personalty in a marriage settle- ment, appoint by deed in favor of her husband ; and if it appear that she did it freely and understandingly, equity will enforce it. Chesslyn v. Smith, 8 Ves. 183 ; Whitall 0. Clark, 2 Edw. Ch. 149. (e) 3 Johns. Ch. 523. By the New York Revised Statutes, i. 732-737, see. 80, 87, a general and beneficial power may be granted to a married woman, to dispose during the marriage, and without the concurrence of her husband, of lands conveyed or devised to her in fee ; or a special power of the like kind, in respect to any estate less than a fee, belonging to her, in the lands to which the power relates. She may, under the power, execute a mortgage; and, generally, she may execute a power during coverture, by grant or devise, according to the terms of it ; and if she executes a power by grant, the concurrence of her husband as a party is not requisite, but she must acknowledge, on a private examination, the execution of the power. And if a married woman be entitled to an estate in fee, she may, by virtue of a power, create any estate which she might create if unmarried ; but she cannot exercise any power during her infancy, nor if, by the terms of the power, its execution by her during marriage may be expressly or impliedly prohibited. lb. sec. 90, 110, 111, 117, 130. (a) 10 Serg. & K. 447. [ 217 ] 173 OF THE RIGHTS OP PERSONS. [part IV. vided the will be in pursuance of a power reserved to her in and by the antenuptial agreement with her husband. (5.) Marriage Settlements. — With respect to antenuptial agree- ments, equity will grant its aid, and enforce a specific performance of them, provided the agreement be fair and valid, and the inten- tion of the parties consistent with the principles and the policy of the law. A voluntary deed is made good by a subsequent mar- riage. (6) Equity will execute covenants in marriage articles at the instance of any person who is within the influence of the marriage consideration, and in favor of collateral relations, as all such persons rest their claims on the ground of valuable * 173 * consideration, (a) ^ The husband and wife, and their (6) See infra, iv. 463. (a) Pulvertoft v. Pulrertoft, 18 Ves. 92. 1 Marriage Settlements. — (a) The trusts of a marriage settlement were enforced against the surviving party to it in favor of collateral relatives, and the court inti- mated that the result would not have been different even if the trusts had been executory, in Neves r. Seott, 9 How, 196 ; 13 How. 268. See Eaton v. Tillinghast, 4 R. I. 276. But a settlement of nearly all a woman's property, so far as it was in favor of collateral relatives, was set aside at the suit of one who was a creditor at the time of the marriage, to the extent of his debt, although household furniture and jewels exceeding the amount of the debt were excepted out of the settlement. Smith V. Cherrill, L. E. 4 Eq. 390. And if a man makes a settlement and then marries, with intent to defraud his cred- itors, it may be set aside in England even as against the wife, if she is a party to the fraud. Bulmer v. Hunter, L. R. 8 Eq. 46, and see cases there cited, x^ (b) A postnuptial settlement made in pursuance of an oral agreement before marriage, at least when this is not stated in the settlement, and there has been no part performance, is regarded as volun- tary, such agreements being required to be in writing by the statute of frauds. Warden v. Jones, 2 De G. & J. 76. Nor would such a statement make any differ- arl The trusts of a marriage settlement, like other trusts, are valid even though voluntary, and cannot be revoked without the consent of all the cestuis, at least when executed. Paul ... Paul, 20 Ch. D. 742. See Paul v. Paul,15 Ch. D. 580. But it has been held that a mistake by which a power of revocation was omitted may be rectified. Russell's App., 75 Penn. St. 269; Hanley o. Pearson, 13 Ch. D. 545. A covenant by a widow in a marriage •Settlement, in favor of children of a for- mer marriage, was held enforceable by [218] those children in Gale u. Gale, 6 Ch. D. 144. If the wife, in cases like Bulmer v. Hunter, supra, be innocent of fraud, the settlement will be good as to her. Prewit V. Wilson, 103 U. S. 22 ; Herring v. Wick- ham, 29 Gratt. 628. See Lloyd v. Fulton, 91 U. S. 479. See further, as to antenuptial agree- ments. Pierce u. Pierce, 7l N. T. 154 ; Henry v. Henry, 27 Ohio St. 121 ; Brett V. Yeaton, 101 111. 242 ; In re Arthur, 14 Ch. D. 603 ; Pawson u. Brown, 13 Ch. D. 202. LECT. XXVIII.] OP THE RIGHTS OP PERSONS. ^173 issue, are all of them considered as within that influence, and, at the instance of any of them, equity will enforce a specific performance of Lhe articles. (6) Settlements after marriage, if made in pursuance of an agree- ment in writing entered into prior to the marriage, are valid, both against creditors and purchasers. The marriage is itself a valu- able consideration for the agreement, and sulBcient to give validity to the settlement. This was so decided in the case of Reade v. Livingston ; (c) and it was there held that voluntary settlements (h) Osgood V. Strode, 2 P. Wms. 255; Bradish v. Gibbs, 3 Johns. Ch. 550. But if the settlement be made through the instrumentality of a party whose concurrence is necessary to the validity of the settlement, such person is held not to be a mere volun- teer, but falls within the range of the consideration of the agreement. Neves v. Scott, U. S. C. C. for Georgia, Law Reporter, Boston, for June, 1846, [supra, n. 1.] An ante- nuptial settlement, founded on a valuable consideration, such, for instance, as mar- riage, cannot be affected by fraud in the settler, if the other party be innocent. Magniac v. Thomson, 7 Peters, 348. In North and South Carolina, and Tennessee, the registration of marriage settlements and contracts is required by statute, in order to render them valid as a lien on the property of the settler as against creditors. 2 Dev. & Batt. Eq. [46] ; 1 Rev. Stat. (N. C.) 1837, p. 233; Statute of Tennessee, 1831. (c) 3 Johns. Ch. 481 ; Thomson v. Dougherty, 12 Serg. & R. 448; and Magniao V. Thompson, 1 Bald. C. C. TJ. S. 344 ; Duffy ... The Ins. Company, 8 Watts & S. 413, =. p. ence. lb.; Albert y. Winn, 5.Md. 66; Borst u. Corey, 16 Barb. 136. But see Hall V. Light, 2 Duvall, 358. But some- times inducements to a marriage delib- erately held out beforehand, on the faith of which the marriage was celebrated, although not amounting to a contract. x^ In Holmes v. Winchester, 135 Mass.' 299, a conveyance of real estate to a wife, in pursuance of a promise made to her on releasing dower, was held' invalid against the husband's assignee. But see Holmes v. Winchester, 133 Mass. 140. See further, as to consideration. In re Foster & Lister, 6 Ch. D. 87 ; Phillips v. Meyers, 82 111. 67 ; Patrick v. Patrick, 77 111. 555. That a hcma fide settlement, though voluntary, will not be subjected to the claims of subsequent creditors, there being no existing creditors, is clear. Jones V. Clifton, 101 U. S. 225 ; Carpenter o. Carpenter's Exec, 27 N. J. Eq. 502. have been allowed to have the effect of one. 2 De G. & J. 84, 85 ; Hammersley V. De Biel, 12 CI. & Fin. 45 ; Prole u. Soady, 2 Giff. 1 ; [Viret v. Viret, 50 L. J. Ch. 69 ; Dashwood u. Jerm^n, 12 Ch. D. 776.] See Alt i>. Alt, 4 GifE. 84. x^ And in Lloyd v. Fulton, 91 U. S. 479, the existence of creditors was held to be only evidence of fraud. It seems the wife may be precluded from claiming her own property by allow- ing the husband to have possession and apparent ownership. Humes v. Scruggs, 94 U. S. 22; Clark v. Rosenkrans, 31 N. J. Eq. 665. See further, as to the rights of cred- itors, Thomson v. Hester, 55 Miss. 656; Bernheim v. Beer, 56 Miss. 149 ; Evans V. Nealis, 69 Ind. 148. A husband may give his wife a preference. Lahr's App., 90 Penn. St. 507 ;pos^ 441 and notes. [219] *174 OP THE RIGHTS OP PERSONS. . [PAKT IT. after marriage, upon the wife or children, and without any valid agreement previous to the marriage to support them, were void as against creditors existing when the settlements were made, (ci) But if the person be not indebted at the time, then it is settled that the postnuptial voluntary settlement upon the wife or children, if made without any fraudulent intent, is valid against subsequent creditors. This was not only the doctrine in Reade V. Livingston, and deduced from the English authorities, but it has since received the sanction of the Supreme Court of the United States, in the case of Sexton v. Wheaton. (e) A settlement after marriage may be good, if made upon a valu- able consideration. Thus, if the husband makes a settlement upon the wife, in consideration of receiving from the trustees of the wife possession of her equitable property, that will be a suffi- cient consideration to give validity to the settlement, if it was a case in which a court of equity would have directed a settlement out of the equita.ble estate itself, in case the husband had * 174 sought the aid of the court, in order to get * possession of it. (a) The settlement made after marriage between the husband and wife may be good, provided the settler has received a fair and reasonable consideration in valuefor the thing settled, so as to repel the presumption of fraud. It is a sufficient consid- eration to support such a settlement, that the wife relinquishes her own estate, or agrees to make a charge upon it for the benefit (d) A postnuptial settlement, founded on a paro! agreement before marriage, was good against creditors prior to tlie statute of frauds, and the marriage was the valuable consideration which sustained it. Griffin v. Stanhope, Cro. J. 454 ; Ralph Bovy's Case, 1 Vent. 194; Lavender v. Blackstone, 2 Lev. 146. But, though good at law, a specific performance would not be enforced in equity, unless the agreement was con- fessed by the party in his answer, or there had been a part performance. Sugden on Vendors, 107, 108 ; 2 Story, Eq. Jur. 62. Nor, of course, will equity enforce it since the statute, though the marriage takes place in pursuance of it, unless in cases of fraud. Montacute v. Maxwell, 1 P. Wms. 618 ; s. 0. Str. 236. There must be some evidence in writing of the previous parol promise before marriage. It is doubtful whether a recital in a, postnuptial settlement of a previous parol agreement before marriage be sufficient to take the case out of the statute. It may be sufficient as against parties, and not as against creditors. See the cases of Beaumont v. Thorpe, 1 Ves. 27 ; Dundas v. Dutens, 1 Ves. Jr. 199 ; 2 Cox, 235 ; Reade o. Livingston, 3 Johns. Ch. 481. And see the American Law Magazine for July, 1843, art. 2, [i. 302,] where the subject is critically and learnedly discussed. [Lloyd v. Fulton, 91 U. S. 479.] (e) 8 Wheaton, 229 ; Picquet v. Swan, 4 Mason, 443, s. p. (a) Moore u. Rycault, Prec. in Ch. 22 ; Brown v. Jones, 1 Atk. 190 ; Middlecome V. Marlow, 2 Atk. 519 ; Picquet v. Swan, 4 Mason, 443. [220] LECT. XXVIII.] OP THE RIGHTS OP PERSONS. * 175 of her husband, or even if she agree to part with a contingent interest. (J) But the amount of the consideration must be such as to bear a reasonable proportion to the value of the thing set- tled ; and, when valid, these postnuptial settlements will prevail against existing creditors and subsequent purchasers, (c) A settle- ment upon a meritorious consideration, or one not strictly valu- * able, but founded on some moral consideration, as gratitude, benevolence, or charity, will be good against the settler and his heirs ; but whether it would be good as against creditors and pur- chasers does not seem to be entirely settled, though the weight of opinion and the policy of the law would rather seem to be against their validity in such a case. If the wife, previous to marriage, makes a settlement of either her real or personal estate, it is a settlement in derogation of the marital rights, and it will depend upon circumstances whether it be valid, (^d) Where the wife, before marriage, transferred her entire estate, by deed, to trustees, who were to permit her to receive the profits during life, and no power was reserved over the principal except the jus disponendi hj will, a court of equity has refused, after the marriage, to modify the trust, or sustain a bill for that purpose against the trustees by the husband and wife, (e) In case the settlement be * upon herself, * 175 her children, or any third person, it will be good in equity if made with the knowledge of her husband. If he be actually a party to the settlement, a court of equity will not avoid it, though he be an infant at the time it was made, (a) But if the wife was guilty of any fraud upon her husband, as by inducing him to suppose he would become possessed of her property, he may avoid the settlement, whether it be upon herself, her children, or any other person, (h) ^ If the settlement be upon children of (6) Ward v. Shallett, 2 Ves. 16. (c) Lady Arundell v. Phipps, 10 Ves. 139 ; BuUard v. Briggs, 7 Pick. 533. (d) St. George v. Wake, 1 My. & K. 610 ; Bill v. Cureton, 2 id. 503. (e) Lowry v. Tiernan, 2 Hair. & 6. 34. (a) Slocombe v. Glubb, 2 Bro. C. C. 545. (h) BuUer, J., and Lord Chi. Thurlow, in Strathmore v. Bowes, 2 Bro. C. C. 345 ; 1 Ves. 22, s. c. ; Goddard v. Snow, 1 Kussell, 485; Howard v. Hooker, 2 Rep. in Cli. 1 Deception will be inferred if, after her intended husband's knowledge or the commencement of the treaty for mar- concurrence. Taylor v. Pugh, 1 Hare, riage, the wife should attempt to make 608 ; Chambers v. Crabbe, 34 Beav. 457 ; any disposition of her property without Downes v. Jennings, 32 Beav. 290; [Hall [221] *176 OF THE RIGHTS OP PERSONS. [PART IV. a former husband, and there be no imposition practised upon the husband, the settlement would be valid, without notice ; (c) and it would seem from the opinion of the lord chancellor, in King v. Colton, that such a settlement, even in favor of a stranger, might be equally good under the like circumstances. It is a general rule, without any exception, that whenever any agreement is entered into for the purpose of altering the terms of a previous marriage agreement, by some only of the persons who are parties to the marriage agreement, such subsequent agreement is deemed fraudulent and void. The fraud consists in disappointing the hopes and expectations raised by the marriage treaty. /It is a material consideration, respecting marriage settlements, not only whether they are made before or after marriage ; but if after marriage, whether upon a voluntary separation, by mutual agreement, between the husband and wife. Lord Eldon, in St. John V. St. John, (^) intimated that a settlement by way of separate maintenance, on a voluntary separation of husband and wife, was against the policy of the law, and void ; and he made no * 176 distinction between settlements * resting on articles, and a final complete settlement by deed ; or between the cases where a trustee indemnified the husband against the wife's debts, and where there was no such indemnity. The ground of his opinion was, that such settlements, creating a separate mainte- nance by voluntary agreement between husband and wife, were in their consequences destructive to the indissoluble nature and the sanctity of the marriage contract ; and he considered the question to be the gravest and most momentous to the public interest that could fall under discussion in a court of justice. Afterwards, in Worrall v. Jacob, (a) Sir William Grant said he apprehended it to be settled, that chancery would not carry into execution articles 42, [81 ;] St. George v. Wake, 1 My. & K, 610. Secret and voluntary conveyances by a woman, in contemplation of marriage, are a fraud upon the marital rights and void. Tuclcer v. Andrews, 13 Me. 124, 128; Jordan v. Black, Meigs (Tenn.), 142; Ramsay u. Joyce, 1 McM. [Eq.] (S. C.) 236 ; Logan v. Simmons, 3 Ired. Eq. (N. C.) 487. (c) King V. Colton, 2 P. Wms. 674 ; Jones v. Cole, 2 Bailey Eq. (S. C.) 380. (rf) 11 Ves. 530; Beach v. Beach, 2.-HiU [N. Y.], 260, 8. p. (a) 3 Meriv. 256, 268. V. Carmichael, 8 Baxt. 211 ; Baker v. effect of a woman's antenuptial settle- Jordan, 73 N. C. 145 ; Westerman v. nient in binding herself, see post, 248; Westerman, 25 Ohio St. 500. But see Tarbell v. Tarbell, 10 Allen, 278 ; SuUings Butler V. Butler, 21 Kan. 521.] As to the v. Eichmond, 5 AUen, 187. [222] LECT. XXVIII.] OP THE EIGHTS OF PERSONS. * 177 of Hgreement between husband and wife. The court did not recognize any power in tlae married parties to vary the rights and duties growing out of the marriage contract, or to effect at tlieir pleasure a partial dissolution of the contract. But he admitted that engagements between the husband and a third person, as a trustee, for instance, though originating out of, and relating to, a separation, were valid, and might be enforced in equity. (5) It was, indeed, strange that such an auxiliary agreement should be enforced, while the principal agreement between the husband and wife to separate, and settle a maintenance on her, should be deemed to be contrary to the spirit and policy of the law. If the question was res Integra^ said * Lord Eldon, un- * 177 touched by dictum or decision, he would not have permitted such a covenant to be the foundation of a suit in equity. But dicta have followed dicta, and decision has followed decision, to the extent of settling the law on this point too firmly to be now dis- turbed in chancery, (a) ^ (6) This is now the settled law in England and in this country. Ktzer v. Fitzer, 2 Atk. 511 , Cooke v- Wiggins, 10 Ves. 191 ; Lord Rodney v. Chambers, 2 East, 283; 2 Raithby's Vernon, 386, note 1 ; Ros v. Willoughby, 10 Price, 2 ; Carson v. Murray, 3 Paige, 483 ; Reed v. Beazley, 1 Blackf. (Ind.) 97, a. p. It is an interesting fact to find not only the hx mercatona of the English common law, but the refinements of the English equity system, adopted and enforced in the State of Indiana, as early as 1820, when we consider how recently that country had then risen from a wilderness into a cultivated and civilized community. The reports in Indiana, here referred to, are replete with extensive and accurate law learning, and the notes of the learned reporter, annexed to the cases, are very valuable. The general principle Is established, that the law does not authorize or sanction a voluntary agreement for a separation hecween husband and wife. Tlie wife cannot make a valid agreement with the husband for a separation, in violation of the marriage contract, except under the sanction of the courts of equity, and except in the cases where the conduct of the husband would have entitled her to a separation. The law merely tolerates such agreements when capable of bemg enforced by or against a third person acting in behalf of the wife. Rogers v. Rogers, 4 Paige, 516; Champlin v Champlin, 1 Hoffi. Ch. 55. So, in the eeclesiastical courts of England, on the same principle, a deed of separation is no bar to a suit instituted for the restitution of conjugal rights. Westmeath v. Westmeath, 2 Hagg. Eccl. Supp. 115. A private separation is an illegal contract, a renunciation of stipulated duties, from which the parties cannot release themselves by any private act of their own, Mortimer v. Mortimer, 2 Hagg. Cons. 318 , Legard v. Johnson, 3 Ves. 352 ; McKennan v. Phillips, 6 Wharton, 671, 576 ; Mercein v. The People, 25 Wend. 77, Bronson, J. Nothing can be clearer or more sound than this conjugal doctrine. (a) Westmeath v. Westmeath, Jac. 126. In Todd v. Stoakes, 1 Salk. 116 ; Nurse u. Craig, 5 Bos. & P. 148 ; Hindley v. Westmeath, 6 B. & C. 200 ; and in Shelthar v. 1 Separation Deeds — There is no doubt deeds are perfectly vahd, nor that they now that by the English law separation can be enforced against the wife, who is [223] *178 OF THE EIGHTS OP PERSONS. [PART IV. * 178 * The law respecting marriage settlements is essentially the same in Penusj^lvania, Virginia, North Carolina, South Gregory, 2 Wend. 422, the separation of husband and wife by deed, and a stipulation on his part with the wife's trustees to pay her a certain allowance, were admitted to constitute a valid provision at law, suflcient to exempt tlie husband from being chargeable with her support. But it the husband fails to pay the stipulated allow- ance, he then becomes chargeable for necessaries furnished his wife ; and if , the deed providing for a separate maintenance be made without any actual and present separa- tum, it is void. A deed providing for the future separation of husband and wife is void. Durant v. Titley, 7 Prii;e, 577 ; Hindley v. Westmeath, k( supra. So, a subse- quent reconciliation and return to the husband's house destroys the deed. 1 Jac. 140; Pidgin v. Cram, 8 N. H. 350. The wife after a separation retains the character of a married woman. The husband may recover damages for adultery committed by the wife while living apart from him, though the adultery does not cause any for- feiture of her provision under the deed of settlement. 2 Roper, by Jacob, 301, 322. These deeds of separation and settlement are inauspicious, for they condemn the hus- band and wife to an ambiguous celibacy, and facilitate the means of breaking up families. In Picquet v. Swan, 4 Mason, 443, the doctrine of postnuptial settlements was clearly and accurately discussed, and it was held that a power of appointment therein, to create new trusts and make new appointments, might be reserved to the wife, and be exercised by her toties quaties. It was deemed a necessary consequence of the validity of a postnuptial settlement that the income of profit arising to the wife thereon follows the nature of the principal estate, and cannot be taken by the husband or his creditors, but is the separate propertj' of the wife, and subject to her disposition and appointment. In Heyer o. Burger, 1 Hoff. Ch. 1, the husband and wife voluntarily executed articles of separation, and the husband covenanted with a trustee, who was a party to the instrument, that the wife might live separate, and he would not disturb her, and he and his wife assigned over to the trustee all her estate, real and personal, in trust, to apply it to her future maintenance, and the wife was not not entitled to accept the benefits and aration deed, and was made in anticipa- repudiate the obligations. Williams v. tion of a separation which never took Baily, L. E. 2 Eq. 731 ; Wilson <,■. Wil- place, was held void and not capable of son, 1 H. L. C. 538 , Gibbs u. Harding, being upheld as a voluntary settlement. L. E. 8 Eq. 490. See Hamilton v. Hector, Bindley v. MuUoney, L. R. 7 Eq. 343. L. E. 6 Ch. 701. (As to the husband's See Vansittart v. Vansittart, 2 De G. & exemption from liability for the wife's J. 249, 255, 260 ; and the validity of support under the circumstances men- such agreements is denied in Collins v. tioned in note (a) above, see 146, n. 1.) Collins, Phillips (N. C), Eq. 153. S.ee But a deed which was on its face a sep- Albee v. Wyman, 10 Gray, 222. x^ x^ Adultery of husband was held not separation. Morrall v. Morrall, 6 P. D. to discharge the wife from the restraining 98 ; Gandy v. Gandy, 7 P. D. p. 172. In covenants in a separation deed. Gandy Fox v. Davis, 113 Mass. 255, it is stated !■. Gandy, 7 P. D. 168 ; Rose v. Rose, ib. that the great weight of authority is in 225 ; Dixon v. Dixon, 24 K. J. Eq. 133. favor of the validity of separation deeds See also Besant v. Wood, 12 Ch. D. 605. where the separation has taken place or But contra, where the subsequent offence is to take place at once, but against it constitutes a ground for dissolution of where a future separation Is contem- the marriage, and not simply for judicial plated. [224] LECT. XXVIII.J OP THE RIGHTS OF PERSONS. * 179 Carolina, Kentucky, and probably in other states, as in England and in New York, (a) But in Connecticut it has been decided that an agreement between husband and wife, during coverture, was void, and could not be enforced in chancery. (6) The court of appeals in that state would not admit the competency of the husband and wife to contract with each other, nor the competency of the wife to hold personal estate to her separate use. After- wards, in Nichols v. Palmer, (c) an agreement between the hus- band and a third person, as trustee, though originating out of and relating to a separation between husband and wife, was recognized as binding. 5. other Sights and Disabilities incident to the Marriage Union. — The husband and wife cannot be witnesses for or against each other in a civil suit. This is a settled principle of law and equity, and it is * founded as well on the interest of the *179 parties being the same, as on public policy, (a) ^ The to apply to the husband for assistance, nor to contract debts on his account, and the articles gave her authority to dispose of the property by will, and if not so disposed of, to go to her heirs. The assistant vice chancellor held that the settlement was binding on the husband, though subject to be annulled by a subsequent reconcilia- tion ; and that the wife had a valid power to make a will of the personal estate by the postnuptial settlement. It may be further noticed, on this subject, that the equity of a married woman for a settlement does not survive to her children. They have no independent equity, where there is no contract for a settlement or decree. Lloyd V. WiUiams, 1 Madd. 450 ; Story, Eq., § 1417 ; Barker v. Woods, 1 Sandf. Ch. 129. In addition to the general abridgments, there are several professed treatises recently published on this head, as Atherley's Treatise on the Law of Marriage and other Family Settlements and Devises, published in 1813 ; Keating's Treatise on Family Settlements and Devises, published in 1815 ; Bingham on the Law of Infancy and Coverture, published in 1816 ; Roper on the Law of Property arising from tlie relation between Husband and Wife, republished in New York In 1824 ; and the title of Baron and Feme, in Ch. J. Eeeve's work on the Domestic Relations. In those Essays the subject can be studied and pursued through all its complicated details. (a) Rundle v. Murgatroyd, 4 Dallas, 304, 307 ; Magniac v. Thompson, 1 Baldw. 344; Scott w. Loraine, 6 Munf- 117; Bray w. Dudgeon, ib. 132; Tyson v. Tyson, 2 Hawks, 472; Crostwaight v. Hutchinson, 2 Bibb, 407; Browning v. Coppage, 3 Bibb, 37 ; South Carolina Eq. Rep. passim. (b) Dibble r. Hutton, 1 Day, 221, (c) 5 Day, 47. (a) Davis !). Dinwoody, 4 T. R. 678 ; Winsmore v. Greenbank, Willes, 577 ; Vowles V. Young, 13 Ves. 140 ; City Bank c. Bangs, 3 Paige, 36 ; Copous v, Kauffman, 8 id. 583. 1 This is now modified by statute pretty v. Drew, 12 Allen, 107, 109 ; Morrissey v. generally both in America and England. People, 11 Mich. 327, 3.30 ; Farrell v. Led- Hooper v. Hooper, 43 Barb. 2f>2 ; Kelly well, 21 Wis. 182 ; Mousler v. Harding, VOL. II. - 15 [ 225 ] *179 OP THE EIGHTS OP PERSONS. [PAET IV, foundations of society would be shaken, according to the strong language in one of the cases, by permitting it. Nor can either of them be permitted to give any testimony, either in a civil or criminal case, which goes to criminate the other ; and this rule is so inviolable, that no consent will authorize the breach of it. (5) Lord Thurlow said, in Sedgwick v. Watkins, (c) that for security of the peace, ex necessitate, the wife might make an affidavit against her husband, but that he did not know one other case, either at law or in chancery, where the wife was allowed to be a witness against her husband, (c?) (h) The King v. Cliriger, 2 T. K. 263. In this case the court of K. B. would not allow any testimony that tended that way ; but afterwards tlie rule was by the same court somewhat restricted, and confined to testimony that went directly to criminate the husband, or could afterwards be used against him. The King v. Inhabitants of All Saints, 4 Petersdorff's Abr. 157. On the question of legitimacy, neither husband nor wife can be admitted to prove non-access. This is an old and well settled rule. (c) 1 Ves. Jr. 49. (d) In Bentley n. Cooke, 3 Doug. 422, Lord Mansfield said that there had never been any instance, in a civil or criminal case, where the husband or, wife had been permitted to be a witness for or against each other, except in case of particular neces- sity, as where the wife would otherwise be exposed, without remedy, to personal injury. There are exceptions to the rule stated in the text, when the necessity of admitting the wife as a witness against her husband is so strong as to overbalance the principle of public policy upon wliich the rule of exclusion is founded, as when the wife is the injured person, complaining of cruel treatment by her husband. The People V. Mercein, 8 Paige, 47. The exception to the general rule, excluding persons interested from being witnesses in civil and criminal cases, applies in other cases, as where a statute can receive no execution, unless the party interested (as the owner of goods stolen or robbed) be admitted as a witness. United States v. Murphy, 16 Peters, 20.3. The law will not permit any disclosure by the wife, even after the hus- band's death, which implies a violation of the confidence reposed in her as a wife, though she may in other cases testify to his acts or declarations of a public nature and not affecting his character. McGuire v. Maloney, 1 B. Mon. 224; May v. Little, Sired. (N. C.) 27. The policy and force of the general rule of exclusion also applies to render the wife incompetent, even after a divorce a vinculo, to testify against her husband, as to matters of fact occurring during the coverture, and which affect the husband in his pecuniary interest or character. Monroe o. Twistleton, Peake's Add. Cases, 219; Doker v. Hasler, Ryan & M. 198; Ratcliff v. Wales, 1 Hill (N. Y.), 63; Babcock v. Booth, 2 Hill (N. y.), 181. 3-3 Ind. 176; State u. Straw, 50 N. H. On the matter of note (6V see States. 460; St. 16 & 17 Vict. c. 83; 32 & 33 Wilson, 31 N. J. (2 Vroom) 77. and cases Vict. 68. a;! cited. a;i See further, Shultz v. The State, 32 121 Mass. 137 ; Wood u. Chetwood, 27 Ohio St. 276; Gibson o. The Common- N.J. Eq.311; Lucas v. Brooks, 18 Wall, wealth, 87 Penn. St. 253 ; Brown v. Wood, 436, 452 ; Crose v. Eutledge, 81 111. 266. [226] LECT. XXVm.] OF THE EIGHTS OP PERSONS. * 180 But where the wife acts as her husband's agent, her declara- tions have been admitted in evidence to charge the husband ; for if he permits the wife to act for him as his agent in any particular business, he adopts, and is bound by her acts and admissions, and they may be given in evidence against him. (e) The wife cannot bind her husband by her contracts, except as his agent, and this agency may be inferred by a jury in the cases of orders given by her in those departments of her husband's household which she has under her control. (/) So, also, where the husband permitted his wife to deal as a, feme sole, her testimony was admitted, where she acted as agent, to charge her husband. (^) In the case, like- wise, of Fenner v. Lewis, (A) where the husband and wife had agreed to articles of separation, and a third person became a party to the agreement as the wife's trustee, and provision was made for her maintenance and enjoyment of * separate *180 property, it was held that the declarations of the wife relative to her acts as agent were admissible in favor of her hus- band in a suit against the trustee. In such a case, the law so far regarded the separation as not to hold the husband any longer liable for her support, (a) The policy of the rule excluding the husband and wife from being witnesses for or against each other, whether founded, according to Lord Kenyon, (6) on the supposed bias arising from the marriage, or, according to Lord Hard- wicke, (c) in the necessity of preserving the peace and happiness of families, was no longer deemed applicable to that case. In Aveson v. Lord Khmaird, (cZ) dying declarations of the wife were admitted in a civil suit against her husband, they being made when no confidence was violated, and nothing extracted from the bosom of the wife which was confided there by the husband. Lord Ellenborough referred to the case of Thompson V. Trevanion, in Skin. Rep. 402, where, in an action by husband (e) Anon., 1 Str. Rep. 5'27 ; Emerson v. Blonden, 1 Esp. 142; Palethorp v. Furnish, 2 id. 511, note ; Clifford n. Burton, 8 Moore, 16 ; 1 Bing. 199, s. l:. ; Dacy v. Chemical Manuf. Co., 2 Hall (N. Y.), 550; Plummer v. Sells, 3 Nev. & M. 422. (/) Freestone v. Butcher, 9 Carr. & P. 643; Lane v. Ironmonger, 13 M. & W. 368. (g) Rutter V. Baldwin, 1 Eq Cas. Abr. 226, 227 ; but Lord Eldon said, in 15 Ves 165, that he had great difficulty in acceding to this case to that extent. (A) 10 Johns. 38. (a) Baker v. Barney, 8 id. 72. (6) 4 T. R. 679. (c) Baker v. Dixie, Cases temp. Hardw. 252, [264.] [d) 6 East, 188. [227] *181 OF THE EIGHTS OP PERSONS. [PART IV. and wife for wounding the wife, Lord Holt allowed what the wife said immediately upon the hurt received, and before she had time to devise anything to her own advantage, to be given in evidence as a part of the res gestcB. These cases may be considered as exceptions to the general rule of law, and which, as a general rule, ought to be steadily and firmly adhered to, for it has a solid foundation in public policy, (e) In civil suits, where the wife cannot have the property de- manded, either solely to herself or jointly with her husband, or where the wife cannot maintain an action for the same cause if she survive her husband, the husband must sue alone. (/) In all other cases in which this rule does not apply, they must * 181 be joined in the suit ; and where the husband is * sued for the debts of the wife before coverture, the action must be joint against husband and wife, and she may be charged in execution with her husband ; though if she be in custody on mesne process only, she will be discharged from custody on motion, (a) The husband may also be bound to keep the peace as against his wife ; and for any unreasonable and improper con- finement by him, she may be entitled to relief upon habeas corpus. (U) But as the husband is the guardian of the wife, and bound to protect and maintain her, the law has given him a rea- sonable superiority and control over her person, and he may even put gentle restraints upon her liberty, if her conduct be such as to require it, unless he renounces that control by articles (c) The policy of the rule of the English law, that hxisband and wife cannot be witnesses for or against each other, is much questioned in Am. Jur. No. 30, p. 374. I remain, however, decidedly against the abolition of the rule. (f) If a note be given to the husband and wife, on a sale of her property, and she survive him, she, and not his administrator, must indorse it ; for the interest being joint, it went, of course, to the survivor. Draper v. Jackson, 16 Mass. 480 ; Schoon- maker v. Elmendorf, 10 Johns. 49; Richardson v. Daggett, 4 Vt. 336. (a) Anon., 3 Wils. 124. The wifewill be discharged from execution in such a case, if it appears that she has no separate property to pay the debt. Sparkes ». Bell, 8 B. & C. 1. The application for her discharge has been held to rest in the discretion of the court. Chalk v. Deacon, 6 J. B. Moore, 128. The husband and wife may be jointly guilty of a tortious conversion of a chattel, and may be sued jointly, provided the conversion be charged to be to the use of the husband. 2 Saund. 47, i. (6) In the matter of William P. Brown, on habeas corpus, before the circuit judge of the first judicial circuit in New York, Feb. 1843, it was ruled that a wife may be kidnapped by the husband within the provisions of the Revised Statutes, ii. 664, and he and his accessories be held to answer for the crime. [228] LECT. XXVIII.] OP THE RIGHTS OF PERSONS. * 182 of separation, or it be taken from him by a qualified divorce, (c) The husband is the best judge of the wants of the family, and the means of supplying them ; and if he shifts his domicile, the wife is bound to follow him wherever he cliooses to go. (d) If a woman marries, pending a suit against her, the plaintiff may proceed to judgment and execution against her alone, without joining tlie husband ; (e) but for any cause of action, either on contract or for tort, arising during coverture, the husband only can be taken in execution. (/) These provisions in favor of the wife are becoming of less consequence with us every year, inas- much as imprisonment for debt is undergoing constant relaxation ; and by statute in * several of the states, no * 182 female can be imprisoned upon any execution for debt, (a) I trust I need not apologize for liaving dwelt so long upon the consideration of this most interesting of the' domestic relations. The law concerning husband and wife has always made a very prominent and extensive article in the codes of civilized nations. It occupies a large title in the English equity jurisprudence. So extensive have become the trusts growing out of marriage settle- ments, that a lawyer of very great experience (6) considered that half the property of England was vested in nominal owners, and it had become difficult to ascertain whether third persons were safe in dealing for fiduciary property with the trustee, without the concurrence of the beneficial owner. There are no regula- tions on any other branch of the law, which affect so many minute interests, and interfere so deeply with the prosperity, the honor, and happiness of private life. As evidence of the im- mense importance which in every age has been attached to this subject, we may refer to the Roman law, where this title occupies two entire books of the Pandects, (c) and the better part of the fifth book of the Code. Among the modern civilians. Dr. Taylor devotes upwards of one sixth part of his whole work on the Elements of the Civil Law to the article of marriage ; and Hei- neccius, in his voluminous works, pours a fiood of various and (c) Bridgman, Ch. J., in Manby v. Scott, Bridg. Eep. 233 ; Bex v. Mead, 1 Burr. 642 ; Lister's Case, 8 Mod. 22. {d) Chretien v. Her Husband, 17 Martin (La.), 60. (e) Doyley v. Wiiite, Cro. Jac. 323; Cooper v. Hunchln, 4 East, 521. (/) Anon., Cro. Car. 513; 3 Bl. Comm.414. (a) See infra, 399, n. (6). (b) Mr. Butler. (c) Lib. 23 and 24. [229] *184 OP THE RIGHTS OF PERSONS. [PART IV. profound learning on the subject of the conjugal relations, (c?) Pothifer, who has examined, in thirty-one volumes, the whole immense subject of the municipal law of France, which has its foundations principally laid upon the civil law, devotes six entire volumes to the law of the matrimonial state. When we reflect on the labors of those great masters in jurisprudence, and com- pare them with what is here written, a consciousness arises of the great imperfection of this humble view of the subject ; and I console myself with the hopej that I may have been able to point out at least the paths of inquiry to the student, and * 183 to stimulate his * exertions to become better acquainted with this very comprehensive and most interesting bead of domestic polity. There is a marked difference between the provisions of the common law and the civil law, in respect to the rights of prop- erty belonging to the matrimonial parties. Our law concerning marriage settlements appears, to us at least, to be quite simple and easy to be digested, when compared with the complicated regulations of the community or partnership system between lius- band and wife which prevails in many parts of Europe, as Fiance, Spain, and Holland, and also in the State of Louisiana, This system was carried by the colonists of those European powers into their colonies, such as Cej'lon, Mauritius, the Cape of Good Hope, Guiana, Demerara, Canada, and Louisiana. Many of the regulations concerning the matrimonial union, though not the community system, are founded on the Roman law, which Van Leeuwen, in his Commentaries, terms the common law of * 184 nations, (a) I do not allude to the * earlier laws of the (d) Vide Opera Heinecc. torn. ii. De Marito Tutore et Curatore XJxoris legitimo, and torn. vii. Commentarius ad legem Juliam et Papiam Poppseam. (a) In Louisiana, according to their new Civil Code, as amended and promulgated in 1824 (art. 2312, 2369, 2370), the partnership or community of acquets or gains [com- munaute des Mens) arismg during coverture, exists by law in every marriage contract in the state, where there is no stipulation to the contrary. This was a legal conse- quence of marriage, under the Spanish law. The doctrine of the community of acquets and gains was unknown to the Roman law, but it is common to the greater number of the European nations, and is supposed to have taken its rise with the Germans, and may be founded on the presumption that the wife, by lier industry and care, contributes, equally with her husband, to the acquisition of property. All the property left at the death of either party is presumed to constitute the community of acquets and gains, and this presumption stands good until destroyed by proof to the contrary. TouUier's Droit Civil Fran^ais, xii. art. 72; 17 Martin (La), 258; [230] LECT. XXVIII.J OF THE RIGHTS OP PERSONS. * 184 Roman republic, by which the husband was invested with the plenitude of paternal power of life and death over the Christy, Dig. tit. Marriage ; Cole's Wife v. His Heirs, 19 Martin (La.), 41. But the parties may modify or limit this partnership, or agree that it shall not exist. They may regulate their matrimonial agreements as tliey please, provided the regulations be not contrary to good morals, and be conformable to certain prescribed modifica- tions. (Art. 2305.) Parties can, by an express matrimonial contract, subject them- selves to the coinmunio bonorum as to personal property, or adopt the law of any country in respect thereof, and the courts will give eifect to it, unless prohibited by a positive law, either of the matrimonial domicile or of the locus rei sitcB. Vide infra, 459, and note (h), ib. In the case of married persons removing into the state from another state, or from foreign countries, their subsequently acquired property is subjected to the community of acquets. (Art. 2370.) This very point was decided at New Orleans, in Gale v. Davis, 4 Martin (La.), 645, and in the case of Saul u. His Creditors, 17 Martin (La.), 569. The Supreme Court of Louisiana, in the able opinion pronounced by Judge Porter, on behalf of the court in the latter case, held, that though the mar- , riage was contracted in a state governed by the English common law, yet if the par- ties removed into Louisiana, and there acquired property, such property, on the dissolution of the marriage in that state, by the death of the wife, would be regulated by the law of Louisiana. Consequently, a community of acquets and gains did exist between the married parties, from the time of their removal into the state, and the property they acquired after their removal became common, and was to be equally divided between them, on the principles of partnership. The decision was founded . on an ancient Spanish statute, in the Partidas, which governed at New Orleans when it was a Spanish colony ; and it is also the law of the Civil Code of Louisiana, as already mentioned. So, property acquired before the removal from the matrimonial domicile is governed by the law of that domicile ; and if married persons move out of the country where the community of acquets and gains exists, into one where it does not, their future acquisitions are governed by the law of their new domicile. Porter, J., 4 La. 193; McCoUum v. Smith, Meigs (Tenn.), 342; Kneeland v. Ensley, ib. 620. The principles declared in the case of Saul v. His Creditors are essentially redeclared in the case of Paekwood v. Packwood, 9 Rob. (La.) 438 ; 12 id. 334. The community of acquets and gains applies to all the property, real and personal, acquired while the parties were domiciled in Louisiana, though not to property previously acquired during their matrimonial domicile in another state, nor to property subsequently acquired after a change of domicile from Louisiana to another state. Saul v. His Creditors, supra. This was the doctrine in the Partidas ; but it seems, according to the jurists in France and Holland, that the community principle prevails and follows the property even sub- sequently acquired after a change of domicile, on the ground of a tacit or implied contract having the effect of an actual marriage settlement. While it was admitted in the case of Saul v. His Creditors, that, by the comity of nations, contracts were to be enforced according to the principles of law which governed the contract in the place where it was made, yet it was equally part of the rule, that a positive law, regu- lating property in the place where it was situated, and which the European continental jurists call real statutes, in contradistinction to those personal statutes which follow and govern the individual wherever he goes, must prevail when opposed to the lex loci contractus. The right of sovereignty settles the point, wherever the rules of the place of the contract, and of the place of its execution, conflict. The comity of nations must yield to the authority of ppsitive legislation ; and it was admitted, that, inde- pendent of that authority, the weight of the opinion of civilians in France and Holland [231] * 185 OP THE RIGHTS OP PERSONS. [PART IV. * 185 * wife, but to tbe civil law in the more polished ages of the Roman jurisprudence, when the wife was admitted was, that the law of the place where the marriage was contracted ought to he the guide, and not that of the place where it was dissolved. The property of married persons is divided into separate property, being that which either party brings in mar- riage, or subsequently acquires by inheritance or gift ; and common property, being that acquired in any other way by the husband and wife during marriage. Art. 2314. The community of acquets and gains ceases on the death of either party, and the survivor takes only his or her undivided moiety of the common property. Cooney's Heirs v. Clark, 7 La. 156 ; Broussard v. Bernard, ib. 216 ; Stewart v. Pickard, 10 Rob. (La.) 18. The surviving wife cannot renounce the community of gains, if she takes an active part in the community of gains, but in that case she is only responsible for one half of the debts contracted during the marriage. Code Civil, arts. 2378, 2982 ; Lynch v. Benton, 12 Hob. (La.) 113. The separate property of the wife is divided into dotal, being that which she brings to the husband to assist in the marriage estab- lishment, and extradotal, or paraphernal property, being that wliich forms no part of the dowry. (Art. 2315.) The husband is the head and master, and the proceeds of the dowry belong to the husband during the marriage, and he has the administration of the partnership or community of profits of the matrimonial property, and he may dispose of the revenues which they produce and alienate them, without the consent of the wife. But he cannot convey the common estate, or the acquets and gains, to the injury of the wife during coverture, and she may, at his decease, by action, set aside the alienation. The wife has a tacit mortgage for her dotal and paraphernal property, and also upon the community property from the time it comes into the hands of the husband. There is a marked difference on this point between the com- munity law in France and in Louisiana. In the latter, taken from the Spanish law, the wife has an interest In the community property, and not a mere hope or expec- tancy, during tlie coverture. It is not the law in force at the time the comnmnity is dissolved, but that in vigor when it was formed, which regulates the rights of hus- band and wife to the property acquired during coverture. (Art. 2373.) Porter, J., Dixon V. Dixon, 4 La. 188, 192. He cannot alienate the dotal estate, though he may enjoy the fruits of it, nor can the income of the dotal property be seized by the husband's creditors. Buard u. De Russy, 6 Rob. (La.) 111. But he is subject, in respect to that property, to all the obligations of the usufructuary. (Art. 2344.) The paraphernal property of the wife is not bound for the debts contracted by the hus- band while at the head of the community ; neither are the fruits of that property liable when administered by the wife. (L. Code, art. 2371.) Lambert v. Franche- bois, 16 La. 1. If the husband and wife stipulate that there shall be no partnership between them, the wife preserves the entire administration of her property, movable and immovable, and may sell it. (Arts. 2394, 2395.) She has the right, during the existence of the community, to the administration of her paraphernal property ; and, on her death, her heirs take her separate estate, and moneys received by her husband on her account during marriage, form part of it. Robin v. Castile, 7 La. 295. And if there be no agreement as to the expenses of the marriage, the wife contributes to the amount of one half of her income (Art. 2387) ; but a married woman cannot, under any circumstances, become a surety for her husband. Hughes v. Harrison, 19 Martin (La.), 251. A sale by the husband to his wife, to replace her paraphernal property, sold by him, is good. Her land, whether dotal or not, is not afiEected by her husband's debts. Christy's Dig., tit. Husband and .Wife. If the wife renounces the community, she in that case has a mortgage on the property purchased by the hus- [232] LECT. XXTIII.] OP THE RIGHTS OP PERSONS. * 186 to the * benefit of a liberal antenuptial contract, by which * 186 her private property was secured to her, and a more reason- band during coverture, which takes precedence of the ordinary creditors of the husband. M'Donough v. Tregre, 19 Martin (La.), 68. But she must, as against cred- itors, produce other proof of the payment of the dot or dotal portion on marriage, tlian the husband's confession in the marriage contract. Buisson v. Thompson, 19 Martin (La.), 460. And she has no mortgage on her husband's estate for the fruits of her paraphernal estate, 18 id. 103 ; but she is a privileged creditor, 16 id. 239 ; and has a tacit mortgage for replacing her paraphernal effects sold by the husband, 16 id. 402 ; Johnson v. Pilster, 4 Rob. ( La.) 71. The civil law, in order to protect the wife, would not allow her dotal property to be alienated, during the coverture, even with her consent ; and the Spanish laws declare void any contract in which the wife binds herself with her husband, unless the debt be contracted for her particular benefit. 1 Martin (La.), 2'j6. But I cannot go further, and give a more detailed view of the rights of married persons in Louisiana. My object is merely to state enough to show that its regulations on the subject are entirely different from the laws of the other states ; and to a mere English lawyer they will probably appear to be embarrassing, and rather forbidding. Our taste and modes of thinking are very much under the influence of education ; and we are naturally led to give a preference to the institutions under which we live, and with which we are best acquainted. The Louisiana Code' appears to be a transcript in this, as well as most other respects, of the Code Napoleon ; and the very complicated regulations of the Trench code on the subject of marriage property occupy a wide space, even in that compre- hensive and summary digest of the French law. Pothier had devoted three volumes of his works to the conjugal rights in commimity ; and M. TouUier, who had dis- cussed extensively the law of marriage, in the former part of his Droit Civil Francjais suivant I'ordre du code, devoted his last volumes to a commentary upon the regula- tions of tlie Code Civil concerning the community system ; and Mr. Burge, in his Commentaries on Colonial and Foreign Laws, i. 332-413, and again from 599 to 640, has also digested, with much labor and research, the law of the community of goods between husband and wife. I have selected, for the information of the student, » few of the leading principles of the French code on the subject. It is declared that the husband owes protection and maintenance to the wife, according to his means and condition. Code Civil, nos. 213 and 214. The wife owes him obedience, and cannot do any act in law without the authority of her husband ; and without his concurrence she cannot give, alien, or acquire property. lb. nos. 215, 217. But if the husband refuses to authorize his wife to do any act in law, she may apply to a judicial tribunal for leave to act. lb. nos. 218, 219. If she be a public trader, she may bind herself, without the authority of her husband, in whatever con- cerns that business. lb. n. 220. She may also make a will without his authority, lb. n. 226. No general authority, though stipulated by the marriage contract, is valid, except as the administration of the wife's property. lb. n. 223. But the law allows the husband and wife to make any special contract as to property which is not incom- patible with good morals, and does not derogate from the power of the husband over the person of the wife and children, nor change the legal order of succession. lb. nos. 1387, 1388, 1889. The parties may stipulate in writing, before marriage, that the conjugal relation, in respect to property, shall be regulated either under the com- munity, or under the dotal rule, and the code prescribes their rights and powers under each of these systems, and they may modify as they please the management and dis- position of the joint property placed in community. They may stipulate that each [233] * 187 OP THE EIGHTS OP PERSONS. [PAET IV. * 187 able equality of condition * between the husband and wife introduced. The civil law at first prohibited the husband and wife from making valid gifts to each other causa mortis ; yet the rigor of the law was afterwards done away, and donations between husband and wife were good if they were not revoked in the life- time of the parties ; and Justinian abolished the distinction between donations inter vivos ante nuptias et post nuptias, and he allowed donations propter nuptias as well after as before marriage. («) The wife could bind herself by her contracts without charging her husband. She was competent to sue and be sued without him. They could sue each other, and, in respect to the property, of the married parties shall separately pay their own debts, and this stipulation will bind them, on the dissolution of the community, to account to each other. lb. nos. 1391, 1395, 1401, 1402, 1421, 1497, 1500, 1510, 1526. Before the French revolution, the northern provinces of France were under the customary law, and the community of property governed the nuptial contract ; while in the southern provinces, where the Roman law prevailed, the contract was governed by the dotal system. The code, by way of compromise, left the parties to elect the law by which the marriage was to be governed ; and if no election was made, the community system was to prevail. lb. nos. 1391, 1393. These marriage contracts cannot be altered after marriage ; and, ordinarily, the husband administers the personal property in community, and may sell or incumber it, but he cannot take away, by will, the rights of the wife as survivor. If they stipulate that they shall be separate in property, the wife retains the entire administration of her real and personal property and revenues, and each party con- tributes to the charges of the marriage according to agreement. lb. nos. 1536, 1537. In no case can the wife have a power given to her to alienate her real estate, without the consent of her husband ; and if they marry under the dotal rule, and not under the rule of the community, the husband has the sole administration of the dotal property during the marriage. lb. n. 1531. The Dutch matrimonial law in respect to property is essentially the same. See Van Leeuwen's Commentaries on the Roman-Dutch Law, b. 4, c. 23, 24 ; Voet's Com- mentaries on the Pandects, under the appropriate titles ; Vanderlinden's Institutes of the Laws of Holland, translated by Henry, 86-88 ; Burge's Commentaries on Colonial and Foreign Laws, i. 276-332 ; The Master's Report on the Matrimonial Dutch Law, in the colony of Demerara, as given in Martin u. Martin, 2 Russ. & My. 507. The Dutch and all the nations of Europe, except the Spaniards, have rejected that part of the Roman law which secured to the wife all her property, and protected it against the debts of her husband. In Holland, the goods of both parties are brought into com- munity at marriage, and it concludes all property subsequently acquired, and is liable for the debts of both parties, unless it be property afEected by a trust or Jidei commis- sum. At the death of either party, one half goes to the survivor, and the other half to the representatives of the deceased. In Scotland, the community of goods between the husband and wife is of a more limited character than that which exists in the con- tinental nations, and does not extend to real property or subjects which produce annual profits. The effect of marriage on the property of the husband and wife in Scotland is largely and learnedly considered in Burge's Comm. i. 423-462. (a) Inst. 2. 7. 3 ; Bynk. Opera, i. 166 ; Observ. Jur. Rom. Ub. 5, c. 18. [234] LECT. XXTIII.] OP THE RIGHTS OP PERSONS. * 187 were considered as distinct persons, and the contracts of the one were not binding on the other, (fi) Whatever doubts may arise in the mind of a person, educated in the school of the common law, as to the wisdom or policy of the powers which, by the civil law and the law of those modem nations which have adopted it, are conceded to the wife in mat- ters of property, yet, it cannot be denied, that the preeminence of the Christian nations of Europe, and of their descendants and colonists in every other quarter of the globe, is most strikingly displayed in the equality and dignity which their institutions confer upon the female character. (b) A summary of the rules of the civil law on the rights and powers of the hus- band and wife, in relation to their property, is given in Surge's Comm. on Colonial and Foreign Laws, i. 262-275. The law concerning the conjugal obligations under the Scotch law is fully stated and condensed in Lord Stair's Institutions, by More, i. n- b. See also a learned note of John George Piiillimore, Esq., annexed to his trans- lation of the celebrated case of Manby v. Scott, from 1 Sid. 109, on the early periods of the Roman law in respect to conjugal rights and duties. [235 ] 190 OP THE BIGHTS OP PERSONS. [PAET IV. LECTURE XXIX. OP PARENT AND CHILD. The next domestic relation wnich we are to consider is that of parent and child. The duties that reciprocally result from this connection are prescribed, as well by those feelings of parental love and filial reverence which Providence has implanted in the human breast, as by the positive precepts of religion, and of our municipal law. 1. Of the Duties of Parents. — The duties of parents to their children, as being their natural guardians, consist in maintaining and educating them during the season of infancy and youth, and in making reasonable provision for their future usefulness and happiness in life, by a situation suited to their habits, and a com- petent provision for the exigencies of that situation, (a) (1.) Of maintaining Children. — The wants and weaknesses of children render it necessary that some person maintains them, and the voice of nature has pointed out the parent as the most fit and proper person. The laws and customs of all nations have enforced this plain precept of universal law. (6) The Athenian and the Roman laws were so strict in enforcing the performance of this natural obligation of the parent, that they would * 190 not allow the father * to disinherit the child from passion or prejudice, but only for substantial reasons, to be ap- proved of in a court of justice, (a) The obligation on the part of the parent to maintain the child continues until the latter is in a condition to provide for its own maintenance, and it extends no further than to a necessary support. The obligation of parental duty is so well secured by the strength of natural affection, that it seldom requires to be (a) Paley's Moral Philosophy, 233 ; Taylor's Elements of the Civil Law, 383; Puffendorfs Droit de la Nature, b. 4, c. 11, sec. 4 and 5. (6) Grotius, b. 2, c. 7, sec. 4. (a) Potter's Greek Antiq. ii. 351 ; Dig. 28. 2, 30 ; Novel, 115, c. 3. [236] LECT. XXIX.-] OP THE RIGHTS OF PERSONS. * 191 enforced by human laws. According to the language of Lord Coke, it is " nature's profession to assist, maintain, and console the child." A father's house is always open to his children. The best feelings of our nature establish and consecrate this asy- lum. Under the thousand pains and perils of human life, the home of the parents is to the children a sure refuge from evil, and a consolation in distress. In the intenseness, the lively touches, and unsubdued nature of parental affection, we discern the wisdom and goodness of the great Author of our being, and Father of Mercies. All the provision that the statute law of New York has made on this subject applies to the case of necessary maintenance ; and as the provision was borrowed from' the English statutes of 43 Eliz. and 5 Geo. I., and is dictated by feelings inherent in the human breast, it has probably been followed, to the extent at least of the English statutes, throughout this country. The father and mother, being of sufficient ability, of any poor, blind, lame, old, or decrepit person whomsoever, not being able to maintain him- self, and becoming chargeable to any city or town, are bound, at their own charge and expense, to relieve and maintain every such person, in such manner as the overseers of the poor of the town shall approve of, and the court of general sessions shall order and direct. If the father, or if the mother, being a widow, shall abscond and leave their children a public charge, their * estate is liable to be sequestered, and the proceeds ap- * 191 plied to the maintenance of the children, (a) The statute imposes a similar obligation upon the children, under like circum- stances. This feeble and scanty statute provision was intended for the indemnity of the public against the maintenance of pau- pers, and it is all the injunction that the statute law pronounces in support of the duty of parents to maintain their adult chil- dren. (6) During the minority of the child, the case is different, and the parent is absolutely bound to provide reasonably for his (a) N. Y. Revised Statutes, i. 614. (6) See infra, 208, n. (/). The statute law of New York, prior to the Kevised Statutes, which went into operation in January, 1830, extended this legal duty of necessary maintenance to grandparents and grandchildren, reciprocally. This is the provision in the statute of 43 Eliz., and it has probably been followed, generally, in the other states. See, to this purpose, 4 N. H. 162 ; Statute Laws of Connecticut, 1784, p. 98, and of 1888, p. 363 ; Act of South Carolina, 1712 ; 2 Bailey, 320. The Revised Statutes of Massachusetts, of 1836, speak, on this point, only of parents and children. [237] * 192 OP THE RIGHTS OP PERSONS. " [PART IV. maintenance and education ; and he may be sued for necessaries furnished, and schooling given to a child, under just and rea- sonable circumstances, (c) The father is bound to support his minor childrenj if he be of ability, even though they have prop- erty of their own ; but this obligation in such a case does not extend to the mother, (^d) ^ and the rule, as to the father, has become relaxed. («) The courts now look with great liberality to the circumstances of each particular case, and to the respective estates of the father and children ; and in one case, where the father had a large income, he was allowed for the maintenance of his infant children, who had still a larger income. (/) The legal obligation of the father to maintain his child ceases * 192 as soon as the child is of age, however wealthy * the father may be, unless the child becomes chargeable to the public as a pauper, (a) The construction put upon the statute of 43 Eliz. renders it applicable only to relations by blood ; and the husband is not liable for the expenses of the maintenance of the child of the wife by a former husband, (6) nor for the expense of (c) Simpson v. Robertson, I Esp. Cas. 17 ; Ford v. Fothergill, ib. 211 ; Stanton v. Willson, 3 Day, 37 ; Van Valkenburgh v. Watson, IB Johns. 480. (d) Hughes v. Hughes, 1 Bro. C. C. 387 ; Pulsford k. Hunter, 3 id. 416; Haley v. Bannister, 4 Madd. 275 ; Whipple v. Dow, 2 Mass. 415 ; Dawes v, Howard, 4 Mass. 97. (c) If the father be without means to maintain and educate his children according to their future expectations in life, courts of equity will interpose and make an allow- ance out of the estate of the children, and in an urgent case will even break into the principal of a vested legacy, for the purpose of educating an infant legatee. Newport V. Cook, 2 Ashmead, 332. (/) Jervoise v. Silk, Cooper, Eq. 52. See also Maberly v. Turton, 14 Ves. 499. Massachusetts Revised Statutes, 1836, pt. 2, tit. 7, c. 78, are to the same effect. If an infant becomes entitled to a sum of money during infancy, the Court of Chancery, on the application of the father, will order a reference in respect to the future main- tenance of the child out of the fund ; but it is not usual to make such an allowance retrospectively. 1 Tamlyn, 22. (o) Parish of St. Andrew v. Mendez de Breta, 1 Ld. Raym. 699. [b) Tubb V. Harrison, 4 T. R. 118 ; Gay v. Ballon, 4 Wend. 403. But now, by the English statute of 4 & 5 Wra. IV. c. 76, sec. 57, the person who marries a woman, the mother of legitimate or illegitimate children, becomes liable to maintain them as part of his family, until the age of sixteen years, or until the death of the mother. [See Hardy v. Alberton, 7 Q. B. D. 264.] 1 See 193, n. 1. The language of the Burke, 4 Sandf . Ch. 617 ; Watts v. Steele, text must be taken to apply only to ques- 19 Ala. 656 ; Eansome ^^ Burgess, L. R. tions arising between the father and child 3 Eq. 773 ; Carmichael v. Hughes, 20 as to an allowance to the parent out of Law J. u. 8. Ch. 396 ; 6 E. L. & Eq. 71 ; the child's property, as to which see Mat- [In re Kerrison's Trusts, 12 L. R. Eq. ter of Kane, 2 Barb. Ch. 875 ; Matter of 422.] [238} LECT. XXIX.] OP THE RIGHTS OP PERSONS. * 193 the maintenance of the wife's mother. (. Delile, 17 Martin (La.), 32; Matter of WoUstonecraft, 4 Johns. Ch. 80; Creuze a. Hunter, 2 Cox's Cases, 242; De Manneville w. De Manneville, 10 Ves. 52; In the matter of Mitchell, R. M. Charlton (Ga.), 494. In re Ann Lloyd, 3 Mann. & Gr. 547, an ille- gitimate child, between eleven and twelve years of age, brought up on habeas corpus, being allowed to choose between her mother and putative father, elected to go to the latter. Though the Court of Chancery has jurisdiction to control the father's posses- sion of his child, yet in England a court of common law has no such delegated authority. Ex parte Skinner, 9 Moore, 278; M'Clellan's Case, 1 Dowl. 81. See also infra, 220, 221, In the case of The King v. Greenhill, 4 Ad. & El. 624, it was held that the father was entitled to the custody of his legitimate children when they were too young to exercise a discretion as to their custody. The father's right is superior to that of the raotheir unless it appears that the child would be exposed to cruelty or gross corruption. See the case of The People v. Mercein, 3 Hill (N. Y.), 399; to the same point, mfra, 205, note. Upon habeas corpus the chancellor in England has the same jurisdiction as a judge, and has nothing to attend to but personal ill usage to the child, as a, ground for taking it from the father. But when there is a cause in court, other circumstances may be considered ; and if the father cannot educate the child in a manner suitable to the property given to it by another, tlie court will not permit the father to withhold from it that education; and in a, special case of the kind, chancery would not, on the father's application, withdraw a child from the custody of its aunt. Lyons v. Blenkin, 1 Jae. 245 ; Lord Thurlow, in Powel v. Cleaver, 2 Bro. C. C. 510, s. p. Lord Cottenham, in Campbell v. Mackay, 2 My. & Cr. 01, expressed himself strongly on the injurious effects of a permanent residence of English minors abroad, and he would not allow an infant ward of the court to be removed out of the juris- diction of the court, except in a case of imperative necessity. The New York Revised Statutes, ii. 148, 149, sec. 59, have authorized the Supreme Court to award a habeas corpus on behalf of the wife, when the husband and wife lived separate, without being divorced, and to dispose of the custody of minor children in sound discretion ; and the chancellor or a judge may, upon habeas corpus, recover and dispose of any child de- tained by the Society of Shakers. So in the case of a suit by the wife for divorce or separation, the court may, pending the suit, or at or after a final hearing, as occasion may require, make such order for the custody, care, and education of the children as may seem proper. The severity of the rule in the English courts of law that the father has an absolute control over the custody of his infant child, however young, and in opposition to the wishes of the mother, and in destruction of her claim to the custody of the child, has been so strongly felt, that in 1837, Mr. Sergeant Talfourd introduced or proposed in Parliament a bill, to empower the lord chancellor and judges to make orders relating to the custody of infant children of tender age, in cases where the parents are living apart, upon the application of either parent, or on the return of a writ of habeas corpus issued at the instance of the father. In Ahrenfeldt v. Ahren- feldt, before the assistant vice-chancellor of New York, 1 Hoff. Ch. 497, in a bill by the mother for a separjition from her husband lor abandonment, and a claim for the custody of her infant children, the court considered it to be the settled English law, (a) Hall V. Hallander, 4 B. & C. f [ 244 J LECT. XXIX.] OP THE EIGHTS OP PERSONS. ' * 195 (2.) Oj educating Children. — The education of children in a manner suitable to their station and calling is another branch of parental duty, of imperfect obligation generally in the eye of the municipal law, but of very great importance to the welfare of the state. Without some preparation made in youth for the sequel of life, children of all conditions would probably become idle and vicious when they grow up, either from the want of good instruc- tion and habits, and the means of subsistence, or from want of rational and useful occupation. A parent who sends his son into the world uneducated, and without skill in any art or science, does a great injury to mankind, as well as to his own family, for he defrauds the community of a useful citizen, and bequeaths to it a nuisance. This parental duty is strongly and persuasively inculcated by the writers on natural law. (6) Solon was so deeply impressed with the force of the obligation, that he even excused the children of Athens from maintaining their parents, if they had neglected to train them up to some art or profession, (c) Several of the states of antiquity were too solicitous to form their youth for the various duties of civil life, even to intrust their education solely to the parent ; but this, as in Crete and Sparta, was upon the principle, totally inadmissible in the modern civil- ized world, of the absorption of the individual in the body politic, and of his entire subjection to the despotism of the state. Distinguished exertions have been made in several parts of modern Europe, and with which none of the educational institu- that the father had the right to the custody of his children, with the exception of very tender infancy, unless his conduct was such as to endanger the bodily or moral welfare of them, or any of them, and that the doctrine of the common law had been weakened, though not overthrown, in the United States. In the case of Mercein v. The People, 25 Wend. 64, it was decided, in the Court of Errors of New York, that as a general rule the father was entitled to the custody of his minor children, but that if the parents lived apart, under a voluntary separation, and the father had left tlie infant in the custody of the mother, that custody would not be transferred to the father on habeas corpus when the infant was of tender age and sickly habit, and espe- cially if the qualifications of the mother for the care were superior. The decision in the Supreme Court was, that the husband had the better title and paramount right to the custody of his minor children, in the absence of any positive disqualification on his part for the discharge of his parental duties, and the alienism of the husband was not such a disqualification. The Court of Errors was equally decided on the question touching the decision of the Supreme Court, and its' judgment was consequently afiirmed. See also the case of The People v. Mercejn, .3 Hill, infra, 205, note (a). it) Puffendorf, b. 4, c. 11, sec. 5; Paley's Moral Philosophy, 224, 225. (f) Plutarch's Life of Solon. [245] *196 OP THE RIGHTS OP PERSONS. [PART IV. tions of antiquity are to be compared, for the introduction * .196 of elementary * instruction accessible to tbe young of all classes. This has been the case particularly in Denmark, Norway, Sweden, Prussia, some parts of Germany, and Switzer- land, (a) The Austrian empire is distinguished for an organized system of popular instruction, under the late Emperor Francis, pervading all classes of the people. The university, the classic gymnasium, the commercial academy, and the primary village schools, with licensed normal teachers, in a main degree are gratuitously open to all. The entire supervision and control of the whole sj'stem resides in the government, which directs the course of instruction and the books ; and no person is competent to hold any office, or exercise any calling, who has not been educated within the realm. Like Prussia, Austria offers educa- tion to all; but, not like Prussia, she compels it upon none, except by indirect influence. She combines education with religious instruction, but allows Protestants and Jews to have their sep- arate religious instruction upon very tolerant principles, (i) In this branch of political economy Scotland attained to early and honorable preeminence. In 1616, the Scotch Parliament adopted incipient measures for settling and supporting a common school in each parish, at the expense of the heritors or landed proprietors. By the statute of 1633, the assessments for the support of the parochial schools were to be made by the heritors of the parish, and, on their refusal, by the majority of the inhabitants. The statute of 1646 rendered the assessment compulsory on each parish, for the purpose of building a schoolhouse, and electing and supporting the schoolmaster. Though this latter statute was repealed at the restoration of Charles II., it was reenacted by the Scottish Parliament in 1696 ; and this excellent school establish- ment and plan of national instruction has had a propitious influ- (o) Norway and Sweden are highly educated countries in elementary learning, and their parish schools are universal and excellent. Laing's Norway, 444 ; Laing's Sweden, 425. (6) Mr. Turnbull, in his work on Austria, and which is one of the best English books extant on the social and political condition of Austria, says that three fifths of the juvenile population of the Austrian empire, with the exception of Hungary, actu- ally receive scholastic instruction. And as the system of education is uniform, mild, essentially practical, free from excitement, and without the indulgence or permission of any daring speculation or vagaries, political or religious, it conduces, according to Mr. Turnbull, to form the most patient, mild, orderly, benevolent, and happy people on the face of the globe. See Tumbull's Austria, ii. c. 5, ed. London, 1840. [246] JCECT. XXIX.] OP THE EIGHTS OP PERSONS. * 196 ence on the moral and enterprising character of the nation, (c) The establishment of common schools, and provision for the edu- cation and supply of competent teachers, in tiie Prussian dominions, by Frederick II., was surprisingly liberal, and shed lustre on his reign. He began the system in 1750, and some years afterwards directed, by ordinance, that a school should be kept in every vil- lage, and subsistence for the school and the master raised by a school tax levied on the lord of the village, and the tenants with- out distinction. The boys were to be sent from their sixth to their thirteenth year, whether the parents were able to pay the school tax or not ; and the parent or guardian was doubly taxed who neglected, without sufiBcient cause, to send his child or pupil. (tZ) (c) Dr. Currie's Life of Burns, i. App. No. 1, note a. This elegant writer says tliat lie gave his statement of the history of the Scottish laws upon " unquestionable authority." (d) Adams's Lectures on Silesia, 361-372. In the more recent and more general Prussian system of common schools, and coercive popular instruction, the duty of parents to send their children to school is enforced by law. Each commune or parish is bound to maintain, at its own expense, an elementary or primary school, by provid- ing a suitable salary to the schoolmaster, and a good schoolhouse properly supplied with books and other means of instruction. Every town must support one or more burgher schools of a somewhat higher order. This interference of government in the institution of a system of coercive instruction in the common schools was in use in Germany, Scotland, and New England, in the 17th century ; and it has been found, by experience, that coercion, in some indirect way at least, is necessary to insure the requisite education to the lower classes. The gymnasia, or colleges, in Prussia, are principally supported at the expense of the state. Primary seminaries, or normal schools, for the training of schoolmasters, are provided, and supported partly at the expense of the state, and partly at the expense of the departments. Each commune has its superintending committee, of which the niagistrates of the commune constitute a part. Tlie law, under strong penalties, imposes upon parents the obligation of sending their children to school ; and the law of 1819 is applied to all the ten provinces of the Prussian dominion. A large proportion of the regulations, enforced by the law of 1819, were contained in enactments of the date of 1718 and 1736 ; and this system of public instruction has elevated the German people to a high rank in the scale of intelligence. Many other states besides Prussia, such as Bavaria, Saxony, Hesse-Cassel, Saxe- Weimar, Nassau, Wurtemburg, and Baden, have followed the same coercive system ; and through the exertions of M. Cousin, the distinguished French professor, the Prussian system of popular instruction, as digested by law in 1819, and especially the system of primary normal schools for educating schoolmasters, has been introduced, and essentially adopted in France, in the beginning of 1833. These noianal schools have been found the most efficient means of raising the standard of primary instruction in Prussia, Austria, Bavaria, Holland, and Scotland. The for- mer French law of 1816, on the same subject, was wanting in means to give it effect. Kapport sur I'etat de I'instruction publique dans quelques pays de I'Allemagne et particulierement en Prusse, par M. Victor Cousin, Conseiller d'Etat, Professeur de Philosophie, Membre d'Institution, &c. This report was translated into English by Sarah Austin, and published in New York in 1885. It was made to the minister of [247] * 196 OP THE EIGHTS OF PERSONS. [PART IT. Great pains have been taken, and municipal and noble provi- sions made, in this country, to diffuse the means of knowledge, public instruction in 1831, and was followed by a supplementary report, in 1833, affording fresh proofs of the prosperity of primary instruction in Prussia under the coercive system. The work, as translated, is deemed so highly valuable, that it has been, by the order of the legislature of some of the United States, distributed in the school districts at the public expense. In France, every commune is obliged to have a school ; and it is stated that there are 28,196 communes which have gchoolhouses, and only 8,991 which have not. But paren ts are not compelled in France, as in Ger- many, to send their children to school, and men of the town are enjoined to take the children from such parents, and bind them out to proper masters, to be taught some useful employment, and to read and write, and the rules of arith- metic necessary to transact ordinary business. (/) («■) Trumbull's History of Connecticut, i. 303 ; N. A. Review, n. s. vii. 380, 381 ; Pitkin's History of the United States, i. 151 ; Revised Statutes of Connecticut, 1821, p. 397, note. One of the early statutes of Connecticut, in 1650, contained in the revised code of 1702, p. 16, declared, that " the education of children was of singular behoof and benefit to any people ; " and it was made a duty in the selectmen and grand jurymen of the several towns, to see and enforce the law that all children and apprentices were taught to read the English tongue, with a knowledge of the capital laws. They were also, in each town of one hundred families, to maintain a grammar school, to instruct youths for the university. By the law of 1677, each county town was bound to keep and maintain a Latin school. The statutes were preserved in force through the subsequent history of that colony, and by capital laws was meant the criminal code, so far as related to crimes punishable with death. Every town of seventy householders was to be constantly provided with a sufiicient schoolmaster to teach children to read and write ; and schoolmasters were maintained by a public tax. Statute Laws of Connecticut, 1784, p. 215. The digest of the system of school societies and common schools, in 1821, declared that all parents, and those who have the care of children, were bound to bring them up to some honest and lawful calling or employment, and to have them taught to read and write, and cipher, as far as the first four rules of arithmetic. Revised Statutes of Connecticut, 1821, pp. 107, 896. Pennsylvania went further than the New England colonies as to teaching the laws, for one of its earliest provincial acts declared that the laws of the province " should be one of the books taught in the schools of the province." Such a provision, how- ever, could only be practicable in the early state of society, when the statute laws were few and simple. It would be idle and absurd to introduce as text-books into our common schools, if not into our academies, the bulky and complicated statute codes. (j) During the twenty-seven years that Chief Justice Reeve was in extensive practice in Connecticut as a lawyer, he informs us, he never met with but one person in that state who could not write. The Connecticut school fund is, by the constitu- tion of that state, declared to be inviolate and perpetual. In 1831, it amounted to [251] * 196 OP THE EIGHTS OP PERSONS. [PART IT, Massachusetts had not, until recently, any permanent school fund, yet liberal donations were made for the support of grammar 51,902,057, yielding a yearly income of $78,074. The whole number of scholars was 85,000 ; and as the entire population was short of 300,000 souls, this public charitable fund for the support of the common schools, when considered in the ratio of the popu- lation, was, in point of extent, without a parallel. But a good judge and zealous writer on this subject, Mr. J. Orville Taylor, author of the valuable treatise entitled "The District School," is of opinion that the Connecticut. school fund has operated injuriously, by reason of its very magnitude. It does too much for the people, or it does not do enough. It damps all individual effort for the common schools, and the establishment cannot do without individual effort. It defrays the expense of the dis- trict schools for six months in the year, and then for the residue of the year the com- mon schools are sadly neglected, and the schoolhouses closed. See his Preface to the American edition of M. Cousin's Report on Public Instruction in Prussia. Every provision of the kind must undoubtedly be pernicious, if it extinguishes stimulus, and leaves the inhabitants contented with the provision, and careless and indifferent to all further exertion. We learn, from the Report of Seth P. Beers, Esq., the commissioner of the Con- necticut school fund, made to the legislature in May, 1839, that the capital of the state school fund amounted, in April, 1838, to $2,028,531 ; and the number of chil- dren between four and sixteen years of age, returned to the comptroller in 1838, from 211 school societies, was 83,977; and the dividend from the school fund, for the year ending March, 1839, was $104,906, being §1.25 to each child. In addition to tliis annual distribution, there were society and local school funds, town deposit fund, school society tax, district tax, and the tax on parents of children attending school. These subordinate funds are stated by other authority to amount to another million of dollars, and of which the town deposit fund has a capital of $764,670. But tlie system of common schools, so beautiful in theory, was in no correspondent degree efScient in practice. The Report of the Board of Commissioners of Common Schocfls, instituted in 1838, and made to the legislature of Connecticut in May, 1839, was accompanied by the report to that board, of Henry Barnard, second secretary to the board, containing a laborious and thorough examination of the condition of the com- mon schools in every part of the state. It is a bold and startling document, founded on the most painstaking and critical inquiry, and contains a minute, accurate, com- prehensive, and instructive exhibition of the practical condition and operation of the common-school system of education. In pointing out the defects in the organization and administration of the school system, his object was to have them met and removed, and to establish a higher and more vigorous standard in the education and examination of teachers. He stated that the school system had fallen into feeble and irregular action, and a widespread apathy prevailed in regard to the condition and prospects of common schools ; that the reliance on the public funds had led to the almost entire abandonment of prop- erty taxation ; that private schools, siipported by men of property, had operated most injuriously to the public schools, by reducing their means, drawing away the best teachers and the best patronage, and leading to the abandonment of all interest in them by some of the most intelligent families ; that there were not less than 10,000 children under sixteen in private schools, at an aggregate expense of not less than $200,000 for tuition alone, and more than was paid for teachers' wages in all the public schools of the state. This alarming fact was conclusive evidence of the low condition of the common schools, and tended to degrade them into the character of [252] LECT. XXIX.] OP THE RIGHTS OP PERSONS. * 196 schools ordained by law in every town of the state of a certain size ; and common schools in each town were supported by a town charity schools ; that those parents who abandon the patronage of common schools aToid thereby all the expense of supporting them beyond the avails of the public money ; that the distribution of the school-fund dividends had not been in a way to excite local exertion, as was the policy in the states of New York, Ohio, and Pennsyl- vania ; that there were 211 school societies and 1,700 school districts in the state, and yet in ten of the largest of the school societies, not above twelve persons attend to the election of school officers, though these societies include 10,000 electors, who voted at the state election ; that there was a non-attendance of the proper children of the common schools to 17,000, and it was a frightful fact, showing the want of general interest in those institutions ; that in the cities and populous districts, school money was drawn on nearly twice the number of children who attended the public schools ; that more than one eighth of all the children are sent to private schools, and one sixth of all the children are in no school, public or private ; that the school districts were injuriously multiplied, and schoolhouses generally badly built, badly arranged, and badlj' located ; that the great defects of the system, and the inade- quate compensation to teachers, and their short time of employment in the year, and the forbidding and discouraging circumstances against the entrance of competent teachers into common schools, and the great inducements to enter private schools and academies, especially to female teachers, have contributed to this degradation of common schools. He proposed that one half of the dividends of the school fund should be proportioned to the amount of money raised by the school societies, or to the number of children, and their actual attendance for any given period. He further proposed that the expense of the schools should be made to fall, not exclusively upon those who send their children, but upon the property of the school society or town ; he stated that the great instrumentality to the prosperity of the common-school system was good teachers, and they could be procured only by education for the very employment, and by higher wages; he urged' that a seminary for teachers, espe- cially for females, with a model school annexed, ought to be endowed by the state and private contributions ; and he pressed, in an animated manner, the necessity of the establishment of normal schools for the education of teachers, male and female, qualified to conduct the schools ; and he held out the example of the efforts, not only in Prussia, Austria, Bavaria, Holland, France, and Scotland, but of New York, Massa- chusetts, Ohio, and Pennsylvania, as well worthy of imitation. The above report was so impressive, that it led, in 1839, to further legislative provisions " concerning schools ; " and in the annual reports of the commissioners of common schools, and of the secretary of the board, in May, 1840, it appears that the spirit of improvement in the system of common schools, and attention to their support, have been sensibly excited. This is encouraging information ; we cannot rely entirely on the efficacy of compulsory legislation, respecting the edu- cation of children, though the voluntary system, if left to itself, will not be sufBcient, and will absolutely fail. Common-school establishments and education ought to rest in part upon local assessment, and to be sustained and enforced by law, according to the New England policy. That which costs nothing is lightly esteemed, and people generally will not take or feel much interest in the welfare of common schools, unless they are taxed for their support. The essential means of success are the zealous cooperation of parents, with good teachers, well educated for the pui-pose, and with good books. The object of popular education should be to improve, not only the intellectual, but the moral condition of the cliildren ; for knowledge, without practical [253] * 196 OP THE RIGHTS OP PERSONS. [PART IV. tax, required by law to be raised. In 1834, provision was made by law for a permanent school fund, to be limited to a million of dollars. (¥) Further efforts were made by law in Massachusetts, in 1837 and 1838, to elevate the standard of common-school education, by the establishment of a board of education, and the gradual formation of district-school libraries. (J) In 1842, pecuniary provision was made in Massachusetts by law, for three years, for the support of normal schools, under the direction of the board of education, and also an appropriation was made from the school fund, to be expended in books for the school-district libraries. Common schools are established throughout all the New England States, and they are supported by a town tax, together with some auxiliary legislative provisions and perma- nent funds. It is computed that in the six New England states there are not less than half a million of children who receive elementary instruction yearly in the common schools. The legislature of New Jersey, by statutes in 1816, 1817, 1818, morality, leads to evil. The teachings on this latter subject should rest for their basis on the Bible, as containing the only solid foundation of religious belief. Since the last edition of these commentaries, I hare examined the Connecticut Common School Journal, published under the direction of the board of commissioners of com- mon schools, at Hartford, between 1839 and 1842, in four volumes ; and also the third and fourth annual reports of the board of commissioners of common schools in Con- necticut ; and also the several reports of Henry Barnard, Esq., secretary of the board, the most able, efficient, and best-informed officer that could, perhaps, be engaged in the service; and the pamphlets from the same source, on schoolhouse architecture, mid on legal provision respecting the education and employment of children in factories, Sj-c. They contain a digest of the fullest and most valuable information that is readily to be obtained on the subject of common schools, both in Europe and the United States. It would be unsuitable, in a work of this kind, to go further into the subject than I have already, or undertake any detail of that mass of information ; and I can only refer to those documents, with the highest Opinion of their merits and value. (k) The Massachusetts laws concerning common schools were redigested in 1826, and incorporated in the Revised Statutes of 1836. In 1836, there were in Massachu- setts 2,517 school districts, and 4,970 male and female teachers ; and 146,539 cliildren between four and sixteen years of age attended in that year. The common schools were supported by a tax levied by the towns and cities respectively, amounting to 8391,993, and by voluntary contributions, to $47,593. The towns had also, all of them, their share of the $20,000 interest of the state school fund. And in addition to all this, the amount of tuition in private schools and academies was estimated for that year at §326,642, and the number of scholars attending those latter institutions was rated at 28,752. Bigelow's Abstract for 1836. In 1839, the Massachusetts school fund amounted to 8487,592. (I) The necessity of better educated teachers, and of a more thorough moral edu- cation, and of a deeper interest being taken in the success of common schools, was eloquently enforced in the North American Keview for October, 1838, art. 1. [254] LECT. XXIX.] OF THE EIGHTS OF PERSONS. * 196 1819, 1821, and 1828, made provision for the establishment and gradual increase of a fund for the support of free schools ; and in 1838 they organized and reduced to practice the system of common schools. The trustees of the school fund (and which, in 1835, amounted to $344,000) were directed to appropriate annu- ally, out of the income of that fund, $30,000 for the support of public schools, and the same was to be apportioned among the counties and towns in a ratio to their tax list. The school com- mittee in each town were to divide the same into school districts, and trustees for the several districts were to be chosen to carry the law into effect. The money for each school district was to be apportioned in the ratio of the number of children between five and sixteen years of age, and the moneys might be appropriated for building, renting, and repairing schoolrooms, purchasing fuel, furniture, and books, and paying teachers. Each town was authorized, at its annual town meeting, to raise by tax such further sum, not exceeding twice the amount received from the school fund, as might be deemed proper for the support of public schools. («i) This is a feeble system, inasmuch as it leaves the annuity to be appropriated to buildings, fuel, &c., which the school districts or towns should supply out of their own resources, and by which the compensation to competent teachers must greatly suffer ; and it makes no provision for the education of teachers, and creates no compulsory duty upon the towns to raise, by taxation, moneys in aid of the school fund, but leaves the schools to rest upon this provision. The colony law of East New Jersey, in 1693, was at least as efficient, when it authorized each town to establish and levy a rate for the maintenance of a schoolmaster. These defects in the New Jersey system are noticed and urged in the annual report of the trustees for 1839. But by the constitution of New Jersey, in 1844, the funds for the support of free schools, and all moneys received therefor, shall be a perpetual fund, and the legislature is forbidden to divert it under any pretence. The first eminent lawgiver of Pennsylvania took care to incor- porate with the frame of government prepared for that province in 1682, the important truth, " that men of wisdom and virtue were requisite to preserve a good constitution, and that these qualities did not descend with worldly inheritance, but were to be (m) Elmer's Digest, 497-502. [255] * 196 OP THE EIGHTS OF PERSONS. [P&RT IV, carefully propagated by a- virtuous education of youth." A law was passed, a very few years after the colonists under William Penn first landed upon the soil, declaring that "instruction in good and commendable learning is to be preferred before wealth."' And the law enjoined it as a duty upon the several county courts, to see that all the children in the province were instructed in reading and writing, so that they might be able, at least, to read the Scriptures ; and it imposed a penalty of £5 upon every parent, guardian, or overseer, of sufficient estate and abilitj', for every child not thus educated. This* compulsory provision was after- wards departed from, but how it happened we cannot now ascer- tain, (w) The present constitution of Pennsylvania enjoins it upon the legislature as a duty to provide by law for the establish- ment .of schools throughout the state, and in such manner that the poor may be taught gratis. In 1831, the legislature estab- lished a school fund, with the means of its progressive enlarge- ment, and the interest, when amounting to $100,000 annually, was to be applied to the support of common schools. In 1838, there were above 230,000 children in the common schools, which were kept open about seven months in the year. The state appro- priation for schools, in 1829, was $350,000, and a like sum was to be raised, by taxes, in 840 school districts, (o) The State of Ohio, in 1825, commenced the establishment of a system of'free schools, and lands to the estimated amount of half a million of acres had been previouslj' set apart for that pur- pose, (p) In 1839, the Ohio school fund amounted to $1,424,175. In Maryland, a law in favor of primary schools was passed in 1825, and the fund provided for that purpose amounted, in 1831, to $142,663. In 1796, the legislature of Virginia made provision for the establishment and support of elementary schools for all children, rich and poor, and a similar plan was adopted by the (n) Wharton's Discourse before the Alumni of the University of Pennsylrania, 1836. (o) See, in Purdon's Digest, 289-300, the various statute provisions in Pennsyl- vania for the general system of common schools, and for the common-school fund, and for the education of the poor. (p) Statute Laws of Ohio, 1829, 1838. Professor Stowe was employed by the legislature of Ohio to visit Europe and examine its educational institutions ; and his report, in 1839, of the results of his mission to England, Scotland, France, Prussia, and several states of Germany, is very instructive and excellent on the subject of common and normal schools. [256] tECT. XXIX.] OP THE EIGHTS OF PERSONS. * 197 legislature in 1816, and the system was enlarged in 1820 ; but it was not a compulsory system, though it was said by a competent judge to be, in 1836, in a course of experiment that promised success, (q) In South Carolina there were, in 1829, 513 free schools, and $37,000 appropriated to them, (r) In the states of Indiana, Illinois, Missouri, Kentucky, Tennessee, Missis- sippi, Louisiana, Georgia, and Alabama, there are * funds * 197 either provided, or in preparation for common schools, and for the organization atid government of them in every local dis- trict. In Georgia, by statute in 1821, half a million of dollars were appropriated as a school fund, one half for the support of free schools, and the other half to endow county academies. In 1836, one third of the surplus fund derived from the United States was added to the school fund, and a committee was appointed by the legislature to digest and report a plan of common-school edu- cation adapted to the people of the state. The former system had been extremely imperfect and miserably executed, (a) ■ In Kentucky, the system was understood to be prosperous, and in 1830 there were upwards of 30,000 children taught in the com- mon schools, and in 1839 the annual income of the school fund was $50,000. The constitution of Tennessee, in 1835, declared that the common-school fund, and all property appropriated for that object, should be a perpetual fund, never to be diverted to any other use than the support and encouragement of common schools. A succession of statutes have created, enlarged, and nourished the common-school fund in that state. (5) So the con- stitution of Michigan, in 1835, enforced the duty which Jiad been partly anticipated by the statute of April 18, 1833, providing for the laying out of school districts in each town, and the assessment of taxes for the erection of schoolhouses. But the act was no further compulsory, and yet we may look for effectual support and (q) Dr. Tucker, in his Life of Jefferson, i. (r) American Jurist, No. 4, p. 391, 393; Jefferson's Writings, i. 39; American Jurist, No. 11. (a) Prince's Dig. 2d ed. 19, 26, 27, 29. For the various and successive statutes mal. Harkrader, 29 Gratt. 112 ; Corcoran v. Allen, 11 B. I. 567, with which compare Hoyt v. Sprague, 103 U. S. 613. As to when compound interest will be charged, see Mather v. Heath, 15 Eep. 667 ; Crigler r. Alexander, 33 Gratt. 674. Some acts, such as using the capital of the ward's estate, or changing it from realty to personalty, are deemed of \oo much import to be done by the guardiao LiiCT. 2XX.J OP THE EIGHTS OF PERSONS. * 227 minors and their estates, and that jurisdiction has been long and unqnestionably settled. (rZ) The chancery guardian continues until the majority of the infant, and is not controlled by the election of the infant when he arrives at the age of four- teen, (e) If there be no testamentary * guardian, the sur- * 227 rogate or judge of probate is authorized to allow of guar- dians who shall be chosen by infants of the age of fourteen years, and to appoint guardians for such as shall be within that age, in as full and ample a manner as the chancellor may appoint or allow the same, upon the guardian giving adequate security for the faithful discharge of his trust ; and upon due cause shown, and due inquiry made, the surrogate, who appointed a guardian, may remove him from his trust, and appoint another in his stead, (a) Guardians are liable to be cited and compelled to account before the surrogate, but his powers in these respects are not exclusive. The general jurisdiction over every guardian, however appointed, still resides in chancery ; and a guardian appointed by the surro- (d) Harg. n. 16 to Co. Litt. 88, b ; 2 Fonb. Tr. Eq. 288, ii. ; 10 Ves. 63 ; Sir J. Jekyll, in Eyre v. Countess of Shaftsbury, 2 P. Wms. 118, 119. The usual order in the appointment of a guardian for a minor under fourteen, the father being dead, is, (1) to the mother, if unmarried; (2) the paternal, and (3) the maternal grand- father; (4) to the one or more uncles on the father's side ; (5) to the one or more uncles on the mother's side; (6) to any other proper person. (e) In the matter of NicoU, 1 Johns. Ch. 25 ; N. Y. Revised Statutes, ii. 151, sec. 10. In Maryland, it is provided by statute that infant females, at the age of sixteen, shall be entitled to demand and receive from their guardians possession of their real and personal estate, and at the age of eighteen they have a capacity to devise real estate. But these are exceptions to the general rule of the common law, and in other respects the legal minority and disability of infancy of females, as well as of males, continues until the age of twenty-one. Davis v. Jacquin, 5 Harr. & J. 100. She can- not execute a release to her guardian under the age of twenty-one. Fridge u. The State, 3 Gill & J. 103. (a) N. Y. Revised Statutes, ii. 150-152, sec. 4, 5, 6, 10-19 ; Mass. Revised Statutes, 1836. The competent age of the infant for choosing a guardian is usually fixed at fourteen in males, and when a difference is made between the age of the sexes in this case, it is twelve in females. This was the ancient statute rule in Connecticut, and it was declared by statute in 1821, and in Ohio by statute in 1824. without the express sanction of the court. Mass. 116 ; Dalton «. Jones, 51 Miss 585. Cohen v. Shyer, 1 Tenn. Ch. 192 ; Hendee See also Massachusetts General Hospital V. Cleaveland, 54 Vt. 142, 148; infra, v. Fairbanks, 132 Mass. 414; s. c, 129 230. Mass. 78. A guardian does not take the legal Transactions between guardian and title to his ward's property, and has no ward may be avoided at the election of power to bind either the ward or his es- the latter. Hendee v. Cleaveland, 54 Vt tate by contract. BoUins v. Marsh, 128 142 ; Wade v. Pulsifer, ib. 45. [291] *227 OP THE EIGHTS OF PERSONS. [PART IT. gate, or by will, is as mucli under the superintendence and con- trol of the Court of Chancery, and of the power of removal by it, as if he were appointed by the court. (6) The practice in chancery, on the appointment of a guardian, is to require a master's report approving of the person and security offered. The court may, in its discretion, aj^ipoint one person guardian of the person, and another guardian of the estate ; in like manner, as in the cases of idiots and lunatics, there may be one committee of the person, and another of the estate. The guardian or committee of the es'tate always is required to give adequate security, but the guardian or committee of the person gives none. (b) In the matter of Andrews, 1 Johns. Ch. 99 ; Ex parte Crumb, 2 Johns. Ch. 439 ; Duke of Beaufort v. Berty, 1 P. Wms. 702 ; N. Y. Revised Statutes, ii. 152, 153, 220. The rights and powers of the guardians over the person and property of their wards are, like the rights and authorities of executors and administrators, strictly local, and cannot be exercised in other states, for they come within the same reasoning and authority. Morrell v. Dickey, 1 Johns. Ch. 156 ; Sabin v. Gilman, 1 N. H. 193 ; Arm- strong V. Lear, 13 Wheat. 169 ; Story's Comm. on the Conflict of Laws, § 494 et seq., 504. Nor hare they any authority over the real property of their, wards situate in other countries, for such property is governed by the law rei sitm. Story, ib. [§ 504.] But a guardian may change the domicile of his ward, so as to affect the right of suc- cession to personal property, if it be done in good faith. [Ib. 505.] See Potinger v. Wightman, 3 Meriv. 67, where the question as to the power of the guardian, being also a widow and mother of the minor, to transfer the domicile of the minor, is discussed by counsel with great learning, and the competency of the surviving parent, as a guardian, to do it, is shown to rest not only upon principle, but upon the soundest foreign authority ; and J. Voet, Eodenburgh, Bynkershoek, and Pothier, are cited for the purpose. The same principle is adopted in this country. Holyoke v. Raskins, 5 Pick. 20. The case decided by Sir William Grant was one in which the guardian was also the mother of the infant, and the continental authorities referred to speak of the power of the surviving parent to change the domicile of the child, if not done fraudulently, with a view to change the succession. Pothier agrees to that, but denies that a guardian in that character only can do it. The French and Louisiana civil codes declared that the minor has his domicile at that of his father, mother, or tutor. Code Civil of France, n. 108 ; of Louisiana, art. 48. A contrary decision was made in School Directors v. James, 2 Watts & S. 568 ; and it was held, that though the dom- icile of the parent was the domicile of the child, it was not necessarily so in the case of a guardian. The parent's influence in this case springs from the institution of marriage and families; and the learned Ch. J. Gibson followed the doubt of Mr. Jus- tice Story, and confined the power of changing the infant's domicile to the parent, qua parent. It would rather seem to me, that it there be no competent parent living, and the guardian be duly appointed, that he may and ought, when acting in good faith and reasonably in his character of guardian, to be able to shift the infant's dom- icile with his own, and that the foreign authorities to that point have the best reason on their side. The objection against the guardian's power in such a case appears to me to be too refined and speculative. [See Marheineke v. Grothaus, 72 Mo. 204.] [292] LECT. XXX.] OP THE EIGHTS OF PERSONS. * 228 * The guardian of the estate has no further concern * 228 with, or control over, the real estate, than what relates to the leasing of it, and the reception of the rents and profits, and it is his duty to place the ward's land upon lease, (a) He has such an interest in the estate of his ward as to enable him to avow for damage feasant, and to bring trespass or ejectment in his own name. These were common-law rights belonging to the guardian in socage, and they apply to the general guardian at the present day. (V) He may lease during the minority of the ward, and no longer ; (e) but he cannot sell without the authority of the Court of Chancery. He may sell the personal estate for the purposes of the trust, without a previous order of the court, (c?) Whenever it becomes necessary to have the real estate of an infant sold, there must be a guardian specially appointed for that purpose ; and the sale is made under the direction of the Court of Chancery, and the application and disposition of the proceeds are to be under its order ; for in respect to such proceeding?, the infant is considered a ward of the court. ('«) The only material (a) Genet v. Tallmadge, 1 Johns. Ch. 561 ; Jones v. Ward, 10 Yerg. 160. (b) Shopland v. Eyoler, Cro. Jac. 98; Byrne v. Van Hoesen, 6 Johns. 66; The King V. Inhabitants of Oakley, 10 East, 491. But the guardian or committee of a lunatic cannot malse leases and bring ejectments in his own name without special stat- ute authority. This was the rule at common law, Knipe v. Palmer, 2 Wilson, 130 ; and it is the rule in North Carolina (3 Ired. 389), whose courts follow more strictly the English law, and are less influenced by American state decisions than perhaps any state in the Union. (c) Roe V. Hodgson, 2 Wils. 129, 185 ; Field v. SchiefEelin, 7 Johns. Ch. 154. But the guardian's lease of the infant's lands for a term of years, extending beyond the infant's age of fourteen years, is voidable, provided the infant be then entitled to choose his own guardian, and it may be avoided by the subsequent guardian chosen by the infant. Snook v. Sutton, 6 Halst. (N. J.) 133. (d) Field v. SchiefEelin, 7 Johns. Ch. 150 ; Ellis v. Essex M. Bridge, 2 Pick. 243. The sale of personal estate of the infant cestui que trust, without a previous order in chancery, if fair, would undoubtedly be good as to the purchaser ; but the safer course for the guardian is to have a previous order in chancery. (e) N. Y. Revised Statutes, ii. 194, sec. 170-180 ; Act of Congress of March 3, 1843, c. 87, as to the chancery sale of the real estate of infants within the District of Columbia. In Maryland, the chancellor, by a statute provision, may order the real estate descending to infants to be sold for the payment of debts. And in Ohio, the courts of common pleas appoint guardians, and may authorize them to sell the real and personal estate of the ward in any county of the state ; and all guardians, whether appointed by the courts or testamentary, must account before the court every two years ; but the ward may open the accounts within two years after he comes of age. Act of Maryland, 1785 ; Statute of Ohio, February 6, 1824 ; Lessee of Maxom v. Sawyer, 12 Ohio, 195. [293] *229 OP THE RIGHTS OP PERSONS. [PART IV. restriction in New York on the power and discretion of the Court of Chancery in this case is, that no estate of an infant can be sold against the provisions of any last will, or of any conveyance by which the estate was vested in the infant. But the provisions of the law have been held not to apply ordinarily to the case of a female infant who is married. The power given to the * 229 court to order a * sale of the real estate of infants, was intended for their better maintenance and education, and not that the proceeds should be placed at the disposition of the husband, (a) In addition to these general guardians, every court has the incidental power to appoint a guardian ad litem ; and in many cases the general guardian will not be received as of course, without a special order for the purpose. (5) 6. The Duty and Responsibility of Guardians. — The guardian's trust is one of obligation and duty, and not one of speculation and profit. He cannot reap any benefit from the use of the ward's money. He cannot act for his own benefit in any contract, or purchase, or' sale as to the subject of the trust. If he settles a debt upon beneficial terms, or purchases it at a discount, the advantage is to accrue entirely to the infant's benefit. He is liable to an action of account at common law by the infant, after he comes of age ; and the infant, while under age, may, by his next friend, call the guardian to account by a bill in chancery, (c) (a) Matter of Whitaker, 4 Johns. Ch. 378. The Revised Statutes of New York: have not altered, essentially, the phraseology of tlie law as it stood when the decision in the case of Whitaker was made. • The language of the statute is sufficiently com- prehensive to embrace the case, and there may be instances in which it would he necessary that the estate of a female married infant should be sold, as where the hus- band absconds and leaves her destitute. The case referred to presumed that the power to direct a sale still resided in the Court of Chancery, to be exercised in special cases. In Connecticut, the courts of probate, on due application and for reasonable cause may order the sale of the real estate of any minor, Statutes of Connecticut, 1838, p. 331 ; and this power is generally conferred by statute in the several states, in the courts of consistorial jurisdiction. (6) Harg. note 70, and note 220 to lib. 2 Co. Litt. ; Huckle v. "Wye, Carth. 255. Whoever enters upon the estate of an infant is considered in equity as entering in the character of guardian ; and after the infant comes of age, he may, by a bill in chancery, recover the mesne profits. Morgan v. Morgan, 1 Atk. 489 ; Drury v. Con- nor, 1 Harr. & G. 220. (c) By the practice in chancery, an infant is allowed one year after he arrives of age to investigate the guardian's accounts, and to surcharge and falsify if they be found wrong ; and the guardian is not entitled to an absolute discharge until the expiration of that time. In the matter of Van Home, 7 Paige, 46. The courts of [294] LECT. XXX.] OP THE EIGHTS OP PERSONS. * 230 Every guardian in socage, and every general guardian, whether testamentary or appointed, is bound to keep safely the real and personal estate of his ward, and to account for the personal estate, and the issues and profits of the real estate ; and if he makes or suffers any waste, sale, or destruction of the inheritance, * he is liable to be removed, and to answer in * 230 treble damages, (a) If the guardian has been guilty of negligence in the keeping or disposition of the infant's money, whereby the estate has incurred loss, the guardian will be obliged to sustain that loss, (b') The guardian must not convert the per- eciuity throw a vigilant and jealous care over the dealings of guardians with infants on their coming of age. If there be a pecuniary transaction between guardian and child just after the latter becomes of age, and without any benefit moving to the child, as in the case of gifts, the presumption is, that undue influence has been employed, and that presumption must be rebutted by adequate proof. Archer v. Hudson, 7 Beav, 551. The courts set aside such transactions on the ground of public utility and policy, though there be no actual unfairness in the case. Hylton u. Hylton, 2 Ves. Sen. 547. (a) N. Y. Revised Statutes, ii. 153, sec. 20, 21. The statute law of Tennessee is very strict and monitory respecting the fidelity of executors, administrators, and guardians. The act of 1837, c. 125, requires them to settle their accounts with the clerk of the county court once a year ; and if they neglect to do so for thirty days after being called upon by the clerk, they are liable to indictment, and the attorney general is bound ex officio to prefer the indictment. The Supreme Court thinks the laws to be admirably adapted to preserve the property of cestui que trusts, and the fidelity of these trustees. State u. Parrish, Nashville, Dec. 1843, [4 Humph. 285.] Guardians are allowed for their reasonable expenses, and the same rates of compen- sation (N. Y Revised Statutes, ii. 153, sec. 22; Mass. Revised Statutes, pt. 2, tit. 7, c. 79) for their services, as provided by law for executors ; and for that, see infra, 420. (b) Guardians and trustees of the moneyed concerns of others are answerable for any misapplication or unauthorized dealings with the trust moneys or stock. The rule on this subject is very strict. All persons acting in a fiduciary character are bound to use the same care and management that a prudent man would exercise over his own affairs. What is the requisite diligence, will depend on the attendant cir- cumstances. Glover u. Glover, 1 McM. (S. C.) 153. A receiver in chancery' is answerable for the loss of moneys by the failure of a banker with whom they were deposited for security, if the receiver parts with the absolute control over the fund, and lets a stranger in to control his absolute discretion in the case. Salway v. Salway, 2 Russ. & M. 215. So, Lord Eldon, in Ware v. Polhill, 11 Ves. 278, and in Phillips, Ex parte, 19 Ves. 122, was very guarded in laying down the power of the court in changing infant's property, so as not to affect the infant's power over it when he comes of age, or to change its descendible character. If the holder of a check upon a banker increases the amount of it in such a manner that no one in the ordinary course of business could detect the alteration, and it be presented and paid, the bank must answer for the sum fraudulently drawn. Hall v. Fuller, 5 B. & C. 750. But as a general rule, in respect to stocks held in trust, such trustees are not to look beyond the legal title, or to take notice aliunde of trusts chargeable upon the stock. Hartga [295] *230 OP THE EIGHTS OP PERSONS. [PAET IT. sonal estate of the infant into real, or buy land with the infant's money, without the direction of the Court of Chancery. The power resides in that court to change the property of infants from real into personal, and from personal into real, whenever it appears to be manifestly for the infant's benefit, (c) It is said t!. Bank of England, 3 Ves. 55 ; Bank of England v. Parsons, 5 id. 665 ; Franklin v. The Bank of England, 1 Russ. 675. (c) Earl of Winchelsea v. NorclifEe, 1 Vern. 434 ; Inwood v. Twyne, Amb. 417 ; 2 Eden, 148, 153, s. c. ; Ashbnrton o. Ashburton, 6 Ves. 6 ; Huger v. Huger, 3 Desaus. 18; Dorsey v. Gilbert, 11 Gill & J. 87 ; 3 Johns. Ch. 348, 370; Hedges v. Riker, 6 id. 163 ; [Rlnker v. Streit, 33 Gratt. 663. Corap. Thompson v. Pettibone, 79 Ky. 319.] By the English statute of 8 & 9 Vict. c. 97, trustees of stock belonging to an infant or lunatic may give power to receive dividends. Equity will not interfere in adversum to change real into personal estate by a sale, without requiring it to retain throughout the character of the original fund. Foster v. Billiard, 1 Story, 77. And it is a well-settled rule in chancery, that when land is directed to be sold and turned into money, or money is directed to be employed in the purchase of lands, courts of equity, in dealing with the subject, will consider it that species of property into which it is directed to be converted. What is legally agreed to be done, is considered as done. Wheldale v. Partridge, 5 Ves. 396; Craig v. Leslie, 3 Wheat. 563, 577-588; Peter v. Beverley, 10 Peters, 533 ; Hawley v. James, 5 Paige, 320 ; Walworth, Chan- cellor, in Gott u. Cook, 7 Paige, 534 ; Cowen, J., in Kane v. Gott, 24 Wend. 660 ; Rutherford v. Green, 2 Ired. [Eq.] (N. C.) 122 ; Reading d. Blackwell, Baldw. C. C. 166; Rhinehart V. Harrison, ib. 177. See also m/ra, 476, n. The English authorities on this subject are collected in Fonblanque Eq. i. b. 1, c. 6, sec. 9, notes «, t; Newland on Contracts, c. 3, pp. 48-64 ; 2 Story on Equity, 99, 585-587 ; Burge's Comm. on Colonial and Foreign Laws, ii. 53-57 ; 2 Jarman's Powell on Devises, c. 4, p. 60 ; Leigh & Dalz. on Eq. Conversion, 48, &c. The constitution of New Jersey, in 1844, art. 4, sec. 7, prohibits the passing of any private or special law for the sale of lands belonging to any minor, or other persons under no legal disability to act for them- selves. Before this constitutional provision, the legislature had the authority in its discretion, and the Court of Chancery had that authority in the case of infants and lunatics ; and I presume it has it still. Snowhill v. Snowhill, 2 Green Ch. (N. J.) 20.. If, under a power to sell real estate for certain purposes, a sale be made, and if there be a surplus undisposed of, it goes to the heir at law as real estate. Leigh & Dalz. on Conversion, 92 ; Estate of Tilghman, 5 Wharton, 44 ; Snowhill c. Ex'r of S., 1 Green Ch. (N. J.) 30. The doctrine of equitable conversion, as applied to the change of real into personal estate, seems to rest upon the question whether the testator meant to give to the produce of real estate the quality of personalty to all intents, or only so fur as respected the particular purposes of the will. Unless the first purpose be clearly declared, then so much of the real estate, or the produce thereof, as is not effectually disposed of by the will, or wanted for the purpose of it, results to the heir at law. Cruse v. Barley, 3 P. Wms. 20, Mr. Cox's note thereto ; Digby V. Legard, cited in the note of Mr. Cox ; Ackroyd v. Smithson, 1 Bro. C. C. 50.3, and Lord Eldon's argument in that case ; Amphlett v. Parke, 2 Buss. & My. 221 ; Wright v. Trustees of Meth. Ep. Church, 1 Hoff. Ch. 218-222. In this last case the authorities are all collected and examined with ability and learning. So, on the other hand, in Cogan v. Stephens, decided by Sir Christopher Pepys, the Master of the Rolls, in November, 1836, and reported in Appendix No. 2 to Lewin on Trusts. It [296] LECT. XXX.J OP THE RIGHTS OF PERSONS. * 231 that the latter power may be exercised by a guardian or trustee, in a clear and strong case, without the previous order of a court of equity ; but the infant, when he arrives at full age, will be entitled, at his election, to take the land or the money, with interest ; and if he elects the latter, chancery will take care that justice be done, by considering the ward as trustee for the guar- dian of the lands standing in his name, and will direct the ward to convey, (d) And if the guardian puts the ward's money in trade, the ward will be equally entitled to elect to take the profits of the trade, or the principal with compound interest, to meet those profits when the guardian will not disclose them, (e) So, if he neglects to put the ward's money at interest, but negligently, and for an unreasonable * time, suffers it to * 231 lie idle, or mingles it with his own, the court will charge him with simple interest, and, in cases of gross delinquency, with seems to be equally settled, by the powerful decision in that case, that where the testator directs money to be invested in land for certain purposes, some of .which are lawful and take effect, and others fail and become void, the property so given, after satisfying the lawful purposes, belongs to the next of kin and not to the heir. [s. c. 5 L. J. N. 8. Ch. 17.] This whole doctrine of constructive conversion is fully dis- cussed, and the cases well examined and digested, in Jarman on Wills, i. c. 19. Boston ed. 1845, edited by J. C. Perkins, Esq. (rf) Caplinger v. Stokes, Meigs (Tenn.), 175; Eckford v. T)e Kay, 8 Paige, 89. That such a power might be exercised without a previous authority was intimated in 2 Eden, 152, 153, and Amb. 419; and It was allowed and sustained afterwards by the Supreme Court of Pennsylvania, in 1 Rawle, 266. But it is an extremely perilous act in a trustee, and cannot be recommended. The Court of Chancery itself has* no inherent original jurisdiction to direct the sale of the real estate of an infant. The power is derived entirely from statute. Taylor v. Phillips, 2 Ves. 23 ; Russell u. Russell, 1 Molloy, 525; Rogers v. Dill, 6 HiH (N. Y.), 415. In Virginia, the guardian cannot apply any part of the principal of the infant's estate to his education or' support without the previous consent of the court appointing him. Myers v. Wade, 6 Rand. 444. A court of chancery may, in its discretion, appropriate the capital of the ward, and apply it for maintenance ; but the guardian does it, without such order, at his peril. Long v. Norcom, 2 Ired. Eq. (N. C.) -354 ; [In re Lane, 17 E. L. & Eq. 162.] Vide supra, 193, n. (c) . If a mother has maintained her infant child without the order of the court, she will be entitled only to a liberal indemnity for what she has expended, without reference to the amount of his fortune, though if the court be applied to for a prospective allowance, regard may be had to his fortune. Bruin v. Knott, in Ch. by Lord Lyndhurst, 1845. It is the general statute law throughout the United States that the lands of infants may be sold, when their interest or that of others requires it, in the opinion of the courts having jurisdiction of the subject. The guardian is the proper person to apply for the authority, and to exercise it. Statute Law of Kentucky of 1813; R. L. of N. Y. ii. 194; Prince's Dig. of Laws of Georgia, 1837, pp. 243, 248, 250; Massachusetts Revised Statutes of 1836, pt. 2, tit. 5, c. 71, 72; ib. tit. 7, c. 79. (e) Docker v. Somes, 2 My. & K. 665, and notes (c) and (d) below. [297] * 231 OF THE EIGHTS OF PERSONS. [PART IV compound interest. These principles are understood to be well established in the English equity system, and they apply to trustees of every kind ; (a) and the principal authorities upon ■which they lest were collected and reviewed in the chancer}' decisions in New York, to which it will be sufficient to refer, as they have recognized the same doctrine, (ft) Those doctrines, with some exceptions, pervade the jurisprudence of the United States, (c) (a) They have heen applied to a sherifE jpho kept money in the hands of his hanker for years, without color of right. The King v. Villers, 11 Price, 575. (6) Green v. Winter, 1 Johns. Ch. 26; Dunscomb v. Dunscomb, ib. 508; SehiefEe- lin V. Stewart, ib. 620 ; Holridge v. Gillespie, 2 Johns. Ch. 30 ; Davoue v. Fanning, ib. 252 ; Smith v. Smith, i Johns. Ch. 281 ; Evertson v. Tappen, 5 Johns. Ch. 497 ; Clark- son 1/. De Peyster, Hopk. 424 ; Rogers v. Rogers, ib. 515. The principle on which interest is charged, as against trustees who neglect to invest trust moneys, or unduly misapply them, and the authorities, both in England and in the Roman jurisprudence, in which the justice and policy of the rule are explained and enforced, are referred to and discussed by the district judge of the U. S. in Maine, in the Matter of Tliorp, N. Y. Legal Observer for October, 1846 [iv. 377.] (c) Reeve's Domestic Relations, 32-5, 326; 2 N. H. 218; 1 Mason, 345; 6 Conn. 475 ; 1 Peters, 364 ; Eox v. Wilcocks, 1 Binney, 194 ; 3 Desaus. 241 ; 4 Desaus. 702- 705 ; Ringgold v. Ringgold, 1 Harr. & G. 11 ; Edmonds v. Crenshaw, State Eq. Rep. S. C. 224 ; Turney v. Williams, 7 Yerg. 172 ; Karr v. Karr, 6 Dana (Ky.), 3. In this last case, compound interest, by means of periodical rests biennially, was allowed, as the guardian has suffered interest to lie idle. A guardian settled his account with an infant within a month after he came of age, and when the latter had no friend or adviser on his part. Account ordered to be opened, notwithstanding the vouchers had been delivered up. Revett v. Harvey, 1 Sim. & Stu. 502. The practice, as to allowing interest, and in strong cases compound interest, against trustees, is fully dis- cussed in Wright v. Wright, 2 M'Cord, Ch. (S. C.) 185. In New Jersey, guardians who omit to put the ward's money at interest, by reason of fault or negligence, are chargeable with ten per cent interest. Revised Laws, 779, sec. 11. The doctrine laid down in the text, that, in cases of gross delinquency as to trust moneys, an executor or other trustee will be charged with compound interest, though just and reasonable in the cases in which it has been applied, has in some instances been rather unsparingly condemned. Let us for a moment examine its foundations. In Raphael v. Boehm, 11 Ves. 92, 13 id. 407, 590, it was applied to a case where the executor was directed, from time to time, to convert the interest into principal, and lie disregarded the direction to accumulate. In Schieffelin v. Stewart, 1 Johns. Ch. 620, the administrator did much worse. He employed the trust moneys in trade for liis own benefit, and refused to give an account of the profits. In the first case, the doc- trine received the sanction of Lord Rosslyn, Lord Eldon, and Lord Erskine, before all of whom the cause was successively brought. The same doctrine was afterwards recognized by Lord Eldon, in Ex parte Baker, 18 Ves. 246, and enforced by the House of Lords on appeal, in the opinion delivered by Lord Redesdale, in Stackpoole v. Stackpoole, 4 Dow, 209. The only case in the English courts in which the doctrine has been directly questioned and condemned is that of Tebbs u. Carpenter, 1 Mad. 290. The vice-chancellor in that case only refused to apply it to the fact of neg- ligence in the executor, and he admitted that a distinction ought to be taken between [298] LEOT. XXX.] OP THE BIGHTS OP PERSONS. * 231 In the French law, when children are orphans, and have no guardian appointed by the parents, nor by the judge within the negligence and misfeasance and corruption. In this country, I may only allude to the case already mentioned in the New York chancery, and I would then observe that the rule was very well discussed so late as 1827, in South Carolina, by Judge Nott, in giving the opinion of the Court of Appeals in Wright v. Wright, 2 M'Cord, Ch. 185. He admitted, and Chancellor Desaussure declared, that the general rule in South Caro- lina was against allowing rests and compound interests against trustees. He said, however, that some cases would require it, though it might be difficult to draw with precision a line of distinction between those cases in which the rule should and should not apply. He approved of its application as just and proper in the two cases of Raphael v. Boehm and Scliieffelin v. Stewart, and he thought that the cases in which compound interest was to be charged against trustees for abuse of trust were rather exceptions to a general rule than parts of one. So, in Ringgold v. Ringgold, 1 Harr. & G. 11, and Diffenderffer o. Winder, 3 Gill & J. 311, s. c. Raymond's Digested Chan- cery Cases, 363, compound interest was allowed in the Court of Appeals in Maryland, where a trustee speculated with the trust funds, and endeavored to stifle inquiry ; and in another case, where he was directed to invest funds, and receive dividends, and accumulate the fund, and when he had disregarded that duty, and applied the funds to his own use. It has also received the sanction of the Court of Appeals in Kentucky, of the Supreme Court of Massachusetts, and of the Supreme Court of North Carolina, sitting in equity, as proper in certain cases. Fay ;;. Howe, 1 Pick. 527 ; Boynton u. Dyer, 18 Pick. 1; Hughes v. Smith, 2 Dana (Ky.), 253; Hodge v. Hawkins, 1 Dev. & Batt. Eq. 566 ; Karr v. Karr, 6 Dana, 3. The principle on which the allowance of compound interest has been made, even in cases in which it has been allowed, would seem to be condemned in Pennsylvania, in the recent case of English v. Harvey, 2 Rawle, .309, and especially in the elaborate review of the doctrine in the case of Peter M'Call, 1 Ashmead, 357. Compound interest, in any case of the kind, is regarded as too severe and penal upon defaulting trustees, and as being only imperfectly sus- tained by authority. It appears to me, on the other hand, that authority, both foreign and domestic, and the reason of the thing, preponderate alike in favor of the allow- ance under tlie limitations stated, and that the total abandonment of the rule would operate, in many cases, most unjustly, as respects the right of the cestui que trust, and would introduce a lax discipline that would be dangerous to the vigilant and faithful administration of trust estates. It would be tempting trustees to keep in hand, for their own speculation and profit, the interest moneys of others without interest, con- trary to their duty. If a trustee might go and trade with trust moneys, and make no account of the profits, and without any other penalty than the payment of simple interest, without annual rests, on the capital so corruptly perverted, the temptation to abuse would be irresistible. Such men ought to be dealt with by the plain but whole- some rules of Lord Eldon ; and the legal responsibilities of trustees, as laid down in the text, is correctly stated. This doctrine has recently received tlie powerful sanc- tion of the Supreme Court of Pennsylvania, in the opinion delivered by the chief jus- tice, in the case of Harland's Accounts, 5 Rawle, 323. The cases, both foreign and domestic, are, in this opinion, examined, and the argument in favor of the allowance of annual rests, or compound interest, when the trustee, be he executor, administra- tor, guardian, or other trustee, grossly disregards his duty, is conclusively stated, and it applies to those cases in which such an allowance becomes necessary, to place the cestui que trust in the condition in which a conscientious discharge of the trust would have placed him. See infra, 630, note. In the English equity court it seems to be [299] *231 OP THE EIGHTS OP PERSONS. [PAET IT. limitations prescribed, there is to be a meeting of the family (conseil defamille) for the nomination of a guardian. The family council is composed of six relations, half from the paternal and half from the maternal line, and the provision is very specific in its details. This provision has been incorporated, with some small variations, into the civil code of Louisiana, (d) unsettled what shall be the mode and extent of the responsibility of trustees, where they are directed to invest trust moneys in the public stocks or in real security, and they do neither. Sir John Leach, the vice-chancellor, in Marsh v. Hunter, Madd. & Gel. 295, held that they should be answerable for the principal money only, and not for the amount of stocl£ which might have been purchased. But in Hockley v. Ban- tock, 1 Russ. 141, Lord GifEord, the master of the rolls, held differently, and that the trustees were answerable in a way the most beneficial to the cestui que trust, and at his option, either for the money or the stock which might have been purchased. Lord Langdale, the master of the rolls, in Watts v. Girdlestone, 6 Beav. 188, adopted the same principle of compensation. But, again, in Shepherd v. Mouls, 4 Hare, 500, Sir James Wigram, the vice-chancellor, adopted the precedent established by Sir John Leach in Marsh v. Hunter.i id) Code Civil, b. 1, tit. 10, Civil Code of Louisiana, art. 288, &c. 1 See 226, n. 1 ad Jin. [ 300 1 LECT. XXXI.] OF THE RIGHTS OF PERSONS. * 233 LECTURE XXXI. OF INFANTS. 1. WTien of Age. — The necessity of guardians results from the inabilitj'- of infants to take care of themselves ; and this inability continues, in contemplation of law, until the infant has attained the age of twenty-one years. The age of twenty-one is the period of majority for both sexes, according to the English com- mon law, and that age is completed on the beginning of the day preceding the anniversary of the person's birth, (a) The age of twenty-one is probably the period of absolute majority thioughout the United States,^ though female infants, in some of them, have enlarged capacity to act at the age of eighteen. In Vermont and Ohio, females are deemed of age at the age of eighteen. (6) Louisiana follows, in this respect, the common-law period of limitation, though entire majority by the civil law, as to females as well as males, was not until the age of twenty-five ; and Spain and Holland follow, as to males, the rule of the civil law. (c) (a) Anon., 1 Salk. 44; 1 Ld. Rayra. 480; Sir Robert Howard's Case, 2 Salk. 625; Hamlin v. Stevenson, 4 Dana (Ky.), 597; State v. Clarke, 8 Harr. (Del.) 557. (b) 9 Vt. 42, 79. (c) Inst. 1. 23; Partidas on Obligations, 5. 11. 5; Institutes of the Civil Law of Spain, b. 1, tit. 1, c. 1, see. 3 ; Institutes of the Laws of Holland, by Van der Linden, b. 1, c. 5, sec. 7 ; Code Civil, art. 388, 488; 1 ToulUer, 153 ; Civil Code of Louisiana, art. 41, 93. The law of the domicile of birth governs the state and condition of the minor, into whatever country he removes, and his minority ceases at the period fixed by those laws for his majority.^ Barrera v. Alpuente, 18 Martin (La.), 69. This is the rule, as understood by many continental civilians. A person being a minor, or of majority by the law of his native domicile, carries that condition with him wher- ever he goes. Huberus, lib. 1, tit. 3, sec. 12. See also Boullenois and others, cited in Story on the Conflict of Laws, [§ 51 et seq.] But this rule is to be taken with very important qualifications. The state and condition of the person, according to the law of his domicile, will generally, though not universally, be regarded in other countries as to acts done, or rights acquired, or contracts made, in the place of his native domi- cile ; but as to acts, rights, and contracts done, acquired, or made, out of his native domicile, the lex loci will generally govern in respect to his capacity and condi- 1 See 226, n. 1. [801] * 234 OP THE EIGHTS OF PERSONS. [PAET IV. By the French Civil Code, the age of full capacity is twenty-one years, except that twenty-five years is the majority for contract- ing marriage without paternal consent by the male, and twenty- one by the female. Code Civil, sees. 145, 488. Nor can infants do any act to the injury of their property, which they may not avoid or rescind when they arrive at full age. The responsibil- ity of infants for crimes by them committed depends less * 234 on their * age than on the extent of their discretion and capacity to discern right and wrong. 2. Acts Void or Voidable. — Most of the acts of infants. are voidable only, and not absolutely void ; and it is deemed sufficient if the infant be allowed, when he attains maturity, the privilege to affirm or avoid, in his discretion, his acts done and contracts made in infancy. But when we attempt to ascertain from the books the precise line of distinction between void and voidable acts, and between the cases which require some act to affirm a contract, in order to make it good, and some act to disaffirm it, in order to get rid of its operation, we meet with much contra- diction and confusion. A late writer, who has compiled a pro- fessed treatise on the law of infancy, concludes, from a review of the cases, that the only safe criterion by which we can ascertain whether the act of an infant be void or voidable is, " that acts which are capable of being legally ratified are voidable only ; and acts which are incapable of being legally ratified are abso- lutely void." (cZ) But the criterion here given does not appear to free the question from its embarrassment, or afford a clear and definite test. All the books are said to agree in one result, that whenever the act done may he for the benefit of the infant, it shall not be considered void, but he shall have his election, when he comes of age, to affirm or avoid it ; and this, says Ch. J. Parker, (e) is the only clear and definite proposition which tion. If, for instance, a person be a minor by the law of his domicile until the age of twenty-five, yet, in another country, where twenty-one is the age of majority, he may, on attaining that age, make in such other country a valid contract. Male ». Roberts, 3 Esp. 16-3; Thompson v. Ketcham, 8 Johns. 189; Story on the Conflict of Laws, 96, 97, 364 ; Saul v. His Creditors, 17 Martin (La.), 597 ; Burge's Comm. on Colonial and Foreign Laws, i, 103-134. In respect to the control of real property, the law of the domicile yields to the lex ret sitae. This is an acknowledged and uni- versal principle. The continental authorities are cited numerously and at large, in the last work above mentioned, on the subject of minors and the law of majority. (d) Bingham on Infancy, 33, [45.] (c) Whitney v. Dutch, 14 Mass. 457 [802] LECT. XXXI.] OP THE EIGHTS OP PERSONS. * 235 can be extracted from the authorities. But we are involved in difQculty, as that learned judge admits, wlien we come to the application of this principle. In Zouch v. Parsons (/) it was held by the K. B., after a full discussion and great consideration of the case, that an infant's conveyance by lease and release was voidable only ; and yet Mr. Preston (^) condemns that decision in the * most peremptory terms, as confounding * 235 all distinctions and authorities on the point ; and he says that Lord Eldon repeatedly questioned its accuracy. On the other hand^ Mr. Bingham (a) undertakes to show, from reason and authority, that the decision in Burrow is well founded ; and he insists (6) that all the deeds, acts, and contracts of an infant, except an account stated, a warrant of attorney, a will of lands,. a release as executor, and a conveyance to his guardian, are, in judgment of law, voidable only, and not absolutely void, (c) But the modern as well as ancient cases are much broader in their exception. Thus, it is held that a negotiable note, given by an infant, even for necessaries, is void ; (d) and he is not liable for money borrowed, though applied to necessaries ; (e) and his acceptance of a bill of exchange is void ; (/) and his contract as security for another is absolutely void ; (. Weeks, 56 Me. 102; Slator v. Brady, 14 Ir. Com. L. 61, 64, 65 ; Monu- mental Bldg. Ass. No. 2 V. Herman, 33 Md. 128 ; [Owen v. Long, 112 Mass. 403.] But this distinction has been disapproved. Weaver v. Jones, 24 Ala. 420, 424 ; Cum- mings V. Powell, 8 Tex. 80, 90. See Northwestern Ry. Co. v. M'Miehael, 5 Exch. 114, 127. And not only have notes, gifts (see cases cited later in this note), and bonds been held not to be void, Weaver v. Jones, supra ; Mustard V. Wohlf ord, 15 Gratt. 329, 337 ; Guthrie V. Morris, 22 Ark. 411 ; but even a power of attorney has been held only voidable, Hastings that, by reason of the fraud, a wife's contracts even may be enforced against her general property, if she has any ; i. e., any property held in trust for her, though not for her separate use. Vaughan v. Vanderstegen, 2 Drew. 363 ; Hobday v. Peters, 28 Beav. 354, 360; Sharpe v. Foy, L. R. 4 Ch. 35, 42 ; In re Lush's Trusts, ib. 591 ; Clive u. Carew, 1 Johns. & H. 199. On this principle she may affect her interest in real property by election, without deed acknowledged, as required by statute. Barrow u. Bar- row, 4 K. & J. 409. And the equitable rule has been applied, but with some reluctance, to an infant who appeared to be over twenty-one, and represented that x^ The question is one of construction, the point to determine being whether the act complained of constitutes a distinct tort outside the range of user contem- he was so. Ex parte Unity Joint Stock Mut. Bank. Ass. ; In re King, 3 De G. & J. 63, 69; [Ferguson v. Bobo, 54 Miss. 121. Comp. Lempriere v. Lange, 12 Ch. D. 675.] But of course the other party must be deceived, or the infant will not be held. Nelson v. Stocker, 4 De G. & J. 458, 465. But when the alleged duty in- fringed by the infant is not created by the contract, but would have existed in- dependent of it, it would seem to be the better opinion that he will be liable not- withstanding the contract. Thus if a bailor parts with possession of a chattel to an infant, it would seem that he might sue for negligent or wilful injury to his property, or for a use prohibited by him as owner, just as he could have before the bailment. Where an infant hired a mare for a ride on the road, and was told that she was not let for jumping, and that if he wanted a horse for that he could have another one, but lent her to his friend, who put her at a, fence, so that she fell, was transfixed by a stake, and died, it was held that lie was liable. Bur- nard v. Haggis, 14 C. B. n. s. 45. x^ There are cases which make against this line of distinction. Gregg v. Wyman, 4 Cush. 322 ; and see as to negligence, Towne v. Wiley, 23 Vt. 355, 360. But Gregg v. Wyman is expressly denied in Woodman V. Hubbard, 25 N. H. 67, and other cases cited post, 587, n. 1 ; and is overruled by Hall V. Corcoran, 107 Mass. 251. plated by the contract. Walley v. Holt, 35 L. T. 681 ; Ray v. Tubbs, 50 Vt. 688 ; Eaton V. Hill, 50 N. H. 235. [315] *243 OP THE EIGHTS OP PERSONS. [PAET IT. The weight of opinion is, that he may make a testament of chattels, if a male, at the age of fourteen, and, if a female, at the age of twelve years, (i) He may convey real estate, held as a naked trustee, under an order in chancery. The equity juris- diction in this case is grounded on the statute of 7 Anne, c. 19, which has been reenacted in this country, (c) and extends onl}^ to plain and express trusts. Whatever an infant is bound to do by law, the general rule is, that the same will bind him if he does it without suit at law. (ci) If, therefore, he be a tenant in common, he may make a reasonable partition, (e) He may discharge a mortgage, on due payment of the mortgage debt. His acts as executor, at the age of seventeen, will bind him, unless they be acts which would amount to devastavit. (/) There was * 243 no occasion, * said Lord Mansfield, (a) to enumerate in- stances. The authorities are express, that if an infant does a right act, which he ought to do, and which he was com- pellable to do, it shall bind him. We have already seen that an infant of fourteen, if a male, and twelve, if a female, may enter into a valid contract of marriage ; but he is not liable to an action on his executory contract, to marry, though the infant may sue an adult on such a promise. (J) 5. Their Marriage Settlements. — In consequence of the capacity of infants, at the age of consent, to contract marriage, their mar- riage settlements, when reasonable, have been held valid in chancery ; but it has long been an unsettled question whether a (6) Harg. n. 83 to lib. 2, Co. Litt. Mr. Hargrave has collected all the contradic- tory opinions on this point. The civil law gave this power to the infant at the age of seventeen years ; and this period has been adopted by statute in Connecticut. In New York, the period fixed by statute for an infant to make a will of chattels is the age of eighteen in males and sixteen in females. N. Y. Eevised Statutes, ii. 60. (c) N. Y. Revised Statutes, ii. 194, sec. 167. The N. Y. statute declares that when- ever the infant is seised or possessed of any lands by way of mortgage, or in trust only for others, the Court of Chancery, on the petition of the guardian of the infant, or of any person interested, may compel the infant to convey the same. (d) Co. Litt. 172, a. (c) Bavington v. Clarke, 2 Penn. 115. (/) In New York, he is declared to be incompetent, and I think very properly, to act as an executor or administrator. N. Y. Revised Statutes, ii. 69 ; ib. 75. (a) 3 Burr. 1801. (6) Hunt V. Peake, 6 Cowen, 475. In New York, the Court of Chancery is author- ized to decree and compel the specific performance of contracts by the infant who is a representative of the party making tliem. N. Y. Revised Statutes, ii. 194, sec. 169. As to the sale, under the direction of the Court of Chancery, of the real estates of infants, see preceding lecture. [316] LBCT. XXXI.] OF THE RIGHTS OP PERSONS. * 244 female infant could bind her real estate by a settlement upon marriage. In Drury v. Brury, (c) Lord Ch. Northington decided that the statute of 27 Hen. VIII., which introduced jointures, extended to adult women only, and that notwithstanding a join- ture on an infant, she might waive the jointure, and elect to take her dower ; and that a female infant could not, by any contract previous to her marriage, bar herself of a distributive share of her husband's personal estate, in case of his d3ing intestate. This decree was reversed in the House of Lords, upon the strength of the opinions of Lord Hardwicke, Lord Mansfield, and the majority of the judges ; {d) and the great question finally settled in favor of the capacity of the female infant to bar her- self, by her contract before marriage, of her right of dower in the husband's land, and to her distributive share of her husband's personal estate. In New York, *in a late case * 244 in chancery, (a) the question whether an infant could bind herself by an antenuptial contract, was discussed at large, and it was held that a legal jointure, settled upon an infant before marriage, was a bar of her dower ; and that an equitable provision settled upon an infant in bar of dower, and to take effect immediately on the death of the husband, and to continue during the life of the widow, and being a reasonable and compe- tent livelihood for the wife under the circumstances, was also a bar. The question still remains, whether she has the capacity to bind her own real estate by a marriage settlement. Mr. Atherly, (J) after reviewing the cases, concludes that the weight of the conflicting authorities was in favor of her capacity so to bind herself. But in Milner v. Lord Harewood, (c) Lord Eldon has subsequently held that a female infant was not bound by agreement to settle her real estate upon marriage, if she did not, when of age, choose to ratify it ; and that nothing but her own act, after the period of majority, could fetter or affect it ; and in Temple v. Hawley, 1 Sandford's Ch. R. 153, the assistant vice- chancellor, in a very elaborate and able judgment, held that a female infant was not so bound by a marriage settlement of her real estate, but that she might disaffirm it when she became of (c) 2 Eden, 39. (d) 2 id. 60-75 ; Wilmot's Opinions, 177. (a) M'Cartee v. Teller, 2 Paige, 511. (b) Treatise on Marriage Settlements, 28-41. (c) 18 Ves. 259. [317] * 245 OF THE EIGHTS OF PERSONS. [PAET IT. age, and was sole. The assistant vice-chancellor said the pre- ponderance of opinion was, that the infant could not elect after she became of age during coverture to affirm it, though she might undoubtedlj- in that case disaffirm it. The case of Sloeomhe V. Gluhb, {d) admitted that a male infant may bar himself by agreement before marriage, either of his estate by the courtesy, or of his right to his wife's personal property ; and both the male and female infant can settle their personal estate upon marriage. The cases of Strickland v. Goher (e) and Warhurton v. Lytton (/) are considered by Mr. Atherly (j") as favorable to the power of a male infant to settle his real estate upon marriage ; and that seems to be decidedly his opinion. But since the decision of Lord Eldon, in Milner v. Lord Harewood, this conclusion * 245 * becomes questionable ; for if a female infant cannot settle her real estate without leaving with. her the option, when twenty-oue, to revoke it, why should not the male infant have the same option ? ^ 6. Suits in Equity against them. — The law is SO careful of the rights of infants, that if they be made defendants at the suit of creditors, the answer of the guardian ad litem does not bind or conclude them, (ji) Such an answer in chancery, pro forma, leaves the plaintiff to prove his case, and throws the infant upon the protection of the court. It was the maxim of the Roman law, that an infant was never presumed to have done an act to his prejudice, pupillus pati posse nan intelligitur. (h~) In decrees of foreclosure against an infant, there is, according to the old and settled rule of practice in chancery, a day given him when he comes of age, usually six months, to show cause against the decree, and make a better defence ; and he is entitled to be called in for that purpose by process of subpoena, (c) The decree in (d) 2 Bro. C. C. 545. (e) 2 Cas. in Ch. 211. (/) Cited in 4 Bro. C. C. 447. {g) Treatise on Marriage Settlements, 42-45. (a) Eccleton v. Petty, Carthew, 79. (6) Dig. 50. 17, 110. (c) Thomas v. Gyles, 2 Vern. 232 ; Lord Ch. in Gary v. Bertie, ib. 342. Sir Joseph Jekyll, in Eyre v. Countess of Shaftsbury, 2 P. Wms. 120 ; Napier v. Effingham, ib. 1 The St. 18 & 19 Vict. c. 43, recites futvire, with the approbation of the Court that persons who marry during minority of Chancery. See also Brown r. Brown, are incapable of making binding settle- L. R. 2 Eq. 481. Iievering v. Heighe, 2 ments of their property, and then author- Md. Ch. 81 ; 3 id. 365. izes infants above certain ages to do so in [318] LECT. XXXI.J OF THE RIGHTS OP PERSONS. * :345 ordinary cases would be bad on the face of it, and ground for a bill of review, if it omitted to give the infant a day to show cause after he came of age ; though Lord Redesdale held, in Bennett v. ffamill, (d) that such an error in the decree would not affect a bona fide purchase at a sale under it. («) But in the case of decrees for the foreclosure and sale of mortgaged premises, or for the sale of lands under a devise to pay debts, the infant has no day, and the sale is absolute. (/) In the case of a strict foreclosure of the mortgagor's right without a sale, the infant has his day after he comes of age ; but then he is confined to show- ing errors in the decree, and cannot unravel the accounts nor redeem, {g) 401 ; Bennet v. Lee, 2 Atk. 529 ; Jackson v. Turner, 5 Leigh, 119 ; Mills v. Dennis, 3 Johns. Ch. 367 ; Kelsall v. Kelsall, 2 Myl. & K, 409. In England, since the demurrer of the parol has been abolished by the statutes of 11 Geo. IV. and 1 Wm. IV. c. 47, an infant defendant is not entitled to have six months given to him, after attaining the age of twenty-one, to show cause against a decree. Powys v. Mansfield, 6 Sim. 637. The distinction seems to be, that if the decree directs the estate to be sold, the infant has not his six months, but on a simple decree of foreclosure he is allowed the six months. Scholefield c. Heafield, 7 Sim. 667. Unless statutory regulations dis- pense with the rule in specific instances, as in partition and foreclosure, it is the rule in New York, that an infant is to hare six months after coming of age to show cause against a decree. This must be done whenever the inheritance is bound. The right of the parol to demur is abolished by statute in New York, in all cases of descent or devise. Harris v. Youman, 1 Hoffman Ch. 178. (d) 2 Sch. & Lef. 566. (e) Lord Eldon, in 17 Ves. 173, 178. (/) Booth V. Eich, 1 Vem. 295 ; Cooke v. Parsons, 2 Vern, 429 ; Free, in Ch. 184,' B. i;. ; Mills V. Dennis, 3 Johns. 367. (g) Mallack v. Galton, 3 P. Wms. 352 ; Bishop of Winchester v. Beavor, 3 Ves. 317 ; Williamson v. Gordon, 19 Ves. 114. [319] * 248 OF THE EIGHTS OF PEBSONS. fPART IV. LECTURE XXXII. OF MASTER AND SERVANT. The last relation in domestic life which remains to be exam- ined is that of master and servant. The several kinds of persons who come within the description of servants may be subdivided into (1) slaves, (2) hired servants, and (3) apprentices. 1. Of Slaves.^ — Slavery, according to Mr. Paley, (a) may, consistently with the law of nature, arise from three causes; namely, from crimes, captivity, and debt. In the Institutes of Justinian, (5) slaves are said to become such in three ways, namely, by birth, when the mother was a slave ; by captivity in war ; and by the vol untary sale of himself as a slave, by a free- man above the age of twenty, for the sake of sharing the price. Sir William Blackstone (c) examines these causes of slavery by the civil law, and shows them all to rest on unsound foundations ; and he insists that a state of slavery is repugnant to reason and the principles of natural law. The civil law ((f) admitted it to be contrary to natural right, though it was conformable to the usage of nations. The law of England will not endure the exist- ence of slavery within the realm of England. The instant the slave touches the soil, he becomes free, so as to be entitled * 248 to be protected in the * enjoyment of his person and prop- erty, though he may still continue bound to service as a servant, (a) There has been much dispute in the English books, whether trover would lie for a negro slave ; and the better opinion is, that it will not lie, because the owner has not an absolute prop- erty in the negro ; and by the common law, it was said, one man could not have a property in another, for men were not the subject (a) Principles of Moral PhiloBophy, 158, 169. (ft) Inst. 1. 3, 4. (c) Comm. i. 423. {d) Inst. 1. 3, 2. (a) 1 Bl. Comm. 424. 1 See 258, n. 1. [320] LECT. XXXII.] OP THE EIGHTS OP PEESONS. * 249 of property, (b) In the case of Somerset, in 1772, who was a negro slave, carried by his master from America to England, and there confined, in order to be sent to the West Indies, he was dis- charged by the K. B. upon habeas corpus, after a very elaborate discussion, and upon the ground that slavery did not and could not exist in England, under the English law. (c) The Scotch lawyers (d') mention the case of Knight, a negro slave, brought from the West Indies to Scotland by his master in 1773 ; and, as the slave refused to continue in his service, he applied to the courts in Scotland for assistance, to compel his slave to return. It was held that slavery was not recognized by the law of Scot- land, and that the claim of the master to the perpetual service of the negro was inadmissible, for the law of Jamaica did not apply to Scotland ; and the master's claim was consequently repelled by the sheriff's court, and by the court of session. But though personal slavery be unknown in England, so that one man cannot sell nor coniine and export another, as his property, yet the claim of imported slaves for wages, * without a special promise, does not seem to receive the * 249 same protection and support as that of a freeman, (a) Mr. Barrington, who has given a very strong picture of the degrada- (h) Smith V. Gould, 2 Salk. 666 ; 2 Ld. Raym. 1274 ; Sntra, Butts v. Penny, 2 Lev. 201, and Lord Hardwicke, in Pearne v. Lisle, Amb. 75. Mr. Justice Best, in Forbes V. Cochrane, 2 B. & C. 448, 3 Dowl. & Kyi. 679, ». -j., said that the judges were above the age in which they lived, and stood upon the high ground of natural right, when tliey declared that in England human beings could not be the subject-matter of property. He insisted that the moment a slave put his foot on board a British man-of-war, out of the waters of colonial jurisdiction, he became free. This is the law now in France ; and as soon as the slave lands on tlie French soil, he is free. The decision in the case last mentioned was, that if a slave from a slaveholding state or country gets out of the territory, and under the protection of British jurisdiction, without any wrongful act done by the party giving that protection, he becomes free, and the English law protects him from being reclaimed. The doctrine of the Supreme Court of the United States, in Prigg v. The Commonwealth of Pennsylvania, 16 Peters, 839, was to the same effect ; for it was declared that a state of slavery was a mere municipal regulation, and no nation was bound to recognize the state of slavery as to foreign slaves within its territory. (c) Loft, 1 ; Harg. State Trials, xi. 339. {d} 1 Ersk. Inst. 159 ; Karnes's Principles of Equity, ii. 134. (a) Alfred v. Marquis of Fitzjames, 3 Esp. 3; The King u. The Inhabitants of Thames Ditton, 4 Doug. 300. Where a West India slave accompanied her master to England, and voluntarily returned back to the West Indies, it was held that the residence in England did not finally emancipate her, and she became a slave on her return, though no coercion could be exercised over her while in England. The Slave Grace, 2 Hagg. Adni. 94. VOL. II. -21 [321j * 250 OP THE BIGHTS OF PERSONS. [PART IV. tion and oppression of the tenants under the English tenure of pure villenage, (5) is of opinion that predial servitude really- existed in England so late as the reign of Elizabeth ; and that the observation of Lillbarn, that the air of England was, at that time, too pure for a slave to breathe in, was not true in point of fact. Be that as it may, there is no such thing now as the admis- sion of slaves or slavery in the sense of the civil law, or of the laws and usages in the West Indies, either in England or in any part of Europe ; and it is very generally agreed that the African slave trade is unjust and cruel, (c) It is no less true than singular, that personal slavery prevailed with uncommon rigor in the free states of antiquity ; and' it can- not but diminish very considerably our sympathy with their spirit and our reverence for their institutions. A vast majority of the people of ancient Greece were in a state of absolute and severe slavery. The disproportion between freemen and slaves was nearly in the ratio of thirty thousand to four hundred thou- sand. (cZ) At Athens they were treated with more humanity than in Thessaly, Crete, Argos, or Sparta ; for at Athens the philosophers taught and recommended humanity to slaves as a sure test of virtue. They were entitled to sue their master for excessive ill usage, aftd compel him to sell them ; and they had also the privilege of purchasing their freedom, (e) In the Roman republic, the practice of predial and domestic slavery was * 250 equally * countenanced, and still more abused. There were instances of private persons owning singly no less than four thousand slaves ; (a) and by the Roman law, slaves (6) Observations on the Statutes, chiefly the more Ancient, 232-241. (c) See infra, 254, n. (a). (d) 1 Mitf. Hist. 355. A small aristocracy gorerned Attica, while the soil was cultivated by a working class of 400,000 slaves, and a similar disproportion existed throughout Greece. The Island of ^gina is stated to have held, at one time, 470,000 slaves, a large proportion of whom were agricultural serfs. The slave population of Corinth, in lier greatest prosperity, was rated at 460,000 slaves. According to a learned article on " the democracy of Athens," in the New York Review for July, 1840, the whole number of slaves in Attica was about 365,000, to 95,000 citizens and 45,000 resident foreigners. Even Aristotle considered the relation of master and slave just as indispensable, in every well-ordered state, as that of husband and wife. Arist. Pol. b. 1, c. 1. (e) Potter's Antiq. of Greece, 57-72; 3 St. John, on the Manners and Customs of Ancient Greece, 18, 19, 22. (a) 1 Gibbon's Hist. 66-68. Hume, in his Essay on the Populousness of Ancient Nations, says, that some great men among the Romans possessed to the number of [322] LECT. XXXII.J OF THE RIGHTS OF PERSONS. * 250 were considered in the light of goods and chattels, and could be sold or pawned. They could be tortured, and even put to dgath, at the discretion of their masters. (J) By a succession of edicts, which humanity, reason, and policy dictated, and which were enacted by Claudius, Hadrian, and Antoninus Pius, the jurisdic- tion of life and death over slaves was taken from their masters, and referred to the magistrate ; and the Urgastula, or dungeons of cruelty, were abolished, (c) The personal servitude which grew out of the abuses of the feudal system, and to which the Germans had been accustomed, even in their primitive settlements, was exceedingly grievous ; {d) but it is not supposed to have equalled, in severity or degrada- tion, the domestic slavery of the ancients, or among the European colonies on this side of the Atlantic. The feudal villein of the. lowest order was unprotected in his property, as against seizure by his master, and was subjected to the most ignoble services ; but his circumstances distinguished him materially from the Greek, Roman, or West India slave. No person in England 10,000 slayes. In the Augustan age, one half of the population of the Eoman world (and the whole population was estimated at 120,000,000 of souls) were slaves. 1 Gibbon's Hist. 68. Mr. Blair, in his Inquiry into the State of Slavery among the Romans (1833), assigns as many as three slaves to every free person in Italy in the time of the Emperor Claudius. Almost all the agricultural, as well as domestic labor, was performed by slaves, even from the time of Tiberius Gracchus. Plutarch's life of T. Gracchus ; Hooke's Eoman History, b. 6, c. 7. Barbarian captives taken in war were considered slaves, and purchased by slave merchants for the Italian market. (6) Inst. 1. 8. 1 ; Taylor's Elem. of the Civil Law, 429. By the lex Aquilta, passed soon after the era of the twelve tables, the killing of a slave by a third person was put upon the same ground as the killing of a quadruped, and a pecuniary recom- pense was to be made to the owner. When a master was murdered by one of his domestic slaves, all the slaves of his household at the time were to be put to death ; and Tacitus gives a horrible instance, in the time of Nero, of the application of this atrocious law in the case of the murder of Pedanius Secundus, a man of consular rank, and who possessed 400 domestic slaves, who were all put to death, and with the approbation of the senate. Tacit. Ann. lib. 14, sec. 42-45. For the Roman law, see ib. 13, 32. (c) 1 Gibbon, ubi supra, 65 ; Inst. 1. 8. 2 ; Taylor's Elem. of the Civil Law, 433- 435. The horrible cruelties inflicted upon the slaves in ancient times, and particu- larly by the Romans, and the barbarous manners and loss of moral taste and just feeling which were the consequence, are strikingly shown and illustrated from pas- sages in the classics, by Mr. Hume, in his very learned Essay on the Populousness of Ancient Nations. (d) See a picture of the degradation and rigors of personal servitude among the Gothic barbarians of Gaul. Gibbon's Hist. vi. 859-362, 8vo ed. ; Robertson's Charles V. 1. n. 9. [323] * 251 OP THE EIGHTS OF PERSONS. [PAET IV. was a \'illein in the eye of the law, except in relation to his master. As to him quiequid acquiritur servo acquiritur domino. In villenage in gross, all acquisitions of property, real 'and per- sonal, made by the villein, belonged to his lord. To all * 251 other persons * he was a freeman, and as against them he had rights of property ; and his master, for excessive injuries committed upon the vassal, was answerable at the king's suit, (a) So, also, the life and chastity of the female vassal, even of the lowest degree, were protected (feebly, probably, in point of fact, but effectually in point of law), by the right of prosecution of the lord, through appeal by or on behalf of the injured vassal. (6) Las Casas, the Spanish bishop of Chiapa, with the view of re- lieving the oppressed Indians from the most cruel and fatal slavery, and after all other expedients had failed, proposed to the Spanish government to substitute the hardy Africans for the feeble Indians. This was in 1517 ; and the Emperor Charles V. granted a patent to certain persons to supply the Spanish Islands with slaves. The importation of negro slaves into the Spanish colonies had commenced as early as 1501, and was continued under the sanction of the Spanish monarchs. (c) Las Casas is said, therefore, to have chosen between two existing evils. He (a) Co. Litt. 116, 117, 119. Villeins, says Lord Coke, 2 Inst. 45, are free against all men, saving their lord. The lord was indictable for maiming his villein, but the latter was not entitled to his appeal of mayhem, for he could not hold his damages if he received any ; and for a similar reason, the villein could not have an appeal of robbery, for all his goods belonged to his lord. Litt. sec. 194 ; Co. Litt. 123, b. In the Anglo-Saxon period, the power of lords over their slaves was not quite absolute. If the master beat out a slave's eye or tooth, the slave recovered his liberty. If he killed him, he paid a fine to the king. LL. Alf. Lamb. Arch. 17. At the time of the Norman conquest, the greater part of the land in England was cultivated by slaves, and the free tenants were extremely few in comparison. Turner's Hist, of England during the Middle Ages, i. 135. The code of the Visigoths in Spain was honorably distinguished from the Salic law and othe'r codes of the barbarians, in the moderation of its provisions respecting slaves. By the Visigothic code, the slave was allowed to acquire property and purchase his freedom, and it provided for his personal security against the extreme violence of his master. See the Fuero Juzgo, as cited by Mr. Prescott, in his History of the Reign of Ferdinand and Isabella, i. Int. 35, note. (6) Littleton's Ten. sec. 189, 190, 194 ; Hallam's View of the Middle Ages, i. 122, 124, ii. 199. (c) Bancroft's History of the United States, i. 182, 183. The Spaniards and Por- tuguese dealt in the traffic of African negroes, as slaves, even before thediscoyery of America. lb. i. 178, 179. [324] LECT. XXXII.] OP THE BIGHTS OP PERSONS. * 252 wised to eradicate the greater by resorting to the lesser, (c^) Soto, the Dominican, and confessor of Charles V., and professor in the University of Salamanca, was a more consistent, if not a more illustrious, opponent of slavery. He boldly attacked the African slave trade from the very beginning of it, as iniquitous : and, by his influence with his master, he procured an edict, in 1543, tending to mitigate slavery in the colonies, (e) * Sir John Hawkins was the first Englishman who, in * 252 1562, introduced the practice of buying or kidnapping ne- groes in Africa, and transporting and selling them for slaves in the West Indies. In 1620, a Dutch vessel carried a cargo of slaves from Africa to Virginia ; and this, says Chalmers, (a) was the sad epoch of the introduction of African slaves into the Eng- lish colonies on this continent. The Dutch records of New Neth- erlands allude to the existence of slaves in their settlements on the Hudson, as early as 1626 ; (ft) and slavery is mentioned in the Massachusetts laws between 1630 and 1641. (c) Domestic slavery having thus inauspiciously commenced, it continued and increased throughout the United States when they were colonies of Great Britain. It exists to this day in all the southern states of the Union ; but it has become extinct in New York and the eastern states, and probably it is in the course of abatement and extinc- tion in some others. In Pennsylvania, by an act of March 1, 1780, and in New Jersey, by acts of February 14, 1784, and of the 24th February, 1820, passed for the gradual extinction of (d) Irving's Life of Columbus, iii. App. n. 26. Our learned and ingenious coun- tryman endeavors to relieve the memory of this excellent man from reproach for this most reprehensible act, by showing the general benevolence of his motives. Bryan Edwards, in his History of the British Indies, ii. c. 2, spiritedly undertook the same task. (e) Dominic Soto's Treatise, De Justitia et Jure, and which very scarce book the author of a learned article in the Edinburgh Review, xxvii. 230, had seen and read, is said to contain a strong condemnation of the African slave trade. Slavery existed in a very mild form among the Mexicans prior to the conquest of their country by Cortez. The slave was allowed to have his own family, to hold property, and even other slaves. Intermarriage was allowed between slaves and freemen. His cliildren •were free, for no one could be born to slavery in Mexico ; an honorable distinction, says Mr. Prescott (Hist, of the Conquest of Mexico, 1. 37), not known, he believes, in any civilized community where slavery has been sanctioned. (a) Political Annals, 49. (6) Moulton's History of New York, i. 373. (c) Massachusetts Historical Collections, iv. 194. The government and people of Massachusetts, in 1645 and 1646, resented the first importation of African slaves into the colony as a heinous crime. Winthrop's History, ii. 245, 379, 380 ; Bancroft's History, i. 187. [325] *253 OF THE EIGHTS OP PERSONS. [PART IV. slavery, this great evil has been removed from them, and all children born of a slave after the 4th day of July, 1804, were declared free. In Massachusetts, it was judiciall}' declared, soon after the Revolution, that slavery was virtually abolished by their constitution, and that the issue of a female slave, though born prior to their constitution, and as earty as 1773, was born free, (c?) But though this be the case, yet the effect of the former legal distinctions is still perceived ; for, by statute, a mar- riage in Massachusetts between a white person and a negro, Indian, or mulatto, is absolutely void. («) In Connecticut, stat- utes were passed in 1784 and 1797, which have, in their gentle and gradual operation, nearly, if not totally, extinguished slavery in that state. (/) * 253 I shall not attempt, nor have I at * hand the means, to collect and review the laws of all the southern states on the subject of domestic slavery. They are, doubtless, as just and mild as is deemed, by those governments, to be compatible with the public safety, or with the existence and preservation of that species of property ; and yet, in contemplation of their laws, slaves are considered in some respects, though not in criminal prosecutions, as things or property, rather than persons, and are vendible as personal estate. They cannot take property by descent or purchase, and all they find, and all they hold, belongs to the master. They cannot make lawful contracts, and they are deprived of civil rights. They are assets in the hands of execu- tors, for the payment of debts, and cannot be emancipated by will or otherwise, to the prejudice of creditors, (a) Their con- {d) See Winchendon w. Hatfield, 4 Mass. 128, and Littleton v. Tuttle, ib. note. (e) Dane's Abr. c. 46, art. 2, sec. 3; Mass. Revised Statutes, 1836. This prohibi- tion was repealed since 1836. In Virginia, it is an indictable offence. 1 R. C. of Virginia, 275. (/) Reeve's Domestic Relations, 340 ; Statutes of Connecticut, 1821, p. 428. There (vere twenty-five slaves remaining in Connecticut in 1830. In 1774, the importation of slaves into that state was prohibited. In Rhode Island, no person could be born a slave on or after the first of March, 1784. In New Hampshire and Vermont, slavery was abolished by their respective constitutions ; and it was a fundamental, and declared to be an unalterable, provision in the ordinance of Congress, of July 13, 1787, for the government of the territory of the United States northwest of the river Ohio, that there should be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crime. This provision effectually prevented the introduction of slavery into any of the states north of the Ohio, and included in what was then called the North-Western Territory of the United States. (o) Walker v. Bostick, 4 Desaus. (S. C.) 266; Brandon v. Huntsville Bank, [826] LECT. XXXII.] OP THE RIGHTS OP PERSONS. * 253 dition is more analogous to that of the slaves .of the ancients than to that of the villeins of feudal times, both in respect to the degradation of the slaves and the full dominion and power of the master. The statute regulations follow, the principles of the civil law in relation to slaves, and are extremely severe, but the master has no power over life or limb ; slaves are still re- garded as human beings. under moral responsibility as to crimes, and the severe letter of the law is softened and corrected by the humanity of the age and the spirit of Christianity. (J) The laws of some of the southern states manifest, likewise, great jealousy in respect to any external influence or communications calculated to render the slave population discontented with their condi- tion, (e) These severe penal restrictions must have proceeded 1 Stewart (Ala), 320; Pleasants v. Pleasants, 2 Call, 319; The State v. Philpot, Dudley (Ga.), 46; Nancy v. Snell, 6 Dana (Ky.), 149; Brlecoe v. Wicklifee, ib. 165; [Warner v. Swearingen], ib. 195; Fable v. Brown, 2 Hill Ch. (S. C.) 396; Gregg V. Thompson, 2 Mill Const. 331 ; Bland u. Negro Dowling, 9 Gill & J. 19; Revised Statutes, N. C. c. 89, sec. 24 ; View of the Laws of Virginia relative to Slavery, Am. Jour. n. 13 ; Civil Code of Louisiana, art. 35, 173 ; Act of Maryland, 1798, c. 101 ; Laws of South Carolina, Brevard's Digest, 229. In Louisiana, slaves are considered as real estate, *nd descend as such ; whereas in Maryland, Virginia, South Carolina, and Missouri, they are regarded as personal property. In Kentucky, the law on this subject is anomalous. Slaves are for most purposes regarded as personal property, and yet, so far as respects wills, they are by statute declared to be real estate, and they descend s«6 modo to the heir. In Massachusetts, under the colony administra- tion, slaves were property, transferable like chattels, and were assets in the hands of executors and administrators, and the issue of female slaves followed the condition of the mother. Parsons, Ch. J., 4 Mass. 127. In Tennessee, Georgia, and Arkansas, property in slaves is protected specially by the constitution, which declares that the legislature shall have no power to pass laws for the emancipation of slaves without the consent of the owner. But, as the chief justice observed, in the case of the Com- monwealth V. Aves, 18 Pick. 216, the laws that regard slaves as property are local, and only apply so far as such laws pro/nio mgore can operate. Such local laws do not make them personal property generally ; and in Williams v. Ash, 1 How. 1, it was held that a bequest of a slave by will, with a conditional limitation of freedom to the slave, if sold by the legatee, took effect on the sale. The limitation over in favor of the slave, if sold, was valid. (6) Stroud's Sketch of the Laws relating to Slavery, Phil. 1827, passim ; Ruffin, J., in the case of The State v. Mann, 2 Dev. (N. C.) 263; The State v. Jones, Walker, , (Miss.), 83; The Staie v. Philpot, Dudley (Ga.), 46. (c) In Georgia, by an act in 1829, no person is permitted to teach a slave, a negro, or free person of color, to read or write. So, in Virginia, by statute, in 1830, meet- ings of free negroes, to learn reading or writing, are unlawful, and subject them to corporal punishment ; and it is unlawful for white persons to assemble with free negroes or slaves, to teach them to read or write. The prohibitory act of the legisla- ture of Alabama, passed in the session of 1831-2, relative to instruction to be given to the slave, or free colored population, or exhortation or preaching to them, or any [327] * 254 OP THE EIGHTS OP PERSONS. [PAKT IV. from the strong^ and fearful apprehension that the kind of knowl- edge and instruction which are interdicted, would greatly in- crease the means, capacity, and tendency of slaves to combine for purposes of mischief and insurrection. The great principle of self-preservation doubtless demands, on the part of the white population dwelling in the midst of such combustible materials, unceasing vigilance and firmness, as well as uniform kindness and humanity. The evils of domestic slaver}' are inevitable, but the responsibility does not rest upon the present generation, to whom the institution descended by inheritance, provided they have endeavored by all reasonable means to arrest or mitigate the evil. (cZ) We will close this division of the subject with a brief historical detail of the laws of New York concerning the origin, progress, and final extinction of domestic slavery. Our domestic annals afford sufficient matter of alternate humiliation and pride, for painful and for exulting contemplation. The system of domestic slavery, under the colony laws of New York, was as firmly and rigorously established as in any part of the country ; and, as it would seem, with more severity than in either Massachusetts or Connecticut. In the year 1706, it was declared by statute (e) that no slave should be a witness for or mischievous influence attempted to be exerted over them, is sufficiently penal. Laws of similar import are presumed to exist in the other slaveholding states ; but in Louisianaj the law on the subject is armed with tenfold severity. It not only forbids any person teaching slaves to read or write, but it declares that any person using lan- guage, in any public discourse, from the bar, bench, stage, or pulpit, or any other place, or in any private conversation, or making use of any signs or actions, having a tendency to produce discontent among the free colored population, or insubordination among the slaves, or who shall be knowingly instrumental in bringing into the state any paper, book, or pamphlet, having the like tendency, shall, on conviction, be pun- ishable with imprisonment or death, at the discretion of the court. (d) By the statute of 3 & 4 William IV. u. 73, slavery ceased throughout the British colonies, in the West Indies and elsewhere, on the 1st of August, 1834. The then existing slaves were to become apprenticed laborers. The term of their appren- ticesliip was to cease partly on the 1st of August, 1838, and totally on the 1st of August, 1840, when the black and colored population would become altogether free. The sum of twenty millions sterling was to be distributed, in certain proportions and on certain conditions, to the West India planters, as a compensation for the loss of their property in the slaves, by the force and operation of the statutes. This statute will remain for ever a memorable event in the annals of British legislation. It is entitled, an Act Jbr the abolition of slavery fkroughxmt the British colonies ; for promotincf the industry of the manumitted slaves ; and for compensating the persons hitherto entitled to the services of such slaves. The title itself is declaratory of the boldness of the design, and the sense of justice and benevolence which accompanied its latter provisions. (c) Colony Laws, Smith's ed. i. 69. [328] CECT. XXXII.] OP THE EIGHTS OP PERSONS. * 255 against any freeman, in any matter, civil or criminal. (/) The consequence of this was, that a slave found alone could be beaten with impunity by any freeman, without cause. It was shortly after enacted, (^r) that if any slave talked impudently to any Christian, he should be publicly whipped, at the discretion of any justice of the peace, not exceeding forty stripes. By succes- sive acts of the colonial assembly, passed in 1702, 1712, and 1730, (A) the debasement * of the civil condition of * 255 slaves was greatly augmented. The master and mistress were authorized to punish their slaves at discretion, not extend- ing to life or limb, and each town was authorized to appoint a common whipper for their slaves, to whom a safary was to be allowed. If guilty of any of the numerous capital offences of that day, they were to be tried by three justices of the peace, and five freeholders, and were denied the benefit of the testi- mony of their associates, if in their favor, though it might be used against them ; and they were to be put to death in such a manner as this formidable tribunal thought proper, (a) In the year 1740, it was observed, by the legislature, that all due encouragement ought to be given to the direct importation of slaves, and all smuggling of slaves condemned as " an eminent discouragement to the fair trade." (5) Such were the tone and policy of the statute law of New York on the subject of domestic slavery, during the whole period of the colonial history ; but after the era of our independence, the {/) This disability was applied to slaves by the other colonies. In Kentucky, by a statute as late as 1798, no negro, mulatto, or Indian, can be a witness, except in cases in which negroes, mulattoes, or Indians alone should be parties. But this restriction is understood to apply only to testimony in suits pending between the parties, and does not disqualify freemen of color to take an oath and swear to facta in every case in which a white man may be concerned. 1 Dana (Ky.), 467. (j) Colony Laws, i. 72. \h) lb. i. 193-199 ; Bradford's ed. of the Colony Laws, 1719. (a) They were occasionally adjudged to the stake ; and an execution of this kind, and probably the last of this kind, was witnessed at Poughkeepsie, shortly before the commencement of the revolutionary war. (h) Colony Laws, i. 283, 284. It ought, however, to be noted, in honor of the laws promulgated under the early administration of the colony by the Duke of York, and known as the Duke's Laws, and which continued in force from 1665 to 1683, that it was forbidden to a " Christian to keep a slave, except persons adjudged thereto by authority, or such as have willingly sold or shall sell themselves." See an analysis of the Duke's Laws in Thompson's History of Long Island, New York, 1839, p. 102, and which contained many wise and just provisions. [329] *266 ■ OF THE RIGHTS OF PERSONS. [PAET IV. principles of natural right and civil liberty were better known and obeyed, and domestic slavery speedily and sensibly felt the genial influence of the Revolution. The first act that went to relax the system was pasbed in 1781, and it gave freedom to all slaves who should serve in the American army for the term of three years, or until regularly discharged, (c) A more liberal provision was made in 1786, by which all slaves, becoming pub- lic property by attainder, or confiscation of their master's estates, were immediately set free ; and if unable to maintain themselves, they were to be supported by the state, (c?) These were * 256 only partial alleviations * of a great public evil In 1788, a more 'extensive and effectual stroke was aimed at the practice of domestic slavery. It put an absolute stop to all further importation of slaves after the 1st of June, 1785, by pro- hibiting future sales of such slaves. Facilities were also given to the manumission of slaves. The penal code was greatly melio- rated in respect to slaves. In capital cases, thej' were to be tried by jury, according to the course of the common law, and the tes- timony of slaves was made admissible for, as well as against, each other, in criminal cases, (a) In one single case, the punishment of slaves was made different from that of whites. If convicted of crimes under capital, and the court should certify transpor- tation to be a proper punishment, they might be transported to foreign parts by the master. (J) In 1799, the legislature took a step towards the final removal, as well as the intermediate miti- gation, of this evil. They commenced a system of laws for the gradual abolition of slavery, (c) It was declared that every child born of a slave within the state after the 4th of July, 1799, should be born free, though liable to be held as the servant of the proprietor of the mother, until the age of twenty-eight years in a male, and twenty-five in a female, in like manner as if such person had been bound by the overseers of the poor to service for that period. This law was further enlarged and improved in (c) Act of N. Y., March 20, 1781, u. 32, sec. 6. ((/) Act of May 1, 1786, i;. 58, sec. 29, 30. (a) Act of February 22, 1788, u. 40. This act was hostile to the importation ol slaves as an article of trade, and not to the existence of slavery itself ; for it re- enacted the rule of the civil law that the children of female slaves should follow the state and condition of the mother. (6) Act of March 22, 1790, c. 28. (c) Act of March 29, 1799, c. 62. [330] LECT. XXXII.J OP THE EIGHTS OF PERSONS. * 257 1810, and it was then ordained (d) that the importation of slaves, except by the owner coming into the state for a residence short of nine mouths, should be absolutely prohibited ; and every slave imported contrary to the act was declared free. All contracts for personal service, by an}' person held or possessed as a slave out of the state, were declared to be void ; and to entitle a person to claim the services of a person born of a slave, * after the 4th of July, 1799, he must have used all reason- * 257 able means to teach the child to read, or, in default, the child would be released from servitude after the age of twenty- one. These provisions were all incorporated into the act of the 9th of April, 1813, which contained a digest of the existing laws on the subject of slavery. Under the operation of thoise provisions, slavery very rapidly diminished, and appearances indicated that, in the course of the present generation, it would be totally extin- guished. Those that were, slaves on the 4th of July, 1799, and not manumitted, were the only persons that were slaves for life, except those that were imported prior to the first of May, 1810, and remained with their former owners unsold. No slave im- ported since the 1st of June, 1785, could be sold ; and no slave imported since the 1st of May, 1810, could be held as a slave; and no person born within the state since the 4th of July, 1799, was born a slave. At last by the act of 31st of March, 1817, (a) which digested anew all the former laws on the subject, provi- sion was made for the complete annihilation of slavery in about ten years thereafter, by the section which declared " that every negro, mulatto, or mustee, within the state, born before the 4th of July, 1799, should, from and after the 4th day of July, 1827, be free." After the arrival of that period, domestic slavery became extinguished in the state, and unknown to the law, except in the case of slaves brought within the state by persons as travellers, and who do not reside or continue therein more than nine months. (5) In the language of the New York ((/) Act of March 30, 1810, c. 115. (a) Laws of New York, sess. 40, c. 137. (b) Act, supra, sec. 15, and Act, sess. 42, c. 141, sec. 3. N. York R. S. i. 657. This latter provision does not appear in the edition of the new R. S. of N. Y. in 1846. This exception in favor of the master Bo/MnJarjVt/ bringing his slave into the state tem- porarily as a traveller prevails, also, by statute, in Rliode Island, New Jersey ,Jllinois, and Pennsylvania; and it is an act of comity on the part of the state, and was not [331] * 257 OF THE EIGHTS OP PERSONS. [PART IV. Revised Statutes, (c) '' every person born within the state is free ; every person hereafter born within the state shall be free ; and required by the Constitution of the United States (art. 4, sec. 2, u. 3), nor by the act of Congress of Feb. 12, 1793, c. 7, made in pursuance thereof, for they only apply to persons escaping, or hem^ fugitives from service or labor. The law of Illinois enforces the comity due to travellers in passing over the state by protecting his property, and especially his slave whom he brings with him for his temporary use, and the slave does not thereby constitutionally become free ; and the law makes it penal to harbor or conceal a slave so temporarily brought into the state for his master's service. They consider the protection of the property in such cases to be required by a liberal international comity. VVillard v. The People, 4 Scam. 461. Again, in Eells v. The People, 4 Scam. 498, the state laws providing for punishing persons who secrete or harbor slaves who are in the state by the consent and in the service of the master as a traveller, is vindicated as constitutional under the Constitution of the United States and of the state. The constitutions of the State of Georgia, of 1798, and of Florida, of 1839, for the-better protection of the slave property in that state, deny to the legislature the power to pass laws for the emancipation of slaves, without the con- sent of the owners, or to prevent emigrants to that state from bringing with them sucli persons as are slaves by the laws of any of the United States. On the other hand, the constitution of the latter state confers upon the legislature the power to pass laws to prevent free persons oi color from emigrating to that state, or from being discharged from any vessel in any of the ports of Florida. The legislature of New York has gone as far as it was doubtless deemed competent for them to do, to protect " free citizens or inhabitants of the state " from being im- prisoned or reduced to slavery in any other state. It makes it the duty of the governor, if any such person be kidnapped or transported out of the state to be held in slavery, or be wrongfully imprisoned or held in slavery, " by color of any usage or rule of law prevailing in such state," to procure his liberty, and to employ an agent for that purpose to take the legal measures to effect his restoration. 1 N. York, R. S. 3d ed. 172. In Massachusetts, where no such state statute exists, it was held, in August, 1836, in the case of the slave child Med, before the Supreme Court, that if a slave be vol- untarily brought into Massachusetts, by his master, or comes there with his consent, the slave becomes free, and cannot be coerced to return. The court, on habeas carpus, discharged the child from the custody of its mistress. See also, to the same point, the case of Commonwealth v. Aves, 18 Pick. 193; Commonwealth v. Taylor, 3 Mete. 72. On the other hand, it was held, in the case of Johnson v. Tompkins, Baldw. C. C. 571, that the master from another state may pursue and take his fugitive slave with- out warrant. He may arrest him anywhere and at any time, and no person has a right to oppose the master in the act, or to demand proof of property. The Constitution and laws of the United States secure this right to reclaim fugitive slaves against state legislation. In some of the slave-holding states it is held, that if a slave from such a state goes lawfully into a non-slaveholding state, and acquires a domicile there with his master, or is emancipated there by his master, he becomes emancipated, and ceases to be a slave on his return. But if he be carried there by his master for a temporary purpose, and returns, his state of slavery is resumed. Lunsford v. Coquil- lon, 14 Martin (La.), 405; 2 A. K. Marsh. (Ky.) 467; Graham v. Strader, 5 B. Mon. 173; Blackmore v. Phill, 7 Yerg. 452. See also the case of the slave Grace, in 2 Hagg. [332] (c) Vol. i. 659, sec. 16. LECT. XXXII.] OP THE RIGHTS OF PERSONS. * 258 every person brought into the state as a slave (with the exception in favor of travellers), * shall be free." But * 258 though slavery be practically abolished in New York, the amended constitution of 1821, art. 2, placed people of color, who were the former victims of the slave laws, under permanent disa- bilities as electors, by requiring a special qualification as to prop- erty, peculiar to their case, to entitle them to vote, (a) ^ Adm. 94. In the case of Marie Louise v. Marot, 9 La. 473, and of Smith v. Smith, 13 La. 441, the doctrine of emancipation would seem to be carried further than in tlie above cases ; for where a slave was carried by the owner to France, where slavery was lot tolerated, and under the operation of whose laws the slave became imme- diat ly free, and was brought back to Louisiana, it was held that the slave being free for one moment in France, could not be reduced again to slavery in Louisiana. Thomas u. Generis, 16 La. 483, s. p. In Connecticut, a similar decision to that in Massachusetts was made by its Supreme Court, in June, 1837. It was the case of a female slave, brought by her master from Georgia for a temporary residence ; and the court held that the master having lefi the slave in Connecticut, on a temporary absence from the state, she became forthwith free. Jackson v. Bulloch, 12 Coini. 38. (a) This disability was continued in the revised constitution of New- York of 1846, though the convention sufimitted to the test of popular suffrage the question, whether colored male citizens should have the right to vote without any such restriction, and a large majority of the electors of the state, in November, 1846, answered the ques- tion in the negative. In most of the United States there is a distinction, in respect to political privileges, between free white persons and free colored persons of African blood ; and in no part of the country, except in Maine, do the latter, in point of fact, participate equally with the whites, in the exercise of civil and political rights. The manumission of slaves is guarded in some, at least, of the slaveholding states, from abuse and public mischief, by legislative provisions. Thus, for instance, in Tennes- see, a deed or will emancipating a slave is not void, but it communicates to the slave only an imperfect right, until the state has assented to the act. The statute of 1777, authorizing the county courts to give the assent of the government to the manumis- sion of slaves, restricted the assent to cases where the slave had rendered meritorious services. The act of 1801 repealed that part of the act of 1777, requiring the slave to have rendered meritorious services as a condition of the emancipation, and the county courts were to exercise their sound discretion in giving or withholding the assent. The act of 1829 vested the same discretion in the chancellors of the state. The act of 1831 required that slaves, upon being emancipated, be removed beyond the limits of the state ; and, in accordance with the policy of the act, the courts are bound to make it a condition of the assent to the manumission, that security be given that the emancipated slave be forthwith removed beyond the limits of the United States, and no free negro is permitted to enter that state or return to it. See Fisher v. Pabbs, 6 Yerg. 119, where Ch. J. Catron gives a strong picture of the degradation of free negroes living among whites, without motive and without hope. In Virginia and 1 The abolition of slavery by the l-Sth in the note and in the famous Dred Scott amendment to the Constitution of the case (Scott v. Sandford, 19 How. 393), is United States has put an end to the dis- answered by the 14th amendment. Ante, cussions formerly so numerous. The 49, n. 1, (o). question as to who are citizens, considered [333] *258 OF THE RIGHTS OF PERSONS. [PAET IT. 2. Of Hired Servants. — The next class of servants which I mentioned are hired servants, and this relation Of master and Kentucky, it is understood that slaves can be set free by will, without the concurrence of the state. The amended constitution of Tennessee, of 1834, prohibits the legisla- ture from passing laws for the emancipation of slaves without the consent of the owners. So, by the constitution of the Territory of Arkansas, as made by a conven- tion of delegates in 1835, there is tlie like prohibition, and a prohibition, also, of laws preventing emigrants from bringing their lawful slaves with them from other states, for their own use, and not as mercliandise. In Alabama, by statute (Aik. Dig 452), all negroes, mulattoes, Indians, and all persons of mixed blood, descended from negro or Indian ancestors, to the third generation inclusive, though one ancestor of each generation may have been a white person, whether bond or free, are declared incapa- ble in law to be witnesses in any case whatever, except for and against each other. In Ohio, persons having more than one half white blood are entitled to the privileges of whites. Wright, Ohio, 578. The rule in Virginia and Kentucky is, that a mu- latto, or one having one fourth of African blood, is presumptive evidence of being a slave, and that an apparently white person or Indian is prima facie free, and is actually so, if having less than a fourth of African blood. 3 Dana (Ky.), 385. The best test of the distinction between black and white persons is, says tliis case, autopsy, or the evidence of one's own senses, and personal inspection by a jury is- therefore the best and highest evidence as to color. By the amended eofistitution of North Caro- lina, in 18.35, no free negro, mulatto, or free person of mixed blood, descended from negro ancestors, to the fourth generation inclusive, though one ancestor of each gen- eration may have been a white person, shall vote for members of the legislature. The right of voting is confined to white freemen by the constitutions of Delaware, Virginia, Kentucky, Louisiana, Mississippi, Illinois, Indiana, Ohio, Missouri, South Carolina, and Georgia ; and by law in Connecticut, none but free white persons can be naturalized. See supra, 72. In South Carohna, a free person of color is not a competent witness in the courts of record, although both of tlie p.nrties to the suit are of the same class with himself. Groning v. Devana, 2 Bailey, 192. The African race, even when free, are essentially a degraded caste, of inferior rank and condition in society. See the judicial sense of their inferior condition, as declared in the case of The State v. Harden, and The State v. Hill, 2 Speers (S. C), 150, 152. Marriages between them and whites are forbidden in some of the states where "slavery does not exist, and they are prohibited in all the slaveholding states ; and when not absolutely contrary to law, they are revolting, and regarded as an offence against public decorum. The statute of North Carolina, prohibiting mar- riages between whites and people of color. Includes in the latter class all who are descended from negro ancestors, to the fourth generation inclusive, though one ancestor of each generation may have been a white person. State v. ^Tatters, 3 Ired. (N. C.) 455. By the Eevised Statutes of lUinois, published in 1829, marriages between whites and negroes, or mulattoes, are declared void, and the persons so married are liable to be whipped, fined, and imprisoned. By an old statute of Massa- chusetts, in 1705, such marriages were declared void, and they were so under the statute of 1786. And the prohibition was contmued under the Mass. R. S. of 1836, which declared that no white person shall intermarry with a negro, Indian, or mulatto. This prohibition, however, has since been repealed. A similar statute provision exists in Virginia and North Carolina. Marriages of whites with blacks were forbid- den in Virginia, from the first introduction of blacks, under ignominious penalties. Hening's Statutes, i. 146. Such connections, in France and Germany, constitute the [334] LECT. XXXII.J OP THE RIGHTS OP PERSONS. * 258 servant rests altogether upon contract. The one is bound to render the service, and the other to pay the stipulated considera- degraded state of concubinage, which was known in the civil law as licita consuetudo semimatrimonium ; but they are not legal marriages, because the parties want that equality of status or condition which is essential to the contract. Ohio and Indiana are not slaveholding states ; and yet, by statute, a negro, mulatto, or Indian, is not a competent witness in civil cases, except where negroes, mulattoes, or Indians alone are parties, nor in the pleas of the state, except against negroes, mulattoes, or Indians. In the act of Ohio of 1829, for the support and better regulation of common schools, the instruction in them is declared to be for the " white youth of every class and grade, without distinction." And in the act of Ohio of 1807, to regula'te black and mulatto persons, it is declared that no black or mulatto person shall be permitted to settle or reside in the state, unkss he first produce a fair certificate from some court within the United States, under the seal of the court, of his actual freedom. Nor is a negro or mulatto person permitted to emigrate into, and settle within, that state, unless within twenty days thereafter he enter into a bond, with two or more free- holders, in §500, conditioned for his good behavior, and to pay for his support, if found unable to support himself. This act is still in force. See R. S. of Ohio, 1831, and of Indiana, 1838. These provisions have pretty effectually protected the people of Ohio and Indiana from the presence of any colored population. A statute provision of the same import was passed in Michigan, April 13, 1827 ; and in Illinois a like policy appears in several statutes between 1819 and 183G, prescribing the means requisite for a black or mulatto person to acquire a lawful residence. So, also, in Indiana, a similar policy prevails by act of 1831 ; but that state liberally secures to the master the right to pass through the state to any other state with liis negro, or mulatto, or other servants. In Connecticut, by statute, in 1833, any colored person, not an inhabitant of the state, who shall come to reside there for the purpose of being instructed, may be removed, under the act for the admission and settlement of inhab- itants ; and it was made penal to set up or establish any scliool or literary institution in that state, for the instruction of colored persons not inhabitants of the state, or to instruct or teach in any such school or institution, or to board or harbor, for that pur- pose, any such persons, without the previous consent, in writing, of the civil authority of the town in which such school or institution might be. In an information under that provision against Prudence Crandall, filed by the public prosecutor, it was held, by Ch. J. Daggett, at the trial in 1833, that free blacks were not citizens within the meaning of the term, as used in the Constitution of the United States. And in " An inquiry into the political grade of the free colored population under the Constitution of the United States,'' and of which John F. Denney, Esq., of Pennsylvania, is the author, this same doctrine is elaborately sustained. The decision in Connecticut was brought up for review before the Supreme Court of Errors, and the great point fully and ably discussed ; but the cause was decided on other ground, and the question touching the citizenship of free persons of color was left unsettled. Since that deci- sion, William Jay, Esq., in " An inquiry into the character and tendency of the Ameri- can Colonization and American Anti-Slavery Societies " (pp. 38-45), lias ably enforced tlie other side of the question, that free colored people, or black persons, born witliin the United States, are citizens, though under many disabilities. Perhaps, after all, the question depends more on a verbal than on an essential distinction. It is certain that the constitution and statute law of New York (Const, art. 2, N. Y. Revised Stat- utes, i. 126, sec. 2) speaks of men of color as being citizens, and capable of being free- holders, and entitled to vote. And if, at common law, all human beings born within [335] * 259 OP THE RIGHTS OP PERSONS. [PART IV. tion. But if the servant hired for a definite term, leaves the service before the end of it, without reasonable cause, or is dismissed for such misconduct as justifies it, he loses his right to wages for the period he has served. (6) A servant * 259 so hired * may be dismissed by the master before the expiration of the term, either for immoral conduct, wilful disobedience, or habitual neglect, (a) the legiance of the king, and under the king's obedience, were natural-bom subjects, and not aliens, I do not perceive why this doctrine does not apply to the United States, in all cases in which there is no express constitutional or statute declaration to the contrary. Blacks, whether born free or in bondage, if bom under the jurisdic- tion and allegiance of the United States, are natives, and not aliens. Tliey are what the common law terms natural-born subjects. Subjects and citizens are, in a degree, convertible terms as applied to natives ; and though the term citizen seems to be appropriate to republican freeman, yet we are equally, with the inliabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land. The privilege of voting, and the legal capacity for office, are not essential to the cliaracter of a citizen, for women are citizens witliout either ; and free people of color may enjoy the one, and may acquire, and hold, and devise, and transmit, by hereditary descent, real and personal estates. The better opinion, I should think, was, that negroes or other slaves, born within and under the allegiance of the United States, are natural-born subjects,' but not citizens.' Citizens, under our Constitution and laws, mean free inhabitants, born within the United States, or naturalized under the law of Congress. If a slave born in the United States be manumitted, or otherwise lawfully discharged from bondage, or if a black man be born within the United States, and born free, he becomes thenceforward a citizen, but ■ under such disabilities as the laws of the states respectively may deem it expedient to prescribe to free persons of color. It was adjudged by the Supreme Court of Pennsylvania, in 1837, that a negro or mulatto was not entitled to exercise the right of suffrage. Hobbs v. Fogg, 6 Watts, 553. And it has been adjudged in Tennessee, in 1838, in the case of The State v. Claiborne, Meigs, 331, that free blacks are not citizens within the provision of the Constitution of the United States, art. 4, sec. 2 ; for free negroes are not in any of the states entitled to all the privileges and immunities of citizens, and a state may constitutionally prohibit free persons of color from re- moving into the state to reside therein. See also the official opinion of the attorney general of the United States, that free persons of color in Virginia were not citizens within the intent and meaning of the act of Congress regulating the foreign and coasting trade. Opinions of the Attorneys General, i. 382. (6) Huttman v. Boulnois, 2 Carr. & P. 510 ; Turner v. Robinson, 6 id. 15; Libhart i). Wood, 1 Watts & S. 265. If the servant, according to this last case, commits a criminal offence, though not immediately injurious to his master, he cannot recover his wages. . A person hired by the year cannot quit the service without forfeiting his salary, nor can he be dismissed at pleasure, or without just cause, and tliereby be deprived of it. Beckman v. N. 0. Cotton Press Co., 12 La. 67. See also infra, 509. Covenants for personal service cannot be specifically enforced ; but the excepted cases of apprentices depend upon parental authority, and of soldiers and sailors on national policy. Mary Clark's Case, 1 Blackf (Ind.) 122. (a) Callo V. Brouncker, i Carr. & P. 518. Domestic or menial servants, though hired for a year, may, by the custom respecting them, be dismissed on a. month's [336] LECT. XXXII.] OP THE EIGHTS OF PERSONS. * 259 There are many important legal conseque'nces which flow from this relation of master and servant. The master is bound by the act of his servant, either in respect to contracts or injuries, when the act is done by authority of the master. If the servant does an injury fraudulently, while in the immediate employment of his master, the master, as well as the servant, has been held liable in damages ; and lie is also said to be liable if the injury proceeds from the neghgence or want of skill in the servant, for it is the duty of the master to employ servants who are honest, skilful, and careful. (6) The master is only answerable for the fraud of his servant while he is acting in his business, and not for fraudulent or tortious acts, or mis- conduct in those things which do not concern his duty to his master, and which, when he commits, he steps out of the course notice, or on the payment of a month's wages. 12 J. B. Moore, 556. If there be an entire and express contract that certain wages or compensation are to be paid, on condition of a service performed, the service is a condition precedent, and must be performed before suit brought. Cutter v. Powell, 6 T. R. 320. But if » servant be hired in the common way, with reference to a general understanding, he is, said Lawrence, J., in that case, entitled to wages forthe time he serves, though it be not for the wliole year. If hired to labor for a specific time, and he serves part of the time, and is disabled by sicliness from completing the service, he is entitled to be paid pro rata. Fenton v. Clark, 11 Vt. 557. If the hired servant for a year leaves the service within the year without cause, it seems to have been conceded, in Hartwell v. Jewett, 9 N. H. 249, that after the expiration of the year the servant might maintain a suit on a quantum meruit for the time he served. In Nolan v. Danks, 1 Rob. (La.) 332, it was held, under the Louisiana Code, that if a laborer, without just cause, before the expiration of his term of service, leaves his employer, he forfeits his wages. If his employer sends him away without just cause before the end of the term, he is entitled to his full wages for the term ; and even if he be discharged, for good cause, before the end of his term of service, he is entitled to liis wages up to the time of his discharge. This last point is contrary to the rule as stated in the text, and seems to be not quite consistent with the first point in the decision, though it is supported by the court with some strong considerations. The rule in New York is, that if a person hired for a certain time, at a specified compensation, be discharged without cause within the time, he is entitled to his full wages for the whole time ; but the question of compensation seems to be subject to reasonable qualifications. Costigan v. Mohawk R. R. Co., 2 Denio, 609. Mr. Sedgwick, in his Treatise on the Measure of Damages, 219, says, that it is a delicate and vexed question whether the party has any redress who fails to perform an agreement which is entire, and only performs part of it, though the doing of the thing is a condition precedent. See infra, 509, where the subject is further considered. (6) 1 Bl. Coram. 431 ; Dy. 161, pi, 45; ib. 238, b, pi. 38; Grammar v. Nixon, Str. 653 ; Sly v. Edgley, 6 Esp. 6 ; Penn. D. & M, Steam N. Co. ,-. Hungerford, 6 Gill & J. 291 ; Cowen, J., in Wright «. Wilcox, 19 Wend. .345 ; Pothier on Obligations, Nos. 453-456; Domat, 1, 16, 3, No. 1; Harriss v. Mabry, 1 Ired. (N. C.) 240. VOL. II.— 22 [337] * 260 OF THE EIGHTS OF PEBSONS. [PART IV. of the service, (e) * But it was cousidered in M'Manus v. Crickett, (d) to be a question of great concern, and of much doubt and uncertainty, whether the master was answerable in damages for an injury wilfully committed by his servant, while in the per- formance of his master's business, without the direction or assent of the master. The court of K. B. went into an examination of all the authorities, and after much discussion and great con- sideration, with a view to put the question at rest, it was decided that the master was not liable in trespass for the wilful act of his servant, in drimng his master's carriage against * 260 another, without his master's direction or * assent. The court considered that when the servant quitted sight of the object for which he was employed, and, without having in view his master's orders, pursued the object which his own malice suggested, he no longer acted in pursuance of the authority given him, and it was deemed, so far, a wilful abandonment of his master's business. The case has received the sanction of the supreme courts of Massachusetts and New York, (a) on the ground that there was no authority from the master, express or implied, and the servant, in that act, was not in the employment of his master, (i) ^ y^ (c) Lord Kenyon, in Ellis v. Turner, 8 T. R. 533 ; Parker, Ch. J., in Foster v. The Essex Bank, 17 Mass. 508-510 ; Richmond Turnpike Co. v. Vanderbilt, 1 Hill (N, Y.), 480. (d) 1 East, 106. (a) 17 Mass. 508-510 ; Wright v. Wilcox, 19 Wend. 343 ; Croft v. Alison, 4 B. & Aid. 590, 8. p. (6) In Brady v. Giles, 1 Moody & Rob. 494, Lord Abinger held it to be a question ' 1 Master and Servant. — (a) The Rela- was got rid of by abandoning it. 7 Am. tion. — The liability of a master for the LawRev. 652, n. 2; Exod. xxi. 28;Pausan. torts of his servants can only be explained 1. 28 ; Gaius, 4, § 77 ; Just. Inst. 4. 8. and 9 ; by going back to the time when servants Livy, 8. 39 ; Lex Sal. (Merk.) § 36. This were slaves. The liability was notat first notion survived in the deodand, and per- based on any fault of the owner, but in- haps in the casespost, iii. 218, n. 1, and (c). hered in the cause of loss, whether man. The basing of liability upon fault, and brute, or inanimate thing, ran with it, and the explanation that the master has the yi Master's Liability to his Servants. — which the circumstances of the particu- The liability of a master for injuries to lar case call for, according to the judg- his servant is but a special application of ment of reasonable men. See Wright v, the more general principle, that every London, &c. Ey. Co., 1 Q. B. D. 252. The man in his dealings with his fellow-men amount of care required in a given case is bound to exercise that degree of care is of course to be determined by the court [338] LBCT. XXXII.] OP THE EIGHTS OP PEESONS. 260 If a servant employs another servant to do his business, and in doing it, the servant so employed is guilty of an injury, the master of fact for a jury, whether the servant was acting as the servant of the party hiring or of the owner. But In Chandler v. Broughton, 1 Cromp. & M. 29, it was held that if the owner of a carriage is sitting aside of his servant who drives, and the horse runs away and injures others, trespass lies against the master as being his act. The master is liable as a cotrespasser, if he is perfectly passive without any interposi- tion when the driver was doing the wrong. A passive acquiescence is inferable. MXaughlin v. Pryor, 1 Carr. & M. 354. By the New Yorls K. Statutes, 3d ed. i. 874, the owners of every carriage running or travelling upon any turnpike road or public highway, for the conveyance of passengers, are made liable, jointly and severally, for all injuries and damages done by any person in their employment as a driver, while driving such carriage, whether -the act occasioning such injury or damage be wilful or negligent, or otherwise, in the same manner as such driver would be liable. This stringent provision has a salutary tendency to secure the selection of competent power of selection or control, is of later invention (D. 44. 7. 5. § 6; Austin, 3d ed. 513), and is not adequate. Principal and agent grew out of master and slave, with the difference that the agent was a free- man. 7 Am. Law Rev. 61 ; cf. D. 41. 1. 53 ; D. 44. 7. 11 ; C. i. 50. But the dis- tinction between an agent and a servant in modern times is somewhat shadowy. Austin thought it lay in the fact that the services owed by a servant are indefinite in kind as well as number (Austin, 3d ed. 976, 977), and his opinion is consistent with the historical explanation, for of course a slave must do whatever his mas- ter commands, while a free agent is sub- ject to his principal only in the course of his employment. Independent con- tractors again are neither agents nor servants, as will be shown further on in this note, x^ A head gardener (Johnson v. Blenken- or jury. It is obviously the duty of a master, in selecting machinery, &c., for a servant to work with, to exercise an amount of care proportioned to the mag- nitude of the injury which may flow from an absence of such care. He must exercise similar care in the choice of dif- ferent servants who are to work together. So, also, to provide all suitable and neces- sary means for carrying on the work in a safe manner. As to these and all other matters in which the master is called upon to act at all, tlie servant has the right to assume that the master will ex- ercise reasonable care for the safety of his servants. Holden v. Fitchburg R. R. Co., 129 Mass. 268 ; Slater v. Jewett, 85 N. Y. 61 ; Boyce v. Fitzpatrick, 80 Ind. 526 ; Gunter c. Graniteville Mfg. Co., 15 S. C. 443 ; and many other cases. It has been held, further, that there are certain duties in the performance of which the master is bound absolutely to see that due care is used, and that it is x^ The distinction between a servant and an agent is the distinction between seri-ing and acting for. Within the scope of his employment a servant must do whatever his master orders, whenever it is ordered, and in whatever manner he is directed. An agent has more or less dis- cretion as to the time and manner of per- formance, and sometimes even as to what shall be done. An independent contractor acts for himself in doing the work, and simply agrees to give his employer the benefit of the result when the work is completed. These distinctions are neces- sarily somewhat indefinite, and it is often difiicult to determine within which of them a given case falls. See Speed v. Atlantic & Pacific R. R. Co., 71 Mo. 303. [339] 260 OP THE EIGHTS OP PERSONS. [part IV. is liable. Thus, in Bush v. Steinman, (c) A. contracted with B. to repair a house, and B. contracted with C. to do the work, and and careful driyers. The dividing line, said Judge Cowen, between an act of the servant in the employment of his master, for which the master is or is not liable, is the wilfulness of the act. But though the master be liable for the servant's negli- gence, to the injury of another, when doing a lawful act in his service, he is not liable if the act be wilfully unlawful, unless sliown to be done by the master's authority. Lyons v. Martin, 8 Ad. & Ell. 512. Nor is the master who uses due diligence in the selection of his servants answerable to one of them for an injury received by him in consequence of anotlier's carelessness while both were engaged in the same service. There is no express or implied contract or pg-inciple of policy applicable to the case as between two servants in the same service, and giving an action against the master for an injury by one to the other. Farwell v. B. & W. Railroad, 4 Mete. 49. (c) 1 Bos. & P. 404 ; Kandleson v. Murray, 8 Ad. & Ell. 10(9, s. p. See also Burgess sopp, 5 Jur. 870) and a huntsman (Nicoll . 357 ; Venables . 341; Randall r. R. R. Co., 109 U. S. 478 ; Walker v. B. & M. R. E., 128 Mass. 8 ; Holden v. Fitcliburg R. R., 129 Mass. 268 ; Crispin v. Babbitt, 81 N. Y. 516. Many cases hold, however, that one who is placed in the position of a vice- principal (see cases supra), and even one who is made a foreman or manager, is not a fellow-servant to one working under him. Cases supra ; Railroad Co. v. Fort, 17 Wall. 553; Mitchell v. Robinson, 80 Ind. 281 ; Railway Co. v. Ranney, 37 Ohio St. 665 ; Cowles u. R. R. Co., 84 N. C. 309. See Conway v. Belfast, &c. R. R. Co., 11 Ir. R. C- L. 345 ; Malone v. Hathaway, 64 N.~Y. 5; Ryan v. Bagaley, 50 Mich. 179. But see Zeigler i'. Day, supra; Howells V. Landore Steel Co., supra; Brown u. Winona, &c. R. R. Co , 27 Minn. 16a . The servant by whose negligence the injury happens is of course liable. Os- borne r. Morgan, 130 Mass. 102; Griffiths V. Wolfram, 22 Minn. 185. LECT. XXXII.J OP THE RIGHTS OP PERSONS. 260 all the subcontracting parties were in the employment of A. But to render this principle applicable, the nature of the business must trary to orders. Whatman v. Pearson, L. R. 3 C. P. 422 ; Drew v. Sixth At. R.R., 26 N. Y. 49 ; Betts v. De Vitre, L. R. 3 Ch. 429, 441, 442 ; -post, 284, n. 1. (c) Liability of Master to Servants. — Farwell's case, cited in note (b), and the earlier and ably discussed case of Murray V. So. Car. R. R., 1 McMullan, 385, have been very generally followed. Bartons- hill Coal Co. V. Reid, 3 Macq. 266 , Same V. McGuire, ib. 300; ib. 316; Assop v. Yates, 2 H. & N. 768 (where the servant was held to assume apparent risks) ; Ohio & Miss. R. R. V. Hammersley, 28 Ind. 371 ; Weger v. Pennsylvania R. R., 55 Penu. St. 460 ; and cases cited below. Contra, Chamberlain u. Milw. & Miss R. R., 11 Wis. 238. See 34 Conn. 479. By those cases among others where the injury was done to a workman while being car- ried to or from his work, according to the terms of his employment, on his master's train. Gilshannon v. Stony Brook R. R., 10 Cush. 228 ; Seaver a. Boston & Maine R. R., 14 Gray, 466 ; Tunney v. Midland R. Co., L. R. 1 C. P. 291 ; Russell v. Hud- son R. R. R., 17 N. Y. 134. But it has been held that he has the rights of a passenger if he gives consideration for his carriage ; and some of the above cases were distinguished on the ground that the workman was in the exercise of his em- ployment during the carriage. O'Donnell u. Allegheny Valley R. R., 59 Penn. St. 239. See also Gillenwater v. Madison & I. R. R., 5 Porter (Ind.), 339. The ques- tion in each case is, what are the prob- able damages attendant upon entering the particular engagement, for these the servant takes upon himself. And the test whether the party causing and the party receiving the injury are fellow-servants is said to be whether they are employed for a common object, not whether they are for a common immediate object. Morgan v. Vale of Neath R. Co., 5 Best & S. 570, 736 ; s. c. L. R. 1 Q. B. 149 ; Waller v. South Eastern R. Co., 2 H. & C. 102 ; Warburton v. Great W. R. Co., L. R. 2 Ex. 30 ; Coon v. Syracuse & Utica R. R., 1 Seld. 492. See cases next cited. Again, foremen, conductors, and the like, although of a higher grade than the party injured by their negligence, are his fellow- servants within the rule, when they do not so far represent the master that their acts are his acts. (But it seems to be otherwise when they are in the position of vice principals. Murphy v. Smith, 19 C. B. N. s. 361.) Wilson v. Merry, L. R. 1 H. L. Sc. 326 ; Gallagher v. Piper, 16 C. B. N. s. 609 ; Feltham v. England, L. R. 2Q.B. 33; Sherman v. Rochester & Syra- cuse R. R., 17 N. Y. 153 ; Hard v. Vermont & Canada R. R., 32 Vt. 473; Cumberland Coal & Iron Co. v. Scally, 27 Md. 589 ; Hall V. Johnson, 34 L. J. n. s. Ex. 222 ; 3 H. & C. 589; Caldwell v. Brown, 53 Penn. St. 453 ; contra, Cleveland, C. & C. R. R. u. Keary, 3 Ohio St. 201, 210 ; Little Miami R. R. v. Stevens, 20 Oliio, 415 ; Pittsburgh, Ft. W., & Cli. R. Co. .,■. Devinney, 17 Ohio St. 197 ; Louisville & N. R. R. <;. Collins, 2 Duvall, 114 ; Same V. Robinson, 4 Bush, 507. It has been held in England that the servant of a sub- contractor is a, servant of the principal contractor, and cannot recover for in j uries done by otlier servants of the same master. Wiggett v. Fox, 11 Exch. 832. But compare Murray v. Currie, L. R. 6 C. P. 24. [And see Rourke v. White Moss Colliery Co. and other cases, supra, n. y, (2).] In some American cases, where the employer had not the power to dismiss a contractor's servants, he was held not to bo their master. Burke v. Norwich & Worcester R. R., 34 Conn. 474 ; Young v. N. Y. Central R. R., 80 Barb. 229. See Hunt v. Penn. R. R., 51 Penn. St. 475 ; Michigan Central R. R. n. Leahey, 10 Mich. 193 ; Reedie v. London & N. W R. [343] 260 OF THE RIGHTS OP PERSONS. [part IV, be such as to require the agency of subordinate persons, and then there is an impHed authority to employ such persons, (c?) (. Corporation of Exeter (2 Russell, 53), Lord Eldon held, that if a fee-farm rent was chargeable on the whole of the city, it might be demanded of any one who holds property in it, and he would be left to obtain contribution from the other inhabitants. in their corporate or quasi-corporate ca- pacity for damages occasioned by the negligent performance of their duty by themselves or their servants. Mersey Docks Trustees v. Gihbs, L. R. 1 H. L. 93 ; Coe v. Wise, L. R. 1 Q. B. 711, reversing s. c. 5 Best & Sm. 440. (See Ohrby v. Ryde Commissioners, 5B. & S. 743;) Collins v. Middle Level Commissioners, L. R. 4 C. P. 279 ; Richmond v. Long, 17 Grattan (Va.), 375 ; Nebraska City v. Campbell, 2 Black, 590 ; Weightmau v. Washington, 1 Black, 39; Robbins i. Chicago, 4 Wall. 657; Bloomington v. Bay, 42 Til. 503. Contra, Pray v. Mayor of Jersey City, 3 Vroom, (N. J.), 394. See Walcott v. Swampscott, 1 Allen, 101; Bigelow ... Randolph, 14 Gray, 541 ; HafEord v. New Bedford, 16 Gray, 297 ; Barry v. Lowell, 8 Allen, 127 ; Hyde v. Jamaica, 27 Vt. 443; Jones u. New Haven, 34 Conn. 1 ; Eastman v. Meredith, 36 N. H. 284, — cases w"here a municipal corporation was held not liable for the negligent performance of a public x' Municipal corporations are liable for negligent construction of sewers, &c., which results in direct injury, Noonan V. City of Albany, 79 N. Y. 470 ; s. c. 35 Am. R. 540 and note ; Smith v. City CouncU, 33 Graft. 208 ; Gillison u. City of Charleston, 16 W. Va. 282; Deane v. Randolph, 132 Mass. 475 ; see Dixon o. [364]. duty imposed without its assent. See also Conrad v. Ithaca, 16 N. Y. 158. a;i Where the legislature authorizes such statutory trustees to do an act otherwise wrongful, the act ceases to be wrongful, not because it is for a public purpose, but because it is so authorized. L. R. 1 H. L. 112. It is said that religious societies in- corporated under the statute are not ecclesiastical corporations in the sense of the English law, but are civil corpora- tions governed by common-law principles. Robertson v. Bullions, 11 N. Y. 243. The Supreme Court of the United States have held that an English joint-stock company formed by a registered deed is to be treated as a corporation in this country, notwithstanding it is declared not to be one by act of Parliament, and although it has not a corporate name, and the members are personally liable for the debts of the company. Liverpool Ins. Co. V. Massachusetts, 10 Wall. 566. Met. Board of Works, 7 Q. B. D. 418; but not for a neglect to perform a duty imposed by law, and for which they re- ceive no remuneration, Hill v. Boston, 122 Mass. 344. All the cases up to that date are reviewed at length by Gray, C. J., in the case last cited. Comp. Barnes v. District of Columbia, 91 U. S. 540. LECT. XXXIII.] OF THE RIGHTS OP PERSONS. * 275 spiritual. With us they are called religious corporations. This is the description given to them in the statutes of New York, Ohio, and other states, providing generally /or the incorporation of religious societies, (6) in an easy and popular manner, and for the purpose of managing, with more facility and advantage, the temporalities belonging to the church or congregation. Lay corporations are again divided into eleemosynary and civil. An eleemosynary corporation is a private charity, constituted for the perpetual distribution of the alms and bounty of the founder. In this class are ranked hospitals for the relief of poor, sick, and impotent persons, and colleges and academies established for the promotion of learning and piety, and endowed with property, by public and private donations, (c) Civil corporations are established *for a variety of purposes, and they are either * 275 2}ublic or private. Public corporations are such as are created by the government for political purposes, as counties, cities, towns, and villages; they are invested with subordinate legislative powers, to be exercised for local purposes connected with the public good ; and such powers are subject to the control of the legislature of the state, (a) They may also be empowered to take or hold private property for municipal uses ; and such property is invested with the security of other private rights. (6) So corporate franchises attached to public corporations are legal (6) Act of New York, April 5, 1813, <^. 60 ; of Ohio, February 5, 1819. (c) 1 Bl. Coram. 471 ; 1 Kyd on Corp. 25-27 ; 1 Ld. Eaym. 6, 8 ; 1 Ves. 537 ; 9 Ves. 405 ; 1 Burr. 200 ; Lord Holt, in Phillips v. Bury, cited in 2 T. R. 353 ; Dart- mouth College V. Woodward, 4 Wheaton, 681 ; [Vincennes University i;. Indiana, 14 How. 268.] (a) The People v. Morris, 13 Wend. 325. They are common in every state. One of the first acts of the General Assembly of Connecticut, 1639, was the incorporation of all towns in the colony with town privileges for local purposes, such as choosing officers and magistrates for holding local courts, and to provide for durably keeping a registry of deeds and mortgages, and for the maintenance of schools and public wor- ship. The establishment of towns with corporate powers, as local republics, was the original policy throughout New England, and it had a durable and benign effect upon the institutions and moral and social character of the people. M. de Tocqueville, in his De la Democratic en Amdrique, i. 64, 96, appears to have been very much struck with the institutions of New England towns. He considered them as small, inde- pendent republics, in all matters of local concern, and as forming the principle of the life of American liberty existing at this day. (b) Angell & Ames on Corporations, 3d ed. 30. These local corporations, as cities and towns, can sue and be sued ; and the judicial reports in this country, and espe- cially in the New England states, abound with cases of suits against towns, in their corporate capacity, for debts and breaches of duty for which they were responsible. [ 365 ] * 276 OP THE RIGHTS OP PERSONS. [PART IV. estates coupled with an interest, and are protected as private property. If the foundation be private, the corporation is private, however extensive the uses may be to which it is devoted by the founder, or by the nature of the institution. A bank, created by the government, for its own uses, and where the stock is exclu- sively owned by the government, is a public corporation. So a hospital created and endowed by the government, for general purposes, is a public and not a private charity. But a bank whose stock is owned by private persons is a private corporation, though its object and operations partake of a public nature, and though the government may have become a partner in the association by sharing with the corporators in the stock, (c) The same thing may be said of insurance, canal, bridge, turnpike, and railroad companies. The uses may, in a certain sense, be called public, but the corporations are private, equally as if the franchises were vested in a single person. (cZ) ^ A hospital founded by a private benefactor is, in point of law, a private corporation, though dedi- cated by its charter to general charity. A college, founded and endowed in the same manner, is a private charity, though from its general and beneficent objects it may acquire the character of a public institution, (e) If the uses of an eleemosynary corporation be for general charity, yet such purposes will not of themselves constitute it a public corporation. Every charity which is exten- sive in its object may, in a certain sense, be called a public charity. Nor will a mere act of incorporation change a charity from a pri- vate to be a public one. The charter of the crown, said * 276 Lord Hardwicke, (/) cannot make a charity * more or less public, but only more permanent. It is the extensiveuess (c) Marshall, C. J., United States Bank v. Planters' Bank, 9 Wheaton, 907: It has eVen been held that a state bank may be considered a private corporation, though owned entirely by the state. Bank of South Carolina v. Gibbs, 3 M'Cord, 377; [Bank of Alabama v. Gibson, 6 Ala. 814.] (d) Bailey v. Mayor of New York, 3 Hill (N. Y.), 531. (e) Dartmouth College v. "Woodward, 4 Wheaton, 518 ; Story, J., ib.,668, 669, 697- 700 ; the case of St. Mary's Church, 7 Serg. & R. 659. (/) 2 Atk. 88. • Tinsman v. Belvidere Delaware R. R. of Schools v. Tatman, 13 111. 27. But see Co., 2 Dutcher, 148 ; Rundle v. Delaware State v. Springfield Township, 6 Ind. 83. & Raritan Canal, 1 Wall. Jr. 275 ; Dar- As to the liability of these corporations lington V. Mayor, &c, of New York, 31 for negligent performance of public duties, N. Y. 164, 199. It is said that trustees of &c., see 274, n. 1. schools are public corporations in Trustees [366] LECT. XXXIII.J OP THE EIGHTS OP PERSONS. * 276 of the object that constitutes it a public charity. A charity may be public, though administered by a private corporation. A de- vise to the poor of a parish is a public charity. The charity of almost every hospital and college is public, while the corporations are private. To hold a corporation to be public, because the charity was public, would be to confound the popular with, the strictly legal sense of terms, and to jar with the whole cun-ent of decisions since the time of Lord Coke, (a) In England, corporations are created and exist by prescription, by royal charter, and by act of Parliament. With us they are created by authority of the legislature, and not otherwise. There are, however, several of the corporations now existing in this country, civil, religious, and eleemosynary, which owed their origin to the crown under the colony administration. Those charters granted prior to the Revolution were upheld, either by express provision in the constitutions of the states, or by general principles of public and common law of universal reception ; and they were preserved from forfeiture by reason of any nonuser or misuser of their powers, during the disorders which necessarily attended .the Revolution. There is no particular form of words requisite to create a corporation. A grant to a body of men to hold mercantile meetings has been held to confer a corpornte capacity. (5) A grant of lands to a county or hundred, rendering rent, would create them a corporation for that single intent, without saying, to them and their successors, (c) (a) Sutton's Hospital, 10 Co. 23 ; Lord Hardwicke, 2 Atk. 88 ; Lord Holt, in Phil- lips V. Bury, reported at large in 2 T. R. 352. The opinions of the judges in Dart- mouth College V. Woodward, 4 Wheaton, 518. All the essential principles laid down by the court, in the case of Dartmouth College i. Woodward, were asserted and applied with great force by Mr. Justice Story, in the case of Allen v. M'Keen, 1 Suq^ ner, 276, to Bowdoin College, in the State of Maine. That college is a private corpo- ration, of which the State of Massachusetts is founder, and the visitatorial and all other powers and franchises are vested in a board of trustees, under the charter, and they have a permanent right and title to their offices. (6) the case of Sutton's Hospital, 10 Co. 27, 28, 30 ; 1 Rol. Abr. tit. Corporation, F. ; Denton v. Jackson, 2 Johns. Ch. 325. (c) Dyer, 100, a, pi. 70, cited as good law by Lord Kenyon, in 2 T. R. 672 ; 1 Rol. Abr. tit. Corporation, F. 3, 4 ; Angell & Ames on Corporations, 3d ed. 64. There is no doubt that the grant or statute creating a corporation, to give it operation, may be accepted by the grantees or a majority of the corporation ; for a grant of a corporation is in the nature of a contract, and requires a mutual concurrence of wills. Angell & Ames on Corporations, 3d ed. 67-72. Their acceptance or consent may be implied from circumstances. Bank of the United States v. Dandridge, 12 Wheaton, 70. [ 367 ] *277 OP THE EIGHTS OF PERSONS. [PAET IT. There is no doubt that corporations, as well as other private rights and franchises, may also exist in this country * 277 * by prescription ; which presupposes, and is evidence of, a grant, when the acts and proceedings on which the presumption is founded could not have lawfully proceeded from any- other source, (a) y^ It requires the accept<\noe of the charter to create a corporate body ; for the government cannot compel persons to become an incorporated body without their consent, or the consent of at least the major part of them. (6) The acceptance may in many cases be ii>ferred from the acts of the majority of the corporators ; and a written instrument, or vote of acceptance, is not indispensable, (c) ^ 3. Of the Powers and Capacities of Corporations. — When a cor- poration is duly created, many powers, rights, and capacities are attached to it. Some of them are deemed to be necessarily and inseparably incident to-a corporation by tacit operation, without an express provision ; though it is now very generally the practice to specify, in the act or charter of incorporation, the powers and capacities with which it is intended to endow the corporation, y^ (a) Dillingham c. Snow, 3 Mass. 276 ; Stockbridge v. West Stockbridge, 12 id. ■ 400 ; Hagerstown Turnpike Co. u. Creeger, 5 Harr. & J. 122 ; Greene u. Dennis, 6 Conn. 302 ; Angell & Ames on Corporations, 57-59, 3d ed. ; [Robie v. Sedgwick, 35 Barb. 319.] (6) Yates, J., 4 Burr. 2200 ; Lord Kenyon, 3 T. R. 240 ; Ellis u. Marshall, 2 Mass. 269 ; Lincoln and Ken. Bank v. Richardson, 1 Greenl. 79. (c) Charles River Bridge v. Warren Bridge, 7 Pick. 344, Parker, C. J., and Wilde, J. ; Bank of United States v. Dandridge, 12 Wheaton, 70, 71. 1 Bangor, &c. R. R. v. Smith, 47 Me. Mass. 63, 60 ; [Hammond v. Straus, 53 34 ; Sumrall v. Sun Mutual Ins. Co., 40 Md. 1.] Mo. 27 ; Commonwealth v. Bakeman, 105 ji As to how far a de /ado corporation question of the extent of corporate powers and those dealing with it may be estopped is a question of construction simply. Ac- to deny its de jure existence, see Dobson cordingly, it is treated by Mr. Morawetz, i;. Simonton, 86 N. C. 492 ; Jones u. Ko- in his recent work on Prirate Corpora- komo Building Ass'n, 77 Ind. 340 ; Spahr tions, under the title, Cmstruction of V. Farmers' Bank, 94 Penn. St. 429. Charters. y'' Powers of Corporations. — The powers In a brief note it is impossible to do of corporations being derived wholly more than point out some of the more from legislative grant, it is evident that fundamental rules of construction, no power which the legislature itself does In general, the same rules of construe- not have, or, having, cannot delegate, can tion are to be applied as obtain in the ever belong to a corporation. construction of other dispositive instru- Subject to this limitation, the whole ments. The words of the grant are to be [368] LECT. XXXIII.J OP THE EIGHTS OF PEESONS. * 278 (1.) Of their Ordinary Powers. — The ordinary incidents to a corporation are, 1. To have perpetual succession, and, of course, the power of electing members in the room of those removed by death or otherwise ; 2. To sue and be sued, and to grant and to receive by their corporate name ; 3. To purchase and hold lands and chattels ; 4. To have a common seal ; * 5. To * 278 make by-laws for the government of the corporation ; 6. The power of amotion, or removal of members. Some of these powers are to be taken in many instances, with much modifica- tion and restriction ; and the essence of a corporation, according to Mr. Kyd, consists only of a capacity to have perpetual, succes- sion, under a special denomination and an artificial form, and to take and grant property, contract obligations, and sue and be sued, by its corporate name, and to receive and enjoy, in c6m- mon, grants of privileges and immunities, (a) According to the (a) 1 Kyd on Corp. 13, 69, 70. Blaekstone says that the first five incidents men- tioned in the text are inseparably incident to every corporation aggregate. The New York statute also declares that there are powers which vest in every corporation without being specified. 1 Bl. Coram. 476 ; N. Y. Revised Statutes, i. 599. But in the case of Sutton's Hospital, 10 Co. 30, b, 31, a, it was held tliat, to make ordi- nances or by-laws was not of the essence of a corporation ; and no doubt a valid cor- considered in connection with the eircum- necessary to a corporation, as such, as stances surrounding the parties at the stated in Liverpool Ins. Co. o. Massachu- tirae. setts, 10 Wall. 566, are more limited than {!.) Express Powers. — Some powers are those stated in the text. There can be always expressly granted in the charter, no doubt, however, that all the powers and the extent of these is of course stated in the text would be considered determined by an interpretation of the as impliedly included in any grant of charter. corporate powers, being, as they are, (2.) Implied Powers. — (a) All powers constituent parts of the character of which inhere in a corporation as such, corporations as actually found in this i. e. which are essential in order that it country. may be, and act as, a corporation, are to As to whether a charter is to be strictly be considered as impliedly granted. So or liberally construed, the true rule would also, it would seem, are those powers seem to be, that it is to be strictly con- which ordinarily belong to corporations strued when the object is to determine as such in the state where the grant is the extent of the franchise granted, i. e. made. - the scope of the objects of the corpora- (6) All those powers which are reason- tion, National Trust Co. a. Miller, 33 N. J. ably necessary as means to carry out the Eq. 155 ; see Attorney General v. Jamaica powers expressly granted, or which belong Plain Aqueduct, 188 Mass. 361, 365 ; but to a corporation as such, are also to be is to be liberally construed when the considered as impliedly granted. question is as to the means allowed for The elements which are considered carrying out those objects. VOL. II. — 21 [369] * 278 OP THE. EIGHTS OP PERSONS. [PAET IV. doctrine of Lord Holt, (J) neither the actual possession of prop- erty, nor the actual enjoyment of franchises, are of the essence of a corporation, (c) (2) Of Quasi Corporations. — There are some persons and asso- ciations who have a corporate capacity only for particular, speci- fied ends, but who can in that capacity sue and be sued as an artificial person. (cZ) Thus, in New York, by statute, each county, and the supervisors of a county, the loan oflBcers and commissioners of loans, each town, and the supervisors of towns, the overseers of the poor, and superintendents of the poor, the commissioners of common schools, the commissioners of high- ways, and trustees of school districts,'^ are all invested, for the purpose of holding and transmitting public property, with cor- porate attributes suh modo. The supervisors of the county can take and holds lands for the use of the county ; and all these sev- eral bodies of men are liable to be sued, and are enabled to sue poration may be created by law, without any other essential attributes than those mentioned by Kyd. (6) The King v. The City of London, Skinner, 310. A gift of personal property, or of the proceeds, rents, and profits of real estate in trust to be paid over to a cor- poration, is good. Wright v. Trustees of Meth. Epis. Church, 1 Hoff. Ch. 217. (c) The general rule is, that every corporation has a capacity to take and grant property and to contract obligations. But these general powers, incident at common law, are restricted by the nature and object of the institution ; and in pursuance thereof it may make all contracts necessary and useful in the course of the business it transacts, as means to enable it to effect such object, unless prohibited by law or its charter. To attain its legitimate object, it may deal precisely as an individual who seeks to accomplish the same end. It may contract for labor and materials, and make purchases, and borrow money for such objects, and give notes, bonds, and mortgages towards payment. The decisions are numerous on this subject. See 1 Cowen, 513 ; 3 Wend. 96 ; 5 id. 590; 2 Hill (N. Y.), 265 ; 9 Paige, 470 ; 1 Watts, 385 ; and especially the case of Barry v. Merchants' Exchange Company, 1 Sandf . Ch. 280, where these general corporate powers are liberally considered and established in tlie able and learned judgment of the assistant vice-chancellor. It is further estab- lished that the capital stock of the corporation mentioned in its charter is not per le a limitation of the amount of property, either real or personal, which it may own. It may divide its profits among the stockholders, at times when and to the amount the directors may deem expedient. Instead of dividing the profits, they may, in theii discretion, suffer the surplus of profits to accumulate beyond their original capital, as the interest of the institution shall appear to dictate. There is no restriction by law, except by special statutes in specific cases, in the amount of credit which mon- eyed corporations may create by the use of corporate capital. Barry v. Merchants' Exchange Company, vbi supra. (rf) Gibson, Ch. J., The Commonwealth v. Green, 4 Wharton, 531. 1 See 275, n. 1 j 274, n. 1. [370] LECT. XXSIII.J OP THE EIGHTS OF PERSONS. * 279 in their corporate capacity, (e) Every county and town is a body politic for certain purposes ; and this is no doubt the gen- eral proTision in this country, and especially in the northern states, in respect to towns. (/) So, at common law, every parish or town was a corporation for local necessities, and the inhabi- tants of a county or hundred might equally be incorporated for special ends. (^) In short, the English * law affords *279 many, and our American law more numerous examples, of persons and collective bodies of men eiidowed with a corporate capacity, in some particulars declared, and without having in any other respect the capacities incident to a corporation, (a) (e) N. Y. E. S. ii. 473. See also the statute laws of the several states, in par, materia; N. Y. E. S. 3d ed. i. 384, 385, 416. (/) N. Y. E. S. i. 337, 364 ; Statute Laws of Ohio, 1831 ; Revised Statutes of Massachusetts, 1836 ; Eevised Statutes of Indiana, 1838 ; R. S. of New Jersey, 1847, tit. 6, c. 20. (g) Hohart, 242 ; Chamherlain of London's Case, 5 Co. 63 ; Rogers v. Davenant, 1 Mod. 194 ; Dyer, 100 ; Lord Kenyon, 2 T. R. 672. In Massachusetts, by imme- morial usage, the inhabitants of towns charged by law with the performance of duties are held to be individually liable in their property, though sued by a collective name as a corporation. The same rule applies to parishes and school districts. GaskiU V. Dudley, 6 Met. 546. In the case of Beardsley o. Smith, 16 Conn. 368, it was adjudged, after a thorough discussion, that the individual property of the citizens of the city of Bridgeport and the citizens individually, were liable, on execution, for the debts of the corporation. It was shown, in that case, to be the immemorial usage, and uniformly supported by judicial decisions throughout New England, that the inhabitants of towns and other municipal communities of corporations and quasi corporations were liable in their persons and property for the debts of the towns or corporations, by taxation or execution ; and numerous cases were referred to by the court in confirmation of the doctrine, as in 7th and 14th Mass., 19 Pick., 1 Greenl., 5th, 6th, and 10th Conn.; and by analogous cases and practice in 2 T. E. 660; 2 Euss. 45; [8] East, 390; 11 East, 77. See supra, 274, n., to s. p. But this personal responsibility does not extend to the members of voluntary associations of ecclesi- astical societies, unless so subjected by the provisions of its charter. They are private, and not a municipal or quasi corporation, compelled by law, like towns, cities, and school districts, to assume duties and contract debts. Jewett v. The Thames Bank, 16 Conn. 511. In Georgia, the county courts are invested with power to incorporate the associations for special purposes, not extending to banking or insur- ance business, and the members are to be hound for contracts, as in case of partner- ships. Hotehkiss, Statute Code of Georgia, 1845, p. 372 ; but see supra, 272, a, as to the regulation of corporations in New York. (a) Jackson v. Hartwell, 8 Johns, 422 ; 18 id. 418 ; Denton o. Jackson, 2 Johns. Ch. 325 ; Toddw.Birdsall, 1 Cowen, 260; Grant v. Fancher, 5 id. 309 ; North Hemp- stead V. Hempstead, 2 Wend. 109 ; School District in Eumf ord v. Wood, 13 Mass. 198 ; Overseers of N. W. v. Overseers of S. W., 3 Serg. & B. 117 ; Angell & Ames on Cor- porations, 17, 2d ed. See also supra, 274. In the case of Purdy v. The People, 4 Hill, 384, 895, one of the senators (Paige, Senator) held that town and counties in New [371] *280 OP THE EIGHTS OF PEESONS. [PAET IT, ' (3.) Of Corporations as Trustees. — A corporation being merely a political institution, it has no other capacities or powers than those which are necessary to caiTy into effect the purposes for which it was established. A corporation is incapable of a per- sonal act in its collective capacity. (6) It cannot be considered as a moral agent, and, therefore, it cannot commit a crime, or become the subject of punishment, or take an oath, or appear in person, or be arrested or outlawed, (e) It was formerly un- derstood that a corporation could not be seised of lands to the use of another, and that it was incapable of any use or trust, and, consequently, that it could not convey lands by bargain and sale, (c^) But the objection that a corporation could not convey by bargain and sale was utterly rejected by the C. B., in the case of Sir Thomas Holland v. Bonis, (e) as a dangerous excep- tion to the capacity to convey ; and, at this day, the only * 280 reasonable limitation is, that a corporation * cannot be seised of land in trust, for purposes foreign to its institu- tion, (a) Equity will now compel corporations to execute any lawful trust which may be reposed in them ; and in the case of the 'Trustees of Phillips Academy v. King, (6) it was held that a corporation was capable of taking and holding property as a trustee. Many corporations are made trustees for charitable pur- poses, and are compelled, in equity, to perform their trusts, (c) York were not corporations even sub modo, at the time of the adoption of the consti- tution, nor are they now, in the proper sense of the term. See also, to that point, Jackson v. Cory, 8 Johns. 385 ; Hombeck v. Westbrook, 9 id. 73. They were made quasi corporations by the Revised Statutes. (6) 1 Kyd on Corp. 225. (c) 1 id. 71,72; 1 Bl. Comm. 477. From the current of modern decisions there can be no doubt, however, that a corporation, equally with an individual, may gain a freehold by a disseisin committed by its agent, whether authorized by deed or vote. See Angell & Ames on Corporations, 152, 3d ed. (rf) Bro. tit. Uses, pi. 10 ; Bacon on Uses, 57 ; Gilbert on Uses, by Sugden, 6, 7. (p) 3 Leon. 175. (a) Jackson v. Hartwell, 8 Johns. 422 ; [Chapin v. School District, 35 N. H. 445.] (6) 12 Mass. 546. (c) Green «. Rutherforth, 1 Ves. 462, 468, 470, 475 ; Gilbert on Uses, by Sugden, 7, note; 1 Kyd on Corp. 72; 2 Johns. Ch. 384, 389; City of Coventry v. Attorney General, 7 Bro. P. C. 235 ; Attorney General ... City of London, 3 Bro. C. C. 171 ; Dummer v. Corporation of Chippenham, 14 Ves. 245. See Angell & Ames on Corpo- rations, 3d ed. 124-130, on the power of a corporation to be seised in trust or for the use of another, where the cases are well collected, and the reason of them illustrated. Mr. Preston, in his Treatise on Conveyancing, ii. 247, 254, 257, 263, insists that the more approved authority and better opinion is, that a corporation cannot stand seised [372] LBCT. XXXIII.J OP THE EIGHTS OP PEBSONS. * 280 Corporations appear to be deemed competent to perform the duties of trustees, and to be proper and safe depositaries of trusts ; and, among the almost infinite variety of purposes for which corporations are created at the present day, we find them (ci) authorized to receive and take by deed or devise, in their corporate capacity, any property, real and personal, in trust, and to assume and execute any trust so created and declared. The Court of Chancery is vested with the same jurisdiction over these corporate trusts which it ordinarily possesses and exercises over other trust estates. The directors of corporations, as trus- tees, are liable personally for a fraudulent misapplication of funds,^ and trust moneys may be pursued in the hands of any to a use on a conveyance to them, though a corporation may be a cestui que use. In one case, it lias been admitted that a corporation might give a use; and, therefore, a bargain and sale in fee by a corporation would be good. But if a corporation can give a use, it can, upon the same principle, equally stand seised to a use ; and the rule ought to be consistent and uniform, either that a corporation can give and stand seised to a use, or that they can do neither. The New York statute of May 14, 1840, c. 318, with just and politic liberality, authorized any incorporated college, or other literary incorporated institution, to take a grant' or conveyance of real or personal estate, to be held in trust. (1.) For an observatory; (2.) To found and maintain professorships and scholarships ; (3.) To provide and keep in repair a place of burial for the dead; (4.) For any specific purpose within the authorized objects of their charter. Eeal and personal estate may also be conveyed to any city or village cor- poration in trust for education, for the diffusion of knowledge, for the relief of distress, and for ornamental grounds, upon such conditions as the grantor or donor and the corporation may agree to. It may also be conveyed to commissioners of common schools, and trustees of school districts, for the benefit of common schools therein. (d) See Farmers' Fire Insurance and Loan Company, Laws of N. T., April 17, 1822, u. 240. 1 Cases against directors as trustees for Beav. 399 ; s c. L. E,. 2 Eq. 1. On the the stockholders are Koehler v. Black R. groundof this fiduciary relation a contract Falls Iron Co., 2 Black, 715 ; Hodges v. between a corporation and one of the New England Screw Co., 1 R. I. 312; directors, made at a meeting of directors Bank of St. Mary's v. St. John, 25 Ala. where there was a bare quorum including 566 ; Turquand v. Marshall, L. R. 4 Ch. the one interested, has been held void. 376; York & N. Midland R. Co. y.Hud- Butts u. Wood, 37 N. Y. 317 ; but cf son, 16 Bear. 485 ; In re Cameron's Coal- Buell v. Buckingham, 16 Iowa, 284. See brook R. Co., 18 Beav. 339 ; In re Anglo- further. Bliss o. Mattesonj 45 N. Y. Greek Steam Nav. & Trading Co., 35 22. ^i x' Directors are not trustees in the 275. On account of this relation, they ordinary sense of the term, but hold a cannot act at the same time and in the fiduciary position as regards the stock- same matter both for themselves and the holders, and are liable for any abuse of corporation. Wardell v. Railroad Co., the confidence reposed in them. James, 103 U. S. 651 ; Hoyle v. Plattsburgh, &c. L. J., in Smith v. Anderson, 15 Ch. D. 247, R. R. Co., 64 N. Y. 314 ; Blake v. Bufialo [373] *281 OP THE RIGHTS OF PERSONS. [PART IT. person receiving them without consideration, or with notice of the trust. One director or trustee may be sued alone for a breach of trust, without bringing the others before the court. Cor- porations' are also created with trust powers of another kind ; as for the purpose of loaning money on a deposit of goods and chattels, by way of pledge or security, (e) It will * 281 * soon become dtBBcult to trace the numerous and com- plicated modifications which corporations are made to assume, and the much greater diversity of objects for which they are created. We are multiplying in this country, to an unparal- leled extent, the institution of corporations, and giving them a flexibility and variety of purpose unknown to the Roman or the English law. The study of this title is becoming every year more and more interesting and important. (4.) Of their Capacity to hold Lands, and to sue and he sued. — 1. (To hold lands.") — It was incident at common law to every corporation to have a capacity to purchase and alien lands and chattels, unless thej' were speciallj' restrained by their charters, or by statute, (a) Independent of positive law, all corporations have the absolute jus disponendi of lands and chattels, neither limited as to objects nor circumscribed as to quantity. They may execute a mortgage to secure a debt. This was so under- (e) The New York Lombard Association, Laws of N. Y., April 8, 1824, c. 187. (a) Co. Litt. 44, a, 300, b ; Sid. 161, note at the end of the case ; 10 Co. 30, h ; 1 Kyd on Corp. 76, 78, 108, 115 ; Com. Dig. tit. Franchise, F. 11, 15, 16, 17, 18 ; Parker, 0. J., in First Parish in Sutton v. Cole, 3 Pick. 239. Creek R. R. Co., 56 N. Y. 485; Stewart Emma Silver Mining Co. ». Lewis, 4 e. Lehigh Valley R. R. Co., 38 N. J. L. C. P. D. 396 ; Rice's App., 79 Penn. 505. See Twin Lick Oil Co. u. Marbury, St. 168. And the action to recover 91 U. S. 587 ; Gardner v. Butler, 30 N. J. may be at law. Morison v. Thompson, Eq. 702. And they must refund any 9 L. R. Q. B. 480. The directors are lia- profits made by themselves while so act- ble primarily to the corporation, and it is ing. Parker v. McKenna, 10 L. R. Ch. 96 ; only when the corporation, as such, re- Imperial, &e. Co. V. Coleman, 6 L. R. fuses to act that stockholders have a H. L 189 ; In re Imperial Land Co., 4 right to act independently. Booth v. Ch. D. 566. The same rule applies to Robinson, 55 Md. 419. See the same promoters of companies or corporations, principle applied to a, suit in equity by Erlanger v. New Sombrero Phosphate a minority of stockholders against the Co.,3 App. Cas. 1218; Bagnall I). Carlton, corporation and an outside contractor. 6 Ch. D. 371 ; Phosphate Sewage Co. v. Hawes v. Oakland, 104 U. S. 450. As to Hartmont, 5 Ch. D. 394 ; VThaley, &c. Co. the liability of directors for fraud in gen- V. Green, 5 Q. B. D. 109; Emma Silver eral, see Vfeir v. Bell, 3 Ex. D. 238; Car- Mining Co. t. Grant, 11 Ch. D. 918 ; gill v. Bower, 10 Ch. D. 502. [374] LECT. XXXIII.] OP THE EIGHTS OP PERSONS. * 282 stood by the bar and court in the modern case of The Mayor and Commonalty of Colchester v. Lowten ; (6) and this common-law right of disposition continued in England until it was taken away, as to religious corporations, by several restraining statutes, in the reign of Elizabetli. (c) We have not reenacted in New York those disabling acts : but the better opinion, upon the construc- tion of the statute for the incorporation of religious societies, (^d) is, that no religious corporation can sell in fee any real estate without the chancellor's order. The powers given to the trus- tees of religious societies incorporated under that act are limited to purchase and hold real estate, and then to demise, lease, and improve the same for the use of the congregation. This limita- tion of the corporate power to sell is confined to religious corporations ; * and all others can buy and sell at pleasure, * 282 except so far as they may be specially restricted by their charters or by statute, (a) Corporations have a fee-simple for the purpose of alienation, ^ but they have only a determinable fee for the purposes of enjoyment. On the dissolution of the corpo- ration, the reverter is to the original grantor or his heirs ; but the grantor will be excluded by the alienation in fee, and in (6) 1 Ves. & B. 226, 237, 240, 244; and it was so adjudged in the case of Barry v. The Merchants' Exchange Company, 1 San[d]f. Ch. 280. (c) By the statute of 4 & 5 Wm. IV. c. 76, all lay civil corporations in England are restrained from selling or mortgaging any real estate, except under a government license, in the mode prescribed. {d) Laws of New York, sess. 36, c. 60, sec. 11. This act has not been either revised or repealed. See N. Y. Revised Statutes, iii. 298. (a) Corporations holding for charitable purposes, says Lord Eldon, 1 Ves. & B. 246, can alienate at law, but the alienee will be a trustee. 1 The People v. Mauran, 5 Denio, 389 ; wax, 1 N. Y. 509. A corporation can NicoU V. N. Y. & Erie R. R., 12 Barb. 460, take a fee, although its charter is only for 465. But this seems to be doubted in 1 a term of years. NicoU v. N. Y. & Erie Redfleld, Railw. c. 11, § 69, p. 254. See R. R., 12 N. Y. 121; s. c. 12 Barb. 460; Grant on Corp., " Property," iii. 129 c( scy. Rives v. Dudley, 3 Jones Eq. (N. C.) As to reverter, see Bingham v. Weider- 126. x* i' In Turnpike Co. v. Illinois, 96 U. S. is good as an executory devise, and the 03, a grant of a franchise to a. corporar title vests when the corporation comes tion of limited duration was held to pass into existence. Ould v. Washington Hos- an estate for its life only, there being no pital, 95 U. S. 303. So of a bequest of words of perpetuity. personalty. Fellows v. Miner, 119 Mass. A devise for charitable uses to a cor- 541. poration to be created by the legislature [375] * 282 OP THE EIGHTS OP PERSONS. [PABT. IV.i that way the corporation may defeat the possibility of a, reverter. (6) In England, corporations are rendered incapable of purchasing lands without the king's license ; and this restriction extends, equally to ecclesiastical and lay corporations, and is founded upon a succession of statutes from Magna Charta, 9 Hen. III. to 9 Geo. II., which took away entirely the capacity which was vested in corporations by the common law. These statutes are known by the name of the statutes of mortmain, and they applied only to real property ; and were introduced during the establishment and grandeur of the Roman church, to check the ecclesiastics from absorbing in perpetuity, in hands that never die, all the lands of the kingdom, and thereby withdrawing them from public and feudal charges, (c) The earlier statutes of mortmain were orig- inally levelled at the religious houses ; but the statute of 15 R. II., c. 5, declared that civil or lay corporations were equally within the mischief and within the prohibition ; and this statute made lands conveyed to any third person, for the use of a corporation, liable to forfeiture, in like manner as if conveyed directly in mort- main, (ci) We have not in this country reeuacted the statutes of (6) Preston on Estates, ii. 50. (c) Lord Ch. Brougham obseryed, that the object of the Mortmain Acts was to prevent land from being placed extra commerdam upon the feudal principle of pro- tecting the lords against having tenants who never died, but that there was no inten- tion of preventing by will the investment of moneys in improvements upon land already in mortmain. GMblett v. Hobson, 3 My. & K. 517. (J) Co. Litt. 2, b ; 2 Bl. Comm. 268-274, and 1 Bl. Comm. 479. The Mortmain Acts apply to corporations exclusively ; and trust[s] made by feoffment, grant, or devise, to unincorporated bodies, for charitable uses and purposes, not deemed super- stitious, have not been held to be invalid, under the Mortmain Act of 23 Hen. VIII. c. 10, and that of 1 Ed. VI. c. 14 ; Porter's Case, 1 Co. 24, a ; Martidale v. Martin, Cro. E. 288 ; case 5 Ed. VI. cited by the assistant vice-chancellor, in Wright v. Trustees of Meth. Epis. Church, 1 Hoff. Cli. 248 ; Adams and Lambert's Case, 4 Co. 104, b ; Sir F. Moore, 648. The prohibition to alienate a mortmain was qualified. The right to seize the lands as a forfeiture belonged to the mesne lords and the king ; and if they remitted the forfeiture, the alienation was good. The interests of the heir were not considered; he was bound by the aUenation. Wilmot's Opinions, p. 9; Attorney- General V. Flood, Hayes's Irish Exch. 611 ; the assistant vice-chancellor in Wright V. M. E. Church, in 1 Hoff. Ch. 254. In 1843, an attempt was made in tlie English House of Commons to repeal the statutes of mortmain, and allow of the establishment of schools, hospitals, churches* and religious and monastic institutions for the relief of the poor, the encouragement of charity and religion, at the pleasure and with the bounty of individuals ; but the motion met with no encouragement, and was withdrawn. The statute of 9 Geo. II. c. 36, is now the leading English statute of mortmain[8 1]. It declares that no lands oi[ [ 376 J LECT. XXXIII.] OF THE EIGHTS OP PERSONS. * 283 mortmain, or general!}' assumed them to be in force ; and the only legal check to the acquisition of lands by corporations con- sists in those special restrictions contained in the acts by which they are incorporated, and which usually confine the capacity to purchase real estate to specified and necessary objects ; and in the force to be given to the exception of corporations out of the statute of * wills, (a) which declares that all persons, * 283 other than bodies politic and corporate, may be devisees of real estate. (J) The statutes of mortmain are in force in the State of Pennsyl- vania. It has been there held and declared, by the judges of the Supreme Court of that state, (c) that the English statutes of mort- main have been received, and considered the law of that state, so far as they were applicable to their political condition ; and that they were so far applicable " that all conveyances by deed or will, of lands, tenements, or hereditaments, made to a body corporate, or for the use of a body corporate, were void, unless sanctioned by charter or act of assembly." (c?) In the other moneys, to be laid out thereon, shall be given or charged for any charitable uses, unless by deed, executed in the presence of two witnesses, twelve months before the death of the donor, and enrolled in chancery within six months after its execution, and be made to take effect immediately, without power of revocation. The two univer- sities, and the scliolars, upon the foundation of the colleges of Eton, Winchester, and Westminster, were excepted out of the act. (a) 32 Hen. VIII. c. 1 ; N. Y. Revised Statutes, iL 57, sec. 3. (6) If corporations are limited in the purchase of lands to lands of a specific yearly value, say ^200, and the value be within the sum prescribed when purchased, and the lands afterwards rise in value by good husbandry, or extraneous causes, the title of the corporation is not thereby affected, and the yearly value at the time of the purchase is all that the limitation requires. This is tlie just and equitable rule. 2 Inst. 722; [Bogardus v. Trinity Church, 4 Sandf. Ch. 634; Humbert v. Trinity Church, 24 Wend. 587, 629. See Harvard College v. Aldermen of Boston, 104 Mass. 470.] (c) 3 Binney, App. 626. The statutes of mortmain apply, in Pennsylvania, only so far as they prohibit dedications of property to superstitious uses, or grants to cor- porations without a statutory license. Methodist Church o. Remington, 1 Watts, 218. {d] By the statute in Pennsylvania of 6th of April, 1833, passed since the declara- tion of the judges mentioned in the text, all purchases of land by any corporation, or by any person in trust for one, without the license of the commonwealth, are made subject to forfeiture, and the same penalty extends to all lands held by corporations existing in other states, either directly or through the medium of trustees or feoffees. Purdon's Dig. 3-50. But in Runyan v. Lessee of Coster, 14 Peters, 122, it was adjudged that a corporation of another state, authorized to purchase and hold lands in Penn- sylvania or elsewhere, is competent to purchase and hold lands in that state, subject, [377] *283 OP THE EIGHTS OP PLESONS. [PAET IV. states it is understood that the statutes of mortmain have not been reenacted or practised upon ; and the inference from the statutes creating corporations and authorizing them to hold real estate to a certain limited extent, is, that our statute corporations cannot take and hold real estate for purposes foreign to their institution, (e) ^ As we have no general statutes of mortmain, perhaps a legally constituted corporation in another state can purchase and hold lands ad libitum in New York, provided their charter gave them the competent power. (/) A corporation may take a mortgage upon land by way of security for loans made in the course and according to the usage of its lawful opera- tions ; or in satisfaction of debts previously contracted in the course of its dealing. Such acts are generally provided for in the neyertheless, to be devested of the estate, and to a forfeiture of it by the state of Pennsylvania, whenever that state thinks proper to institute process for that pur- pose. The corporation holds a defeasible estate, if held without a license, procured from Pennsylvania. (e) Parker, C. J., in First Parish in Sutton v. Cole, 3 Pick. 232. The provincial statute 6f Massachusetts of 28 Geo. II. was commonly called a statute of mortmain. It was virtually repealed by the statute of 1785, which was a substitute for it; and it has been held that a bequest in trust for pious and charitable uses was not void. Bartlet v. King, 12 Mass. 537. The Revised Statutes of Massachusetts of 1836 con- tinue the same provision, and deacons and church- wardens of Protestant churches are made bodies politic, competent to take donations for their churches, and for the poor thereof. Revised Statutes, part 1, tit. 8, [c. 20,] see. 39. The British mortmain acts were never recognized as the law of Virginia or Kentucky. Robertson, C. J., 4 Dana, 356; Lathrop v. Commercial Bank of Scioto, 8 Dana, 114. In Louisiana, substitu- tions and Jidei commissa are abolished. Civil Code, art. 1507. The object was to prevent property from being placed out of commerce, but it does not apply to naked trusts to be executed immediately. (/) This is declared to be the law in Kentucky. Lathrop v. Commercial Bank of Scioto, 8 Dana, 114. The decision in that case goes to establish the doctrine, that a corporation of another state or nation can contract and sue on contracts made by its agent in Kentucky, provided they be such as its charter authorizes, and consistent with the local law and policy of the state ; and a corporation of another state can take and hold lands by purchase, mortgage, or devise, when consistent with its charter and not denied by positive law. This liberal and enlightened decision was fully con- sidered and ably sustained. ' Kiley v. Rochester, 9 N. Y. 64; Bos- 24 How. 465, 507. As to the next propo- tock V. N. Staffordshire Railway, 4 El. & sition, State v. Boston, C. & M. R. R., 25 Bl. 798; State v. Mansfield, 3 Zabr. 510; Vt. 433; Steamboat Co. v. McCutcheon, State 1^. Newark, 1 Dutch. .315. As to 13 Penn. St. 13; Thompson ». Swoope, 24 mortmain, see Potter «. Thornton, 7 R. I. Penn. St. 474; Boyce v. St. Louis, 29 252 ; Page v. Heineberg, 40 Vt. 81 ; Odell Barb. 650. V. Odell, 10 Allen, 1, 6 ; Perin v. Carey, [378] LECT. XXXIII.] OF THE EIGHTS OP PBESONS. * 284 charters of incorporation ; and without such a special authority, it would seem to be implied in the reason and spirit of the grant, if the debt was bona fide created in the regular course of busi- ness, (^r) 2. (^To sue and he suedJ) — Corporations have a capacity to sue and be sued by their corporate name. (A) Private moneyed corporations are not * only liable to be sued like private *284 individuals in assumpsit for breaches of contract, but they may be sued by a special action on the case for neglect and malfeasance and breaches of duty, and in actions of trespass and trover for damages resulting from trespasses and torts committed by their agents under their authority ; and the au- thority of such agents need not be under seal, (a) ' From their (g) Silver Lake Bank v. North, 4 Johns. Ch. 370; Baird o. Bank of Washington, 11 Serg. & R. 411 ; [American Mut. Life Ins. Co. v. Owen, 15 Gray, 491.] (A) But individual members of a corporation cannot, by a bill in equity, sue for corporate claims without the consent of the corporation ; and if the corporation neglect their rights and duties, and individual corporators wish for redress, they must at least make the corporation a party defendant. Hersey «. Veazie, 24 Me. 1. (a) Yarborough v. The Bank of England, 16 East, 6 ; Smith v. B. & S. Gaslight Co., 1 Ad. & El. 626; Maund v. Monmouthshire Canal Co., 1 Car. & M. [606], 330, Phil. ed. ; Townsend v. Susquehanna Turnpike, 6 Johns. 90 ; Gray v. Portland Bank, 3 Mass. 364 ; Chestnut Hill Turnpike i. Rutter, 4 Serg. & R. 6 ; Fowle v. Common 1 Torts. — The liability of corporations Phil., Wil. & Bait. R. R. v. Quigley, 21 for the torts or negligence of their direc- How. 202 ; Maynard u. Fireman's Fund tors, SOTvants, and agents is now deter- Ins. Co., 34 Cal. 48 ; [McDermott v. Even- mined by the general principles of the law ing Journal, 43 N. J. L. 488 ;] for malicious of agency. Ranger v. Great Western R. prosecution, Vance v. Erie Railway Co., Co., 5 H. L. C. 72, 87; Ramsden u. Bos- 8 Vroom (N. J.), 334; Goodspeed v. East ton & Alb. R. R., 104 Mass. 117, 120; Haddara Bank, 22 Conn. 530; [Bank of New York & N. H. R. R. v. Schuyler, 34 New South Wales v. Owston, 4 App. N. Y. 30, 50 ; Brokaw v. N. J. R. R. & Cas. 270 ; Edwards u. Midland Ry. Co., Trans. Co., 3 Vroom (N. J.), 328, 330; 6 Q. B. D. 287; Carter k. Howe Machine [National Bank v. Graham, 100 U. S. 699], Co., 51 Md. 290 ; Reed v. Home'Savings and other cases cited below. Thus a Bank, 130 Mass. 443 ; Williams v. Plant- corporation may be sued for assault and ers' Ins. Co., 57 Miss. 759 ; s. c. 34 Am. R. battery, Brokaw v. N. J. R. R. & Trans. 404 and note.] See Green t. London Co., 3 Vroom (N. J.), 328; Hewitt o. General Omnibus Co., 7 C. B. n. s. 290; Swift, 3 Allen, 420; St. Louis, A. & C. Atlantic & G. W. R. Co. v. Dunn, 19 R. R. V. Dalby, 19 111. 353 , Ramsden v. Ohio St. 162, other cases of malice. Bost. & Alb. R. R., supra ; see Maund u. The contrary opinions suggested in Monmouthshire Canal Co., 4 Man. & Gr. Childs v. Bank of Missouri, 17 Mo. 452; post, 290, n. (a); for libel, Whitfield 213; McLellan u. Cumberland Bank, u. S. E. Railway Co., El., Bl. & El. 115; 24 Me. 506; and Stevens v. MidlancJ [379] 284 OP THE EIGHTS OP PERSONS. [part 17. inability to be arrested, corporations are to be sued by original writ or summons ; and, at common law, they might be compelled Council of Alexandria, 3 Peters, 308 ; Rabassa v. Orleans NaTigation Co., 5 La. 461 ; Shaw, C. J., 19 Pick. 516; Hector of the Ascension o. Buckhart, 3 Hill, 193; Angell & Ames on Corporations, 385-391, 3d ed. ; Mayor of New York v. Bailey, 2 Denio, 433 ; Weightman «. Washington City, 1 Black. 38. In Oliio, it has been adjudged that corporations are liable, like individuals, for injuries done, as by cutting ditches and watercourses, in such a manner as to cause the water to overflow and injure the plaintiff's laml although the act done was not beyond their lawful powers. Rliodes v'. Cleveland 10 Ohio, 159. Individuals are liable, if in the commission of a lawful act damage tliereby accrues to another, provided he could have avoided it with due care. Lambert v. Bessey, T. Kaym. 421. A railroad company is not responsible for a building set on fire and destroyed by a spark from a railroad engine, provided there was no negligence on the part of the company, and there was the exer- cise of due care and skill. The damage was the unavoidable and casual result of the performance* of a lawful act. Burroughs v. Housatonic R. R. Co.. 15 Conn. 124; s. p. infra, iii. 436. [See Flynn v. San Francisco & S. J. R. R., 40 Cal. 14 ; Kel- logg l: Chicago & N. W. R. Co., 26 Wis. 223; Toledo, P., & W. R. Co. v. Pindar, 53 111. 447 ; and additional cases, iii. 436, n. (6), to which add Higgins v. Dewey, 107 Mass. 494.1 Counties R. Co., 10 Exch. 352, probably would not now be maintained. As to the liability of companies for misrepresentations of their directors, the distinction has been taken, that where a. person has been drawn into a contract to purchase shares belonging to a company by fraudulent misrepresentations of the directors, and the directors, in the name of the company, seek to enforce that con- tract, or the person who has been deceived institutes a suit against the company to rescind the contract on the ground of fraud, the misrepresentations are imputa- ble to the company, and the purchaser cannot be held t» his contract, because a company cannot retain any benefit which they have obtained through the fraud of their agents. But if the person who has been induced to purchase shares by the fraud of the directors, instead of seeking to set aside the contract, prefers to bring an action for damages for the deceit, such an action cannot be maintained against the company, but only against the direc- tors personally. Western Bank of Scot- land V. Addle, L. R. 1 H. L. Sc. 145, 158, citing New Brunswick & Canada Rail- [380] way, &c. Co. u. Conybeare, 9 H. L. C. 711, and many other cases, and explaiaing Banger y. Great Western Railway Co., 5 H. L. C. 72. See Crump v. XT. S. Min- ing Co., 7 Gratt. 352 ; Concord Bank v. Gregg, 14 N. H. 331 ; D. 4. 3. 15. § 1. However, the question as to the liability of a company to an action of deceit was not before the house in the principal case, and the Exchequer Chamber determined the contrary in Barwick v. English Joint- Stock Bank, L. R. 2 Ex. 259. See, too, the case arising out of the well-known Schuy- ler frauds in the overissue, &c., of stock. New York & N. H. R. R. v. Schuyler, 34 N. Y. 30. See, generally, Fogg v. GriflSn, 2 Allen, 1. There does not seem to be any solider ground for distinguishing between corporations and other princi- pals in this class of cases than in those where the distinction is given up. See 632, u. 1. [An action of deceit was maintained against a corporation in Pee- bles II. Patapsco Guano Co., 77 N. C. 233. So in Mackay v. Colonial Bank of New Brunswick, 6 L. R. P. C. 394, where the corporation took the benefit of the fraud.] LECT. XXXIII.] OP THE EIGHTS OP PERSONS. * 284 to appear by distress or seizure of tbeir property. (5) A foreign corporation, in the character of its members as aliens (unless (6) The process, pleadings, and other proceedings at law and equity, in suits hy and against corporations, and the competency of corporators as witnesses in suits in which the corporation is a, party, are fully discussed, and with a reference, in the most ample manner, to English and American authorities, in Angell & Ames's Treatise on Corporations, c. 18. See infra, 290. Upon judgment and execution against a corporation for a debt, its property, real and personal, may be attached or seized and sold, as in the case of individual defendants. It is the ordinary practice. Buchanan, C. J., in State of Maryland v. Bank of Maryland, 6 Gill & J. 219; Slee v. Bloom, 5 Johns. Ch. 366 ; s. c. 19 Johns. 456 ; Pierce u. Partridge, 3 Met. 44 ; Perry V. Adams, ib. 51 ; The Queen t. The Victoria Park Co., 1 Ad. & El. n. s. 288. If a railroad company contracts debts which it is unable to pay, the better opinion would seem to be, that the wood and iron on the railway may be taken on execution and sold, and the purchaser acquires thereby a right of property in the articles, and may take possession of them and carry them away, though the company be thereby rendered unable to execute its corporate purpose, and may in consequence forfeit its charter. See this question very ably discussed in the American Law Magazine, iv. No. 8, for January, 1845. This very point has since been decided in The State of North Carolina u. Rives, 5Ired.(N.C.) 297. It was held that the railroad company's interest in land might be sold with the fixtures and materials, and the purchaser takes and holds them until the charter expires, and then the land reverts to the original proprietor. The corporate franchise cannot be sold, nor does the sale dissolve the corporation. [Gue V. Tide Water Canal Co., 24 How. 257 ; Stewart v. Jones, 40 Mo. 140. See, also, the right to sell the fixtures, in Ranney v. Orleans N. Company, 6 Rob. (La.) 381. But, on the other hand, in Winchester and L. Turnpike Road Company v. Vimont, 5 B. Mon. 1, it was adjudged that a turnpike road was not the subject of sale, even under a decree in chancery, to pay debts. The stock belonged to individuals, and not to the company. The mere road belonged to the company as a right of way only for particular uses, and when it ceases to be thus used, the land reverts to the grantors. The purchaser at such a sale would not acquire any valuable right, for corporate powers would not follow the purchase. A sale of the road would not carry a right to the tolls, for that would be the sale of a chose in action, wliich cannot be thus effected. The only proper remedy for the creditor under tliis decision,- if not under that in the preceding case, is, by decree, applying by a receiver the net tolls to the payment of the creditor. In Pennsylvania, corporation franchises cannot be sold on execution ; but under their Sequestration Act of 16th June, 1836, though turnpike roads, railroads, and canals may be the subject of sequestration for debt, yet where the public have an interest in them, the court may order that the revenues be applied in the first place to keep the works in repair. The Susquehanna Canal Company v. Bonham, 9 Watts & S. 27. At common law, the first process or summons against a corporation was to be served on the mayor, president, or other head officer. The statute law of New York (N. Y. Revised Statutes, ii. 457) has simplified the common- law proceeding, by directing that the writ or first process against a body corporate, be served on the president, presiding officer, cashier, secretary, or treasurer; and if the process be returned served, that the plaintiff, instead of being driven to com- pulsory and vexatious steps to compel an appearance by distringas, may enter an appearance for the defendants, of course, and proceed as in cases of personal actions against natural persons. The Revised Codes of Virginia (1 R. C. 1819) and of North Carolina (1 R. S. 1837), have ajimilar provision for the service of process on [ 381 ] *285 OP THE EIGHTS OP PERSONS. [PART IV, they be alien enemies), may sue in the federal courts, (c) They may sue upon a mortgage taken upon lands as security for a debt, (c?) The same rule, allowing corporations of one * 285 state * to contract and sue in their corporate name in another, has been declared in several of the other states, and may be now considered as the general law of the land, (a) ' y^ corporations. 1 Rob. Pr. 134. In Connecticut, corporations are liable to the process of foreign attachment, and the officers can be made parties, and held to answer on oath. Knox v. Protection Ins. Co., 9 Cowi. 430 ; see Brunily v. Westchester Cy. Man. Soc, 1 Johns. Ch. 366, s p. So, in the province of New Brunswick, by statute of 6 Wm. IV. 0, 33, a writ of summons is substituted for the original writ, and a corpora^ tion may be proceeded against in a summary way. Kerr (N. B.), 276. Corporations show by proof, on the trial, that they are a corporation. Carmichael v. Trustees of School Lands, 3 Howard (Miss.), 84; Williams v. Bank of M., 7 Wend. 539. But corporations are not liable to be sued out of the state, except upon foreign attach- ment in rem, under local statutes. Clarke v. N. J Steam N. Co., 1 Story, 631; Bushel V. Commonwealth Ins. Co., 15 Serg. & R 176. A public municipal corpora- tion cannot be sued out of the county in which it is situated. Lehigh County v. Kleckner, 5 Watts & S 181. Nor can a foreign corporation he sued in New York under their attachment act, which only contemplated the case of a liability to arrest. M'Queen v. M. M. Co., 16 Johns. 6. But its property may be attached by a process in rem. Clarke v. New Jersey Co., 1 Story, 531. A foreign corporation can- not be sued as trustee for effects in their hands, under the attachment act in Massachusetts. Union T. Road » N E. M. Ins. Co., 2 Mass. 37 ; Peckham v. N. Parish in H , 16 Pick 286. But they may, in rem, under the Attachment Act of Pennsylvania ; Bushel v. Commonwealth Ins. Co., 15 Serg. & R. 176 ; Angell & Ames on Corporations, 334-342, 2d ed. ; and in New Hampshire and other states under their foreign attachment law, or whenever effective service can be made upon it or its property, Libbey v. Hodgdon, 9 N. H. 394 ; Martin v. Bank of Alabama, 14 La. 415 ; U. S. Bank v. Merchants' Bank, 1 Rob. ( Va.) 573. (c) Society for Propagating the Gospel v. Wheeler, 2 Gall. 105; Henriques v. Dutch W. India Co., 3 Ld. Raym. 1586. (d) Silver Lake Bank v. North, 4 Johns. Ch. 370; [American Mut. Life Ins. Co. «. Owen, 15 Gray, 491.] It is now settled by statute (N. Y. Revised Statutes, ii. 457), that a foreign corporation may, upon giving security for the payment of the costs of suit, prosecute in the courts of the state, in the same manner and under the same checks as domestic corporations. A state is a corporation, and may sue in another state. Delafield v. The State of IlUnols, 2 Hill (N. Y.), 159; Angell & Ames on Cor- porations, 3d ed. 376. (a) Williamson v. Smoot, 7 Martin (La.), 31; N. Y. Firemen Ins. Co. v. Ely, 6 Conn. 560 ; Portsmouth Livery Company v. Watson, 10 Mass. 91 ; Taylor v. Bank of Alexandria, 5 Leigh, 471 ; Bank of Edwardsville v. Simpson, 1 Mo. 184 ; Lathrop V. Commercial Bank of Scioto, 8 Dana, 114 ; Stewart v. U. S. Ins. Co., 9 Watts, 126; ' Foreign Corporations. — (a) It has forbidden by its charter to do business in been held that a corporation which is the state where it is incorporated cannot which it is incorporated rests upon com- do business in a state other than that in ity simply. Cowell v. Springs Co., 100 [382] LECT. XXXIII.] OF THE RIGHTS OF PERSONS. 285 (5.} Of their Right to hold to Charitable Uses. — It has been a question of grave import and difficult solution, whether a corpora- Bank of Washtenaw v. Montgomery, 2 Scam. 422 ; Bank of Augusta v. Earle, 13 Peters, 519-591 ; Guaga Iron Co. v. Dawson, 4 Black. (Ind.) 202 ; Bank of Marietta do business elsewhere. Land Grant Ry. V. Commissioners of Coffey Cy., 6 Kans. 245. (6) Suits. — As to suits by a corpora- tion, see, further, American Mut. Life Ins. Co. V. Owen, 15 Gray, 491. It is fre- quently made a condition of permitting a foreign corporation to do business within a state, that service on its agent shall be sufficient. Of course a judgment against a corporation of one state by the court of another will be valid, if the corporation appears generally in the suit. See March V. Eastern R.E., 40 N. H. 548; Moulin v. Insurance Co., 1 Dutcher, 57; s. c. 4 Zabr. 222 ; Lafayette Ins. Co. u. French, 18 How. 404. As to the courts of the U. S., see i. .347, n. 1 ; and Day «. Newark India Rubber Manuf . Co., 1 Blatchf . 628 ; Northern Indiana R. R. v. Michigan C. R. R., 5 MoL. 444, 446. In one case after service by trustee process the court de- clined to interfere with a foreign corpora- tion on the ground of having no means of enforcing obedience to its decree. Wil- U. S. 55. Such comity does not extend so far as to confer power to do any busi- ness or to take property contrary to the public policy of such other state. Chris- tian Union u. Tount, 101 U. S. 352. Hence, also, a state may refuse to allow a foreign corporation to do business within its borders, or may impose any legal conditions upon a corporation so doing business. But it was held that an agreement not to resort to the federal courts, made in pursuance of such con- dition, was unlawful and void. Insurance Co. V. Morse, 20 Wall. 446. A condition, however, that if a foreign corporation should resort to the federal courts it should cease to have the right to do business in the state, was held valid in Doyle V. Continental Ins. Co., 94 U. S. liston V. Michigan S. & N. Ind. K. R., 13 Allen, 400. (c) Contracts. — See Paul v. Virginia, 8 Wall. 168, 181. It has been laid down that when a corporation makes a contract in a state other than that where it is incor- porated, and Its powers are consistent with the lex loci contractus, the corporation will be deemed to have acted in conformity with the law of the place of its creation, and to be liable on its contract in like manner and to the same extent as on those which were entered into by it with citi- zens of the state by which it was estab- lished, although the nature, interpreta- tion, and obligation of the contract, except as dependent on the extent of the powers conferred by the charter, are governed by the foreign law. Hutchins v. New England Coal Mining Co., 4 Allen, 580. [But see Milnor o. N. Y. & N. H. R. R. Co., 53 N. Y. 363.] See Baltimore & Ohio R. R. V. Glenn, 28 Md. 287 ; Bard v. Poole, 12 N. Y. 495. 535. As to the effect of incorpora- tion in more than one state, see Bridge Co. u. Mayer, 31 Ohio St. 317; Quincy Bridge Co. v. Adams County, 88 III. 615. (ft) Suits. — Jurisdiction of a foreign corporation was held to be acquired by a simple summons under the New York code, so far at least as to render a judg- ment obtained thereon valid in that state. Gibbs 0. Queen Ins. Co., 63 N. Y. 114. See also Hannibal, &c. R. E. Co. v. Crane, 102 111. 249 ; Nat. Condensed Milk Co. v. Brandenburgh, 40 N. J. L. Ill ; Newby V. Colts Patent Fire Arms Co., 7 L. R. Q. B. 293. As to the aid a court will give the receiver of a foreign corporation in collecting the assets, see Nat. Trust Co. V. Miller, 33 N. J. Eq. 155. [383] * 285 OP THE RIGHTS OP PEKSONS. [PAET IV. tion, instituted as a charity, could be permitted to become the cestui que trust of lands devised for charitable uses. Corporations are excepted out of the statute of wills in England, and in New York and most of the other states ; and it has been decided that they cannot be directly devisees at law. (6) But in England, V. Pindall, 2 Rand. 465 ; but in this last case it was held that the bank of another state could not enforce a primary contract made in Virginia. A foreign coiporation is permitted to sue in the English courts. Henrigues v. Dutcli W. India Co., 2 Ld. Eaym. 1532 ; s. c. 1 Str. 612 ; 2 id. 807 ; Rational Bank of St. Cliarles v. De Barnales, 1 Carr. & P. 569 ; Angell & Ames on Corporations, 314, 315, 2d ed. So, a sovereign may sue in England, in equity as well as at law. Hullett v. King of Spain. 1 Dow & Clark, 169 ; s. c. 3 Sim. 338 ; Brown v. Minis, 1 M'Cord (S. C), 80. In this case a shade of doubt was thrown over the question, but there was no decision. In the case above mentioned, from 2 Randolph, the court held that, as it was the policy of Vir- ginia to restrain all banking operations by corporations not established by their own la,ws, a bank in Ohio could not be permitted to establish an agency in Virginia for discounting notes, or carrying on other banking operations, nor could an action be sustained in Virginia by the bank on a note thus acquired. Tliis limitation to the general rule, that a foreign corporation may sue, is the same in effect as that prescribed by the New York statute, and which will not allow the corporation of any other state or country to do any act, or maintain a suit on any contract arising therein, which is not allowed to be done by any domestic corporation. It was in this view that the court, in the case of Randolph, held that the Oliio Bank could not make a primary contract in Virginia, in relation to banking business, as by discounting notes, though, if the same be done in Ohio, the bank could sustain a suit thereon in Virginia. Tlie court in Virginia raised, but did not decide, the question, whether the bank in Ohio might not make a secondary contract in Virginia, for carrying into effect the contract originally made in Ohio. A point bearing on this was decided in the English case (if Henriques, where a suit by a Dutch corporation, on a recognizance of bail taken in England, was sustained; and in the case of The Silver Lake Bank u. Korth, where a mortgage taken in New York, on lands in that state, to secure a bank loan made in Pennsylvania, was enforced. It may now be considered as a settled principle of law, that a corporation in one state or country may not only sue, but may make valid contracts, in another, pro- vided their charter warrants such contracts, and there is no positive disability by stat- ute for a corporation to make such contracts in the state where they are made. As a general rule, personal rights and contracts have no locality, and the laws of comity apply in their fullest extent between the several states of the Union. This whole doctrine was definitely established in the Supreme Court of tlie United States, in the case of The Bank of Augusta v. Earle, 13 Peters, 519, where it was held, in a clear and able opinion, delivered by the chief justice, that the purchase by a competent agent in Alabama of a bill of exchange, by an incorporated bank of another state, was a valid contract. A foreign corporation may contract according to the laws in another state, and according to the rate of interest in such other state, though that rate be higher than in its own state, when neither the charter nor the laws of such other state prohibit it. Frazier v. Willcox, 4 Rob. (La.) 517. In several of the states, banking corporations, incorporated out of the state, are prohibited by statute from exercising banking powers within it. (6) Jackson v. Hammond, 2 Caines's Cases in Error, 387. [384] LECT. XXXIII.] OP THE EIGHTS OP PERSONS. * 286 by the statute of 43 Eliz. c. 4, commonly called the statute of charitable uses, lands may be devised to a corporation for a chari- table use ; and the Court of Chancery will support and enforce the charitable donation. The various charitable purposes which will be sustained are enumerated in the statute ; and the administration of justice, in this, or any other country, would be extremely de- fective, if there was no power to uphold such dispositions. The statute of Ehzabeth has not been reenacted in New York, New Jersey, Pennsylvania, or Maryland, and probably not in any of the United States, though it may not have been abrogated in some of them ; (c) and. the inquirj^ then is, whether a court of equity has power to execute and enforce such trusts as charities, independent of any statute, and when no statute declares them unlawful. The statute of wills merely * excepts * 286 corporations from the description of competent devisees ; and there is nothing in the act declaring it unlawful for a. cor- poration to take for a charitable use. They are left in thesame state as if the statute of wills had not been passed ; and the ques- tion is, whether a court of equity may sustain and enforce a devise to or for the use of a corporation, provided the object be a charity in itself lawful and commendable, (a) (c) The statute of Eliz. is in force in North Carolina (1 Hawks, 96), and in Ken- tucky the statute of charitable uses of 43 Eliz. is held to be in force, and was nerer repealed ; and, consequently, though there be a defect or want of cestui que use to take the use, or, if the use be too indefinite and uncertain to be enforced independent of the statute; yet the Court of Chancery will obviate the difficulty, and give it effect as near the general intent as may be, under the cy-pres doctrine. Gass r. Wilhite, 2 Dana, 170. In that case it was held that the objects and purposes of the articles of association of the people called Shakers were charitable and pious, and valid in law ; that the statute of 43 Eliz. was pro tanto a revocation of the prior statutes of mortmain ; and though a corporation, according to the principles of the common law, could not be seised to a use, y?t, since the statute of Elizabeth, tlie courts have main- tained devises to corporations, in trust for charitable uses ; that where a trust was for a charitable use, its being a perpetuity was no objection to it ; that, as there was no restraint in Kentucky similar to the Mortmain Act of 9 Geo. II., religious societies might acquire and hold property for religious purposes in other modes than that pointed out in the act of 1814. The exception in the English statute of wills, pro- hibiting devises to corporate bodies, is omitted in the Kentucky statute of wills. 4 Dana, 356. In Massachusetts, the statute of 43 Eliz. c. 4, is in force so far as to determine what are gifts to charitable uses. Sanderson v. White, 18 Pick. 328. It is adopted in principle and substance in Massachusetts. Going v. Emery, 16 Pick. 107 ; Burbank v. Whitney, 24 Pick. 153. And in Connecticut, the statute of Elizabeth was virtually reenacted as early as 1702. ('() In the case of The Trustees of Phillips Academy v. King, 12 Mass. 546, it was VOL. II.- 25 11385] * 287 OP THE RIGHTS OP PERSONS. [PART IV. The case of The Baptist Association v. Hart (5) was one in which a bequest of personal property to the plaintiffs, as trustees, failed for want of an incorporation ; but the reasoning in the case has thrown embarrassment over this question. It was there said that the statute of Elizabeth did give validity to some devises to charitable uses which were not valid without the aid of the statute ; and the opinion of the chief justice seemed rather to be (for there was no authoritative decision of the court on the point) that the original interference of chancery on the subject of charities, where the cestui que trust had not a vested equitable interest, was founded on the statute of Elizabeth ; and that, in- dependent of the statute, a court of equity would not sustain a charitable bequest, where no legal interest was vested. The accuracy of this conclusion remains yet to be established by judicial sanction ; and there is a recent and direct authority against it in the case of The Orphan Asylum Society v. Jf ' Car- tee, (c) in which it was decided, in New York, by Chancellor Jones, after a very elaborate discussion and consideration, that a. devise of lands to executors, in trust for a charitable corpora- tion, for charitable purposes, was a legal and valid trust, to be enforced in equity. Lord Northington, in the case of The Attor- ney General v. Tancred, (d) affirmed that devises to corporations, though void under the statute of wills, were always considered as good in equity if given to charitable uses ; and that the * 287 uniform rule of the Court of Chancery, * before as well as at and after the statute of Elizabeth, was, that where the iises were charitable, and the grantor competent to convey, the court would aid even a defective conveyance to uses. This same principle has been advanced in other cases, and by very high authority, (a) ^ y^ The weight of English opinion and argu- adjudged that an aggregate corporation was capable, from its nature, unless specially disqualified, of taking and holding property as a trustee. (b) 4 Wheaton, 1. (c) See p. 288, note. (d) 1 Eden, 10 ; 1 Wm. Bl. 91. (a) Sir Joseph Jekyll, in Eyre .-■. Countess of Shaftsbury, 2 P. Wms. 119. See also 2 Vern. 342; Lord C. J. Wilmot, in Attorney General v. Lady Downing, 1 This is aaid to be now generally 539, 577 ; Perin v. Carey, 24 How. 465, admitted. Jackson v. PhiUips, 14 Allen, 501. Cases affirming the St. 43 Eliz. to ip- Charitable Uses. — A devise, bequest, uses, is valid, though the corporation or gift, to a corporation for charitable is not formed until after the donor's [386] LECT. XXXm.] OP THE EIGHTS OF PERSONS. * 287 ment would seem to be in favor of an original and necessary jurisdiction in chancery, in respect to bequests and devises in trust to persons competent to take for charitable purposes, when the general object of the charity was specific and certain, and not contrary to any positive rule of law. Wilmot's Opinions, 24, 33 ; 1 Bro. C. C. 15 ; 7 Ves. 69 ; Lord Eldon, in Attorney General t. The Skinners' Company, 2 Russ. 407 ; Sir Joiin Leach, in Attorney General v. Tiie Master of Brentwood School, 1 Myl. & K. 376. In the case of the Attorney General V. Mayor of Dublin, 1 Bligh, n. s. 347, Lord Redesdale declared that the statute of Elizabeth created no new law on the subject of charitable uses, but only a new machinery and ancillary jurisdiction. It is stated, in Duke on Uses, 163, that Symons sold lands, by bargain and sale, to Fleming, upon confidence to perform a charitable use, which he declared by will. The bargain was never enrolled, and yet the lord chancellor decreed a sale of the lands by the heirs, to be applied according to the limitation of the use. This was the 24 Eliz., and before the statute of charitable uses. Chancellor Walworth, in 7 Paige, 80, places reliance on this case as evidence of the common-law jurisdiction of chancery over charitable uses. Lord Hardwicke, in Attorney General v. Middleton, 2 Ves. 327, held that, before and independent of the statute of Elizabeth, the Court of Chancery did exercise original jurisdiction in cases of charities at large, and not regulated by charter. It was, in the cases of charities, afterwards provided for by the statute of Elizabeth. Lord Chancellor Sugden, in the case in Ireland of The Incorporated Society v. Richards, 1 Con. & Law, 58, s. c. 1 Dru. & War. 258, reviews and analyzes all the cases, and concludes that there was an inher- ent jurisdiction in chancery existing before, after, and at the time of the statute of 43 'Eliz., sustaining devises to charitable uses, though void at law. be in force are those last cited, and Heuser are named. 14 Allen, 591, and cases cited ; «. Harris, 42 111. 425 ; Richmond i;. State, Cromie v. Louisville Orphans' Home Soc, 5 Ind. 334 ; M'Cord v. Ochiltree, 8 Blackf. 3 Bush (Ky.), 365, 375. But this is qual- (Ind. ) 15. Contra, Norris o. Thompson, ified or denied in states where the St. 4 C. E. Green (N. J,), 307; Bascom v. 43 Eliz. is not in force. See the cases Albertson, 34 N. Y. 584 ; Wilderman v. cited as to the statute, and State v. War- Baltimore, 8 Md. 551. The doctrine of ren, 28 Md. 338 ; Owens v. Missionary cy-pis is discussed post, iv. 508, n. 1. It Soc, 14 N. Y. 380. The whole law of may be mentioned here that charities are charity is much discussed in the above held not to be within the common rule Massachusetts and New York cases, es- limiting perpetuities and accumulations, pecially in Jackson u. Phillips. See Post, iv. 283, II. 1. Also that charitable also Saltonstall v. Sanders, 11 Allen, bequests to unincorporated societies, &c., 446 ; Beaumont v. Oliveira, L. R. 4 Ch. are to be upheld, even where no trustees 309. death. Russell v. Allen, 107 U. S. 163 ; As to what is a charitable use, see Ould u. Washington Hospital, 95 U. S. Jones u. Habersham, supra; Russell v. 303; Fellows v. Miner, 119 Mass. 641. Allen, supra ; In re Dutton, 4 Ex. D. 54 ; As to what law governs in determining In re Clark's Trusts, 1 Ch. D. 497 ; Yeap the validity as against the heir and next Cheah Neo v. Org Cheng Neo, 6 L. R. P . C. of kin respectively, see Jones v. Habers- 381, 394-396. ham, 107 U. S. 174. [387] •288 OF THE EIGHTS OP PERSONS. [PAET IV. The elements of the doctrine of the English chancery relating to charitable uses are to be found in the civil law ; (6) and it is questionable whether the English system of charities is to be re- ferred exclusively to the statute of Elizabeth. The statute has been resorted to as a guide, because it contained the largest, enumeration of just and meritorious charitable uses ; and it may, perhaps, be considered rather as a declaratory law, or specifica- tion of previously recognized charities, than as creating, as some cases have intimated, (c) the objects of chancery jurisdiction over charities. If the whole jurisdiction of equity over charitable uses and devises was grounded on the statute of Elizabeth, then we are driven to the conclusion, that, as the statute has never been reenacted, our courts of equity in this country are cut off from a large field of jurisdiction, over some of the most interest- ing and meritorious trusts that can possibly be created and con- fided to the integrity of men. It would appear from the * 288 preamble * to the statute of Elizabeth, that it did not in- tend to give any new validity to charitable donations, but rather to provide a new and more effectual remedy for the breaches of those trusts, (a) (6) Code, lib. 1, tit. 2, sec. 19, 26 ; tit. 3, see. 38 ; Dig. 30, tit. 1 ; ib. 33. 2. 16 ; Strahan's note to Domat, b. 1, tit. 1, see. 16 ; Swinburne, pt. 6, sec. 1 ; 2 Domat, b. 3, tit. 1, sec. 6 ; b. 4, tit. 2, sec. 2, 6 ; b. 3, tit. 1, sec. 6; Lord Thurlow, in White v. White, 1 Bro. 12. By a rescript of the Emperor Diocletian, corporations could not take real estate without special license , and Gibbon, who refers to the rescript of Dio- cletian, says that there were several laws under the Roman emperors enacted with the same design as the English statutes of mortmain. Gibbon's Hist. ii. 345. He alludes, however, to several instances in which those laws had been suspended in favor of Christian charities. The edict of Constantine (as cited from the Theodosian Code by the assistant vice-chancellor, in his able and learned opinion on the subject, in Wright v. The Trustees of the Methodist Episcopal Church, 1 HofE. Ch. 246) gave legality to legacies to the Christian church, and broke down the Roman statutes of mortmain. Legacies to pious uses became afterwards privileged in the Roman law, and their uncertainty was no objection to their validity. Charities have their founda- tion in Christianity. A religious purpose is a charitable purpose. Lord Langdale, 1 Keen, 233. Their element is Christian benevolence, or an enlarged love of human kind, without regard to selfish considerations, or even the relations of blood, or affinity, or friendship. * (c) 1 Ch. Cas. 134, 267 ; 6 Dow, 136. (a) The statute defined the charities which chancery would protect, and which were to be enforced ; but the better opinion is, that it left the jurisdiction as it exisited prior to the statute, untouched. In Dashiell v. Attorney General, 5 Harr. & J. 392, it was decided, after an able discussion, that, independent of the statute of 43 Eliz. (and which had not been adopted in Maryland), a court of chancery cannot' sustain and enforce a devise to charitable uses, which would, without the statute, have been void [388] LECT. XXXIII.J OP THE RIGHTS OP PERSONS. * 288 (6.) Their Powers to make Contracts. — It was an ancient and technical rule of the common law, that a corporation could not at law, as vague and indefinite. The same decision was made in Virginia, in Gallego V. The Attorney General, where the statute of 43 Eliz. was repealed. 3 Leigh, 450 ; Janey v. Latane, 4 id. 327. See also Story, J., in 3 Peters, 494, g. p. But in Whitman o. Lex, 17 Serg. & R. 88, it was held that a bequest to St. Michael and Zion churches in Philadelphia, the interest to be laid out in bread annually for ten years, for the poor of the Lutheran congregation, was a valid bequest. That case estab- lished that a trust iu favor of an incorporated, religious, or charitable society was an available' one ; and the same principle was declared in the case of The Mayor and Cor- poration of Philadelphia v. Elliott, 3 Rawle, 170, and by Mr. Justice Baldwin, in the case of Sarah Zane's will, decided in the Circuit Court for Pennsylvania, 1833, and cited in 2 How. 195, 197. Though the statute for charitable uses of 43 Eliz. was not extended to Pennsylvania, yet the principles adopted in chancery, in the application of that statute, applied as part of the common law. The Supreme Court of Penn- sylvania, in Zimmerman v. Anders, 6 Watts & S. 218, declared that a devise of real estate to an unincorporated association for religious purposes, but incorporated after the testator's death, was good, and that the conservative provisions of the statute of Elizabeth, and charitable uses supported before that statute and beyond it, are in force there. So, in The American Bible Society w. Wetmore, 17 Conn. 181, it was admitted as a rule of equity to recognize and protect charities not incorporated, in their inter- ests in bequests and devises, though not incorporated, but remaining in abeyance. See inglis v. Sailor's Snug Harbor, 3 Peters, 99. Where the object uxis defined, and the instrument not inadequate, they give relief to the extent of the English chancery. The bequest, in the case in 9 Ves. S99, would be good there. It is immaterial whether the person to talce be in esse or not, or how uncertain the objects may be, provided there be a discretionary power vested anywhere over the application of the testator's bounty to these objects. If the intention sufficiently appears on the bequest, it would be held valid. But where the particular charitable object is not specified, or the charitable purpose in the channel of the testator's intention cannot be effected, there is no case in Pennsylvania in which the courts have undertaken to make new chan- nels for the trust on the doctrine of cy-pres, though there might be trustees willing and competent to act. Report of the Pennsylvania Commissioners on the Civil Code, Jan. 1835. Uncertainty of individual object would seem to be a characteristic of charity, for personal or individual certainty has often been held fatal to it. The cases to this point are cited by Mr. Binney, in his argument in the great will case referred to in a subsequent page. The decree in the case of The Orphan Asylum Society v. M'Cartee was reversed, on appeal to the Court of Errors of New York (9 Cowen, 437), but it was on the ground that the devise to the corporation was direct, and not a trust for the corporation ; and the opinion of Chancellor Jones, on that point, remains undisturbed. The question relative to the jurisdiction of chancery over devises to charitable uses remains to be definitively settled in this country. See infra, iv. 503. In Moore v. Moore, 4 Dana (Ky.), 357, it was held that a court of equity, without the aid of any statute, may enforce a trust, whenever it is so defined or described by the donor as to enable the court, consistently with the rules of law, to ascertain and apply it to the objects intended ; and where, in such case, there is no trustee appointed by the will, the court will act as trustee and appoint one. The chancery jurisdiction, whether a trust was deemed a charity or not, had been established in England prior to the statute of 43 Eliz. It was further considered that the statute of Elizabeth, so far as it gave validity to numerous charitable gifts and bequests which would otherwise be [389] * 288 OP THE EIGHTS OF PERSONS. [PAET IV. manifest its intentions by any personal act or oral discourse, and that it spoke and acted only by its common seal. (6) After- void, was in force in Kentucky ; but so far as it related to the remedy, when no specific application existed or had failed, by authorizing the appropriation upon the civil-law doctrine of cy-pres, of the charity to some suitable and congenial purpose of charity, it was not applicable to our institutions, or in force. In this last case, the equity jurisdiction over charitable bequests and trusts was ably and learnedly discussed by C. J. Robertson, in delivering the opinion of the c*irt ; and in the case of Potter t. Chapin, 6 Paige, 639, it was held that the Court of Chancery would sustain a gift or bequest, or dedication of ^personal property to public or cliaritable uses, if the same be not inconsistent with local law or public policy, and where the object of such gift or dedication is specific and capable of being carried into effect according to the inten- tion of th^ donor. Chancellor Walworth said that the decision in the case of The Baptist Association r. Hart's Executors, 4 Wheaton, 1, was generally admitted to be wrong. That decision was, that the Baptist Association was not incorporated ; that the individual associates could not take as trustees, they being a body vague and uncertain ; and that no legal interest vested ; and that legacies to charities were sus- tained in England under the statute of Elizabeth only. Again, in the case of The Dutch Church in Garden Street v. Mott, 7 Paige, 77, it was decreed that the Court of Chancery had an original jurisdiction to enforce and compel the performance of trusts for pious and charitable uses, when the devise or conveyance in trust was made to a trustee capable of taking the legal estate. In the case of Milne v. Milne, 17 La. 46, under the will of Alexander Milne, in which legacies were left to two public charitable asylums, to be, after the death of the testator, incorporated and established at Milneburgh, it was held that the courts were bound to aid in carrying out tlie intention of the will. The legacies were con- ditional, and took effect when the corporations were created, by way of executory devise. Also, in the case of Executors of Burr v. Smith, 7 Vt. 241, a bequest of money to certain unincorporated societies was held good, and that there was a juris- diction in equity independent of the statute of Elizabeth ; and so, again, in Sanderson V. White, 18 Pick. 328, it was held that if trustees in a charity case, and having visitatorial powers, are guilty of a violation of law, they may be proceeded against either at law or in equity, and that equity has a general jurisdiction over abuses of all trusts. It was admitted, in the case of Inglis e-. The Sailor's Snug Harbor, 3 Peters, 99, that a bequest to an association to be thereafter incorporated will vest when the corporation is created. So, again, in Bartlett v. Nye, 4 Met. 378, a devise of real estate to an unincorporated society, for charitable uses, was held valid, and equity would enforce the trust as against the heirs. In the case already alluded to, in 1 HoS. Ch. 202, the whole subject of the juris- diction of chancery over gifts and devises to charitable uses is examined with great industry and learning, and the numerous cases before and since the statute of Eliza- beth analyzed; and the assistant vice-chancellor (Hoffman) concludes that there was a jurisdiction in chancery anterior to the statute of Uses of 43 Eliz., over charitable uses, upon the ground of trust, and that the courts of equity in New York possess that jurisdiction. He cites several ancient cases from the precedents of bills and pleadings, printed under the direction of the English record commission in 1821, and he held it demonstrable that the statute of Eliz. did not establish ;. aingle new prin- ciple in the law of charities, and that where that statute does not exist, feoffments (6) Davies, 121, the case of the Dean and Chapter of Femes. [390] LECT. XXXIII.] OF THE BIGHTS OP PERSONS. * 288 wards the rule was relaxed, and, for the sake of convenience, corporations were permitted to act, in ordinary matters, without and grants to trustees for charitable uses were valid. lb. 244 to 265. The statute of Ehz. specified the objects which were to be deemed charities, and tlie English chancery enforces none other. The power to enforce such charities was in the court, by virtue of its original constitution, independent of the statute. Under the English statute of mortmain, of 9 Geo. II. c. 36, a corporation cannot take the proceeds of lands devised or directed to be sold, nor moneys arising from the sale of land given to charitable uses by will. lb. 223, 227. But in New York, a devise to trustees for the use of a corporation is valid, though a direct devise of land to a corporation for charitable uses is void. The English statute of Geo. II. avoids any gift or appoint- ment to any person of any interest or estate in lands, or of any money or benefit derived from the sale of lands, if it be for the benefit of any charitable use. (Arab. 20,155, [367], 635; 14 Ves. 541 ; 2 Keen, 172 ; Seaton on Decrees, 130 ; 1 Hoff. Ch. 234.) But under the N. Y. II.S. ii. 67, sec. 3, a devise in trust to lease or sell lands and pay the proceeds to a corporation, is valid, and, as the assistant vice-chancellor observed, " the great law of charities has been saved." Mr. Binney, in a learned and able argument in the case of Vidal v. The City of Philadelphia, in the Supreme Court of the United States, in February, 1844, 2 How. 127, selected from the volumes of the British record commission, published in 1827, above fifty cases of bills and answers in chancery relating to charitable uses, from the reign of Ricliard II. to that of Eliza- beth ; and which went to show the fact of the exercise of chancery jurisdiction in cases of charitable uses, before the 43d of Elizabeth, and that charitable uses, for general and indefinite purposes, as well as for specific charities, were assisted at that period precisely .as they are now. The fact, I think, may be considered indisputable, that chancery uses are lawful uses by the common law, and that the statute of EMza- beth was only an ancillary remedy, now supplied by chancery as the rightful original tribunal for such trusts. The cases were considered in this light in the opinion of tlie Supreme Court, as delivered by Mr. Justice Story, in the great case of Vidal v. Girard's Executors, above mentioned. The decision in this last case may be said to close all further discussion and controversy on the subject, and it establishes that a corporation has a legal capacity to take real or personal estate in trust for charitable, eleemosynary, and beneficial uses and purposes, in the same manner and to the same extent as a private person may do, and the trusts may be enforced in equity. It was declared that equity had an inherent jurisdiction before the statute of Elizabeth, upon the ground of the common law, to enforce charitable uses. Mr. Assistant Vice- Chancellor Sandford, in his very learned and able judgment in the case of Kniskern c. The Lutheran Churches, 1 Sandf. Ch. 439, recognizes the same doctrine ; and I refer to that case for the elucidation and establishment of the great principle, that courts of equity will give effect to charities directed to religious jpurposes, on the ground of a trust, and will, see that the intent of the founder of them, for civil as well as religious purposes, be carried into effect. If a charity be created for a religious purpose, in a Christian congregation designated by the name of a sect, without any specification of the particular worship or tenets intended, the intent of the founder will be deduced from the tenets, and doctrine, and discipline of the con- gregation avowed and practised by its professors and worshippers at the time of the donation, and the charity will be held appropriated to such church, and to none other. This case is distinguished by an exuberant display of theological learning on the sub- ject of Lutheran creeds and faith, and for the intelligence, discretion, and logical acuteness of the assistant vice-chancellor. The same principles and conclusions of equity were stated and declared in the analogous cases of Lady Hewley's Charity, [391] * 289 OF THE RIGHTS OP PERSONS. [PART IV. deed, as to retain a servant, cook, or butler. (. January, 94 U. S. 202 ; Weeks Bank o. W. & A. R. R. Co., 2 Lea, 676. v. Propert, 8 L. R. C. P. 427. [397] *292 OF THE RIGHTS OF PERSONS. [FART IT. (for the appointment of the agent need not be by seal in the case of ordinary contracts), corporations, like natural persons, are bound only by the acts and contracts of their agents, done and made within the scope of their authority, (a) ^ tract by parol, and, whether expressed or implied, for goods sold and delivered. This was a relaxation of the ancient rule of the common law to the same extent as had already been made by the courts of the United States, to which the learned judge (Patterson), who delivered the opinion of the K. B. in that case, alluded. The Eng- lish court took care, however, " to disclaim entirely the right or the wish to innovate on the law upon any ground of inconvenience, however strongly made out," but admitted that if the old rule had been treated by previous decisions with some degree of strictness, and if " the principle, in fair reasoning, leads to a relaxation of the rule for whicli no prior decisions can be found expressly in point, the mere circumstances of novelty ought not to deter us." The liberal and sound reasoning contained in this decision, with the qualified reserve accompanying it, are both to be commended. It was further declared, in Church v. Imperial G. L. Co., 6 Ad- & El. 846, that it made no difference as to the right of a corporation to sue on a contract entered into by them without seal, whether the contract be executed or executory. In the case of The Mayor of Ludlow v. Charlton, 6 M. & W. 820, in tlie Exchequer, in 1840, Baron Kolfe gave an elaborate discussion and judgment on the question how far a corporation could be bound by a contract without their corporate seal. It was held that the late English cases did not go so far as to explode the old rule, or to hold a corporation bound in the same manner as individuals by executed contracts. The general rule of the necessity of a seal to render a corporate contract valid still existed. The exception was limited to small matters, or those not admitting of delay, or where the rule would greatly obstruct the every day ordinary convenience of the body corporate without an adequate object, or where the conveyance almost amounted to necessity. The power of accepting bills of exchange and issuing promissory notes came within the principle of the exception. The decisions in Beverly v. The Lincoln G. L. & C. Co., and in Church V. Imperial Gas Light Co., were founded on the principle governing the excep- tions. The decision in this Exchequer case was followed by the Supreme Court of New Brunswick, in Seelye v. Lancaster Mill Co., Kerr, 377 ; and these decisions tend to narrow the doctrine maintained in our American courts. But as dealing in contracts with corporate bodies has become too common, and tlie agency of corporations of some description or other is present in the infinite business concerns of the country, it becomes very diflicult to ascertain, and dangerous to mistake, any certain test by which to determine whether the transaction in the given case comes within the prin- ciple of the exception to the general rule. (a) Essex Turnpike Corporation v. Collins, 8 Mass. 299 ; Clark v. Corporation of Washington, 12 Wheaton, 40 ; Bank of U. S. v. Dandridge, ib. 64 ; Leggett v. Xew Jersey Manufacturing & Banking Co., Saxton's (N. J.) Ch. 541, April terra, 18-S'2; Bank of the Metropolis v. Guttschlick, 14 Peters, 19. As corporations act by agents, they are responsible in damages for injuries inflicted through their means. Goodloe V. City of Cincinnati, 4 Ohio, 500. A special action on the case will lie for neglect of corporate duty by which the plaintiff suffers. Riddle v. Proprietors, &c., 7 Mass. 1 As to liability of corporations for corporation or of the directors, see 300, the torts and frauds of directors, see 284, n. 1. n. 1. As to transactions ultra vires of the [398] LECT. SXXIII.] OF THE EIGHTS OP PERSONS. * 293 (7.) Of the Corporate Name. — It is a general rule that corpora- tions must take and grant by their corporate name. Without a name, they could not perform their corporate functions ; and a name is so indispensable a part of the constitution of a corpora- tion, that if none be expressly given, one may be assumed by implication. (6) A misnomer in a grant by statute, or by devise, to a corporation, does not avoid the grant, though the right name of the corporation be not used, provided the corporation really intended it to be made apparent, (c) So an immaterial variation in the name of the corporation does not avoid its grant ; though it is not settled, with the requisite precision, what varia- tions in the Tiame are or are not deemed substantial. The general rule to be collected from the cases is, Qd} that a variation from the precise name of the corporation, when the true name is necessarily to be collected from the instrument, or is shown by proper averments, will not invalidate a grant by or to a corpora- tion, or a contract with it ; and the modern cases show an increased liberality * on this subject. For a corporation to * 293 attempt to set aside its own grant by reason of misnomer in its own name was severely censured, and in a great measure repressed, as early as the time of Lord Coke, (a) - (8.) Of the Power to elect Members and make By-laws. — The same principle prevails in these incorporated societies as in the community at large, that the acts of the majority, in cases within the charter powers, bind the whole. The majority here means the major part of those who are present at a regular corporate meeting. There is a distinction taken between a corporate act to be done by a select and definite body, as by a board of direc- tors, and one to be performed by the constituent members. In 169. The powers and responsibilities resulting from corporate agents are very fully considered, and the substance of all the decisions is given in Angell & Ames on Cor- porations, u. 9. (b) [Marriott & Paseall's Case], 1 Leon. 163 ; Anon., 1 Salk. 191 ; 1 Bl. Comm. 474, 475 ; 1 Kyd on Corporations, 234, 237, 250, 253 ; 10 Co. 28, b, 29, b. (c) Case of the Chancellor of Oxford, 10 Co. 57, b ; Inhabitants v. String, 5 Halst 323. (d) 1 Kyd on Corp. 236, 252; 6 Co. 64, b; 10 Co. 126, a; Koad Co. v. Creeger, 5 Harr. & J. 122 ; African Society u.Varick, 13 Johns. 38 ; The Turnpike Co. v. Myers, 6 Serg. & B. 12 ; Woolwich v. Forrest, Pennington, 84 ; Inhabitants v. String, 5 Halst. 323 ; Pirst Parish in Sutton v. Cole, 3 Pick. 232 ; Angell & Ames on Corporations, 60, 61. (a) Jenk. Cent. 233, case 6, 270, case 88 ; 10 Co. 126, a. [399] * 293 OP THE BIGHTS OP PERSONS. [PAET IT. the latter case^ a majority of those who appear may act ; but in the former, a majority of the definite body must be present, and then a majority of the quorum maj' decide, y^ This is the general rule on the subject ; and if any corporation has a different modi- fication of the expression of the binding will of the corporation, it arises from the special provisions of the act or charter of incorpora- tion. (S) ^ The power of election, or the supplying of members in the room of such as are removed by death or otherwise, is said to be a power incident to and necessarily implied in every aggre- gate corporation, from the principle of self-preservation, (e) But it seldom happens that an opportunity is afforded for the ap- plication of this principle, because the power of election must (6) Rex u. Varlo, Cowp. 248 ; 1 Kyd on Corp. 308, 400, 424 ; 1 Bl. Comm. 478 ; The King ter. (c) And in the case of The Commonwealth of Pennsylvania V. Woelper, (c?) it was held that a corporation might, bj^ a by-law, give to the president the power of appointing inspectors of the corporate elections, and also define by by-laws the nature of the tickets to be used, and the manner of voting. All such regu- lations rest in the discretion of the corporation, provided no chartered right or privilege be infringed, or the law of the land violated. It is settled that a by-law cannot exclude an integral part of the electors, nor impose upon them a qualification incon- sistent with the charter, or unconnected with their corporate character, (e) Though in the case of elections in public and (a) 2 Kyd on Corp. 20, 30. Though the charter gives to a select body the power to make by-laws, it does not devest the body of corporations at large of tlie same right. King v. Westwood, 4 B. & C. 781 ; Lovell v. Westwood, 2 Dow & Clark, 21. Tliere is this distinction on the subject, that if the power of making by-laws be com- mitted to the corporate body at large, they may delegate that power to a select body representing them ; but if the power be given to a select body, they cannot delegate that power. (h) [3] T. R. 189. (c) See also Rex v. Spencer, 3 Burr. 1827 ; 2 Kyd on Corp. 26, 31 ; King v. West- wood, 7 Bing. 1. (d) 3 Serg. & R. 29. (e) Rex u. Spencer, 3 Burr. 1827. [See Queen v. Saddlers' Co., 10 H. L. C. 404.] The general law on the subject of valid by-laws is well digested in 1 Woodd. Lee. 495-500. No director can be excluded by the board of directors of a banking institu- tion from inspecting the books of the bank ; and the court will, in a proper case, enforce the right by mandamus. It must, however, be in a case of a clear right, and for some just or useful purpose. The People v. Throop, 12 Wend. 183 ; Hatch v. City Bank of New Orleans, 1 Rob. (La.) 470. The right in this last case was considered as belonging to the individual stockholders. [People v. Pacific M. S. Co., 50 Barb. 280. But see 296, n. [d]] VOL. II. — 26 r 401 ] * 295 OF THE EIGHTS OP PERSONS. [PART IV. municipal corporations, and in all other elections of a public nature, every vote must be personally given; (/) yet in the case of moneyed corporations, instituted for private pur- * 295 poses, it has been held * that the right of voting by proxy might be delegated by the by-laws of the institution when the charter was silent, (a) It is a question not definitely settled, whether the officers of a corporation, who are directed to be annually elected, can continue in office after the year, and until others are duly elected in cases where the time of election under the charter has elapsed, either through mistake, accident, or misfortune ; and there is no provi- sion in the charter for the case.-' In the case of public officers, who are such de facto acting under color of office hj an election or appointment not strictly legal, or without having qualified themselves by the requisite tests, or by holding over after the period prescribed for a new appointment, as in the case of sheriffs, constables, &c. ; their acts are held valid as respects the rights of third persons who have an interest in them, and as concerns the public, in order to prevent a failure of justice. (5) (/) Case of the Dean and Chapter of Femes, Davies, 129 ; Attorney General v. Scott, 1 Vcs. 413. (a) The State v. Tudor, 5 Day, 329. In New York (R. S. i. 604), at the election of corporate officers in corporations of a private nature, except library, religious, and moneyed corporations, stockholders may vote by proxy. In Phillips v. Wickham, 1 Paige, 598, the chancellor doubts the validity of the right of voting by proxy, when the power is not given, either expressly or impliedly, in the act creating the institu- tion. And in Taylor v. Griswold, 2 Green (N. J.), 223, in the Supreme Court of New Jersey, after a full and learned discussion, it was held to be a principle of the common law, that, where an election depended upon the exercise of judgment, the right could not be deputed ; and that it required legislative sanction, before any corporate body could make a valid by-law authorizing members to vote by proxy. The authority of the case of The State v. Tudor, may, therefore, be considered as essentially sl)aken. [h) The King v. Lisle, Andrew, 163; The People k. Collins, 7 Johns. 549; Jones ... Gibson, 1 N. H. 266 ; Johnston v. Wilson, 2 id. 202 ; Anon., 12 Mod. 256. In the matter of the M. & H. Eailroad Co., 19 Wend. 135, 145 ; Plymouth v. Painter, 17 Conn. 585; The State v. Allen, 2 Ired. (N. C.) 183 ; Sprague v. Bailey, 19 Pick. 436. In this last case it was held that a collector of taxes was not responsible for the regu- larity of the town meeting, or the validity of the votes at the meeting at which the tax was granted. It is a usual and wise provision in public charters, that the officers 1 A city marshal does not. Beck v. bil. The next proposition of the text is Hanscom, 9 Fost. 213. But see, as to the confirmed by Prescott v. IJayes, 42 N. H. clerk of a private corporation. South 56 ; Venable i;. Curd, 2 Head, 582 ; Coo- Bay Meadow Dam Co. v. Gray, 30 Me. lidge v. Brigham, 2 Allen, 333; ib. 552 [402] , LECT. XXXm.J OP THE EIGHTS OF PERSONS. * 296 This general principle has been applied to the officers of a private moneyed corporation, so far as concerns the rights of others ; (c) and the sounder and better doctrine I apprehend to be, that where the members of a corporation are directed to be annually elected, the words are only directory, and do not take away the power incident to the corporation to elect afterwards, when the annual day has, by some means, free from design or fraud, been passed by. (<£) * The statute of 11 Geo. T. c. 4, was made expressly to * 296 prevent the hazard and evils of a dissolution of the cor- poration from the omission to elect on the day ; and it seems to admit of a question whether the statute was not rather declara- tory (for so it has been called), and introduced to remove doubts and difficulty, (a) The election, when it does take place, must be had, and the assent of a majority of the corporation to any transaction concerning the corporation must be given, when the members of the corporatibn are duly assembled eollegialiter ; and directed to he annually appointed shall continue in office until other fit persons shall be appointed and sworn in their places. This was the case in the charter granted to the city of New York, in 1686, and again in 1730. By the English statute of 1 Vic- toria, c. 78, ybr the regulation of municipal corporations, it was declared that the election of persons to corporate offices should not be questioned for want of title in the persons presiding at such elections, provided such persons were in actual possession of, and had taken upon themselves the execution of the duties of such office. (c) Baird v. Bank of Washington, 11 Serg. & R. 411; Bank of tlie United States V. Dandridge, 12 Wheaton, 64 ; Lehigh Bridge Co. v. Lehigh Coal Company, 4 Rawle, 1. ^ {d) Hicks u. Town of Launceston, 1 Eol. Abr. 513 ; Foot v. Prowse, Maj'or of Truro, Str. 625 ; 3 Bro. P. C. 167, s. c. ; The Queen v. Corporation of Durham, 10 Mod. 146 ; The People v. Runkel, 9 Johns. 147 ; Trustees of Vernon Society v. Hills, 6 Cowen, 23 ; McCall ». Byram Manufacturing Co., 6 Conn. 428 ; Nashville Bank i;. Petway, 3 Humph. (Tenn.) 522. But see Rex v. Poole, 7 Mod. 195, Cases temp. Hardw. 20 [23] ; 2 Barnard. K. B. 447, s. c, contra ; and the opinion of the chancellor in Phillips v, Wickham, 1 Paige, .690, seems also to be contra. In the case of Rex (/. Poole (Cases temp. Hardw. 20 [23], Lord Hardwicke speaks doubtfully of the common law on this point; though he refers to the case of Lansdown, in RoUe's Abridgment, where an election eight days after the charter day was held good, for that the day was only directory. But he admitted that the mention of hours on the election day was merely directory, and not restrictive. In the case Ex parte Heath, 3 Hill, 42, it was held that where a statute required an official act to be done by a given day, for a public purpose, it was merely direclunj as to time, and the act done on a succeed- ing day was held valid. (a) The King v. Pasmore, 3 T. R. 238, 245, 246. By the N. Y. Revised Statutes, if any corporation shall not organize and commence the transaction of its business within one year from the date of its incorporation, its corporate powers shall cease. [403] * 296 OF THE RIGHTS OP PERSONS. [PART IV. they must act simul et semel, and not scatteringly, and at several times and places. (6) The power to make by-laws is either expressly given or tacitly annexed, as being necessarily incident to corporate bodies to enable them to fulfil the purposes of their institution ; and when the objects of the power, and the persons who are to exercise it, are not specially defined in the charter, it is necessarily limited in its exercise to those purposes, and resides in the body politic at large. It is usual, however, in the charter creating the cor- poration, to vest the power of making by-laws in a select tjody, as for instance in a board of trustees or directors, (c) These corporate powers of legislation must be exercised reasonably,^ and in sound discretion, and strictly within the limits of the charter, and in perfect subordination to the constitution and general law of the land, and the rights dependent thereon. Subject to these limitations, the power to make by-laws may be sustained and enforced by just and competent pecuniary penalties, (dy (6) The Dean and Chapter of Femes, Daries, 130-132; Peirce v. New Orleans Building Co., 9 La. 397. In like manner, the acts of joint arbitrators, as well as all other judicial acts, must take place in the presence of each other. Stalworth v. Inns, 13 M. & W. 466; Moore r. Executors of Moore, Coxe (N. J.), 144. When a corporation election has been irregularly or illegally conducted, the regular and established common-law remedy is by motion for leave to file a quo warranto informa- tion. Ex paiie Murphy, 7 Cowen, 153 ; Kegina u. Alderson, 11 Ad. & El. 1. In New York, by statute (sess. 48, c. 325, sec. 9, and which provision was afterwards incorporated in the N. Y. I^. S. i. 603, sec. 5), a more summary and easy remedy was provided. Any person aggrieved by any such corporate election may, on giving reasonable notice, apply to the Supreme Court, who are to proceed forthwith, and in a summary way, to hear the affidavits, proofs, and allegations of the parties, and to establish the election, or order a new election, or make such order and give such relief as right and justice may require. See the case Ex parte Holmes, 5 Cowen, 426, to that effect. (c) Angell & Ames on Corporations, 3d ed. c. 10. (. Riche, 7 L. R. H. L. 653 ; s. c. 9 L. R. Ex. 224. See Fertilizing Co. u. Hyde Park, 97 U. S. 659 ; In re Exchange Banking Co., 21 Ch. D. 519. The cases are re- viewed at length in Davis v. Old Colony R. R. Co., supra. Even the unanimous consent or ratifi- cation of the shareholders cannot make such contracts valid. Ashbury Ry., &c. Co. V. Riche, supra; Thomas u. Railroad [408] Co., supra; Grand Lodge, &c. i>. Stepp (Penn., 1883),17Rep. 61; National Trust Co. ». Miller, 33 N. J. Eq. 155. See Empire Assurance Corp., 8 L. R. Ch. 540. A contract which is ultra vires being void conveys no title. Farmers' & Mechanics' Bank v. Baldwin, 23 Minn. 198; First National Bank v. Pierson, 24 Minn. 140. But see National Femberton Bank n. Porter, 125 Mass. 333. It is said that either a corporation or one dealing with it maybe estopped from setting up the defence of ultra vires where they have received the benefit of the con tract. Whitney Arms Co. v. Barlow, 63 N. Y. 62 ; Ward «. Johnson, 95 III. 215, 240; Booth v. Robinson, 55 Md. 419, 435 ; Pancoast v. Travelers' Ins. Co., 79 Ind. 172. But see Chambers v. Falkner, 65 Ala. 448. Of course, a contract which is simply ultra vires of the directors may be ratified by the stockholders. Irvine v. Union Bank, 2 App. Cas. 866. See, fur- ther, Cleveland, &c. R. R. Co. v. Himrod Furnace Co., 37 Ohio St. 321 ; State v. Rice, 65 Ala. 88. LECT. XXXIII.] OP THE RIGHTS OP PERSONS. * 300 bind themselves for purposes foreign to those for which they were established. Where a corporation was created for pur- poses of trade, it resulted necessarily that they must have power to accept bills and issue notes. But if a company be formed, not for the purposes of trade, but for other purposes, as, for in- stance, to supply water, the nature of their business does not raise a necessary implication that they should have power to make notes and issue bills ; and it seemed to be doubted whether there must not be an express authority to enable them to do it. The acts of corporation agents are construed with equal strict- ness ; and it is the doctrine, that though a deed be signed by the president and cashier of a corporation, and be sealed with its corporate seal, yet the courts may look beyond the seal, * and if it be affixed without the authority of the direc- * 300 tors, and that fact be made affirmatively to appear, the instrument is null and void, (a) ^ (o) The Mayor and Commonalty of Colchester v. Lowten, 1 Ves. & B. 245 ; Tilghman, C. J., in the case of St. Mary's Church, 7 Serg. & R. 530 ; Leggett v. N. J. Man. & Banking Co., [Saxton, 541.] Every act of a public body acting under statute authority, which is to devest an owner of his property for any public purpose, with- out his consent, is to be strictly and rigidly pursued. Van Wickle v. Railroad Co., 2 Green (X. J.), 162; The King o. Bagshaw, 7 T. R. 363; Tlie King a. Mayor of Liverpool, 4 Burr. 2244 ; Rex v. Croke, Cowp. 28 ; Westervelt v. Corporation of New York, 2 HofE. Ch. See also 299, n. (6), the cases of Sharp v. Speir, and of Sharp v. Johnson. There is a very valuable discussion on the nature, power, and restric- tion of the transfer of corporate stock in c. 16 of Angell & Ames on Corporations. 3d ed. 499, and the numerous American cases are there cited and examined. The subject is rather of too practical a nature to admit, in a work of this character, of a digest of the many and nice distinctions, and I must refer the student to the treatise itself. 1 Ultra Vires. — (a) Illegality. — It is Co., 5 Best & Sm. 588; In re National clear that when a corporation is created Permanent Bldg. Soc, L. R. 5 Ch. 309; by a public act which, either expressly Earl of Shrewsbury v. North Stafford- or by necessary implication, prohibits its shire R. Co., L. R. 1 Eq. 593 ; Taylor v. making certain contracts, as against pub- Chichester & Midhurst B. Co., L. R. 2 lie policy, such contracts are void like Ex. 356, 369, 379, 383 ; Hood v. N. Y. & other illegal contracts, although made N. H. R. R., 22 Conn. 502 , Pearce u. with the consent of all the shareholders ; Madison & Indianapolis R. R., 21 How. and the corporation Is not estopped to set 441. Probably the same rule nlight be up the defence of ultra vires when sued applied if the charter were a private act, upon them. East Anglian R. Co. v. although the English courts are some- Eastern Counties R. Co., 11 C. B. 775 ; times careful to state that the act of in- MacGregor v. Dover & Deal Ry., 18 Q. B. corporation is a public act, as it very 618; Chambers v. Manchester & M. R. generally is. Ante, 1. 460, n. 1. Of. [409] 300 OP THE EIGHTS OF PERSONS. [part it. 4. Of the Visitation of Corporations. — I proceed next to con- sider the power and discipline of visitations to which corpora- Heinecc. Elem. Jur. Civ. sec. ord. Inst. § 52, note. The rule is laid down in general terms in Zabriskie v. Cleveland, Columbus, & C. R. R., 23 How. 381, 398. See also Crarapton v. Varna E. Co., L. R. 7 Ch. 562, 568. The question of xJira vires is mainly one of construction, therefore, but there* has been some difference of opinion as to the principles on which charters are to be construed in this respect. Any dealing with the funds of a company by its man- agers in any manner not distinctly au- thorized by the act has been said to be illegal. Lord Langdale, in Colman v. Eastern Counties R. Co., 10 Beav. 1, 14; Selden, J., in Bissell u. Michigan S. & N. Ind. R.;R., 22 N. Y. 258, 294, 295 ; &c., &c. ; while other judges would go no further than the first statement in this note. In the latter view corporations are only char- tered partnerships, and the franchise, &c., merely convenient means of effecting the partnership purposes. Admitting the provisions as to the purposes to which the capital is to be appropriated are not merely for the benefit of shareholders, but make any other appropriation malum prohibitum, such provisions have been thought not to have that effect on every appropriation which is not so far author- ized as to be binding on a dissenting minority of shareholders. In other words, it has been thought that some express or implied statutory prohibitions, although sufficiently distinct to give a dissenting minority a right to prevent contrary action, are not to be taken as going further than to protect the minority, and do not make unanimous action illegal. See dis- senting opinion of Blackburn, J., in Taylor V. Chichester & Midhurst R. Co., L. E. 2 Ex. 356, 383, 382 ; s. c. reversed, L. R, 4 H. L. 628 ; Comstock, J., in Bissell v. Michigan S. & N. Ind. R. R., 22 N. Y. 258, 270. In Shrewsbury & Birmingham R. [410] Co. V. N. W. R. Co., 6 H. L. C. 113, 136, 137, the different statements of the rule in previous cases are thought to be sub- stantially similar. It is probable that, in this country at least, an act creating a corporation for specific objects would not be strictly con- strued as prohibitory of all other dealings or transactions not coming within the exact scope of those designated, if they were fairly incident to the objects named. Brown v. Winnissimmet Co., 11 Allen, 326,334; Vandall h. South S. F. Dock Co., 40 Cal. 83, 88; Toledo, W. & W. R. Co. V. Rodrigues, 47 111. 188. But a con- tract which is entirely unconnected with the purposes to which the funds of the corporation are to be applied, or which on its face will cause the funds to be applied to other objects, is illegal and Void. East^ ern Counties R. Co. v. Hawkes, 5 H. L. C. 331, 848 ; East Anglian R. Co. v. Eastern Counties R. Co., 11 C. B. 775; Taylor ■;. Chichester & Midhurst R. Co., L. E. 2 Ex. 356, 369, 373 ; Bateman v. Mid- Wales R. Co., L. R. 1 C. P. 499, 508; Pearce i: Madison & Ind. R. R., 21 How. 441 ; Buf- fett V. Troy & Boston R. R. Co., 40 N. Y. 168, 172; Pennsylvania, Del. & Md. Steam Nav. Co. v. Dandridge, 8 Gill & J. 248; Orr v. Lacey, 2 Dougl. (Mich.) 230; Abbott V. Baltimore & R. Steam Packet Co., 1 Md. Ch. 542; Downing v. Mount Washington Road Co., 40 N. H. 230; Strauss u. Eagle Ins. Co., 5 Ohio St. 59 ; and cases last cited. Thus a railway company is probably authorized to pro- vide such carriage by land or water on the line of its road as may be fairly be con- sidered incident to the due employment of the railway. South Wales R. Co. u. Redmond, 10 C. B. n. s. 675, 687 ; Buffett V. Troy & Boston R. E., 40 N. Y. 168 ; but it has been held that it cannot engage in a new and distinct enterprise, such as running a line of steamboats, beyond and LECT. XXXIII.] OP THE RIGHTS OP PERSONS. ^300 tions are subject. It is a power applicable only to ecclesiastical and eleemosynary corporations ; (6) and it is understood that no {!,) 1 Bl. Comm. 480; 2 Kyd on Corp. 174. entirely outside of the line of transporta- tion contemplated in its act, Pearce v. Madison & Ind. R. B., 21 How. 441 ; Col- man V. Eastern Counties K., 10 Beav. 1 ; see 10 C. B. n. s. 685 ; or in the banking business, for the purpose of raising funds. Waldo i;. Chicago, St. P. & C. K. R., 14 Wis. 575. See 40 Cal. 88. As to nego- tiable paper, see 291, n. 1 ; oral insurance, iii. 267, n. 1. It is not likely, however, that railroad charters will be construed so as to interfere with the necessities of through traffic over connecting lines. Thus, it is perfectly settled in this country that a contract for carriage beyond the limits of a road is valid. Post, 604, n. 1. But it has been frequently laid down that a corporation cannot lease or alien any franchise, or any property necessary to perform its obligations and duties to the state, without legislative authority. Black u. Delaware & Raritan Canal Co., 7 C. E. Green, 130, 399; New York & Md. L. R. R. V. Winans, 17 How. 30, 39; Troy & Rutland R. R. „. Kerr, 17 Barb. 581, 601 ; Hazlehurst v. Savannah, &c. R. R., 43 Ga. 13 ; [Thomas v. Railroad Co., 101 U. S. 71 ; Middlesex R. R. Co. v. B. & C. R. R. Co., 115 Mass. 347. See Ragan v. Aiken, 9 Lea, 609 ; Detroit v. Mutual Gas Light Co., 43 Mich. 594.] So the power of a corporation to mortgage its franchise has been denied. Commonwealth v. Smith, 10 Allen, 448 ; Richardson v. Sibley, 11 Allen, 65 ; Pierce v. Emery, 32 N. H. 484, 508. [But see Detroit v. Mut. Gas Light Co., 43 Mich. 594.] Statutory provisions, however, are very common authorizing railroad com- panies to let their roads to other domestic or even to foreign corporations, and to take leases in like manner of connected roads. Such an authority may be given to a corporation already in existence, and when the duty to the public is released a minority of dissenting stockholders cannot complain. Black w. Delaware & Raritan Canal Co., 7 C. E. Green (22 N J. Eq.), 130. See, generally. Central R. R. B. Co. V. Macon, 43 Ga. 605. So, if a corporation has no public or quasi-public duties, or if the legislature has released it from them, and there is no time specified for which the enterprise must be con- tinued, a majority of corporators may abandon the enterprise, and sell out the property of the company. In this way one company has sometimes been amal- gamated with another, by selling its property, the members taking stock of the other company in payment, and dissent- ing members being paid the value of theit share of the whole property in question. Lauman u. Lebanon Valley R. R., 30 Penn. St. 42 ; Gratz v. Penn. R. R., 41 Penu. St. 447. See the discussion in Black V. Delaware & Raritan Canal Co., 7 C. E. Green, 1.30, 404 ei seq. ; Treadwell V. Salisbury Man. Co., 7 Gray, 393, 404. It is otherwise when the charter declares that the undertaking shall be continued for a definite time. Zabriskie v. Hacken- sack & N. Y. R. R., 3 C. E. Green, 178. (As to resolutions for winding up, which are part of the same transaction as an amalgamation ultra vires, see In re Irriga- tion Co., Ex parte Pox, L. R. 6 Ch. 176, 185.) For there is a limit to the power of the legislature even, to authorize the ap- plication of the corporate funds to new purposes, or to change the object of the incorporation, in this country, on ac- count of the constitutional prohibition of laws impairing the obligation of con- tracts. Ante, i. 419, n. 1. Compare, as to the effect of a reservation of the power to amend, &c., Durfee v. Old Colony & F. R. R. R., 5 Allen, 230 ; Zabriskie v. Hacken- sack & N. Y. R. R., supra. But the ques- tion as to the constitutional power of the [411] 300 OP THE EIGHTS OP PERSONS. [part IV. other corporations go under the name of eleemosynary but col- leges, schools, and hospitals. (. Mulliner, 68 Penn. 357 ; Bel- 55 Penn. St. 16; nor for a freight com- linger v. N. Y. C. R. R., 23 N. Y. 42. See, pany for loading and unloading freight, further, two articles, 19 Law Rep. 241, 30L [462] LECT. XXXIV.J OF PERSONAL PROPERTY. 340 stood that the lawgiver has a right to prescribe the mode and manner of using it, so far as may be necessary to prevent the abuse of tlie right, to the injury or annoyance of others, or of the public. The government may, by general regulations, interdict such uses of property as would create nuisances, and become dangerous to the lives, or health, or peace, or comfort of the citi- zens. Unwholesome trades, slaughter-houses, operations offensive to the senses, the deposit of powder, the application of steam- power to propel cars, the building with combustible materials, and the burial of the dead, may all be interdicted by law, in the midst of dense masses of population, on the general and rational principle, that every person ought so to use his property as not to injure his neighbors, and that private interests must be made subservient to the general interests of the community. (6) ^ (5) Puff. b. 8, c. 5. sec. 3 ; Vattel, b. 1, c. 20, sec. 246, 255 ; Cowp. 269 ; Com. Dig. tit. By-Laws [B.l ; Willes, 388 ; Coates v. The Corporation of New York, 2 Police Power. — This power of the government is now called the police power, and is discussed at length in c. 16 of Cooley's Constitutional Limitations. See Thorpe v. Rutland & Burlington R. R., 27 Vt. 140. But acts which can only be justified on the ground that they are police regulations, must be so clearly necessary to the safety, comfort, or well- being of society, or so imperatively re- quired by the public necessity, that they must be taken to be impliedly excepted from the words of the constitutional pro- hibition. People V. Jackson & M. Plank R. Co., 9 Mich. 285, 307 ; State v. Noyes, 47 Me. 189. To this extent new duties or liabilities may be imposed on corpora- tions, although not mentioned in their charters; such as to fence a railroad, 27 Vt. 140 ; New Albany & Salem R. R. v. Tilton, 12 Ind. 3; Ohio & Miss. R. R. v. McClelland, 25 111. 140 ; or a liability for fire communicated by an engine, Lyman u. Boston & Worcester R.R., 4 Cush. 288 ; or a liability for negligently causing death, S. W. R. R. u. Paulk, 24 Ga. 356 ; Boston, Concord, & M. R. R. v. State, 32 N. H. 215. The most remarkable cases as to the exercise of this power are those arising out of tlie liquor laws. Such laws do not interfere with the power of Con- gress to regulate commerce, if they pro- hibit the sale of imported liquor only, when it has passed out of the hands of the importer, or when the original pack- ages have been broken up by him, see i. 439, n. 1 ; nor will they be held Invalid BO far as they tend to prevent the per- formance of existing contracts, People v. Hawley, 3 Mich. 330 ; Reynolds v. Geary, 26 Conn. 179 ; nor as depriving persons of liberty or property. Metropolitan Board of Excise w. Barrie, 34 N. Y. 657 ; Blair v. Forehand, 100 Mass. 136. ri x^ The police power cannot be bar- gained away by the legislature, and cor- porations as well as individuals are subject to it. Hence the right to gianufacture liquor may be taken away from » cor- poration formed for the purpose of such manufacture. Beer Co. v. Massachusett.«, 97 U. S. 25. For further cases, see supra, 439, 11. y', 419, n. 1 and notes; Sawyer v. Davis (Mass., 1884), 17 Rep. 303 ; Bass v. The State, 84 La. An. 494 ; State v. Cas- sidy, 22 Minn. 312 ; Lake View v. Rose Hill Cemetery Co., 70 111. 191 ; Railroad Co. 17. Fuller, 17 Wall. 560. [463] * 340 OF PERSONAL PROPERTY. [PART V. 7 Cowen, 585; The State v. Tupper, Dudley, Law & Eq. (S. C.) 135. In the case of Tanner v. The Trustees of the Village of Albion, 5 Hill (N. T.), 121, it was held that a bowling alley kept for gain or hire in the village was a nuisance at pommon law, and ereetions of every kind, adapted to sports or amusements, having no useful end, and notoriously fitted up and continued in order to make a profit for the owner, were nuisances.' They were temptations to idleness and dissipation, an(^ apt to draw together great numbers of disorderly persons. The observations of the court were exceedingly stringent, but wholesome, and the doctrine and cases of 1 Hawk. P. C. c. 32, § 6 ; Hall's Case, 1 Mod. 76 ; 2 Keb. 846 ; Rex v Dixon, 10 Mod. 335'; Rex v. Higginson, 2 Burr. 1232 ; Rex v. Moore, 3 B. & Ad. 184 ; Nolin v. M. and Aid. of Franklin, 4 Yerg. 163, were referred to with approbation. So if a mill-dam be a nuisance, it may be restrained by injunction. 3 Ired. Eq. (N. C) 301. [So as to a cattle station. Truman v. London, &c. Ry. Co., 25 Ch. D. 423.] But a person may not enter upon another's land to abate a nuisance, without a previous notice or request to the owner of the land, except under special circumstances. Jones <>. Williams, 11 M. & W. 176. As the Constitution of the United States, and tlie constitutions of several of the states, in terms more or less comprehensive, declare the right of the people to keep and bear arms, it has been a subject of grave discus- sion, in some of the state courts, whether a statute prohibiting persons, when not on a journey, or as travellers, from wearing or carrying concealed weapons, be constitutional. There has been a great diflTerence of opinion on the question. In Kentucky, Ten- nessee, and Mississippi, the decisions are understood to be against the validity of the prohibition, whereas in Indiana, Alabama, and Arkansas, they are in favor of it. (Bliss V. The Commonwealth, 2 Littell, 90 ; The State v. Reid, 1 Ala. (n. 8.) 612; The State v. Mitchell, 3 Blackf. 229; The State v. Buzzard, 4 Ark. 18.) In Tennes- see there is a statute law of a penal character against wearing the bowie-knife, but none against carrying firearms. The statute in Georgia. is broader and more exten- sive. Hotchkiss's Code of Laws, 739. But in Georgia the statute prohibition has been adjudged to be valid so far as it goes to suppress the wearing of arms secretly, but unconstitutional so far as it prohibits the bearing or carrying arms openly. Nunn V. State of Georgia, 1 Kelly, 243. As the practice of carrying concealed weapons has been often so atrociously abused, it would be very desirable, on principles of public policy, that the respective legislatures should have the competent power to secure the public peace, and guard against personal violence by such a precautionary provision. [464] LEGT. XXXT.] OF PERSONAL PBOPBETT. * 340 LECTURE XXXV. OP THE NATURE AND VARIOUS KINDS OP PERSONAL PROPERTY. Personal property usually consists of things temporary and movable, but includes all subjects of property not of a freehold nature, nor descendible to the heirs at law. (a) The division of property into real and personal, or movable and immovable, is too obvious not to have existed in every system of municipal law. Except, however, in the term of prescription, the civil law scarcely made any difference in the regulation of real and personal property. But the jurisprudence of the middle age's was almost entirely occupied with the government of real estates, which were the great source of political power, and the founda- (a) It includes not only everything movable and tangible which can be the subject of property, but may include things quasi-movable, as tenants' fixtures, and quasi- tangible, as Glioses in action. Spontaneous productions and fruits of tlie earth while utigathered, are considered as belonging to the freehold, and descend to the heir. Com. Dig. tit. Biefls, H. 3 ; but they are liable to distress for rent and on execution as chattels. See infra, iii. 477, 479. The products of annual planting and cultivation, or thafructus industrice, as, for instance, a growing crop, are also so far deemed personal property that they may be distrained or sold by the owner, or taken on execution as such. Craddock v. Riddlesbarger, 2 Dana (Ky.), 206, 207. Vide infra, iv. 467, 468, as to the rule on that subject between vendor and vendee. Shares in bank and other corporations, with a capital apportioned in shares assignable for public accom- modation, but holding real estate, are, nevertheless, personal property, and this is the general doctrine of American law. Hilliard's Abr. u. 1, see. 18 ; and cases in Massachusetts, Rhode Island, North Carolina, and Ohio, are cited to show it. They were so made by statute in Connecticut, in 1818, though in Kentucky they have been adjudged to be real estate, as, see infra, iii. 459, n. And so they were in Connecticut, prior to the statute of tliat state, as, see Welles v. Cowles, 2 Conn. 567. In England, sliares in companies acting on land exclusively, as railroad, canal, and turnpike companies, are held to be real estate. Drybutter v. Bartholomew, 2 P. Wms. 127; Buckeridge v. Ingram, 2 Ves. Jr. 652. In this last case the vexed question was elaborately discussed, whether such an interest was real or personal estate. Shares in canals and railroads are said to be generally, though not always, personal property, and they are in England made personal by several acts of Parliament. Williams on the Principles of Real Property, int. ch. The American doctrine is the most convenient; and corporations of the nature alluded to are generally created with a declaration, in the charter, that the shares are to be regarded as personal estate. VOL. II.— 80 [465] * 342 OP PERSONAL PROPERTY. [PABT V. tion of feudal grandeur. In consequence of this policy, a * 341 technical and very artificial * system was erected, upon which the several gradations of title to land depended. Chattels were rarely an object of notice, either in the treatises or reports of the times, prior to the reign of Henry VI. (a) They continued in a state of insignificance until the revival of trade and manufactures, the decline of the feudal tenures, and the increase of industry, wealth, and refinement had contributed to fix the affections upon personal property, and to render the ac- quisition of it an object of growing solicitude. It became, of course, a subject of interesting discussion in the courts of * 342 justice ; and being less complicated in * its tenure, and rising under the influence of a liberal commerce and more enlightened maxims, it was regulated by principles of greater simplicity and more accurate justice. By a singular revolution in the history of property and manners, the law of chattels, once so unimpoi'tant, has grown ihto a system which, by its magnitude, overshadows, in a very considerable degree, the learning of real estates. 1. Chattels Real, and Fixtures. — Chattel is a very comprehensive term in our law, and includes every species of property which is not real estate or a freehold. The most leading division of personal property is into chattels real and chattels personal. Chattels real are interests annexed to or concerning the realty, as a lease for years of land ; and the duration of the term of the lease is immaterial, provided it be fixed and determinate, and there be a reversion or remainder in fee in some other person, (a) It is only personal estate if it be for a thousand years. (5) Fall- ing below the character and dignity of a freehold, it is regarded as a chattel interest, and is governed and descendible in the same manner. It does not attend the inheritance, for, in that case, it would partake of the quality of an estate in fee. There are, also, many chattels, which, though they be even of a movable nature, yet being necessarily attached to the freehold and contributing to its value and enjoyment, go along with it in the same path of descent or alienation. This is the case with the deeds and other papers which constitute the muniments of title (a) Reeves's History of the English Law, iii. 15, 369. (a) Co. Litt. 118, b ; 2 Bl. Conitn. 886. (i) Co. Litt. 46, a; Case of Gay, '6 Mass. 419; Brewster v. Hill, 1 N. H. 350. [466] LECT XXXV.] OP PERSONAL PROPERTY. * 343 to the inhe'ritance ; (c) and also tvith shelves and family pictures in a house, and the posts and rails of enclosures, (d) So, also, it is understood that pigeons in a pigeon house, deer in a park, and fish in an artificial pond, go with * the inheri- * 343 tance as heirlooms to the heir, (a) But heirlooms are a class of property distinct from fixtures ; and in modern times, for the encouragement of trade and manufactures, and as between landlord and tenant, many things are now treated as peisonal property which seem, in a very considerable degree, to be attached to the freehold. The law of fixtures is in derogation of the original rule of the common law, which subjected everything affixed to the freehold to the law governing the freehold ; and it has grawn up into a system of judicial legislation, so as almost to render the right of removal of fixtures a general rule, instead of being an exception. The general rule, which appears to be the result of the cases, is, that things which the tenant has affixed to the freehold for the purpose of trade or manufactures, may be removed, when the removal is not contrary to any prevailing usage, or does not cause any material injury to the estate, and which can be removed without losing their essential character or value as personal chattels. (6) ^t/^ The character of the prop- (c) Lord Coke said that charters, or muniments of title, might be entailed. Co. Litt. 20, a. In tlie Suotch law, a jewel or a picture may be entailed. 2 Bell's Comm. 2. Heritable bonds and ground rents follow the freehold. 2 id. .3. The tennnt for life is prima facie entitled to retain the custody of the title-deeds, and the remainder- man is not entitled to call them out, except for some specific purpose. Shaw v. Shaw, 12 Price (Exch.), 163. (rf) Herlakenden's Case, 4 Co. 62; Cooke's Case, Moore, 177, pi. 315; Liford's Case, 11 Co. 50, b. (a) Co. Litt. 8, a. (6) Trappes v. Harter, 3 Tyrwhitt, 603 ; Cook v. Champlain T. Co., 1 Denio, 92. 1 Fixtures. — (a) Annexation to Fi'eehold. of annexation to the soil or fabric, that is, — In Hellawell v. Eastwood, 6 Exch. 295, whether it can easily be removed, intetjre, 312, Baron Parke says that whether a salve, et commode, without injury to itself chattel when fixed is parcel of the free- or to the faljric of the building; and in hold is a question of fact, in determining the next place, whether it was for the which it is important to consider the mode permanent and substantial improvement y^ Fixtures. — The term fixtures has in their nature are only evidentiary, have been used in different senses. Brown's led to some confusion on the subject. In Law of Fixtures (4th ed.), c. 1. The the broadest sense of the term, all that is failure to distinguish carefully in what legally necessary is that the article shall sense it is used in a given case, together be so annexed to the freehold that it may with the tendency of the courts to lay be regarded as a part of it. On the other down rules of law based on facts which hand, if the personalty is so annexed as [467] 343 OP PERSONAL PKOPEKTY. [part V. erty, whether peitonal or real, in respect to fixtutes, is governed very much by the intention of the oWner, and the purposes to of the freehold, or merely for a temporary purpose, or the more complete enjoyment and use of it as a chattel. In this case it was held that mules, used for spinning cotton, and fixed to the floor by screws, or let into stone and secured by molten lead. In order to make them steadier, were distiainable for rent as chattels ; and, on the other hand, in Turner v. Cameron, L. R. 5 Q. B. 306, 313, that railways con- structed for the better working of a coal- mine, by spreading ballast on the ground and Imbedding In it sleepers to which the rails were spiked, the whole being only entirely to lose its identity, it becomes realty as a matter of law. Between these extremes the question is one of intention, and differs largely according to the manner in which, and the par- ties between whom, it arises. Thus In the case of persons claiming as volun- teers, the test is simply whether the inten- tion of the party making the annexation, as shown by any relevant testimony, was to constitute the article a part of the realty. Such Is the case of heir, executor, or devisee. The test would seem to be the same wliere the question arises as to whether an action for injury to the article should be in trespass to realty or to personalty. In the case of one claiming by convey- ance, the test is the same Intent as mani- fested by the acts and circumstances of which he was bound to take notice. Such is the case of mortgagee or vendee. Hubbell u. East Cambridge, &c. Bank, 132 Mass. 447. The question as between landlord and tenant usually is as to the right to re- move articles which have been annexed. Whether this right exists depends either upon whether there has been an Intent manifested to make the articles perma- nently a part of the realty, or whether the articles have been, in fact, so annexed [468] removable by the use of considerable violence, were not so. See Strickland v. Parker, 54 Me. 263. Hellawell v. Er.st- wood seemed to be approved in Turner v. Cameron, and also In Waterfall v. Peni- stone, 6 El. & Bl. 876 ; Parsons v. Hind, l4 W. R. 860. Compare the language of Hill V. SewAld, 53 Penn. St. 271 ; Northern C. R. Co. V. Canton Co., 30 Md. 347, 354, where a trade fixture is spoken of as If it were personalty out and out. (b) Questions of Annexation and Right (o remove are distinct. — In Holland ». Hodg- son, 41 L. J. N. s. e. p. 146; L. R. 7 that they cannot be removed without substantial Injury to the realty. The following considerations, among others, are important In determining the intent with which an article is annexed to the freehold : (1.) The relation to the land of the one annexing it. An owner, or one standing in substantially the posi- tion of an owner, is much more likely to Intend a permanent annexation than a lessee. Meux v. Jacobs, 7 L. R. H. L. 481 ; Lapham v. Norton, 71 Me. 83; Towne v. Fiske, 127 Mass. 125. (2.) The character of the annexation, i. e., whether firmly or only slightly attached. (.3.) Adaptability to permanent use on the land. Whether an article is more or less peculiarly fitted to be used on the land in question evi- dently furnishes a strong test of the In- tent with which it is annexed. Railway Savings Inst. v. Irving St. Church, infra. This principle embraces the doctrine of trade fixtures, such fixtures being fitted to be used wherever the trade may be carried on. Cubbins v. Ayers, 4 Lea, 329. Subject to the qualification that tliere must be sufficient annexation to make it possible to look upon the article as a part of the realty, the question Is one of Intention, to be determined by a con- sideration of the above and all the other circumstances. Hutchins v. Masterson, LEOT. XXXV.] OF PEESONAL PROPEETY. 343 which the erection was to be applied. Thus, things set up by a les- see, in relation to bis t^ade, ias vats, coppers, ta,bles, and partitions, C. P. 328, Blackburn, J., delivering the opinion of the Exchei^uer Chamber, again approved of Baron Parke's general state- ment of prindples, but explained that tenant or trade fixtures are part of the land, though liable to be severed, and seemed to be of opinion that the mules, &c., in Hellawell v. Eastwood, were, as a matter of fact, part of the land. The question what annexation will make a thing part of the land was said to depend on the circumstances of each case, and mainly on two circumstances as indicating the intention, viz., the degree of annexation, and the object of the annexation ; and the reason why the tenant is allowed to sever his trade fixtures was thought to be that suggested by Wood, V. C, in Boyd v. Shor- rock, 37 L. J. n. s. Ch. 144; L. B. 6 Eq, 72, 46 Tex. 551 ; Hubbell ». East Cambridge, &G. Bank, 132 Mass. 447 ; s. c. 42 Am. R. 446 ; Allen v. Mooney, 130 Mass. 155 ; Towne ». Fiske, 127 Mass. 125 ; Rahway Savings Inst. v. Irving St. Church, 36 N. J. Eq. 61, and note ; Corcoran v. Webster, 58 Wis. 125. But comp. Green v. Phillips, 26 Graft. 752 ', Lyle v. Palmer, 42 Mich. 314 ; McKeage v. Fire Ins. Co., 81 N. Y. 38. The question was left to the jury in Leonard v. Stickney, 131 Mass. 541. The case of machinery has been treated as though it were a case by itself, but is properly governed by an application of the foregoing principles. Hendy v. Din- kerhoff, 57 Cal. 3 ; Thomas r-. Davis, 78 Mo. 72 ; Hamilton v. Huntley, 78 Ind. 521 ; Stillman ».Flenniken, 58 Iowa, 450; Hub- bell 11. East Cambridge, &c. Bank, mpra ; Ottumwa Woollen Mills v. Hawley, 44 Iowa, 67 ; s. c. 24 Am. R. 719, and note. Articles annexed to the realty by a mort- gagor, with intent that they shall become part of the realty, become subject to the mortgage. Wight v. Gray, 73 Me. 297 ; Smith Paper Co. ». Servin, 130 Mass. 611. But see Clore v. Lambert, 78 Ky, 224. 78, that the tenant indicates by the mode in whieh he puts them up that he regards them as attaclied to the property during Ills interest in the property. Other eases in which tlie intent as indicated by the ob- jects of the annexation has been referred to as au important circumstance are Wall V. Hinds, 4 Gray, 256, 271; Bliss ». Whit- ney, 9 Allen, 114, 115; Parsons v. Cope- land, 38 Me. 537, 546 ; Hill v. Wentworth, 28 Vt. 428 ; Capen v. Peckhara, 35 Conn. 88; Teaffi v. Hewitt, 1 Ohio St. 511 ; Hill. u. Sewald, 53 Penn. St. 271 ; Perkins v. Swank, 43 Miss. 349, 362 ; Lancaster v. Eve, 5 C. B. N. s. 717, 728, cited in Par- sons V. Hind, 14 W. R. 860. It was also observed in an earlier Eng- lish case that the exception in favor of trade is not that chattels de Jaeto attached It has been said that the right after default to remove articles anpexed by one in possession under a contract to pur- chase, depends upon who comniittec} the default. Hinckley, &c. Co. I>. Black, 70 Me. 473 ; Rines ^. Bachelder, 62 Me. 95. See Towne v. Fiske, 127 Mass. 125. The tendency seems to be to hold that there is no right to remove beyond the term, except where, in legal effect, the term is extended, or where the term comes to an end in a way the tenant could not reasonably anticipate. It is said there is no such right after a surrender. Ex parte Stephens, 7 Ch. I). 127 ; Ex parte Brook, 10 Ch. D. 100 ; Watriss v. First Nat. Bank, 124 Mass. 571. See Saint v. Pilley, 10 L. R. Ex. 137; Torrey v. Burnett, 38 N. J. L. 457. The right to remove con- tinues under a renewal of a lea^e. Kerr u. Kingsbury, 39 Mich. 150. But see Watriss v. First Nat. Bank, 124 Mass. 571. See further on subject, Fratt v. Whit- tier, 58 Cal. 126 ; Central Branch R. R. Co. V. Fritz, 20 Kans. 430; Jenkins v. MoCurdy, 48 Wis. 628 ; Arnold v. Orovr- der, SI III. 66. 1469] '343 OF PERSONAL PROPEETT. [part V. belonging to a soap boiler, (e) may be removed during the term. The tenant may take away chimney-pieces, and even vsrainscot, if (c) Poole's Case, 1 Salt. 368. Kettles and boilers in a tannery, and stills in a distillery, are not fixtures, but personal property. 1 Mo. 608; 3 id. 207. On the other hand, iron salt-pans in salt-works erected by the tenant, and the pans resting on brick-work, are not allowed to be removed, as being parcel o£ the works to be left in good repair. Mansfield v. Blackburne, 6 Bing. 426. to land forpurposes of trade are regarded as never afiixed to the freehold, but that, although affixed, they are capable of being removed by the tenant within the term (or perhaps within a reasonable time af- ter its termination). Gibson v. Hammer- smith B. Co., 32 L. J. Ch. 337, 342. It may properly be mentioned in this con- nection that the holder of a recorded chattel mortgage who consented to the chattels being affixed to the freehold lias been postponed to a party without notice, to whom a subsequent mortgage of the land was executed while the chattels were so annexed. Brennan v. Whittaker, 15 Ohio St. 446. But see Ford v. Cobb, 20 N. Y. .344. The limits of the exception seem also to confirm the English distinc- tion. See further. Woodruff & Beach Iron Works v. Adams, 37 Conn. 233. , (c) Who have the Right to remove, Sfc. — The right to remove is not universal. For if chattels are attached to the free- hold by the owner of the fee, even very slightly, and although only for their more convenient use and for purposes of trade, they will pass under either a previous or subsequent sale or mortgage, or levy upon the land, and to his heir rather than to his executor. Holland v. Hodgson, supra; Climie v. Wood, L. R. 3 Ex. 257; L. R. 4 Ex. 328; Cullwick u. Swindell, L. K. 3 Eq. 249 ; Longbottom «. Berry, L. E. 5 Q. B. 123 ; Ex parte Astbury, In re Richards, L. R. 4 Ch..630; Mather v. Fraser, 2 K. & J. 636 ; Walmslcy v. Milne, 7 C. B. N. s. 115; Fisher v. Dixon, 12 CI. & F. 312, 328 ; Strickland v. Parker, 54 Me. 263 ; Tuttle u. Robinson, 33 N. H. 104; Smith v. Price, 39 111. 28. And the same principles are applied between [470] mortgagor and mortgagee of a leasehold, In re Richards, L. R. 4 Ch. 630, 6-37 ; see Boyd u. Shorrock,, L. R. 5 Eq. 72, 78 ; and between the obligee of a bond to convey, who has entered and erected structures, and the obligor, after breach of the bond, McLaughlin v. Nash, 14 Allen, 136. See Lynde v. Rowe, 12 Al- len, 100; Eitclimyer n. Morss, 3 Keyes, 349. Cases liave gone so far as to hold that a colossal statue, resting on but not attached to a permanent pedestal, passed to a mortgagee. Snedeker v. Warring, 2 Kern. 170 (approved in Wadleigh v. Jan- vrin, 41 N. H. 603, 617 ; Strickland v. Parker, 54 Me. 263, 266). See D'Eyncourt V. Gregory, L. R. 3 Eq. 382, a question be- tween tenant for life and remainderman. The test was said to be whether the stat- ues formed part of an architectural de- sign. See also Rogers v. Crow, 40 Mo. 91. In like manner chattels not annexed, but which belong to a machine as part of it, will pass. Ex parte Astbury, In re Rich- ards, L. R. 4 Ch. 630, 635; Metropolitan Counties Society v. Brown, 26 Beav. 454. The rolling-stock of a railway was held to, in Palmer v. Forbes, 23 111. 301 ; Farmers' Loan & T. Co. ». Hendrickson, 25 Barb. 484 ; State v. Northern Central R. Co., 18 Md. 193, 218. See 2 WalL 645. Contra, Bement v. Plattsburgh & Montreal R. R. 47 Barb. 104; Stevens v. Buffalo & N. Y. R. R,, 31 Barb. 590; Beardsley v. Ontario Bank, ib. 619. A building temporarily placed on blocks or boards lying on the surface of the ground is It mere chattel, and does not pass by a sale of the land unless a contrary intent is manifested. Brown v. Lillie, 6 Nev. 244. See Wiltshear o. Cottrell, 1 El. & LECT. XXXV.] OP PERSONAL PROPERTY. * 344 put up by himself; (<^) or a cider mill and press erected by him on the land, (e) or a pump erected by him, if removable without material injury to the freehold. (/) So, a building resting upon blocks, and not let into the soil, has been held a mere chattel, (g') A post windmill, erected by the tenant, (Ji) and machinery for spinning and carding, though nailed to the floor, (i) and copper stills, and distillery apparatus, and potash kettles, though * fixed or set on arches, (a) are held to be personal prop- * 344 erty. On the other hand, iron stoves, fixed to the brick- work of the chimneys of a house, have been adjudged to pass with the house, as part of the freehold, in a case where the house was set off on execution to a creditor. (5) But in another case, in the same court, between mortgagor and mortgagee, the pos- sessor, on the termination of that relation, was allowed to take down and carry away buildings erected by him on the land, and standing on posts, and not so connected with the soil but that [d) Ex parte Quincy, 1 Atk. 477. (e) Holmes «. Trem per, 20 Johns. 29. (/) Grvines v. Boweren, 4 Moore & P. 143; 6 Bing. 437. (g) Naylor v. Collinge, 1 Taunt. 21. (A) The King v. Londonthorpe, 6 T. R. 377 ; see also The King v. Inhabitants of Otley, 1 B. & Ad 161. In Maine, this notion of movable fixtures was carried so far as to allow an action of trover for a sawmill built by A. on the land of B., with his consent, when occupation was refused. Russell v. Richards, 1 Fairf . 429 ; Tapley v. Smith, 18 Me. 12, ». p. So, in England, a wooden barn, erected on a foundation of brick and stone, io not a fixture, and may be removed by the tenant, and trover will lie for it. Wansbr(]:-gh v. Maton, 4 Ad. & El. 884. (i) Cresson „. Stout 17 Johns. 116; Tobias v. Francis, 3 Vt. 425; Taffe v. War- nick 3 Blackf. (Ind.) 111. in) Reynolds v. Shuler, 5 Cowen, 323; Raymond v. White, 7 id. 319; Wetherbee r. Foster, 6 Vt. 136. (i) Goddard v. Chase, 7 Mass. 432. Bl. 674, 689 : Hinckley v. Baxter, 13 tures is sometimes extended to agricul* Allen, 139; Holland v. Hodgson, supra, tural fixtures by statute, St. 14 & 15 Vict. But a barn standing on stone piers has c. 25, § 3 ; and in this country without it. been thought to pass, Landon w. Piatt, See Harkness v. Sears, 26 Ala. 493 ; Du- 34 Conn. 517; although a tenant has been bois u. Kelly, 10 Barb. 496; Perkins o. allowed to remove an icehouse about Swank, 43 Miss. 349, 362. equally attached to the soil, Antoni v. A tenant has been held entitled to Belknap, 102 Mass. 193. See Perkins v. remove the manure from pens in which Swank, 43 Miss. 349 So timber trees, great herds of cattle were kept for the cut down and lying where they grew, use of the army. Gallagher K.Shipley, pass by a conveyance of the land. Brack- 24 Md. 418. See Plumer i,. Plumer, 30 ett V. Goddard, 54 Me. 309. N. II. 558, 569. The exception in favor of trade fix- [471.] » *345 OP PERSONAL I'KOPERTY. [PAET T. the}' CDuld be remaved vyithout prejudice tq it. (e) The tenant may ijilso remove 9.rticJ^s put up at his own expense for ornameiib pr domestic conveiiiencQ, unless they be permanent additions to the estate and so united to the house as materially to impair it, if removed, and when the removal would amount to a wastie. The right of removal will depend upon the mode of annexation of the article, and the effect which the removal would have upon the premises. (,d) Questions respecting th^ right to what are ordinarily 345 called fixtures, or articles of a personal nature afiixed to * the freehold, (a) principally arise between three classes of per- sons : 1. Between heir and executor ; and there the rule obtains with the most rigor in favor of the inheritance, and against the right to consider as a personal chattel anything wliich has been (c) Taylor v. Townsend, 8 Mass. 411. But fixtures erected by the mortgagor are annexed to the freehold, and cannot be removed until the debt be paid. Butler v. Paige, 7 Mete. 40. (d) Bnckland v, Butterfield, 2 Brod. & B. 64. In Burge's Comm. on Colonial and Foreign Laws, ii. 6-31, tlie rules respecting fixtures, not only m the English law, but in the civil law and the codes of other nations, are collected. See also Treatise on Fixtures, by Amos & Ferard, c. 2, sec. 3, 4. This valuable treatise has collected the numerous cases on the subject of fixtures, and traced and stated the subtle distinc- tions arising therein, >yith clearness and accuracy. Under the head of ornamental fixtures, hangings, tapestry, and pier-glasses, Marble or other ornamental chimney- pieces, marble slabs, window-blinds, and wainscots fastened with screws, have been included ; and, under the head of articles put up by the tenant for domestic use and convenience, and allowed to be removed during the term, are enumerated grates, stoves, iron backs to chimneys, fixed tables, furnaces, coppers, cofiee-mills, nialt- mills, jacks, cupboards, iron ovens, &c. Id. In the case of Blood v. Richardson, in the New York Superior Court of Commop Pleas in 1831, the tenant was held to be entitled to remove a grate and other fixtures put up by him for hia own accommoda- tion ; and in GafiSeld c. Hapgord, 17 Pick. 192, a fire frame fixed in the fireplacp was held to be a fixture removable by the tenant during the term. The law of fixtures, in its application to the relation of landlord and tenant, partakes of the liberal and commercial spirit of the times. (a) It was said by the Barons, in Sheen v. Eickie, Best's Exeh. Eep. East. Term, 1839 [s. c. 5 M. &W. 175], that fixtures do not necessarily mean things affixed to the freehold. It only means something fixed to another, and which the tenant has the power of removing. But I apprehend that the ordinary meaning is the appropri- ate and legal meaning, and which is, things fyed in a greater or less degree to the realty. It is clearly settled, said Baron Parke, in Minshall u. Lloyd, 2 M. & W. 459, that every- thing substantially and permanently affixed to the soil is in law » fixture. The principal thing must not be destroyed by the accessory, nor a serious injury inflicte4 to some important building, unless the building itself be only an accessory to the fixture, asan engine-house, to cover it. The principle seems to be, that the fixture must be adapted to the enjoyment of the realty, and more or less annexed to it. f472] LECT. XXXV. j OF PfiESOiNAL PBOPEBTY. * 346 affixed to the freehold. (6) 2. Between the executor of the ten- ijint for life, and the remainderman or reversioner ; and here the right to fixtures is considered more favorably for the exec- utors. 3. Between landlord and tenant ; and here the claim to have articles considered as personal property is received with the greatest latitude and indulgence. 4. There is an exception of a broader extent in respect to fixtures erected for the purposes of trade, and the origin of it may be traced back to the dawnings of modern art and science, (c) Lord Ellenborough, in Elwes v. Maw, (d) went through all the cases from the time of the Year Books, and the court concluded that there was a distinction between aiinexations to the freehold for the purposes of trade or manufacture, and those made for the purposes of agriculture ; and the right of the tenant to remove was strong in the one case and not in the otlier. It was held that an agricultural tenant who had erected, for the convenient occupation of his farm, several buildings, was not entitled to remove them. Had the erections been made for the benefit of trade or manufactures, there would seem to have been no doubt of the right of removal. The strict rule as to fixtures, that applies between heir and executor, * applies equally as between vendor and vendee, and mort- * 346 gagor and mortgagee ; and growing crops, manure lying upon the land, and fixtures erected by the vendor for the purpose of trade and manufactures, as potash kettles for manufacturing- ashes, pass to the vendee of the laud, (a) Fixtures go along (6) The New York Revised Statutes, ii. 83, sec. 6, 7, 8, declare that tl ing' annexed to the freehold, or to any building for the purpose of trade or manufacture, and not fixed into the wall of the house, so as to be essential to its support, go to the execu- tor as assets; and that all other things annexed to the freehold descend to the heir or devisee. The Chancellor, in House v. House, 10 Paige, 163, supposed the legisla- ture here intended to put the executor or administrator upon the same footing with a tenant as to the right to fixtures. (c) 20 Hen. VII. 13, a, and b, pi. 24. The exception in that case was allowed in favor of a baker and a dyer affixing furnaces or vats, or vessels pur occupier son occu- pation. But the exception in favor of such trades was almost too liberal for the age ; and we find, in the following year, 21 Hen. VII. 27, it was narrowed to things fixed to the ground, and not to the walls of the principal building. (d) 3 East, 38. The notes attached to this case, in Smith's Leading Cases in Law Library, u. 8. xxviii., are valuable. (a) Spencer, C. J., in Holmes v. Tremper, 20 Johns. 30; Hare v. Horton, 2 Nev. & Mann. 428 ; Miller c. Plumb, 6 Cowen, 665 ; Kirwan v. Latour, 1 Harr. & J. 289 ; Kittredge a. Woods, 3 N. H. 503 ; Despatch Line of Packets u. Bellamy Man. Co., 12 N. H. 205; Ove's v. Oglesby, 7 Watts, 106; Union Bank v. Emerson, 15 Mass. 159. [473] * 346 OF PERSONAL PROPERTY, [PART V. with the premises to a lessee, if no reservation be made at the time of the contract ; (6) and the tenant must remove fixtures put up by him before he quits the possession on the expiration of his lease, (c) If not removed during the term, they become the property of the landlord. (<£) ^ It has been strongly questioned by high authority, (e) vrhether erections for agricultural purposes ought not, in this country, to receive the same protection in favor of the tenant as those fix- tures made for the purposes of trade, manufactures, or domestic convenience. They may be necessary for the beneficial enjoy- ment of the estate, and the protection of its produce ; and public policy, and the interests of the owner of the soil, are equally pro- moted by encouragement given to the tenant to cultivate and Though fructus indastriales pass from the intestate to liis personal representatives, yet, under a deyise or conveyance of land, they pass to the devisee or vendee. The main mill-wheel and gearing of a factory, and neressari/ to its operation, are held to be fixtures and real estate, in favor of the right of dower as against the heir. Powell v. Monson and Brimfield Manufacturing Company, 3 Mason, 459. Such machinery will also pass to the vendee as against the vendor. Farrar v. Stackpole, 6 Greenl. 154. So, manufacturing machinery and fixtures will pass to a mortgagee, as part and parcel of the inheritance, in lilce manner as they pass to a vendee. Lord Hard- wicke, in Ryall v. RoUe, 1 Atk. 175 ; Union Bank v. Emerson, 15 Mass. 159 ; Amos & Ferard on Fixtures, 189, 191 ; Voorhis v. Freeman, 3 Watts & S. 116 ; Despatch Line of Packets v. Bellamy Manuf. Co., 12 N. H. 205. They are parcel of the in- heritance. Farrant v. Thompson, 6 B. & Aid. 826. But in Swift v. Thompson, 9 Conn 63, machinery in a cotton factory attached to the building, so far as to keep the machinery steady, and which could be removed without injury to the 'luilding or the machinery, was held to be personal property, as respects creditors and pur- chasers. The case of Gale v. Ward, 14 Mass. 352, went also to the same point. Fixtures made by a mortgagor after the mortgage become part of the realty as be- tween him and the mortgagee, and cannot be removed. It might be otherwise in tlie case of landlord and tenant. The mortgagor makes such improvements as owner, for the permanent benefit of the estate. Winslow v. Merchants' Ins. Co., i Mete. 306. (6) Colegrave v. Dias Santos, 2 B. & C. 76. (c) Gibbs, C. J., in Lee u. Kisdon, 7 Taunt. 188 ; Ex parte Quincy, 1 Atk. 477 ; 2 B. & C, supra ; Poole's Case, 1 Salk. 368 ; Penton v. Robart, 2 East, 88 ; White v. Arndt, 1 Wharton, 91 ; 2 M. & W. 460, s. t. {d) Lyde v. Russell, 1 B. & Ad. 394. The French law coincides with the English in respect to fixtures made for embellishment. The tenant may remove tliem, pro- vided they can be removed without being destroyed, and without deteriorating the premises. Lois des Batimens, par Le Page, ii. 100, 205. (e) Van Ness v. Pacard, 2 Peters, 137. 1 Leader v. Homewood, 5 C. B. n. ». the lease is d' tcrmined b_, the landlord's 546 ; Overton v. Williston, 31 Penn. St. re-entry for breach of condition. Pugh JS5. Keither can they be removed after v. Arton, L. R. 8 Kq. 626. [474j I.ECT. XXXV.] OF PERSONAL PROPERTY. * 347 improve 'the estate. In Whiting v. Brastow,(f) the agri- cultural tenant received * a liberal application of the * 347 exception in favor of the removal of fixtures. He was allowed to remove from the freehold all such improvements as were made by him, the removal of which would not injure the premises, or put them in a worse plight than they were in when he took possession. The case of Holmes v. Tremper (a) may also be referred to as containing a just and enlarged view of the sub- ject ; and the tenant was allowed to remove a cider mill and press erected for his own use. But the same policy of encourag- ing and protecting agricultural improvements will not permit the outgoing tenant to remove the manure which has accumulated upon a farm during the course of his term. (6) The civil law was much more natural and much less compli- cated in the discrimination of things than the common law. It divided them into the obvious and universal distinction of things movable and immovable, or things tangible and intangible. Tiie movable goods of the civil law were, strictly speaking, the chat- tels personal of the common law, Whatever was fixed to the (/) 4 Pick. 310. (a) 20Jolin8. 29. (i) Lassell v. Reed, 6 Greenl. 222 ; Middlebrook v. Corwin, 15 Wend. 169; Daniels i: Pond, 21 Pick. 367. It would seem to be the law in England for the outgoing tenant to sell or take away the manure. Roberta v. Barker, 1 Cr. & M. 809 ; Gib- bons on Dilapidations, 76. But a special usage sometimes obliges the offgoing tenant to leave the manure upon the land. In North Carolina, the outgoing tenant, when tliere is no custom or covenant to tlie contrary, has a right to the manure made by him on the farm, provided he takes it away before he removes. Smithwick v. Elli- son, 2 Ired. 326. In the case of Walker v. Sherman, 20 Wend. 636, Mr. Justice Cowen gave an elaborate examination of the English and American authorities on the subject of fixtures, and the decision in the case was that the machinery in a woollen factory, being movable, and not in any manner affixed or fastened to the building or land, and yet material to the performance of the factory in certain departments of its work, was personal property, as between tenants in common and owners of the fee. The question was decided on the same principle as if it had arisen between grantor and grantee. The learned judge considered that the ancient distinction between actual annexation and total disconnection was the most certain and practical, and he collected from the cases, as far as their subtlety and inconsistency would admit of any general conclusion, that nothing of a nature personal in itself would pass as a fixture, unless it be in some way habitually or permanently attached or fixed to the freehold. There are likewise constructive fixtures which, in ordi- nary understanding, make part and parcel of the land or building. Such are rails on a fence, stones in a wall fence, and Venetian blinds, and locks and keys to a house, &c. [475 J * 348 OP PEBSONAL PROPERTY. [PABT V; freehold perpetui usus eausa, was justly deemed a part erf the res immobile^ of the civil law. (c) ^ 2. Qualified Property in Chattels Personal. — Property in chattels personal is either absolute or qualified, Absolute property denotes a full and complete title and dominr ion over it; but qualified property in chattels is an exception to the general right, and means a temporary or special interest, liable to be totally devested on the happening of some particular event. » A qualified property in chattels may subsist by reason of the nature of the thing or chattel possessed. The elements of air, light, and water are the subjects of qualified property by occu- pancy ; and Justinian, in his Institutes, (^d) says, they are * 348 common by the law of nature. He who first places * him- self in the advantageous enjoyment of a competent portion of either of them, cannot lawfully be deprived of that enjoyment ; and whoever attempts to do it, creates a nuisance for which he is responsible, (a) Animals feroe naturce, so long as they are reclaimed by the art and power of man, are also the subject of a qualified property ; but when they are abandoned, or escape, and return to their natural liberty and ferocity, without the animus revertendi, the property in them ceases. While this qualified property continues, it is as much under protection of law as any other property, and every invasion of it is redressed in the same manner. (6) The difficulty in ascertaining with precision the application of the law arises from the want of some certain deter- minate standard or rule, by which to determine when an animal is ferce vel domitce naturce. If an animal belongs to the class of tame animals, as, for instance, to the class of horses, sheep, or cattle, he is then clearly a subject of absolute property ; but if he belongs to the class of animals which are wild by nature, and owe all their temporary docility to the discipline of man, such as deer, fish, and several kind of fowl, (c) then the animal is a subject of qualified property, and which continues so long (c) Taylor's Elem. of the Civil Law, 475. (d) Inst. 2. 1. 1. (a) Aldred's Case, 9 Go. 58, b. (5) 7 Co. 16-18 ; Finch's Law, 176. (c) Doves are held to be animals farm naturce. Commonwealth v. Chase, 9 Pick. 15. [But compare Itegina ». Cbeafor, 21 L. J. K. s. M. C. ; 5 Cox C. C. 367 ; 8 Eng. L. & Eq. 598.] [476] LEdT. XXXV.] OP PERSONAL PROPERTY. * M§ only as the tameness and dominion remain. It is a theory of some naturalists that all animals were originally wild, and that such as are domestic owe all theif docility and all their degener- acy to the hand of man. This seems to have been the opinion of Count BufPon ; and he says that the dog, the sheep, and the camel have degenerated from the strength, spirit, and beauty of their natural state, and that one principal cause of their degener- acy was the pernicious influence of human power, (t^) Grotius, on the Other hand, has suggested that savage animals o\fe all their untamed ferocity, not to their own natures, but to the violence * of man. (a) But the common law has * 349 wisely avoided all perplexing questions and refinements of this kind, and has adopted the test laid down by Puffen- dorf, (5) by referring the question, whether the animal be wild or tame, to our knowledge of his habits, derived from fact and experience. It was held by the Supreme Court of New York, in Pierson v. Post, (c) that pursuit alone gave no property in animals felrce naturce. Almost all the jurists on general juris- prudence agree that the animal must have been brought Within thg power of the pursuer before the property in the animal vests. Actual taking may not in all eases be requisite ; but all agree that mere pursuit, without bringing the animal within the power of the party, is not sufiBcient. The possession must be so far established, by the aid of nets, snares, or other means, that the animal cannot escape. It was accordingly held in the case just mentioned, that an action wOuld not lie against a person for kill- ing and taking a fox which had been pursued by another, and was then actually in the view of the person who had originally found, started, and chased it. The mere pursuit, and being in view of the animal, did not create a property, because no posses- sion had been acquired ; and the same doctrine was afterwards declared in the case of Buster v. Newkith. (c?) (d) Buffon's Natural History, vii. Smellie's ed. (a) Grotius, Hist, de Belg. lib. 5, cited in PufE. Droit, de la Nat. 1, 4, c. 6, sec. 5. (6) Liv. 4, i;. 6, sec. 5. (c) 3 Caines, 175. (d) 20 Jolins. 75. The legislature of New York have enlarged the right of acquis!- tion of game by pursuit, in the case of deer, in the counties of Suffolk and Queens, by declaring that any person who starts and pursues such game shall be deemed in possession of the same, so hnq ns he continup.s in fresh pursuit thereof. Laws of N. Y., April 1, 1844, l-. 109 ; N. Y. R. S. 3d ed. i. 883. [477] *350 OP PERSONAL PEOPEETY, [PAET V. The civil law contained the same' principle as that which the Supreme Court adopted. It was a question in the Roman law, whether a wild beast belonged to him who had wounded it so that it might easily be taken. The civilians differed on the question ; but Justinian adopted the opinion that the property in the wounded wild beast did not. attach until the beast was actually taken. («) So if a swarm of bees had flown from the hive of A., they were reputed his so long as the swarm * 350 remained in sight, and might easily be * pursued ; other- wise they became the property of the first occupant, (a) Merely finding a tree on the land of another, containing a swarm of bees, and marking it, does not vest the property of the bees in the finder. (6) Bees which swarm upon a tree do not become private property until actually hived, (c) ^ A qualified property in chattels may also subsist, when goods are bailed, or pledged, or distrained. In those cases the right of property and the possession are separated ; and the owner has only a property of a temporary or qualified nature, which is to continue until the trust be performed- or the goods redeemed; and he is entitled to protect this property while it continues, by action, in like manner as if he was absolute owner. (cZ) 3. Joint Tenancy in Chattels. — Personal property may be held by two or more persons in joint tenancy or in common ; and in the former case, the same principle of survivorship applies which exists in the case of a joint tenancy in lands, (e) But by reason of this very effect of survivorship, joint tenancy in chattels is very much restricted. It does not apply to stock used in any joint undertaking, either in trade or agriculture : for the forbidding doctrine of survivorship would tend to damp the spirit and enter- (e) Inst.2. 1. 13; Dig. 41. 1. 5.2. (a) Inst. 2. 1. 14. (6) Gillet V. Mason, 7 Johns. 16. (c) Inst. 2. 1. 14 ; Wallis v. Mease, 3 Binney, 546. Bees which take up their abode in a tree belong to the owner of the soil, if unreclaimed, but if reclaimed and identi- fied, they belong to their former possessor. GoflE i;. Kilts, 15 Wend. 550. (d) Vide infra, 568, 585. (e) Co. Litt. 182, ». 1 In Blades r. Higgs, 11 H. L. C. 621 ; land of another by a trespasser, and car- s. c. 13 C. B. N. s. 844 ; 12 C. B. N. s. 501, ried oflF by him, belongs to the owner of it was held by the House of Lords and the land, the judges that game killed upon the [478] LECT. XXXV.] OF PERSONAL PROPERTY. * 351 prise requisite to conduct the business with success. When one joint partner in trade or in agriculture dies, his interest or share in the concern does not survive, but goes to his personal repre- sentatives. (/) Subject to these exceptions, a gift or grant of a chattel interest to two or more persons creates a joint tenancy ; and a joint tenant, it is said, may lawfully dispose of the whole property. (^) In legacies of * chattels the courts * 351 at one time leaned against any construction tending to sup- port a joint tenancy in them, and testators were presumed to have intended to confer legacies in the most advantageous manner, (a) But in Campbell v. Campbell, (i) the master of the rolls reviewed the cases, and concluded that where a legacy was given to two or more persons, they would take a joint tenancy, unless the will contained words to show that the testator intended a severance (/) Co. Litt. 182, a; Noy, 55; Jeffreys v. Small, 1 Vern. 217; Elliott u. Brown, cited in Raithby's note to 1 Vern, 217. (g) Best., J., in Barton u. Williams, 5 B. & Aid. 395. If this dtWam be not confined to joint tenancy in merchandise, where it undoubtedly applies, it must, at least, be restricted to chattel interests. A sale in market overt of a chattel by one joint tenant changes the property at once as against the other joint tenant. A joint tenant of an estate can only convey his part ; and if he should levy a fine of the whole estate, or convey it by bargain and sale, it vrould only reach his interest, and amount to a severance of the joint tenancy. Co. Litt. 186, a ; Comm. Dig. tit. Estates, K. 6 ; Ford V. Lord Grey, 6 Mod. 44; 1 Salk. 286; 2 Ohio, 112. See also, infra, iv. 359, 360, note. If one tenant in common of a chattel sells the share of his cotenant, as well as his own, he is answerable in trover. Wilson v. Eeed, 3 Johns. 175 ; Hyde v. Stone, 7 Wend. 354 ; White v. Osborn, 21 id. 72. It is a conversion as to the share of the other. Parke, B., 1 M. & W. 685. But one tenant in common of a chattel cannot bring trover against his cotenant for dispossessing him, for each has an equal right to the possession ; though for the loss or destruction, or sale of the whole chat- tel by one of the cotenants, an action of trover will lie against him by the other. Litt. sec. 323 ; Co. Litt. 200, a ; Wilson v. Reed, ubi supra ; Fennings v. Grenville, 1 Taunt. 241; Barton u. Williams, 5 B. & Aid. 395; Farr u. Smith, 9 Wend. 338; Lucas u. Wasson, 3 Dev. 398 ; Cole v. Terry, 2 Dev. & Battle, 252 ; Herrin v. Eaton, 13 Me. 192 ; Mersereau v. Norton, 15 Johns. 179. In Waddell v. Cook, 2 Hill, 47, it was held that trover (but not trespass) would lie by one cotenant of goods against another who sells the whole interest in the chattels. One tenant in common of personal property can sell his own share only. Bradley v. Boynton, 22 Me. 287. If he sells the whole interest in the common property, the vendee of the original cotenant cannot be sued while in possession. The person in possession under such sale is a cotenant with the rightful owner. Tlie remedy is in trover against the cotenant, whoever he may be, who sells the whole subject as for a conversion of the share of the other owner. Dain v. Cowing, ib. 347. A joint owner of a chattel is bound to bestow upon its preservation that care which a prudent man ordinarily bestows upon his property. Guillot V. Dossat, 4 Martin (La.), 203. (a) Perkins v. Baynton, 1 Bro. C. C. 118. (6) 4 Bro. 15. [479] * 352 OF PERSONAL PEOPERTT. [PART Y. of the interest, and to take away the right 6f survivorship. This same rule of construction has been declared and followed in the subsequent cases, (c) 4. Rights in Action. — Another very leading distinction, iu respect to goods and chattels, is the distribution of them into things in possession and things in action. The latter are personal rights not reduced to possession, but recoverable by suit at law./ Money due on bond, note, or other contract, damages due for breach of covenant, for the detention of chattels, or for torts, are included under this general head or title of things in action. It embraces the most diffusive, and, in this commercial age, the most useful, learning in the law. By far the greatest part of the questions arising in the intercourse of social life, or which are litigated in the courts of justice, are to be referred to this head of personal rights in action. * 352 5. Chattel Interest in Remainder. — * Chattels may be limited over by way of remainder, after a life in them is created, though not after a, gift of the absolute property. The law was very early settled, that chattels real might be so limited by will, (a) A chattel personal may also be given by will (and it is said that the limitation may also be equally by deed), (6) (c) Morley v. Bird, 3 Ves. 628 ; Crooke v. De Vandes, 9 id. 197 ; Jackson v. .lack- son, ib. 591. (a) Manning's Case, 8 Co. 95 ; Lampet's Case, 10 Co. 46 ; Child r. Baylie, Cro. Jac. 459. (b) 2 Bl. Coram. 398; Langworthy v. Chadwick, 13 Conn. 42. The cases are gen- erally upon wills ; but in Child v. Baylie, Cro. Jac. 459, the court speaks of such a remainder as being created equally by grant or devise. In Powell v. Brown, S. C. Law Journal, No. 3, 442, it was held that a limitation over of a personal chattel by deed was good, though it was not by way of executory trust or a conveyance to uses. See also Powell v. Brown, 1 Bailey (S. C), 100. But if the limitation in remainder, after a life estate in personalty, be not by executory devise, it can only be by con- veyance in trust. Betty v. Moore, 1 Dana (Ky.), 237. So, in Morrow v. Williams, 3 Dev. (N. C.) 263, it was said to be a settled rule in North Carolina, that a remain- der in chattels, after a life estate, could not be created by deed. In Rathbone v. Dyckman, 3 Paige, 1, it was held that a limitation over of personal estate to A. in case of the death of B. without lawful issue, was valid; for the N. Y. Rev. Stats, i. 724, sec. 32, 773, sec. 2, have declared, that the words iti/ing without issue mean issue living at the death of the first taker. See infra, iv. 283. In the English chancery, in bequests of chattel interests, the words lilting at the time of the testator's death are often supplied by intendment, to avoid uncertainty. Thus, a bequest to tlie children of A. or a legacy to A. for life, and then to the children of B., the law, in the case of real estates, restricts the bounty to the children lining at the death of A. or B., as the case may be. Equity will not presume that a party who is not in .esse is intended, unless such intention be manifest. Bartleman v. Murchison, 2 Kuss. & My, 136. [ 480 ] l:::ct. XXXV.] of personal pbopeett. * 353 to A. for life, with the i'emainder over to B., and the limita- tion over, after the life interest in the chattel has expired, is good. At common law there could be. no limitation over of a chattel, but a gift for life carried the absolute interest. Then a distinction was taken between the use and the property, and it was held that the use might be given to one for life, and the property afterwards to another, though the devise over of- the chattel itself would be void, (c) It was finally settled that there was nothing in that distinction, and that a gift for life of a chattel was a gift of the use only, and the remainder over was good as an executory devise, (ci) This limitation over in remainder is good as to every species of chattels of a durable nature ; and there is no difference in that respect between money and any other chat- tel interest. The general doctrine is established by numerous English equity decisions, (e) and it has been very, extensively recognized and adopted as the existing rule of law in this coun- try ; but not until the questions had been very ably * and thoroughly discussed, particularly in the Supreme * 353 Court of Errors of the State of Connecticut, (a) (c) 37 Hen. VI., abridged in Bro. tit Devise, pi. 13 ; Hastings v. Douglass, Cro. Car. 343. {d) Hyde v. Parrat, 1 P. Wms. 1. It has been frequently held, Mr. J. Buller observed, in Doe v. Perryn, 3 T. R. 484, that the words di/ing without issue mean with- out issue at the time of the death of the party, in cases of personal property, though it be cot so in the limitation of freehold estates. {e) Smith v. Clever, 2 Vern. 59 ; Hyde v. Parrat, 1 P. Wms. 1 ; Tissen v. Tissen, ib. 500; Pleydell <■. Pleydell, ib. 748; Porter v. Tournay, 3 Ves. 311; Eandall u. Russell, 3 Meriv. 190. (a) Moffat V. Strong, 10 Johns. 12 ; Westeott v. Cady, 5 Johns. Ch. 334 ; Griggs v. Dodge, 2 Day, 28; Taber v. Packwood, ib. 52 ; Scott i>. Price, 2 Serg. & R. 59 ; Deilil V. King, 6 id. 29; Royall v. Eppes, 2 Munf. 479 ; Mortimer v. Moffatt, 4 Hen. & Munf. 603; Logan v. Ladson, 1 Desaus. 271 ; Geiger v. Brown, 4 M C >rd, 427 ; Brummet v. Barber, 2 Hill (S. C), 543. By the N. Y. Revised Statutes, i. 77-3, sec. 1-5, the abso- lute ownership of personal property cannot be suspended by any limitation or condi- tion for a longer period than two lives in being at the date of the instrument creating it, or if by will, in being at the death of the testator. The accumulation of the inter- est or profits of personal property may be made as aforesaid, to commence from the date of the instrument, or from the death of the person executing the same, for the benefit of one or more minors then in being, and to terminate at the expiration of their minority ; and if directed to commence at a period subsequent to the dale of the instrument or deatli of the person executing it, the period must be during the minority of the persons to be benefited, and terminate at the expiration of their minority. All directions for accumulation contrary hereto are void ; and for a longer term than such minority, are void as to the excess of time. But if a minor, for whose benefit a valid accumuUtion of interests or profits is directed, be destitute, the chancellor may VOL. II. -81 [481] • 353 OP PERSONAL PEOPEETT. [PART V. There is an exception to the rule in the case of a bequest of specific things, as, for instance, corn, hay, and fruits, of which the use consists in the consumption. The gift of such articles for life is, in most cases, of necessity, a gift of the absolute property ; for the use and the property cannot exist separately. (6) If not apply a suitable sum from the accumulated moneys for his relief, as to support or education. See infra, Iv. 286, the regulation of the accumulation of the income of real estates ; and see Vail v. Vail, 4 Paige, 317, where it was held, that if the trust of accumulation of income of personal estate be void under the statute, such income goes as unbequeathed property. Whenever the proceeds of personal property .nre not validly disposed of by the testator, they are to be distributed, as of course, to tlie widow and next of kin. The N. Y. Revised Statutes have not defined the objects for which express trusts of personal estate may be created, as has been the case in relation to trusts of real estate. (Infra, iv. 310.) They may, therefore, be created for any purposes which are not illegal ; and except as to the mere vesting of the legal title to the property in the trustee, instead of the cestui que trust, the conveyance or bequest of personal property is governed by the same rules applicable to a grant or devise of a similar interest in real property. The Revised Statutes, i. 773, tit. 4, re- strict, as above stated, the power of suspending the right of alienation of personal property, and the right of accumulation within similar limits. Gott v. Cook, 7 Paige, 534, 535. In all other respects limitations of future or contingent personal estates are the same as if the subject was real estate. Hones. Van Schaick, 7 Paige, 222; Kane V. Gott, 24 Wend. 641. The N. Y. Revised Statutes, concerning uses and trusts, are confined to real property. They do not interfere with the mere appropriation of the fund as to personal property, and only as to limitations of future or contingent inter- est therein ; for if the limitation be on a contingency, it must be confined within cer- tain boundaries of time, otherwise you run into an objectionable perpetuity. The rules of real property are not impressed upon personal property, except as to future contingent limitations. See the remarks of Mr. Justice Cowen on this subject in Kane v. Gott, ut supra, 662, 663, 666 If personal estate be vested in trustees upon various trusts, some being valid and others void, the court will sustain the valid ones if tliey can be separated from those which are illegal. Van Vechten v. Van Vechten, 8 Paige, 105. The testator may direct the payment of legacies out of the income of the estate by anticipation. He may bequeath the same as a future estate undiminished in amount, subject to the rules against perpetuities. He may carve such intermediate interests, estates, and portions out of the income, in the mean time, as he pleases, if it can be done without an actual accumulation of the rents and profits for that pur- pose. But an accumulation of rents and profits for the purpose of raising a legacy or portion at a fiture day is not permitted in New York, except such legacy or portion be for the sole benefit of a minor in existence when the accumulation commences. N. Y. R. S. i. 726, sec. 37, 38 ; ib. 773, sec. 3, 4. (i) Randall r. Russell, 3 Meriv. 194 ; Evans v. Iglehart, 6 Gill & J. 171 ; Hender- son V. Vaulx, 10 Yerg. 30. If the specific personal property bequeathed for life, with remainder over, be capable of increase, as cattle, &c., the tenant for life, taking the increase to himself, is bound to keep up the number of the original stock. 1 Domat, b. 1, tit. 11, sec. 5. But if tlie animals do not produce young ones, the tenant for life, called the usufructuary in the civil law, is not bound to supply the place of those that die without his fault. Ib. sec. 6. In the southern states slaves may be [482] LECT. XXXV.] OP PERSONAL PEOPERTT. * 354 specifically given, but generally as goods and chattels with remainder over, the tenant for life is bound to convert them into money, and save the principal for the remainderman, (c) It is a general principle, that where any interest short of absolute ownership is given in the general residue of personal estate, terms for years and other perishable funds of property which may be consumed in the use, are to be converted or invested, so as to produce a permanent capital, and the income thereof only is to go to the residuary legatee, ((f) There cannot be any estate taU in a chattel interest, unless in very special cases, for that would lead to a perpetuity, and no remainder over can be per- mitted on such a limitation, (e) It is a settled rule that the same words which, under the English law, would create * an estate tail as to freeholds, give the absolute interest * 354 as to chattels, (a) The interest of the party in remainder in chattels is precarious, because another has an interest in possession ; and chattels, by their very nature, are exposed to abuse, loss, and destruction. (6) It was understood to be the old rule in chancery, (c) that the person entitled in remainder could call for security from the tenant for life, that the property should be forthcoming at -his decease, for equity regards the tenant for life as a trustee for the remainderman ; but that practice has been overruled, (c?) Lord bequeathed for life and remainder over, and the tenant for life is bound in equity to account for them. Horry v. Glover, 2 Hill (S. C. ), Ch. 620. Though property be of a perishable nature, it may, when the case will admit of it, be bequeathed to A. for life, with remainder over ; but as such property becomes less valuable from year to year, it may, under the direction of chancery, be converted into government stock, for the protection of the remainderman. 4 Russell, 200. (c) Patterson v. Devlin, 1 M'MuUan (S. C), 459. The rights of the tenant for life and of the remainderman, in perishable articles, and in other things which dete- riorate or wear out by use and time, are discussed at large in that case, and many illustrations given and distinctions stated. (d) Howe V. Earl o£ Dartmouth, 7 Ves. 137 ; Fearns v. Young, 9 id. 549. (e) Dyer, 7, pi. 8 ; 2 Bl. Coram. 398. (a) Scale v. Scale, 1 P. Wms. 290; Chandless v. Price, 3 Ves. 99; Brouncker v. Bagot, 1 Meriv. 271 ; Tothill v. Pitt, 1 Mad. Ch. 488 ; Garth v. Baldwin, 2 Ves. 646 ; Jackson v. Bull, 10 Johns. 19 ; Paterson ■/. Ellis, 11 Wend. 259 ; Moody v. Walker, 3 Ark. 147. (i) The interest in remainder in a chattel was held, in Allen v. Scurry, 1 Yerg. (Tenn.) 36, not to be the subject of sale on Ji-fa., for no delivery could be made by the sheriff. The remainder of a term in a live chattel was a contingent interest. (c) 2 Freeman, 206, case 280 ; Bracken v. Bentley, 1 Rep. in Chancery, 59. (rf) Foley V. Burnell, 1 Bro. C. C. 279 ; Sutton v. Craddock, 1 Ired. Eq. (N. C.) 134. [483] *354 OP PERSONAL PBOPEBTT. [PART T. Thurlow said that the party entitled in remainder could call for the exhibition of an inventory of the property, and which must be signed by the legatee for life, and deposited ip court, and that is all he is ordinarily entitled to. (e) But it is admitted that security may still be required in a case of real danger, that the property may be wasted, secreted, or removed. (/) And where there is a general bequest of a residue for life, with remainder over, the practice now is, to have the property sold and con- verted into money by the exe<:utor, and the proceeds safely invested, and the interest thereof paid to the legatee for life, {g) ^ (e) The rule in New York, as declared in De Pejster v. Clendining, 8 Paige, 295, is in the case of a specific bequest for the legatee to give to the personal representa- tive of the testator an inventory of the articles bequeathed, stating his possession of them, and that when his interest expires they are to be delivered up. ( f) Fearne on Executory Devises, ii. 53, 4tli ed. by Powell ; Mortimer v. Moffatt, 4 Hen. & Munf 503; Gardner v. Harden, 2 M'Cord, Ch. 32; Smith ... Daniel, ib. 143 ; Merril y. Johnson, 1 Yerg. 71 ; 1 Hill, Ch. (S. C.) 44, 74, 137, 157 ; Henderson V. Vaulx, 10 Yerg. 30 ; Hudson v. Wadsworth, 8 Conn. 848 ; Langworthy i. Chad- wick, 13 id. 42 ; Homer v. Shelton, 2 Mete. 194. In Georgia, the person entitled in remainder or reversion of personal property may have a writ of ne exeat in such cases. Prince's Dig. 1837, p. 469. (7) Howe V. Earl of Dartmouth, 7 Ves. 187. But in the case of a bequest of specific chattels to A. for life, with remainder over, the legatee for life is entitled to the possession and enjoyment of (M chattel, and not to have it sold by the executors, and the proceeds invested for bis use, unless the will directs it. He is entitled to the increase and income of it from the testator's death. If, however, the property be- queathed would be of no use unless converted into cash, in that case a safe invest- ment ought to be made by the executor, for the benefit of the parties in interest respectively. Evans v. Iglehart, 6 Gill & J. 171 ; De Peyster v. Clendining, 8 Paige, 295. But in the case of a female slave bequeathed to A. for life, and then to B., her issueborn during the life estate goes to the ultimate legatee. Covington v. McEn- tire, 2 Ired. Eq. 316. In Pennsylvania, by act of 24th Efebruary, 1834, security is to be given in all cases, under the direction of the Orphan's Court, where personal property is bequeathed for life only. 1 Tenant for Life and Remainderman. — to issue stock to the amount actually Interesting t[uestions as to the relative issued, and to withhold dividends, and to rights of the equitable tenant for life and use all its funds in a way merely to in- remainderman have arisen in cases where crease its property. On this ground it companies liave declared extraordinary was held that although the money in the dividends or paid a bonus upon shares, hands of the directors might have been The earlier cases will be found collected income to the corporation, it never be- and discussed in Minot v. Paine, 99 Mass. came income to the stockholders, that the 101. There a corporation declared a determination of the directors to invest stock dividend representing permanent it in permanent improvements was con- improvements made by it out of its net elusive, and that the tenant for life was earnings. The company had authority not entitled to the stock. Brander v. [484] liECT. SXSY.] OP PEBSONAL PROPERTY. ^354 Brander, 4 Ves. 800, was disapproved, and Earp's Case, 28 Penn. St. 368, criti- cised. See In re Barton's Trust, L. E. 5 Eq. 238. So where, in order to evade a statute, a dividend in money was de- clared, with an option of investing it in itock representing permanent improve- ments at par, when the stock was wortli much more, it was treated as a stock dividend and capital. Daland v. Williams, 101 Mass. 571. And so it seems would any dividend in newly issued stock be treated in Massachusetts, under ordinary circumstances. See, furtlier, Leland v. Hayden, 102 Mass. 642 ; and an able de- fence of the English and Massachusetts doctrine in 5 Am. Law Kev. 720. But the tendency of some decisions is to give the tenant for life all extra dividends except earnings carried to account of accumulated profits or surplus earnings at the time the stock was bequeathed or x^ In Hemenway o. Hemenway, 134 Mass. 446, it was held that the tenant for life was entitled to the entire net in- come of stocks held by a trustee, and that it wag not a breach of trust for the trus- tee to retain such stocks until they were paid off, though at the time they were above par, and only the par value would be paid, and thus the remainderman would be injured; and, also, that it was not a breach of trust to purchase stocks above par and retain them until paid. The court purchased. Earp's Appeal, supra; Van Doren v. Alden, 4 C. E. Green (19 N. J. Eq.), 176; Simpson v. Moore, 30 Barb. 637. If a bonus of money is paid out of the increased profits of tlie year, it will go as income to the tenant for life of the shares. MacLareu v. Stainton, 3 De G., F. & J. 202 ; Edmondson v. Crosthwaite, 34 Beav. 30; Dale v. Hayes, 40 L. J. n. b. Ch. 244. So will a common dividend, altliough paid out of the proceeds of the sale of the capital of the company, as in the case of a land company, the bequest having been of stock in that company. Heed V. Head, 6 Allen, 174- And when a dividend, although made in stock, was made from shares purchased by tlie com- pany in the market with its earnings, it was treated as a cash dividend. Leland V. Hayden, 102 Mass. 642. x' See furtlier, iv. 75, n. 1. refused to lay down any arbitrary rule of division recognizing a large discretion in the trustee, but recognizing also the gen- eral principle that such discretion must beexercised ao as to hold an even balance between the tenant for life and the re- mainderman. See further, Millen v. Guer- rard, 14 Cent. L. J. 214 (Ga., 1882); Brinley o. Grou, 60 Conn. — ; Moss' App., 83 Penn. St. 264; s. o. 24 Am. R. 164 and note; Lord v. Brooks, 52 N. H. 72. [485] 356 OP PERSONAL PBOPEETT. [PAET T. LECTURE XXXVI. OP TITLE TO PERSONAL PEOPERTT BT ORIGINAL ACQUISITION. Title to personal property may accrue in three different ways : — I. By original acquisition. II. By transfer, by act of the law. III. By transfer, by act of the parties. The right of original acquisition may be comprehended under the heads of occupancy, accession, and intellectual labor. 1. Of Origiiial Acquisition by Occupancy. — The means of acquir- ing personal property by occupancy are very limited. Though priority of occupancj' was the foundation of the right of property, in the primitive ages, and though some of the ancient institutions contemplated the right of occupancy as standing on broad * 356 ground, (a) * yet, in the progress of society, this original right was made to yield to the stronger claims of order and tranquillity. Title by occupancy is become almost extinct under civilized governments, and it is permitted to exist only in those few special cases in which it may be consistent with the public welfare. (1.) Goods taken by capture in war were, by the common law, adjudged to belong to the captor, (a) But now, by the acknowl- edged law of nations, and the admiralty jurisprudence of the United States, as has been already shown, (J) goods taken from enemies, in time of war, vest primarily in the sovereign ; and they belong to the individual captors only to the extent and under such regulations as positive law may prescribe. (a) Quod ante TiuUius est, id natural! ratione occupant! conceditur. Inst. 2. 1. 12. Mr. Selden has shown that among the andent Hebrews fru!ts, fish, animals, and everything found in desert or vacant places, belonged to the first occupant. De Jur. Nat. et Gent, juxta disciplinam Ebraeorum, cited by PufE. b. 4, c. 6, sec. 5. {a) Finch's Law, 28, 178; Bro. tit. Property, pi. 18, 38; Wright, J., in Morrough V. Comyns, 1 Wils. 211. (6) See i. 100. [486] LECT. XXXTI.] OP PERSONAL PROPBRTT. * 356 (2.) Another instance of acquisition by occupancy, which still exists under certain limitations, is that of goods casually lost by the owner, and unreclaimed, or designedly abandoned by him ; and in both these cases they belong to the fortunate finder, (c) But it is requisite that the former owner should have completely relinquished the chattel before a perfect title will accrue to the finder ; though he has, in the mean time, a special property sufficient to maintain trover against every person but the true owner, (d) ^ He is not even entitled to reward from the owner for finding a lost article, if none had been promised. He has no lien on the article found for hi§ trouble and expense, and he is only entitled to indemnity against his necessary and reasonable expenses incurred on account of the chattel, (e) The Roman law equally denied to the finder of lost property a reward for finding (f) 1 Bl. Comm. 296; 2 id. 402. In Massachusetts, the finder of lost money or goods must give notice as prescribed, and if no owner appears within one year, one half goes to the finder and the other half to the town. Act 1788, c. 55 ; Eevised Statutes, 1836, [p. 395.] In Illinois (Revised Laws of Illinois, 1833), the finder of lost goods, money, or choses in action, takes them if not above fifteen dollars in value, and no claimant within one year after due public notice. If above that value, tliey are to be sold in six months for public use. {d) Armory v. Delamirie, Str. 505 ; Brandon v. Huntsville Bank, 1 Stewart (Ala.), 320 ; [Shaw v. Kaler, 106 Mass. 448.] (e) Armoy v. Flyn, 10 Johns. 102; [Chase v. Corcoran, 106 Mass. 286 ;] Binstead V. Buck, 2 Wm. Bl. 1117; Nicholson v. Chapman, 2 H. Bl. 254; Eter v. Edwards, 4 Watts, 63. It is considered in the two last cases to be still an unsettled point whether the finder of lost property can recover a compensation for the labor and expense voluntarily bestowed upon lost property found. In Reeder t>. Anderson, 4 Dana (Ky.), 193, it was held that the finder was entitled, under an implied assumpsit, for his indemnity at least, against his expenditure of time and money in the suc- cessful recovery of lost property. Mr. Justice Story (Bailment, 391, 2d ed.) gives a strong opinion in favor of compensation (or what he, in admiralty-law language, terms salvage) to the " mere finders of lost property on land," beyond a full indem- nity for their reasonable and necessary expenses. I beg leave to say that it appears to me that such findings have no analogy in principle to the cases of hazardous and meritorious sea or coast salvage under the admiralty law, and that the rule of the common law, as illustrated by Chief Justice Eyre, in Nicholson v. Chapman, as to these mere land findings, is the better policy. 1 Compare Bridges v. Hawkesworth, finding lost property, Hamaker i;. Blan- 15 Jur. 1079; s. c. 21 L. J. Q. B. 75; 7 chard, 90 Penn. St. 377; Bowen v. Sul- E. L. & Eq. 424 ; McAvoy v. Medina, 11 livan, 62 Ind. 281 ; Durfee u. Jones, II- Allen, 548; Kincaid v. Eaton, 98 Mass. R. I. 588. As to the right to have the 139 ; Mathews v. Harsell, 1 E. D. Smith, property identified before giving it up, 393, as to what constitutes possession, see Wood v. Pierson, 45 Mich. 313.] [See further, as to the rights of ore [487] * 357 OF PERSONAL PROPERTY. [PAET V. it; and, according to the stern doctrine of Ulpian, (/) * it * 357 was even considered * to be theft to convert to one's own use, animo luerandi, property found, when the finder had no reason to believe it bad been abandoned, (a) This right of acquisition by finding is confined to goods found upon the surface of the earth, and it does not now extend to goods found derelict at sea, though abandoned without hope of recovery. (S) Nor does this right of acquisition extend to goods (/) Dig. 47. 2. 44, sec. 4-10. The English law requires that the animus furandi must have existed when the property was first received or taken, to constiute lar- ceny. Kex V. Mncklow, 1 Ry. & Moody G C. 160; Butler's Case, 3 Inst. 107; Lord Coke, id. 2 East, P. C. 663 ; The People v. Anderson, 14 Johns. 294. It is not lar- ceny, if there be no evidence to show that the finder at the time knew who the owner was, though he afterwards fraudulently concealed the fact of finding the property. The People v. Cogdell, 1 Hill (N. Y.), 94. But, on the other liand, the doctrine of Ulpian is not witliout approbation in some of the modern decisions ; and it has been held, that if the person who finds property lost knows the owner, and, notwithstand- ing, conceals and converts the property to his own use, it is larceny. The State v. Weston, 9 Conn. 527 ; Lawrence, J., and Gibbs, J., cited in 2 Russell on Crimes, 100, 103 ; and these cases are directly sanctioned in the case of People v. M'Garren, 17 Wend. 460. (a) But the finder of a chose in action, as a cheek or lottery ticket, is not entitled to payment of the money due upon it, if the party paying has notice that the holder came to the possession of it by finding. Payment, under such circumstances, to the holder, would be no bar to an action by the owner. McLaughlin v. Waite, 5 Wend. 404. Picking up a purse of money on the highway and appropriating it, is not lar ceny, if it had not any mark by which the owner might be known. Regina v. Mole, 1 Carr. & Kirw. 417. But it seems, from the modern cases, that if a person finds lost property, knows the owner, or there are circumstances to ascertain the owner, a con- version of it aniyno furandi is larceny. Merry v. Green, 7 M. & W. 623 ; Regina v. Peters, 1 Carr. & Kirw. 245. If a chattel be dropped by a field or highway, or left in a stage coach, the owner does not lose the property ; and if another finds it, he is only justified in appropriating it to his own use where the owner cannot be found, or where it may be fairly said he had abandoned it. (ft) The ancient rule, giving tit the finder a moiety of the proceeds of goods found derelict at sea (if Any such rule ever existed), has become obsolete; and derelicts are held to be perquisites or droits of the admiralty, subject to be reclaimed by the owner, but without any other claim on the part of the finder than to his reasonable salvage remuneration. This is now the general rule of civilized countries. The Aquila, 1 C. Rob. 37 ; The King v. Property Derelict, 1 Hagg. Adm. 383 ; Peabody v. Pro- ceeds of Twenty-eight Bags of Cotton, American Jurist, ii. 119, decided m the District Court of Massachusetts, 1829. A vessel at sea is not deemed derelict, unless she was absolutely abandoned as hopeless, and the animus revertendi did not exist. The Emulous, 1 Sumner, 207; Mesner and others v. Suffolk Bank, District Court of TJ. S., Mass., November, 1838. In Wyman v. Hurlburt, 12 Ohio, 81, a vessel was found by special verdict to have been abandoned by the owners, and derelict at the 2 See The Queen v. Glyde, L. B. 1 C. C. 139. [488] LECT. XXXVI.] OP PERSONAL PROPERTY. * 358 found hidden in the earth, and which go under the denomination of treasure trove. Such goods, in England, belong to the king ; and in New York, they formerly belonged to the public treasury ; for the statute of 4 Edw. I. was reenacted by the act concerning coroners, (c) which directed the coroner to inquire, by jury, of treasure said to be found, and who were the finders, and to bind the finders in recognizance to appear in court. I presume that this direction had never been put in practice, and that the finder of property has never been legally questioned as to his right, except on behalf of the real owner ; and the whole provision has been omitted in the New York Revised Statutes of 1829. The common law originally, according to * Lord Coke, (a) * 358 left treasure trove to the person who deposited it; or, upon his omission to claim it, to the finder. The idea of deriving any revenue from such a source has become wholly delusive and idle. Such treasures, according to Grotius, (J) naturally belong to the finder ; but the laws and jurisprudence of the middle ages ordained otherwise. The Hebrews gave it to the owner of the ground wherein it was found ; and it is now the custom in Ger- many, France, Spain, Denmark, and England to give lost treasure to the prince or his grantee ; and such a rule, says Grotius, may now pass for the law of nations, (c) The rule of the Emperor Hadrian, as adopted by Justinian, (ci) was more equitable, for it gave the property of treasure trove to the finder, if it was found in his own lands ; but if it was fortuitously found in the ground of another, the half of the treasure went to the proprietor of the soil, and the other lialf to the finder ; and the French and Louis- ianian codes have adopted the same rule, (e) bottom of the lake in Lake Erie, after being for ten months sunk in sixty feet water; and it was held, on those facts, that the original owner was not entitled to his action of trover against the finder who recovered the vessel. The right of property in goods abandoned from necessity at sea as derelict is not lost to the owners, and the finder is bound to consult the interest of the owners as well as his own as a salvor. Case of the Amethyst, District Court of Maine, 2 N. Y. Leg. Obs. 312 [Daveis, 20]. (c) L. N. Y. sess. 24, c. i% (a) 3 Inst. 182. (b) De Jure B. & P., b. 2, c. 8, sec. 7. (c) According to the Grand Costumier of the Duchy of Normandy, c. 18, treasure trove belonged to the duke. It belonged, says the text, d la Dignity au Due. {d) Inst. 2. 1. 39. (e) Code Civil, n. 716 ; Civil Code of Louisiana, art. 3386. But the French code limits this right of the finder to that particular case. The general rule is, that all property vacant and without a master belongs to the state. Code, nos. 639, 713, 714, 717 ; and TouUier, in the Droit Civil Franyais, iv. 37-42, complains much of the con- [489] * 359 OF PERSONAL PEOPEETY. [PAET V. Goods waived, or scattered by a thief in his flight, belong, like- wise, at common law to the king ; for there was supposed to be a default in the party robbed, in not making fresh pursuit of the thief, and reclaiming the stolen goods before the public officer seized them. (/) But this prerogative of the crown was placed by the common law under so many checks, (jcf) and it is so unjust in itself, that it may, perhaps, be considered as never * 359 adopted here as against the * real owner, and never put in practice as against the finder; though, as against him, I apprehend the title of the state would be deemed paramount. We must also exclude from the title by occupancy estrays, being cattle whose owner is unknown ; for they are disposed of, in New York, (a) and, I presume, generally in this country, when unreclaimed, by the officers of the town where the estray is taken up, for the use of the poor, or other public purposes. (6) All wrecks are likewise excluded from this right of acquisition by oc- cupancy ; for if they be unreclaimed for a year, they are liable to be sold, and the net proceeds, after deductions for salvage, paid into the public treasury, (c) tradictioD, confusion, and uncertainty of the French regulations on this subject of goods without an owner. (/) Foxley's Case, 5 Co. 109; Cro. Eliz. 694. (g) Finch's Law, 212. (a) N. Y. Revised Statutes, 1. 351, 352. (6) In Indiana, by statute of 1830, the person who finds and takes property adrift, or animals estrayed, is entitled to retain tlie property on paying twenty per cent of the appraised value for tlie support of seminaries. But he is subject, nevertheless, to have .the property, or its value, reclaimed at any time by the owner, on payment of reasonable costs and charges. But, by statute of 1888, estray animals, not ex- ceeding $10 in value, after a year's notice and unreclaimed, vest in the taker. The same as to water craft, after sixty days' notice, and none but freeholders and house- holders are allowed to take up. Revised Statutes of Indiana, 1838, p. 266. In Ohio, the estray goes to the finder, if no owner appears, and the estray be appraised at five dollars or under ; but if it exceeds that sum, the net proceeds go to the treasurer oi the town. Statute of Ohio, 1831. The statute applies equally to boats, rafts, water- craft, &c., found adrift. In Michigan, under the territorial act of April 16, 1833, boats found adrift were to be sold, unless claimed witliin three montlis; and the claimant, on proving property, is to pay what three disinterested freeholders shall deem reasonable. In Illinois, the boat or vessel goes to the taker if not claimed in six months, if the value does not exceed S20 ; and if it does, and the owner does not appear in ninety days after due public notice, the boat is sold at auction, and the net proceeds are appropriated to public use. Revised Laws of Illinois, 1838. (c) N. Y. Revised Statutes, i. 690-694. A vmeck is understood to be goods cast or left upon land by the sea. Constable's Case, 5 Co. 106. In England, wrecks of the sea are generally manorial rights, founded on grant or prescription ; while goods found afioat on the high seas belong to the crown, as " droits of admiralty." [490 J LECT. XXXYI.] OF PERSONAL PROPEKTY. * 360 By the colony laws of Massachusetts and Connecticut, wrecks were preserved for the owner ; and, if found at sea, they are supposed to belong now to the United States, as succeeding, in this respect, to the prerogative of the English crown, (^d) But if discovered on the coast, or in the waters within the jurisdiction of a state, they are, by statutes in the several states, to be kept for the owner, if redeemed within a year ; and if not, they are to be sold, and the net proceeds, deducting costs and salvage, appro- priated to public uses, (e) The statute law of Massachusetts, since the Revolution, pursued the policy of the colony law, and disposed of estrays, lost money, and goods, if unreclaimed for a year, by giving one half of the proceeds to the finder, and the other half to the poor of the town. (/) Shipwrecked goods, if unreclaimed for a year, are to be sold, and the proceeds paid into the public treasury. (^) The statutes have been extended in practice to * all goods and moneys lost, hidden, waived, * 360 or designedly abandoned, when no owner appears, (a) This is, upon the whole, as wise and equitable a regulation as any that has ever been made upon the subject at any period of time. By an act in New Hampshire, in 1791, chattels found, waifs, treasure trove, and estrays, are given wholly to the town, after deducting the expenses of the finder ; (5) and the learned and laborious author of the General Abridgment of the American Law not un- reasonably concludes, (c) that in those states where there are no statute regulations on the subject, estrays, treasure trove, and waifs belong to the finder, in the absence of the owner, (d) ((f) Dane's Abr. of American Law, c. 76, art. 7, see. 12, 21, 23, 38 ; Connecticut Code of 1702 ; Colony Laws of Massachusetts, 1641, 1647, published in the Code of 1675. It is the general law of continental Europe that wrecks belong to the nation, when the owner does not appear. Heiiiec. Elem. Jur. Ord. Inst. sec. 352, 353 ; Toul; lier. Droit Civil Franyais, Iv., nos. 42-46. In England, by the ancient common law, all property stranded, or of the description of wreck, belonged to the king absolutely, after a year and a day; and during that time it was vested in him for protection, until the owner could be found, and it was placed in the custody of the admiralty. Lord Stowell, 1 Hagg. Adm. 18, 20. (e) N. y. Revised Statutes, i. 690; Revised Statutes of Connecticut, 1821, p. 482; Massachusetts Statutes, 1814, c. 170 ; Revised Statutes of Mass., 1836 ; Elmer's N. J. Digest, 61.5. (/) Acts of 1788, 1827 ; Revised Statutes of 1836, part 1, tit. 14, c. 56. (g) Act of 1714; Revised Statutes of Massachusetts of 1836. (a) Dane's Abr. ubi supra, sec. 15, 16. (b) lb. sec. 22. (c) lb. sec. 21. (d) In East New Jersey, in the infancy of the colony, waifs, estrays, treasuer [491] * 361 OF PERSONAL PEOPEETY. [PAET V. 2. Of the Original Acquisition by Accession, — Property in goods and chattels may be acquired by accession ; and under that head is also included the acquisition of property proceeding from the admixture or confusion of goods. The right of accession is defined in the French and Louisianian codes, (e) to be the right to all which one's own property pro- duces, whether that property be movable or immovable, and the right to that which is united, to it by accession, either naturally or artifically. The fruits of the earth, produced naturally or by human industry, the increase of animals, and the new species of articles made by one person out of the materials of another, are all embraced by this definition. (/) I purpose only to allude to those general rules which were formed, digested, and refined by the sagacity and discussions of the Roman lawyers, and trans- ferred from the cival law into the municipal institutions of * 361 the principal * nations of Europe. By means of Bracton (a) they were introduced into the common law of England, and, doubtless, they now equally pervade the jurisprudence of these United State's. The subject has received the most ample consideration of the French civilians ; and all the distinctions of which it was susceptible are easily perceived and clearly understood, by means of the pertinency and fulness of their illustrations. (5) If a person hires, for a limited period, a flock of sheep or cattle of the owner, the increase of the flock during the term belongs to the usufructuary, who is regarded as the temporaiy proprietor. This general principle of law was admitted in Wood v. Ash, (c) and recognized in Putnam v. Wyley. {d) The Roman law made a distinction in respect to the offspring of slaves, (e) and so does the civil code of Louisiana. (/) Though the children were born during the temporary use or hiring of the female slave, they be- longed not to the hirer, but to the permanent owner of the slave. Another rule is, that if the materials of one person are united to trove, and wrecks were forfeited to the lords proprietors of the province. Learning and Spicer's Collections, 590. (c) Code Civil, nos. 546, 547 ; Civil Code of Louisiana, arts. 490, 491. {/) Codes, ib. (a) De aoqui. rerum dom. b. 2, c. 2, 3. (6) Pothier, Traits du Droit au Propri^te', nos. 150, 193; Toullier, Droit Civil Francjais, iii., nos. 106-150. (c) Owen, 139. (d) 8 Johns. 432. (e) Inst. 2. 1. 37. (/) Art. 539. [492] LECT. XXXVI.J OF PERSONAL PROPERTY. * 362 the materials belonging to another, by the labor of the latter, ■who furnishes the principal materials, the property in the joint produce is in the latter by right of accession. This rule of the Roman and English law was acknowledged in Merritt v. John- son, (^) and it has been applied by Molloy (Ji) to the case of building a vessel. According to the doctrine in tlie Pandects, (i) if one repairs his vessel with another's materials, the property of the vessel remains in him ; but if he builds the vessel from the very keel with the materials of * another, the vessel * 362 belongs to the owner of the materials. The property is supposed to follow the keel, proprutas totius navis, carince causam sequitur. This title exercised to a great degree the talents and criticism of the civilians. If A. builds a house with his own materials upon the land of B., the land, said Pothier, is the prin- cipal subject, and the other is but accessary ; for the land can subsist without the building, but the building cannot subsist without the land on which it stands ; and, therefore, the owner of the land acquired, by right of accession, the property in the building. It is the same thing if A. builds a house on his own land with the materials of another ; for the property in the land vests the property in the building by right of accession, and the owner of the land would only be obliged (if bound to answer it all) to answer to the owner of the materials for the value of them, (a) The same distinctions apply to trees or vines planted, or seed sowed by A. in the land of B. When they take root and grow, they belong to the owner of the soil, and the other can only claim, upon equitable principles, a recompense in damages for the loss of his materials. But the Roman law held, that if A. painted a fine picture on the cloth or canvas of B., in that case the rule would be reversed ; for though the painting could not subsist witliout the canvas, and the canvas could subsist without the painting, yet, propter excellentiam artis, the canvas was deemed {g) 7 Johns. 473. (h) De Jure Maritimo, b. 2, c. 1, sec. 7. (0 Dig. 6. 1. 61. (o) By tlie French Civil Code, the general principle is, that the property of the soil carries with it the property of all that which is directly above and under it (art. 552). This covers all erections and works made on or within the soil; and if made by a third person with his own materials, the owner has a right to keep them by the right of accession, on reimbursing to the owner the value of the materials and price of workmanship, witliout any regard to the value which the soil may have acquired thereby. Miller u. Michoud, 11 Kob. (La.) 225. [493] *363 OP PERSONAL PEOPEETT. [PAET V. the accessary, and went as the property of the painter by right of accession, for it would be ridiculous, say the Institutes of Justin- ian, (&) that a picture of Apelles or Parrhasius should be deemed a mere accessary to a worthless tablet. The Roman law was quite inconsistent on this subject ; for if a fine poem or history was written by A. on the paper or parchment of B., the paper or parchment was deemed the principal, and drew to the owner of it, by right of accession, the ownership of the poem or his- tory, however excellent the composition, and however * 363 * splendid the embellishments of the work.^ The French law, according to Pothier and Toullier, does not follow this absurd decision of the Roman law; for it holds that the paper is a thing of no consideration in comparison with the composition, and that the author has a higher, and, consequently, the principal, interest in the written manuscript, and the whole shall belong to him on paying B. for the value of his paper, (a) The English law will not allow one man to gain a title to the property of another upon the principle of accession, if he took the other's property wilfully as a trespasser. It was a principle settled as early as the time of the Year Books, that whatever alteration of form any property had undergone, the owner might seize it in its new shape, and be entitled to the ownership of it in its state of improvement, if he could prove the identity of the original materials ; as if leather be made into shoes, or cloth into a coat, or a tree be squared into timber. (S) So, the civil law, in order to avoid giving encouragement to trespassers, would not allow a party to acquire a title by accession, founded on his own act, unless he had taken the materials in ignorance of the true owner, and the materials were incapable of being restored to their original form, (e) The Supreme Court of New York, in Belts ^ Church V. Lee, (d') admitted these principles, and held that where A. had entered upon the land of B. and cut down trees, and (6) De rer. div. 2, 1, sec. 34. (a) Vide Pothier, Droit de Propri^t^, n. 169-192, and Toullier, iii. 73-75, for tbe distinctions on tliis subject. (5) 5 Hen. VH. 16 ; 12 Hen. VIII. 10 ; Fitz. Abr. Bar. 144 ; Bro. tit. Property, 23. (c) The Civil Code of Louisiana, arts. 494, 495, has explicitly recognized the same principle. (d) 5 Johns. 348. See also Worth v. Northam, 4 Ired. (N. C.) 102. 1 Gains was aware of the inconsistency diversitatis rix idonea ratio redditur. of the two decisions. He says, Ctgus Inst. ii. § 78. [494] LECT. XXXTI.] OP PEESONAL PEOPERTY. * 364 sawed a,nd split them into shingles, and carried them away, the conversion of the timber into shingles did not change the right of property. But if grain he taken and made into malt, or money taken and made into a cup, or timber taken and made into a house, it is held, in the old English law, that the property is so altered as to change the title, (e) In the civil law there was much discussion and controversy on the question, how far a change of the form * and character of the materials * 364 would change the title to the property, and transfer it from the original owner of the materials to the person who had effected the change. If A. should make wine out of the grapes, or meal out of the corn, of B., or make cloth out of the wool of B., or a bench, or a chest, or a ship, out of the timber of B., the most satisfactory decision, according to the Institutes of Justinian, is, (a) that if the species can be reduced to its former rude materials, the owner of the materials is to be deemed the owner of the new species; but if the species cannot be so reduced, as neither wine nor flour can be reduced back to grapes or corn, then the manufacturer is deemed to be the owner, and he is only to make satisfaction to the former proprietor for the materials which he had so converted. (6) With respect to the state of a confusion of goods, where those of two persons are so intermixed that they can no longer be distin- guished, each of them has an equal interest in the subject as ten- ants in common, if the intermixture was by consent. But if it was wilfully made without mutual consent, then the civil law gave the whole to him who made the intermixture, and compelled him to make satisfaction in damages to the other party for what he had lost, (e) The common law gave the entire property, without any account, to him whose property was originally invaded, and its (e) Bro. tit. Property, pi. 23. (a) Inst. 2. 1. 25. (6) The commentators have been much divided in opinion concerning the solidity of these distinctions taken by Justinian. Vinnius and Pothier have approved of the rule established in tlie Institutes ; while Valin and Basuage lay down the doctrine that the thing must be restored, if there be clear evidence of its identity, even though the form be changed, as corn into flour, or skins into leather. Mr. Bell has referred to the several writers by whom this subject is discussed ; and though he condemns the rule of Justinian aa too subtle, he gives us no distinct principle as a substitute. 1 Bell's Comm. 276, n. See the Civil Code of Louisiana, arts. 512 to 524, which has l^ncorporated the principle or most material distinctions in the French law. (c) Inst. 2. 1. 27, 28. [495] *365 OP PERSONAL PROPERTY. [part V. distinct character destroyed. («i) If A. wil willfully in- * 365 terraix his corn * or hay with that of B., or cast his gold into another's crucible, so that it becomes impossible to distinguish what belonged to A. from what belonged to B., the whole belongs to B. (a) But this rule is carried no further than necessity requires ; and if the goods can be easily distinguished and separated, as articles of furniture, for instance, then no change of property takes place. (6) So, if the corn or flour mixed to- gether were of equal value, then, the injured party takes his given quantity and not the whole.^ This is Lord Eldon's construction (d) Popham, 38, pi. 2. (a) Popham, vbi supra; Warde v. JEyre, 2 Bulst. 323 ; Cro. Jac. 366. (6) Colwill V. Reeves, 2 Camp. 575; Holbrook v. Hyde, 1 Vt. 286. 1 Confusion of Goods. — Lord Eldon's rule seems hardly to be borne out by the old cases, but would perhaps prevail. Hesseltine v. Stockwell, 30 Me. 237 ; Moore v. Bowman, 47 N. H. 494, 502; Story, Bailm. § 40 ; Ryder v. Hathaway, 21 Pick. 298. (But see Spence v. Union Mar. Ins. Co., L. R. 3 C. P. 427, 437.) ar^ If the mixture was by accident, such as sea perils, Spence v. Union Marine Ins. Co., L. R. 3 C. P. 427 ; or mistake of an owner, Pratt »;. Bryant, 20 Vt. 333 ; see Moore v. Bowman, 47 N. H. 494, 501; Ryder u. Hathaway, 21 Pick. 298, 305 ; or by the wrongful act of a stranger, Bryant v. Ware, 30 Me. 295; the par- ties become tenants in common. The principles stated in the text have become /mportant, and have been confirmed in questions as to the property in timber cut either purposely or by mistake from i-i The cases are fully collected in a note to Jewett v. Dringer, 30 N. J. Eq. 291. The principal case was of a fraudu- lent mixture, and it was held that defend- ant must identify his own or lose the whole, the mass not being of a uniform kind. See also Diversey v. Johnson, 93 111. 547. Where the mixture was intentional, but not fraudulent, held, that the one whose goods were thus mixed had a right [496] the land of different owners in the great forests of the United States. Ryder V. Hathaway, 21 Pick. 298; Hesseltine V. Stockwell, 30 Me. 237; Jenkins v. Steanka, 19 Wis. 126. It is true that in the case of grain or other articles not adapted to common use among several owners, and valued only by measure, weight, or count, the owners of the several parcels mixed have a right to take from the mass as much as they have put in, and may maintain trover against the other owner or a third person for preventing their doing so, Tripp v. Riley, 15 Barb. 3.33, 335 ; Fobes v. Shat- tuck, 22 Barb. 568, 570 ; Clark v. Griffith, 24 N. Y. 595; Fiquet v. Allison, 12 Mich. .328 ; South Australian Ins. Co. u. Randell, L. R. 3 P. C. 101, 113; Spence v. Union Marine Ins. Co., L. R. 3 C. P. 427, 437 ; Horr V. Barker, 6 Cat. 489; Young v. to select the quantity due him (it being a mass of logs). Chandler v. DeGraff, 25 Minn. 88. As to accession, see Murphy V. S. C. & P. R. Co., 55 Iowa, 473 ; Isle Royale Mining Co. v. Hertin, 37 Mich. 332. That an innocent purchaser from wrong-doer gets no greater right, see Strubbee v. Trustees Cincinnati Ry., 78 Ky. 481. But see Railway Co. v. Hutchins, 32 Oliio St. 571. LECT. XXXVI.] OP PERSONAL PROPERTY. * 366 of the cases in the old law. (c) Bi^t if the articles were of different value or quality, and the original value not to be distinguished, the party injured takes the whole. It is for the guilty party of the fraud to distinguish his own property satisfactorily, or lose it. No court of justice is bound to make the discrimination for him. (ci) 3. Of Original Acquisition by Intellectual Labor. — Another instance of property acquired by one's own act and power is that of literary property, consisting of maps, charts, writings, and books ; and of mechanical inventions, consisting of useful machines or discoveries, produced by the joint result of intel- lectual and manual labor. As long as these are kept within the possession of the author, he has the same right to the ex- clusive enjoyment of them as of any other species of personal property ; for they have proprietary marks, and are distinguish- able property. But when they are circulated abroad, and pub- lished with the author's consent, they become common property, and sul)ject to the free use of the community. It has been found necessary, however, for the pi'omotion of the useful arts, and the encouragement of learning, that ingenious men should * be stimulated to the most active exertion of the * 366 powers of genius, in the production of works useful to the country and instructive to mankind, by the hope of profit, as well as by the love of fame or a sense of duty. It is just that they should enjoy the pecuniary profits resulting from mental as well as bodily labor. We have, accordingly, in imitation of the English and foreign jurisprudence, secured by law to authors and inventors, for a limited time, the right to the exclusive use and profit of their productions and discoveries. The jurisdiction of (c) 15 Ves. 442. (d) Hart v. Ten Eyck, 2 Johns. Ch. 108. Sir William Scott, in the case of the Oilin, 1 C. Rob. 248 ; Brackenridgo v. Holland, 2 Black. (Ind.) 377. Miles, 20 Wis. 615, 623 ; and these be modified as different cases require. It unusual incidents have made the courts has been admitted in other cases where unwilling in some instances to call the one part owner \yas allowed to maintain relation a tenancy in common, Morgan trover against the other for refusing to V. Gregg, 46 Barb. 188. See Kimberly v. allow him to separate and remove his Patchin, 19 N. Y. 330. But the existence share, that the plaintiff and defendant of a tenancy in common depends on the were tenants in common. Channon v. characterof the title and of the possession, Lusk, 2 Lansing, 211 ; Lobdell v. Stowell, and the modes of severance may properly 37 How. Pr. 88. See 590, n. 1. vol,. II.- .32 [ 497 ] * 366 OF PERSONAL PKOPERTY. [PAET V. this subject is vested in the government of the United States, by that part of the Constitution which declares (a) that Congress shall have power "to promote the progress of science and useful arts, by securing, for limited times, to authors and inventors, the ex- clusive right to their respective writings and discoveries." This power was very properly confided to Congress, for the states could not separately make effectual provision for the case. (1.) As to Patent Mights for Inventions. — A patent, accord- ing to the definition of Mr. Phillips, (6) is a grant by the state of the exclusive privilege of making, using, and vending, and authorizing others to make, use, and vend, an invention. The first act of Congress on this subject was passed April 10, 1790 ; and it authorized the secretary of state, the secretary of war, and the attorney general, or any two of them, to grant pat- ents for such new inventions and discoveries as they should deem sufficiently useful and important. That act extended the privilege equally to aliens, and the board exercised the power of refusing patents for want of novelty or utility. This act was repealed, and a new act passed on the 21st February, 1793. It confined patents to citizens of the United States, and they were to be granted by the secretary of state, subject to the revision of the attorney gen- eral. The act gave no power to the secretary of state to refuse a patent for want of novelty or usefulness, and the granting of the patent became a mere ministerial duty. The privilege of suing out a patent was, by the act of 17th April, 1800, extended to aliens of two years' residence in the United States. The act of July 13, 1832, only required the alien to be a resident at the time of the application, and to have declared his intention, accord- ing to law, to become a citizen. But as every person was entitled to take out a patent, on com- plying with the prescribed terms, without any material inquiry, at least at the patent office, respecting the usefulness and importance of the invention or improvement, a great many worthless and fraudulent patents were issued, and the value of the privilege was degraded,' and in a great degree destroyed, (c) It became neces- (a) Art. 1, sec. 8. (6) The Law of Patents for Inventions, 2. In 1847 was published at London, Hindmarch's " Treatise on the Law relating to Patent Privileges for the Sole Use of Inventions." (ej It was stated, in an able report made by a committee of the Senate of the [498 J LECT. XXXVI.] OP PERSONAL PROPERTY. 366 sary to give a new organization to the patent office, and to elevate its character, and confer upon it more efficient power. This was done by the act of Congress of July 4, 1836, c. 357, which re- pealed all former laws on this subject, and reenacted the patent sj'^stem with essential improvements. A patent office is now attached to the department of state, and a commissioner of patents appointed .^^^ Applications for patents United States, on the 28th April, 1836 (and who introduced a new bill on the sub- ject), that the whole number of patents issued at the patent office, under the laws of the United States, up to March 31, 1836, amounted to 9731, being more than double the number issued either in England or France during that period. 1 A. Patents.— {a) Law of 1870.— The statutes concerning patents, designs, trade marks, and copyrights were all consolidated in the act of July 8, 1870, e. 2-30 ; 16 U. S. St. at L. 198 et seq., to which the student must be referred. One of the first important modifications of the text as to patents is, that the new and useful arts, &c., mentioned 366, are only required to be " not known or used by others in this country, and not patented or described in any printed publication in y^y^ (o) What is patentable. — For the dis- tinction between a principle which is not patentable and a process which is, see Tilghman .,•. Proctor, 102 U. S. 707, 724 ; Cochrane u. Deener, 94 U. S. 780 ; Otto V. Linford, 46 L. T. 35. A product is patentable when it embodies the result of some invention or discovery beyond that required for constructing the ma- chine to manufacture it. Collar Co. v. Van Dusen, 23 Wall. 530; The Wood Paper Patent, ib. 566. A mere device involving only an ex- ercise of mechanical skill and not of inventive power is not patentable. At- lantic Works V. Brady, 107 U. S. 192; Slawson v. Grand St. E. R. Co., ib. 649 ; Packing Company Cases, 105 U. S. 566. So a mere application of an old process to a new subject-matter is not patentable. Brown v. Piper, 91 U. S. 37 ; Roberts v. Kyer, ib. 150 ; Smith v. Nichols, 21 Wall. 112. this or any foreign country, before, &c , and not in public use or on sale for more than two years prior to his application." § 24. Cf . Act of March 3, 1839, c. 88, § 6 ; 5 St. at L. 354. A foreign patent does not invalidate a patent here, it' the invention or discovery has not been introduced into public use in the United States Jb>' more than twoyears prior to the application, § 25 ; but the oath on p. 367 is still required, § 30. The specification and claim shall be signed by the inventor and attested by A combination of previoilsly known elements is patentable when the combina- tion itself involves an exercise of inven- tive power. Loom e. Higgins, 105 U. S. 580; Parks v. Booth, 102 U. S, 96; Har- rison u. Andertson Foundry Co., 1 App. Cas. 574. But a mere aggregation of old elements not showing any inventive power, or not producing any new article or any old article in a cheaper or better manner, is not patentable. Packing Com- pany Cases, 105 U. S. 566 ; Pickering v. McCullough, 104 U. S. 310 ; Eeckendor- fer V. Faber, 92 U. S. 347 ; Hailes v. Van Wormer, 20 Wall. 353 ; Saxby v. Glou- cester Wagon Co., 7 Q. B. D. 305. A mere substitution of a different material is not usually, but under some circumstances may he, patentable. Smith v. Goodyear Dental Vulcanite Co., 93 U. S. 486. The general rule deducible from the cases is that an article, process, or ma- chine, to be patentable, must involve an [499] ^366 OP PERSONAL PROPERTY. [part V. are to be made in writing to the commissioner, by any person having discovered or invented any new and useful art, machine. two witnesses. § 26. So are the draw- ings to be. § 27. The model is to be fur- nished, if required by the commissioner. § 29. The commissioner is to issue the patent if upon "examination it shall ap- jiear that the claimant is justly entitled lo [I patent under the law, and that the same is sufficiently useful and important." § 31. Applications must be completed within two years after filing the petition, &c., or they will generally be regarded as abandoned. § 32. The important addition exercise of inventive power, or must be a new discovery, and must be useful. (6) Priority. — England. — Prior public knowledge without any user defeats the right to a patent. Patterson v. Gas Light & Coke Co., 3 App. Cas. 239. But mere prior publication, if not of such a charac- ter as to be open to the public, does not defeat the right. Plimpton v. Spiller, 6 Ch. D. 412; Plimpton v. Malcolmson, 3 Ch. D. 531. The fact that the invention was previously known abroad, and that the claimant learned of it there, does not defeat his right. Rolls v. Isaacs, 19 Ch. B. 268; Marsden v. Saville St., &c. Co., 3 Ex. D. 203. United States. — The question in this country is usually one of the construc- tion of the statutes, cited supra, n. 1. An allowed user without restriction by a single person of a single macliine for more than the two years defeats tlie right. Egbert r. Lippniann, 104 U. S. 333 ; Worley !■. Tobacco Co., ib. 340. So does a public user for purposes of profit by the inventor himself. Consolidated Fruit Jar Co. v. Wright, 94 U. S. 92. But such user simply to test and perfect the invention does not. Elizabeth v. Pave- ment Co., 97 U. S. 126. See further, Roemer v. Simon, 95 U. S. 214 ; Sewall v. Jones, 91 U. S. 171 ; Klein i-. Eussell, 19 Wall. 433; Coffin u. Ogden, 18 Wall. 120. [500] made to the law by act of March 3, 1837, c. 45, § 6, 5 St. at L. 191, is continued in § 33, which allows a patent to be issued or reissued to the assignee of the inven- tor. As this does not cover a partial as- signment, if the inventor does not wish to part with the whole interest, he assigns it to himself and the other assignee, and the patent then issues to them jointly. By § 36 patents are made assignable in law by an instrument in writing, and.the granting of an exclusive right to the whole As to what is sufficient delay in apply- ing for letters patent to be evidence of an abandonment, see Planing Machine Co. V. Keith, 101 U. S. 479; Consolidated Fruit Jar Co. v. Wright, 94 U. S. 92; Smith V. Goodyear Dental Vulcanite Co., 93 U. S. 486. No amount of delay affects the right where the invention is kept secret. Bates v. Coe, 98 U. S. 31. (c) Assignment. — The question of the effect of an assignment of an invention before letters are taken out is fully dis- cussed, and the authorities are reviewed, in Hendrie v. Sayles, 98 U. S. 546. It is held that such an assignment passes the right to take out letters originally and also the right to obtain a reissue. An agreement to assign all future in- ventions of a like nature to one sold is not against public policy. Printing, &c. Co. u. Sampson, 19 L. R. Eq. 462. An assignment of anything less than all the rights secured ly a patent operates as a license only. The legal title does not pass, and suit must be in the name of the patentee. Sanford u. Messer, 1 Holmes, 149 ; Hill u. Whitcomb, ib. 317. See Blakeney v. Goode, 30 Ohio St. 350 ; Littlefield v. Perry, 21 Wall. 205. In the case of an assignment of the right to manufacture, sell, and use within a de- fined district, it was held that a purchaser from the assignee could use anywhere. Adams r, Burke, 17 Wall. 453. But one :.ECT. XXXVI.] OF PERSONAL PROPERTY. *366 manufacture, ((?) or composition of matter, or any new and use- ful improvement on any art, machine, manufacture, or compo- {d) The English statute of James I. was confined to the word manufacture, and that, said Lord Ch. J. Abbott, in the case of The King v. Wheeler (2 B. & Aid. 349), or any part of the United States is author- ized. Third persons are given the right to use and sell specific articles covered by a patent, but owned by them, with the con- sent of the patentee, before it was issued. who had sitoply a license to use a machine within a given district was held not to have a right to use it during an extended term of the patent, though a purchaser of such machine would have the right. Paper Bag Cases, 105 U. S. 766. A purchaser of a machine has the right to repair it, but he has not the right to piece together parts of different ma- chines so as to make new machines of the same kind as the original for sale. Cot- ton Tie Co. u. Simmons, 106 U. S. 89. {d) Infringement. — In order to decide whether there is an infringement, it is necessary first to determine accurately the nature and extent of the invention or discovery which gives validity to the patent. The patent protects nothing be- yond those essential features on the basis of which it is granted. An application of substantially those features will amount to an infringement. Thorn v. Worthing Skating Rink Co., 6 Ch. D. 415, n. ; Sewall V. Jones, 91 U. S. 171. It has been said that in case of a com- bination the entire combination must be used. Fuller v. Yentzer, 94 U. 3. 288. But it seems clear that any application of the essential feature of the combination is an infringement. Dudgeon o. Thom- son, 3 App. Cas. 34; Sharp v. TifEt, 18 Blatchf. 132. The use of a known mechanical equiv- alent does not save an article from being an infringement. Water Meter Co. v. Desper, 101 U. S. 332; Imhaeuser o. Buerk, ib. 647 ; Gill v. Wells, 22 Wall. 1 ; Hicks V. Kelsey, 18 Wall. 670. Using § 37. The article is to be marked " pat- ented," and persona so marking unpat- ented articles, or attaching the name of a patentee to such articles, are punished. §§ 38, 39. By § 40, any citizen, or an alien articles in the course of experiments to improve them, and not for profit, was held no infringement in Frearson v. Loe, 9 Ch. D. 48. It was held there was no " mak- ing, using, exercising, or vending," in Nobel's Explosives Co. u. Jones, 8 App. Cas. 5; 8. c. 17 Ch. D. 721. When a patent is owned by several in common, it would seem that each has an absolute right of user even as against his co-owners. But whether each may sell the right to strangers, or license others to use without the consent of his co-owners, is not clear. De Witt a. Elmira Nobles Mfg. Co., 66 N. Y. 459 ; Gates v. Eraser, 9 111. App. 624; Herring ... Gas Con- sumers' Assn., 9 Fed. Bep. 556. See post, 373, 11. yi, (c). (e) Reissue. — The text of n. 1, A (a), supra, is confirmed in Moffitt v. Rogers, 106 U. S. 423 ; Johnson . Wilmott, L. R. 6 Ch. 239. But it seems that if he had sold the English patent to an assignee, and still continued the manu- facture in France, the importation into England of the article made by him in France would be restrained. lb. A patent for a combination (see 371) must be sustained for the combination as an entirety or not at all, in a suit for an alleged infringement, unless the part in- vented can be clearly distinguished from that claimed but not invented. Vance o. Campbell, 1 Black, 427. So, unless the whole combination is substantially used, there is no infringement. A second combination is not the same as the first if it substantially differs from it in any of its parts. Prouty v. Ruggles, 16 Peters, 336 ; Brooks v. Fiske, 15 How. 212, 220 ; Fames v. Godfrey, 1 Wall. 78 ; Crompton V. Belknap Mills, 3 Fish. 536, 548 ; Nich- olson Pavement Co. v. Hatch, ib. 432. But it is said in England that a valid patent for an entire combination for a process gives protection to each part thereof that is new and material for that [505] 366 OF PERSONAL PROPERTY. [part V. art or science to which it appertains, or is most nearly connected, to make, construct, compound, and use the same ; and he must, process ; or, in other words, that a person not only has no right to steal the whole, but he has no right to steal any part of a man's invention (explaining Lister v. Leather, 8 El. & Bl. 1004) ; and the ques- tion in every case is said to be a question of fact, — is it really and substantially a part of the invention f But a part of an invention which would not have been patentable singly is not protected as part of the combination. Parkes u. Stevens, L. R. 8 Eq. 358, 366; L. R. 5 Ch. 36. But compare Mowry v. Whitney, 14 Wall. 620, 652. The above cases on combinations also illustrate the law as to specifications. It is said that although patentees are entitled in all cases to invoke to some extent the doctrine of equivalents, to pro- tect themselves against mere formal al- terations or substitutions, they are never entitled to do so in any case to suppress all other substantial improvements. Sey- mour V. Osborne, 11 Wall. 616, 556 ; x^ The statement here made of the fundamental principle of the law of trade marks is confirmed in many cases. Singer Mfg. Co. V. Loog, 8 App. Cas. 15 ; Johnr ston V. Orr Ewing, 7 App. Cas. 219; McLean v. Fleming, 96 U. S. 245 ; Man- hattan Medicine Co. v. Wood, 4 Cliff. 461 ; Marshall i'. Pinkham, 52 Wis. 572. The same principle governs as to an imi- tation of the form, title, and appearance given to a book by its author. Robert- son V. Berry & Co., 50 Md. 591; post, 373, n. yi. The exclusive right of user of a trade mark is commonly spoken of as a right of property. This language is misleading, however, if it conveys the idea of an unlimited right either of user or of dis- posal. Thus it is clear that if the plain- tiff's own use of the mark is fraudulent or calculated to deceive, he can have no [506] Blanchard v. Puttman, 3 Fish. 186. See Murray t>. Clayton, L. R. 7 Ch. 570. But it would seem from earlier cases that the doctrine of equivalents is applied in a broader and more liberal manner in favor of one who has discovered a result or function that is new, as well as the ma- chinery that produces it, than it is in favor of one who has simply made an improvement in the manner of bringing about a, known result. McCormick v. Talcott, 20 How. 402, 405; Singer v. Walmsley, 1 Fish. 558, 572; Burden v. Coming, 2 Fish. 477, 489. Mr. Curtis thinks that, by the law of England, if a person has not only discovered a princi- ple, but has invented some mode of carry- ing it into effect, he can protect himself from all other modes of carrying the same principle into effect. Curt, on Pat- ents, § 139 et seq. ; O'Reilly v. Morse, supra, is afterwards elaborately commented on, and its language limited. See § 164, ib. B. Trade Marks. — x^ The fundamental protection in its use. Cheavin v. Walker, 5 Ch. D. 850 ; Manhattan Medicine Co. d. Wood, 4 Cliff. 461 ; Connell v. Reed, 128 Mass. 477. So it would seem that while a person may transfer the right to use a trade mark along with the business to which it relates, it cannot be separately sold. Kidd ... Johnson, 100 U. S. 617 ; Carmichael v. Latimer, 11 R. L 395. It would seem a sufficient reason for this that the mark having come to designate a certain manufacture of goods, it would be a fraud on the public to allow it to be used on goods not of that manufacture. It might be a question how far the one having the original right would have the right to attach the mark to other goods than those as applied to which it had be- come known. So the right may be lost by abandonment, and this may be shown by nonuser. The true nature of the LECT. XXXVI.j OF PERSONAL PROPERTY. 366 in the case of a machine, fully explain the principle and the application of it, by which it may be distinguished from other rule of trade marks is that one man has no right to put otf his goods for Sale as the goods of a rival trader, and he cannot therefore be allowed to use names, marks, letters, or other indicia by which he may induce purchasers to believe that the goods which he is selling are the manufacture of another person. If he does, he is liable to an action at law, or may be restrained by injunction. Perry u. Truefltt, 6 Beav. 66 ; Seixo o. Prove- zende, L. R. 1 Ch. 192, 196; Leather Cloth Co. V. American Leather Cloth Co., 11 H. L. C. 523, 538 ; and cases cited be- low. The same principles are applied to right would seem to be negative rather than positive, i. c. a right not to have goods sold as of a person's manufacture which in fact were not so. It would seem better to recur to this fundamental principle in each case. See Osgood v. Allen, 1 Holmes, 185. How far a fraud- ulent intent is necessary is not clear. When only an injunction is asked for, it would seem to be immaterial. Hendriks V. Montagu, 17 Ch. D. 638 ; Cowen v. Hul- ton, 46 L. T. 897. Comp. Guardian, &u. Assurance Co. u. Guardian, &c. Ins. Co., 50 L. J. Ch. 253. As to whether there is any distinction between law and equity as to the proof of fraud required, see Singer Mfg. Co. u. Loog, 8 App. Cas. 15, 32; 8. c. 18 Ch. D. 395; Singer Mfg. Co. V. Wilson, 3 App. Cas. 376, 391; Cheavin u. Walker, 5 Ch. D. 850, 863. The mark or name used must be such, and used in such a way, as is calculated to deceive ordinary purchasers. Singer Mfg. Co. V. Loog, 8 App. Cas. 15; Cowen ,-. Hulton, 46 L. T. 897; Robertson v. Berry & Co., 50 Md. 591; McLean u. Fleming, 96 U. S. 245 ; and cases supra. Subject to certain limitations, any words, figures, or devices may be appro- priated as a trade mark. Lawrence Mfg. Co. V. Lowell Hosiery Mills, 129 Mass. one who assumes a name in such a place and manner as to lead persons to believe that his business is that of another, and for that purpose. Lee v. Haley, L. B. 5 Ch. 155; Howard i>. Henriques, 3 Sandf. 725 ; Stone v. Carlan, 13 Law Rep. 360 ; Woodward v. Lazar, 21 Cal. 448. A colorable imitation will be restrained, the question in each case being whether there is such a resemblance as to deceive a purchaser using ordinary caution. 11 H. L. C. 535 ; Coffeen v. Brunton, 4 McL. 516; Walton K. Crowley, 3 Blatchf. 440; Hostetter u. Vowinkle, 1 Dillon, 329; Bradley v. Norton, 33 Conn. 157; Bur- 325. Comp. Mfg. Co. v. Trainer, 101 U. S. 51, in which note the dissenting opinion of Clifford, J. ; Hier v. Abrahams, 82 N. Y. 519 ; Ins. Oil Tank Co. v. Scott, 33 La. An. 946. It is not necessary that it should in itself, and apart from its use, have any peculiar signMcance. Godil- lot V. Harris, 81 N. Y. 263 ; Ins. Oil Tank Co. u. Scott, 33 La. An. 946. Comp. Marshall v. Pinkham, 52 Wis. 572. But the words must not be general words descriptive of kind, quality, or locality, since such words are likely to be practi- cally necessary to the use of other traders in describing their goods. Singer Mfg. Co. u. Larsen, 8 Biss. 151 ; Larabee & Co. V. Lewis, 67 Ga. 561 ; Dunbar v. Glenn, 42 Wis. 118. In general, a person may use his own name, though it is already in use by an- other to designate similar articles ; but even here the use must not be of such a character that it is evidently intended to deceive. Oilman v. Hunnewell, 122 Mass. 139; Carmichel v. Latimer, 11 B. I. 396; Marshall ». Pinkham, 52 Wis. 572; Shaver V. Shaver, 54 Iowa, 208. The congressional legislation referred to at end of n. 1, B, supra, has been held unconstitutional. Trade Mark Cases, 100 U. S. 82. [507] 366 OF PERSONAL PBOPERTY. [part V. inventions ; and he must particularly specify the part, improve- ment, or combination which he claims as his own invention nett V. Phalon, 3 Keyes, 594 ; Lockwood V. Bo8twick,2 Daly, 621. It is not neces- sary that the res.emblanue should be such as would deceive persons who should see the two marks placed side by side. Nor is pliysical resemblance the sole ques- tion. The adoption by a rival trader of any mark which will cause his goods to bear the same name in the market as those of another, may be a violation of the rights of the latter, although but for the prior use of the marks they would truly apply to the goods on which they are last used. Seixo v. Provezende, L. R. 1 Ch. 192; Wotherspoon v. Currie, &c., infra. See Amoskeag Manuf. Co. v. Spear, 2 Sandf. 599, 607 ; Holloway v. HoUoway, 13 Beav. 209 ; and for the limit, Burgess V. Burgess, 3 De G., McN. & G. 896 ; infra. As instances of bow far the courts have gone, it may be mentioned that the use of the word " original " has been pro- tected. Cocks V. Chandler, L. R. 11 Eq. 446. So " No. 303 " on pens. Gillott v. Esterbrook, 48 N. Y. 374; 47 Barb. 455. See Gillott v. Kettle, 3 Duer, 624. But see Amoskeag Manuf. Co. o. Spear, 2 Sandf. 599. So " patent thread," although it had never been patented, the word not being used in such a way as to deceive the public. Marshall v. Ross, L. R. 8 Eq. 651. See Stewart v. Smithson, 1 Hilton, 119. But see Leather Cloth Co. v. Lor- sont, L. R. 9 Eq. 345, 353. So " Congress water," 45 N. Y. 291, reversing ». u. 57 Barb. 526. So " Glenfield " starch, Woth- erspoon V. Currie, L. R. 5 H. L. 508. See Radde v. Norman, L. R. 14 Eq. 348 ; Hirst u. Denham, ib. 542. But terms in common use to designate a trade or occupation, or necessary to describe the object sold, cannot be exclu- sively appropriated by any one ; e. g., "Antiquarian bookstore,'' Choynski v. Cohen, 39 Cal. 501; "Desiccated Cod- fish," Town V. Stetson, 5 Abb. Pr. n: s. [508} 218 ; " Burgess's Essence of Anchovies,'' in the absence of fraud. Burgess v. Bur- gess, 2 De G., M. & G. 896. See 16 U. S. St. at L. 211, § 79. When a trade mark contains a false- hood on its face, calculated to give tie goods a reputation to which they are not entitled, it will not be protected. 11 H. L. C. 542, infra; Palmer v. Harris, 60 Penn. St. 156; Flavell u. Harrison, 10 Hare, 467 ; 19 Eng. L. & Eq. 15 ; Fetridge w. Wells, 13 How. Pr. 385; 4 Abb. Pr. 144 ; Marshall v. Ross, supra. Some of the earlier cases, such as Perry v. Truefitt, 6 Beav. 66, seemed to go further and ex- tend the principle to cases where the falsehood was contained in accompanying advertisement ; but see Curtis v. Bryan, 2 Daly, 812, 317. It is laid down in Lee V. Haley, L. R. 6 Ch. 155, 158, that if plaintiffs were knowingly carrying on a fraudulent trade, they would not be pro- tected. See Heath v. Wright, 3 Wall Jr. 141. Trade marks resemble copyright as a subject of property. They may be sold and transferred upon a sale and transfer of the manufactory of the goods on which the mark has been used to be affixed, and may be lawfully used by the purchaser. Even a trade mark consisting merely of the name of the manufacturer may be, if the purchaser, in continuing the use of it, would, according to the ordinary usages of trade, be understood as saying no more than that he was carrying on the same business as had been formerly carried on by the person whose name constituted the trade mark. But if an assignee went further, and used marks which amounted to untrue pretences, and an attempt to deceive as to the maker, or character of the article, he would not be protected. Hall V. Barrows, 10 Jur. n. s. 55; Leather Cloth Co. V. American Leather Cloth Co., 11 H. L. C. 523, 534, 542; Curtis v. Bryan, LECT. XXXVI.] OF PERSONAL PROPERTY. * 367 or discovery. (/) He must accompany * the same with * 367 drawings and written references, where the nature of the case admits of drawings or specimens of ingredients, and of the composition of matter sufficient in quantity for the purpose of experiment, where the invention or discovery is of a composition of matter. He must likewise furnish a model of his invention, in cases which admit of representation by model. The appli- cant, also, is to make oath or affirmation that he believes he is the original and first inventor or discoverer of the art, machine, com- position, or improvement for which he solicits a patent, and that he does not know or believe that the same was ever before known or used, and he must further state of what country he is a citizen. On filing the application, description, and specification, the commissioner of patents is to examine the alleged new invention or discovery, and if it appears to him that the applicant was not (/) The principle of a machine, in reference to the patent law, means the modus operandi, or that which applies, modifies, or combines mechanical powers to produce a certain result, and so far a principle, if new in its application to a useful purpose, may be patentable. Story, J., in Barrett v. Hall, 1 Mason, 470; Woodcock v. Parker, 1 Gall. 438,; Whitteniore v. Cutter, ib. 478; Earle v. Sawyer, 4 Mason, 1 ; Lowell u. Lewis, 1 Mason, 187 ; Buller, J., in Boulton v. Bull, 2 H. Bl. 486, 495 ; Smith v. Pearce, 2 McLean, 176. A new composition of known materials, or a new combination of existing machinery producing a new and useful result, may be patentable. Bovill V. Moore, Dav. Pat. Cases, 361; Story, J., in Moody u. Fiske, 2 Mason, 112; Lord Eldon, in Hill v. Thompson, 3 Meriv. 629, 630 ; Thompson, J., in Reynolds v. Sheldon, C. C. D. S. for Connecticut, September, 1838. 2 Daly, 312 ; Samuel v. Berger, 24 Barb, tion has been given to trade marks, but 163 ; Walton v. Crowley, 3 Blatclif. 440. without affecting remedies at law or in But a trade mark is not property other- equity, which might otherwise have been wise than with reference to the trade in had, by the act of Congress of July 8, which it is used. The same mark may 1870, c. 230, §§ 77-84 ; 16 U. S. St. at L. be used by another in a different trade, or 210, cited above as to patents. for a different class of goods. Ainsworth C. Trade Secrets. — One who invents . . Walmsley, L. R. 1 Eq. 518, 524. See or discovers, and keeps secret, a process the act of July 8, 1870, 16 U. S. St, at L. of manufacture, whether a proper subject 211, § 79 ; Amoskeag M. Co. v. Garner, 55 for a patent or not, will be protected by Barb. 151. A foreign manufacturer will injunction against persons who in viola- be protected, although he has not an tion of contract or duty, and in breach of establishment in the country, and does confidence, undertake to apply it to their not sell his goods here. Collins Co. w. own use, or to disclose it to third persons. Brown, 3 Kay & J. 423 ; Same v. Cowen, Morison v. Moat, 9 Hare, 241 ; 6 Eng. L. ib. 428. See Coats v. Holbrook, 2 Sandf. & Eq. 14; s. c. on appeal, 21 L. J. n. s. Ch. 586 ; Taylor v. Carpenter, ib. 603 ; 11 Ch. 248 ; Peabody v. Norfolk, 98 Mass. Paige Ch. 292 ; Same o. Same, 3 Story, 452 ; Leather Cloth Co. <-. Lorsont, L. B, 458; 2 Woodb. & M. 1. Further protec- 9 Eq. 345, 354. [ 509 ] *867 OF PEESONAL PROPERTY. [PART V. the original and first inventor or discoverer thereof; or that any part of what he claims as such had before been invented or dis- covered, or patented, or described in any printed publication in this or any foreign country ; or that the description is defective and insufficient, he is to notify the same to the applicant, so as to enable him to remove the objections, if he be able. But if the same does not so appear to the secretary, and it had not been j)reviously in public use, or on sale with the applicant's con- sent, and he shall deem the same to be sufficiently useful and important, he is then to issue a patent, in the name of the United States, to the applicant, his heirs, executors, administrators, or assigns, for the exclusive right of making, using, and vending the same for a term not exceeding fourteen years. The patent may, in special cases, and in the discretion of the board of commissioners, be renewed and extended to the further term of seven years. If the application be rejected, and the applicant persists in his claims, he is to make his oath or affirmation anew ; and if the specification and claim be not so modified as to remove the objection, the applicant may appeal to a board of three examiners, to be appointed by the secretary of state, 'and the commissioner of patents is to be governed by their decision. If the applicant be a citizen, or an alien of one year's residence, he is to pay to the treasury of the United States $30 ; and if a British subject, $500 ; and all other applicants, $300. The original and true inventor is not to be deprived of the right to a patent for his invention, by reason of his having previously taken out letters patent therefor in a foreign country, and the same having been published at any time within six months next pre- ceding the filing of his specification and drawing, (a) The executors and administrators of persons dying before a patent is (a) By act of Congress of Marcli 3, 1839, c. 88, sec. 6, tin's restriction was re- moved, and it was declared that no person is to be debarred from receiving a patent for any invention or discovery, by reason that the same was patented in a foreign country more than six months before, if the same has not been introduced into pub- lic and common use in the United States prior to the application. By the act of Con- gress of August 29, 1842, e 263, any citizen, or alien of one year's residence in the United States, and who has taken the oath of his Intention to become a citizen, and having invented or produced any new and original design for a manufacture, &c., may apply for a patent ; and, if granted, the duration of the patent is to be for seven years, and the fee in such cases shall be reduced one half of the sum hereto- fore required. A penalty of not less than §100 given for each infringement of the patent right. [510] LECT. XXXVI.] OP PERSONAL PROPERTY. * 367 taken out may apply and take it out in trust for the heirs or devisees, on due compliance with the terms of the statute. Patents are assignable, and may be granted in whole or in part by writing, to be recorded in the patent office. If invalid by reason of defective specifications, or by claiming too much, the patent may be surrendered, and a new patent taken out for the unexpired period, provided the error did not arise from any fraudulent intention. If the patentee be an alien, he forfeits his exclusive right, if he fails, for eighteen months from the date of the patent, to continue on sale to the public, on reasonable terms, the invention or discovery covered by the patent. The patentee does not lose his patent if it satisfactorily appear to the court that at the time of his application he believed himself to be the first inventor or discoverer of the thing patented, though the in- vention or discovery, or any part thereof, had been before known or used in a foreign country ; provided it does not appear that the same, or any substantial part thereof, had before been patented or described in any printed publication. (J) These are the principal existing statute provisions on the sub- ject, and though the act of Congress of 1836 has made considera- ble alterations in the preexisting laws, respecting the organization of the patent office, and the limitations on the granting of pat- ents, yet the essential and established doctrines concerning patents, heretofore declared in the decisions of the courts, remain unaffected. The act of 1793 declared, that simply changing the form or the proportions of any machine or composition of matter in any degree was not a discovery. And also, that the person who had discovered an impi-ovement in the principle of any machine, or in the process of any composition of matter, might obtain a patent for such improvement, but that he could not thereby make, use, or vend the original discovery, nor could the first inventor use the improvement. These declaratory provisions are omitted in the law of 1836, and I presume the construction was considered to be necessarily the same without the pro- vision, (c) (6) Act of Congress, July 4, 1836, c. 357. (c) Tlie ant of Congress of July 4, 1836, authorized the extension of a patent for seven years, on the application of the executor or administrator of the deceased patentee ; and such extension, according to the decision in the case of Wilson v. Rous- seau, 4 How. 646, inures to the benefit of the administrator, &c.,as such, and Is good, though the original patentee had in his lifetime disposed of all his interest in the [511] * 368 OP PERSONAL PROPERTY. [PAET V. In an age distinguished for an active and ardent spirit of im- provement in the arts of agriculture and manufactures, * 368 and in the machinery of every kind applied * to their use, the doctrine of patent rights has attracted much discus- sion, and become a subject of deep interest, both here and in Europe, (a) The circuit courts of the United States have original jurisdic- tion over the question of damages for the infringement of patent rights, and exclusive authority^ to declare a patent void, (ft) It patent, inasmuch as such sales do not carry anything beyond the term of the original patent. But it is held that the assignees, who weTe in use of the patent at the time of the renewal, have still a right to use it during the new term, though not to sell it. This subject is full of difficulty, and the confidence in the decision is much impaired by the conflicting discussions and decisions on the bench, some of the judges contending that unless the assignment gave to the assignee the right in the extended or renewed patent, hip interest would expire with the limitation of the original patent. It is held, in Woodworth v. Sherman, 3 Story, 171, that the assignee or grantee under the orig- inal patent does not acquire any right under the extended patent, unless such right be expressly conveyed to him by the patentee. But the extension of a patent may be granted to an administrator. Washburn v. Gould, ib. 122. An assignee of a patent right takes only such rights as the inventor had, and if the inventor be an alien, and not within the specified qualifications required of an alien, his assignee takes no title. Tatham v. Loving, C. C. Massachusetts District, May Term, 1845. (a) Patents are no doubt procured in many cases for frivolous and useless altera- tions in articles, implements, and machines in common use, under (he name of improve- ments ; and the abuses arising from the facility in suing out patents and provoking litigation were painted in glowing colors by the district judge at New York, in Tlinmpson ;■. Haiglit (U. S. Law Journal, i. 563), and yet the collection of models and machines in the patent office, relating to every possible subject, constitutes a singu- larly curious museum of the arts, and one strongly illustrative of the inventive and enterprising genius of our countrymen. The act of Congress of July 4, 1836, c. 357, sec. 20, gave authority and facility to the classification and arrangement in rooms and galleries, for a beneficial and favorable display of the unpatented models and specimens of compositions, and of fabrics and other manufactures and works of art, and machines and implements relating to agriculture deposited in the office. On the morning of the 15th of December, 1836, the building at the city of Wash- ington, containing the general post office, the city post office, and the patent office, was destroyed by fire, and all the machines and other materials and matter in the patent office were consumed. The loss of the patent office and all its contents was a national calamity ; and to repair it as far as possible, the act of 8d March, 1837, c. 45, provided for the recording anew of patents and assignments of patents recorded prior to the 15th December, 1836, and for issuing new patents for those destroyed. Duplicates of the most interesting models destroyed were to be procured by the officers of the patent office, at an expense not exceeding $100,000. (ft) Act of Congress of July 4, 1836. See the former acts of Congress of 21st February, 1703, c. 11, sec. 6, 10; 17tli April, 1800, c. 25, sec. 3; 15th February, 1819, c. 10; Parsons ?■. Barnard, 7 Johns. 144 ; siipro, i. .303 ; [Dudley a. Maybe w, 3 Comst. 9; Parkhurst v. Kinsman, 2 Halst. Ch. 600; Kempton v. Bray, 99 Mass. 350; and [512] LECT. XXXVI.J OP PERSONAL PROPERTY. * 369 has been adjudged in the federal courts that the first inventor who has reduced his invention first to practice, and put it to some real and beneficial use, however limited in extent, is entitled to a priority of the patent right ; and a subsequent inventor cannot sustain his claim, although he be an original inventor, and has obtained the first patent. The law, in such case, cannot give the whole patent right to each inventor, even if each be equally entitled to the merit of being an original and independent inventor ; and it therefore adopts the maxim, qui prior est in tem- pore, potior est in jure. If the patentee be not the first or original inventor, in reference to all the world, he is not entitled to a patent, even though he had no knowledge of the pre- vious use or previous description of the * invention, in any * 369 printed publication, for the law presumes he may have known it. (a) If the first inventor has suffered his invention to go into public use, or to be publicly sold for use, before taking out a patent, the better opinion and the weight of authority is, that he cannot afterwards resume the invention, and hold the patent. This voluntary act or acquiescence in the public sale or use is an abandonment of his right, for it creates a disabilitj' to comply with the terms and conditions 'of the patent law. It would be unreasonable and injurious for a person to be permitted to lie by, and suffer his invention or improvement to go into use, additional eases next cited.] But in Burrall v. Jewett, 2 Paige, 134, the Court of Chan- cery in New York sustained jurisdiction in the case of a patent, by investigating the merits of a patent claim, and by ordering a contract in relation to the sale of a patent right to be rescinded, as being founded in mistake. It was considered, in the last case, that the jurisdiction of the circuit courts of the United States, in respect to patents, under the act of Congress, 15th February, 1819, was not exclusive, except to the extent mentioned in the text. But since the act of Congress of July, 1836, it has been held, in the New York Court of Chancery, that the courts of the United States have exclusive cognizance of suits in equity, relative to interfering patents. In cases where the court may declare a patent void in whole or in part. Gibson v. Wood- worth, 8 Paige, 132. But where the validity of patent rights comes in collaterally, they are necessarily the subject of inquiry in the state courts. Rich v. Atwater, 16 Conn. 409; [Slemmer's Appeal, 58 Penn. St. 155; Nash u. Lull, 102 Mass. 60, 64; David V. Park, 103 Mass. 501 ; Sherman v. Champlain T. Co., 31 Vt. 162 ; Middle- brook V. Broadbent, 47 N. Y. 443 ; Page v. Dickerson, 28 VPis. 694. But see Elmer . 682 ; Metzler v. Wood, 8 Cli. D. 606 ; Robertson v. Berry & Co., 50 Md. 591. See Weldon v. Dicks, 10 Ch. D. 247, explained in Dicks v. Yates, supra. So the right of an author to his unpublished manuscript is protected in- dependently of statute, so long as it is not published. French v. Maguire, 55 How. Pr. 471; Rees v. Peltzer, 75 111. 475. 2. Copyright. — (a) Statute. — Sec. 97, supra, has been slightly amended by Stat. June 18, 1874 (18 St. at L. 78), and Stat. Aug. 1, 1882 (22 St. at L. 181). The acts against which the copyright laws protect are: (o) Publication of un- authorized editions, or introduction and sale of foreign reprints, t. e. literary piracy, {h) Unlawful appropriation of the fruits of a previous author's literary labor, i. e. Uterarij larceny. James, L. J., in Dicks v. Yates, 18 Ch. D. 76, 90. virho shall be the author, inventor, de- signer, or proprietor of any of the things mentioned in the text, any dramatic composition, photograph or negative thereof, or of a painting, drawing, chromo, statue, statuary, and of models or designs Intended to be perfected as works of the fine arts, and his executors, administra- tors, or assigns, shall, upon complying with In order that there may be copyright in a title to a work, the title itself must be original, either in matter or in combina- tion. Dicks V. Yates, 18 Ch. D. 76. See Osgood i/. Allen, 1 Holmes, 185. (6) Infringement. — A dramatization of an existing novel is not an infringement of the copyright of the novel or of a dif- ferent dramatization of the same novel. Toole V. Young, 9 L. R. Q. B. 523. A person may use previous works, maps, &c., as guides and helps, providing he bestows such labor on the materials gained as to produce an original result. Silas Farmer v. The Calvert, &c. Co., 1 Flip. 228. (e) Co-owners. — In Powell v. Head, 12 Ch. D. 686, a case of dramatic copyright, it was held by Jessel, M. R., that one part owner of a copyright had no power to grant a license to represent the play without the consent of the others, and that one representing it under such license was liable to the penalty provided by St. 3 Will. IV. 0. 15. But in Carter v. Bailey, 64 Me. 458, it was held that co-owners of a copyright are under no obligation to account inter se for their use of the right. Compare cases on co-ownership in patents^ ante, 366, ii. y, (d). [521] 373 OP PERSONAL PROPERTY. [part V. inventors and designers of prints, cuts, and engravings, being citizens of the United States, or residents therein, (S) are entitled (6) A bill was introduced into the Senate of the United States, in February, 1837, by Mr. Clay, extending the privilege of the act to tlie non-resident subjects of Great Britain and France in respect to future publications. It was stated that as American authors could be protected abroad in their productions, under the copyright laws of those two kingdoms, such an extension of the privilege was called for on a principle of reciprocity as well as ot" justice. . The bill, we regret to say, did not pass into a law. Mr. Lieber, in a letter to Mr. Preston on international copyright (1840), has urged the justice ot such a law with ^is usual ability and force. In Bentley v. Foster, 10 Sim. 329, the vice-chancellor of England held, that an alien, resident abroad, who composes a work abroad and publishes it first in England, was entitled to the protection of copyright. By the statute of 7 & 8 Vict. t. 69, the queen in council may grant a copyright in any book, print, or works of art, which at the time of such order shall he first published in any foreign country, to the authors, &c., and their representatives and assigns, for a term not exceeding that of the author's copy- right therein in England. The earliest instance of a protected copyright for printing books was granted by the senate of Venice in 1469 ; and as early as 1486, a censorship of the press, or restraint on the sale of printed books, was introduced in Germany. Hallam's Intro- duction to the Literature of Europe, i. 344, 348. the provisions of the act, have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same ; and, in the case of a dramatic composition, of publicly per- forming or representing it, or causing it to be performed or represented by others ; and authors may reserve the right to dramatize or to translate their own works. The provisions as to the original term of twenty-eight years, and the extension for fourteen, are continued in §§ 87, 88 ; that as to assignment, post, 383, ii. [c], in § 89. No person is entitled to a copyright unless he shall, before publication, deposit in the mail a printed copy of the title of the book or other article, or a description of the painting, &c., addressed to the librarian of Congress, before publication, and, with- in ten days from publication, deposit in the mail two copies of the book, &o., or a photograph of the painting, &c., addressed in like manner. §§ 90, 93-96 ; Struve v. Schwedler, 4 Blatchf. 23. By § 97, the notice of copyright to be printed on the book, &c., is, " Entered according to act of Congress, in the year , by A. B., [522] in the office of the Librarian of Congress, at Washington." § 98 punishes the in- sertion of such a notice contrary to the truth ; and infringements are punished by §§ 99-101. Tlie provision mentioned on p. 380, as to infringement of MSS., is found in § 102; and the exclusion of foreign works from the operation of the act (373) is in § 103. By § 106 all actions, &c., in equity or at law, whether civil or penal, arising under the copyright laws of the United States, are originally cognizable in the circuit courts, &c., and § 107 gives a writ of error or appeal to the Su- preme Court without regard to the sum or value in controversy. (6) Who may obtain, — In Jefferys leiiunci- ation and imprisonment of the deputies of the Gironde party, and the whole nation was preparing to rise in a mass to expel the invaders. It the production of such a law, at such a crisis, be not resolvable into mere vanity and affectation, then, indeed, we may well say, with Mr. Hume, so inconsistent is human nature with itself, and so easy do gentle, pacific, and generous sentiments ally both with the most heroic cour- iige and the fiercest barbarity ! There is a disposition in France to enlarge still further the term of an author's propertj' in his works ; and the commissioners appointed by the king to frame a new law on the subject, reported, in the summer of 1826, the draft of a law, in which they proposed to give to authors and artists of works of all kinds, property in their works for life, and to their legal representatives for fifty years from their deaths ; and copyright in a work to be protected from piracy by representation, as well as piracy by publication. But it is understood that the French copyright still rests upon the provisions of 1810, and that the proposed modifications of 1826 did not pass into a law. In Prussia, by an ordinance of the king, in June, 1837, copyright endures for tlie life of the author, and to his heirs for thirty years after his death. The rapid and piratical reprint in Belgium of French books, as soon as they are out, and the consequent diffusion of them all over France, ruins the value of copyright in France. There is the same evil as respects French Switzerland. Copyright has a fair claim to international protection. In Germany, copyright is perpetual ; but it cannot be of much value, for there is no one uniform Germanic legislation on the subject to protect copyright among so many independent states, using a common language. It is said, however, that there is a reciprocal security of copyright by treaty between Prussia and Austria ; and by the act of union of the Germanic confederacy of 1815, the diet was directed to make uniform decrees for the protection of copyright. By the Prussian ordinance of June, 18.37, the copyright law of that kingdom applies generally to works published in foreign states, provided the copy- right law of such state applies to and protects works published in the Prussian dominions. So, also, the English statute of 1 & 2 Victoria, c. 59, secures to authors, in certain cases, the international copyright, by allowing the queen in coun- cil to grant to authors of books, which shall thereafter be, published in any foreign country to be specified in the order, the privilege of copyright in the British domin- ions, for a term not exceeding that granted to British authors, upon entry and deposit of the work with the warehouse keeper of the company of stationers in London. The grant to be upon the condition that British authors have the like pro- tection in the foreign country. The case of Germany shows how important it was in this country, that the law of copyright should rest on the broad basis of federal jurisdiction. By the law in Russia, as established in 1828, copyright in books and translations is secured to an author for life, and to his heirs, after his death, for twenty-five years, and no such right can be sold for debt. In May, 1840, a treaty was entered into by the Sardinian and Austrian Lombardy governments, providing for the security of literary property within their respective dominions; and the King of the Two Sicilies, the Grand Duke of Tuscany, and the Dukes of Lucca and Modena, have acceded to the treaty. This is justly deemed a very auspicious event in the history of copyright. The copyright, or right of property in works of science, VOL, 11.-34 [629] * 379 OF PERSONAL PROPERTY. [PAET V. recur for instruction to principles settled by the English deci- sions under the statute of Anne, and which ai'e, no doubt, essentially applicable to the rights of authors under the act of Congress. It was decided, in Coleman v. Wathen, (a) that the acting of a dramatic composition on the stage was not a publication within the statute. The plaintiff had purchased from O'Keefe the copy- right of an entertainment called the Agreeable Surprise, and the defendant represented tliis piece upon the stage. The mere act of repeating such a performance from memory was held to be no publication. On the other hand, to take down from the mouths of the actors the words of a dramatic composition, which the author had occasionally suffered to be acted, but never printed or published, and to publish it from the notes so taken down, was deemed a breach of right ; and the publication of the copy so taken down (being the farce entitled Love a la Mode) was re- strained by injunction. (6) Since the case above mentioned, * 379 injunctions have been granted in chancery even * against the acting of a dramatic work, without the consent of the proprietor ; (a) and the narrow and unreasonable construction given to the claims of an author by the K. B. seems to have been very properly enlarged by the Court of Chancery. But as the lord chancellor, as late as 1822, took the opinion of tlie court of K. B., whether an action would lie for publicly acting, and representing for profit, a tragedy altered for the stage, without the consent of the owner of the copyright, and as that opinion was against the action, it is probable that the rule in chancery will conform to that at law. (6) In England, there may be relief granted against the piratical publication, for profit, of lectures delivered orally, literature, and art, including pictures, statues, drawings, copperplates, and litho- graphs, appearing within their respective Italian states, is secured to the author and his assigns for liis life, and for thirty years after his death. If published after his death, it is protected for forty years from the time of publication. Every article of an encyclopedia or periodical work, exceeding three printed sheets, is to be held a separate work, and all allowable extracts are to be confined to three printed pages of the original. In Holland and Belgium, the author is protected in his copyright during his life, and to his legal representatives during twenty years after his death. (a) 5 T. R. 245. (6) Macklin v. Richards'on, Amb. 694. (a) Morris v. Harris and Morris v. Kelly, cited in Eden on Injunc. 198. (i) Murray v. EUiston, 5 B. & Aid. 657. [530] LECT. XXXVI.] OP PERSONAL PROPERTY. * 380' and taken down in short-hand by the pupils, (c) But relief for such an injury does not seem to come within any of the provisions of the act of Congress on the subject of copyrights ; and if it can be afforded at all, it must be upon the principles of the common law, under the state jurisdictions, (c?) If an author iirst publishes abroad, and does not use due dili- gence to publish in England, and another fairly publishes his work in England, it is held that he cannot* sue for a breach of copyright. Whether the act of printing and publishing abroad makes the work puhlid juris, is not decided. It becomes so if the author does not promptly print and publish in England ; and the statute of Anne had a reference to publications in England, and it was them only that it intended to protect, (e) An injunction to restrain the publication of unpublished * manuscripts has been frequently granted in England ; (a) * 380 and on the ground that the author had a property in an unpublished work independent of the statute. (S) ^ Literary property is the ownership to which an author is entitled in the (c) Abernethy v. Hutchison, reported in Maugham on Literary Property, 147- 154. The statute of 6 & 6 Wm. IV. c. 65, has since secured to tyral lecturers the sole liberty of printing and publishing their own compositions. (d) In Clayton v. Stone, decided in the Circuit Court of the United States, at New York, December, 1S28, it was held that a price current, published in a semi- weekly newspaper, was not a hook, within the adt of Congress, because not a work of science or learning, but of mere industry. (c) Clementi v. Walker, 2 B. & C. 861. In the case of Chappell v. Purday, 1845, 14 M. & W. 319, the Lord Ch. Baron, upon a review of the English authorities, declared the result to be, that if a foreign author, not liaving published abroad, first publishes in England, he may have the benefit of English statutes of 21 James I. and 54 Geo. III. ; but that no case had decided that if the author first published abroad, he can afterwards have the benefit of them by publishing in England. The decision in the ease was, that a foreign author residing abroad, or the assignee of a foreign author, who composes and publishes his work abroad, had not at common law, nor under the English statutes above mentioned, any copyright in England. The British statutes, said Ch. B. Pollock, meant only to protect British subjects, and to foster and encourage British industry and talent. (a) Eden on Injunctions, [275.] (6) Duke of Queensberry v. Shebbeare, 2 Eden, 329; Southey v. Sherwood, 2 Meriv. 435 ; Macklin v. Richardson, Amb. 694 ; White v. Gerooh, 2 B. & Aid. 298. ^ Jefferys v. Boosey, 4 H. L. C. 815, n. 1, and even of their assignees. As to 919 ; Bartlett v. Crittenden, 5 MeL. 32. pictures, see Turner v. Robinson, 10 Ir. This principle has been pushed a great Ch. 121 ; ib. 510 ; Parton v. Prang, 7 Am. way in favor of foreign playwrights who Law Rev. 357. have not acquired a copyright, ante, 373, [581] * 380 OP PERSONAL PROPEETY. fPART V. original manuscript of hia literaiy work ; and the identity of the work consists in the sentiment and language, (c) It is clearly the author's exclusive right, inasmuch as it is created by his own labor and invention ; and the reason and moral sense of mankind acquiesce in the solidity of the title. The act of Congress says that no person shall be entitled to the benefit of the act unless he shall, before publication, record the book in the clerk's office of the District Coutt, by depositing a printed copy of the title with the clerk ; but there is another section of the act which declares, that if any person should print or publish any manu- script, without the consent of the author or proprietor (he being a citizen or resident of the United States), he shall be responsible in damages by a special action on the case. The courts of the United States are authorized to grant injunctions to protect the violation of the rights of authors and inventors, and to protect manuscripts from piratical publication, {d) No length of time will authorize the publication of an author's original manuscript without his consent. In England, the publication of private letters, forming a literary composition, has been restrained, on the ground of a joint property existing in the writer, as well as in the person to whom the letters were addressed. The letters of Pope, Swift, and others, and the letters of Lord Chesterfield, were prevented from a surreptitious and unauthorized publication by the process of injunction. Lord Ch. Hardwicke declared that the receiver of a private letter only acquires a qualified interest in it. The paper on which it is written may belong to him, but the composition does not; and he cannot publish it with- out the consent of the writer, (e) In the case of Perceval v. (c) The identity of a literary composition, says Sir Wm. Blackstone, consists entirely in the sentiment and the language. The same conceptions, clothed in the same words, must necessarily be the same composition. 2 Bl. Comm. 406. The copyriglit applies to the peculiar expression of ideas which the author has used, and a work may be the subject of copyright, although the materials which compose It may be found in the works of other authors antecedently printed, provided the plan, tlie arrangement, and the combination of those materials be original, and which must necessarily be the result of intellectual exertion and skill. It is of no conse- quence whether the invasion of the copyright be a simple reprint, or by incorporating the whole, or a large portion thereof, in some larger work. The form in which the piracy is effected is not material. Gray v. Russell, 1 Story, 11 ; Emerson u. Davies, 3 Story, 768. An equitable right to a copyright is equally within the protection of the law. Shadwell, Vice-Chancellor, in Bohn i'. Bogue, February, 1846. (d) Act of Congress, February 3, 1831, sec. 9. (e) Pope u. Curl, 2 Atk. 342 ; Thompson v. Stanhope, Amb. 737. In 1804, the [532] LECT. XXXVI.] OP PERSONAL PROPEETY. * 381 * Phipps, (a) the vice-chancellor held that private letters, * 381 having the character of literary composition, were within the spirit of the act protecting literary property ; and that by sending a letter, the writer did not give the receiver the right to publish it. But the court would not interfere to restrain the publication of commercial or friendly letters, except under cir- cumstances. (J) ^ The publication or production of business letters might often be necessary in one's own defence. If the publication of private letters would be a breach of trust, the publication has been, and may be, restrained, (c) It is easj' to perceive the delicacy and importance of this branch of equity jurisdiction relative to the publication of manuscripts and private correspondence. The publication of private letters ought to be restrained, when it would be a breach of confidence and trust, as letters of courtship ; or when injurious to the character and happiness of others. On the other hand, the courts will not lend their protection to works which are evidently injurious to the Court ol Sessions in Scotland interdicted, at the instance of the children, the publi- cation of the manuscript letters of the poet Burns. Cadell & Davis v. Stewart, cited in 1 Bell's Coniin. 116, n. (o) 2 Yes. & B. 19. (b) In Wetmore v. Scovell, 3 Edw. Ch. 515, the vice-chancellor refused to exer- cise the power to prevent the publication of private letters ot business, when limy possessed no attribute of literary composition, (c) Perceval u. Phipps, 2 Ves. & B. 27 , Earl of Granard v. Dunkin, 1 Ball & B. 207; Gee i. Pritchard, 2 Swanst. 418. Mr Justice Story asserts strongly the pro- priety of the jurisdiction, by injunction, to restrain the publication of private letters, though not strictly literary compositions, except when called for in the administration of public justice. Coram, on Eq. Jurisprudence, ii. [§§ 944-949 ;| Denis v. Leclerc, 1 Martin (La.), 297. This doctrine is sound and just, that a court of equity ought to Interpose where a letter from its very nature, as in the cases of matters of business, or friendship, or advice, or family or private confidence, imports the implied or necessary intention and dutij of privacy and secrecy, or where the publication would be a violation of trust or confidence, founded in contract or implied from circum- stances; or when made for the purpose of indulging a gross and diseased public curiosity by the circulation of private anecdotes, or family secrets, or personal con- cerns. Story, ubt supra, §§ 947, 948, 949. ' As to letters, the case of Hoyt ». having no value as literary productions McKenzie, 3 Barb. Ch. 320, which denied was restrained in Woolleyu. Judd, 4 Duer, the protection of equity to letters having 379. A curious case, holding the prop- no value for purposes of publication, as erty in letter to be in the receiver, sub- not amounting to literary property, and ject to the writer's right to restrain the other opinions to the same effect publication, is Grigsby v. Breckenridge, mentioned in the text, were said not to 2 Bnsh (Ky.), 480. Compare Eyre v. be law, and the publication of letters Higbee, 35 Barb. 502. [533] *382 OP PERSONAL PROPERTY. [PART T. public morals or peace, or are an ofEence against decency, or are libels upon individuals. (. The Northern Lib- erties, 3 Watts & S. 107 ; Rogers, J., in Merrick Estate, 5 Watts & S. 17 ; Rogers v. Moore, 1 Rice (S. C), 60 ; and Carlisle v. Burley, 3 Greenl. 250, [White v. Philbrick, 6 Greenl. 147,] that a recovery of the value of a chattel by judgment devests the plaintiff of his title, and transfers it to the defendant, though the judgment be not satisfied, and bRrs him from asserting his title in any other action. In the Am. Law Mag. for April, 1844, there is an able discussion of the authorities and of the legal principles applicable to the question of the " transfer of personal property by judg- ment;" and in King v. Hoare, 13 M. & W. 494, it was adjudged, after a full discus- sion, that a judgment against one of two joint debtors is a bar against the other. It is otherwise where the debt is joint and several. The right given by the judgment without satisfaction merges the inferior remedy by action for the same debt, and the same result follows in tort. The same principle of law was declared in Ward v. Johnson, 13 Mass. 148 ; Smith v. Black, 9 Serg. & R. 142 ; and Robertson v. Smith, 18 Johns. 459. If one defendant in a joint contract and action can plead a sufficient bar as it respects himself, it will avail the other defendant; whereas, in the case of a joint and several contract, an unsatisfied judgment against one of the debtors is no bar to a subsequent action against the other. The case in the Supreme Court of the United States, in Sheehy v. Mandeville, 6 Cranch, 258, may be considered as having been completely overruled by our American authorities, long before the same decision against it was made in the English Court of E.xchequer. See Trafton v. United States, 8 Story, 646, for confirmation of the case of King v. Hoare. (6) Insolvency means the condition of a person unable to pay his debts as they [543] *390 OP PERSONAL PROPERTY. [PART V. (1.) Of Bankrupt and Insolvent Laws. — The Constitution of the United States gave to Congress the power to establish uniform laws on the subject of bankruptcies throughout the United States. Bankruptcy in the English law has, by long and settled usage, received an appropriate meaning, and has been considered to be applicable only to unfortunate traders, or persons who get their livelihood by buying and selling for gain, and who do certain acts which afford evidence of an intention to avoid payment of their debts, (c) * 390 * The general principle that pervades the English bank- rupt system is equality among creditors who have not previ- ously and duly procured some legal lien upon the estate of the bankrupt ; and in order to attain and preserve that equality, the bankrupt's estate, as soon as an act of bankruptcy is committed, becomes a common fund for the payment of his debts, and he loses the character and power of a proprietor over it. (as) He can fall due, or in the usual course of trade and business. Deeds of composition with creditors frequently avoid the necessity of a resort to discharges under bankrupt and insolvent laws. By these contracts, the creditors agree to accept a composition for their debts, on a part of the whole, and discharge the debtor. They have been termed private bankruptcies, without the advantages attending a regular commis- sion ; but if they are made fairly, and in good faith, and strictlj- conducted, they are valid in equity and beneficial to all parties. See the case of Ex parte Vere, and note ; ib. 19 Ves. 93. A creditor who does not agree with other creditors to a composition is not bound; but if he does consent, an agreement in derogation of the composition is fraudulent in respect to the other creditors, and void. The composition binds him to good faith. Greenwood v. Lidbetter, 12 Price (Exch.), 183; Acker v. Phoenix, 4 Paige, 305 ; Jackman v. Mitchell, 13 Ves. 581 ; Ex parte Sadler & Jackson, 15 id. 52 ; Leicester v. Rose, 4 East, 372 ; Browne v. Stackpole, 9 N. H, 478. See a collection of all the modern cases on the subject, Petersdorff's Abr. vi. tit. Comp. with Creditors, and to the notes added to the case of Cumber v. Wane, 1 Str. 426, in Smith's Selec- tion of Leading Cases, in the Law Library, n. s. xxvii. (c) 2 Bl. Comm. 285, 471. The Bankrupt Act of 6 Geo. IV. enlarged the descrip- tion of persons subject to the bankrupt laws, and extended it to persons following the vocation of " victuallers, keepers of inns, taverns, hotels, or coffee-houses.'' A bankrupt means a broken up and ruined trader, according to the original signification of the term ; a person whose table or counter of business is broken up, bancus ruptus. Story, J., in Everett !'. Stone, 3 Story, 453, (a) The English law carries the lien of the assignees of the bankrupt back to the time of the act of bankruptcy committed, so that the sheriff, who on ^. /a. seizes and sells the goods of the bankrupt before the commission issued, but after tlie act of bankruptcy committed, and without notice of the act of bankruptcy, becomes liable in trover to the assignees, inasmuch as the assignment has relation back to the act of bankruptcy, and vests the title to the property in the assignees from that time. Cooper V. Chitty, 1 Burr. 36 ; Balme v. Hutton, 1 Cromp. ft, M. 262 ; s. c. 9 Bing. 471. ' This last decision was made in the Exchequer Chamber, after a very able and learned [544 J LECT. XXXVII.] OP PERSONAL PROPERTY. * 390 no longer give any preferences among his creditors, and the race of diligence between them to gain advantages is wholly inter- rupted ; and if the bankrupt acts fairly and candidly, he will ultimately be relieved from imprisonment, and even from the obligation of his debts. In this respect there is a marked differ- ence in general between the bankrupt and insolvent laws, for while the bankrupt may be discharged from his debts, the insolvent debtor is usuall}'- only discharged from imprisonment. But the line of partition between bankrupt and insolvent laws is not so distinctly marked as to enable any person to say, with posi- tive precision, what belongs exclusively to the one and not to the other class of laws. It is difficult to discriminate with accuracy between bankrupt and insolvent laws; and therefore a bankrupt law may contain those regulations which are generally found in insolvent laws, and an insolvent law may contain those which are common to a bankrupt law. (6) The legislature of the Union possesses the power of enacting bankrupt laws ; and those of the states the power of enacting insolvent laws ; and a state has likewise authority to pass a bankrupt law. (c) But no state bank- rupt or insolvent law can be permitted to impair the obligation of contracts ; and there must likewise be no act of Congress in ex- istence on the subject, conflicting with such law. (c?) There is discussion, and the rule was considered as settled, as it had been uniformly recog- nized and acted upon ever since the decision under Lord Mansfield. (6) Marshall, C. J., in Sturges v. Crowninshield, 4 Wheaton, 195. (c) Insolvent laws, quite coextensive with the English bankrupt system in their operations and objects, have not been unfrequent in our colonial and state legisla- tion, and no distinction was ever attempted to be made in the same, between bank- ruptcies and insolvencies. Story's Comm. on Const. U. S. iii. [§ 1106.] {d) Sturges v. Crowninshield, 4 Wheaton, 122. See also Gibbons c. Ogden, 9 id. 197, 227, 2.3-5, 2.38 ; Houston v. Moore, 5 id. 34, 49, 52, 54. These cases have settled the doctrine that the power in Congress to pass bankrupt laws is not exclusive, but the same power may be exercised by the states respectively, under the restrictions which are mentioned in the text. Judge Story says that Judge Washington main- tained at all times an opposite opinion in favor of the power being exclusive In Con- gress ; and he says tliat his opinion was known to have been adopted by at least one other of the judges. Story's Comm. on the Const, i. 428, note. Since the passage of the Bankrupt Act of the United States, in 1841, it has been decided that a state insolvent act may exist in full vigor so far as it does not impede the operation of the bankrupt law. They do not come in conflict until the bankrupt law attaches upon the person and property of the bankrupt, and that is not until it is judicially ascer- tained that the petitioner is a person entitled to the benefits of the act, by being declared a bankrupt by a decree of the court. Ex parte Ziegenfuss, 2 Ired. (N. C.) 463. This case has been overruled, and I think very justly, in Griswold u. Pratt, 9 Met. 16, where it was adjudged, that while a bankrupt law of the U. S. is in force, VOL. II. -35 [545] *391 OF PERSONAL PROPERTY. [part V. this further Hmitation, also, on the power of the separate states to pass bankrupt or insolvent laws, that they cannot, in the exercise of that power, act upon the rights of citizens of other * 391 states, (e) At present, there is not any bankrupt * system in existence under the government of the United States, and the several states are left free to institute their own bankrupt systems, subject to the limitations which have been mentioned, (a) ^ it destroys the validity of the operation of a state insolvent law, even though no pro- ceedings be liad under it at tlie time. The one system supersedes the other, for they would, in their proceedings, be repugnant to each other. (e) Ogden v. Saunders, 12 Wheaton, 213. (a) Congress passed an act, April 4, 1800, establishing a uniform system of bank- ruptcy throughout the United States. The act was limited to five years, and from • Bankrupt Act. — The United States Bankrupt Act of 1867 a;i allows any per- son residing within the jurisdiction of the United States, and owing provable debts amounting to more than three hundred dollars, to file a voluntary petition. § 11. And the word " person " includes corpora- tions, § 48 ; aliens, In re Goodf ellow, 3 B. R. 114 ; and married women. In re O'Brien, B. R. Sup. 38. It is further provided that any such person who shall commit certain specified acts of bankruptcy, shall be adjudged a bankrupt on the petition of creditors the aggregate of whose provable debts amount to at least two hundred and fifty dollars. § 39. The assignee takes all the bankrupt's property, real and per- sonal, including property conveyed in fraud of creditors, rights in equity, choses in action, patents, patent rights and copy- rights, debts and liens and securities there- for, rights of action for property or injury to property or arising out of contract, rights of redemption, &c., but subject to considerable exemptions of necessary fur- niture, clothing, &c. § 14. All debts due from the bankrupt at tlie time of the adjudication of bankruptcy, and payable then or thereafter, may be proved against his estate, in the latter case with a rebate of interest. So may demands for goods or chattels wrongfully taken or withheld. So may a claim against him as drawer, indorser, surety, bail, or guarantor upon any bill, bond, note, or any other specialty or contract, or for any debt of another person, may be proved at any time, when his liability becomes fixed, before the final dividend is declared. So contingent debts may be claimed, with a right to share in the dividends if the contingency happens before final dividend, or their present value may be liquidated and proved for. Sureties of the bankrupt, and the like, who have paid any part of the debt, may prove ; or if they remain liable, and the creditor does not prove, may prove in his name or otherwise. Rent is apportioned and may be proved for up to the time of bankruptcy. So, finally, may unliqui- dated damages ex contractu or on account of any goods or chattels wrongfully taken, converted, or witliheld. § 19. § 20 pro- vides for set-offs, and that secured cred- itors shall only prove for the excess of their claim over the security, unless they release their security to the assignee. The bankrupt is subject to examination at all times. § 26. In tlie distribution of assets the following claims are to be first paid in full in the following order : 1. Expenses of the proceedings for the custody of the x^ The act was repealed, except as to pending cases, by statute June 7, 1878, 20 St. at L. 99. [546] LECT. XXXVII.] OF PERSONAL PROPERTY. 391 The objection to a national bankrupt system consists in the dif- ficultj'' of defining, to the satisfaction of every part of the country. thence to the end of the next session of Congress ; but the act was repealed within that period, by the act of December 19, 1803, and the system was not renewed until 1841. An eSort was made in Congress, in tlie spring of 1840, to reestablish a uniform system of bankruptcy, and the subject received an able and thorough investigation and discussion ; but Congress could not agree on the principles of the system, and the effort failed. The bill which was reported and debated, enabled debtors of every description and class to take advantage of it at their option, and to be thereby com- pletely discharged from their debts without the cooperation or assent of any creditor. Some of the members of Congress were opposed to any bankrupt system on the part of the United States, as it would enlarge the powers of the federal courts to a great extent, and lead to the creation of a crowd of officers and agents to administer it, and pi'obably to much abuse and corruption. They preferred that the administration of bankrupt and insolvent laws should remain with the state governments. The com- pulsory process of bankruptcy, at the instance of the creditor, was urged by others as essential to the system, and that the provision should even be extended so as to include corporations instituted understate authority for banking, manufacturing, commercial, insurance, and trading purposes. But this last provision was objected to, as hiost inex- pedient, if not absolutely beyond the purview of the Constitution. It was apprehended that such a power would lead to infinite abuse, and become expensive and extremely oppressive, and would tend to break up all the moneyed and business institutions created under state laws, or render the power of control of them most formidable and property ; 2. Debts due to the United States, taxes and assessments under their laws ; 3. Debts due to the state in which the proceedings are pending, taxes and assessments under its laws ; 4. Wages not over .fSO to any operative, clerk, or house servant for labor performed within six months of the (adjudication, § 27) first publication of notice ; 5. All debts due to any persons who, by the laws of the United States, are entitled to pref- erence. § 28. No discharge is to be granted, or, if granted, to be valid, if the bankrupt has been guilty of any of a long series of enumerated acts of fraud or negligence. § 29. Moreover, debts cre- ated by the fraud or embezzlement of the bankrupt, or by his defalcation as a pub- lic officer, or while acting in any fiduciary character (7 Am. L. Rev. 32), are not dis- charged, but they may be proved, and dividends received thereon. Nor does the discharge affect the liability of other persons liable for the same debt as joint contractors or otherwise. § 33. The cer- tificate of discharge is conclusive evidence in favor of the bankrupt of the fact and of the regularity of the discharge, but creditors who had no knowledge of fraud- ulent acts on the part of the bankrupt sufficient to avoid the discharge are allowed two years to contest it on the ground that it was fraudulently obtained. § 34. This seems to limit the signification of § 29 that the discharge shall not be valid in certain cases. See Perkins v. Gay, 3 B. B. 189. But it has been held that the discharge may be impeached col- laterally for want of jurisdiction, e. g. on the ground that the creditor impeaching it had never been properly notified of the bankruptcy proceedings. For they are not, like admiralty proceedings in rem, notice to all the world. Barnes v. Moore, 2 B. R. 174. See Hill !>. Bobbins, 1 Mich. N. P. 305 ; 22 Mich. 475. But see Payne u. Able, 7 Bnsh, 344 ; Symonds v. Barnes, 59 Me. 191, cases in which there was no [547] *391 OP PERSONAL PROPERTY. [PART V. the precise class of debtors who can, consistently with the consti- tutional jurisdiction of Congress over the subject, be made the dangerous. The advocates for the bill contended that bankruptcy was a general term, and meant failure, and was equally applicable to all persons of broken fortunes ; that the Constitution was not intended to be bound to the English system of bankruptcy, and that Congress had the same power as the British Parliament to extend the application of it, and tliat it might and ought to extend to all classes of debtors who had become disabled and overwhelmed in the peculiar and severe calamity of the times ; that though the assent of at least a majority of the creditors to the debtor's discharge was deemed by the New York bolird of trade to be essential to the stability of credit, the rights of creditors, the claims of justice, and the reputation of the country, it was insisted upon, as a compensation for this omission, that the operation of the act would be useful to creditors, though the debtor should be enabled to obtain the benefit of a discharge without their consent or action, for it would put an end to the pernicious practice of giving preference among creditors, and enable the assets of insolvents to be distributed equally among the creditors. 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 establish 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 Constitution 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, contemporaneously with the adoption of the Constitution, and it received that practical construction, and none other, in the Bankrupt Act of 1800 ; that the English bankrupt laws discharge the fraud. See, further, Corey v. Ripley, 57 fourths in value of the creditors in any Me. 69. So, it has been held, it may be case whose claims have been proved may for the frauds specified in § 29. Beards- resolve that the bankrupt's estate shall be ley V. Hall, 36 Conn. 270. But see Ocean woimd up by trustees under the direction Nat. Bank v. Olcott, 46 N. Y. 12. By of a committee, and the resolution may be § -35, intentional preferences made within confirmed by the court in its discretion, four months of the filing of the petition after hearing. There is no provision like to persons having claims, &c., against the that of the Scotch law, which allows the bankrupt, and having reason to believe bankrupt, after the creditors have had that he is insolvent, and that the payment time to look into his affairs, to offer an or pledge, &c., was made in fraud of the engagement with security to pay a cer- bankrupt act, are avoided. So are dispo- tain percentage of the demandable debts, sitions of property, &c., made within six and which makes this engagement, if months before the filing of the petition, assented to by a certain proportion of the with a view to prevent it from coming to creditors in number and value, discharge the assignee, or to evade any of the pro- the debts due to all, supersede the bank- visions of the bankrupt act, &c. There ruptcy, and entitle the bankrupt to » are provisions for the bankruptcy of part- reconveyance of his property, the en- ners (§ 36), and of moneyed, business, or gagement remaining available to all the commercial corporations and joint-stock creditors instead of their former rights, companies. § 37 ; /nr« Boston, Hartford, Bell's Comm. iv. 5, 37. See the English & Erie B. B., 9 Blatchf. 101. Three Bankruptcy Act, 1869, § 28. [548] LECT. XXXVII.J OF PERSONAL PBOPEETY. * 391 objects of it; and in the great expense, delay, and litigation which have been found to attend proceedings in bankruptcy ; and bankrupt from his debts and contracts, and were coercive on the debtor, and put in action, at the instance of creditors, and at tlieir instance only ; that the proceeding was for the equal benefit of all the creditors, and its justice and policy, as applicable to that class of debtors, were founded on the peculiarly 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- nized by the Supreme Court of the United States (vide supra, 390) ; that insolvent laws were left to the cognizance of the individual states, each of which had its own system of insolvent laws, and which the bill before the house would entirely super- sede, 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 obligations of contracts, would be disastrous. The effort to establish a national bankrupt 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 persons whatsoever residing within the United States, who owed debts, not created in consequence of a defalcation as a public offi- cer, 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 engage- ments. The act was further declared to apply to all persons being merchants, or using the trade of merchandise, and all retailers of merchandise, and all bankers, factors, brokers, underwriters, or marine insurers, owing debts to the amount of $2,000, who should be liable to become bankrupts, upon petition of one or more of their creditors to the amount of .$500, provided they had absconded, or fraudulently procured themselves or their property to be attached or taken in execution, or had fraudulently removed, or concealed, or assigned, or sold their property. The bank- rupt, when duly discharged, was declared to be free from all his debts. The first provision is a sweeping insolvent law, and applies to all debtors, and upon their own voluntary application ; the second is confined to merchants and traders, and the act is put in operation only at the instance of the creditors. 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 States, in the execution of the act, cannot be noticed in the limited space allowed to 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 construction 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 case of Kunzler v. Kohaus, and of Sackett v. Andross, 5 Hill (N. Y.), 317, 827, the constitu- tionality and construction of the Bankrupt Act of Congress of 1841 were 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 elaborate opinion, dissented from both of those propo- sitions. And Judge Wells, of the U. S. District Court of Missouri, in the case of [549] * 392 OF PERSONAL PROPERTY. [PAKT T. in the still more grevious abuses and fraud which the system leads to, notwithstanding the vigilance and integrity of those to whom the administration of the law may be committed. To show the subtlety of the English distinctions on this subject, it may be here observed, that a farmer, a grazier, or drover, cannot, from their occupations, be bankrupts, for the statute of 5 Geo. II. c. 30, exempted them ; and yet if a farmer buys and sells apples, or potatoes or other produce of a farm, for gain, or manufactures brick for sale, and becomes a dealer in such articles, he becomes, like any other trader, subject to the English bankrupt laws. (6) So a farmer who becomes a dealer in horses, for the sake of gain, or an inn-keeper, who sells liquor out of his house to all customers who apply for .it, will become an object to the bankrupt laws. The question turns upon the person's common or ordinary mode of dealing in the case, and whether there be any trading carried on ultra his particular calling, as farmer, grazier, or drover, (c) If a man exercises a manufacture from the produce of his own land, as a necessary or usual mode of enjoying that produce, he is not a trader ; but if the produce of his farm be merely the raw material of a manufacture, and that manufacture not the neces- sary mode of enjoying his land, he is a trader, {d) And if a person use the profession of a scrivener, receiving other men's money or estates into his trust or custody, he is a trader, liable to the Bankrupt Act of 6 Geo. IV. c. 16. And with * 392 respect to the * infirmities of the English bankrupt system, which has been the growth of upwards of two centuries, and been constantly under the review of Parliament, and matured Edward Klein, 2 N. Y. Legal Observer, 185, after a very full consideration of the subject, also decided that the provision in the act of Congress of 1841, for the dis- charge of a voluntary debtor from his debts and future acquisitions, without payment or assent of his creditors, was unconstitutional. (6) Mayo v. Archer, Str. 513 ; Wells v. Parker, 1 T. R. 34. (c) Patman v. Vaughan, 1 T. R. 572; Bartholomew v. Sherwood, ib. note; Bolton V. Sowerby, 11 East, 274; Wright v. Bird, 1 Price Ex. 20. (d) Wells V. Parker, 1 T. R. 34. A planter who gains by the raising of crops by slave labor, and who has a saw mill and brick yard as an appendage to a sugar plantation, in which he makes for sale planks and bricks, is not a trader within the bankrupt law of Louisiana of 1826. Foucher v. His Creditors, 7 La. 425. In Patten V. Browne, 7 Taunt. 409, this distinction was taken, that if a farmer buys an article, with the direct object of making a profit upon the resale of it, he is a trader within the bankrupt laws ; but if purchases be made as ancillary to the more profitable occu- pation of the farm, and expenditure of the procedure of it, and mixing it with the produce for that purpose, he is not a trader. [550] LECT. XXXVII.] OP PERSONAL PROPERTY. * 393 . by the talents and experience of a succession of distinguished men in chancery, we may refer to the observations of Lord Eldon, when he succeeded to the great seal, in 1801, who took the ear- liest opportunity to express his strong indignation at the frauds committed under cover of that system. He remarked, (a) that the " abuse of the bankrupt law was a disgrace to the country, and that it would be better at once to repeal all the statutes, than to suffer them to be applied to such purposes. There was no mercy to the estate. Nothing was less thought of than the object of the commission. As they were frequently conducted in the country, they were little more than stock in trade for the commissioners, the assignees, and the solicitor." (6) The respective states, as we have already seen, may pass bank- rupt and insolvent laws. The power given to the United States to pass bankrupt laws is not exclusive. This is now established by judicial decisions; (c) and the exercise of the power residing in the states to pass bankrupt and insolvent laws does not impair, in the sense of the Constitution, the obligation of contracts made posterior to the law. (<^) The discharge under a state law is no bar to a suit on a contract existing when the law was passed, nor to an action by a citizen of another state, in the courts of the United States, * or of any other state than that where * 393 the discharge was obtained. The discharge under a state law will not discharge a debt due to a citizen of another state who does not make himself a party to a proceeding under the law. (a) (a) 6 Ves. 1. (b) The English bankrupt system has been much improved by the statute of [6] Geo. IV. u. 16, which was the consolidation of all the previous statutes of bankruptcy, and by the act of 1 & 2 Wm. IV. u. 56. The improvements have, of course, given more simplicity and uniformity to the code, and rendered it, in several respects, more remedial. The system has been thoroughly illustrated by the treatises of Eden, Archbold, and Warrand. On the other hand, the bankrupt law of Scotland is said to have attained great excellence, by a slow and gradual course of improvement, suggested in the course of practice, and with the aid of combined wisdom of lawyers of profound knowledge, and merchants of large views and great experience. Bell's Comm. i. 17. The French law of bankruptcy, in the commercial code, is said, by M. Dupin, to be complained of equally by bankrupts and by their creditors. (c) See supra, 390, note (c). (d) The parties to a contract are supposed to make the contract in reference to the existing laws in relation to the subject-matter, and the law itself becomes a part of the contract. Belcher ads. Commissioners of the Orphan House, 2 M'Cord (S. C), 23. (a) Sturges i). Crowninshield, 4 Wheaton, 122 ; Ogden v. Saunders, 12 id. 21.S ; Braynard v. Marshall, 8 Pick. 194 ; Clay v. Smith, 3 Peters, 411 ; 3 Story; Comm. Const. U. S. 252-256; Norton v. Cook, 9 Conn. 314; Pugli v. Bussel, 2 Blackf. (Ind.) [551] *393 OP PKBSONAL PROPERTY. [PABT V. It will only operate upon contracts made within the state between its own citizens or suitors, subject to state power. The doctrine of the Supreme Court of the United States in Ogden v. Saunders is, that a discharge under the bankrupt law of one country does not affect contracts made or to be executed in another. The municipal law of the state is the law of the contract made and to be executed within the state, and travels with it wherever the parties to it may be found, unless it refers to the law of some other country, or be immoral, or contrary to the policy of the country where it is sought to be enforced. This was deemed to he a principle of universal law ; and therefore the discharge of the contract, or of the party, by the bankrupt law of the country where the contract was made, is a discharge everywhere. (6) ^ 394; Woodlrall v. Wagner, Baldw. C. C. 296; Browne v. Stackpole, 9 N. H. 478. See also supra, i. 422. (b) Ogden u. Saunders, 12 Wheaton, 213; see also Sturges v. Crowninshield, 4 id. 122; M'Millan v. M'Neill, ib. 209; Le Roy v. Crowninshield,'2 Mason, 161, 162; Pugh u. Bussel, 2 Blackf. (Ind.) 394. And see Comm. [anfe?] i. 419-422; Lord Stair's Institutions, i. note a, p. 4, by I. S. More, the editor of the edition of 1832. This edition of that authoritative work of Lord Stair is rendered very valuable by the notes and illustrations of the learned editor. It is equally well established that the discharge of a contract by the law of a place where the contract was not made, or to be performed, will not be a discharge in any other country. In Phillips v. Allan, 8 B. & C. 477, the discharge of an insolvent debtor by a Scotch court was held to be no defence to an action brought in England, by an English subject, for a debt con- tracted in England ; but the rule would have been different if the creditor had come in for his dividend under the Scotch law, or the debt had been contracted in Scot- land. The same rule was declared in Van Raugh c. Van Arsdale, 3 Caines, 154, and it has repeatedly been recognized in England and Scotland, as well as in this 1 But see i. 422, n. 1. x^ A debt con- acts done in the colony was held to dis- tracted and payable in England to one charge and avoid a right of action in domiciled tliere has been held not to be England in Phillips v. Eyre, L. R. 6 Q. B. affected by a colonial discharge. Hartley 1, 30; and an English discharge or an V. Hodges, 1 Best & S. 375 ; s. c. 30 L. J. English composition deed containing a Q. B. 352. But it is otherwise of one con- covenant not to sue, and equivalent by tracted and payable in the colony grant- the English law in effect to a discharge, ing the discharge. Gardiner v. Houghton, may be pleaded to a previous Canadian 2 B. & S. 743. A colonial act discharging debt in a Canadian court. Ellis v. and avoiding an obligation ex delicto for M'Henry, L. E. 6 Q. B. 228. r' Neither a bankrupt nor an insolvent within the jurisdiction is immaterial. One discharge bars debts contracted to per- state has no power to discharge debts due sons outside the jurisdiction of the United citizens of another state. McDougall i-. States or of the state respectively. And Page, 55 Vt. 187 ; Bedell v. Scruton, 54 Vt. it would seem that the fact that the con- 493 ; Hills ». Carlton, 74 Me. 156 ; Guerh- tract was made and to be performed sey v. Wood, 130 Mass. 503, [552] LECT. XSXVII.J OF PERSONAL PROPERTY. * 395 There is not any bankrupt law, technically so called, existing in New York ; but there is a permanent insolvent law, enabling every debtor to be discharged from all his debts upon the terms and in the mode prescribed. The iirst general insolvent law of New York was passed in the year 1784, and alterations and amendments have from time to time been made, until the system attained all the consistency, provision, * and im- * 394 provement that the nature of the subject easily ad- mits, (a) Insolvent laws prevail throughout the U^ion, and constitute a system of an important and interesting character, and subject to diversified modifications, for the relief of the debtor. In the states of Maine, New Hampshire, Virginia, and Kentucky, they are confined to the relief of debtors charged in execution. In New Jersey, Delaware, Maryland, Tennessee, North and South Carolina, Georgia, Alabama, Mississippi, and Illinois, the insol- vent laws extend to debtors in prison on mesne or final * process. In Massachusetts, New York, Connecticut, * 395 Rhode Island, Pennsylvania, Ohio, Indiana, Missouri, and Louisiana, they are still more extensive, and reach the debtor country. See Doug. 170; 1 H. Bl. 693; 2 id. 553; 1 East, 6, 11; 5 id. 124; Lewis u. Owen, 4 B. & Aid. 654 ; 2 Bell's Coram. 689-691 ; WoodhuU u. Wagner, Bald. C. C. U. S. 296 ; Van Hook i;. Whitlock, 26 Wend. 43. (a) With respect to the operation, value, and policy of the general system of insol- vent law, it is observed, by the chancellor and judges of the Supreme Court of New York, in a report made by them to the legislature, January 22, 1819, in pursuance of a concurrent resolution of the two houses, that, "judging from their former experi- ence, and from observation in the course of their judicial duties, they were of opinion that the insolvent law was the source of a great deal of fraud and perjury. They were apprehensive that the evil was incurable, and arose principally from the in- firmity inherent in every such system. A permanent insolvent act, made expressly for the relief of the debtor, and held up daily to his view and temptation, had a powerful tendency to render him heedless in the creation of debt, and careless as to payment. It induced him to place his hopes of relief rather in contrivances for his discharge than in increased and severe exertion to perform his duty. It held out an easy and tempting mode of procuring an absolute release to the debtor from his debts ; and the system had been, and still was, and probably ever must be, from the very nature of it, productive of incalculable abuse, fraud, and perjury, and greatly injurious to the public, morals." See, on this subject, supra, i. 419-422. It was stated by the chief justice, in giving the opinion of the Supreme Court of the United States, in Sturges v. Crowninshield, 4 Wheaton, 122, that the insolvent laws of most of the states only discharge the person of the debtor, and leave his obligation to pay, out of his future acquisitions, in full force. The Insolvent Act of Maryland, of 1774, subjected to the former debts of the insolvent his future acquisitions by descent, gift, devise, bequest, or in a course of distribution. See 2 Harr. & .7. 61. [533] * 395 OF PERSONAL PROPERTY. [PART V. whether in or out of prison, (a) The insolvent laws of New York enable the debtor, with the assent of two thirds in value of his creditors, and on the due disclosure and surrender of his property, to be discharged from all his debts contracted within the state, subsequently to the passing of the Insolvent Act, and due at the time of the assignment of his property, or contracted before that time, though payable afterwards, (ft) The creditor who raises objections to the insolvent's discharge is entitled to have his alle- gations heard and determined by a jury. The insolvent is de- prived of the benefit pf a discharge, if, knowing of his insolvency, or in contemplation of it, he has made any assignment, sale, or transfer, either absolute or conditional, of any part of his estate, or has confessed judgment, or given any security with a view to give a preference for an antecedent debt to any creditor, (c) The (a) The statutes of Connecticut, Ohio, New Jersey, Pennsylvania, Illinois, North Carolina, Tennessee, Georgia, and Missouri, for the relief of insolvent debtors, go only to discharge and exempt the person of the debtor from imprisonment. Statutes of Connecticut, 1838, p. 270 ; Statutes of Ohio, 1831 ; Statutes of Illinois, 1838 ; R. L. of Missouri, 1835; Prince's Dig. of Statutes of Georgia, 2d ed. 1837, p. 287,293; Purdon's Dig. of Penn. Laws, 514 ; Elmer's Dig. 255 ; R. S. of New Jersey, 1847, tit. 9, c. 1, 2, 3, 4, contains the whole system of provisions for the relief of debtors. North Carolina R. S., i. 320 ; Statute Laws of Tennessee, p. 390. This is understood to be the limitation of insolvent laws in the greater number of the states. See supra, i. 420. The new insolvent law of Massachusetts was passed in 1838, granting a complete discharge to debtors, whether in or out of prison, who comply with its provisions. The application for reUef may be made by the debtor, or by certain of his creditors. It applies, of course, only to contracts made subsequent to its passage, and it re- sembles, in several of its features, the United States Bankrupt Act of 1800, and appears to be cautiously and wisely digested. See infra, 522, note. In Vermont, it is even a constitutional provision that the debtor shall not be continued in prison where there is not a strong presumption of fraud, after delivering up and assigning, bonajide, all his estate for the use of his creditors. (6) Laws of N. Y., April 12, 1813 ; February 28, 1817 ; February 20, 1823 ; and April 9, 1833. Under the English Insolvent Debtor's Act, the discharged insolvent becomes liable to a surety, who pays for him, after his discharge, an annuity due before. Abbot a. Bruere, 5 Bingham, N. C. 598. The insolvent laws of New York have been redigested and amended by the N. Y. Revised Statutes, ii. 15-23 ; but the Insolvent Act of April 12, 1813, is declared to be in force, although consolidated in the Revised Statutes, ii. 15-23. See N. Y. R. S. iii. 647. It appears, notwithstand- ing that dictum of the revisers, that the General Insolvent Act of 1818, and all the acts amending the same, are in force only in u, very modified, if in any degree; for under the General Repealing Act, N. Y. R. S. iii. 133, sec. 115, and ib. 154, sec. 549, so much of the Insolven Act of 1813, and the acts amending it, as are not, and also that are consolidated and reenacted in the Revised Statutes, are repealed ! The sys- tem has been improved by more effectual provisions against fraud and abuse. (c) N. Y. Revised Statutes, ii. 20, sec. 24. By the laws of Louisiana, a;i insolvent debtor cannot give preference. Hodge v. Morgan, 14 Martin (La.), 61. By the [ 554 ] LECT. ZXXVII.J OF PERSONAL PROPERTY. * 39G discharge applies to all debts founded upon contracts made within the state, or to be executed within it ; and from debts due to persons resident within the state at the time of the publication of notice of the application for a discharge ; or to persons not resid- ing within the state, but who united in the petition for his dis- charge, or who accept a dividend from his estate. The discharge likewise applies to all liabilities incurred on contracts made after January 1, 1830, by making or indorsing any promissory note o"* bill of exchange prior to his assignment, or incurred by reason of payments by any other party * to the paper, made * 396 prior or subsequent to the assignment. The discharge likewise exonerates the insolvent from arrest and imprisonment thereafter, upon all debts existing prior to the assignment. Any fraud whatever, in relation to anj- proceedings under this statute, or its requisitions, renders the discharge null and void, (a) Insolvent Act of Pennylvania, of 16th June, 1836, the insolvent debtor is deprived of the benefit of the act, if it appears that the insolvency arose from losses by gamb- ling, or by the purchase of lottery tickets. (a) N. Y. Revised Statutes, ii. 15-23. The fraud that goes to defeat the relief, under the insolvent laws of Pennsj'lvania, is the fraudulent concealment or convey- ance of the estate, and not the fraudulent means by which the insolvent acquired possession of property, nor his unprincipled and extravagant waste of it. Case of Benney, 1 Ashm. 261. In England, by tlie statutes of 1 Geo. IV., 3 Geo. IV., and 5 Geo. IV., the system of their insolvent laws was new modelled and greatly im- proved, and placed under the jurisdiction of the insolvent's court. The insolvent acts in England were consolidated by statute 7 Geo. IV. c. 57, and greatly amended by statute of 1 & 2 Vict. c. 110. They apply to persons in actual custody for debt, and the estate is vested in assignees, and the prisoner or his creditors may petition for an order to vest his estate in assignees. The main object of the last statute was to abolish imprisonment for debt on mesne process, except where fraud can be shown. It is, in many of its provisions, analogous to their bankrupt system. Voluntary pref- erences, by the insolvent, before or after imprisonment, are declared fraudulent. For debts fraudulently, improvidently, or maliciously contracted, and for damages arising upon torts, or acts ex delicto, the insolvent is liable to close imprisonment, and to be deprived of his discharge for a period not exceeding two years. The discharge only protects the person from imprisonment, and does not protect the future acquisi- tions and property of the debtor ; and the act enables the creditor to reach such property; whether in the funds, or existing in choses in action, or held in trust. In 1844, by 7 & 8 Vict. c. 96, the English insolvent law was further meliorated and improved. Imprisonment in execution was by statute abolished as to all debts not exceeding ;£20 ; and every debtor may be released from his debts upon surrender of his property, and without any imprisonment, be his debts of whatsoever amount, if he applies for the benefit of the act while at liberty, and before execution. The assignment of the debtor's property includes all his estate, real and personal, at home and abroad, which ia vested, or which may in future revert, descend, or come to him, by purchase, will, or otherwise, before he shall have olitained the final order of discharge, [665] 397 OP PERSONAL PBOPEBTY. [PAET T. * 397 * (2.) Of Bankrupt and Insolvent Laws discharging from Imprisonment. — There are other provisions belong- ing to the insolvent system which are exclusively applicable to imprisoned debtors, who may, in all cases free from fraud, be dis- charged from prison, and exempted from future arrest, without the hazard of any constitutional objection. Imprisonment is no part of the contract ; and simply to release the prisoner does not impair the obligation, but leaves it iii full force against his and also all debts due to him before such order (wearing apparrel, bedding, and imple- ments not exceeding £20, excepted). It was further declared, that after the final order to be given on the fair surrender of his property, the fulure acquired properly oj the debtor was not to be taken. But much complaint is made in England, by merchants and traders, against the operation of their bankrupt and insolvent laws, as being a fruitful source of fraud and abuse; and the true cause of the evil is saidio be the abolition of arrest on mesne process. It is proposed to restore arrest on mesne pro- cess, guarding it carefully against abuse. A bill for that purpose was introduced into Parliament in 1846. It is likewise proposed in tlie English discussions, and with much plausibility, if not reason, to abolish all process against goods and chattels, except in bankruptcy, and, as a, substitute, to extend the bankrupt laws to alt classes of debtors. See the London Law Review for November, 1846, v. 87-99, where the subject is considered at large. See i. 422, as to the effect of the cessio bonorum, in the civil law, and to which our insolvent laws are analogous. The learned commentator on the Partidas (Greg. Lop. Gl. 3), as cited in a note to the Institutes of the Civil Law of Spain by Asso and Manuel (b. 2, tit. H, c. 3, sec. 2, n. 49), says that the future acquirements of the debtor would not be liable under the cessio bonorum in the case of a compulsory cession, and in any case sufficient must be left for the debtor to live upon, ne egeat. The laws of the individual states on the subject of bankrupt and insolvent debtors have hitherto been unstable and fluctuating ; but they will probably be redigested, and become more stable, since the decisions of the Supreme Court of the United States have at last defined and fixed the line around the narrow enclosure of state jurisdiction. The commissioners appointed to revise the Civil Code of Pennsylvania, in their report, in January, 1835, pp. 52, 53, complain, in strong terms, of the exist- ing state of things. Congress will not exert their constitutional power, and pass a bankrupt law, and no state can pass a bankrupt or insolvent law, except so far as regards their own citizens ; and even then, only in relation to contracts made after the passage of the law. Foreign creditors, and creditors in other states, cannot be barred, while state creditors may be. The former preserve a perpetual lien on after acquired property, except so far as the statutes of limitations interpose. State bank- rupt and insolvent laws cannot be cherished under such inequalities. A difficulty exists in Massachusetts in respect to their attachment and insolvent laws. The pro- cess of attachment of the goods of the debtor on mesne process, in that state, has existed since 1789, but their insolvent law dissolves the attachment, on the debtor being placed under the operation of that system, either by his voluntary act or by the act of his creditors, and which system aims at equal distribution among the cred- itors. Creditors suing in the federal courts are said to hold their attachments without having them dissolved, as they are in the state courts by the force of the provision in their insolvent system. The Law Reporter for March, 1846, viii. 524. [556] LECT. XXXVII.] OF PERSONAL PROPERTY. * 398 property, (a) * The English process of execution against * 398 the body (and which we have generally followed in this country), is intended to confine the debtor until he satisfies the debt. It is not a satisfaction strictly, but a means to procure it ; though the language of the writ directs the defendant to be im- prisoned to satisfy the plaintiff for his debt, (a) In Scotland, the imprisonment on execution is avowedly to enforce pajonent and the discovery of funds ; and it does not, like the English imprisonment, preclude an execution concurrently against the property. The Scottish law of imprisonment for debt is slow, cautious, and tolerant in its operation. (6) In this country, the progress of public opinion is rapidly tending to enlarge the remedies against property, and to abolish imprisonment for debt, except where the judgment is founded upon tort, misfeasance, or fraud, (c) (a) Mason v. Haile, 12 Wheaton, 370; Marshall, C. J., 4 Wheaton, 201 ; Beers 17. Haughton, 9 Peters, 329. The insolvent law of New York, in its application to imprisoned debtors, and as it existed prior to April, 1831, and April, 1840, may be seen in the N. Y. Revised Statutes, ii. 24, 39. But since imprisonment for debt in New York is now essentially abolished, a detail of the provisions of that system is no longer requisite. (a) Imprisonment on ca. sa. is no extinguishment of a lien by mortgage for the same debt. Davis v. Battine, 2 Russ. & My. 76. It was said by the court, in Sir William Herbert's case (3 Co. 11), that at common law, and prior to the statutes of Hen. III., Ed. I. and III., the body of the debtor was not liable to execution for debt, except in cases of injuries accompanied with force, and for the king's debts. Sir William Blackstone, iii. 281, has followed that opinion, and Sir Francis Palgrave, who has examined with great research the Anglo-Saxon institutions, says that no arrest of the person was allowed at common law, except when justified by a breach of the peace, or a contempt of the king's authority. The Anglo-Saxon or Teutonic law gave a distringas on neglect to obey a summons, by which the defendant's goods and chattels were seized as pledges to compel his submission to the judgment of the court. Rise and Progress of the English Commonwealth, i. 181. But this position appears from Bracton, and from the history of leg^.1 progress as detailed by Mr. Reeves, to be unfounded, if we consider the common law as it existed as early as the reign of Henry III. Sir E. Palgrave refers to the Anglo-Saxon common law. Brac- ton, 440, 441 ; 2 Reeves's History of English Law, 439, 440. (6) 1 Bell's Comm. 7 ; 2 id. 537. (c) In Nevv York, by the act of April 26, 1831, e. 800, and which went into opera- tion on March 1, 1832, arrest and imprisonment on civil process at law, and on execution in equity founded upon contract, were abolished. The provision under that act was not to apply to any person who should have been a non-resident of the state for a month preceding (and even this exception was abolished by the act of April 25, 1840) ; nor to proceedings as for a contempt to enforce civil remedies ; nor to actions for fines and penalties; nor to suits founded in torts, 7 Hill (N. C), 578/ nor on promises to marry ; or for moneys collected by any public officer ; or for [557] *399 OF PERSONAL PROPERTY. [PART V. * 399 * The assignment of the insolvent passes all his in- terest, legal and equitable, existing at the time of execut- misconduct or neglect in office, or in any professional employment. The plaintiff, however, in any suit, or upon any judgment or decree, may apply to a judge for a warrant to arrest the defendant, upon affidavit stating a debt or demand due, to more than $50; and that the defendant is about to remove property out of the jurisdiction of tlie court, with intent to defraud his creditors ; or that he has prop- erty or rights in action which he fraudulently conceals ; or public or corporate stock, money, or evidences of debt, which he unjustly refuses to apply to the payment of the judgment or decree in favor of the plaintiff ; or that he has assigned, or is about to assign or dispose of his property, with intent to defraud his creditors ; or has fraudulently contracted the debt, or incurred the obligation respecting which the suit is brought. If the judge shall be satisfied, on due examination, of the truth of the charge, he is to commit the debtor to jail, unless he complies with certain prescribed conditions, or some one of them, and which are calculated for the security of the plaintiff's claim. Nor is any execution against the body to be issued on justices' judgments, except in cases essentially the same with those above stated. To be a resident of the state within the meaning of tlie act of 18.31, it was held that the per- son must have a fixed abode, and an intention to remain and settle, and not to be a transient visitor. Frost v. Brisbin, 19 Wend. 11. But this decision ceases now to be of any application, inasmuch as the exception itself is repealed. By the New York act of 1846, c. 150, the defendant is liable for imprisonment as in actions for wrong, if he be sued and judgment pass against him in actions on contracts for moneys received by him (and it applies to all male persons), in a fiduciary character. The legislature of Massachusetts, in 1834 and 1842, essentially abolished arrest and imprisonment for debt, unless on proof that the debtor was about to abscond. As early as 1790, the constitution of Pennsylvania established, as a fundamental princi- ple, that debtors should not be continued in prison after surrender of their estates in the mode to be prescribed by law, unless in cases of a strong presumption of fraud. In February, 1819, the legislature of that state exempted women from arrest and imprisonment for debt ; and tliis provision as to women was afterwards applied in New York to all civil actions founded upon contract. (N. Y. Revised Statutes, ii. 249, 428.) A provision to that effect had been recommended to the legislature by the chancellor and judges, in January, 1819. Females were first exempted from imprison- ment for debt in Louisiana and Mississippi^ and imprisonment for debt, in alt cases free from fraud, is now abolished in eacli of tliose states. The commissioners in Pennsylvania, in their report on the Civil Code, in January, 1835, recommended that there be no arrest of the body of the debtor, on mesne process, without an affidavit of the debt, and that the defendant was a non-resident, or about to depart without leaving sufficient property, except in cases of force, fraud, or deceit, verified by affidavit. This suggestion was carried into effect by the act of the legislature of Pennsylvania of July 12, 1842, entitled, "An Act to abolish imprisonment for debt, and to punish fraudulent debtors." In New Hampshire, imprisonment on mesne process and execution for debt existed under certain qualifications, until December 23, 1840, when it was abolished by statute, in cases of contract and debts accruing after the first of March, 1841. In Vermont, imprisonment for debt, on contracts made after first January, 1839, is abolished, as to resident citizens, unless there be evidence that they are about to abscond with their property ; so, also, the exception in Mississippi applies to cases of torts, frauds, and meditated concealment, or fraud- ulent disposition of property. Laws of Mississippi, by Alden & Van Hoesen, 1839, [658] LECT. XXXTII.] OP PERSONAL PROPERTY. * 400 ing the * assignment, in any estate, real or personal ; but * 400 no contingent interest passes, unless it shall become vested pp. 511, 512, 915, 916. In Connecticut, imprisonment for debt on contract is abol- ished, except in the usually excepted cases of fraud, &c., by statute of June 10, 1842. In Indiana (R. S. 1838), prison bounds for debtors are declared to be coextensive witli the county. This is reducing imprisonment to tlie mere vox et prosterea nil. In Alabama, by statute of 1st February, 1839, imprisonment for debt is abolished, except in cases of fraud. In Tennessee, by statute of 1831, c. 40, and of January, 1840, no ca. sa. can issue to imprison for debt, without an affidavit that tlie defendant is about to remove, or has removed, his property beyond the jurisdiction of the court, or that he has fraudu- lently conveyed or concealed it. A similar law was passed in Ohio and in Micliigan, in 1838 and 1839. The power of imprisonment for debt, in cases free from fraud, seems to be fast going into annihilation in this country, and it is considered as repugnant to humanity, policy, and justice. In addition to the states of Massachusetts, New Hampshire, Vermont, Connecticut, New York, NeW Jersey, Pennsylvania, Michigan, Ohio, Tennessee, Mississippi, Louisiana, and Alabama, already mentioned, imprison- ment for debt is abolished in Delaware, Florida, Wisconsin, and Iowa, with the usual exception of all or most of the cases of contempts, fines, and penalties, promises to marry, moneys collected by public officers, raiscondiict in office, and frauds. By the new constitution of New Jersey, in 1844, imprisonment is abolished in actions for debt, or on any judgment upon contracts, unless in cases of fraud. But imprisonment for debt is still retained, under mitigated modifications, in Maine, Rhode Island, Mary- land, Virginia, North and South Carolina, Georgia, Arkansas, Kentucky, Missouri, Illinois, Indiana, and the District of Columbia. See Kinne on Imprisonments for Debt, New York, 1842 ; Act of Congress, March 3, 1843, u. 98. The constitution of Rhode Island of 1842, and which went into operation in May, 1843, declares that the person of a debtor, where there is not strong presumption of fraud, ought not to be continued in prison after he has delivered up his property for the benefit of his creditors. An act of Congress of 14th January, 1841, abolished imprisonment for debt under process in the federal courts, in all cases in which, by the laws of the state in which the court is held, such imprisonment has been abolished. In 1838, an act was passed by the British Parliament, 1 & 2 Vict. c. 110, abolishing imprisonment for debt on mesne process, except under special order, when the debtor is about to abscond, and requir- ing the remedies against property to be exhausted before it can be permitted on final process. The execution against the debtor's property reaches the whole profits of the real estate, instead of a moiety as before ; and money or bank notes, checks, bills of exchange, promissory notes, specialties and other securities for money, may be taken or\ fieri facias. So stocks, fimds, or annuities, or any stock or shares in any public company, may be attached for the payment of the judgment creditor. The creditor has full power over all the debtor's property, and the latter is also liable, as before, to eventual imprisonment on execution. But it is understood that the English commissioners, appointed to inquire into the laws affecting bankrupts and insolvents, have recently (1840) made an interesting report on the subject, in which they condemn as unjust and impolitic the existing laws, holding the future acquired property of insolvent debtors, who are discharged, liable for their preexisting debts ; and they recommend that this distinction between the operation of bankrupt and insolvent laws be abolished ; and also, that imprison- ment for debt, on final process by ca. sa., except in special cases, be also abolished. In 1842, the cessio bonorum act was Introduced into the British Parliament, by Lord [559] * 401 OF PERSONAL PEOPERTY. [PART V. within three years after making the assignment, and tiien it passes, (a) y^ This I apprehend to be the general effect of the assignment, in every state, and under the English law. Possibilities, coupled with an interest, are assignable, but not bare possibilities, such as the expectancy of an heir. (6) The assignment does not affect property held by the debtor in trust ; (c) nor does the assign- ment by the insolvent husband affect the property settled to the separate use of the wife, free and clear of her husband, (jl) It has been repeatedly held that the insolvent's discharge applied only to debts existing when the petition, inventory, and schedule of debts were presented, and not so as to cover debts contracted between that time and the time of the discharge. The distinction is founded on obvious principles of justice ; for the computation of the amount of the debts and -creditors is founded upon the inventory and schedule accompanying the petition, and the assignment and discharge relate to them, (e) It is like- * 401 wise the general policy of all insolvent * laws to distribute the property assigned ratably among all the creditors, sub- ject, nevertheless, to existing legal liens, and priorities existing Brongham, abolishing virtually the practice of imprisonment for debt. In April, 1844, Lord Cottenham introduced a bill into the House of Lords for abolishing entirely imprisonment for debt on mense process and on execution, in cases free from fraud or violence ; and that the discharge of insolvents, as well as bankrupts, should pro- tect all after-acquired property. It was during the Samnite war that the Roman law was passed prohibiting personal slavery for debt, and confining the creditor's remedy to the property of the debtor ; but the insolvent debtor, nevertheless, forfeited all his political rights. Dr. Arnold's Hist, of Rome, ii. 277. (a) N. Y. Revised Statutes, ii. 21. The English bankrupt laws have a more extensive and strict operation upon the bankrupt's property ; for the assignment, whenever made by the commissioner, operates by relation so far as to carry to the assignees all the property which the bankrupt had at the time of the commission of an act of bankruptcy. Vide supra, 390, n. The bankrupt is incapable of affecting his estate by any act of his, after an act of bankruptcy, though before the issuing of the commission. Smallcomhe v. Bruges, 13 Price Exch. 136. (b) Carlton r. Leighton, 3 Meriv. 667; Comegys v. Vasse, 1 Peters, 193, 220. (c) Kip V. Bank of New York, 10 Johns. 63; Dexter i-. Stewart, 7 Johns. Ch. 52; Yates V. Curtis, 5 Mason, 80. (d) Adamson & Armitage, Cooper's Eq. 283: Wagstaff v Smith, 9 Ves. 520. See Jlr. Ingraham's View of the Insolvent Laws of Pennsylvania, 2d ed. 223-227. (e) Ernst v. Sciaccaluga, Cowp. .527 ; Pease <:. Folger, 14 Mass. 264 ; MlfeiUy v. Richardson, 4 Cowen, 607 ; Ingraham on Insolvency, 168, 169. y' As to what actions of tort pass to assignee, see Noonan v. Orton, 34 Wis. 2.53 ; Dillard v. Collins, 25 Gratt. 343. [560] LKCT. XXXVII. j OP PERSONAL PROPERTY. * 402 before the assignment ; (a) and under the New York insolvent laws, a creditor cannot become a petitioning creditor in respect to any debt secured by a legal lien, unless he previously relin- quishes that lien for the general benefit of the creditors. (6) (3.) Attachments against Property. — The case of absconding and absent debtors may be referred to this head of insolvency. The attachment law of New York (like insolvent acts and the acts for the relief of debtors from imprisonment) is a legal mode by which a title to property may be acquired by operation of law. (c) When the debtor, who is an inhabitant of New York, absconds, or is concealed, a creditor resident within or out of the state, to whom he owes one hundred dollars, or any two, to whom he owes one hundred and fifty dollars, or any three, to whom he owes two hundred dollars, may, on application to a judge or commissioner, and on due proof of the debt and of the departure or concealment, procure his real and personal estate to be attached ; and on due public notice of the proceeding, if the debtor does not, within three months, return and satisfy the cred- itor, or appear and offer to contest the fact of having absconded, or offer to appear and contest the validity of the demand, and give the requisite security, then trustees are to be appointed, who become vested with the debtor's estate ; and they are to collect and sell it, and settle controversies, and make dividends among all his creditors in the mode prescribed. From the time of the notice, all sales and assignments by the debtor are declared to be void, (c?) If the debtor resides out of the state, and is indebted on a contract made within the state, or to a creditor residing within the state, although upon a contract made elsewhere, his property is liable to be attached and * sold *402 in like manner ; but the trustees are not to be appointed until nine months after public notice of the proceeding, (a) Per- (a) This is tlie case in most, and perhaps now in all, the states, though equality of distribution was understood not to exist some few years past in Maine, New Hamp- shire, and Vermont, and that the race of diligence among creditors was kept up. (l) N. Y. Revised Statutes, ii. 36, 46 ; Harth v. Gibbes, 4 M'Cord, 8. (c) N. Y. Revised Statutes, ii. 3-14. The provisions of the statute are minute and full of details, and a general outline only is given in the text. See also N. Y. Statute of JMay 8, 1845, c. 153, amending the same. (d) The colony act of New Brunswick transfers to the trustees all rights to action of the debtor existing at the time of their appointment. Ritchie v. Boyd, Kerr (N. B.), 264. (a) The personal representatives of a deceased debtor are not liable to be pro- voL, II. - 36 [ 561 J * 403 OP PERSONAL PROPEETT. [PART V. ishable goods, other than vessels, when attached under the Absconding Debtor Act, may be immediately sold and converted into money ; and if the sheriff, under the attachment, seizes property claimed by third persons, he is to summon a jury, and to take their inquisition as to the title to the property claimed. If any American vessel belonging to the debtor be attached under these proceedings, it may be released on the claimant of the vessel giving security to pay the amount of the valuation of the vessel to the trustees or to th^ debtor, as the case may be ; and if it be a foreign vessel, claimed by a third person, the attaching creditor must give security to prosecute the attachment, and pay the damages, if it should appear that the vessel belonged to the claimant. It has been decided that a creditor, having an unliquidated demand resting in contract, is a creditor within the Absconding Debtor Act, and competent to apply for the attachment. (J) It was formerly held, that the creditor who instituted proceedings against an absconding debtor must be a resident within the state ; (c) but the statute declares, that any creditor, residing in or out of the state, shall be deemed a creditor within the act, and he may proceed by attorney. Under the former statute laws of New York, the process by attachment did not apply in case of a foreign creditor against a debtor residing abroad, and whose debt was not contracted within the state, (d) The same provision still exists under the new revised statutes. Any creditor may proceed against an absconding or concealed debtor, being an inhabitant of the state, or against any non-resident debtor, * 403 if the contract was made in New York ; but if * the con- tract was made elsewhere, then the creditor miist be a resident of the state, (a) ceeded against under the attachment laws in New York. Jackson v. Walsworth, 1 Johns. Cas. .372 ; In the matter of Hurd, 9 Wendell, 465. But the proceedings by attachment may be instituted by assignees of the debt in their own names. Beasley V. Palmer, 1 Hill, 482. (6) Lenox v. Howland, 3 Caines, 323. This was under the act of 1801, and the N. Y. Revised Act of 1830 corers the very case. (c) Case of Fitzgerald, 2 Caines, 318. (rf) Ex parte Schroeder, 6 Cowen, 603. (o) N. Y. Revised Statutes, ii. 3, sec. 1, 2, 6, 7 ; Laws of N. Y., May 8, 184f, u. 153; Pitch's Case, 2 Wend. 298; In the matter of Brown, 21 id. 316. The attach- ment process for reaching the property of absconding and absent and non-resident debtors was a favorite measure of justice with the colonial legtslatures ; but in respect [ 562 ] LECT. XXXVII.] OP PERSONAL PROPERTY. * 403 Debtors imprisoned in New York in a state prison for a term less than their natural lives, or imprisoned in any penitentiary or to non-resident debtors, it was strongly opposed by the governor and council in some of the states, as being different from the mode of recovery allowed in like cases in England. Royal instructions were communicated to the colonial governors, to refuse assent to such attachment laws, and the subject was for some time a matter of discussion and warmth between the governor and house of assembly of North Carolina. The great objection on the part of the executive power was, that the attachment laws, as contended for by the colony, did not place the English and American creditors on an equal footing, but allowed the American creditor the pref- erence, in like manner as if he had obtained for his own benefit a judgment and execution. 2 Martin's Hist. N. C. 302. Attachment laws against the property, real and personal, of absconding and non-resident debtors, prevail throughout the several United States ; but these statute laws are not uniform on this point. In England, the proceeding by foreign attachment is used in London, Bristol, Liverpool, and Chester; but it has fallen into disuse in Oxford, Exeter, and other places. In the New England States the trustee process has in many respects the opera- tion of the domestic as well as foreign attachment, and it operates in a greater or less degree upon persons as well as property. The strict trustee process extends to the goods, effects, and credits of the principal debtor, in the hands of his agent, trustee, or debtor, and who, as trustee, is summoned to appear and answer. The first pro- cess in civil actions against the debtor is not only to compel appearance, but to attach the goods and estate of the debtor, and hold them in pledge to pay the debt or damages recovered. The strict trustee process does not extend to the real estate in the hands of the trustee. (Cushing's Treatise on the Trustee Process, 1833, pp. 6-16.) The Massachusetts Revised Statutes of 1836, part 3, tit. 4, c. 109, contain very specific, minute, and remedial provisions relative to the procesn of foreign attachment or trustee process. All personal actions, except detinue and replevin, and actions sounding in tort, may be commenced by this process, which authorizes the attach- ment of the goods and estate of the principal defendant in his own hands, and also in the hands of trustees or garnishees. Every person having goods, effects, or credits of the defendants intrusted to or deposited in his possession, may be summoned as a trustee, and the property in his hands attached and held to respond the final judg- ment in the suit. But there are limitations to the demands attachable by the trustee process; (1) No person is to be adjudged a trustee, by reason of having drawn, accepted, made, or indorsed any negotiable bill, draft, note, or other security ; (2) nor by reason of any money or other thing received or collected by him as sheriff, or other officer, by execution or other process in favor of the principal defendant; (3) nor by reason of any money in his hands, and for which he is accountable as a public officer, to the principal defendant ; (4 ) nor by reason of any money or other thing due from him to the principal defendant, unless due absolutely, and without depending on any contingency; (5) nor by reason of any debt due from him on a judgment, so long as he is liable to an execution on that judgment; (6) nor as . guardian for the debts of his ward. If a legacy accrue to the wife during coverture, it is, like her choses in action, liable to be attached by the trustee process, at a suit of a creditor of the husband, though not reduced to possession by him. Holbrook V. Waters, 19 Pick. 354 ; Gassett u. Grout, 4 Met. 486. By the act of 1838, c. 163, authorizing proceedings against insolyent debtors, upon their voluntary application> [563] *403 OP PERSONAL PROPERTY. [PART T. county jail for a criminal offence, for a term more than one year, are liable to tbe like proceedings against their estates as in or upon the application of a creditor, the proceedings are confined to resident debtors. Claflln V. Beach, 4 Met. 392. In Maine, the law concerning foreign attachment Is essentially the same under tha act of February 28, 1821, c. 61, and the several subsequent acts in addition thereto. The statute of 1835, c. 188, gave the trustee process against third persons holding the debtor's property by way of mortgage or pledge. The proceedings against trus- tees of debtors are of the same import in New Hampshire, by the act of July 3, 1829. The process reaches debts, choses in actian, stocks, &c., in the hands of third persons. So, also, in Vermont, by the several statutes of October 1, 1797, November 10, 1807, November 6, 1817, and November 10, 1830, the trustee process is given to creditors against persons possessed of money, goods, chattels, rights, or credits of concealed oi absconding debtors, or of debtors residing out of the state, or removed out of the state, leaving efEects within it. The Kevised Statutes of Vermont, 1839, p. 188. It has, however, been held, and very justly, that a person residing out of the state, and coming within it for a temporary purpose, is not liable to be summoned as a trustee of an absconding, concealed, or absent debtor. Baxter v. Vincent, 6 Vt. 614. The same principle applies to the trustee process in Massachusetts. Ray v. Underwood, 3 Pick. 302. From the time of service of process on the trustee, it fixes the property or debt in his hands, as a stakeholder for the party ultimately entitled. But it will not hold choses in action previously assigned with notice. The attaching creditor acquires priority according to the order of time. The Massachusetts practice in re- spect to the trustee process goes further than that of Connecticut or Vermont, and gives it against any person as the trustee of his resident neighbor. Leach v. Cook, 10 Vt. 239. Neither in Vermont or Ohio can the foreign attachment be sustained, unless all the debtors are non-residents or have absconded. Leach v. Cook, supra: Taylor v. McDonald, 4 Ohio, 149. In Connecticut, the effects and debts of absconding, or absent or non-resident debtors, in the hands of any agent, factor, trustee, or debtor, may be attached by any creditor by the process of foreign attachment. Statutes of Connecticut, 1838, p. 287. But choses in action, as notes not negotiable, are not goods and chattels liable to the process of foreign attachmeht, or liable to be sold on execution. Fitch v. Waite, 5 Conn. 117; Grosvenor v. F. & M. Bank, 13 id. 104. It lies, also, against debtors imprisoned for debt, who shall not, within three months, be admitted to take the poor man's oalh ; and debtors discharged from imprisonment are to be deemed absconding debtors, so as to allow the creditor to proceed against their goods and effects in the hands of their attorney, agent, trustee, or debtor. Statutes of Connect- icut, 1838, pp. 293, 294. In Rhode Island, under the statute of January, 1822, the trustee process lies against the attorney, agent, factor, trustee, or debtor, of absent or non-resident or concealed debtors; and also against the personal estate of any incorporated com- pany established without the state, and being indebted, and having personal estate in the possession of any person or corporate body within the state. Seamen's wages are exempted from the attachment process, prior to the termination of the voyage. In New Jersey, the attachment issues by any creditor, foreign or domestic, against absconding or non-resident debtors; and the statute is very provisional, and is construed liberally for the benefit of creditors. The attachment becomes a lien from the time of executing the same. It reaches all the debtor's property and eifects in [564] LECT. XXXVII.] OP PERSONAL PROPERTY. * 403 the case of absconding debtors. (6) The court in which proceed- ings under the Absconding Debtor Act are pending, has an the possession of the garnishee or debtor's debtor. The property attached is dis- tributed, ratably, among all the creditors who corae in on due notice ; and in this respect it resembles the New York attacliment law. Elmer's Digest, 20-31 ; R. S. New Jersey, 1847, p. 48. In Pennsylvania, the process of domestic attachment is provided by statute against absconding and concealed debtors, and resident debtors who are absent. Trustees are appointed, and the proceeds ratably distributed among all the creditors who come in and prove their demands! Purdon's Digest, 277, 282. The process of for- eign attachment is for the exclusive benefit of the attaching creditor, and it may issue at the suit of any creditor, resident or non-resident. MuUiken v. Aughinbaugh, 1 Penn. 117. It issues against the estate, real and personal, of non-resident debtors, and of debtors confined for crimes. Process may be awarded against any person who has property or effects, or money of the debtor in possession ; and the attach- ment binds all the estate, real and personal, of the debtor in his own hands, or in those of his trustee, debtor, or garnishee. Purdon's Digest, 45, 46, 435. The foreign attachment can only be sued out against a debt presently demandable, but a domestic attachment, like a commission of bankruptcy under 6 George IV., can be sued out for a debt not due, for it is a process of distribution among creditors. 4 Watts & S. 201. But under the attachment law's of Pennsylvania, stock of the United States, standing in the name of the debtor on the books of the treasury, cannot be attached. Neither the United States, nor the officers of the treasury, in their official capacity, are amenable to the process of law or equity. Opinions of the Attorneys General, j. 657-665 (Oct. 20, 1828). The very clear and able argument of Mr. Wirt, the Attorney General, would seem to be equally applicable to the laws of every state ; and the only limitation to the principle is, where the United States held the stock as stakeholders, ready to pay to the rightful claimant; and a voluntary submission, on terms, to the process, is recommended, to have the rightful claim judicially ascer- tained. In Ohio, the process of attachment lies at the instance of any creditor, resident or non-resident, and whetlier the debtor has absconded or is a non-resident ; and the statute regulates proceedings against the garnishee, in whose possession the property may be, or who owes money to the original debtor, Chase's Statutes of Ohio, ii. 1321 ; and in Indiana and Illinois, the foreign attachment lies against the estate of non-resident debtors, and against their effects and property in the hands of a gar- nishee, and the proceeding is for the benefit of the plaintiff ; but in Illinois, if the process be against the estate of a non-resident debtor, the creditor must be a resident. Revised Laws of Indiana, ed. 1838, pp. 73-79 ; Revised Laws of Illinois, ed. 1833, pp. 82, 83. So in Maryland, under the act of 1825, the creditor must be a resident of tlie United States. Weve'r v. Baltzell, 6 Gill & J. 335 ; Baldwin v. Neale, 10 id. 274. The laws of several of the states are restrictive as to the character of the plaintiff. In North Carolina and Tennessee, the creditor, in the case of an absconding debtor, need not be a resident; but in the case of an attachment against a non-resident debtor, he must be. 1 Minor (Ala.), 14, 69 ; North Carolina Statutes, 1777, c. 115 ; N. C. Revised Statutes, i. 71 ; Tennessee Act of 1794 ; 1 Yerg. 101 ; 6 id. 473. By the old attachment law of Alabama, only resident citizens could commence suits by attachment, but a subsequent statute gave the power equally to non-resident plaintiffs. (6) N. T. Revised Statutes, ii. 15. [565] * 403 OP PERSONAL PROPERTY. [PAET T, equitable jurisdiction over all claims between the trustees and the creditors. The trustees are liable to be called to account at the 2 Ala. N. s. 326. In Tennessee, no attachment will lie against property, when both creditor and debtor are non-residents, unless judgment had been first obtained, and execution issued in the courts of the jurisdiction where the defendant was a resident ; nor in cases in which personal service of process cannot be made, nor an attach- ment at law lie. In those special cases, the non-resident creditor may, by a bill in chancery, cause stocks and choses in action, and other property belonging to the non-resident defendant, or held in trust for him, to be applied to his debt. Stat. 1801, c. 6 ; Stat. 1832, c. 11 ; Garget v. Scott, 9 Yerg. 244, where the reason of their statute law is clearly and justly vindicated ; Stat. 1836, c. 43. In Virginia, Mis- souri, and liouisiana, the foreign attachment lies, though both the creditor and debtor reside out of the state. Williamson v. Bowie, 6 Munf. 176; Posey v. Buckner, 3 Mo. 604 ; Flower v. Griffith, 12 La. 345 ; 5 id. 300. The statute of Missouri seems to apply to all creditors, and the attachment and proceeding j"n rem, and against prop- erty in the hands of garnishees, apply when the debtor is a non-resident, or lias absconded, or concealed, or absented himself, or is about to remove his property out of the state, or fraudulently to convert it. Revised Statutes of Missouri, 1835, p. 75. In Virginia, the domestic attachment lies against the absconding debtor, and also against non-resident debtors for debts not exceeding f 20, and against a gamisliee, though the debt be not due. The foreign attachment lies against absent debtors ; and resident debtors of the foreign debtor may be prosecuted as garnishees. 1 Revised Code, ed. 1814, p. 160; 2 id. 98. It is grounded upon two facts : non-residence of tlie debtor, and his having effects in Virginia ; and the proceeding is conclusive against parties and privies. Mankin v. Chandler, 2 Brock. 125. In the case of non-resident debtors, it is a general principle that all the proceedings are construed strictly, for the greater safety of the absentee, to whom notice may not have reached. State Bank V. Hinton, 1 Dev. (N. C.) 397. In Kentucky, the lands of a non-resident debtor may be appropriated by attachment by the creditor, if the debtor has no personal property. 9 Dana, 98, 266. So a bill in equity will lie to sequester the effects of absent debtors in the hands of persons resident in the state. Statutes, 1796, 1827, 1837. These stat- utes give the remedy against the lands and goods of non-resident and absent debtors. 9 Dana, 307, 308 ; 3 B. Mon. 119. In South Carolina, their foreign attachment law is founded on, and has received construction from, the custom of London. Smith i/. Posey, 2 Hill, 471. See Rice's valuable Digest on the cases decided in that state, and in which the decisions, under the title of "attachment (foreign)," are fully and clearly stated. In Georgia, the same process of domestic attachment lies when the debtor is absconding ; and if he is about to remove, it lies, though the debt be not due. Tlie foreign attachment lies when the debtor is a non-resident, and also in favor of a non- resident creditor. It reaches debts and credits in the hands of the garnishee, and is for the benefit of the plaintiff in the attachment. Prince's Digest, 2d ed. 1837, pp. 30-42. The same statute provisions in Alabama. Aikin's Digest, 2d ed. 37-40. In Louisiana, they have the like process of attachment as in the other states, when the debtor absconds, or is about to remove, or is non-resident. Third persons, who have funds and effects of the debtor in hand, may be cited to answer npon interroga- tories ; and if the garnishee has funds of the debtor, the creditor, after judgment against the debtor, may pursue them by judgment and execution against the gar- nishee. Proseus v. Mason, 12 La. 16. The debtor about to remove may be arrested [566] LECT. XXXVII. J OF PERSONAL PROPERTY. * 404 instance of either the debtor or creditor. So the assignees, under the Insolvent Act, are * declared to be trustees ; * 404 and where thei'e are two trustees, either of them may col- lect the debts ; and where there are more than two, the powei'S appertaining to the trust may be exercised by any two of them. But no suits in equity are to be brought by the assignees of insolvent debtors, without the consent of a majority of the creditors in interest, unless the sum in controversy exceeds $500. They are to sell the assets at auction, and may allow a reasonable credit on good security. They a,re to redeem mortgages and pledges, and conditional contracts, and settle accounts, and com- pound with debtors under the authority of the officer appointing them. They are to call a general meeting of the creditors ; and the mode of distribution is specially declared. They are to de- clare dividends ; and dividends unclaimed for a year are to be deemed relinquished. They are to account upon oath, and are allowed a commission of five per cent on all moneys received ; and they may be discharged from their trust by the proper author- ity on their own application, and new assignees appointed in their stead, (a) These trustees, in many respects, resemble com- missioners under the English bankrupt laws ; and the proper remedy against them is, either by a bill in chancery, or an appli- cation to the equitable powers of the court in which the proceed- ings are pending, to compel an account and an adjustment. It was held, in Peck v. Randall, (6) that the creditor could not maintain a suit at law against the trustees of an absconding debtor before the demand had been adjusted and a dividend declared. In England, it is well settled in the analogous case of a claim for and held to bail, though the debt be not due. Desha v. Solomons, 12 La. 272 ; ib. 479. If the garnishee be a consignee of goods, and has made advances on them, lie may claim a preference as a creditor of consignor, if the attachment be levied while the goods are in transitu, and before delivery to the consignee. Wilson u. Smith, 12 La. 375 ; Gardiner v. Smith, ib. 370. In Mississippi, there is the like process of foreign and domestic attachment against non-resident and absconding debtors, and debtors preparing to remove, though the debt be not due. Debts and credits of the debtor in the hands of third persons may be attached by process of summons or garnishment. The party suing out a foreign attachment must be a resident. R. Code of Mississippi, 1824, pp. 157-168. The process of attachment in most of the states is for the exclusive benefit of the attach- ing [creditor]. But a court of equity has jurisdiction of a bill filed by a non-resident plaintiff against a non-resident debtor, if there be also a resident defendant. Comstock v. Bayford, 1 Sm. & M. 423 ; ib. 584, 8. p. (a) N. Y. Kevised Statutes, ii. 39-51. (6) 1 Johns. 165. [567] *406 OP PEHSONAL PROPERTY. [PART V. dividends on the bankrupt's estate, that a suit at law cannot be sustained for a dividend, and that the creditor applies to the Court of Chancery for assistance to obtain it. (c) A grave and difiBcult question has been frequently dis- cussed in our American courts, respecting the conflicting * 405 * claims arising under our attachment laws, and under a foreign bankrupt assignment. If a debtor in England owing a house in New York, as well as creditors in England, be regularly declared a bankrupt in England, and his estate duly assigned, and if the house in New York afterwards sues out process of attachment against the estate of the same debtor, and trustees are appointed accordingly, the question is, which class of trustees is entitled to distribute the fund, and to whom can the debtors of the absent or bankrupt debtor safely pay. In such a case, there are assignees in England claiming a right to all the estate and debts of the bankrupt, and there are trustees in New York claiming the same right. This question was considered in Holmes V. Remsen, (a) and the English and Scotch, and other foreign authorities examined-; and the conclusion was, that by the Eng- lish law, and by the general international law of Europe, the proceeding which is prior in point of time is prior in point of right, and attaches to itself the right to take and distribute the estate. It was considered that as the English assignees in that case were first appointed, and the assignment of the bankrupt's estate first made to them, that assignment carried the bankrupt's property, wherever situated ; and it consequently passed the debt due by a citizen of this state to the English bankrupt ; so that a payment of such a debt to the English assignees was a good payment in bar of a claim for that same debt, by the * 406 trustees, under our Absconding Act. This * rule appeared to be well settled, (a) and to be founded in justice and (c) Ex parte White, and Ex parte Whitchurch, 1 Atk. 90; Assignees of Gardiner V. Shannon, 2 Sch. & Lef. 229. (a) 4 Johns. Ch. 460. (a) The authorities cited in Holmes v. Remsen, to show that the rule contended for in that case was incontrorertibly established in the jurisprudence of the United Kingdoms of Great Britain and Ireland, are Pipon v. Pipon, Arab. 2-5 ; case of Wilson, before Lord Hardwicke, cited by Lord Loughborough, in 1 H. Bl. 691 ; Solomons v. Ross, ib. 131, note; JoUett v. Deponthieu, ib. 132, note; Neal v. Cottingham & Houghton, ib. ; Phillips v. Hunter, 2 id. 402 ; Sills o. Worswick, 1 id. 665 ; Lord Thurlow, in the case Ex parte Blakes, 1 Cox, 398 ; Lord Kenyon, in Hunter k. Potts, [668] LECT. XXXVIT.J OP PERSONAL PROPERTY. * 406 policy, and the comity of nations. It rested on the principle of general jurisprudence that personal property was deemed, by fiction of law, to be situated in the country in which the bank- rupt had his domicile, and to follow the person of the owner ; and it was to be administered in bankruptcy according to the rule of the law of that country, as if it was locally placed within it. No doubt was entertained, that if the appointment of trustees under the New York act had been the first in point of time, the title of the trustees wo'uld have been recognized in the English courts, as controlling the personal property in England. By the same rule, the English assignees, being first in time, were held entitled to control the personal property of the debtor existing in New York. But whatever consideration might otherwise have been due to the opinion in that case, and to the reasons and decisions on which it rested, the weight of American authority is decidedly the other way ; and it may now be considered as part of the set- tled jurisprudence of this country, that personal property, as against creditors, has locality, and the lex loci rei sitce prevails over the law of the domicile with regard to t"he rule of preferences in the case of insolvent's estates. The laws of other governments liave no force beyond their territorial limits ; and, if permitted to operate in other states, it is upon a principle of comity, and only when neither the state nor its citizens would suffer any incon- venience from the application of the foreign law. (6) A prior assignment in bankruptcy, under a foreign law, will not be per- mitted to prevail against a subsequent attachment by an Ameri- can creditor of the bankrupt's effects found here ; and our courts will not subject our citizens to the inconvenience of seeking their 4 T. R. 182 ; Lord EUenborough, 5 East, 131 ; Stein's Case, 1 Rose's Cas. in Bank- ruptcy, App. 462 ; Selkrig v. Davis and Salt, 2 Dow, 230 ; 2 Rose's Cas. in Bank- ruptcy, 291. By the Scotcli law, the foreign assignment will not prevent a subsequent attachment in Scotland by a Scotch creditor, unless notice of the assignment be given to, or had by, the creditor. No such notice is requisite to the operation of the assign- ment under the English law. The English doctrine applies equally to voluntary and bona fide assignments of personal property by the owner domiciled abroad, to assign- ments under bankrupt and insolvent statutes, and to the distribution of the movable property of testators and intestates by will, and under the law of distribution. The cases all rest on the same general principle giving a universal operation to transfer, or the disposition of personal property, made or existing at the owner's domicile, wherever that property may be situated, and when not bound by any local lien at the time. (i) Parsons, Ch. J., in Greenwood v. Curtis, 6 Mass. 378 ; Porter, J., in Olivier v. Townes, 14 Martin (La.), 99-101. [569] *407 " OP PERSONAL PROPERTY. [PART V. dividends abroad when they have the means to satisfy *407 them under their own control. *This was the rule in Maryland prior to our Revolution, according to the opinion of Mr. Dulany, reported in Burh v. M' Clain; (a) and afterwards in 1790, it was decided in Wallace v. Patterson, (J) that property of the bankrupt could be attached here, notwithstanditig a prior assignment in bankruptcy in England. The same doctrine was declared in Pennsylvania, (e) after an elaborate discussion of the question. The court in that sta,te considered that an assignment abroad, by act of law, had no legal operation extra territorium, as against the claims of their own citizens. But the foreign assignee in bankruptcy may sue in Pennsylvania in the name of the bank- rupt, for the assets of the estate, and cecover them, except as against the rights of the American creditor. (cZ) The same doctrine was declared in North Carolina as early as 1797. (e) In South Carolina the question arose in the case of The Assignees of Topham v. Chapman, in 1817 ; (/) and the court in that case followed some prior decisions of their own, and the case of Taylor v. Geary, decided in Connecticut as early as 1787 ; Qg) and they held that law, justice, and public policy all combined to give a preference to their own attaching creditors. So, in Vir- ginia and Kentucky, under their statute laws, all real and personal property within the state, even debts and choses in action, are held to be bound by the attachment laws of the state, though the owner should execute an instrument in control of it at his domicile abroad. The rule of curtesy is held to be over- ruled by positive law. The law of the locus rei sitae overrules the law of the domicile in this case, and debts due to absentees have so far locality, and are subject to attachment by the credit- (a) 1 HaiT. & M'Hen. 236. (6) 2 id. 463. (c) Milne w. Moreton, 6 Binney, 353. See Mulliken i'. Aughinbaugh, 1 Penn. 117, to the same point. See also Ogden v. Gillingham, Baldw. C. C. 38 ; Lowry «. Hall, 2 Watts & S. 129. (d) Merrick's Estate, 2 Ashm. 485 ; s. c. 5 Watts & S. 20. This is the scope of the American cases ; and the New York case of Abraham v. Plestoro, 3 Wend. 538, went further when it ruled the foreign assignment in bankruptcy void, eyen as against a British creditor, not domiciled here. They do not go so far in Pennsylvania. Lowry v. Hall, supra ; Mulliken v. Aughinbaugh, 1 Penn. 117. (c) M'Neil V. Colquhoon, 2 Hayw. 24. (/) Const. S. C. 283. See also Robinson v. Crowder, 4 M'Cord, 619, to the same point. (g) Kirby, 313. [570] LECT. XXXVII.j OP PERSONAL PROPERTY. ^407 ors of such absentees. But the rule is not carried so far as to apply to absolute sales, bona fide for a valuable consideration, of chosesin action, accompanied with assignment and delivery of the evidences of the debt. (A) The point arose in the Supreme Court of Massachusetts, Ingraham v. G-eyer, "in 1816 ; (i) and they would not allow even a voluntary assignment by an insolvent debtor in another state, to control an attachment in that state, of the property of the insolvent, made subsequently to the assign- ment, and before payment to the assignees; and the court denied that any such indulgence was required by the practice or comity of nations. (^') ^ The opinion in the case of Rolmes v. Rem- (h) Huth V. Bank of the United States in Chan., Louisville, Ky., August, 1843 [4 B. :\Ionr. 423]. (i) 13 Mass. 146. (j ) See also, to the same point, Borden v. Sumner, 4 Pick. 265 ; Blake v. Wil- liams, 6 id. 286 ; I'all Eiver Iron Works v. Croade, 16 id. 11 ; Fox v. Adams, 1 Lex loci ret sitce as affecting the Trans- fer of Chattels. — It seems now to be accepted as law that such an assignment will not affect movable (i. c. corporeal) property in another state, at least in the courts of that state, if it is contrary to law there, although valid and legal at the domicile of the assignor where it was made. Guillander v. Howell, 35 N. Y. 657 ; Green v. Van Buskirk, 7 WaU. 139, 150 ; s. c. 5 Wall. 307; Moore .-. Bonnell, 2 Vroom, 90 ; Zipcey v. Thompson, 1 Gray, 243 ; Kidder v. Tnfts, 48 N. H. 121, 125. But see Law v. Mills, 18 Penn. St. 185 ; Hanford v. Paine, 32 Vt. 442 ; Rice v. Courtis, ib. 460 ; Livermore v. Jenckes, 21 How. 126. ari In Southern Bankii. Wood, 14 La. An. 554, a vessel at sea was held to pass by an assignment in another state in trust for creditors as against an attach- ment on its arrival in port. But Massachu- setts assignees in insolvency of a vessel at sea were held to have no claim as against a New York creditor attaching in port in Kelly V. Crapo, 45 N. Y. 86. A distinction is sometimes taken between movables and debts, and it is said that the latter follow tlie person of the creditor. Guillander v. Howell, 35 N. Y. 657, 661, citing Caskie v. Webster, 2 Wall. Jr. 131, and other cases. And this again is perhaps to be qualified by the rule that contracts respecting pub- lic funds, stock, &c., regulated by peculiar local laws, must be made and carried into execution according to those laws. Dow V. Gould & Curry S. M. Co., 31 Cal. 629, 6-53 ; Black v. Zacharie, 3 How. 483 ; Story, Confl. L., § 383. See 458, n. (o) ; but compare 430, n. (/"). In Moore u. Bonnell, supra, which was the case of an assignment in New York of a debt due from a New Jersey creditor, although the x' Hervey v. E. I. Locomotive Works, 93 U. S. 664 ; Pierce v. O'Brien, 129 Mass. 314; Clark !). Tarbell, 58 N. H. 88. Kelly V. Crapo, .ater in the note, was reversed in the United States Supreme Court. Crapo B. Kelly, 16 Wall. 610. • In Osgood V. Maguire, 61 N. Y. 524, it was held that a receiver who took in New York promissory notes made by a Massa- chusetts citizen, but payable in New York, could hold them as against a subsequent attaching creditor of the debt in Massa- chusetts. See especially on subject, Story, Confl. of Laws, 8th ed. 543, a; Canada Southern R. R. Co. v. Gebhart, 109 U. S. 527. [571 J *408 OP PERSONAL PROPERTY. [PART V. » sen was also questioned by one of the judges of the 408 * Supreme Court of New York, in a suit at law between the same parties, (a) And still more recently, in the Su- preme Court of the United States, (5) the English doctrine (for it is there admitted to be the established English doctrine) was peremptorily disclaimed, in the opinion delivered on behalf of the majority of the court, (c) 5 Green, 245; Olivier v. Townes, 14 Martin (La.), 93; Norris v. Mumford, 4 id. 20; The Brig Watchman, in the District Court of Maine, Ware, 232 ; Saunders v. Wil- liams, 5 N. H. 213 ; Mitchel v. M'Millan, 3 Martin (La.), 676, to the same point. But in Goodwin a. Jones, 3 Mass. 517, C. J. Parsons held to the English doctrine ; and in Bholen v. Cleveland, 5 Mason, 174, an assignment vras held to prevail over a trustee or attachment process, as against creditors living in the same state with the debtor. It is likewise held, in Rogers v. Allen, 3 Ohio, 488, that an assignment by an insol- vent debtor in one state will not affect the title to lands in another state in derogation of the lac rei sitae. In South Carolina, a bona fide foreign assignment in trust for creditors takes precedence of a subsequent attachment levied within the state, but not if executed under the operation of a statute of bankruptcy. Green v. Mowry, 2 Bailey, 163. (a) Piatt, J., in 20 Johns. 254. (6) Ogden v. Saunders, 12 Wheaton, 213. In Harrison v. Sterry, 5 Cranch, 289, the Supreme Court of the United States had long previously held that the bankrupt law of a foreign country could not operate a legal transfer of property in this country. The doctrine rests on the same footing between one state and another. An assign- ment in invitum under the law of one state or nation, has no operation in another, even with respect to its own citizens. Abraham v. Plestoro, 3 Wend. 538 ; Johnson V. Hunt, 23 id. 90, 91. (c) It was the received doctrine in England, according to the opinion of counsel, as early as 1715, that the English creditors of an insolvent debtor residing in Holland, could attach and recover by execution levied on his effects in England, without being responsible to the curator in Holland, who had entered upon his trust prior to the attachment in England. See opinions of R. Raymond, J. Jekyl], and others, In the Appendix, 254-256, of Mr. Henry's Treatise on Foreign Law. In Blake v. Williams, 6 Pick. 286 ; Lord v. The Brig Watchman, in the District Court of Maine, Ware, 232 ; Abraham v. Plestoro, 3 Wend. 538 ; and Johnson u. Hunt, 23 id. 87, the ques- tion was again discussed, and the decisions made in entire conformity with the gen- eral doctrine now prevalent in the United States. The authorities for the contrary and more liberal doctrine in the English, Scottish, and Irish courts, are collected in Bell's Commentaries, ii. 681-687, as well as in the case of Holmes v. Remsen, supra, 405. Mr. Bell says that the rule giving effect to conveyances, made for the purpose of collecting and distributing among creditors the funds and estate of the debtor, according to the law of his residence and seat of trade, does not rest in any legislative enactment, but upon those principles of international law which guide the connection distinction between movables and debts 69. But see Green w.Van Buskirk, 7 Wall, was disregarded, it was considered that 139, 151. See, as to the law governing the assignment could not be impeached transfers of ship and cargo, bottomry, &c., in the New Jersey courts by a New York post, iii. 164, n. 1 ; 174, a. 1. creditor. Ace. Einer v. Deynoodt, 39 Mo. [672] LECT. XXXVII.] OP PERSONAL PROPERTY. * 409 4. By Intestacy. — The last instance which was mentioned of acquiring title to goods and chattels by act of law was the case of intestac3^ This is when a person dies, leaving personal prop- erty undisposed of by will ; and, in such case, the personal estate, after the debts are paid, is distributed to the widow, and among the next of kin. To avoid repetition and confusion, I shall be obliged to confine myself essentially to the discussion of the * leading principles of the English law, and assume * 409 them to be the law of the several states, in all those cases in which some material departure from them in essential points cannot be clearly ascertained. This title will be best explained by examining — 1. To whom the administration of such property belongs, and to whom granted ; 2. The power and duty of the administrators ; and, 3. The persons who succeed to the personal estate by right of succession. (1.) Of granting Administration. — When a person died in- testate, in the early periods of the English history, his goods went to the king as the general trustee or guardian of the state. This right was afterwards transferred by the crown to the popish clergy ; and, we are told, it was so flagrantly abused that Parlia- ment was obliged to interfere and take the power of administra- tion entirely from the church, and confer it upon those who were more disposed to a faithful execution of the trust. This pro- duced the statutes of 31 Edw. III. c. 11, and 21 Hen. VIII. c. 5, from which we have copied the law of granting administrations in this country, (a) The power of granting administration, and of superintending the conduct of the administration, was still between states, and prescribe the authority which is to be allowed by each to the institution and laws of another. The whole doctrine of the international effect of bankruptcy is a consequence of the general principle of universal jurisprudence, that personal property, wherever situated, is regulated by the law of the bankrupt's domicile ; while, on the other hand, real property is governed by the law of the territory in which it is situated. The law on this vexed subject of the effect to be given to foreign assignments is examined, and all the authorities and arguments pro and con collected and reviewed in Story's Commentaries on the Conflict of Laws, pp. 336-357. In Canada, an English commission of bankruptcy operates as a voluntary assign- ment by the bankrupt, but rights and privileges acquired by the provincial creditors are not affected by the commission or assignment. Bruce v. Anderson, Stuart's Lower Canada, 127. (a) Hensloe's Case, 9 Co. 38, b ; 2 BI. Comm. 494-496. [5731 * 409 OF PERSONAL PEOPERTY. [PART V. left in the hands of the bishop or ordinary in each diocese. In our American law we have assigned this, as well as other secular matters, to the courts and magistrates of civil jurisdiction. (6) Before the Revolution, the power of granting letters testamen- tary and letters of administration resided in New York, in the colonial governor, as judge of the prerogative court, or court of probates of the colony. It was afterwards vested in the court of probates, consisting of a single judge, and so continued until 1787, when surrogates were authorized to grant letters testa- mentary and letters of administration of the estates of persons dying within their respective counties. If the person died out (6) In some of the states the jurisdiction concerning the probate of wills and the administration of testators' and intestates' estates is vested in the county courts. In others it is confided to courts of special jurisdiction, under the various names of the court of probates, the registers' court, the orphan's court, the court of the ordinary, and the surrogate's court. The county courts of Alabama, when sitting as courts of probates, are denominated Orphan's Courts, and they have a very extensive jurisdic- tion over the estates of deceased persons. In Indiana, by act of February 17, 1838, the court of probates in each county consists of one judge, elected by the people sep- tennially, and the court has exclusive jurisdiction in matters of probate of wills, and administration, and guardianship, and the settlement of decedent's estates, and con- current jurisdiction in all suits at law and in equity in favor of and against heirs, executors, administrators, and guardians, where the amount in controversy exceeds $50, and in partition and dower, and it may authorize guardians to sell real estate to pay debts, and support infants, lunatics, &c. It may command jury trials in proper cases. The probate jurisdiction is plenary and highly important, and the statute conferring the powers is very provisional, and seems to be well digested. Revised Statutes of Indiana, 1838, pp. 172, 459. A court of probates in Mississippi is estab- lished in each county, and has the like enlarged and discretionarj' jurisdiction in all matters of wills and of administration, and of sales and distribution of the estates of decedents ; and, as far as the jurisdiction extends, it is exclusive, and has powers as ample as a court of chancery. 2 Sra. & M. 326, 330, 333 ; Farve v. Graves, 4 id. 707. The act in Missouri, concerning executors and administrators, is comprehen- sive, and their powers and duties are well defined. The jurisdiction resides in the county courts. Revised Statutes of Missouri, 1835, p. 40. So in Kentucky and North Carolina, the county courts have exclusive jurisdiction to establish wills of real and personal estates. Hunt v. Hamilton, 9 Dana, 91 ; IN. C. Revised Statutes, 1837, pp. 620, 621. The revised statutes in each state, and especially where the revisions have been recent, contain a special detail of the jurisdiction and power of probate courts. We can only allude occasionally and by way of illustration, to the local statutes. The law of Maryland on Statutory Testamentary Law is collected by Judge Dorsey, and the volume is enriched by a reference to the decisions of the courts on the subject. In New Jersey, the governor, by the constitution, until 1844, was ex officio the ordinary as well as the chancellor of the state, and he consequently had jurisdiction to take proof of wills and to grant letters testamentary, and letters of administration. But by the constitution of 1844, the chancellor is declared to be the ordinary or surrogate general and judge of the prerogative court. [574] LECT. XXXVII.J OP PERSONAL PROPERTY. *410 of the state, or within * the state, not being an inhabitant *410 thereof, the granting of administration was still reserved to the court of probates, (a) This practice continued until the act of March 21, 1823, (ft) when the court of probates was abolished, and all the original powers of that court were trans- ferred to the surrogates ; and each surrogate has novf jurisdiction, exclusive of every other surrogate, within his county, when the testator or intestate was, at his death, an inhabitant of the county, in whatever place he may have died ; or not being an inhabitant of the state, died in the county, leaving assets therein ; or not being an inhabitant of the state, died abroad, leaving assets in the county of the surrogate ; or not being an inhabitant of the state, and dying out of it, assets of such testator or intestate should thereafter come into the county ; or when no jurisdiction is gained in either of the above cases, real estate, devised by the testator, is situated in the county, (c) The first judge of the county acts in cases in which the surrogate is disqualified to act ; and the county treasurer in each county acts as a public adminis- trator in special cases. There is likewise a public administrator in the city of New York, with enlarged jurisdiction in special cases of intestates' estates. He is authorized to act as public administrator in cases where there are effects in the city, of per- sons dying intestate, and leaving no widow or next of kin com- petent and willing to administer, (^d) Administration is directed, by the New York Revised Statutes, to be granted to the husband on the wife's personal estate, and in other cases to the widow and next of kin, or to some one of them, if they, or any of them, will accept, in the following order : first, (a) L, N. Y. ses3. 1, c. 12, and sesB. 10, c. 38; Goodrich v. Pendleton, i Johns. Ch. 552. (6) Sess. 46, c. 70. (c) N. Y. Revised Statutes, ii. 73, sec. 23 ; N. Y. act, 60th sess. c. 460, sec. 1. In England, generally speaking, all ecclesiastical testamentary jurisdictions are lim- ited in their authority to property locally situated within their district. Crpsley v. Archdeacon of Sudbury, 3 Hagg. E. R. 199. In Tennessee, letters of administration granted not in the county of the decedent's residence and domicile are void. Wilson V. Erazier, 2 Humph. 30. (d) N. Y. E. S. ii. 79 ; ib. ii. 117-133. By the act of April 20, 1830, in amendment of the Revised Statutes, further provision is made for the case in which the first judge of the county cannot act as surrogate. The trust devolves on the district attorney of the county, and eventually on the chancellor. In New Jersey, if the intestate leaves no relations to administer, the ordinary grants administration on due security to any proper applicant. K. S. N. J. 1847, p. 846. [575] *411 OF PERSONAL PROPERTY. [PART T. to the widow; second, to the children; third, to the father; fourth, to the brothers ; fifth, to the sisters ; sixth, to the grand- children; seventh, to any other of the next of kin who * 411 would be entitled to a share iu * the distribution of the estate, (a) ^ Under the English law (and the law of New York, and it is presumed the law of the other states is the same), (J) the surrogate has the discretion to elect, among the next of kin, any one in equal degree, in exclusion of the rest, and to grant to such person sole adgiinistration. So, under the Eng- lish law, he may grant administration to the widow or next of kin, or to both jointly, at his discretion, (c) To guard against impo- sition or mistake in issuing letters of administration prematurely, the surrogate is required to have satisfactory proof that the person of whose estate administration is claimed is dead, and died intes- tate ; and when application is made to administer, bj' any person not first entitled, there must be a written renunciation of the party having the prior right to administer, or a citation to show cause is to be first issued to all such persons, and duly served or otherwise published, (^d) According to the provision in the New York Revised Statutes, if none of the relatives, or guardians of infant relatives (for the guardians of minors who are entitled may administer for them), will accept the administration, then it is to be given to the cred- (a) N. Y. Revised Statutes, il. 74, sec. 27, 29. The rule in England is to grant administration to the husband on the wife's estate, and in other cases to the widow or next of kin, or both, at discretion. The nearest of kin to the intestate has prefer- ence ; and of persons in equal degree, the ordinary may take which he pleases. The nearness of kin is computed according to the civil law. 2 Bl. Comm. 504. (6) N. Y. Revised Statutes, ii. 74, sec. 28. (c) Fawtry v. Fawtry, 1 Salk. 36 ; Anon., Str. 552 ; Case of Williams, 3 Hagg. Ecc. 217. The N. Y. Revised Statutes, ii. 74, sec. 27, seems to have destroyed this discretion. But the Massachusetts Revised Statutes, 1836, and the New Jersey statute of 1795, Elmer's Dig. 165, leave it as in the English law. (rf) N. Y. Revised Laws, ii. 74, sec. 26; ib. 76, sec. 35, 36. In England, an executor who has renounced, may retract before administration is actually granted to another. M'Dnnnell v. Pendergast, 3 Hagg. Ecc. 212. And in New York, tlie surrogate may, with the consent of the person entitled, join one or more competent persons with him in the administration. When administration is granted to two or more persons, it being an entire thing, if one dies, the entire authority remains with the suvivors, the same as in the case of executors. Lewis v. Brooks, 6 Yerg. 167. > What follows being a matter of made to note the changes which have local statute law, no attempt has been taken place. [576] LECT. XXXVII.] OF PERSONAL PROPERTY. * 412 iters of the deceased ; and the creditor first applying, if otherwise competent, is to be preferred, (e) If no creditor applies, then to any other person legally competent. (/) In the city of New York the public administrator has preference after the next of kin ; and in the other counties the county treasurer has prefer- ence next after creditors. (£) In the case of a married woman dying intestate, the husband is entitled to administration in pref- erence to any other person ; and he is liable, as administrator, for the debts of his wife, only to the extent of the assets received by him. If he does not administer on her estate, he is presumed to have assets, and is liable for her debts. (A) Under the English law, at least until lately, if the husband dies leaving the goods of the former wife unadrainistered, the right of * ad- * 412 ministration de bonis non belongs to the next of kin of the wife ; though the right of property belongs to the representatives of the husband. The principle of the English statute of 21 Hen. VIII. was to vest the administration de bonis non in the person who was next of kin at the time of the intestate's death, and who was possessed of the beneficial interest in the personal estate. The case of Hole v. Dolman, in 1736, was an anomalous case, and established an exception to a general rule ; for the original administration to a, feme covert was granted to her next of kin, in preference to the representative of the deceased husband, who survived her, and in whom the interest was vested, (a) (e) In North Carolina the greatest creditor is, in such case, entitled to the prefer- ence. Act 1792. (/) The same general rules are prescribed in the Massachusetts Revised Statutes of 1836, and exist throughout this country. (g) N. Y. Revised Statutes, ii. 74, sec. 27. Where persons not inhabitants of the State of New York die, leaving assets in the state, if no application for letters of administration be made by a relative entitled thereto, and legally competent, and letters testamentary or of administration have been granted by competent authority in any other state, the person so appointed, on producing such letters, is entitled to letters of administration in preference to creditors, or any other persons, except the public administrator in the city of Nevr York. lb. 75, sec. 31. (A) N. Y. Revised Statutes, ii. 74, see. 27 ; ib. 75, sec. 29, 33 ; and vide supra, 135, 136. (a) 1 Hagg. Ecc. 341, in notes; 2 id. 631; App. 150, 165. The recent doctrine in Betts v. Kimpton, 2 B. & Ad. 273, is also that administration de bonis non of the wife's choses in action left unadministered by the husband, goes to the nexfBf kin of the wife, to be administered, however, for the benefit of the husband's representatives. See supra, 136. But in the still later case of Fielder v. Hanger, 3 Hagg. Ecc. 769, the more reasonable rule is at last adopted, that the administration on the estate of a deceased wife follows the interest, and on the husband's death goes to his representa- tives. VOL. II. — 37 [ 577 ] * 413 OF PERSONAL PEOPEETT. [PART V, When there are several persons of the same degree of kindred to the intestate entitled to administration, they are preferred in the following order : first, males to females ; second, relatives of the whole blood to those of the half blood ; third, unmarried, to married wolnen ; and when there are several persons equally en- titled, the surrogate, in his discretion, may grant letters to one or more of them. (6) No person convicted of an infamous crime, or incapable by law of making a contract, nor a non-resident alien, or minor, or feme covert, or person deemed incompetent b}' the surrogate by reason of drunkenness, improvidence, or want of understanding, is entitled to administer ; but the husband is enti- tled to administer in the right and behalf of his wife ; and with the consent, in writing, of the party entitled, one or more competent persons may be associated by the surrogate with an administra- tor, (e) The husband who administers on his wife's estate is now bound (though contrary to the English law and the former law of New York) to give a bond, in the same manner as other admin- istrators ; yet he is not bound, in consequence of it, to distribute the estate after the debts are paid ; but he continues to enjoj"^ it according to the rules of the common law. (c?) * 413 * If letters of administration should happen to have been unduly granted, they may be revoked, and administration may be granted upon condition, or for a limited time, or for a special purpose ; as for the collection and preservation of the goods of the deceased ; and it is the received doctrine that all sales made in good faith, and all lawful acts done either by administrators before notice of a will, or by executors or adminis- trators, who may be removed or superseded, or become incapable, shall remain valid, and not be impeached on any will appearing, or by any subsequent revocation or superseding of the authority of such executors or administrators, (a) (b) N. Y. Revised Statutes, ii. 74, sec. 28. The statute law of New Jersey of 1795 follows closely the English law on the subject of administration. Elmer's Digest, 165. (c) lb. ii. 75, sec. 32, 34; Act of N. Y. April 20, 1830. (d) New York Revised Statutes, ii. sec. 29; ib. 98, sec. 79. See supra, 135. (a) Shep. Touch, by Preston, 464 ; N. Y. Revised Statutes, ii. 76, sec. 38 ; ib. 79, sec. 46, 47. It is a general rule in the English law, that the grant of letters of admin- istration relates back to the death of the intestate, so as to authorize the administra- tor to bring trover or trespass for goods of the intestate. Year Book, 36 Hen. VI., fo. 7 ; Long v. Hebb, Sty. 341 ; Sharpe v. Stallwood, C. B. 7 Jurist, 492. [578] LECT. XXXVII.J OP PERSONAL PROPERTY. * 414 The nearness of kin, under the English law, is computed ac- cording to the civil law, which makes the intestate himself the terminus a quo, or point whence the degrees are numbered ; and, therefore, the children and parents of the intestate are equally near, being all related to him in the first degree ; but in this instance the surrogate has not his option between them, but must prefer the children. (J) And from the children and parents the next degree embraces the brothers and grandparents, and so on in the same order. The law and course in those states which follow the English law must be to grant administration, first, to the husband or wife ; second, to the children, sons or daughters ; third, to the parents, father or mother; fourth, to the brothers or sisters of the whole blood ; fifth, to the brothers or sisters of the half blood ; sixth, to the grandparents ; seventh, to the uncles, aunts, nephews, and nieces, who stand in equal degree ; eighth, to cousins, (c) Grandmothers are preferred to aunts, as nearer of kin ; for the grandmother stands in the second degree to the intestate, and the aunt in the third, (c?) If none of the next of kin will accept, * the surrogate may exercise his * 414 discretion whom to appoint; and he usually decrees it to the claimant who has the greatest interest in the effects of the intestate, (a) If no one offers, he must then appoint a mere trustee ad colligendum, to collect and keep safe the effects of the intestate ; and this last special appointment gives no power to sell any part of the goods, not even perishable articles ; nor can the surrogate confer upon him that power. (6) This very incon- venient want of power is supplied by the New York Revised Statutes; (c) and an administrator ad colligendum (who is called in the statute a collector) may, under the direction of the surrogate, sell perishable goods, after they shall have been appraised. ^ (2.) Of the Potoer and Duty of the Administrator. — The administrator must enter into a bond before the judge of probate (under whatever name the competent court may be known), with sureties for the faithful execution of his trust ; and, being (b) 2 Vern. 125, arg. ; 2 Bl. Comm. 504. (c) Shep. Touch, by Preston, ii. 453; Durant v. Prestwood, 1 Atk. 454. (d) Blackborough r. Davis, 1 P. Wms. 41. (a) Tucker v. Westgarth, 2 Addaras, 352. (6) 1 Roll. Abr. tit. Executor, C. 1 ; Siiep. Touch, by Preston, ii. 488. (-;) Vol. ii. 76, sec. 39. [579] * 415 OP PERSONAL PROPEETT. [PART V. • thus duly appointed, it is his duty to proceed forthwith to the execution of his trust, (d) His powers and duties under the common law of the land may be summarily comprehended in the following particulars : 1. He is to make an inventory of the goods and chattels of the intestate, in the presence and with the discretion of appraisers, who, in New York, Massachusetts, and probably in other states, are to be appointed by the probate court, and sworn ; and under the English law they are selected by the executor or administrator, from, the creditors, or next of kin, or discreet neighbors, (e) Two copies of this inventory are to be made and indented, and one copy is to be lodged with the sur- rogate, under the attestation of the administrator's oath, * 415 and the other is to be retained. (/) This * inventory is (d) N. Y. Eevised Statutes, ii. 77, see. 42. TTiider the N. Y. Revised Statutes, ii. 70, sec. 6, 76, the surrogate, if he deem the circumstances of the case to require it, may require an executor to give security. If he be about to remove out of the state, he may, in that case, also require it. See^Wood v. Wood, 4 Paige, 299. In Tennes- see,, executors must give security equally with administrators, before they can law- fully act. Act of 1813 ; 4 Yerg. 20. By the Massachusetts Revised Statutes of 1836, and the Revised Statutes of Vermont, 1839, p. 260, the executor as well as the admin- istrator, before he enters on his trust, must in all cases give bond, with sufficient surety, to the judge of probate, for the faithful execution of his trust ; and, as a eon- sequence, the executor of an executor has no authority to administer on the estate of the first testator. The English rule in equity is, that if an executrix who has infant children marries a second husband in necessitous circumstances, and there is danger of waste, a receiver will be appointed. Dillon v. Lady Mount-Cashell, 3 Bro. P. C. 341 ; Middleton v. Dodswell, 13 Ves. 268. And this is the rule of equity in South Carolina. Stairley v. Eabe, 1 McM. Eq. 22, and would probably be followed if the case arose in the equity courts in the other states. (c) The administration bond only binds the administrator to administer the assets witliin the state, and not goods in another jurisdiction. Governor v. Williams, 3 Ired. (N. C.) 152. (/) N. Y. Revised Statutes, ii. 82, sec. 1 ; ib. 84, sec. 15, 16. The New York statute specifies the nature of the assets which shall go to the executor or adminis- trator ; and it has followed, in this respect, the rule of the common law. They are the interest of the deceased in leases for years ; things annexed to the freehold, for the purpose of trade or manufacture ; growing crops raised annually by labor and cultivation, excepting grass and fruit not gathered ; rents accrued, debts and things in action, though secured by mortgage, and movable property and effects. N. Y. Revised Statutes, ii. 82, sec. 6 ; Evans v. Iglehart, 6 Gill & J. 171, 189, 190, s. p. In Massachusetts, mortgage debts, before foreclosure, are personal assets in the hands of the executors and admuiistrators of the mortgagee. Massachusetts Revised Stat- utes, 1836. Certain necessary domestic articles for family use, as looms, stoves, pic- tures, school books, wearing apparel, bedding, table furniture, and a small number of necessary domestic animals, are not to be appraised, but to remain for the use of the widow and children. New York Revised Statutes, ii. 8-3, sec. 9, 10. There is a [ 580 ] LECT. XXXVII.] OP PEESONAL PHOPEBTT. * 415 intended for the benefit of the creditors and next of kin ; and the administrator will be obliged to account for the property- mentioned in it ; and he will also be obliged to show good cause for not collecting the debts that are mentioned to be due, unless he had the precaution to note them in the inventory as desperate. He is liable also to have the letters of administration revoked (and it is the same with the letters testamentary of an executor), if an inventory be not duly made and returned. And if any one or more of the executors or administrators returns the inventory, those who neglect to do it cannot afterwards interfere with the administration until they redeem their default, (a) After completing the inventory, the duty of the administrator is, to collect the outstanding debts, and convert the property into money, and pay the debts due from the intestate. He must sell the personal property, so far as it may be necessary for the pay- ment of debts and legacies, beginning with articles not required for immediate family use, not specifically bequeathed. (5) similar exception in Massachusetts, Connectieut, Ohio, and probably in other states, in favor of the widow and family; and it extends to such small necessary family articles as are exempt from execution. The widow and children in Ohio, if any under fifteen years of age, or the children only, if no widow, are entitled to sufficient provi- sions or other property for their support for twelve months from the intestate's death, without having the same accounted for as part of the inventory. Statutes of Ohio, 1831. The Ohio statute as to emblements declares that those sowed after March 1, and before December 31, shall go to the executor or administrator, if the decedent died within that period; but that those growmg on the land on March 1, or between December 31 and March 1, shall go to the heir, devisee, or remainderman, or rever- sioner, if the decedent died within that period. In Massachusetts, Connecticut (Revised Statutes of Massachusetts, 1836, and of Connecticut, 1821), and probably in those other states where the distribution of real and personal property is the same, the inventory is to exclude equally the real and personal estate. (a) N. Y. Revised Statutes, ii. 85, sec. 17-23. (6) The English rule is to convert the assets into cash by a public sale ; and this was the rule declared in Covenhoven v. Shuler, 2 Paige, 122. But in Maryland, unless the sale of the assets be necessary to pay debts and legacies, or to make a satisfactory distribution, the rule is for the executors and administrators to divide the property specifically in hind between legatees and distributees. Evans «. Iglehart, 6 Gill & J. 171. By the N. Y. Revised Statutes, ii. 87, sec. 25, 26, the executor is allowed, except in the city of New York, to sell on credit not exceeding one year, with approved security ; and he will be exempted from responsibility for losses, if he acts in good faith and with ordinary prudence. The statute has not defined what was intended by approved security. The English rule in equity is, that the executor must not rest on personal security ; and if he does, it is at liis own peril. But there are exceptions to flie severity of that rule ; and it will depend upon circunv [581] * 416 OP PERSONAL PROPEETY. [PART V. * 416 In paying * the debts, the order prescribed by the rales of the common law is, to pay, first, funeral charges, (a) and the expense at the probate office ; next, debts due to the state ; then debts of record, as judgments, recognizances, (J) and final decrees ; next, debts due for rent and debt by specialty, as bonds and sealed notes ; and, lastly, debts by simple contract. Causes of action arising ex delicto, for wrongs for personal injuries, die with the person, and do not survive against his representatives. Executors and administrators, are the representatives of the per- sonal property of the deceased, and not of his wrongs, except so far as the tortious act complained of was beneficial to his stances whether, nnder the New York statute, an executor or administrator acting in good faith be bound to answer for the eventual failure of personal security. See a discussion of the subject in Smith v. Smith, i Johns. Ch. 284, 629. Tlie weight of the modern English authority is, that investing trust moneys in personal security is a breach of trust. Lord Hard wicke, in Rider v. Bickerton, 3 Swanst. 80, note ; Lord Kenyon, in Holmes c. Dring, 2 Cox's Cases, 1 ; Lord Loughborough, in Adye v. Feuilleteau, 3 Swanst. 84, note ; Lord Eldon, in Walker p. Symonds, ib. 63. Where the will directed the executors lo put on interest, to he well secured, ^500, and they invested it in stock of the Bank of the United States, and it was lost by the bank- ruptcy of the bank, it was held to mean security by mortgage or judgment on realty, and that the bank security was no better than personal security, and the executors were held responsible for the money. Nyce's Estate, 5 Watts & S. 254. An executor is responsible if he invests trust moneys otherwise than upon real security or in gov- ernment stock. Bank stock will not do. Ackerman v. Emott, by Parker, V. Cb., in 3 N. Y. Legal Obs. 337; [4 Barb. 626. | But the executor may place money where the testator liad been accustomed to place it, and without being responsible, if he acts with good faith. Tamlyn, 279. In Gray v. Fox, Saxton (N. J.), 259, the question what is due security in respect to trustees loaning money was learnedly discnssed ; and it was declared to be a well-settled rule in the Englisli chancery, and was adopted in New Jersey, that the loaning of trust moneys, and especially wliere infants were concerned, on private or personal security, was not due security, and such loans were at the risk of the trustees. The trustee must take adequate real security, or an investment in public stocks or funds. This was the opinion of the cliancellor of New York, in Smith v. Smith, above cited. In Stickney v. Sewell, 1 My. & Cr. 8, execu- tors were empowered to lend money on real or personal security ; audit was held that money should be advanced to the amount only of two thirds of the value of freehold land, of a permanent value, and not upon houses or buildings, which are fluctuating; and the executor was held answerable for the deficiency. (o) As against creditors, the rule of law is, that no more shall be allowed for funeral expenses than is absolutely necessary, regard being had to the degree and condition in life of the deceased person. Hancock ». Podm«M-e, 1 B. & Ad. 260 ; Palmes v. Stephens, B. M. Charlton (Ga.), 56. In Louisiana, the privileged claim of the lessor, as against the estate of the deceased lessee, comes in immediately after the funeral charges. Devine's Succession, 4 Rob. 366. (6) A recognizance, as of special bail, is of higher dignity than, a debt by specialty; and has preference. Moon v. Pasteur, 4 Leigh, 85. [582] LECT. XXXVII.] OP PERSONAL PROPERTY. 416 estate, (e) ^ The civil law gave no preference to creditors, except as to debts incurred for funeral expenses, and the expenses of (c) Hambly ... Trott, Cowp. 371 ; The People v. Gibbs, 9 Wend. 29 ; Hench v. Metzer, 6 Serg. & li. 272. But for devastavits or wrongs to property, the personal 1 Actions for causing Death. — The rule that personal representatives cannot sue for injuries to tlie person, feelings, or repu- tation of the deceased, lias been essen- tially modified by statute. Tlie right of action for injuries to property, and some other wrongs, is very generally made to survive, in favor of and against them. Morgan v. Ravey, 6 H. & N. 265. Again, according to most judges, the death of a human being could not be complained of as an actionable injury in a civil court at common law (Osborn v. Gillett, L. R. 8 Ex. 88; Baker v. Bolton, 1 Camp. 493; Carey v. Berkshire R. R., 1 Cush. 475 ; Hubgh V. New Orleans & C. R. R , 6 La. An. 494 ; Hyatt v. Adams, 16 Mich. 180 ; Eden v. Lexington & F. R. R., 14 B. Mon. 204) ; a;i but by the St. 9 & 10 Vict. c. 9,3, whenever tlie death of a person shall be caused by wrongful act, neglect, or default such as would (If death had not ensued) have entitled him to maintain an action in respect thereof, an action may be brought, notwithstanding his death, in the name of his executor or administrator, against the person who would hare been liable, and for the benefit of the wife, husband, parent, and child of the de- ceased. And the jury may give damages' proportioned to the injury resulting from the death to the parties for whose benefit the action is brought. Statutes modelled on the above have been passed in many of the United States, and corporations are expressly subjected to the liabilities im- posed by the law. N. Y. Acts of 1847, c. 450, and 1849, c. 256. It has been held upon these acts that if the deceased ac- cepted a sum in satisfaction of the injury done him, the statutory action could not be maintained, as the party injured could not " maintain an action in respect there- of." Bead v. Great Eastern R. Co., L. R. 3 Q. B. 555 (qualifying Pym u. Great Northern E. Co., 4 Best & S. 396) ; Dibble u. N. Y. & Erie R. R., 25 Barb. 183. But it has been repeatedly laid down that the statute gives a, new cause of action and does not merely cause the old one to sur- vive to the representatives of the de- ceased. Pym's Case, supra ; Whitford v. Panama R. R., 23 N. Y. 465, 469, sed v. ib. 485 ; SafEord v. Drew, 3 Duer, 627, 633, 640; Yertore v. Wiswall, 16 How. Pr. 8, 12; Penn. R. R. u. Henderson, 51 Penn. St. 315, 323 ; Needham v. Grand Trunk R. R., 38 Vt. 294. Damages are given only for the pecuniary injury, and no solatium for feelings is allowed. Blake v. Midland R. Co., 18 Q. B. 93. But the parties concerned need not have had a legal claim to the support of the deceased. 111. Central R. R. v. Barron, 5 Wall. 90. The statute has no extra territorial ope- ration even on corporations creatM by the law of the state where it is in force, Whitford v. Panama R. R., 23 N. Y. 465 ; Mahler v. N. & N. Y. T. Co., 35 N. Y. 352 ; Needham v. Grand Trunk E. R., 38 Vt. 294 ; [State v. Pitts. & Conn. R. R. Co., 45 Md. 41] ; although it has been held to apply to injuries inflicted on the high seas, notwithstanding one of the parties was a, foreigner, The Explorer, L. R. 3 Ad. & Ec. 289 ; The Guldfaxe, L. R. 2 Ad. & Ec. 325. [But see Armstrong V. Beadle, 5 Saw. 484.] And the right of action which it confers cannot be enforced in another state. Richardson x^ The right of a master to recover maintained by Judge Dillon, in Sullivan damages at common law for a tort caus- v. Union Pac. R. E. Co., 3 Dill. 334. ing the iuujiediate death of his servant is [583] *416 OP PERSONAL PEOPEKTY. [PAET V, the administration, and debts by mortgage. The heir paid him- self first, and he might pay the first creditor who came. All the assets were considered as equitable, (^d) When debts are in equal degree, the administrator may pay which he pleases first, and he may always prefer himself to other creditors in an equal degree. If a creditor commences a suit at law or in equity, he representatives of the deceased, who committed the tort, were made answerable by the statute of .SO Car. 11. c. 7, and 4 & 5 W. & M. u. 24 ; and doubtless the same law exists in this country. Executors and administrators are also made liable to answer for injuries to real property, in the character of torts or trespasses. N. Y. Revised Statutes, ii. 114, sec. 4. Respecting the liabilities of coexecutors, it is understood tliat one executor is not chargeable for a devastavit of his coexecutor, and is charge- able only for the assets which have come to his own hands. Cro. Eliz. 318 ; Str. 20; 4 Desaus. (S. C.) 65, 92, 199; 5 Conn. 19, 20; 11 Johns. 16, 21; 5 Johns. Ch. 296; 5 Pick. 104 ; 2 MoUoy Ch. 186. But he is answerable for the acts of his coexecutor when there has been connivance or negligence, or when he delivers over assets, or makes payment directly to his coexecutor. 7 East, 246 ; 2 MoUoy, 186. So one executor may dispose of the assets and bind the'estate by sale or discharge. 9 Cowen, 34; 4 Wend. [436] ; Preston on Abstracts of Title, ii. 22, 23; 11 Johns. 21 ; 9 Paige, 52; 4 Hill (N. Y.), 492. The better opinion would seem also to be, that administra- tors stand on the same ground in these respects as to their powers and responsibilities. 2 Ves. 267; 1 Wend. S83; 4 Wash. 186; 11 Johns. 21; Gayden v. Gayden, 1 McM. (S. C.) 435. But where a note or other security is given to two or more executors jointly after testator's death, the title is in all of them equally, as if given to tliem as trustees, and the concurrence of all is necessary to transfer the title to the same. Smith V. Whiting, 9 Mass. 334; Hertell v. Bogert, 8 Paige, 52. In the case of Jones's Appeal, 8 Watts & S. 14.3, it was forcibly illustrated by the chancellor, that joint trustees are not answerable for the defaults of each otlier in cases of ordinary pru- dence and diligence in the trustee sought to be charged for his cotrustee. It was held by Lord Hardwicke, m 1 Atk. 526, that an executor was not bound in law or equity to plead the statute of limitations, to a demand otherwise well founded. But that dictum was shaken by a contrary dictum of Bailey, J., in M'Culloch v. Dawes, 9 Dow. & Ry. 40. It is therefore left as an unsettled point, and the executor must at least exercise a very sound discretion in the case. But more recently it is held, in Hodgdon t. White, 11 N. H. 208, that the administrator is not bound to plead the statute of limitations to a demand otherwise well founded. This is the sound doctrine. (rf) Dig. 11. 7. 45 ; ib. 35. 2. 72 ; Code, 6, 30, 22, sec. 4, 5, 9; Wood's Institutes of the Civil Law, 186, 187 ; Brown's View of the Civil Law, i. 307. J,. N. Y. Central R. E., 98 Mass. 85 ; 16 Wall. 522. But see Smith v. Brown, Woodard ^. Mich. S. & N. Ind. R. R., 10 6 L. R. Q. B. 729 ] Ohio St. 121. [But see Stallknecht v. In some states, under a different law, Penn. R. R. Co., 53 How. Pr. 305. As the cause of action which the party in- to the right in admiralty, see The Fran- jured had is made to survive. Soule v. conia, 2 P. D. 163 ; Holmes v. Or. & Cal. N. T. & N. H. R. E., 24 Conn. 5t5 ; Penn. Ry. Co., 6 Saw. 262 ; Ex parte Gordon, R. R. v. McCloskey, 23 Penn. St. 52& 104 U. S. 515; Steamboat Co. v. Chase, But see 51 Penn. St. 823, supra. [584] tECT. XXXVII.] OP PERSONAL PEOPERTT. * 418 obtains priority over other creditors in equal degree, but an ad- ministrator may go and confess judgment to another creditor in equal degree, and thereby defeat the creditor who first sued, by pleading the judgment, and nil ultra, &c. (e) The New York Revised Statutes (/) have made some essential alterations in the English law, and in the * former * 417 law of New York, as to the order of payment of the debts of the deceased. The order now established is as follows : 1. Debts under the law of the United States ; 2. Taxes assessed ; 3. Judgments and decrees according to priority ; 4. Recognizances, bonds, sealed instruments, notes, bills, and unliquidated demands and accounts, without any preference between debts of this fourth class. Nor is a debt due and payable entitled to prefer- ence over debts not due ; nor does the commencement of a suit for the recovery of any debt, or the obtaining judgment thereon against the executor or administrator, entitle such debt to any preference over others of the same class. Debts not due may be paid, according to the class to which they belong, after deducting a rebate of legal interest upon the sum paid, for the unexpired time. The surrogate is authorized to give a preference to rents due and accruing upon leases held by the testator or intestate at his death, over debts of the fourth class, whenever he shall deem the preference beneficial to the estate. In suits against exec- utors and administrators, the judgment, if there be a proper plea in the case, is to be entered only for such part of the assets as shall be a just proportion to other debts of the same class ; and the execution is to issue only for a just proportion of the assets applicable to the judgment ; and no execution is to issue until an account has been rendered and settled, or the surrogate shall otherwise order, (a) No executor * or ad- * 418 (e) Williams's Executors, 679, 1213, 1214. See Shep. Touch, by Preston, ii. 475- 480 ; Bac. Abr. tit. Executors and Administrators, L. 2, for a succinct view of the rules of the common law, touching the order of paying debts by executors and administrators. (/) Vol. ii. 87, sec. 27, 28, 29, 30. (o) N. Y. Revised Statutes, ii. 88, sec. 31, 32. The surrogate may decree the payment of debts, upon the application of a creditor, at any time after six months from the granting of the letters testamentary or of administration, and the payment of any legacy or distributive share, on the application of the party entitled, after the expiration of a year ; and he may enforce payment by causing the bond of the exec- utor or administrator to be prosecuted. On judgments obtained at law, against any [585] * 418 OF PERSONAL PEOPEETT. [PAET T. ministrator can retain for his own debt, until it has been proved to and allowed by the surrogate, and it is not entitled to any preference over debts of the same class, (a) The executor or administrator may, by public notice, call upon the creditors to exhibit, within six mouths, their accounts and vouchers, verified by affidavit. The executor or administrator may go on and close the trust as to claims not exhibited within the time ; and he will not be chargeable for any due disposition of the assets prior to a suit on such claims, thougji the next of kin or legatees may be liable to refund to such creditors. If claims be exhibited and disputed, they may be referred to referees by consent ; and if not, the creditor must sue thereon within six months, or be barred forever. (&) executor or administrator, application may be made to the surrogate, who is to cite the defendant, and, haying ascertained the sufficiency of the assets, to order execu- tion. N. Y. Revised Statutes, ii. 116, sec. 18-22; ib. 220. In Connecticut, the stat- ute of limitations is suspended in personal actions for one year from the creditor's death, in favor of his executors and administrators. Acts of 1833, c. 13. In Eng- land, it is a rule in chancery that the personal representatives have one year to pay legacies, except where explicit directions are given by the testator. Lord Eldon, 6 Ves. 539. The statute law in this country, in several of the states, is the same. N. Y. Revised Statutes, ii. 90, sec. 43. In New Jersey, the statute of June 12, 1820, prohibits suits against executors and administrators of insolvents, for debts due from the deceased, until six months from the death of the deceased, unless in cases of fraud, or for the physician's bill, funeral charges, and judgments against the ' decedent. By the Massachusetts Revised Statutes, in 1836, the creditor is not to sue the executor or administrator until the expiration of one year, except in special cases. It is a well settled rule, that the time allowed by statute to executors and administrators,, before suit brought, is excluded from the computation of time in the statute of limitations. Moses v. Jones, 2 Nott & McC. 259 ; Bowell v. Webber, 2 Sm. & M. 452. In England, it was decided, in the Prerogative Court of Canterbury, in 1754, that a creditor had a right to call for an inventory, but that the court had no jurisdiction at his suit to examine the particulars of an account. Brown v. Atkins, 2 Lee, by Phillimore, p. 1. (a) N. Y. Revised Statutes, ii. 88, sec. 33. (h) N. Y. Revised Statutes, ii. 88, sec. 34-42. An executor or administrator may plead the statute of limitations, and will not be precluded from the benefit of the plea, though he may have previously acknowledged the debt, for he may have made it without due consideration, and in ignorance of the true state of the case. Nor is he bound to plead the statute, for he may know the debt to be just. The plea rests in his discretion. Fritz v. Thomas, 1 Wharton, 66. Nor is he liable to creditors, if he exercises a reasonable discretion in compromising a debt. Pennington u. Healey, 1 Cr. & Mees. 402. In New York, the surrogate is authorized by statute, 70th sess. c. 81, to permit executors and administrators to compromise and compound debts due to their testator or intestate. The jurisdiction of the courts of equity to superintend the administration of assets, and decree a distribution of the residue, after payment of the debts, and charges, has been long established. Mathews v. [686] LBCT. XXXVII.J OP PERSONAL PROPERTY. * 419 These alterations, in New York, in the rules at common law, are generally dictated by justice and policy ; and those respecting equality of payment have long been the prevailing doctrine in the distribution of assets in chancery. The surrogates are clothed with new and enlarged powers, which are very convenient to the public in the settlement of these ordinary and popular trusts. To guard against the undue assumption of power, surrogates are restrained from exercising any power or jurisdiction whatever, not expressly given by statute, (c) But I forbear to enlarge further on the subject. My principal object, in this part of the present lecture, was rather to notice the descent and distribution of personal property than to discuss the general powers and duties of executors and administrators ; and it may here be generally observed, that what has been said concerning the rules of law as to the inventory, the collection of the property, and the payment of debts, applies equally to executors and administrators. In the jurisprudence of the other states, the administration of the assets is likewise subject to various local modifications. * In a few of the states, the English order of preference is * 419 Newby, 1 Vern. 133 ; Howard v. Howard, ib. 184. And when relief is sought in chancery by a creditor on a creditor's bill, it has been the settled doctrine of the court ever since the great case of Morris i. The Bank of England (Cases Temp. Talb. 217), that upon a decree being obtained, it was in the nature of a judgment for all the creditors, and the court will not permit any particular creditor, by proceeding at law, to disturb that administration of the assets. All the creditors are entitled, and should have notice for that purpose, to come in and prove their debts before the master ; and on motion of either party, an injunction will be granted to stay all pro- ceeding of any of the creditors at law. This subject was largely discussed, and the authorities and precedents examined, and the principle adopted (and I believe for the first time in this country), in Thompson v. Brown, 4 Johns. Ch. 619; and the decree in that case, which is given in the report of it, was drawn by the chancellor as explanatory of the relief to be afforded. The English rule and practice in chan- cery is still the same, with progressive enlargement. Drewry v. Thacker, 3 Swanst. 544 ; Clarke v. Earl of Ormonde, Jac. 108. But in ordinary cases, the plain, prompt, and cheap decretal administration of the assets in the probate courts is much to be preferred. The principal English cases and doctrine on the subject of the distribu- tion and marshalling of assets in equity are collected and digested in Mr. Justice Story's Comm. on Eq. Jurisprudence, [c. 9.] See also Mr. Ram's "Practical Treatise of Assets, Debts, and Incumbrances," which is the most ample view of any Tue have on the administration and distribution of assets in law and equity, supported by an overwhelming mass of cases on the subject. (c) N. Y. Revised Statutes, ii. 221. The statute of New York, 18-87, u. 460, gave new and specific directions to surrogates relative to the proving of wills, and taking new security from administrators and guardians, and revoking the trust of adminis- trators and guardians, and relative to their accounting, &c. [587] •419 OP PERSONAL PROPERTY. [PAET T. preserved, (a) In most of them that order is entirely disturbed, and a more just and equitable rule of distribution adopted. Expenses of the last sickness, including the physician's bill, and funeral and probate charges, have everywhere the preference; and generally debts due to the United States and the state are next preferred, and then all other debts are placed on an equalit}', and paid ratably in the case of a deficiency of assets ; but with the exception, no doubt, of legal liens, if there be any such recog- nized by law. (S) In Louisiana, there is a particular detail of the order of priority, which is special and peculiar, and minute even beyond the rule of the common law. (c) In Maryland, judgments and decrees have preference, and all other debts are equal; and in Missouri, expenses of the last sickness, debts due to the state, and judgments, have preference, and all other debts are placed on an equality, (c?) In Pennsylvania, the order of (a) In Virginia, North Carolina, South Carolina, Kentucky, Delaware, Georgia, and Indiana, the English order of preference is preserved, with the exception of a few slight variations. Thus, in South Carolina, no preference is given among debts in equal degree, except that mortgages, judgments, and executions are paid as legal liens, according to seniority. In Virginia and Kentucky, debts due on protested foreign bills are placed on a footing with judgments. By act of Virginia, of March, 1831, debts due by specialty, and promissory notes, and other writings of decedent, are taken to be of equal dignity. In North Carolina, specialty and simple contract debts are placed on an equality. See Griffith's Law Register, h. t. ; 12 Wheaton, 594; Chappell v. Brown, 1 Bailey (S. C), 528; Braxton o. Winslow, 4 Call, 308; Mayo V. Bentley, ib. 528 ; Lidderdale v. Robinson, 2 Brock. 165 ; Bomgaux v. Bevan, Dudley (Ga.), 110; Palmes v. Stephens, R. M. Charlton (Ga.), 56. (b) This is the case in the states of Maine, New Hampshire, Vermont, Massachu- setts, Rhode Island, Connecticut, New Jersey, Ohio, Indiana, Illinois, Tennessee, Mississippi, and Alabama, with some small variations. Thus, in Alabama, debts due to sureties are preferred ; and in New Jersey, debts due to the United States have preference, and debts due and judgments entered during the life of the decedent have preference. In Ohio, after funeral expenses and the expenses of tlie last sick- ness, a sum is allowed for the support of the widow and children for one year, and then liens on the land, by mortgage and judgment, are preferred. The residue of the assets are distributed ratably among the creditors. In Georgia, after debts due to the public, are payable judgments, mortgages, and executions; the eldest first; next rents ; then bonds and other obligations ; and lastly, open accounts. Act of Georgia, December, 1792 ; Act of New Jersey, 1820 ; Revised Laws of New Jersey, 766 ; Griffith's Reg. passim ; Dane's Abr. of American Law, i. 560 ; Public Acts of Connecticut, 1821 ; 5 Hammond, 483 ; Statutes of Ohio, 1831 ; Massachusetts Revised Statutes, 1836 ; Revised Laws of Indiana, 1838, pp. 181, 186, and of Illinois, ed. 1833, p. 648. In Tennessee, by act of 18th October, 1883, c. 36, the assets of persons dying insolvent are directed to be distributed ratably among all the creditors. • (c) Civil Code of Louisiana, arts. 1051-1061. (d) Griffith's Law Register, h. t. [ 688 ] LECT. XXXVII,] OP PERSONAL PROPERTY. *420 administration is, to pay, 1. Physicians, funeral expenses, and servants' wages ; 2. Rents not exceeding one year ; 3. Judg- ments ; 4. Recognizances ; 5. Bonds and specialties ; 6. All other debts equally, except debts due to the state, which are to be last paid, (e) * (3.) Of the Distribution of the Personal Estate. — 1. ( 0/ * 420 tlie English statute of distribution.') — When the debts are paid, the administrator (the husband as administrator excepted) is bound, under the English statute of distributions, of 22 & 23 Charles II. c. 10, after the expiration of a year from the granting of administration, to distribute the surplus property among the next of kin. (a) He is first to account to the ordinary court of (e) Frazer w. Tunis, 1 Binney, 254. The physician's hill first to be paid is not con- fined to medicine and attendance in the last sickness. Rouse v. Morris, 17 Serg. & R. 328. But by statute of 24th February, 1838, in Pennsylvania, no preference is now given to judgment over bond and simple contract creditors in the distribution of the assets of decedents. Foreign judgments ranli as simple contracts only. Judg- ments of other states rank in the same grade as judgments in the state. 4 Watts & Serg. 314. The preference given by the laws of almost all countries, in the payment of debts to the expenses of the last sickness, and funeral, and the wages of servants, is founded on considerations of humanity and decorum. The last item of privileged debts is usually confined to menial servants, and to the current wages of the last term of the contract. This is the rule in Scotland. 2 Bell's Comm. 157, 158. The Massa- chusetts Revised Statutes, in 1836, go into a minute and very specific detail of the duties of executors and administrators, in collecting, settling, and disposing of the estate of the deceased. Considering the burden, and the incessant calls for the assump- tion of those trusts, such details are judicious, very useful, and even benevolent. The established rule in the administration of the assets of the deceased persons, in regard to creditors, is to be drawn from the laws of the country where the assets are, and where the executor or administrator acts, and from wliich he derives his authority, and not by that of the domicile of the deceased. The residue of the assets is dis- tributed according to the law of the domicile. Marshall, C. J., in Harrison v. Sterry, 5 Cranch, 299 ; Tilghman, C. J., in Milne v. Moreton, 6 Binney, 361 ; Chase, C. J., in De Sobry v. De Laistre, 2 Harr. & J. 224 ; Smith v. Union Bank of G., 5 Peters, 523, 524; Varnum v. Camp, 1 Green (N. J.), .332; Story's Comm. on the Conflict of Laws, [§ 513.] See also infra, 454, 455. But man}' of the foreign jurists, to wliora Judge Story refers, maintained that the law of the domicile of the debtor, even in a conflict of the rights and privileges of creditors, ought to overrule the jurisprudence of the situs of the effects. (a) Mr. Robertson, in his Treatise on Personal Succession, Edinburgh, 1836, c. 1 to 6, has gone fully, and with great research and learning, into the history of the law of successions in England, Scotland, and Ireland, and has traced the gradual relaxa- tion of the restrictions on the power of bequests, and the alterations and improve- ments in the administration and distribution of intestates' estates, down to the present time. This interesting treatise is republished in the Law Library, xii., edited by Thomas I. Wharton, Esq., of Philadelphia, and which is an extremely useful and valuable compilation to the American bar, for they have, by means of it, a ready [ 689 ] * 420 OP PERSONAL PROPERTY. [PART V. probates, surrogate or other proper jurisdiction, and which, in several of the United States, is appropriately termed the orphans' court. It is held that he is not bound to distribute without a previous order for that purpose ; (b) and the statute of distri- butions makes it the duty of the court of probates to decree distribution, (c) The statute declares, that after the debts, access to a selection of the best English treatises on the various branches of the law. (6) Archbishop of Canterbury v. Tappen, 8 B. & C. 151. (e) By the New York Revised Statutes, the executor or administrator is bound, after the expiration of eighteen months, to account before the surrogate, under the penalty of attachment and a revocation of his power. N. Y. Revised Statutes, ii. 92, sec. 52. In accounting, he must verify by vouchers, and may be examined upon oath ; and his oath will, if uncontradicted, supply the place of vouchers as to items, each of which does not exceed $20, and not exceeding, in the whole, in behalf of any one estate, 1500. lb. sec. 54, 55. This was adopting the rule in chancery, which had established that a defendant, on accounting before a master, might verify, on his own oath, items not exceeding in each case $20, and not exceeding in the whole £100 sterling. Remsen v. Remsen, 2 Johns. Ch. 501. The executor or administrator may be allowed for property perished or lost without his fault ; and he is not to gain by the increase, nor lose by the decrease of the property, without his fault He is also entitled, besides his necessary expenses, to the same rate of commissions of five, two and a half, and one per cent, which had been adopted by the chancellor in 1817 ; though, if a compensation be provided by the will, it is to be taken as a full satisfac- tion, unless the executor elect to take the allowance provided by law. N. Y. Revised Statutes, ii. 93, sec. 58, 59 ; 3 Johns. Ch. 44. The commissioners who revised the stat- utes of Massachusetts, in 1835, reported a similar allowance to be made. By statute of 17th April, 1838, the Revised Statutes of Massachusetts on this point were repealed ; and the court in which the accounts of executors and administrators are settled, are to allow their reasonable expenses, and a just and reasonable compensa- tion for their services. Assignees in trust are allowed an equitable compensation for their services, according to circumstances. Jewett v. Woodward, 1 Edw. Ch. 195. In Maryland, the commission is from five to ten per cent in the discretion of the court. 1 Peters, 562 ; 1 Harr. & G. 13, [84.] In Pennsylvania, the ordinary commis- sion is five per cent, but it may exceed or be less than that, in the discretion of the court, and under the circumstances. For receiving and paying out money it is two and a half per cent, and sometimes an additional half per cent is held to be a suffi- cient compensation for trouble. In the Estate of Miller, 1 Ashm. 323 ; Pusey v. Clemsen, 9 Serg. & R. 204 ; Stevenson's Estate, 4 Wharton, 98. In Louisiana, the commission to syndics cannot exceed five per cent, by act of 1817. That to execu- tors is two and a half per cent on the whole amount received, and is shared among them all. Civil Code, art. 1676. In South Carolina, the established commission is five per cent, with a further allowance to be assessed by a jury, in a case of extraor- dinary care and trouble. Logan v. Logan, 1 M'Cord, Ch. 1. In England, it is «. principle in equity, that if the testator, by will, gives a compensation, the executor is not entitled to any other which may be allowed by law, unless he promptly elects to prefer it. 3 Meriv. 24. The mode of contesting the accounts before the surrogate, by the creditors, legatees, and next of kin, is specially detailed in the New York statutes. N. Y. Revised Statutes, il. 93, sec. 60-70. And the manner of accounting [690] LECT. XXXVII.] OP PERSONAL PROPERTY. * 422 * funeral charges, and just expenses are deducted, a just * 421 and equal distribution of what leinaineth clear of the goods and personal estate of the intestate shall be made among the wife and children, or children's children, if any such there be ; or oth- erwise the next of kin to the intestate, in equal degree, or legally representing their stocks ; that is to say, one third part of the surplusage to the wife of the intestate, and all the residue, by equal portions, to and amongst the children of the intestate and their representatives, if any of the children be dead, other than such child or children, who shall have any estate by settlement, or shall be advanced by the intestate in his lifetime, by portion equal to the share which shall, by such distribution, be allotted to the other children to whom such distribution is to be made. And if the portion of any child who hath had such settle- ment or portion, be not equal to * the share due to the * 422 other children by the distribution, the child so advanced is to be made equal with the rest, (a) If there be no children, or their representatives, one moiety of the personal estate of the intestate goes to the widow, and the residue is to be distributed equally among the next of kin, who are in equal degree, and those who represent them ; but no representation is admitted among collaterals, after brothers' and sisters' children ; (6) and before the surrogate by executors and administrators is also detailed in the case of Gardner v. Gardner, 7 Paige, 112. The decree of the surrogate on a final settle- ment of the executor's accounts is final (subject to an appeal to the chancellor), as to payments to creditors, legatees, next of kin, and concludes all parties. Wright v. Trustees of Methodist Episcopal Church, 1 Hoff. Cli. 214, 215. In Pennsylvania, the registers' courts have a similar jurisdiction over intestates [the estates] of testators and intestates ; and the orphans' court has a species of equity jurisdiction over executors and administrators, guardians, and minors. Case of Patterson's Estate, 1 Watts & S. 293. But the practice and rules in the orphans' tribunals were represented to be in a state of deplorable confusion (Duncan, J., 11 Serg. & R. 432) ; and in January, 1831, the commissioners appointed to revise the statute code of Pennsylvania reported new revised statutes, containing a consoli- dation of all the statutes, with the suggestion of improvements in relation to the registers' and orphans' courts. In Ohio, testamentary jurisdiction, or probate powers, and the appointment and control of guardians, are annexed to the courts of common pleas in their respective counties. Acts of 1831. (a) Under this statute the widow cannot come into hotchpot and claim collation of advancements to the children. She only takes her share of what remains after deducting the advancements. Ward v. Lant, Prec. in Chan. 182, 184 ; Kircudbright V. Kircudbright, 8 Ves. 51. This is also the law in Tennessee, under the North Carolina statute of 1784, adopted in that state. Brunson u. Brunson, Meigs, 080. (6) The construction of the statute which declares that there shall be no repre- [591J *423 OF PERSONAL PBOPERTY. [PABT V. ill case there be no wife, then the estate is to be distributed equally among the children ; and if no child, then to the next of kin, in equal degree, and their lawful representatives, in the manner already mentioned. It is further provided, that if any child shall die intestate after the death of the father, and with- out wife or children, and in the lifetime of the mother, every brother and sister, and their representatives, shall have an equal share with her. This is the substance of ihe English statute of 22 and 23 Charles II., which was borrowed from the 118th novel of Justin- ian ; and, except in some few instances mentioned in the statute, it is governed and construed by the rules of the civil law. (c) 2. ( Of next of kin hy the civil and English laws.) — The next of kin is determined b}"^ the rule of the civil law ; and under that rule the father stands in the first degree, the grandfather and the grandson in the second ; and in the collateral line, the computation is from the intestate up to the common ancestor of the intestate and the person whose relationship is sought after, and then down to that person. According to that rule, the intestate and his brother are related in the second degree, the in- testate and his uncle in the third degree, (jl) The half blood are admitted equally with the whole blood, for they are equally as near of kin ; and the father succeeds to the whole per- * 423 sonal estate of a * child, who dies intestate, and without wife or issue, in exclusion of the brothers and sisters ; and the mother would have equally so succeeded as against the col- laterals, had it not been for a saving clause in the act, which ex- cludes her from all but a ratable share. She is excluded, lest, by remarrying, she would cany all the personal estate to another husband, in entire exclusion, for ever, of the brothers and sisters ; but she still takes the whole personal estate, as against more remote relations of the intestate, (a) The K. B. declared, in sentation among collaterals, after brothers' and sisters' children, is, that it means the children of the brothers and sisters of the intestate. If, therefore, the intestate dies without issue, and leaves an aunt, and children of uncles and aunts, the aunt succeeds to the whole estate. Bowers v. Littlewood, 1 P. Wms. 693. (c) See i. 542, note ; and also Carter v. Crawley, T. Eaym. 496 ; Palmer v. Alll- cock, 3 Mod. 68 ; Edwards v. Freema)i, 2 P. Wms. 436. (d) Sir John Strange, in Lloyd v. Tench, 2 Ves. Sr. 213. (a) It has been decided in Maryland, in Griffith v. Griffith, 4 Harr. & M'Hen. 101, and Coomes v. Clements, 4 Harr. & J. 480, that by the common law of England, as it [592] LECT. XXXVII.j OP PERSONAL PROrEBTY, * 424 Blaakhorough v. Davis, (li) that the father and mother had alwa3s the preference before the brothers and sisters, in the inheritance of the personal estate, as being esteemed nearer of kin ; and for the same reason, the grandmother is preferred to the aunt. The grandmother is preferred, not because she is simply in the ascending line, for, under the statute of distribu- tions, a nearer collateral will be preferred to a more remote lineal, but because she is nearer of kin, according to the compu- tation of the civilians, by one degree. And in Moore v. Barham, decided by Sir Joseph Jekyll, (c) the grandfather on the father's side, and the grandmother on the mother's side, take in equal moieties by the statute of distribution, as being the next of kin in equal degree ; and the half blood take equally with the whole blood. A brother and grandfather of the intestate are equally near of kin, and each related in the second degree, and therefore it would seem, from the directions in the statute, that they would take equally ; but it has been * decided in England, * 424 and it is also said to be the better construction of the novel of Justinian, that the brother of the intestate will exclude the grandfather of the intestate. This was so decided in Pool v. Wilshaw, in 1708 ; and Lord Hardwicke, in Evelyn v. Evelyn, (a) followed that determination as being correct, though it may be considered an exception to the general rule. He said it would be a very great public inconvenience to carry the portions of children to a grandfather, and contrary to the very nature of existed at the time of the colonization of Maryland, and by the common law of Mary- land, the widow is entitled to a reasonable share of her husband's personal estate, after payment of his debts ; and which reasonable part was one third, or one half, according to circumstances ; and it was a right paramount to the power of the husband, and he could not deprive her of it by will. In Pennsylvania, under the act of 1807, a widow is entitled to a distributive share of the residue of her husband's estate undisposed of by his will, in common with the next of kin ; and if there be no widow or next of kin, the state will take in preference to the executor, who holds such a residuum as a mere trustee. Darrah v. M'Nair, 1 Ashm. 2-36. At common law, such residuum went to the executor. The courts of equity then interfered, and gave it to the next of kin, if they could, even by a strained construction of the will, make out such an intention. The widow in such cases came in, of course, for her share with the next of kin. In Pennsylvania, law wisely puts an end to all matter of construction, and equitably gives at once, and in all cases, the undisposed surplus to the next of kin. In Virginia, the exeoutor is not, in any case, entitled to the residuum of personal property undisposed of by will. It goes to the next of kin. Paup v. Mingo, 4 Leigh, 16-3. (6) 1 P. Wms. 41 ; 2 Ves. 215. (c) Cited in 1 P. Wms. 58. (a) 3 Atk. 762 ; Amb. 191 ; Burn, Bccl. Law, Iv. 416. VOL. II. — 38 [ 593 ] *425 OF PERSONAL PROPERTY. [PART V. provisions among children, as every child may properly be said to have spes accrescendi. This question was very much debated among the civilians in their construction of the 118th novel of Justinian ; and the generality of them, of whom Ferriere and Domat are of the number, were of opinion that the grandfather and the brother took equally ; but Voet was of a different opinion ; and his opinion, though without any strong founda- tion in reason, is the one prevailing in the English courts. (6) The question whether the Jbalf blood took equally with the whole blood, under the statute of distributions, was debated in the " case of Watts v. Crooke ; (e) and it was determined in chancery that they were of equal kin, and took equally with the whole blood ; and the decree was affirmed upon appeal to the House of Lords, (d') So posthumous children, whether of the whole or half blood, take equally as other children, under the statute, (e) As the statute of distribution says that no representation shall be admitted among collaterals after brothers' and sisters' * 425 * children, it was held, in Pett v. Pett, (a) that a brother's grandchildren could not share with another brother's chil- dren. And, therefore, if the intestate's brother A. be dead, leaving only grandchildren, and his brother B. be dead, leaving children, and his brother C. be living, the grandchildren of A. will have no share, and cannot take. One half of the personal estate will go to the children of B., and the other half to C. But if all the brothers and sisters and their children be dead, leaving children, those children cannot take hy representation, for it does not extend so far ; but they are all next of kin, and in that char- acter they would take per capita. Representation in the descend- ing lineal line proceeds on ad infinitum, restrained by no limits. It has also been decided, that if the intestate leaves no wife or child, brother or sister, but his next of kin are an uncle by his (6) Voet, Com. ad Pand. lib. 38, tit. 17, c. 13. Dr. Irving, in his Introduction to the Study of the Civil Law, 4th ed. London, 9&-101, contends that the reasoning of Voet and the decision in England were fallacious and erroneous, and not founded on a true construction of the novel. (c) Shower's Cases in Parliament, 108; 2 Vem. 124, s. c. (d) In Maryland, so late as 1827, in the case of Seekarap v. Hammer, it was decided that, under the act of 1798, the half blood took equally with the whole blood in the distribution of the personal estate of an intestate. 2 Harr. & G. 9. (e) Burnet v, Mann, 1 Ves. 156. (a) 1 Salk. 250 ; 1 P. Wms. 25, s. c. ; Duvall v. Harwood, 1 Harr. & G. 474, ». p. [594] LECT. XXXVII.] OP PERSONAL PROPERTY. * 426 mother's side, and son of a deceased aunt, the uncle takes the whole, and the representation is not carried down to the repre- sentatives of the aunt. (6) It is the doctrine under the statute of distributions, that the claimants take per stirpes only when they stand in unequal degrees, or claim by representation, and then the doctrine of representation is necessary. But when they all stand in equal degree, as three brothers, three grandchildren, three nephews, &c., they take per capita, or each an equal share ; because, in this case, representation, or taking per stirpes, is not necessary to prevent the exclusion of those in a remoter degree ; and it would be contrary to the spirit and policy of the statute, which aimed at a just and equal distribution, (c) Uncles and aunts, and nephews and nieces, stand in the the same third * degree, * 426 and take equally per capita, (a) If a person dies without children, leaving a widow and mother, brother and sister, and two nieces by a deceased brother, then, according to the established doctrine, the widow would take a moiety, and the mother, brother, and sister would each take one fourth, and the two nieces the other one fourth of the remaining moiety. This point was ruled in Keylway v. Keylway ; (V) and the doctrine was declared to be correct by Lord Hardwicke, in Stanley v. Stanley, (c) {b) Bowers v. Littlewood, 1 P. Wens. 593 ; Parker v. Nims, 2 N. H. 460 ; Porter v. Askew, 11 Gill & J. 346 ; [Page v. Parker, 59 N. H. — .] (c) Walsh V. Walsh, Prec. in Ch. 54 ; Davers v. Dewes, 3 P. Wms. 50 ; Stent v. M'Leod, 2 M'Cord Ch. (S. C.) 354; Hallett v. Hare, 5 Paige, 316. Nephews and nieces, under the statute of descents in South Carolina, of February, 1796, which abolished primogeniture, and distributed real and personal property in the same manner, would, in the case stated, take per stirpes, contrary to the rule in the English law. (a) Durant v. Prestwood, 1 Atk. 454 ; Lloyd v. Tench, 2 Ves. 213 ; Biiissieres v. Albert, 2 Lee, 51 ; (Eng. Eccle. vi. 30, ed. Philadelphia, 1841.) (b) 2 P. Wms. 344. {n) 1 Atk. 457. The English doctrine of distribution of personal property, according to the statutes of 22 and 23 Charles II., and 29 Charles II. and 1 James II., is fully and clearly explained by C. J. Reeve, in his Treatise on the Law of Descents, under the head of Introductory Explanation. It is the most compre- hensive, neat, and accurate view of the English law on the subject that I have anywhere met with. Mr. Robertson, in his learned Treatise on the Law of Personal Succession, 386, thinks that the Scottish rules of succession in regard to personal estate require revision, and are not just or expedient, as they (1) limit the power of a husband or father to make a will ; (2) allow brothers and sisters and their descendants to exclude the father from the succession, though he be the nearest in blood, and allow uncles *427 OF PERSONAL PROPERTY. [PART V. 3. ( Of distribution hy state lawsJ) — The distribution of per- sonal property of intestates in the United States has undergone considerable modification. In many of them the English statute of distributions as to personal property is pretty closely * 427 followed, (c?) * In a majority of the states the descent of and aunts and their descendants to exclude the grandfather ; (3) exclude the mother entirely from any share in the succession of her child ; (4) totally exclude maternal relations from the succession ; (5) totally exclude representations in every case in regard to the succession of personal estate ; (6) disable bastards from disposing of their, personal estate by will. ' (d) This is the case in Tennessee, North Carolina, Maryland, Delaware, New Jersey, and Vermont. The English statute of distributions was adopted in New .Jer- sey by an act of assembly, as early as 1681 (Smith's Hist, of New Jersey, 130), and is reenacted in 1847. N. J. R. S. 355. The New York Kevised Statutes, which went into operation on the 1st January, 1830, have essentially reenacted the English stat- ute of distributions, which have been adopted, and continued the law of the state down to that period, and, for greater precision, they have particularly specified the course of distribution. After the account is rendered and finally settled, the surrogate decrees distribution of the surplus of personal estate, and decides all questions arising thereon. The distribution is, 1. One third thereof to the widow ; and tlie residue, by equal portions, among the children, and such persons as legally represent them, if dead. 2. If no children, or their representatives, one moiety to the widow, and the residue to the next of kin. 3. If no descendant, parent, brother or sister, nephew or niece, the widow takes the whole surplus. If there be a brother or sister, nephew or niece, and no descendant or parent, the widow takes the whole surplus, if it does not exceed two thousand dollars. If it does, she takes her moiety, and two thousand dollars only. 4. If no widow, the surplus goes equally to the children, and those that represent them. 5. If no widow or children, or their representatives, the surplus goes to the next of kin, in equal degree, and their representatives. 6. If no children, or their representatives, or father, a moiety of the surplus goes to the widow, and the other moiety in equal shares, to the mother and brothers and sisters or their representa- tives. If no widow, the whole surplus goes to the mother, and brothers and sisters, and their representatives. 7. If there be a father, and no child or descendant, he takes a moiety if there be a widow, and the whole if there be none. 8. If there be a mother, and no child, or descendant, or father, brother, sister, or representative of a brother or sister, the mother takes a moiety if there be a widow, and the whole if there be none. And if the intestate was an illegitimate, and left no child, descendant, or widow, the mother takes the whole, and shall be entitled to administration. N. Y. Act of May 13, 1845, c. 236. 9. When descendants or next of kin are in equal degree, they take per capita. 10. When they stand in unequal degrees, they take per stirpes. 11. No representation is admitted among collaterals, after brothers' and sisters' children. 12 Relatives of the half blood take equally and in the same manner as those of tlie whole blood. 13. Posthumous children take equally as if bom in the lifetime of the person they represent. (N. Y^Revised Statutes, ii. 96, sec. 75.) Any advancement to a child, by settlement or portion of real or personal estate, equal or superior to his share, will exclude him and his descendants from the distribution ; and if the same was not equal, he will be entitled only to so much as will supply the deficiency. The main- taining or educating, or giving money to a child, without a view to a portion nr set- tlement in life, is not to be deemed an advancement ; nor does the provision as to advancement appl^', if there be any real estate of the intestate to descend to his heirs. [596] LECT. XXXTII.] OF PERSONAL PROPERTY. * 427 real and personal property is to the same persons and in the same proportions, and the regulation is the same in substance, (N. Y. Kerised Statutes, ii. 97, sec. 76, 77, 78.) The most striking feature in the new provisions introduced into tlie New Yorlc Revised Statutes on the subject of intestate estates, and of testamentary matters, is the enlarged and equitable jurisdiction con- ferred upon the surrogates in the respective counties. This branch of our jurispru- dence will apply more frequently than any other, and with great force and interest, to family concerns ; and it will rise into correspondent importance, and awaken much public solicitude. It is in analogy to the powers vested in the ordinary in England, and in the orphans' courts or other testamentary jurisdictions in the United States. The surrogate, under the New York statutes, has concurrent jurisdiction with chan- cery, to call executors and administrators to account. But a prior suit pending in chancery by the complainant, is a bar to the proceeding before the surrogate. So a decree in chancery for the benefit of claimant upon the estate of the decedent is a bar to a proceeding before the surrogate for an account. Rogers v. King, 8 Paige, 210. It was further held, in Heyer v. Burger, 1 Ho£E. Ch. 1, that the surrogate had the sole jurisdiction to try the validity of a will of personal estate, and that chancery Iiad no original jurisdiction in the case. The surrogate in New York has the like power touching the payment and distribution of the proceeds of real estate, yrhen the will is proved in his office, as in the case of the personal estate. N. Y. R. S. ii. 109, sec. 57. Decrees of surrogates for the payment of money by an executor, administrator, or guardian, as well as decrees in chancery, are liens on real estate in any county, on the transcripts or certificates of the same being filed with the clerk thereof, and entered and docketed on the books for docketing judgments therein. Laws of N. Y, April 1, 1844, c. 104. In Mississippi, the probate courts in each county liave exclu- sive jurisdiction in all testamentary and administration matters, in dower, and in lunacy, &c., Carmichael u. Browder, 3 How. (Miss.) 255 ; but not against the sureties in an administration bond, Green v. Turnstall, 5 id. 638. The surrogate's courts in New York, with all their enlarged powers, are courts of inferior jurisdiction, and a party seeking to make title to real estate under their proceedings, must show affirm- atively that they liad jurisdiction. Bloom v. Burdick, 1 Hill (N. Y.), 1.30. In New Jersey, by the constitution of 1844, the chancellor is declared to be the ordinary or surrogate general, and judge of the prerogative court, and has ample jurisdiction in granting letters testamentary, of administration, and of guardianship ; in compelling executors, administrators, and guardians to account in his prerogative court, and to control them, and to decree distribution, and the payment of legacies, and to try contested facts by a jury and before a master, and to decree the sale of real estate to pay debts. The orphans' court consists of the judges of the Court of Common Pleas, in each county, and seems to be clothed with similar and concurrent jurisdiction, and with power to award partition of land among heirs and devisees. It is the more ordinary and proper tribunal for the settlement of the accounts of exec- utors and administrators. 1 Green, Ch. (N. J.) 480 ; R. S. of New Jersey, of 1847, tit. 7, c. 5. The surrogate of each county is the register of the orphans' court, and an essential member of it, and has also power concurrent with the orphans' court to grant letters testamentary, of administration and of guardianship, in cases arising within his county, and to hold courts in matters cognizable before him, with appeal to the orphans' court. The orphans' court seems to be the most efficient of the con- sistorial jurisdictions. The prerogative court or ordinary, the orphans' courts and the surrofrates, all have jurisdiction in testamentary and administration cases. Acts of 2d March, 1795, 13th June, 1820, and the acts supplementary thereto. See Elmer's .[597] * 428 OF PERSONAL PROPERTY. [PART V. * 428 * as the English statute of distributions, with the ex- ception of the widow, as to the real estate, who takes one third for life only, as dower. In Georgia, the real and per- sonal estate of the intestate is considered as altogether of the same nature and upon the same footing, both in respect to their statute of distributions and the descent of property. Prin. Dig. 229, 1 Kelly, 540. The half blood take equally with the whole blood, as they do under the English statute of distributions, (a) Such Digest, 165, 359-370, 382, 444. New Jersey seems to have doubled and trebled her consistorial courts. See N. J. R. S. of 1847, tit. 7, u. 5. (a) This is essentially the case in Maine, New Hampshire, Vermont, Hhode Island, Connecticut (but there the whole blood are, in certain cases, preferred to the half blood, and even when in equal degree), New Jersey, Pennsylvania, Virginia (but there the half blood inherit only half as much as the whole blood), Indiana, Illinois, Michigan, Kentucky (by the Kentucky statutes, if part of the collateral kindred be of the whole blood, and part of the half blood, the latter inherit only half so much as those of the whole blood, and the ratio of apportionment has reference to the individuals of the two classes, and not to the classes collectively; Nixon v. Nixon, 8 Dana, 7), Missouri (but there brothers and sisters, and parents, take equally), Mississippi (but there brothers and sisters, and their descendants, take before parents). South Caro- lina (but tliere parents, and brothers and sisters, take equally, and a brother of the half blood does not share with a mother ; first cousins of the whole and half blood are, however, next of kin in equal degree, and take equally of the estate of the intes- tate), Georgia, and Alabama. (In Alabama, brothers and sisters take before parents ; and when in equal degree, the whole blood is preferred to the half blood. See Griffith's Law Register, h. t. ; 1 Greenl. 151 ; 2 N. H. 461 ; Dana's Abridgment, iv. 538, 539 ; Statutes of Connecticut, 1784, p. 51 ; ib. 1821, p. 207 ; ib. 1838, p. 2-35 ; 5 Conn. 238; 1 M'Cord, 161, 456; Edwards u. Barksdale, 2 Hill, Ch. (S. C)417; Reeve's Law of Descents, passim; Statutes of Georgia, December 23, 1789, and December 12, 1804 ; Territorial Act of Michigan, April 12, 1827 ; Purdon's Penn. Dig. 550, 551 ; Aikin's Alabama Dig. 2d ed. pp. 128, 151.) In Louisiana, the legal heirs of the intestate are, (1) Children and their descendants, without distinction of sex or primogeniture. They inherit per capita when in the same degree, and per stirpes when in different degrees. If no descendants, then the parents take equally one half of the estate, and the brothers and sisters, and their descendants, the other half. If the father or mother only survive, the survivor takes only one fourth ; and if no parents, brothers and sisters, and their descendants, take the whole. Civil Code, 898, 907, 908. In Ohio, by the act of 1831, the widow is entitled to the whole personal estate, after the debts are paid, if there be no children ; and if there be any, she takes one half, if the estate amounts only to $400 ; and if it exceeds that sum, she takes only one third of such overplus. Statutes of Ohio, 1831. In other respects the personal estate goes (1) to the issue and their representatives; (2) to brothers and sisters and their representatives of the whole blood ; (3) to brothers and sisters and their representatives of the half blood ; (4) to the father; (5) to the mother; (6) to the next of kin of the blood of the intestate. When in equal degree they take per capita, otherwise per stirpes. Ib. In Georgia, widow and children take equal shares, unless she elects to take her common-law dower, and then she takes no further of the real estate, and a child's portion of the personal estate. If no issue, widow takes a moiety of the estate and [ 598 ] LECT. XXXVII.] Oi" PERSONAL PHOPERTY. * 428 a uniform rule in the descent of real and personal property gives simplicity and symmetry to the whole doctrine of descent. The the other moiety goes to the next of kin. If neither, the estate, real and personal, goes to the next of kin in equal degree, but no representation among collaterals beyond brothers' and sisters' children. A father, and, if dead, the mother, while unmarried, takes on the same footing as a brother or sister. So that, by the statute law of Georgia, the widow and children stand in the first degree of consanguinity ; parents and brothers and sisters in the second degree. Act of Georgia, December 12, 1804, and December 23, 1826. Prince's Dig. 2d ed. 1837, pp. 233, 234. In Soutli Carolina, their statute of distributions of 1791 gives to the husband only a ratable sliare, being one third, as one of the heirs at law, or distributees of his wife's per- sonal estate, though in England the husband takes the wife's entire choses in action as her administrator. In Massachusetts, the distribution of the personal estate of intestates is somewhat special. After tlie allowance of her apparel, &c., to the widow, and funeral charges and debts paid, the residue goes (1.) To the husband, if the intestate was a married woman. (2.) To the widow one third part, and residue to his issue. (3) If no issue or lineal descendants, then one half to the widow, and residue to the father. (4.) If no father, then to the mother and brothers and sisters equally, and to their issue per stirpes, if any one of them be dead, leaving a mother or sister surviving. (5.) If all the brothers and sisters be dead, then to the mother in exclusion of their issue. (6.) To the next of kin. (7.) If no kindred, the whole to the widow. (8.) If no husband, widow, or kindred, the personal estate escheats. Mass. Revised Statutes, 1836, part 2, tit. 4, c. 64, sec. 1. I do not undertake to mark minutely, or in detail, the many smaller variations from the English law ot distributions, which have been made by the statute law of the different states. Sucli a detail would be inconsistent with the plan of these lectures, which were intended as an elementary sketch of the general principles and outlines of the law. To descend to minutise on every subject would render the work too extensive and too uninteresting for the study of those persons for whom it is prepared. The law con- cerning wills, and the rights and duties of executors, administrators, and guardians, and of the orphans' courts, and the law of distribution of intestates' estates, are detailed minutely and distinctly in the Mississippi Revised Code of 1824, pp. 27-70, and which was made and reported by George Poindexter, Esq., and adopted in 1822 ; and it equals in this respect any of the old statute codes on the subject. But the whole subject has been remodelled, and expressed with more precision, and with the introduction of the late improvements in some of the American states, by P. Rutilius R. Pray, Esq., who, by authority, digested and reported, in 1836, the statute law of Mississippi, under the title of " Revised Statutes of the State of Mississippi." It appears to be a work of much labor, research, and judgment, and does credit to the abilities and discretion of the author. I am, however, informed, tliat so late as January, 18-39, this revised code had not been ratified or enacted, and whenever I have had occasion, in these volumes, to refer to the statute law of Mis- sissippi, I liave recurred to the revised code of 1824, or to the new edition of the laws of Mississippi, published in 1839, by Alden & Van Hoesen, and which is in effect a republication of the code of 1824, with the subsequent statutory additions and amendments. The doctrine of descent, and consequently, in a great degree, of distribution, in the different states, has been minutely illustrated and ably discussed, by the late C. J. Reeve, of Connecticut, in his laborious Treatise on the Law of Descent in the several United States of America. This work does honor to his memory ; but it is nc< calculated to suit the taste of those general readers who [599] *429 OP PERSONAL PEOPEKTY. [PAET V. English statute of distributions, being founded in justice and on tlie wisdom of. ages, and fully and profoundly illustrated by a series of judicial decisions, was well selected, as the most suitable and judicious basis on which to establish our American law of descent and distribution. 4. (^By the law of domicile.') — There has been much discussion as to the rule of distribution of personal property, when the place of the domicile of the intestate, and the place of the situation of the property, were not the same. But it has become a * 429 settled * principle of ipternational jurisprudence, and one founded ou a comprehensive and enlightened sense of public policy and convenience, that the disposition, succession to, and distribution of personal property, wherever situated, is governed by the law of the country of the owner's or intestate's domicile at the time of his death, and not by the conflicting laws of the various places where the goods happened to be situated. The principle applies equally to cases of voluntary transfer, of intestacy and of testaments, (a) ^ On the other hand, it is equally have not mathematical heads, by reason of the numerous algebraical statements of hypothetical cases with which the work abounds, and by which it is perplexed. (a) Stanley v. Bernes, 3 Hagg. Eccl. 373 ; Ferraris v. Hertford, 3 Curteis, 468 ; Dessebats v. Berquier, 1 Binney, 336. The construction of wills as to real property 1 Domicile as affecting Distribution. — judge of the domicile. Enohin v. Wylie, (a) As to the transfer of chattels inter 10 H. L. C. 1 ; Grattan o. Appleton, 3 vivos, see 407, n. 1. The statement in the Story, 755 ; Gilman v. Oilman, 52 Me. text as to successions to a deceased person 165 ; Wilkins v. EUett, 9 Wall. 740 ; Ennis is now well settled in England and some v. Smith, 14 How. 400, 425 ; Lawrence v. parts of this country, and also that the Kitteridge, 21 Conn. 577 ; Petersen o. question of testacy or intestacy, and the Chemical Bank, 32 N. Y. 21, 44. x^ There- construction of the will, belong to the fore, when the title of a party to inherit a;i Russell v. Madden, 95 111. 485. But Goods of Gentili, 9 Ir. R. Eq. 541. By an exception to the rule exists when the statute in Mississippi, all personal prop- question is as to the status of a party erty situated in that state is to be admih- claiming personal property of an intes- istered according to the law of the situs. tate, in which case the domicile of the Speed v. Kelly, 69 Miss. 47 ; VITeaver v. claimant, and not that of the intestate, Norwood, id. 665. The domicile of the governs. In re Goodman's Trusts, 17 debtor has jurisdiction as to administra- Ch. D. 266. The same principle has been tion of choses in action. Wyman v. held to apply to realty as well as person- Halstead, 109 U. S. 654; Dial v. Gary, 14 alty in this country. Ross v. Ross, 129 S. C. 573. But executors or trustees per- Mass. 243, in which case the authorities sonally within the jurisdiction of the are all collected. It has been held that court may be compelled to carry out the the lex rei sites governs as to the right to will or trust even as to foreign property, administer upon chattels real. In the Ewing v. Orr Ewing, 9 App. Gas. 34. [600] LKCT. XXXVII.] OP PERSONAL PROPERTY. *429 settled in the law of all civilized countries, that real property, as to its tenure, mode of enjoyment, transfer, and descent, is to be is to be giyen according to the tex rei sites, and as to personal property according to the lex domicilii, unless it be manifest that the testator had the law of some other country in view. Story on the Conflict of Laws, [§§ 479, a, et seq. ;] Harrison v. Nixon, 9 Peters, 503. See also 1 Jarman on Wills, ed. Boston, 1845, c. 1, pp. 1-10, where the numerous authorities are referred to. It is also a declared principle, that although personal property is, as to the succession, controlled by the laws of the domicile, yet each state is competent to regulate within its own territory that succession in per- sonal and real property at its pleasure. Story's Conflict of Laws, sec. 23, 447; Jones V, Marable, 6 Humph. 116. personalty has been adjudicated upon by the courts of the domicile, other courts are bound by the decision. Ennis v. Smith, supra; Doglioni v. Crispin, L. B. 1 H. L. 301, 314. It is the law of the domicile in force at the time of the death which governs, and a subsequent enact- ment will not give a locus standi to oppose the will abroad to a party who had it not previously. Lynch a. Prov. Gov. of Paraguay, L. R. 2 P. & D. 268. Of course a man cannot have but one domi- cile with reference to the law of 3,uc- cession. Forbes v. Forbes, Kay, 341 ; Oilman u. Giltaan, 52 Me. 165. It is everywhere admitted that after all the claims against the ancillary administra- tion have been duly ascertained and settled, the court may in its discretion direct the balance to be sent to the prin- cipal administrators for distribution, Mackey v. Coxa, 18 How. 100, 105 ; Wil- kins V. EUett, 9 Wall. 740, 742 ; Banta v. Moore, 2 McC. (N. J.) 97, 101; Low v. Bartlett, 8 Allen, 259, 266; Williams V. Williams, 5 Md. 467 ; post, 433 and 434, n. (a) ; and it has been said, by Lord Westbury, that it is the duty of the court to hand to them the clear personal estate, and to remit the next of kin to the court of the domicile of the testator, and that the court of the domicile is the forum con- cursus to wliich the legatees under the will of a testator, or the parties entitled to the distribution of the estate of an in- testate, are required to resort, 10 H. L. C. 13. See Stokely's Estate, 19 Penn. St. 476. [Eames v. Hacon, 18 Ch. D. 347 ; Barry's App., 88 Penn. St. 131.] In the same spirit the House of Lords have held that an act of Parliament im- posing a duty on legacies does not extend to the will of any person who, at the time of his death, was domiciled out of Great Britain, whether the assets are locally situate within England or not, in a case where there was a Scotch executor, and the legatees resided in Scotland. Thom- son u. The Advocate General, 12 CI. & Fin. 1. So, even wliere the legacy, an annuity for lives, was charged on English lands, Chatfleld v. Berchtoldt, L. R. 12 Eq. 464 ; and the same principle was ap- plied to succession duty in Wallace v. The Attorney General, L. R, 1 Ch. 1; Cal- lanane u. Campbell, L. R. 11 Eq. 378 ; compare In re Badart's Trusts, L. R. 10 Eq. 288. Thomson's case is denied in Alvany v. Powell, 2 Jones Eq. (N. C.) 51 ; Jones V. Gerock, 6 Jones Eq. 190. (b) Foreif/n Letters of Administration. — It is clear, however, in the absence of statute, that administration must be in the country in which possession is taken and held, under lawful authority, of the property of the deceased, Reston v. Mel- ville, 8 CI. & Fin. 1, 12 ; Enohin v. Wylie, 10 H. L. C. 1, 19 ; Burbank v. Payne, 17 La. An. 15; Banta i/. Moore, 2 Mc- Carter, 97 ; Clark ^. Clement, 33 N. H. 563 ; and that executors or administrators under letters granted abroad cannot sue or be sued before taking out ancillary administration, Caldwell v. Harding, 5 [601] * 429 OP PERSONAL PROPERTY. [PAET T. regulated by the lex loci rei sitce. (J) Personal property is subject to that law which governs the person of the owner. Debts and personal contracts have no locality, — dehita sequuntur personam dehitoris. Huberus lays down this to be the common and correct opinion, though the question had been frequently agitated in the courts in his day ; (c) and Bynkershoek says the pi-inciple had become so well established that no one dared to question it ; adeo recepta hodie sententia est, ut nemo ausit contra hisoere. (^d) The same principle would seem to be the acknowledged law in Germany and France ; (e) and Vattel (/) considers the rule to be one that is dictated by the law of nations. (6) Communis et recta sententia est in rebus imraobilibus serrandum esse jus loci in quo bona sunt sita. Hub. i. lib. 3, tit. 13, De Success, s. p. 278. In Story's Comm. on the Conflictof Laws, [§§ 426-428, 463,] the authorities, foreign and domes- tic, are numerously collected in favor of the proposition that real or immovable prop- erty is exclusively governed by the territorial law of the situs. The point is too clear for discussion. But by the Revised Statutes of the State of Michigan, 1840, lands lying in Michigan may be conveyed by the owner residing in another state or terri- tory, or in a foreign country, according to the laws of such state or country. (c) Prselec. part 1, lib. 3; De Success, ab Inst. Collat. i. 278, sec. 20; ib. part 2, lib. 1, tit. 3; De Conflictu Legum, ii. 542, sec. 15. {d) Qu«st. Jur. Priv. lib. 1, c. 16. See also the opinion of Grotius on the poiut, given at Rotterdam, October 31, 1613, on consultation, and cited at large in Henry on Foreign Law, App. 196. (c) Voet, lib. 38, tit. 17, sec. 34 ; Heineec. Opera, ii. 972 ; De Testament! Factione, (/) Droit des Gens.b. 2, c. 7, sec. 85, c. 8, sec. 103, 110. Blatchf . 501 ; Noonan v. Bradley, 9 Wall. Boston, Bl. & How. 309. [But see Dial v. 394 ; Norton v. Palmer, 7 Gush. 523 ; Gary, 14 S. C. 573, as to administrators.] Melius V. Thompson, 1 Cliff. 125 ; although It seems, too, that a general appointment they may intervene in proceedings in rem, of executors duly authenticated abroad The Boston, Bl. & How. 309, and are will entitle them to ancillary letters, even allowed by statute to sue in some states, though letters had already been granted But a voluntary payment to them before, to others. 10 H. L. C. 14. But it is held at least when there are no creditors or that there is no privity between different legatees, and no conflicting grant of do- administrations, and that a judgment mestic letters, will discharge the debtor, against an administrator in one jurisdic- Parsons u. Lyman, 20 N. Y. 103. See tion does not estop one in another. Stacy 82 N. y. 44 ; Stone v. Scripture, 4 Lans. v. Thrasher, 6 How. 44 ; McLean v. Meek, (N. Y.) 186 ; Wilkins v. EUett, 9 Wall. 18 How. 16 ; Taylor v. Barron, 35 N. H. 740 ; Riley v. Moseley, 44 Miss. 37. But 484, 501 ; Low v. Bartlett, 8 Allen, 259. see 2 Jones Eq. 61 ; 2 Am. Law Kev. 359. However, where executors were appointed And it has been held that one to whom a in different states by the same will, a foreign executor has assigned a chose in judgment against one was held prima action may sue upon it. Petersen v. The facie evidence against the other. Hill v. Chemical Bank, 32 N. Y. 21. See Van- Tucker, 13 How. 458. quelin v. Bouard, 15 C. B. N. s. 341 ; The [602] LECT. XXXTII.] OF PERSONAL PROPERTY. * 430 This principle was understood to be settled in England, in the time of Lord Hardwicke, in the cases of Pipon v. Pipon, and of Thome v. Watkins ; (^) and Lord Thurlow observed in the House of * Lords in the case of Bruce v. Bruce, (a) that to * 430 hold that the lex loci rei sitce was to govern as to personal property, when the domicilium of the intestate was in a different countrj', would be a gross misapplication of the jus gentium. And yet, notwithstanding all this weight of authority in favor of the solidity and universality of the principle, the point was permitted to be very extensively aud learnedly debated before Lord Lough- borough, in the case of Bempde v. Johnstone; (b) and he said that the question had been decided and settled, and the law clearly Jure Germ. see. 30; Opinion of M. Target on the Duchess of Kingston's Will, 1 Coll. Jurid. 210; TouUier, Droit Civil Franyais, i. n. 366; Merlin, Repertoire de Juris- prudence, tit. Loi, §§ 6. 3. See also, supra, 67, and infra, iv. 441, 513, as to the rule when applied to personal and when applied to real property. The general utility of this doctrine, that personal property has no situs in contemplation of law, and is attached to the person of the owner wherever he is, and governed by the law of the owner's domicile, does not fail, as Mr. Justice Story has observed, to recommend itself to all nations by its simplicity, its convenience, and its enlarged policy. But the doctrine is sometimes controlled by local law, and the case of foreign assignments in bankruptcy is an instance. Vide supra, 404-408. So, in Louisiana, delivery has been held necessary to the complete transfer of personal property, as against cred- itors and purchasers, though the transfer be made by the owner in his foreign domi- cile, where the transfer would be good without delivery. Norris v. Mumford, 4 Martin (La.), 20 ; Ramsey v. Stevenson, 5 id. 23 ; Fisk v. Chandler, 7 id. 24 ; Olivier c. Townes, 14 id. 93, 97-103. These decisions have not met the approbation of some of our most distinguished civilians. Livermore's Dissertations, 137-140; Story's Coram, on the Conflict of Laws, [§§ 385-394.] (g) 2 Ves. 35; Amb. 25. See, also, the decision of Lord Mansfield before the privy council in 1762, on appeal in the case of Burn v. Cole, ib. 415. (a) 2 Bos. & P. 229, note. The decision in the House of Lords, in the great case of Bruce v. Bruce, is considered as settling the law, both in England and Scotland, in favor of the law of the domicile in the distribution of the personal estate of intestates, and that the actual situs of the goods was of no moment. The decree of the court of sessions in Scotland was affirmed. So the very important and very litigated case of Hoy v. Lashley, which arose in the court of sessions in 1791, and was carried by appeal to the House of Lords, and which led to collateral issues and subsequent appeals, and to the most learned and able discussions, settled, among other things, the points, that the succession in personal estates of every description, wherever situated, was regulated by the law of the domicile ; and that parties marrying and having their domicile in England, and then changing their domicile to Scotland, changed their rights and those of their children, and subjected them to the succession of the law of Scotland. Robertson on Personal Succession, c. 8, sec. 1, pp. 118-150; Brown v. Brown, on appeal, ib. 193; 4 Wilson & Shaw's Appeal Cases, 28. (6) 3 Ves. 198. [603] * 430 OF PERSONAL PROPERTY, [PART V. fixed in England, by repeated decisions in the House of Lords ; and that by those decisions the law of the intestate's domicile at the time of his death carried the distribution of his personal property wherever it was situated. The law of Scotland was once different ; but the court of sessions was now conformed to the English decisions, (e) He admitted, however, that if the point had been quite new and open, it would be susceptible of a great deal of argument, whether, in the case of a person dying intes- tate, having property in different places, and subject to different laws, the law of each place should not obtain, in the distribution of the property situated there; and many foreign lawyers, he said, had held that proposition. Afterwards in Somerville v. Lord Somerville, (d) the rule as above settled was declared, by the Master of the Rolls, to apply to all cases where the fact of the domicile was not in dispute. But in the case of Curling v. Thorn- ton, (e) Sir John NichoU doubted whether a British natural-born subject could shift his forum originis for a foreign domicile, in complete derogation of his rights under the British law ; and he said, it must be at least complete and total, to mate his property in England liable to distribution according to the foreign law, and the party must have declared and carried his intention into full effect. (/) 1 (c) The rule, as stated in the text, may lead, and has led, to the anomalous result, that the same person may be legitimate as to the real estate of his father, and illegit- imate as to the personal. Thus, by the Scotch law, the marriage in Scotland of Scotch parents legitimates their previously born bastard issue ; but it is not as yet so by the English law. And if the father of such issue remoTes and dies domiciled in England, leaving real and personal estate in Scotland as well as in England, the issue, being legitimate by the Scotch law and illegitimate by the English, cannot take the real or personal estate of his father by the English law, either as heir or next of kin, but he would take the real estate of his father in Scotland, according to the lex rei sitae, and would not take the personal, because the Scotch courts would, by the comity of nations, be bound to recognize, in the distribution of the personal estate, the lex domi- cilii. And thus, as an English lawyer humorously observes, the same person would, by the same court, and by this paradox in the law, be deemed legitimate as to the real estate, and illegitimate as to the personal, — "legitimate as to the mill, illegiti- mate as to the machinery, — born in lawful wedlock as to the barn, but a bastard as to the grain within it." (d) 5 Ves. 750. (f) 2 Addams, 15. (/) The inference from the case is, that the English property of British subjects, resident abroad, and dying there intestate, follows the course of distribution directed 1 Domicile. — (a) Of Oriqin. — The political status, by virtue of which a party House of Lords carefully distinguish the becomes the subject of some particular [604] LECT. XXXVII.] Of personal property. 431 * 5. (^Distribution as to foreign law.') — The rule, as * 431 settled in England, and by the general usage of nations, by the English laws. As to the general rule, that the disposition and distribution of personajl property are governed by the law of the owner's domicile at the time, see Sill V. Worswick, 1 H. Bl. 690 ; Potter v. Brown, 6 East, 130 ; Stanley v. Bernes, 3 Hagg. Eccl. 373; Story's Comm. on the Conflict of Laws, [§§ 362, 465-472] In Garland V. Rowan, 2 Sm. & M. (Miss.) 617, the general rule of the distribution of the personal estate of intestates, according to the law of the domicile of the intestate, was held to apply equally to the widow's share of the personal estate. In the case of Sill v. Wors- wick, Lord Loughborough observed, that it was a clear proposition of every country in the world, where law held the semblance of science, that personal property had no locality, and was subject to the law of the country where the owner had his domicile. But the general rule is subject to some qualification as to stocks and other property, which may be required to be transferred in the mode prescribed by local regulations. Story, [§ 383 ;] Erskine, in his Institutes, b. 3, tit. 9, sec. 4. And Pothier, in his country, and his civil status, by virtue of which he is possessed of certain municipal rights, and subject to certain obligations. The political status may depend on dif- ferent laws in different countries, but the universal criterion of civil status is the domicile." Udny u. Udny, L. R. 1 H. L. Sc. 441, 457. See Shaw v. Gould, L. R. .S H. L. 55, 84, where Dorsey v. Dorsey, 7 Watts, 349, is disapproved ; Haldane v. Eckford, L. R. 8 Eq. 631, 640. It is a settled principle that no man shall be without a domicile, either the involuntary one of origin, or an acquired domicile of choice. Udny u. Udny, supra. Accord- ingly, the domicile of origin adheres until a new domicile is acquired. [But see Hicks V. Skinner, 72 N. C. 1.] Unlike a domicile of choice, which is lost as soon as left with the intention of abandoning it, it has been held to revive when a domi- cile of choice is abandoned, and to con- tinue until a new domicile of choice is acquired, although there was no intention to revive it. Udny v. Udny, supra ; Bell l: Kennedy, L. R. 1 H. L. Sc. 307 ; [King a. Foxwell, 3 Ch. D. 518 ; Reed's App., 71 Penn. St. 378. See Stevenson v. Mas- son, 17 L. R. Eq. 78. But this distinction was not alluded to in Mitchell v. United States, 21 Wall. 350 ; Desmare v. United States, 93 U. S. 605, in deciding questions of change of domicile.] But see First Nat. Bank of New Haven v. Balcom, 36 Conn. 351. (b) Domicile of Choice is a, conclusion which the law derives from the fact of a man fixing voluntarily his chief residence in a particular place with the intention of continuing to reside there for an unlimited time. L. E. 1 H. L. Sc. 458; Haldane v. Eckford, L. R. 8 Eq. 631, 640 ; Hoskins v. Matthews, 8 De G., M. & G. 13 ; [King v. Foxwell, 3 Ch. D. 518; Verret v. Bonvil- lain, 33 La. An. 1304 ; Dupuy v. Wurtz, 53 N. Y. 566.] See Anderson <;. Ander- son, 42 Vt. 350 ; Jopp v. Wood, 34 Beav. 88, 91 ; affd. 11 Jur. N. ». 212. The resi- dence must be freely chosen. Hence, in Goods of H. R. H. the Duchess d'Orle'ans, 1 Sw. & Tr. 253, the duchess was held not to have lost her French domicile by a compulsory residence out of France under a decree of the French republic. So, a residence abroad required by the duties of office would not in general raise a pre- sumption of change, L. E. 1 H. L. So. 458; Brown v. Smith, 15 Beav. 444 ; Att. Gen. V. Pottinger, 6 H. & N. 733 ; 7 Jur. N. s. 470 ; Att. Gen. v. Rowe, 1 H. & C. 31; see ib. 12; Yelverton v. Yelverton, 1 Sw. & Tr. 574; Sharpe v. Crispin, L. R. 1 P. & D. 611 ; except in the case of India, Jopp v. Wood, 84 Beav. 88, affd. 11 Jur. N. s. 212 ; Drevon v. Drevon, 10 Jur. N. 8. 717. And in one testamen- [605] 431 OP PERSONAL PROPERTY. [PART V. as to the succession and distribution of personal property, has repeatedly been declared to constitute a part of the municipal Court d'Orleans, u. 1, sec. 2, n. 23, considered that interests in public stoclcs, or loc^l companies, &o., were governed by tlie lex loci ret sitce. But they are now clearly subject, like other personal property, to the law of the domicile. Robertson on Personal Succession, 84, 85 ; Jarman on Wills, i. 2. What facts constitute a domi- cile of the person has been a question frequently discussed. There is no fixed or definite period of time requisite to create it. The residence to create it may be short or long, according to circumstances. It depends on the actual or presumed intention of the party. It is said in Moore v. Darrall, 4 Hagg. Eccl. 346, that domi- cile does not depend on residence alone, but on a consideration of all the circum- stances of each case. The domicile may be in one state, and the aoual residence in another. [Frost v. Brisbin,] 19 Wend. 11. But a man can have but one domicile for the purpose of succession. He cannot have more than one domicile at the same time for one and the same purpose ; and every person has a domicile somewhere. A person being at a place, is prima facie evidence that he is domiciled there ; but it may be explained, and the presumption rebutted. The place where a man carries on his established business or professional occupation, and has a home and permanent resi- tary case it is said that it is not enough to change the domicile of origin for a new one that the party goes to reside in an- other place for an indefinite time, if he has in his contemplation some event, al- though an uncertain one, upon the hap- pening of which his residence will cease. There must be a fixed intention of aban- doning one domicile and permanently adopting another. Moorhouse v. Lord, 10 H. L. C. 272, 285, 286. See Haldane V. Eckford, L. R. 8 Eq. 631, 640 ; Drevon V. Drevon, 10 Jur. n. s. 717; 12 W. R. 946 ; Hallet v. Bassett, 100 Mass. 167, 171. But a mere floating intention of return at some future period would seem to be im- material. Aikman v. Aikman, 3 Macq. 854, 858 ; Anderson v. Anderson, 42 Vt. 350 ; 100 Mass. 171. Expressions of in- tention are not always conclusive. In re Steer, 3 H. & N. 594; Crookenden v. Ful- ler, 1 Sw. & Tr. 441 ; nor voting, East- erly V. Goodwin, 35 Conn. 279 ; [Doucet V. Geoghegan, 9 Ch. D. 441 ;] and the factum of residence must concur with the intent to acquire a new domicile of choice, Shaw 7j. Shaw, 98 Mass. 158 ; Drevon v. Drevon, eupra. The burden of proving a change is said to be on the party who alleges it. Bell v. Kennedy, L. R. 1 H. L. Sc. 307. (c) Double Domicile. — It is suggested that a man may have two domiciles at the same time, for different purposes. }n re Capdevielle, 2 H. & C. 985, 994. But he can only have one at the same time for the same purpose, e. g. of succession. Gilmau v. Gilman, 52 Me. 165 ; 100 Mass. 170. See, as to a company, Carron Iron Co. V. Maclaren, 5 H. L. C. 416 ; Bait. & Ohio R. R. V. Glenn, 28 Md. 287. It is important, however, to distinguish dom- icile from residence within the meaning of statutes laying taxes, Tazewell County V. Davenport, 40 111. 197; 4 Am. Law Rev. 698, 699; Shaw v. Shaw, 98 Mass. 158, 160 ; Colton ». Longmeadow, 12 Allen, 598; or of those relating to the settlement of paupers, Warren v. Thom- aston, 43 Me. 406, 418. x^ x^ The later cases hold that the term " residence " in statutes laying taxes is synonymous with " domicile." Borland v. City of Boston. 1.S2 Mass. 89; Kellogg v. [606] Supervisors, &c., 42 Wis. 97. See also Bradley ». Eraser, 54 Iowa, 289. But see Long V. Eyan, 30 Gratt. 718 (attachment) ; Story on Confl. of Laws, 8th ed. 57 (e). LECT. XXXVII.] OP PERSONAL PROPERTY. * 431 jurisprudence of this country, (a) The difBculty has been not in the rule itself, but iij the application and execution of it. In dence, is his domicile; and he has all the privileges, and is bound by all the duties, flowing therefrom. Code. Civil, art. 103; Tanner u. King, 11 La. 175. Opinion of the judges in 5 Mete. 587. It is the home of the party, the place of his principal establishment, which constitutes the domicile. The definition of a domicile, in the writings of the jurists generally, is taken from the civil law. In eodem loco singulos habere domieilium non ambigitur, ubi quis larem rerumque ac fortunarum suarum summam constituit, unde non sit discessurus si nihil avocet ; unde cum profectus est, peregrinari videtur; quod si rediit, peregrinari jam destitit. Code, lib. 10, tit. 39. 7. See also Dig. 50. 1. 27. 1; ib. lib. 50, tit. 16. 1, 203. Though his family reside part of the year at another place, such place is regarded only as a temporary residence, and the home domicile for business takes away the character of domicile from the other. The original domicile of the party always continues until he has fairly changed it for another, even though he has intentionally forsaken it. There must be intention and act united, to effect a change of domicile. A new domicile is not acquired by residence, unless taken up with an intention of abandoning the former domicile. Bradley v. Lowry, 1 Speer, Eq. {S. C.) 1 ; Attorney General v. Dunn, 6 M. & W. 511 ; Hallowell v. Saco, 5 Greenl. 14.3"; Putnam v. Johnson, 10 Mass. 488. And it was held, in De Bonneval v. De Bonneval, 1 Curteis, 856, that where A. quitted France in 1792, and resided in England until 1814, and then returned to France, and from that time resided occasionally in both countries, he had not thereby abandoned his original domicile. A dwelling place or home means some permanent abode or resi- dence, with intention to remain, and has a more restricted meaning than domicile, as used in international law. 19 Me. 293. The forum originis, or domicile of nativity, remains until a subsequent domicile is acquired animo et facto. Somerville v. Somer- ville, 5 Ves. 750 ; Balfour v. Scott, cited ib. 757. In this last case, the domicile of birth had been shifted, by election and residence, to a domicile in England, which controlled the personal estate. Case of Dr. Munroe, 5 Madd. Ch. 379 ; Harvard Col- lege V. Gore, 5 Pick. 370; Case of James Casey, 1 Ashm. 126. A woman, on mar- riage, takes the domicile of her husband. The husband's change of domicile changes that of his wife ; and the parent also possesses the power of changing the domicile of his infant child by changing his own. Under the English settlement law, minor children take the domicile of the father ; and if the mother also, being a widow, changes her domicile, her minor children change theirs also, but not if she acquires a new domicile by remarriage. Cumner u. Milton, 2 Salk. 528 ; Woodend v. Paul- spury, 2 Ld. Raym. 1473 ; Freetown v. Taunton, 16 Mass. 52. See also supra, 227, note, on the right of the surviving parent, whether father or mother, to transfer the domicile of the minor children, if done in good faith. If a party has two contemporary domiciles, and a residence in each alternately, of equal portions of time, the rule which Lord Alvanley was inclined to adopt was, that the place where the party's business lay should be considered his domicile. Lord Thurlow, in Bruce v. Bruce, 2 Bos. & P. (a) Dixon v. Ramsay, 3 Cranch, 319; United States v. Crosby, 7 id. 115; Blane V. Drummond, 1 Brock. 62; Kerr v. Moon, 9 Wheaton, 565; Desesbats v. Berquier, 1 Binney, 336 ; Decouche v. Savatier, 3 Johns. Ch. 210 ; Holmes u, Remsen, 4 id. 469, 470; Dawes v. Boylston, 9 Mass. 337; Harvey v. Richards, 1 Mason, 408; Crnfton i>. Ilsley, 4 Greenl. 134; Stent v. M'Leod, 2 M'Cord, Ch. (S. C.) 354 ; Story's Comm. on the Conflict of Laws, [c. 9,] pp. 391-893, 402-411 ; Leake v. Gilchrist, 2 Dev. IN. C.) 73, [607] *431 OP PERSONAL PEOPERTY. [PART V. Topham V. Chapman, (5) it was said, that though the distribution was to be according to the laws of the country of the domicile of the intestate, yet that his debts in a foreign country must be collected and paid according to the law of that country. Admin- istration must be granted where the debts were ; for an adminis- trator has no power beyond the jurisdiction in which he received his letters of administration ; and the home creditors must first be paid before the administrator could send the surplus fund to the country of the propes domicile of the intestate, (e) 229, note ; 3 Ves. 201, 202 ; 5 id. 786-789. See 1 Johns. Cas. 366, note, and 4 Cowen, 516, note, for a collection of authorities on this question of domicile. See also supra, i. 74-81, as to the domicile for commercial purposes, and in the purview of the law of nations. Domicile is distinguished by the various situations to which it is applied. There is a political, a civil, and a forensic domicile. There is a domicile arising from birth, and from the domestic relations, and from election, Bynk. Qusest. Jur. Priv. lib. 1, c. 16 ; Henry on Foreign Law, App. 181-208 ; Code Napoleon, n. 102-111 ; Reper- toire de Jurisprudence, art. Domicile ; Toullier, Droit Civil Fran^ais, i. -318 ; Story's Comm. on the Conflict of Laws, c. 3 ; Surge's Comm. on Colonial and Foreign Laws, i. c. 2, tit. Domicile. A resident and inhabitant mean the same thing. But inhabitancy and residence do not mean the same thing as domicile, when the latter is applied to suc- cessions to personal estates ; but they mean a Jixed and permanent abode, a dwelling house for the time being, as contradistinguished from a mere temporary locality of existence. Koosevelt v. Kellogg, 20 Johns. 208 ; Ch. "Walworth, 8 Wend. 140. See also 4 "Wend. 603. Residence, combined with intention, constitutes a domicile. Whether the residence be long or short is immaterial, provided the intention of resi- dence is wanting in the one case and exists in the other. Code Napoleon, art. 103; Toullier, i. 323, art. 372 ; Hennen v. Hennen, 12 La. 190 ; Guier v. O'Daniel, 1 Binney, 349, note. (6) 1 Const. S. C. 292. (c) The general rule in England and in this country is, that letters testamentary, or of administration, granted abroad, give no authority to sue or be sued in another jurisdiction, though they may be sufl[icient ground for new probate authority. Tour- ton V. Flower, 8 P. Wms. 369 ; Lee v. Bank of England, 8 Ves. 44 ; Dixon v. Ramsay, 3 Cranch, 319; Doe v. McFarland, 9 id. 151; Pond v. Makepeace, 2 Mete. 114; Sabin v. Oilman, 1 N. H. 193; Goodwin v. Jones, 3 Mass. 514; Riley v. Riley, 3 Day, 74; Morrell v. Dickey, 1 Johns. Ch. 153; Dangerfield u. Thurston, 20 Mart. (La.) 232; Kerr v. Moon, 9 Wheaton, 565; Armstrong v. Lear, 12 id. 169; Story's Comm. on the Conflict of Laws, [§ 513 ;] "Vaughan v. Northup, 15 Peters, 1. In N. Carolina, it is now held that probate of a will in another state, and duly authenticated, super- sedes the necessity of a new probate in that state. Lancaster v. McBryde, 5 Ired. (N. C. ) 421. The administration on a foreigner's estate must be taken out where he died, though the assets there are distributable according to the law of the country of his domicile. Aspinwall v. The Queen's Proctor, 2 Curteis, 241. In Carmichael t: Ray, 1 Richardson, 116, administration was granted in South Carolina on the estate of an intestate domiciled there ; but it was held, after an able and learned discussion, that a suit could not lie in that state in trover for chattels held by the intestate in North Carolina, as the title of the administrator did not extend to personal property in a foreign state. The case of executor is different. His title is good jure gentium, [ 608 ] LECT. XXXVII.] OF PERSONAL PROPERTY, * 432 Much discussion took place on this part of the * subject, * 432 in Harvey v. Bichards. (a) It was held, upon a masterly and operative when confirmed by the authority of the jurisdiction in which it is to operate. But the administrator's title under grant from the authorities of the intea. tate's domicile does not de jure extend or attach to tlie property in another juris- diction. A new title or a recognition of the authority must be derived from the foreign government, and then it is merely ancillary to the original power as to the collection and distribution of effects, and is made subservient to domestic claims, and the residuum is transmitted to the foreign country after the final account is settled in the domestic forum. On this difficult subject of conflicting claims under probate powers from different states, it was lield, after a full and learned discussion in Con- necticut, in the case of Holcomb v. Phelps, 16 Conn. 127, that where administration was granted in New York on the estate of A., who was domiciled in New York, and the assets were removed to Connecticut by the administrator, and a new administra- tion was granted there to another person, that the first administration was not answerable there by suit for the assets, and that the authority from New York was his protection. See infra, 434, n. (a), s. p. In McNamara u. Dwyer, 7 Paige, 239, the chancellor was of opinion that the creditors and next of kin were not confined in their remedies against an executor or administrator to the courts of the country in which the letters testamentary or of administration were granted. It was adjudged that the Court of Chancery had jurisdiction to compel a foreign executor or adminis- trator to account for the trust funds which he received abroad and brought with him into the state, and without taking out letters of administration in New York on the estate of the deceased. So it has been adjudged in the Court of Appeals in Virginia, after an elaborate discussion, that if an executor takes out letters testamentary in England, and removes to Virginia, and brings the assets with him, he may be sued there for an account of his administration, and for debts and legacies. Tunstall v. Pollard, 11 Leigh, 1, 36. But the assets will be applied and distributed according to the laws of the state or country from whom he derived his authority to administer. It is held in other cases that a foreign administrator may receive payment anywhere, and give acquittance. Doolittle v. Lewis, 7 Johns. Ch. 45; Stevens v. Gaylord, 11 Mass. 256; Trecothick v. Austin, 4 Mason, 16, 33 ; Atkins v. Smith, 2 Atk. 63 ; Nisbet v. Stewart 2 Dev. & Batt. 24. Mr. Justice Story, in his Conflict of Laws, is of opinion that upon principles of international law, a payment to an original administrator as against a foreign administrator subsequently appointed in the domicile of the debtor would not be good, and that the latter administrator would be entitled to recover the debt, inas. much as the prior and original administrator had no right to demand it. But in Vaughn v. Barret, 5 Vt. 333, a contrary doctrine is declared ; and it was adjudged, upon full discussion, that an administrator appointed in another state had no author- ity to settle and discharge a debt due from a citizen of Vermont to his intestate, and that such discharge would be no bar to an action for the debt by the administrator appointed in Vermont. Under the local law of Pennsylvania, letters of admiriistration granted in another state are a sufficient authority to maintain an action in that state. M'CuUough V. Young, 1 Binney, 63. This is the case in Ohio, Statutes of Ohio, 1831, p. 241 ; 8 Ohio, 228; and in Tennessee, by the statute of 1809, and the pro- vision is commended in Smith v. Mabry, 7 Yerg. 26, as just and liberal. But foreign executors and administrators cannot be sued in Tennessee, as such, in virtue of their foreign letters testamentary or of administration. AUsup v. AUsup, 10 Yerg. 283. And (a) 1 Mason, 403. VOL. II. -39 [609] *433 OP PERSONAL PBOPEETT. [PAET V. consideration of the case, that whether a court of equity would proceed to decree an account and distribution according *433 to the lex loci rei sitce, or direct the assets to be * dis- tributed by the foreign tribunal of the domicile of the party, would depend upon circumstances. The situs rei, as well as the presence of the parties, conferred a competent jurisdiction to decree distribution according to the rule of the lex domicilii ; and ■ such a jurisdiction was sustained by principles of public law, and was consistent with internatignal policy. The court was not bound, at all events, to have the assets remitted to the foreign administrator, and to send the parties entitled to the estate abroad, at great expense and delay, to seek their rights in a foreign tribunal. Though the property was to be distributed according to the lex domicilii, national comity did not require to entitle the executor or administrator to sue in Tennessee, on the fact of the foreign probate or letters, he must produce a duly authenticated copy of the same. Statute Laws of Tennessee, 1836, p. 78. In the Eevised Statutes of Pennsylvania, relating to orphans' courts, as reported in January, 1831, the law of Pennsylyania was recommended to be made to agree, in this particular, with the law of most of the other states. In Massachusetts and Ohio, no will is effectual to pass either real or personal estate, unless duly proved and allowed in the probate court ; and the probate of a will devising real estate is conclusive as to the due execution of the will, equally as it is of a will of personal estate. Mass. Revised Statutes, 1836, pt. 2, tit. 3, c. 62, sec. 20; Swazey v. Blackman, 8 Ohio, 1. So the probate is equally conclusive on trials at law in Maine, Connecticut, and Virginia (4 Greenl. 225; 5 id. 494; 1 Day, 170; 1 Leigh, 293) ; whereas, in Pennsylvania, the probate of a will is conclusive as to chattels, and only prima [facte] evidence of title under it as to lands. In England, the probate is evidence of the will as to chattels, but none at all as to lands, for the ordinary has no jurisdiction over wills as to lands. The confirmation of foreign letters testamen- tary, of administration and of guardianship, is made very simple and easy in Alabama and Indiana by their statute codes. It is by filing witli the clerk of the court where suit is brought the same authorities or authenticated copies thereof. The guardian is to give new security, as well as to file a copy of the appointment, in order to have the privilege of a resident guardian. So, in Virginia, a will duly authenticated and proved in another state, or in a foreign country, will be admitted to probate, if the proof abroad be such, that if made in Virginia, it would have been admitted to proof, as a will of chattels or of lands, as the case may be. Ex parte Povall, 3 Leigh, 816. In Massachusetts and Maine, a will proved and allowed in any other state, or in a foreign country, according to the laws of such state or country, may be filed and recorded, on producing an authenticated copy to the judge of probate of any county in which there is any estate, real or personal, on which the will may operate ; and the judge is to hear the case on the probate of the will on giving the prescribed notice of the time and place. If allowed, it is to be filed and recorded, and to have the same force and effect as if proved in the usual way ; and letters testamentary or of admin- istration, with the will annexed, are to be granted. Mass. Revised Statutes of 1836, pt. 2, tit. 4, c. 3; Act of Maine, 1821. See also State v. Judge of Probates, 17 La. 486, as to a similar rule and practice in Louisiana. [610] LECT. XXXVII.] OF PERSONAL PROPERTY. * 434 that the distribution should be made abroad. Whether the court here ought to decree distribution, or remit the property abroad, was matter of judicial discretion, and there was no universal or uniform rule on the subject. ^ The manner and extent of the execution of the rule were well discussed and considered in the Supreme Court of Massachu- setts, (a) A person was domiciled at Calcutta, and died there insolvent,. and his will was proved and acted upon there. Admin- istration was taken out in Massachusetts, on the probate of the will in the East Indies ; and assets came to the hands of the administrator at Boston sufficient to pay a claim due citizens of the United States, and a judgment debt due a British subject in England ; but all the assets were wanted to be applied, in the course of administration, by the executor at Calcutta. It was held that the administrator here was only ancillary to the execu- tor in India ; and the assets ought to be remitted, unless he was compelled by law to appropriate them here to pay debts. It was not decided whether he was compelled to pay here ; but if it were the case, it would only be the American creditors ; and the British creditor was not entitled to come here and disturb the legal course of settlenient of the estate in his own country. If there were no legal claimants with us in * the character * 434 of creditors, legatees, or next of kin, the administrator would be bound to remit the assets to the foreign executor, to be by him administered according to the law of the testator's domi- cile ; and if any part of the assets were to be retained, it would form an exception to the general rule, growing out of the duty of every government to protect its own citizens in the recovery of their debts. The intimation has been strong, that such an auxiliary administrator, in the case of a solvent estate, was bound to apply the assets found here to pay debts due here ; and that it would be a useless and unreasonable courtesy to send the assets abroad, and the resident claimant after them. But if the estate was insolvent, the question became more difficult. The assets ought not to be sequestered for the exclusive benefit of our own citizens. In all civilized countries, foreigners, in such a case, are entitled to prove their debts, and share in the distribution. The {a) Dawes v. Head, 3 Pick. 128. J See 429, n. 1. [611] * 434 OP PERSONAL PROPERTY. [PART V. court concluded that the proper course in such a case would be to retain the funds, cause them to be distributed pro rata, accord- ing to our own laws, among our own citizens, having regard to all the assets, and the whole aggregate amount of debt here and abroad, and then to remit the surplus abroad to the principal administra- tor. Such a course was admitted to be attended with delay and difficulty in the adjustment; but it was thought to be less objec tionable than either to send our citizens abroad upon a forlorn hope, to seek for fragments of an insolvent's estate, or to pay them the whole of their debts, without regard to the claims of foreign creditors, (a) ^ (a) In the case Ex parte Ryan (Newfoundland, 113), it was held that in the case of the insolvency of two branches of the same firm, one in England and the other in Newfoundland, the property in each country was exolusirely divisible among the creditors who trusted the branch where property was situated. The Supreme Court of Louisiana, in Gravillon v. Richard, 13 La. 293, followed the Massachusetts doc- trine, and declared that it was competent for the courts of probate in Louisiana to order the remission of funds belonging to a foreigner domiciled in France, but dying at New Orleans, to the representatives in France authorized to receive them, and that policy and justice required such a transmission, inasmuch as the creditors were in France and none in Louisiana. In Davis v. Estey, 8 Pick. 475, it was held that where the original administration was in another state, and that in Massachusetts only ancillary, and the estate was insolvent, the creditor in Massachusetts was only entitled to a pro rata dividend, though the assets in Massachusetts were sufficient to meet his demand. In the case of these different administrations, each is deemed so far independent of the others, that property received under one cannot be sued for under another, though it may at any time be within the jurisdiction of the latter. Currie o. Bircham, 1 Dow. & Ry. 35; Holcomb v. Phelps, supra, 4.S1, n. (c) ; Story's Confl. of Laws, § 518. Nor can a, judgment against one furnish a right of action against the other ; for, in contemplation of law, there is no [privity] between them. Lightfoot V. Bickley, 2 Rawle, 431 ; Story on the Conflict of Laws, [§ 522.] In Mothland i'. Wireman, 3 Penn. 185, the subject was well discussed. It was held that the liability of the administrator to account, and his title to the assets, was commen- surate only with the jurisdiction of the authority that appointed him, and the trust was in exclusion of foreign interference, and was regulated by the law of the locus rei sitce. This principle was indispensable to the protection of the resident or domestic creditors, who were not to be sent abroad to assert their claims in foreign courts, so long as there were assets within the control of the domestic administra- tion. The foreign courts might impair the priorities allowed by the domestic law, or bar claims by shorter statutes of limitation. The intestate's effects were to be collected and administered under the authority of the local jurisdiction in which they were at his death, and with the permission to foreign creditors to participate in pro- portion to their debts, respect being had to the aggregate of the estate and debts, whether foreign or domestic. If there be no domestic claimants, or they be satisfied, then the local auxiliary administrator is to remit the assets, when collected, to the 1 See 429, n. 1. [612] LECT. SXXVII.] OP PERSONAL PROPERTY. * 434 A difficult question on the subject of the distribution of the property of intestates arose in the K. B. in England, in 1767, Ijrimary administrator at the place of the intestate's domicile, and to whom they rightfully belong, for administration. This is not the case as to executors, whose title, flowing from the will, extends to the assets wherever found. The opinions of the C. J. in this case, and in the case of Miller's Estate, 3 Rawle, 312, are drawn with much precision and force ; and the general American rule from these Pennsylvania cases, and from decisions in Massachusetts and South Carolina, seems to be (and Mr. Justice Story, in his Commentaries on the Conflict of Laws, [§ 613,] comes to the same conclusion, and see also supra, 420) that the new administration is made subservient to the rights of creditors, legatees, and distributees, resident within the country/ ; and that the residuum was transmissible to the foreign country onlij when the final account had been settled in the proper domestic tribunal, upon the equitable princi- ples adopted in its laws. Some of the authorities above referred to speak of the domestic legatees and distributees as being entitled, after creditors, to have their claims satisfied out of the assets arising within the authority of the ancillary admin- istrator ; but other cases, as Kichards f . Dutch, 8 Mass. 506 ; Dawes v. Boylston, 9 id. 337 ; and Stevens v. Gaylord, 11 id. 256, held that they are to resort to the primary administration abroad, where the residuary assets are to be transmitted. The case of The Heirs of Porter u. Heydock, 6 Vt. 374, followed the principles declared in the cases of Dawes v. Head and Harvey v. Richards, and decided that it appertained to the courts in Vermont, when the ancillary administration was granted there, to settle and adjust the accounts of the administrator touching assets received in Vermont; and that it was discretionary in them to order distribution in Vermont, or remit the effects to the place of the principal administration for that purpose. It rested on courtesy and expediency alone, and it is the usual course to remit them ; but it will not be adopted when the rights of those entitled to the estate would be endangered by it. So in Slatter v. Carroll, 2 Sandford's Ch. 573, a foreign resident owned lands in New York, and conveyed them to a trustee there to sell and dis- tribute the proceeds, and remit the balance for distribution at the domicile. It was held that the court would direct the fund to be remitted, or retain and distribute it in New York, according to the circumstances of the case, in reference to the conven- ience of creditors and of the accounting parties. In the case of Fay o. Haven, 3 Mete. 109, being the latest case in Massachusetts, it was held that the assets received by a foreign executor or administrator in the foreign state where the tes- tator resided, were to be administered in such state ; and that, under the ancillary administration in Massachusetts, he was not held to pay debts due to creditors in that state out of assets received abroad, though he had paid all the creditors else- where, and had the requisite balance in hand received from tlie assets in the state where the principal administration was granted. The creditors must resort to the tribunals of the foreign state. See the just criticisms of Mr. Justice Story on some of the American cases on this point, in his treatise on the Conflict of Laws, [§ 514, b.] In the case of The Earl of Winchelsea v. Garretty, 2 Keen, 293, A. was domiciled in England and died intestate, leaving real estate in Scotland, and the bond debts were paid by the heir out of the real estate, and it was held that the heir was entitled to relief out of the personal estate in England, as being by the law of the domicile the primary fund for the payment of debts. This vexed subject of the distribution of assets being in different states, was discussed in Goodall v. Marshall, in 11 N. H. 88, by Mr. C. J. Parker, with his usual ability ; and the result of the decision of the court was, that the laws of the place under which an ancillary or auxiliary adminis. [613] *435 OP PERSONAL PROPERTY. [PART V. in the case of The King v. Hay. (V) A father and his * 435 * only daughter perished at sea, in the same vessel, and tration was taken, governs the distribution of the assets in the payment of debts there, but that the distribution of the estate among the heirs arid legatees is to be made according to the law of the domicile of the testator or intestate at his death. And if a person domiciled in another government dies, leaving personal property in New Hampshire, and an ancillary administration is taken out there, and the estate be insolvent, all the creditors of the deceased are entitled to prove their claims, and have the real as well as personal estate duly applied in satisfaction thereof, and they are entitled to pursue their claims in every government where administration is taken, and to avail themselves of all the estate^bf the debtor until fully paid. The question of the payment of debts and distribution of the assets of testators and intestates, being in difflerent jurisdictions, by trustees acting under the authority of different probate powers, primary and ancillary, has been frequently examined and discussed in our American courts with great learning and ability ; and wliile the general principles are acknowledged in all of them, the difference seems to consist in the local application of some of them on minor points. The spirit of justice pervades them all, though it may be obtained diverse intuitu, and witli more or less incon- venience. The most important cases may be perused with much profit and pleasure. Such are the cases referred to, supra, 431-434, and more especially those of Harvey V. Kicliards, Dawes u. Head, Goodall v. Marshall, Heirs of Porter v, Heydock, Hol- comb V. Plielps, Mothland v. Wiseman, Carmichael v. Eay, and Gravillon v. Richard. Mr. More, the learned editor of Lord Stair's Institutions, i. n. a, 8, states that great confusion would prevail unless the law of the domicile be held to be the rule of tlie distribution, both in succession and in bankruptcy. The Supreme Court of the United States, in Aspden v. Nixon, 4 How. 467, has very much narrowed the doctrine and application of comity in the case of concurrent administrators in different govern- ments, over the assets of the same testator or intestate. A. was domiciled in England and died there, leaving assets both in England and America, and letters testamentary were taken out in both countries ; and the claim under each power was restricted to the limits of the country to which the letters extended, and it was considered that the Pennsylvania executor could not rightfully transmit his assets to be distributed by the foreign jurisdiction, for that the suits were to be regarded as suits between different parties, and that the property in controversy was different, and the local laws dif- ferent, and that the exercise of comity among different states was little more than a barren theory. Tliis decision, however, it is to be observed, met the dissent of the Chief Justice and of Mr. McLean, and it cannot be received without much misgiving. The Massachusetts Revised Statutes of 1836, pt. 2, tit. 4, c. 70, sec. 21-26, have finally settled this question in that state. They direct that if administration be taken out on the estate of a person who was of another state, or a foreigner, the estate, after payment of debts, should be disposed of according to his will, if validly made according to the law of Massachusetts. If no will, the real estate descends accord- ing to the law of that state, and his personal estate is to be distributed according to the law of his domicile, after the payment of all debts for which he was liable in that state. The residue may be thus distributed by the Probate Court in which the estate is settled, or it may be transmitted to the executor or administrator, if any, in the place of the deceased's domicile, to be there disposed of as the court, under the circum- stances of the tase, shall think best. If the deceased died insolvent, his estate in (6) 1 Wm. Bl. 640. [6141 LECT. XXXVII.J OF PERSONAL PROPERTY. * 435 in one catastrophe ; and a question suggested by the case was, who took under the statute of distributions. If the father died first, the personal estate would have vested in the daughter, and, by her death, in her next of kin, who, on the part of the mother, was a different person from the next of kin on the part of the father. The right to succeed depended upon the fact which person died first, and that fact could not possibly be known, as the vessel perished at the same time. It was said to be the rule of the civil law, to found its presumptions on the relative strength, arising from the difference of age and sex of two per- sons ; but these presumptions were shifting and unstable. The court did not decide the question. The arguments on each side were equally ingenious and inconclusive. Lord Mansfield recom- mended a compromise, as he said there was no legal principle on which he could decide it. The same question arose again in the Prerogative Court in 1793, in Wright v. Sarmuda. (a) The hus- band, wife, and children all perished together in a vessel which foundered at sea ; and Sir William Wynne, after a long and learned discussion, held it to be the most rational presumption that all died together, and that none could transmit rights to another. So, again, in Taylor v. Diplock, in 1815, (6) in a like case. Sir John Nicholl assumed that the parties (who were hus- band and wife) perished at tlie same moment ; and he could not decide on any survivorship in the case, and, consequently, granted administration to the representatives of the husband, (c) The Massachusetts is to be disposed of, as far as practicable, equally among his creditors there and elsewhere. His estate is not to be transmitted to the foreign executor or administrator until the domestic creditors have received their just proportion of all the estate, wherever found, applicable to the payment of common creditors; and the domestic creditors are to receive their just proportion before any other creditor shall be paid out of assets. After the domestic creditors have so received their just proportion, other creditors, who prove their debts, may then receive their propor- tion ; but no one is to receive more than would be due. to him if the whole was to be divided ratably among all the creditors. The balance, if any, to be transmitted as aforesaid. In Kentucky, the law of the domicile of the intestate is not regarded as to the suc- cession to movable property, so far as his creditors in that state are concerned. The administration for the benefit of creditors is regulated by the lex loci rei sites. Warren V. Hall, 6 Dana, 452. (a) 2 Phill. 266, u. Afterwards, in Colvin v. Procurator General, 1 Hagg. Eccl. 92, Sir John Nicholl held the presumption of law in such a case to be, that the husband survived. (6) 2 Phill. 261. (c) So also in the case of Murray, in the English prerogative court, 1 Curteis, 596, [615] ^436 OP PERSONAL PBOPEETY. [part T. English law has hitherto waived the question, and, perhaps, prudently abandoned as delusive all those ingenious and refined distinctions which have been raised on this vexed subject by the civilians. The latter draw their conclusions from a tremu- lous presumption resting on the dubious point which * 436 * of the parties, at the time, under the difference of age or sex, or of vigor and maturity of body and quickness and presence of mind, was the most competent to baffle and retard the approaches of death^ (a) ^ the husband, wife, and child perished together by shipwreck, and administration was granted on the husband's effects, as of a widower. And in Sattertliwaite v. Powell, ib. 705, where husband and wife were drowned at the same time, the property passed to the next of kin of the party in whom it was vested, and neither party could claim as survivor. The wife's effects passed to her next of kin, to whom administration was granted. See also the case of Coye v. Leach, 8 Mete. 371. (a) This curious question was much discussed "in the civil law, and the presump- tion as to which was the longest liver vibrated between parent and child, according 1 Presumptions. — (a) OJ" Survivorship. — The earlier English decisions are col- lected in tlie case of Phene"s Trusts, L. R. 5 Ch. 139. An observation of Sir Wm. Grant, in Mason «. Mason, 1 Mer. 308, is there cited and approved, that he knew no instance in which English courts had adopted presumptions of fact from the rules of the civil law. In Underwood v. Wing, 4 De G., M. & G. 633, where two persons, a husband and wife, were swept from a ship by one wave, it was denied that there was any presumption that either survived the other, or that both died at the same time. Accordingly, on the ground that there was no conclusion of law upon the subject, in the absence of positive evidence, it was held that one to whom the husband had bequeathed property in the event of the testator's wife dying in his lifetime, had not made out a title as against the next of kin. The same principles were approved in Wing x^ For the general rule as to presump- tion of death, see Bailey v. Bailey, 36 Mich. 181 ; Wentworth v. Wentworth, 71 Me. 72 ; Prudential Ass. Co. v. Edmonds, 2 App. Cas. 487 (judgment of Black- [616] V. Angrave, 8 H. L. C. 183, another branch of the same case. Green's Settlement, L. R. 1 Eq. 288 ; Moehring u. Mitchell, 1 Barb. Ch. 264 ; [Russell v. Hallett, 23 Kans. 276 ; Newell v. Nichols, 75 N. T. 78 ; Robinson v. Gallier, 2 Woods, 178 ; Stinde v. Goodrich, 3 Redf. 87.] (6) Of Vejth. — In this connection it may be mentioned that although the law presumes a part.v who has not been heard of for seven years to be dead, there is no presumption of law as to the period of his death, but those who found a right upon his having survived a particular point of time must establish the fact aflBrmatively by evidpoce. In re Phene's Trusts, L. E. 5 Ch. \39, 152; In re Lewes's Trusts, L. R. 6 Oh. 356, affirming s. c. L. R. 11 Eq. 2.S6 ; Kelly v. Drew, 12 Allen, 107. x^ So, in criminal cases, R. V. Lumley, L. R, 1 C. C. 19S. It would seem to follow that the party to whose case it was materi»l to show that the burn, J.). That there is no p'^sui^ption as to the time of death, eep Davie v. Brigge, 97 U. S- 628 ; HiekmaD v- Vpsall, 4 Ch. D. 144. LECT. XXXVII.] 01' PERSONAL PROPERTY. * 436 to circumstances. (Dig. lib. 34, tit. 5, c. 10, sees. 1 and 4, and 23, 24, de [Rebus Dubiis.] It was also very ingeniously and elaborately handled in Causes Celebres, iii. 412-432, and a number of cases cited. The decisions had not been steady or con- sistent. M. Talon, the eloquent avocat ge'neral, took a distinguished lead in the dis- cussions. The ancient French jurisprudence had nothing fixed on the subject, and continued floating and uncertain, with a very shifting presumption in favor of one or another person, according to age and sex, and manner of the death, until the law was reduced to certainty by the Code Napoleon. (TouUier, Droit Civil Framjais, iv. n. 76.) By the Code Napoleon, nos. 720, 721, 722, and by the Civil Code of Louisiana, nos. 930-933, which has adopted the same provision, when two of the next of kin perish together, without it being possible to be known which died first, the presumption of survivorship is determined by circumstances. If the parties were both under fifteen years of age, the eldest shall be presumed to have survived. If above sixty, the youngest shall be presumed to have survived. If thej' were between the age of fifteen and sixty, and of different sexes, the male shall be presumed to have been the' sur- vivor, provided the ages were within a year of each other. If of the same sex, then the youngest of the two is presumed to have survived. The cases on this difficult subject in the jurisprudence of the civil law of the conti- nental nations of Europe and of England are collected and stated in Surge's Comm. on Colonial and Foreign Laws, iv. 11-29. The case of Pell v. Ball, on the same sub- ject, occurred in the Court of Chancery in South Carolina, and was decided in January, 1840. (1 Cheves, Eq. 99.) The husband and wife both perished, with many others, in the dreadful destruction of the steamer Pulaski by explosion of a boiler in the night of June 14, 1838, on her passage from Charleston to New York. The wife (Mrs. Ball) was seen alive on the wreck for a short time after the explosion, but the husband was not seen after the explosion. Chancellor Johnston decided upon that fact in favor of the survivorship of the wife. There was a ground of probability founded upon positive proof of that fact, superior to anything founded on arbitrary presumptions, and the decision was no doubt logical and correct. missing person was dead at a time before ground that the presumption of innocence the seven years had elapsed must prove overcame the presumption of life. See it. Whiting w.Nicholl, 46 111. 280; Clarke In re Benham's Trust, L. R. 4 Eq. 416, u. Canfield, 2 McCarter (15 N. J. Eq.), and Thomas v. Thomas, 2 Dr & Sm. 298, 119, 121. However, in Clarke v. Canfield, overruled by In re Phone's Trusts, supra supra, where a special legatee was last But in the case of Lewes's Trusts, L. R. heard of more than seven years ago, and 6 Ch. 356, it was said that the representa- three years before the death of the tes- tives of the legatee have to make out that tator, it was held that as by the English the legatee was alive at the death of the rule the child of the legatee must show testator, while the residuary legatee can that he survived the testator to recover, say that he is entitled to everything and, on the other hand, the residuary except what is proved not to come to legatee to establish her claim must show him. [Administration on the estate of a the contrary, neither of which was pos- living person is absolutely void. Thomas sible, the presumption of life must be v. The People (III, 1883), 17 Rep. 147. taken, in the absence of evidence, to con- But see Roderigas u. East River Savings tinue until the end of the seven years, Inst., 63 N. Y. 460. Comp. s. c. 76 N. Y. and that the legacy did not lapse. The 816.J criminal cases were distinguished on the [617] '438 OP PERSONAL PEOPEETT. [PART V. LECTURE XXXVIII. OP TITLE TO PEESONAL PROPEETY BY GIPT. Title to personal property arising from transfer by act of the party may be acquired by gift and by contract. There has been much discussion among the writers on the civil law, whether a gift was not properly a contract, inasmuch as it is not perfect without delivery and acceptance, which imply a con- vention between the parties. In the opinion of Toullier, (a) every gift is a contract, for it is founded on agreement ; while, on the other hand, Puffendorf had excluded it from the class of contracts, out of deference to the Roman lawyers, who restrained the definition of a contract to engagements resulting from nego- tiation. Barbeyrac, in his notes to Puffendorf, (J) insists that, upon principles of natural law, a gift inter vivos, and which ordi- narily is expressed by the simple term "gift," is a true contract; for the donor irrevocably divests himself of a right to a thing, and transfers it gratuitously to another, who accepts it ; and which ac- ceptance he rationally contends to be necessary to the validity of the transfer. The English law does not consider a gift, strictly speaking, in the light of a contract, because it is voluntary, and without consideration ; whereas a contract is de- * 438 fined * to be an agreement upon sufficient consideration to do or not to do a particular thing, (a) And j-et every gift which is made perfect by deliveiy, and every grant, are executed contracts ; for they are founded on the mutual consent of the parties, in reference to a right or interest passing be- tween them. There are two kinds of gifts : 1. Gifts simply so called, or gifts inter vivos, as they were distinguished in the civil law ; 2. Gifts (a) Droit Civil Franpais, torn. v. Des Donations entre Vifs, sec. 4, 5, and n. 1. (6) Droit des Gens, liv. v. c. 4, § 1, n. 1. (a) 2 Bl. Conim. 442. [618] LECT. XXXVIII.] OF PERSONAL PROPERTY. *438 causa mortis, or those made in apprehension of death. The rules by which they are governed are different and quite distinct, and they were taken from tlie Roman law. 1. Gifts inter vivos. — Giits inter VIVOS have no reference to the future, and go into immediate and absolute effect. Delivery is essential, both at law and in equity, to the validity of a parol gift of a chattel or chose in action ; and it is the same whether it be a gift inter vivos or causa mortis. (J) ^y^ Without actual delivery, (b) Irons w. Smallpiece, 2 B. & Aid. 561 ; Bunn v. Markham, 7 Taunt. 227 ; Bry- son V. Brownrigg, 9 Ves. 1 ; Antrobus u. Smith, 12 id. 39 ; Hooper v. Goodwin, 1 Swanst. 485; Sims v. Sims, 2 Ala. (n. s.) 117; Noble v. Smith, 2 Jolins. 52; Adams «. Hayes, 2 Tred. (N. C.) 366. But though the two cases first mentioned do not advert to any distinction between gifts inler vivos and gifts causa mortis, there are eases whicli do maliie it, and consider a gift inter vivos, by parol, accompanied by acceptance, good to pass the property, without actual delivery of the chattel. Com. Dig. tit. Biens, D. 2 ; 2 Mann. & Gr. 691, note c. ^ Gift of Glioses in Action. — The un- certainty of the law as to gifts of equitable choses in action as late as 1849 will be seen in 2 Spence, Eq. 895 et seq., where the earlier cases are collected and com- mented on. One of these, Meek u. Ket- tlewell, 1 Hare, 464 (s. c. 1 Phillips, 342), in which there was an assignment under seal of a bare expectancy in a trust fund, lays it down that a mere intention to pass an estate cannot be carried out, unless it be accompanied by an express declaration of trust. And this decision is said to have been founded on the logical consequences of the rule that a voluntary assignment yi A transfer by gift contemplates a transfer of the entire ownership, both legal and equitable. Any reservation of a right of control or dominion will, there- fore, defeat the operation of the intended gift. Curry v. Powers, 70 N. Y. 212; Young V. Young, 80 N. Y. 422. To constitute a gift, there must of course be an intent on the part of the donor to pass the entire ownership in prccsenti. It would seem clear on princi- ple that this intent being clearly proven bj' any relevant evidence, it should be given effect to, at least as between the of an equitable chose in action is a volun- tary agreement to pass something in futuro, and that the court will not decree performance of an agreement to assign. However, this is said to be now in efEect overruled, and any instrument may be a sufficient declaration of trust, no form being necessary. The material question is. Did the grantor or did he not mean at once to pass the property ? If he did, although other acts, such as notice to the trustees and the like are wanting, he will be declared to have constituted himself a trustee. Wood, V. C, in Penfold V. Mould, L. R. 4 Eq. 562, 564; Donald- parties, without more. It seems to be the result of the cases, however, that de- livery is to be regarded not simply as very strong or even presumptive evidence of a gift, but as a legal prerequisite to its completion. Jackson v. Twentj'-third St. Ry. Co., 88 N. Y. 520 ; Northrup v. Hale, 73 Me. 66 ; Robinson v. Ring, 72 Me. 140 ; and cases generally in this note. Delivery may, however, be to a third person as well as to the donee, and may be sym- bolical as well as actual. Thus delivery of a bank-book was held valid in Davis v. Ney, 125 Mass. 590 ; Hill v. Stevenson, [619] 438 OP PERSONAL PROPERTY. [part V. the title does not pass. A mere intention, or naked promise to give, without some act to pass the property, is not a gift. There son i^. Donaldson, Kay, 711; Re Way's Trusts, 2 De G., J. & Sm. 365. So it is to be gathered from Richardson v. Rich- ardson, L. R. 3 Eq. 686, before the same judge (Fortescue v. Barnett, 3 My. & K. 36, 42, approved in Kekewicli v. Manning, 1 De G., M. & G. 176, being cited in the argument), that delivery (e. g. of a notej is not necessary, and the notion that the assignor must have done all he can to complete the assignment is denied. The assignment in this case was by a volun- tary deed. See also Crawford's Appeal, 61 Penn. St. 52; Fulton o. Fulton, 48 Barb. 581. So, a writing purporting to give a, bond which was transferable by delivery,but not delivered, was held effec- tual in Morgan v. Malleson, L. R. 10 Eq. 475. In Jones v. Lock, L. R. 1 Ch. 25, Lord Cran worth recognizes like principles, but thinks the cases which established them unfortunate. See further, Voyle v. Hughes, 2 Sm. & G. 18; 7 Am. Law Rev. 60, 61. [But see Ruckman v. Ruckman, 83 N. J. Eq. 354, and cases infra, n. y^.] A voluntary settlement may be made by actually transferring the property to the beneficiary, or to trustees for tlie pur- poses of the settlement, or by the settlor declaring that he himself holds the prop- erty in trust for those purposes. But it has been said, in a case earlier than some of those cited above, that when the set- tlement is intended to be effectual by one mode, the court will not give it effect by applying another of tliose modes. Milroy V. Lord, 31 L. J. n. s. Ch. 798, 803. See Woodford v. Charnley, 28 Beav. 96. And it has been thought that Bridge v. Bridge, 16 Beav. 315, and Beech r. Keep, 18 Beav. 285, might be distinguished from later cases on the ground that the inten- tion and attempt was to pass the legal interest, and that that attempt failing it could not be upheld as a declaration of ' trust. May on Voluntary and Fraudu- 63 Me. 364. So a delivery of two notes to a third person. Meriwether v. Morri- son, 78 Ky. 572 But not the delivery of one's own check. Simmons v. Savings Society, 31 Ohio St. 457; Curry v. Powers, supra. As to policy of insurance, see Rummens v. Hare, 1 Ex. D. 169. See also Carpenter v. Soule, 88 N. Y. 251. Delivery may be either before or after the words of gift. Carradine v. Carra- dine, 58 Miss. 286. But when the intent appears to create a trust and not to make a gift, no delivery is required. A legally manifested intent is then sufficient. Mar- tin o. Funk, 75 N. Y. 134 ; Ray v. Sim- mons, 11 R. I. 266 ; Gerrish v. New Bedford Inst, for Savings, 128 Mass. 159. Richardson v. Richardson and Morgan v. MalJeson, cited in n. 1, supra, have been much criticised. Warriner v. Rogers, 16 L. R. Eq. 340; Richards v. Delbridge, 18 L. R. Eq. 11 ; Moore v. Moore, ib. [620] 474; Heartly v. Nicholson, 19 L. E. Eq. 233 ; In re Breton's Estate, 17 Ch. D. 416 ; Hayes v. Alliance Assurance Co., 8 L. R. Ir. 149. On the other hand, they were followed in Baddeley v. Baddeley, 9 Ch. D. 113; Fox . Dutruit, 51 Wis. 326 ; United Commissioners, 98 U. S. 541 ; Lamborn v. States v. Huckabee, 16 Wall. 414, 431. [642] LECT. XXXIX.J OP PERSONAL PROPERTY. * 453 greater or less strength of the understanding ; and if the party be compos mentis, the mere weakness of his mental powers does not incapacitate him. (c?) Weakness of understanding may, however, be a material circumstance in establishing an inference of unfair practice or imposition ; and it will naturally awaken the attention of a court of justice to every unfavorable appearance in the case, (e) Nor is a person born deaf and dumb to be deemed absolutely nan compos mentis, though by some of the ancient authorities he was deemed incompetent to contract. (/) The proposition would seem to be a reasonable one, that every such person was * prima facie incompetent, inasmuch as * 453 the want of hearinr- and speech must exceedingly cramp the powers, and limiu the range of the human mind. But it is well known, by numerout and affecting examples, that persons deprived of the faculty of speech and the sense of hearing possess sharp and strong intellects, susceptible of extensive acquirements in morals and science, (a) If the contract be entered into by means of violence offered to the will, or under the influence of undue constraint, the party may avoid it by the plea of duress ; and it is requisite to the validity of every agreement, that it be the result of a free and bona fide exercise of the will. (5) If a person be under an arrest for improper purposes, without a just cause, or where there is an arrest for a just cause, but without lawful authority, he may be considered as under dtiress. The general rule is, that either the imprisonment or the duress must be tortious and without lawful authority, or by an abuse of the lawful authority to arrest, to (rf) Osmond v. Fitzrqy, 3 P. Wms. 12f); Lord Hardwicke, in Bennett v. Vade, 2 Atk. 324; Ball v. Mannin, 1 Dow (u. s.), 380. (') Blatcliford v. Christian, 1 Knapp, 73. (/) Brower v. Fisher, 4 Johns. Cli. 441 ; Bracton de Exceptionibus, lib. 5, e. 20; rieta, lib. 6, u. 40 ; Bro. tit. Escheat, pi. 4. The civil law also held such afflicted per- sons to be fit subjects for a curator or guardian. Inst. 1. 23. 24 ; ib. 2. 12. 3 ; Vinnius and Eerriere, h. t. (a) Mr. Justice Story, in his Commentaries on Equity Jurisprudence, 227-245, has fully discussed the question, and examined the authorities both in the English and the civil law, which bear on it, respecting the relief afforded in equity against con- tracts and other acts of persons wholly or partially non compotes mentis, (b) By the Scots law, force and fear annul engagements, when they are such as to shake a mind of ordinary firmness. Bell's Principles of the Law of Scot- land, 5. Fear of unlawful imprisonment will constitute a, case of duress perminas, and avoid a contract. Co. Litt. 253, b ; 2 Inst. 483 ; Foshay n. Ferguson, 5 HiU (N.Y.), 154. [643 1 *454 OP PEESONAL PROPERTY. [PAET V. constitute duress by imprisonments, (e) Nor will a contract be valid if obtained by misrepresentation or concealment, or if it be founded in mistake as to the subject-matter of the contract. But the distinctions under this head will be considered at large in a subsequent part of the lecture. 2. The Lex Loci as to Contracts. — (1.) The Wature and Impor- tance of the Doctrine. — Questio'ns have frequently arisen on the effect to be given to foreign laws, when brought into view in discussions concerning personal rights and contracts. The inquiry is, how are contracts made abroad to be construed, and in wliat manner and to what extent are they to be enforced and dis- charged, when the law of the country in which they were made, and the law of the country in which performance is sought, are in collision ? The subject forms a secondary branch of * 454 the * law of nations ; and the rules by which such questions are governed are founded on the principles of general juris- prudence, and are incorporated into the code of national law in all civilized countries. It is sometimes called private interna- tional law, and it exists not strictly ex jure gentium, but rests on the comitas gentium. But if one independent state allows com- mercial intercourse and contracts between its citizens and those of another, the rights of the parties and the relation between them would seem to have a higher claim than that of mere comity, — a claim of justice, though, perhaps, of imperfect obli- gation under the laws of independent states within their own territories. The principal events which produce a conflict in respect to personal I'ights and the distribution of property between the laws of the country where the judicial discussions arise and the laws of the place of the party's domicile, are marriage, death, bankruptcy, and the application of remedies. We have already adverted to the subject (though necessarily in the brief manner (c) Nicholls r. KichoUs, 1 Atk. 409 ; Thompson v. Lockwood, 15 Johns. 259; Wat- Kins V. Baird, 6 Mass. 511 ; Stouffer v. Latshaw, 2 Watts, 166 ; Richardson u. Duncan, 3 N. H. 508. This last case states, that even an arrest for a just cause, and under lawful authority, may amount to duress, if done for unlawful purposes. 5 Hill (N. Y.), 157, s. p.; [Baker v. Morton, 12 Wall. 150, 158.] There is » material dis- tinction between duress of the person and duress of goods, and the latter will not render an agreement void. Skeate v. Beale, 11 Ad. & El. 983 ; Powell, J., in 11 Mod. 201, 203. But, though a man may not avoid his bond procured by an illegal distress of his goods, Mr. Justice Bronson had no doubt that a contract procured by threats and the fear of battery, or the destruction of property, might be avoided on the ground of duress. Foshay v. Ferguson, supra. [644] LECT. XXXIS.J OP PERSONAL PROPERTY. * 455 which the nature of the present undertaking required), in respect to tlie effect of foreign suits and judgments ; (a) and in respect to marriage, (5) divorce, (c) infancy, (d) assignments in bank- ruptcy, (e) the discharge of insolvent debtors, (/) and the distri- bution of intestates' estates. ((/) A further view of the doctrine will be useful, and cannot fail to be interesting to the student, iu its application to contracts at large ; for questions arising on the extraterritorial operation of statutes, usages, and judicial decisions, are becoming frequent and delicate topics of discussion in our American law. A contract, vahd by the law of the place where it is made, is, generally speaking, valid everywhere jure gentium, and by tacit assent. The lex loci contractus controls the nature, construction, and validity of the contract ; and on this broad foundation the law of contracts, founded on necessity and commercial con- venience, is said to have been originally established. (A) If the rule were otherwise, the citizens of one country could not safely contract, or carry on commerce, in the territories of another. The necessary intercourse of mankind requires * that the acts of parties, valid where made, should be * 455 recognized in other countries, provided they be not con- trary to good morals, nor repugnant to the policy and positive institutions of the state, (a) The doctrine of the lex loci is replete with subtle distinctions and embarrassing questions, which have exercised the skill and learning of the earlier and most distinguished civilians of the (a) Supra, 118. (6) Supra, 91, 183, 184. (c) Supra, 10(>-118. (rf) Supra, 233. (e) Supra, 404-408. (/) Supra, 392, 393. {g} Supra, 67, 428—434. Those universal personal qualities which the laws ot all civilized nations consider as essentially affecting the capacity to contract, as majority and minority, marriage or celibacy, sanity or lunacy, &c., are regulated by the lex domicilii, and travel with parties wherever they go, as see post, 456. (A) Ex hoc jure gentium omnes pene contractus introducti sunt — usu exigente et humanis necessitatibus. Inst. 1.2. 2 ; Pardessus, Droit Commercial, v. 1482 ; Trasher v. Everhart, 3 Gill & J. 234; Pickering v. Fisk, 6 Vt. 102 ; Story's Comm. on the Conflict of Laws, [§ 242.] Eectores iraperiorum id coniiter agunt ut jura cujusque populi intra terminos ejus exercita, teneant ubique suam vim, quatenus nihil potestati aut juri alterius Imperantis ejusque civium praejudicetur. Huber, de Conflictu Legum, tit. 3, sec. 2. (a) This principle of public law, says Toullier (Droit Civil, x. sec. 79, n.), is well explained and enforced by M. Bayard, in the Nouvelle Collection de Jurisprudence, Ix. 759, and which he undertook in conjunction with M. Camus. [645] *456 OP PERSONAL PROPERTY. [PART V. Italian, French, Dutch, and German schools, in their discussions on highly important topics of international law. (6) These topics were almost unknown in the English courts, prior to the time of Lord Hard wicke and Lord Mansfield; and the English lawyers seem generally to have been strangers to the discussions on foreign law by the celebrated jurists in continental Europe. When the subject was introduced in Westminster Hall, the onlj'- work which attracted attention was the tract in Hiiber, entitled De Conflictu Legum, and which formed only a brief chapter in his voluminous Prelections on the Roman Law ; and yet it appears that the very great diversity of laws and usages in the cities, provinces, and states of Germany, Holland, and France had produced far more . laborious investigations on the subject, (c) In the works * 456 of the civilians on * the continent of Europe, the applica- tion of the law of domicile or the lex loci, on the one hand, and the lex fori or rei sitce on the other, is made to depend on the distinction between real and personal statutes. According to the understanding of an American lawyer, a statute means an express act of the legislature of the country ; but the jurists, educated in the schools of the civil law, apply the term statute to any par- ticular municipal law or usage, though resting for its authority (6) Among a host of jurists who have displayed their research and acuteness on these subjects, the most preeminent are, Dumoulin, d'Argentre, Burgundus, Roden- burgh, P. & J. Voet, Boullenois, Bouhier, and Huberus ; and their respective doc- trines, pretensions, and merits were critically and ably examined by Mr. Livermore, of New Orleans, in his Dissertation on Personal and Real Statutes, published in 1829, — a work which is very creditable to his learning and vigorous spirit of inquiry. A curious fact is mentioned by Mr. Robertson, in his Treatise on the Law of Personal Succession. He says that of the ninety-one continental writers on the subject of the Conflict of Laws, quoted or referred to by the American jurists, Livermore and Story, a large proportion of them was not to be found in the public law libraries in London, but all of them, except six, were to be met with in that admirable repertory of books of law, the library of the faculty of advocates in Edinburgh. Mr. Livermore, while a practising lawyer in New Orleans, had collected from continental Europe most of those rare works as part of his valuable law library, and which library he bequeathed by will to Harvard University, in Massachusetts. (c) The foreign treatises of most interest on the doctrine of the lex loci, in addition to that of Huber, are understood to be Rodenburgh's Tractatus de Jure quod oritur ex Statutorum Diversitate, P. Voet's De Statutis eorumque Concursu, Hertius's De Collissione Legum, and G. G. Titius's De Conflictu Legum. Mr. Henry published at London, 1823, a Treatise on Foreign Law, and particularly on the difference between personal and real statutes, and its effects on foreign judgments and contracts, marriages and wills. In that treatise he shows himself to be a master of many of the foreign works on the subject ; and he bestows particular commendation on the treatise of Roden- burgh. [646] LECT. XXXIX.] OF PERSONAL PROPERTY. * 457 on judicial decisions on the practice of nations. A personal statute is a law, ordinance, regulation, or custom, the disposition of which affects the person, and clothes him with a capacity or incapacity, which he does not change with every change of abode ; but which, upon principles of justice and policy, he is assumed to carry with him wherever he goes. A real statute affects things as used in contradistinction to persons ; and their operation is necessarily confined within territorial limits, or ad locum rei sitae, (a) According to this distinction, laws regulating the marriage and nuptial contracts, divorce, the period of infancy, and the disposition of personal property, are personal statutes ; while laws regulating the descent, transmission, and disposition of real property, and the nature, extent, and limitation of civil remedies, are real statutes. But the * difficulty * 457 with the civilians has been to draw a clear, precise, and practical line of distinction, and one worthy of insertion in the code of international jurisprudence, between the real and personal statutes ; and many of their discussions are involved in perplexity and confusion. Merlin arrives at the most definite and intelli- gible result. In his view of the subject, the laws which regulate the condition, capacity, or incapacity of persons are personal statutes ; and those which regulate the quality, transmission, and disposition of property are re^l statutes. The test by which they may be distinguished consists in the circumstance, that if the principal, direct, and immediate object of the law be to regu- late the condition of the person, the statute is personal, whatever may be the remote consequences of that condition upon property. But if the principal, direct, and immediate object of the law be to regulate the quality, nature, and disposition of property, the statute is real, whatever may be its ulterior effects in respect to the person, (a) ^ [a) Mr. Henry and Mr. Livermore have become so completely initiated in the learning of the Roman civil law, as to use the terms real and personal statutes as familiarly as an English lawyer would the words real and personal property. I beg leave, however, to protest against the introduction into our Aqierican jurisprudence of such a perversion of the word " statute,'' so long as we can find other and more appropriate terms to distinguish foreign from domestic law, or the law of the domicile from the law of the territory. (a) Re'pertoire de Jurisprudence, tit. Autorisation Maritale, sec. 10. The writers on the civil law frequently speak of the siaius of the person, by which they mean only I For a clear exposition of the meaning of the conceptions persona and status, see Austin, Lect. 40 and 41. r r. ^ rr t [647] *458 OP PERSONAL PROPERTY. [PART V. The doctrine in question may be considered, — 1. In its appli- cation to the obligation and construction of contracts ; 2. In its application to the remedy. ' 1. (I%e application to contracts.') — There is no doubt of the truth of the general -proposition, that the laws of a country have no binding force beyond its territorial limits ; and their authority is admitted in other states, not ex proprio vigore, but ex comitate ; or, in the language of Huberus, quatenus sine prcejudicio indul- gentium fieri potest. Every independent community will judge for itself how far the oomitas inter communitates is to be permitted to interfere with its domestic interests and policy. The general and most beneficial rule of international law, contributing to the safety and convenience of mankind, is, Statuta suis clauduntur territoriis nee ultra territorium dispertiuntur. There are, how- ever, certain general rules in respect to the admission of the lex loci contractus, which have been illustrated bj' jurists, and recognized in judicial decisions, and to which, we may confi- dently appeal, as being of commanding influence in the consid- eration of the subject. Thus it may be laid down as the * 458 settled doctrine of public law, that personal * contracts are to have the same validity, interpretation, and obligatory force in every other country which they have in the country where they were made, (a) The admission of this principle is his civil condition, quality, or capacity. Status est qualitas, cujus ratione homines diverso jure utuntur. So, again. Persona est homo, cum statu quodam consideratus. Heinecc. Elem. Jur. C. sec. Ord. Inst., lib. 1, tit. 3, §§ 75, 76. (a) Bank of the United States v, Donnally, 8 Peters, 361 ; Watson v. Orr, 3 Dev. (N. C.) 161. See also jn/ro, note (6). If, therefore, under a foreign marriage contract, the husband would be entitled to property accrued to the wife during coverture, the English courts will enforce it, without raising an equity for a settlement in favor of the wife. Anstruther v. Adair, 2 My. & K. 513; Dues v. Smith, Jacob, 544, s. p. Matrimonial rights, as between husband and wife, are determined by the law of their domicile. Gamier v. Poydras, 13 La. 177. And as a general rule, personal property follows the law of the domicile of the owner, and real property the law of the locus rei sitcB. Vide supra, 429. But every state may impress upon all property within its territory any character which it may deem expedient. Story's Conflict of Laws, sec. 447. Thus, in Louisiana, slaves were declared to be immovable property, or real estate, in contemplation of law. La. Dig. 1808, b. 2, c. 2, art. 19. Local stocks, such as bank, insurance, turnpike, and canal stock, and other incorporeal property, owing its existence, or regulated by local laws, must be transferred according to local laws or regulations.! But debts due from corporations are not of a local character, and may be assigned or transferred according to the law of the place where the 1 407, n. 1. [648] LECT. XXXIX.J OP PERSONAL PROPEKTY. * 458 requisite to the safe intercourse of the commercial world, and to the due preservation of public and private confidence ; and it is of very general reception among nations. Parties are presumed to contract in reference to the laws of the country in which the contract is made, and where it is to be paid, unless otherwise expressed ; the maxim is, that locus contractus regit actum, unless the intention of the parties to the contrary be clearly shown. (6) The rule stated in Huber relative to contracts made in one country and put in suit in the courts of another, is the true rule, and one which the courts follow, viz. : the interpretation of the contract is to be governed by the law of the country where the contract was made ; but the mode of suing and the time of suing must be governed by the law of the country where the action is brought, (c) It is, however, a necessary exception to the uni- versality of the rule, that no people are bound or ought to enforce, or hold valid in their courts of justice, any contract which is injurious to their public rights, or offends their morals, or contravenes their policy, or violates a public law. ((^) It is assignment is made. A debt has no situs or locality. Erskine's Inst. b. 3, tit. 9, sec. 4 ; Story's Conflict of Laws, sec. 362, 383, 399 ; Atwood v. Protection Ins. Co., 14 Conn. 555. The general principle is, that personal property has no locality or situs, but fol- lows the person of the owner, and his alienation of it is governed by the law of liis domicile, or where it was made, and this rule is generally recognized by the comity of nations. Vanbuskirk v. Hartford F. Ins. Co., 14 Conn. 583. (6) Allshouse v. Ramsay, 6 Wharton, 331 ; Barge's Col. & For. Laws, ii. 851 ; iii. 7-58 ; In the matter of Roberts's Will, 8 Paige, 446, 525 ; Sessions v. Little, 9 N. H. 271 ; Dunscomb v. Bunker, 2 Mete. 8 ; Thomas v. Beckman, 1 B. Mon. 32 ; Story's Conflict of Laws, [§§ 242, 840] ; Story on Bills, 184-188 ; Arrington v. Gee, 5 Ired. (N. C.) 590. If no place be designated in a note as a place of payment, the law of the place where it is made determines its construction, obligation, and place of pay- ment ; and if the law of that place gives three days of grace, the maker is entitled to that grace, if he resides elsewhere, before demand can be made and the indorser fixed. Story's Conflict of Laws, [§ 317] ; Bryant a. Edson, 8 Vt. 325 ; Bank of Orange County V. Colby, 12 N. H. 520. (c) Hub. de Conflictu Legum, sec. 7; De la Vega u. Vianna, 1 B. & Ad. 284; Trimbey v. Vignier, 1 Bing. N. C. 151 ; Dunscomb v. Bunker, 2 Mete. 8. {d) Hub. Prselec. Jur. Civ. ii. b. 1, tit. 3, De Conflictu Legum. Voet, ad Pand. lib. 5, tit. 1, sec. 51 ; Emerig. des Ass. c. 4, sec. 8, i. 122 ; Karnes's Principles of Equity, b. 3, c. 8, sec. 4; Van Reimsdyk v. Kane, 1 Gallison, 371; Harvey v. Richards, 1 Mason, 381 ; Le Roy v. Crowninshield, 2 id. 151 ; Greenwood v. Curtis, 6 Mass. 358; Brown v. Richardsons, 1 Mart. N. s. (La.), 202; Blanchard v. Russell, 13 Mass. 1 ; Prentiss v. Savage, ib. 26; Lodge v. Phelps, 1 Johns. Cas. 139; Saul v. His Credit- ors, 5 Mart. N. s. (La.) 569 ; [Rousillon v. Rousillon, 14 Ch. D, 351, 369 ; Messenger v. Perm. R. R. Co., 36 N. J. L. 407 ; Union, &c. Co. v. Erie R. R. Co., 37 N. J. L. 28 ; Edg- erly v Bush 81 N. Y. 199 ;] Story's Comm. on the Conflict of Laws, [§§ 244-259.] In [649] * 469 OP PERSONAL PROPERTY. [PART V. a consequence of the admission of the lex loci that contracts void by the law of the land where they are made, are void in every other country, (e) So, also, the personal incompetency of indi- viduals to contract, as in the case of infancy, and the general capacity of parties to contract, depend, as a general rule, upon the law of the place of the contract. (/) The incompetency of a married woman to contract is considered by the civilians to depend upon the law of the place of the marriage. (^) * 459 Upon the doctrine of the lex loci, nuptial contracts, * valid by the law of the place where made, will be recognized and enforced by the courts of other countries, in proper cases ; (a) this work of Mr. Justice Story, the exceptions in the text are stated and discussed, and the authorities in support of them collected. In New Jersey it was held, in Varnum v. Camp, 1 Green, 326, tliat an assignment of personal property by an in- solvent debtor, made at New York, in trust to pay creditors, and giving preferences, though good in New York, was void as to personal property in New Jersey, because their statute law prohibited preferences in that case. The lex rei sitce, even as to personal property, prevailed by force of the statute over the lex loci. The exercise of comity in admitting or restraining the application of the lex loci, must unavoidably rest in sound judicial discretion, dictated by the circumstances of the case. Parker, C. J., in Blanchard u. Russell, 13. Mass. 6; Story's Conflict of Laws, [§ 28J ; Shaw, C. J., in Commonwealth v. Aves, [18 Pick. 193.] (e) Boullenois, i. tit. 2, u. 3, p. 491 ; Alves v. Hodgson, 7 T. R. 241 ; Desesbats v. Berquier, 1 Binney, 336; Houghton v. Page, 2 N. H. 42; Story's Coram, on the Conflict of Laws, [§ 243 ;] Story on Bills, 184-188. (/) Male V. Roberts, 3 Esp. 163 ; Ex parte Lewis, 1 Yes. 298 ; Henry on Foreign Law, 96 ; Saul v. His Creditors, 17 Martin (La.), 596-598; Story on the Conflict of Laws, 97 ; Pickering v. Fisk, 6 Vt. 102. In the case of Polydore v. Prince, Ware, 402, it was held, after a full consideration of the law, both at home and abroad, and of the principles of general jurisprudence which belong to the question, that civil incapacities and disqualifications by which a person is affected by the law of his domicile, are regarded in other countries as to acts done or rights acquired in the place of his domicile, but not as to acts done or rights acquired within another juris- diction, where no such disqualifications are acknowledged. On this doctrine it was held that the libellant, who was a slave by the law of his domicile, might sue in his own name in Maine, where slavery was not allowed, for a personal tort committed in an American vessel, on the high seas, and within the cognizance of the District Court. (?) Henry on Foreign Law, 37, n. 50, cites the opinion of Grotius, in a case sub- mitted to him, to that efiect. (a) Feaubert v. Turst, Free, in Ch. 207; 1 Bro. P. C. 38; Freemoult v. Dedire, 1 P. Wms. 429 ; Decouche v. Savetier, 3 Johns. Ch. 190 ; Crosby u. Berger, 3 Edw. Ch. 538 ; Hub. de Conflictu Legum, lib. [1, tit.] 3, sec. 9 ; Story's Comm. on the Con- flict of Laws, [§§ 143, 145-146 ;] Anstruther a. Adair, 2 Myl. & K. 513 ; Scrimshire V. Scrimshire, 2 Hagg. Cons. 407 ; Lord Eldon's opinion, in Lashley v. Hoy, cited in Robertson on Personal Succession, App. pp. 427, 428. But if A. and B., domiciled in Louisiana, elope to the State of Mississippi, and maiTy, and shortly thereafter [650] LECT. XXSIX.] OP PERSONAL PROPERTY. * 459 and as personal qualities and civil relations of a universal nature, such as infancy and coverture, are fixed by the law of the domi- cile, it becomes the interest of all nations mutually to respect and sustain that law. (S) The lex loci operates not only in respect to the nature, obliga- tion, and construction of contracts, and the formalities and authentications requisite to the valid execution of them, but also as to their discharge. It is a general rule, that whatever constitutes a good defence, by the law of the place where the return, the conjugal rights under the marriage are held to be according to the law of domicile, as the law of the land would otherwise be fraudulently evaded; and it was not in such a case the intention of the parties to shift their domicile. Le Breton v. Nouchet, 3 Martin (La.), 60. See also Hub. de Conflictu Legum, sec. 10. Nor can a contract of marriage, entered into in Louisiana, provide that the rights of the par- ties shall be according to the provisions of any foreign specified law. Bourcier i;. Lanusse, 3 Martin (La.), 581. If, however, the parties agree, previously to their marriage, upon a place of residence after it, and actually settle there, it becomes the place of their matrimonial domicile, and the marital rights of the husband to the wife's property are determined by the law of that domicile. Kneeland u. Ensley, Meigs (Tenn.), 620 ; Le Breton v. Miles, 8 Paige, 261. [Cf 93, n. 1.] (6) Mr. Justice Story, in treating of the capacity of persons, in his Commentaries on the Conflict of Laws, c. 4, has thoroughly examined the conflicting opinions and infinite distinctions with which the host of civilians of continental Europe have over- whelmed and perplexed the subject ; and he has deduced the following rules as best established in the jurisprudence of England and America, viz.: (1.) The capacity, state, and condition of persons, according to the law of their domicile, will generally be regarded as to acts done, rights acquired, and contracts made in the place of their domicile. (2.) That as to acts done, and riglits acquired, and contracts made in other countries, the law of the country where they are done, acquired, or made, will generally govern in respect to the capacity, state, and condition of persons. And, therefore, in regard to questions concerning infancy, competency to marry, incapaci- ties incident to coverture, guardianship, and other personal qualities and disabilities, the law of the domicile of birth, or other fixed domicile, is not generally to govern, but the lex loci contractus aut actus. (3.) Personal disqualifications, arising from cus- tomary or positive law, and of a penal nature, are territorial, and not generally regarded in other countries, where the like disqualifications do not exist. Story's Comm. [§§ 101-104.] On this subject of the capacity of persons to contract, the continental jurists generally adopt the law of the domicile, and the English common law the lex loci contractus. Burge, in his Comm, on Colonial and Foreign Laws, i. 244-260, cites largely from the continental civilians, to show that the wife's rights, capacities, and disabilities, under the contract of marriage, are determined by tlie law of the husband's domicile, when the marriage took place. This is the law in this country, if the parties had not in view, at the time, another place of residence. If the husband and wife have different domiciles at the time of the marriage, the law of the husband's domicile governs the marital rights; and if neither party have any determinate domicile at the time, the lex loci contractus governs. Kneeland u. Ensley, Meigs, 620. Prima facie, at least, the husband's domicile is that of the wife. Whitcomb v. Whitcorab, 2 Curteis, 351. [651 J * 459 OF PERSONAL PROPEETT. [PART V. contract is made or is to be performed, is equally good in every other place where the question may be litigated. Upon this principle, the discharge of a debtor under the bankrupt or insol- vent laws of the country where the contract was made, and in cases free from partiality and injustice, is a good discharge in every other country, and pleadable in bar. The same law which creates the charge is to be regarded when it operates in discharge of the contract, (c) But if a contract be made under one government, and is to be performed under another, and the parties had in view the laws of such other country in reference to the execution of the contract, the general rule is, that the contract, in respect to its construc- tion and force, is to be governed by the law of the country or state in which it is to be executed ; and the foreign law is in such cases adopted, and effect given to it. (c?) ^ This exception to the (c) Ballantine v. Goulding, 1 Cooke's B. L. 347, 1st ed. ; Potter v. Brown, 5 East, 124 ; Van Raugh v. Van Arsdale, 3 Caines, 154; Smith v. Smith, 2 Johns. 235; Hicks V. Brown, 12 Johns. 142 ; Blanchard v. Russell, 13 Mass. 1 ; Bradford v. Farrand, ib. 18; Prentiss v. Savage, ib. 20 ; Van Reimsdyk v. Kane, 1 Gall. 371 ; Le Roy v. Crown- inshield, 2 Mason, 151; Green v. Sarmiento, Peters C. C. 74; Harrison v. Edwards, 12 Vt. 648 ; Story on the Conflict of Laws, [§§ 331, 348.] See also, supra, 393. [But see 393, n. 1, and i. 422, n. 1.] All the foreign jurists agree tliat every contract must conform to the formalities and solemnities required by tlie lex loci, in respect to their valid execution ; and the like doctrine is recognized in Alves v. Hodgson, 7 T. R. 241 ; Clegg V. Levy, 3 Camp. 166; Vidal u. Thompson, 11 Mart. (La.) 23; Depau v. Humphreys, 20 id. 1, 22; but a contrary rule was declared in Wynne v. Jackson, 2 Russell, 351, and James v. Catherwood, 3 I)owl. & Ry. 190. Mr. Justice Story adds the weight of his opinion to the rule first mentioned. Comm. on the Conflict of Laws, [§§ 260, 261.] (d) Hub. de Conflictu Legum, sec. 10; Voet, ad Pand. 4. 1. 29; Lord Mansfleld, in Robinson v. Bland, 2 Burr. 1077 ; Dig. 42. 5 ; ib. 44. 7. 21 ; Story's Comm. on the ^ Law governing the Contract. — The may justly be presumed to have bound text is confirmed by Grell v. Levy, 16 C. themselves. Lloyd v. Guibert, 6 Best & B. N. s. 73; Pomeroy v. Ainsworth, 22 S. 100 (L. R. 1 Q. B. 115, afiirming s. o. Barb. 118. But it is said that the impor- 33 L. J. Q. B. 241) ; The Karnak, L. R. 2 tance of the fact that a contract made in P. C. 505 ; and other cases collected post, one country is to be entirely performed iii. 164, n. 1, (h); 174, n. 1. A contract elsewhere, or that the subject-matter is made between British subjects in England immovable property situate in another for carriage thence to Mauritius was held Country, &c., lies in its indicating an in- to be wholly governed by English law in tention to be bound by a law different Peninsular & Oriental S. N. Co. u. Shand, from that of the place where the contract 3 Moore P. C. n. s. 272. See Dike w. is made. The rights of the parties are Erie Railway, 45 N. Y. 113; Gray v. to be judged of by that law by which Jackson, 51 N. H. 9. So a contract be- they intended, or rather by which they tween three Englishmen, two of them [652] LECT. XXXIX.] OP PERSONAL PROPERTY. 460 application of the lex loci is more embarrassed than any other branch of the subject, by distinctions and jarring decisions ; and the notice of a few of them may be instructive, and serve to give some precision to the doctrine. Thus, the days of grace allowed upon bills of exchange are to be computed * ac- * 460 cording to the usage of the place in which they are to be Conflict of Laws, [§§ 279-281 ;] Baldwin, J., in Strotlier v. Lucas, 12 Peters, 436, 437 ; Andrews v. Pond, 13 Peters, 65 ;■ Bell u. Bruen, 1 How. 182 ; Le Breton v. Miles, N. Y. Court of Chancery, 8 Paige, 261. The principle was applied'in this last case to an antenuptial contract, made in reference to another country, as the future dom- icile of the parties ; and it was laid down as a rule of law, that when parties marry in reference to the laws of another country as their intended domicile, the law of the intended domicile governs the construction of their marriage contract, as to their rights of personal property. See also Prentiss v. Savage, 13 Mass. 23 ; Thompson V. Ketcham, 8 Johns. 189 ; Cox v. United States, 6 Peters, 172; Fanning v. Consequa, 17 Johns. 511. If A. in America orders goods from England, and the English mer- chant executes the order, the contract is governed by the law of England, for the contract is there consummated. Casaregis's Dis. 179 ; Whiston v. Stodder, 8 Mart. (La.) 93. domiciled and residing in England, and to be governed by the English law, al- the third residing in Chili, but not having though it related to the purchase of land acquired a foreign domicile, has been held in Chili. Cood v. Cood, 33 Bear. 314. x^ x^ Most if not all the cases will be found to fall within one of the following rules : — (1.) As regards the validity of a con- tract, whether as dependent on the com- pliance with formal requisites or as dependent on general rules of law or statutes, the lex loci celebrationis governs ; except that no state will enforce a con- tract which it regards as strongly opposed to public policy. Scudder v. Union Nat. Bank, 91 U. S. 406 ; Milliken v. Pratt, 125 Mass. 374 ; Kennedy v. Cochrane, 65 Me. 594; Denny u. Faulkner, 22 Kans. 89; Hunt V. Jones, 12 R. I. 265 ; Mehan v. Thompson, 71 Me. 492. For the excep- tion, see supra, 458, u. (d). (2.) As regards the interpretation, con- struction, and performance of the contract, the law indicated by the intention of the parties governs. As to interpretation and construction, this is presumed to be the lex loci celebrationis, unless the' contract Is to be entirely performed elsewhere ; in which case, and also in matters relating to the performance, the intent is presumed to be in favor of the lex loci solutionis. Scudder v. Union Nat. Bank, supra; Mor- gan V. N. 0., &c. R. K. Co., 2 Woods, 244. See especially an article by A. V. Dicey, 16 Am. Law Rev. 497. (3.) As to matters relating to the remedy, the lex fori governs. Scudder v. Union Nat. Bank, supra ; infra, 463 and notes. It is to be observed that the inten- tion of the parties is material only in cases covered by the second rule. The inapplicability of the term comity, used in the text and in many other places, has been frequently pointed out. See Story, Confl. of Laws, 8th ed. 36 (a). As to some matters (c. g. interest), it has been held that the contract is valid if it is sus- tained either by the lex loci celebrationis or the lex loci solutionis. Cromwell v. County of Sac, 96 U. S. 51 ; Thornton w. Dean, 19 S. C. 583 ; Kilgore v. Dempsey, 25 Ohio St. 413; Scott V. Perlee (Ohio, 1888), 15 Rep. 728. See Hunt v. Jones, 12 E. I. 265. [653] * 460 OF PERSONAL PROPERTY. [PART V. paid, and not of the place in which they were drawn, for that is presumed to have been the intention of the parties ; (a) whereas, by the general understanding, and course of decisions and prac- tice, the drawer or indorser, upon the return of a foreign bill under protest, pays the damages allowed by the law of the place where the bill was drawn or indorsed. (J) If interest be not stipulated in the contract, and the money be payable at a given time, in a different territory, and there be default in payment, the law of the place of payment regulates the allowance of inter- est, for the default arises there, (c) The drawer may, conse- quently, be liable to one rate of damages, and the indorser to another, if he indorses at a different place ; for every indorsement is a new contract, (d} If, however, the rate of interest be speci- fied in the contract, and it be according to the law of the place where the contract was made, though the rate be higher than is lawful by the law of the place where payment was to be made, the specified rate of interest at the place of the contract has been allowed by the courts of justice in that place, for that is a part of the substance of the contract, (e) The general doctrine is, (a) Vidal v. Thompson, 11 Mart. (La.) 23; Bank of Washington v. Triplett, 1 Peters, 25 ; [Blodgett v. Durgin, 32 Vt. 361.] (6) Hendricks v. Franklin, 4 Johns. 119; Graves v. Dash, 12 id. 17; Slocum v. Pomeroy, 6 Cranch, 221 ; Hazlehurst v. Kean, 4 Yeates, 19 ; Pothier's Oblig. n. 171. (c) Cooper v. The Earl of Waldegrave, 2 Beavan, 282. (d) Champant v. Lord Ranelagh, Prec. in Ch. 128 ; Fanning v. Consequa, 17 Johns. 511 ; Henry on Foreign Law, 53; Story on the Conflict of Laws, [§ 314.] It may be laid down as a general rule, that negotiable paper of every kind is construed and governed, as to the obligation of the drawer or maker, by the law of the country where it was drawn or made ; and as to that of the acceptor, by the law of the coun- try where he accepts ; and as to that of the indorsers, by the law of the country in which the paper was indorsed. Potter v. Brown, 5 East, 124; De La Chaumette v. Bank of E., 9 B. & C. 208 ; 2 Bell's Comm. 692, 693 ; Slocum v. Pomeroy, 6 Cranch, 221 ; Ory v. Winter, 16 Mart. (La.) 277 ; Blanchard v. Russell, 13 Mass. 1 ; Pardessus, Cours de Droit, v. sec. 1497-1499. Notice of the dishonor of a foreign bill and protest is to be given according to the law of the place where the acceptance is dis- honored, though the other parties resided in England; for the bill, being made pay- able in France, was a foreign bill, and, as between the drawer and payee, is to be taken as made there. Rothschild u. Currie, 1 Q. B. 43 ; Sherrill u. Hopkins, 1 Cowen,.103; Story's Coram. [§§ 285, 343-349, 360;] Boyce v. Edwards, 4 Peters, 111 ; Aymar v. Sheldon, 12 Wend. 439; Gaston, J., in Hatcher v. McMorine, 4 Dev. (N. C.) 124. If the drawee accepts a bill in New York, when it was drawn in another state by the drawer, who resides in that other state, the contract of acceptance, as to presentment, &c., is governed by the law of New York. Worcester Bank v. Wells, 8 Met. 107. (e) Depau v. Humphreys, 20 Mart (La.) 1. The decision in this case is accom- [654] LECT. XXXIX.] OF PERSONAL PROPERTY. * 461 that the law of the place where the contract is made is to deter- mine the rate of interest when the contract specifically gives interest ; and this will be the case, though the loan be secured by a mortgage on land in another state, unless there be circum- stances to show that the parties had in view the laws of the latter place in respect to interest. (/) When that is the case, the rate of interest of *the place of payment * 461 is to govern, (a) According to the case of Thompson v. panied with a full discussion of the authorities in the English and American law, and of the opinions of the European continental civilians. The law of this case has been critically examined by Mr. Justice Story (Comm. on tlie Conflict of Laws, [§§ 298- 306]), and he does not think that the foreign jurists bear out the case. See below, note (a), the result of the authorities there referred to. (/) De Wolf r. Johnson, 10 Wheat. 367; Story's Comm. on the Conflict of Laws, [§§ 287, a, 291-294.] The place or country in which a bill of exchange is accepted is considered the locus contractus, as regards the acceptor. P. Voet, de Stat. sec. 9, 1,2, 14; De la Chaumette v. Bank of England, 9 B. & C. 208; s. c. 2 B. & Ad' 385.1 (a) De Wolf V. Johnson, 10 Wheat. 367; Scofield u. Day, 20 Johns. 102; Quince V. Callender, 1 Desaus. (S. C.) 160. The authorities are numerous to show the gen- eral rule to be, that interest is to be paid according to the law of the place where the contract is made, unless the payment was to be made elsewhere, and then it is to be according to the law of the place where the contract was to be performed. Fanning V. Consequa, 17 Johns. 511; Boyce u. Edwards, 4 Peters, 111; Scofield v. Day, 20 Johns. 102; Robinson v. Bland, 2 Burr. 1078; Quince v. Callender, 1 Desaus. (S. C.) 160 ; Story's Comm. on the Conflict of Laws, [§§ 291, 296 ;] Cooper v. The Earl of Waldegrave, 2 Beav. 282 ; Archer v. Dunn, 2 Watts & S. 328, 364 ; Thomas v. Beck- man, 1 B. Mon. 34. In Pecks v. Mayo, 14 Vt. 33, a promissory note was made in Canada and indorsed in Vermont, in both of which countries the rate of interest is six per cent, and was payable in New York at a day certain, where the rate of interest is seven per cent. It was held, after a thorough discussion of the authorities, that both the maker and indorsers were liable to pay the New York interest. The rules were declared to be, (1.) If a contract be entered into in one place, to be performed in another, the parties may stipulate for the rate of interest of either country. (2.) If the contract stipulate generally for interest, without fixing the rate, it shall be the rate of interest at the place of payment. (3.) If no interest be stipulated, and pay- ment be not made at the day, interest, by way of damages, is according to the law of the place of payment. In Chapman v. Robertson, 6 Paige, 627, the debtor borrowed money in England upon a bond and mortgage, executed in New York, on lands in New York, at the New York rate of interest, and it was held that the mortgage was a valid security for the bond, and that the usury law of England was no defence. Chan- cellor AVahvorth fully concurred in the decision of Depau v. Humphreys, in Louisiana, and held, that if the contract was made in New York, upon a mortgage here, it was not a violation of the English usury law, though the money was made payable to a creditor in England. The contract was made in New York, in reference to the laws of New York, and must be governed by them. New York was the domicile of the 1 See iii. 95, n. 1. [655] *461 OP PERSONAL PROPERTY. [PART V. Powles, (h) it is now the received (Joctrine at Westminster Hall, that the rate of interest on loans is to be governed by the law of the place where the money is to be used or paid, or to which the loan has reference ; and that a contract made in London to pay In America, at a rate of interest exceeding the lawful interest in England, was not a usurious contract, for the stipulated interest was parcel of the contract. This is also the law in this coun- try, (c) and it appears to be a liberal relaxation of the rigor of the former rule. But if the bond, or other security, be taken in England, n'o higher rate of interest than Enghsh interest can be allowed, though the debt be secured by a mortgage executed abroad, upon real property abroad, and the bond and mortgage specify, the foreign rate of interest. The courts considered that if the rule was otherwise, it would contravene the policy of the law, and sap the foundations of the statute of usury, (d) But on this subject of conflicting laws it may be generally observed that there is a stubborn principle of jurisprudence that will often intervene and act with controlling efficacy. This principle is, that when the lex loci contractus and the lex fori, as to con- flicting rights acquired in each, come in direct collision, the com- ity of nations must yield to the positive law of the land. In debtor. The mortgage gave locality to the contract, within the intent and meaning of the parties, and it must be governed by the lex loci rei sites. Had it been a mere personal contract, without any mortgage, the conclusion miglit possibly have been otherwise, though I think the conclusion in the case is, tliat the English law of usury would not have been a defence ; for in the Louisiana case there was no mortgage. The principle now established in Louisiana and New York is, that the place where the contract was made determines its validity as to interest, though made payable in another state or country, where the rate of interest is lower. This principle has much to recommend it for reasonableness, convenience, and certainty, except in eases where the whole arrangement was evidently and fraudulently intended as a mere cover for usury. (h) 2 Sim. 194. See also Harvey v. Archbold, Ryan & Mood. 184; Hosford f. Nichols, 1 Paige, 220; Pecks v. Mayo, 14 Vt. .33, s. p. (c) Andrews v. Pond, 13 Peters, 65. See supra, n. (c). The general principle is, that as to contracts merely personal, their construction is governed by the law of the place where they were made ; the consequences of their breach, by that of the country where they are enforced. Cooper v. The Earl of Waldegrave, 2 Beavan, 282. {d) The rule turns upon the question of fact, where was payment of the money under the contract to be made 1 Stapleton v. Conway, 1 Ves. 428 ; 3 Atk. 727, 8. c. ; Connor v. Earl of Bellamont, 2 Atk. 382 ; Dewar v. Span, 3 T. H. 425 ; De Wolf v. Johnson, 10 Wheat. 383. The statute of 14 Geo. III. allowed securities on lands abroad to reserve foreign interest, though executed in England ; but that statute was taken strictly, and held not to extend to personal contracts. [656] 1.EC1. XXXIX.] OF PERSONAL PROPERTY. * 462 tiili conflictu magis est ut jus nostrum quam jus alienura serveinus. (e)^ * 2. ( The application to remedies.) — Remedies upon * 462 contracts and their incidents are regulated and pursued according to the law of the place where the action is instituted, and the lex loci has no application. Actor sequitur forum rei. The lex loci acts upon the right ; the lex fori on the remedy. This is the rule in all civilized countries ; and it has become part of the Jus gentium, (a) The comity of nations is sufficiently satisfied in allowing to foreigners the use of the same remedies and to the same extent that are afforded to the citizens of the state. Though the person of the debtor should, therefore, be exempted from redress by the lex loci, yet personal arrest will be permitted, if it be the practice according to the lex fori. If a party be discharged from imprisonment only, he remains liable to arrest for the same debt in another state ; for imprisonment re- lates only to the remedy, which forms no part of the contract. (5) In his quae respiciunt litis decisionem, servanda est consuetudo loci contractus. At in his quse respiciunt litis ordinationem, attenditur consuetudo loci ubi causa agitur. (e) Upon the prin- (e) Huberus, 1. 3. 11 ; Lord EUenborough, in Potter v. Brown, 6 East, 131 ; Saul V. His Creditors, 17 Mart. (La.) 569. K a contract to be performed in a foreign coun try be invalid or void by tlie law of the country where it was made, then the rule of international law cannot prevail, that the law of the place where the contract is to be performed is to govern. Story, J., in 3 Story, 484. (a) Story on the Conflict of Laws, § 556 ; Bank of United States v. Donnally, 8 Peters, .361 ; Trasher r. Everhart, 3 Gill & J. 234. The authorities, both foreign and domestic, for this clearly established doctrine, are collected in Story's Comm. on the Conflict of Laws, 468-473. The doctrines in the text are ably stated and illus- trated in the case of Pickering v. Fisk, 6 Vt. 102, where it was truly observed by Mr. Justice Phelps, in giving the opinion of the court, that what appropriately be- longs to the contract, and what to the remedy, is not always a question of easy solution. (i) Lodge V. Phelps, 1 Johns. Cas. 139 ; Smith v. Spinolla, 2 Johns. 198 ; White v. Canfield, 7 id. 117 ; Sicard v. Whale, 11 id. 194 ; Whitteinore v. Adams, 2 Cowen, 626; Hinkley v. Marean, 3 Mason, 88; Titus v. Hobart, 5 id. 378; Woodbridge v. Wright, 3 Conn. 523; Atwater v. Townsend, 4 id. 47; Wood v. Malin, 5 Halst. 208; Morris v. Eves, 11 Mart. (La.) 730; Webster v. Massey, 2 Wasli. 157 ; British Linen Co. V. Drummond, 10 B. & C. 903 ; De la Vega v. Vianna, 1 B. & Ad. 284 ; Story on the Conflict of Laws, 478, 479, 480 ; Trimbey v. Vignier, 1 Bing. N. C, 151. (c) Ranchin sur Guipape, QuEest. 162, cited in Emerig. des Ass. c. 4, sec. 8, who 1 Hope V. Hope, 8 J)e G. M. & G. 731, Miller, 17 Grattan, 47, 62 et seq. See 743; 26 L. J. n. ». Ch. 417; Green v. further, iii. 232, n. 1, (c). Van Buskirk, 5 Wall. 307, 313 ; Fant v. VOL. II. -42 [657] * 463 OF PERSONAL PEOPBKTY. [PART V. ciple that the time of limitation of actions is governed by the lex fori, a plea of the statute of limitations of the state where the contract is made is no bar to a suit brought in a foreign court to enforce the contract ; though a plea of the statute of the state where the suit is brought is a valid bar, even though brought upon a foreign judgment, provided the time of the residence of the party brings him within the time prescribed by the *463 statute, (c?) The period * sufficient to constitute a bar to the litigation of stale demands is a question of municipal jiolicy and regulation, and one whfch belongs to the discretion of every government, consulting its own interest and convenience. Though the foreign statute of limitations may have closed upon the demand before the removal of the party to the new jurisdic- tion, yet it will be unavailing. The statute of limitations of the state in whose courts a suit is prosecuted must prevail in all actions, (a) ^ To guard, however, against the inconvenience of sanctions the distinction, and collects the opinions of the foreign jurists under this branch of the law with his usual variety and immensity of erudition. Mr. Laussat, in a note to his edition of Fonblanque's Treatise of Equity, Phil. 1831, pp. 658-671, has also digested and classified the leading English and American authorities on the subject of the lex loci, with accuracy and ability. As to the extent in which the modes of proof and the law of evidence of the lex loci or of the lex fori are carried, tlie foreign jurists hold different doctrines ; and questions under this head are deemed by Mr. Justice Story to be unsettled and embarrassing. Some maintain that the lex fori, and others that the lex loci contractus, must regulate the authenticity and admission of the instrument and modes of proof. Story's Comm. on the Conflict of Laws, 523-527. (d) M'Elmoyle v. Cohen, 13 Peters, 312. (a) Estes V. Kyle, Meigs (Tenn.), 34. If the time of prescription in the country where the parties reside goes not only to bar the remedy, but to render the contract absolutely void, the better opinion is, that the debt itself will also be held to be extinguished by the lex fori as well as by the lex loci contractus. Story on the Conflict of Laws, [§ 582;] Huber v. Steiner, 2 Bing. N. C. 211. 1 Statutes affecting the Remedy. — See where they arose. See 393, n. 1, as to i. 419, n. 1. The text is confirmed as to a discharge in bankruptcy. The fourth statutes of limitation by Harris v. Quine, section of the statute of frauds, also, was L. R. 4 Q. B. 653 ; Townsend v. Jemison, held to relate only to the remedy, and was 9 How. 407; [Thompson v. Reed (Me., applied to a French contract, in Leroux y. 1883,) 17 Rep. 152; Alliance Bank v. Carey, Brown, 12 C. B. 801 ; Downer i>. Chese- 5 C. P. I). 429.] It is otherwise where the borough," 36 Conn. 39, 45 ; cf. Dacosta v. foreign statute changes a title, and does Davis, 4 Zabr. 319 ; Bradford v. Roulston, notonly bar the remedy. "Waters V.Barton, 8 Ir. CI. 468, 473. So a statute against 1 Coldw. 450. And some states have for- usury providing for a deduction of three- bidden by statute the bringing of an action fold the amount taken in an action upon on demands which are barred in the st.ite3 the contract, but leaving the contract [,658J LECT. XXXIS.] OP PERSONAL PROPERTY. 463 sustaining and enforcing stale demands, hot j'et barred by a resi- dence under the change of domicile, a presumption of payment will be indulged, and may attach to and destroy the right of recovery, (b) {b) Hub. de Conflictu Legum, sec. 7; Voet ad. Pand. 44, 3, 12; Lord Karnes's Equity, b. 3, c. 8, sec. 4; Duplein v. De Roven, 2 Vern. 540; Nash v. Tupper, 1 Caines, 402; Ruggles v. Keeler, 3 Johns. 263; Pearsall v. Dwight, 2 Mass. 84; Hall c. Little, 14 id. 203; "Williams u. Jones, 13 East, 439; The British Linen Company v. Drummond, 10 B. & C. 903; Decouche v. Savetier, 3 Johns. Cli. 218; Medbury v. Hopkins, 3 Conn. 476 ; Graves v. Graves, 2 Bibb, 207 ; Le Roy v. Crowninshield, 3 Mason, 151; Union Cotton Manufactory u. Lobdell, 19 Martin (La.), 108; Ersk. Institutes, ii. 581, sec. 48. Pothier, in his Traits de la Prescription, n. 261, ajid other valid, is disregarded in other states. Wat- riss V. Pierce, 32 N. H. 560 ; Sherman v. Gassett, 4 Gilman, 521 ; McFadin v. Burns, 5 Gray, 599 ; Gale v. Eastman, 7 Met. 14 ; Eant .-. Miller, 17 Gratt. 47. So is a stamp act like that of England. Fant v. Miller, 17 Gratt. 47. A New York statute that " every action must be prosecuted in the name of the real party in interest," does not bar a suit in Massachusetts in the name of the payee of a note payable to order, although it has been assigned (without indorsement) in New York. Foss v. Nutting, 14 Gray, 484. " A succession in the right of action, not existing by the common law, cannot be prescribed by the laws of one state to the tribunals of another." Richardson v. New York G. R. R., 98 Mass. 85, 92. But see Thompson u. Bell, 3 El. & Bl. 236 ; Vanquelin v. Bouard, 15 C. B. N. s. 341, 365, 373. So where a deed was made in Wisconsin, properly sealed according to the law of that state, but not according to the law of New York, it was held that assumpsit was the {)roper remedy in the latter state for a breach of the (quasi) covenant of seisin. Le Roy v. Beard, 8 How. 451. So a wife was allowed to prove pari passu with other creditors against her husband's estate in English bankruptcy proceedings upon an ante- nuptial contract made in Batavia, and admitted to be valid as between the par- ties there, notwithstanding that it was not registered there, and that by the foreign law such contracts, if not registered, did not affect third parties. The provision of the foreign law was thought to mean no more than that this claim should be post- poned to the claim of all other parties, and so to relate only to the remedy in Batavia ; as the question of priority of creditors inter se is governed by the law of the country where the bankruptcy takes place, and the assets of the debtor are administered. Ex 'parte Melbourn, L. R. 6 Ch. 64. See Ex parte Wilson, In re Douglas, L. R. 7 Ch. 490, 494. Creditors of corporations established in one state have pretty generally failed in the attempt to impose a personal liability on the members in another state, accord- ing to the provisions of the act of incor- poration. Halsey v. McLean, 12 Allen, 438 ; Erickson v: Nesmith, 4 Allen, 233 ; 8. c. 15 Gray, 221 ; Erickson v. Nesmith, 46 N. H. 371, 378 ; [Rice v. Hosiery Co., 56 N. H. 114.] a;i xi The lex fori determines whether the remedy is at law or in equity, but the lex loci as to whether the right is in its nature legal or equitable. Burchard v. Dunbar, 82 111. 450. So as to forfeiture for usury. Lindsay v. Hill, 66 Me. 212. So as to exemption laws. Mineral Point R. R. Co. V. Barron, 83 111. 365. See further. Rice V. Harbeson, 63 N. Y. 493. ,[ 659 ] *463 OF PERSONAL PEOPEETY. [PAET T. In respect to remedies, there are, properly speaking, tliree places of jurisdiction : (1.) The place of domicile of the defend- ant, commonly called the forum domicilii; (2.) The place where the thing in controversy is situate, commonly called the/orww m dt(B.; (3.) The place where the contract is made, or the act done, commonly called the forum rei gestce or forum contractus. Not only real but mixed actions, such as trespasses upon real property, are properly referable to the forum rei sitce. (c) But the Court ot Chancery having authority to act in personam, will act indirectly, and under qualiiications, upon real estate situated in a foreign country, by reason of this authority over the person, and it will compel him to give effect to its decrees, by a conveyance, release, or otherwise, respecting such property. ((^) foreign jurists think that the lex loci, and not the lex fori, ought to govern in this case ; but the contrary conclusion is too well settled to be now questioned. Story's Comm. on the Conflict of Laws, [§§ 576-582.] In Harrison v. Stacy, 6 Rob. 15, a resident of Mississippi sued, in Louisiana, on a note barred by the limitation laws of Mississippi, and it was held that the claim barred there by the laws of Mississippi was barred in Louisiana also. (c) Skinner v. East India Company, cited in Cowp. 168; Doulson v. Matthews, 4 T. R. 503; Livingston v. Jefferson, 4 Hall (L. J.), 78; Story on the Conflict of Laws, 448, 449, 466, 467. An injury to real property is local as to jurisdiction. Watts V. Kinney, 6 Hill (N. Y.), 82. Trespass on real property situated in one state cannot be sued for in another state. {d) Lord Hardwicke, in Foster v. Vassall, 3 Atk. 589; 1 Eq. Cas. Abr. 133, C, Earl of Athol v. Earl of Derby, 1 Ch. Ca. 221 ; Archer v. Preston, 1 Eq. Ca. Abr. 133; 1 Vern. 77, s. c. ; Arglasse v. Muschamp, 1 Vern. 75, 135; Earl of Kildare v. Eustace, ib. 419 ; Penn v. Lord Baltimore, 1 Ves. 444 ; Lord Cranstown v. Johnston, 3 Ves. 182, 183 ; White v. Hall, 12 Ves. 323 ; Lord Portarlington v. Soulby, 3 Myl. & K. 104 ; Bunbury v. Bunbury, in Chancery, 1839, [2 Beavan, 173 ;] Massie v. Watts, 6 Cranch, 148, 160; Briggs v. Frencli, 1 Sumner, 504; Church of Macon v. Wiley, 2 Hill, Ch. (S. C.) 586. The court will sustain a jurisdiction in equity in cases of fraud, trust, and contract, when the person is duly within their process and jurisdic- tion, although lands not within the jurisdiction of the court might be affected by the decree. Story on the Conflict of Laws, [§§ 543, 544 ;] Idem, on Equity Jurispru- dence, ii. 48, 49, 185. The Court of Chancery in New York, in Ward v. Arredondo, 1 Hopkins, 213; Mead v. Merritt, 2 Paige, 402; Mitchell v. Bunch, 2 id. 606; Shat tuck V. Cassidy, 3 Edw. Ch. (N. Y.) 152, and Sutphen v. Fowler, 9 Paige, 280; and of Virginia, in Farley v. Shippen, Wythe, 135, and Humphreys v. M'Clenachan, 1 Munf. 501, have declared and enforced the same doctrine. If the court had acquired jurisdiction of the person by his being within the state, they will compel him, by attachment, to do his duty under his contract or trust, and enforce the decree in rem, by his executing a conveyance or otherwise, as justice may require, in respect to lands abroad. White v. White, 7 Gill & J. 208 ; Vaughan v. Barclay, 6 Wharton, 392; Watkins v. Holman, 16 Peters, 25. If the court lias jurisdiction in case of a proceeding in rem over the property, it exercises it, thougli the owner be a non-resident, or a foreign corporation or sovereign. Clarke v. N.J. Steam Navig. Co.. [660.1 LECT. XXXIX.] OF PERSONAL PROPEETY. * 463 3. Of the Consideration. — It is essential to the validity of a con- tract that it be founded on a sufficient consideration, y^ It was an 1 Story, 531. To give jurisdiction, either tlie defendant or the property attached must bo within the state when process is served. A corporation has no legal exist- ence out of the state creating it, and tlie service of summons on any member of it out of that state is null. Middlebrooks v. Springfield F. Ins. Co., 14 Conn. 301. Chancery may likewise, in the exercise of its jurisdiction in personam, and when the ends of justice require it, enjoin a pa,rty from proceeding in a suit in any court in any other country. See supra, 124. But this exercise of power has been declared, as we have already seen (see i. 409, 411), not to extend to the federal courts in respect to tlie state courts, nor to the state courts in respect to the federal courts. This is founded on the nature of our federal government, and on indispensable principles of policy. Mr. Justice Story, in his Commentaries on the Conflict of Laws (and the 2d edi- tion of which, in 1841, was corrected and greatly enlarged), lias reviewed and dis- cussed the extensive and complicated subject of the lex loci in all its relations and incidents, with his usual exhausting research and sound critical sagacity. He has brought to bear upon the subject, and to enlighten it, an immense fund of foreign learning, and there is no treatise extant on the subject of the conflict of laws so accurate, full, and complete. There was no one head of the law that stood so greatly in need of such an effort. The doctrines under that head are more interesting than any other, with tlie exception, always, of the constitutional doctrines of the govern- ment of the United States ; and they are more constant in their application, consid- ering that the Union is composed of twenty-six state jurisdictions, dictating and administering independently their own municipal laws. It was impossible, in this brief section, to do more than state the leading principles of the doctrine, and the authorities which sustain them ; and this I have endeavored to do with tlie lights afforded me by a thorough examination of the treatise alluded to, and of all the authorities, foreign and domestic, applicable to the subject, and within my power to examine. ji Consideration. — The reader is spe- in exchange for the promise. Langdell's cially referred to Langdell's " Summary Summary, IT 46. The consideration of the Law of Contracts " for a full discus- must move from the plaintiff. Langdell's sion of the subject of consideration and Summary, IIT 62, 63 ; Exchange Bank other of the fundamental principles of the v. Kice, 107 Mass. 37 ; Evans v. Hooper, law of contracts. Tlie important distinc- 1 Q. B. D. 45. But the contrary is estab- tion is there pointed out between a con- hshed in some jurisdictions, viz. that one sideration which gives rise to a debt, and on whose behalf a contract is made may one which will only sustain an action of sue upon it. Hendrick v. Lindsay, 93 assumpsit. In the former case, the thing U. S. 143 ; comp. National Bank v. Grand given or done in exchange for the promise Lodge, 98 U. S. 123. See cases collected must be done to or for the obligor direct- In Addison on Contracts,- 8th Am. ed. ly ; must be received as the full equiva- * 25, n. 1. lent for the obligation ; must be, in legal The promise and the performance of contemplation, the sole motive for assum- the consideration must, in legal contem- ing the obligation ; and must be executed, plation, coincide in point of time. A and not merely promised. In the latter case promise before the consideration is per- none of these elements are necessary ; it formed operates as a continuing offer, and. is sufScient if anything be given or done unless revoked, becomes binding upon [661] *464 OP PERSONAL PROPERTY. [PART V. early principle of the common law, that a mere voluntary act of courtesy would not uphold an assumpsit, but a courtesy showed by a previous request would support it. (e) There must be something given in exchange, something that is mutual, or some- thing which is the inducement to the contract, and it must be a thing which is lawful and competent in value to sustain the assumption. A contract without a consideration is a nudum pactum, and not binding in law, though it may be in point of con- science ; and this maxim of the common law was taken from the civil law, in which the doctrine of consideration is treated * 464 with an air of scholastic subtlety. (/) * Whether the (e) Lampleigh v. Brathwait, Hob. 105. But it is understood to be now settled that, in a case of simple contract, if one person makes a promise to another for the benefit of a third party, the third party may maintain an action upon it, though the consideration does not move from him. Dutton v. Pool, 2 Lev. 210; s. c. 1 Vent. 318 ; 3 Bos. & P. 149, notes to Piggett v. Thompson ; Schemerhorn v. Vanderheyden, 1 Johns. 140; Starkey v. Mill, Sty. 296; Cumberland v. Codrington, 3 Johns. Ch. 254; Parker, C. J., in 17 Mass. 400; 3 Pick. 91; Hosmer, C. J., in 7 Conn. 347; Barker v. Bucklin, 2 Denio, 45 ; Walworth, Chancellor, 2 Denio, 417. [See iv. 244, u. (a). But see Mellen v. Whipple, 1 Gray, 317 ; Exchange Bank of St. Louis v. Rice, 107 Mass. 37 ; Carr v. National Security Bank, ib. 45 ; and compare Garnsey V. Eogers, 47 N. Y. 233, 240.] (/) Dig. lib. 2, tit. 14, c. 7, sec. 4 ; id. 19. 5. 5. Though a sale without a price was not binding as such by the Roman law, yet it might, under circumstances, operate as a donation, if accompanied with delivery. Voet, Cora, ad Pand. 18. 1. 1; D'Orgenoy v. Droz, 13 La. 382, 389. Sir William Blackstone, in his Commentaries, ii. 444, has borrowed and explained tlie distinctions in the Pandects upon the four species of contracts, of do ut des, do ut facias, facio ut des, and facto ut facias. This classification of contracts embraces all those engagements which relate to the inter- such performance. Great Northern Ey. u. Barnard, 18 L. R. Eq. 518 ; Middleton Co. V. Witham, 9 L. R. C. P. 16. A t. Brown, 47 L. J. Ch. 411 ; as to moral promise after performance operates as a consideration, Musick v. Dodson, 76 Mo. ratification, viz. in legal contemplation 624 as a previous request and promise. Lang- Executed Consideration. — See infra, dell's Summary, 1[1[ 69, 70. It has been 465, u. 1. The true function of a subse- held that forbearance to sue a doubtful quent promise seems to be to negative the claim made bona fide is a good considera- idea that the services were performed tion. Callisher i>. Bischoffslieim, 5 L. R. gratuitously, or supposed by defendant to Q. B. 449 ; Wilhy v. Elgee, 10 L. R. C. P. have been so performed, and thus to sup- 497 ; Parker v. Enslow, 102 111. 272. But port the allegation of a previous request, see Langdell's Summary, IIT 56 et seq. ; and then the recovery should be upon the Ecker v. McAllister, 54 Md. 362 ; Smith debt created by the performance of the V. Easton, 54 Md. 138. See further, services on request. In fact, an action Howe u. Taggart, 133 Mass. 284. See, on the subsequent promise is sustained as to adequacy of consideration, Bolton only to the extent of such debt. Lang- V. Madden, 9 L. R. Q. B. 55; Gravely dell's Summary, f 90 rf ser;. [662] LBCT. XXXIX.] OF PERSONAL PROPERTY. * 465 agreement be verbal or in writing, it is still a nude pact, and will not support an action, if a consideration be wanting. This was finally settled in England, in the House of Lords, in Rann V. Hughes ; (a) and the rule has been adopted, and prevails extensively, in this country. (6) The rule, that a consideration is necessary to the validity of a contract, applies to all contracts and agreements not under seal, with the exception of bills of exchange and negotiable notes, after they have been negotiated and passed into the hands of an innocent indorsee. The immediate parties to a bill or note, equally with parties to other contracts, are affected by the want of consideration ; and it is only as to third persons, who come to the possession of the paper in tlie usual course of trade, without notice of the original defect, that the want of a consideration cannot be alleged, (c) The rule, with this attending qualification, is well settled in English and Ameri- can law, and pervades the numerous cases with which the books abound. In contracts under seal, a consideration is necessarily implied in the solemnity of the instrument ; and fraud in relation to part of the consideration is held to be no defence at law ; though fraud in respect to the execution of the specialty, and going to render it void, is a good defence, (c?) * A * 465 change of commodities, money, or labor, as, 1. Stipulations mutually to give ; 2. Stipulation on tlie one part to give, in consideration of something to be done or for- borne on the other part; 3. Stipulation on the one part to do or forbear, in consid- eration of something to be given on the other part; 4. Stipulations mutually to do or forbear to do. Each of them implies a reciprocity of benefit. A unilateral engagement, gratuitously made, binds the offerer until rejected, or the acceptance be unduly delayed, according to the French, Dutch, and Scotch law. TouUier, Droit Civil Fran9ais, vi. n. 30; Code de Commerce de HoUande, art. 1, p. 65; Bell on the Contract of Sale, Edin. 1844, p. 34. In England, it is a nude pact, and no contract. See infra, 477. (u) 7 T. R. 350, note ; 7 Bro. P. C. 550, s. c. (b) Burnet v. Bisco, 4 Johns. 235 ; Thacher v. Dinsmore, 5 Mass. 301, 302 ; Hosmer u. HoUenbeck, 2 Day, 22 ; Cook v. Bradley, 7 Conn. 57 ; Brown v. Adair, 1 Stewart (Ala.), 51 ; Beverleys v. Holmes, 4 Munf. 95; Parker v. Carter, ib. 273. (c) Bay V. Coddington, 5 Johns. Ch. 64. (d) Dale u. Roosevelt, 9 Cowen, 307. The ISf. Y. Revised Statutes, ii. 406, sec. 77, 78, declare that a seal is only presumptive evidence of a sufficient consideration, and liable to be rebutted equally as if the instrument was not sealed, provided such a defence be made by plea or by notice under the general issue. This statute provision was an innovation upon the common-law rule. Case w. Boughton, 11 Wend. 106. It is not to be understood that a voluntary bond would be enforced, if it be admitted by the obligee, by pleading or otherwise, that it was executed without any considera- tion. The principle is, that a bond, from the solemnity of the instrument, implies u consideration, and the defendant is estopped by the seal from averring a want of [ 663 ] *465 OP PERSONAL PROPERTY. [PART V. valuable consideration is one that is either a benefit to the party promising, or some trouble or prejudice to the party to whom the promise is made, (a) Any damage or suspension, or forbearance of a right, will be sufficient to sustain a promise, (b) A mutual promise amounts to a sufficient consideration, provided the mutual promises be concurrent in point of time ; and in that case the one promise is a good consideration for the other, (c) But if two concurrent acts are stipulated, as delivery by the one party and payment by the other, no action can be maintained by either, without showing a performance, or what is equivalent to a performance, of his part of the agreement, (^d} ^ If the consider- it. Wright V. Moor, 1 Ch. E. 157 ; Turner v. Sir George Binion, Hardres, 200 ; 2 Bl. Comm. 446 ; Sedgwick, J., and Parsons, C. J., 2 Mass. 162. In Indiana, by statute (R. Statutes, 1838, p. 451), consideration of specialties and other contracts (convey- ances of real estate and negotiable paper excepted) may be inquired into under special plea, or, if given in evidence, on a trial at lavf . (a) Jones v. Ashburnham, 4 East, 455 ; Lent u. Padelford, 10 Mass. 236 ; Patteson, J., 2 Q. B. 859. (J) Seaman v. Seaman, 12 Wend. 381 ; Morton v. Burn, 2 Nev. & Perry, 297. (c) Where several persons subscribe to raise money for an object in which all feel an interest, the mutual promises of the subscribers form a valid consideration for the promise of each. But the agreement of a single person to make a, donation to a public Institution, without any undertaking on the part of the donee to do anything, is without consideration and void. Walworth, Chancellor, [Stewart v. Hamilton Col- lege,] 2 Denio, 416, 417 ; [Wilson v. Baptist Education Society, 10 Barb. 308.] If an agreement be optional as to one of the parties, and obligatory as to the other, it does not destroy its mutuality, if there be a sufficient consideration on .both sides; as if one party stipulates that he will deliver salt when called on, and the other that he will pay for the salt so delivered. This is mutuality, and one promise is in consider- ation of the other. Cherry v. Smith, 3 Humph. (Tenn.) 19. [d) If the act or duty to be performed by A., and in consideration, of which B. promises to pay, be such that it cannot, or from its nature maij not, be performed before the time fixed for payment by B., then A. may sue for the money without averring performance. But if the time be fixed for the payment to be made in consideration of the act, and the act be of such a nature that it may be done presently, and before the time of payment, then the act becomes a precedent condition to the payment. Thorpe v. Thorpe, 1 Salk. 171 ; 1 Ld. Raym. 665, s. c. ; Callonell u. Briggs, 1 Salk. 112; Pordage v. Cole, 1 Saund. 319; Trimble v. Green, 3 Dana (Ky.j, 356, 367. In this last case, the distinctions to be drawn from the anthorities are justly and skil- fully taken. 1 Executed Consideration. — If, at the amounts to an express promise, — orifthat time of an actual request, the person to which he was led to expect at the time ■whom it was addressed was not given to was a less matter than what was promised understand that he was promised any- after the consideration was executed; it thing it he would comply with it, or in is hard to see how the subsequent promise any way led to expect a reward of any can be enforced. Thus, a warranty sub- sort, — which, as has been said, 450, o. 1, sequent to a sale is void, unless supported [664] LECT. X2XIX.] OP PERSONAL PROPERTY. ^465 ation be vvhoU}' past and executed before the promise be made, it is not sufficient, unless the consideration arose at the instance ov request oi the party promising; and that request must have been expressly made, or be necessarily implied, from the moral obligation under which the party was placed ; and the considera- tion must have been beneficial to the one party, or onerous to the other, (e) A subsisting legal obligation to do a thing is a sufficient consideration for a promise to do it ; but it has been an unsettled point whether a mere moral obligation be, of itelf, a sufficient consideration for a promise, except in those cases in (e) Jenkins v. Tucker, 1 H. Bl. 90 ; Livingston v. Rogers, 1 Caines, 584 ; Comstock •J. Smith, 7 Johns. 87 ; Hiuks u. Burhans, 10 Johns. 243 ; Garrett v. Stuart, 1 M'Cord (S. C), 514 ; Wing v. Mill, 1 B. & Aid. 104. by a new consideration. Y. B. 5 Hen. VII. 41, pi. 7 ; Roscorla v. Thomas, 3 Q. B. 234; Summers a. Vaughan, 35 Ind. 323. But see Bradford v. Roulston, 8 Jr. C. L. 468. On the other hand, where the con- sideration is sufficient, perhaps a previous request is not literally necessary. It would probably be enough that it was executed iu accordance with the known desires of the party sought to be charged, and that he was understood at the time by both parties to found a promise upon it. Victors v. Davies, 12 M. & W. 758- 760. However, the exception to the rule that a moral consideration is not sufficient should be considered with the first sug- gestion of this note. For although it is true that an express promise cannot be supported by a consideration from which the law could not imply a promise, ex- cept where the express promise does away with a legal suspension, or bar of a right of action, which, but for such suspension or bar, would be vaUd (Beaumont u. Reeve, 8 Q. B. 483), it is not always necessary that a prior legal obligation should have once existed. If the promisee was induced to confer a benefit of a kind which might legally have been a con- sideration for a promise by the other party, leading him to expect a return to become due thereupon, the fact that the promise made at the time was void will not prevent the consideration supporting a subsequent valid express promise. It is laid down by Baron Parke, that where the consideration was originally beneficial to the party promising, yet, if he he pro- tected from liability by some provision of the statute or common law meant for his advantage, he may renounce the benefit of that law ; and, if he promises to pay the debt, he is then bound by law to perform it. Earle v. Oliver, 2 Exch. 71, 90; Paul v. Stackhouse, 38 Penn. St. 302. For instance, where money was advanced on a usurious contract, and then the statute against usury was re- pealed, and a new contract was made in renewal of the old one, there was thought to be a sufficient consideration. Flight 6/. Reed, 1 Hurlst. & C. .397. See Kilbourn ,,-. Bradley, 3 Day, 356; Goulding ,.-. Davidson, 26 N. Y. 604, 609. It will be observed that in this instance the loan was originally a perfectly legal consider- ation for a promise, but that the original promise founded on it was illegal ; where- as in Beaumont v. Reeve, sup-a, there was not only no promise of any sort to induce the plaintiff to cohabit with the defendant, but, if there had been, the consideration would not have supported it. [Supra, 463, n. y\] [665] * 465 OP PERSONAL PROPERTY. [PART V. which a prior legal obligation or consideration had once existed. The weight of autliority is that it is not sufficient. (/) Though {/) Smith !i. Ware, 13 Johns. 257; Edwards v. Davis, 16 id. 281 ; Mills v. Wyman, 3 Pick. 207 ; Cook v. Bradley, 7 Conn. 57 ; Dodge v. Adams, 19 Pick. 429 ; Eastwood V. Kenyon, 3 Perry & Dav. 276; s. c. 11 Ad. & El. 438; Beaumont i;. Reeve, K. B. Hil. 1846, N. Y. Legal Observer, June, 1846 ; Bhle „. Judson, 24 Wend. 97. The question, how far a mere moral obligation was sufficient to raise and support an assumpsit, is learnedly and clearly stated and discussed in the note to 3 Bos. & P. 249, and the note to 16 Johns. 283 ; and the conclusion to which the learned editors arrived, seems to have been adopted in the cases referred to. And yet, in one of the cases (Lee u. Muggeridge, 5 Taunt. 36), Gibbs, J., observed that it could not iiow be disputed, that wherever there is a moral obligation to pay a debt or perform ■d duty, a promise to pay that debt or perform that duty would be supported by the previous moral obligation. There is a strong instance, in Eairchild v. Bell, Brevard's MSS., cited in 1 Eice's S. C. Dig. 60, in support of the implied contract to pay for a .neritorious service, founded on a moral obligation. The same doctrine, is laid down by Baylies, J., in Barlow v. Smith, 4 Vt. 144, and in Glass i: Beach, 5 id. 176 : but the promise must be express, and not implied. Lord Tenterden, in Littlefield v. Shee, 2 B. & Ad. 811, admitted the doctrine, that a moral obligation was a sufficient con- sideration for an express promise, though he said that it must be received with some limitation. It is difficult to surmount the case stated by Lord Holt, in 1 Ld. Raym. 389, that it promise to pay a. debt contracted in infancy is valid. In the case of Eastwood V. Kenyon, Lord Denman observed, that the case of Lee v. Muggeridge was decidedly at variance with the doctrine in the note to 3 Bos. & P. 249, and so was the decision in Littlefield u. Shee ; and Lord Denman concluded that a past benefit, not conferred at the request of the defendant, would not support a subsequent promise to pay, and that this conclusion was justified by tlie old common law, and that the principle of moral obligation did not make its appearance till the days of Lord Mansfield. Tlie decision in Lee v. Muggeridge was. laid down in too unqualified terms, and the doctrine in tlie note to B. & P. may now be considered as the better doctrine in England and America. But there is a distinction between promises which are void or only voidable ; and the former are held not a sufficient consideration to support a subsequent promise. Cocksliott v, Bennett, 2 T. R. 763. In Hatchell i>. Odom, 2 Dev. & Batt. 302, it was observed that it was not every moral obligation that was sufficient in law to raise an implied promise or to support an express one ; and that such only were available considerations, which would originally liave been good but for the intervention of some rule of policy. A promise to pay after the interdict is removed will be valid, and may be enforced. The case of a promise to pay a debt barred by the statute of limitations, or a promise by a widow or an adult, to refund a loan of money made during coverture or infancy, are given as instances by Judge Gaston, in his clear and able opinion in the last case cited. So, a promise by an insolvent debtor to pay a debt existing before his discharge, creates a valid contract, the previous indebtedness being a sufficient consideration, and the promise is a revival of the old debt. Earnest v. Parke, 4 Rawle, 452; Parke, B., in Smith u. Winter, 1 Horn & Hurlst. 389 ; Rogers v. Stevens, 2 T. R. 713 ; Gibbon v. Coggon, 2 Campb. 188; Hawkes v. Saunders, Cowp. 290; Cook v. Bradley, 7 Conn. 67. The plaintiff may declare on the original promise, and insist on the new promise, by way of replication. Fitzgerald v. Alexander, 19 Wend. 402. If a debtor compromises a debt by paying part, and afterwards promises to pay the balance when able, the promise is binding without any new consideration. Stafford v. Bacon, 25 Wend. 384. [666] LBCT. XXXIX.] OF PERSONAL PROPERTY. •467 the consideration of natural love and affection be sufficient in a deed, yet such a consideration is not sufficient to support an executory contract and give it validity, either at law or * in equity, (a) A promise to do a thing may be merely * 466 gratuitous, and not binding ; yet, if the person promising enters upon the execution of the business, and does it negligently or amiss, so as to produce injury to the other party, an action vi^ill lie for this misfeasance. (J) The consideration must not only be valuable ; but it must be a lawful consideration, and not repug- nant to law, or sound policy, or good morals. Ex turpi contractu actio nan oritur; and no person, even so far back as the feudal ages, was permitted by law to stipulate for iniquity, (c) The reports in every period of the English jurisprudence, and our American reports, equally abound with cases of contracts held illegal on account of the illegality of the consideration ; and they contain striking illustrations of the general rule, that contracts are illegal when founded on a consideration contra honos mores, or against the principles of sound policy, or founded in fraud, or in contravention of the positive provisions of some statute law. {d') If the contract grows immediately out of, or is connected with, an illegal or immoral act, a court of justice will not enforce it. But if it be unconnected with the illegal act, and founded on a new consideration, it may be enforced, although the illegal act was known to the party to whom the promise was made, and he was the contriver of the illegal act. (e) The * courts * 467 (a) Tate v. Hilbert, 2 Ves. Jr. Ill ; Pennington ,/. Gittings, 2 Gill & J. 208. A court of equity will not specifically enforce or execute a voluntary contract, nor lend ito assistance to a mere volunteer, who is not within the influence of the consideration of an executory agreement. Jefferys v. JefEerys, Cr. &, Ph. 141; Holloway v. Head- ington, 8 Sim. 325; Colyear v. Countess of M., 2 Keen, 81; Matthews v. L — e, 1 Mad. 564; Neves c. Scott, U. S. C. C. for Georgia, Law Reporter [ix. 67], Boston, June, 1846. But if it be an executed trust, though without consideration, the court will give it effect. CoUinson v. Pattrick, 2 Keen, 123 ; Ellison v. Ellison, 6 Ves. 662; Bunn v. Wintlirop, 1 Johns. Ch. .337; Minturn v. Seymour, 4 id. 500; Acker u. Phenix, 4 Paige, 305; Hayes v. Kershow, 1 Sandf. Ch. 261; [see 438, u.\.\ (5) Coggs V. Bernard, 2 Ld. Raym. 909; [post, 570, n. 1.] (c) Fitz. Abr. tit. Obligation, pi. 13. See also the same language in the civil law Dig. 2. 14. 27. 4 ;' Code, 6. 3. 6. {d) In the American Jurist for January, 1840 [xxii. 249], the law concerning unlawful contracts, which violate either the common or statute law, is discussed with much learning, order, and perspicuity, and the numerous adjudged cases bearing on the subject referred to, and the leading ones, sufficiently examined. (e Hodgson v. Temple, 5 Taunt. 181 ; Toler u. Armstrong, 4 Wash. 297 ; 11 [667] *467 OF PERSONAL PROPERTY. [PART V. of justice will allow the objection, that the consideration of the contract was immoral or illegal to be made even by the Wlieaton, 25B, s, c. ; Story's Comm. on the Conflict of Laws, [§§ 246-259.] That a contract of sale, not prohibited by any positive law, nor against good morals, may still be void as being against principles of sound policy, see Jones v. Randal, Cowp. 39 ; Bryan u. Lewis, Ky. & Moo. 386. In Richardson v. Mellish, 2 Eing. 229, C. J. Best thought that the courts liad gone too far in setting aside contracts, on the ground that they were in contravention of the public policy, and that the objection in such cases ouglit to be founded on some clear and unquestionable principle, and never applied to doubtful questions of policy. These should be left to be settled by legislative discretion. In the Scots law, contracts are deemed inconsistent with public policy and void : 1. Wlien made against the policy of the domestic relations ; 2. In restraint of personal liberty ; 3. Tending to impede the course of justice ; 4. Defeat- ing the revenue laws ; 5. Inconsistent with national war policy. Bell's Principles of the Law of Scotland, 16-1 i. Mr. Justice Story, in his Commentaries on Equity Jurisprudence, i. 262-304, ha^ clearly and fully stated the cases in which contracts have been set aside as against public policy. Such, for instance, are, (1.) Marriage brokerage contracts, by which a party engages to give another compensation if lie will negotiate an advantageous match for him ; (2) A reward promised for using influence and power over another person, to induce him to make a will in his favor ; (3.) Secret conveyances and settlements in contemplaiion of marriage; (4.) Con- tracts in general restraint of marriage ;. (i.) Contracts in general restraint of trade ; (6.) Agreements founded upon violation of public trust or confidence, or duty, or for the violation of public law. These and other less striking cases are all enforced and illustrated by numerous authorities, in the masterly treatise to which I have referred. The cases are uniform in declaring the principle, that if a note or other contract be made in consideration of an act forbidden by law, it is absolutely void. 14 Mass. 322 ; 5 Johns. 327; 3 Wheaton, 204; 4 Peters, 4l0; 11 East, 502; 1 Binuoy, 110; 2 Gall. 560; vide also ante, i. 468. If the consideration of a bond or covenant be illegal, that illegality will constitute a good defence at law, as well as in equity. Smith w, Aykwell, 3 Atk. 566 ; Collins v. Blantern, 2 Wils. 347 ; Paxton v. Popham, 9 East, 408 ; Greville v. Atkins, 9 B. & C. 462 ; Fytche v. Bishop of London, 1 East, 487 ; Vauxhall Bridge Company v. Earl of Spencer, 1 Jac. 64; Westmeath v. Westmeath, 1 Dow u Clarke, 519; First Cong. Church v. Henderson, 4 Rob. (La.) 209; Overman v. C!eru- mons, 2 Dev. & Batt. 185. In this last case all the authorities are reviewed, and the doctrine clearly established. Though the result of many of the decisions is, that the mere knowledge of the illegal purpose for which goods are purchased will not afiect the validity of the contract, if there be no participation or interest in the act itself ; as selling goods by a foreign merchant, he knowing that they were intended to be smuggled into England. Holman v. Johnson, Cowp. 341 ; Waymell v. Reed, 5 T. R. 599 ; Hodgson u. Temple, 5 Taunt. 181 ; Bell on the Contract of Sale, Edin. 1844, p. 22 ; Cheney v. Duke, 10 Gill & J. 11 ; Lord Abinger, in Pellecat v. Angell, 2 Cr. & M. 311 ; yet C. J. Eyre, in Lightfoot v. Tenant, 1 Bos. & P. 551, 556, held otherwise, and that the consideration must be meritorious. A sale of arsenic, knowing it to be intended to commit murder, would not support an action. And Mr. Justice Story (Conflict of Laws, § 253) considers that this doctrine contains such wholesome moral- ity and enlarged policy as to be almost irresistible to the judgment. This has now become the prevailing law in the English courts. Langton v. Hughes, 1 Maule & S. 593; Cannan v. Bryce,'3 B. & Aid. 179. In Steele v. Curie, 4 Dana (Ky.), 385. C. J. Robertson, after an examination of the authorities on this vexed question, and [668] LECT. XXXIX.J OF PERSONAL PEOPERTT. * 467 guilty party to the contract ; for the allowance is not for the sake of the party who raises the objection, but is grounded on general principles of policy, (a) A particeps criminis has been held to be entitled, in equity, on his own application, to relief against his own contract, when the contract was illegal, or against the policy of the law, and relief became necessary to prevent injury to others. It was no objection that the plaintiff himself was a party to the illegal transaction. (6) But if a party, who may be en- titled to resist a claim on account of its illegality, waives that privilege, and fulfils the contract, he cannot be permitted to recover the money back ; and the rule that potior est conditio defende litis will apply. (<;) If, however, the money be not paid over, but remains, in its transit, in the hands of the intermediate without giving any definite opinion tliereon, suggested tiiat tlie validity of the eon- tract in tlie givBii case might depend upon the degree of turpitude evinced by the con- templated transgression of the law. x^ With respect to contracts in restraint of trade, if they totally prohibit the carrying on of a particular business at any place within the state, they are void, for such a general restraint is injurious to tlie public. But contracts for a limited restraint, as that a man will not exercise his trade, or carry on his business in a particular place, or within certain limits, are valid, provided they were entered into for some good reasons, independent of the pecuniary consideration. Mitchel v. Reynolds, 1 P. Wras. 181 ; Horner v. Graves, 7 Bing. 735 ; Proctor v. Sargent, 2 Mann. & Gr. 20 ; Mallan v. May, 11 M. & W. 653; Chappell u. Brockway, 21 Wend. 157; Ross v. Sadgbeer, ib. 166. The opinion of L. Ch. J. Parker, in the case of Milchel v. Rey- nolds, is very elaborate, and contains the principles of law on the subject, with just discrimination and great precision and accuracy. The opinion of Mr. Justice Bron- son, in the New York cases, contains, also, well reasoned conclusions of law. [See Collins V. Locke, 4 App. Cas. 674; Rousillon u. Rousillon, 14 Ch. D. 351; Hagg v. Darley, 47 L. J. Ch. 567 ; Brewer v. Lamar (Ga., 1883), 17 Rep. 201.] (a) Holman v. Johnson, Cowp. 343; Mackey c. Brownfield, 13 Serg. & R. 241, 242; Griswold v. Waddington, 16 Johns, 486; Langton v. Hughes, 1 Maule & S. 593; Josephs V. Pebrer, 3 B. & C. 6.39. See infra, 487, n. (rf). (i) Eastabrook v. Scott, 3 Ves. Jr. 456; St. John v. St. John, 11 id. 526, 535; Jackman v. Mitchell, 13 id. 581. (c) Howson V. Hancock, 8 T. R. 575 ; Burt v. Place, 6 Cowen, 431 x^ Further examples of contracts held Co., 8 Ch. D. 469 ; to influence bidding, illegal are : Contracts to settle differences Curtis v. Aspinwall, 114 Mass. 187 ; Jones in stock, &c., Hawley v. Bibb, 69 Ala. 52 ; u. North, 19 L. R. Eq. 426 ; to force a rise Williams v. Carr, 80 N, C. 294 ; Barnard in prices, Raymond v. Leavitt, 46 Mich. ,;. Backhaus, 52 Wis. 593 ; Cunningham w. 447; Arnot v. Coal Co., 68 N. Y. 558. Nat. Bank (Ga., 1883), 17 Rep. 40. But See further, Wilson v. Strugnell, 7 Q. B. D. see Thacker v. Hardy, 4 Q. B. D. 685; 548; Harrington v. Victoria, &c. Co., 3 id. Beeston v. Beeston, 1 Ex. D. 13 ; to com- 549; Waugh v. Morris, 8 L. R. Q. B. 202; pound a felony, see Flower v. Sadler, 9 Moher v. O'Grady, 4 L. R. Ir. 54; Guern- Q B D 83 • Davies (,-. London, &c. Ins. sey v. Cook, 120 Mass. 501 . [669] *468 OF PERSONAL PROPERTY. [PART T. stakeholders, the law will not permit a third person, who is thus incidentally connected with the transaction, to set up the claim of illegality in the contract between the principal parties. An agent cannot shelter himself from paying over the money by such a plea, and the money advanced may be reclaimed, (c?) When the transaction is of such a nature that the good part of the consideration can be separated from that which is bad, the courts will make the distinction ; " for the common law doth divide according to common reason; and having made that *468 void that is * against law, lets the rest stand." (a) The general and more liberal principle now is, that where any matter, void even by statute, be mixed up with good matter, which is entirely independent of it, the good part shall stand, ' and the rest be held void ; (6) though if the part which is good depends upon that which is bad, the whole instrument is void ; (c) and so I take the rule to be if any part of the consideration be malum in se, or the good and the void consideration be so mixed, or the contract so entire, that there can be no apportionment, (d) ^ (d) Cotton V. Thurland, 5 T. K,. 405 ; Smith v. Bickmore, 4 Taunt. 474 ; Vischer V. Tates, 11 Johns. 23 ; M'Allister v. Hoffman, 10 Serg. & R. 147 ; Hastelow v. Jack- son, 8 B. & C. 221. (a) 14 Hen. VIII. c. 15; Hob. 14; Bigot's Case, 11 Co. 27, b; Greenwood v. Bishop of London, 5 Taunt. 727. Lord Stowell said that the admiralty courts adopt this rational rule of the common law, in respect to maritime contracts. The Nelson, 1 Hagg. Adm. 176. (ft) Mouys V. Leake, 8 T. R 411 ; Kerrison v. Cole, 8 East, 231; Howe v. Synge, 15 East, 440 ; Doe v. Pitcher, 6 Taunt. 359 ; Wigg v. Shuttleworth, 13 East, 87. (c) Best, J., in Biddell v. Leeder, 1 B. & C. 327. {d) Scott V. Gillmore, 3 Taunt. 226 ; Lord Kenyon, in Mouys v. Leake, 8 T. R. 411 ; Hinde v. Chamberlin, 6 N. H. 225; Frazier v. Thompson, 2 "Watts & S. 235. 1 Excuses/or Non-performance. — What 5 C. B. N. s. 492 (see L. R. 4 Q. B. 135) ; is a Breach of Contract. — (a) Where there Lloyd v. Guibert, L. R. 1 Q. B. 121 ; [Key- is a positive contract to do a thing not in stone, &c. Co. v. Dole, 43 Mich. 370 ; itself unlawful, the contractor must per- McCreery v. Green, 38 Mich. 172.] But form it, or pay damages for not doing it, where, from the nature of the contract, it although in cpnsequenci of unforeseen ac- appears that the parties must have known cidents the performance of his contract from the beginning that it could not be has become unexpectedly burdensome, or fulfilled, unless, when the time for the even impossible. Taylor v. Caldwell, 3 fulfilment of the contract arrived, some Best & S. 826, 833 ; Wareham Bank v. particular specified thing continued to Burt, 5 Allen, 113 ; Hall v. Wright, E., B. exist, so that, when entering into the con- & E. 746 ; [Allen v. Baker, 86 N. C. 91, tract they must have contemplated such contra ;] Eddy v. Clement, 38 Vt. 486 ; continuing existence as the foundation of Adams v. Royal Mail Steam Packet Co., wliat was to be done, — there, in the ab. [670] LECT. XXXIX. J OP PERSONAL PROPERTY. 468 4. Of the Contract of Sale. — A sale is a contract for the transfer of property from one person to another, for a valuable considera- tion ; (e) and three things are requisite to its validity, viz., the (e) Sir William Blackstone defines a sale to be " a transmutation of property from one man to another, in consideration of some price or recompense in value." 2 Comm. sence of any express or implied warranty that the thing shall exist, the contract is not to be construed as a positive contract ; but as subject to an implied condition that the parties shall be excused in case, before breach, performance becomes im- possible from the perishing of the thing without default of the contractor {per Blackburn, J.) ; as in case of a contract sick, he can recover for them upon a qtitrntwn meruit. Wolfe !'. Howes, 20 N. Y. 197 ; Green v. Gilbert, 21 Wis. 395 ; Lake- man V. Pollard, 43 Me. 463. In Lovering c. Buck Mountain Coal Co., 54 Penn. St. 291, an act of God made delivery of coal impossible for a certain time by sweep- ing awaj' the means of transportation on which the coal owners were notoriously for the use, on certain specified days, of a dependent; and this was held to excuse music hall, which was afterwards acci- dentally destroyed by fire, Taylor u. Caldwell, 3 Best & S. 826; Appleby v. Myers, L. R. 2 C. P. 651 ; Ford v. Cotes- worth, L. R. 5 Q. B. 544, 548 ; Lovering V. Buck M. Coal Co., 54 Penn. St. 291 ; Wells r. Calnan, 107 Mass. 514; [Cunning- ham u. Dunn, 3 C. P. D. 443; Howell u. Coupland, 1 Q. B. D. 258; Kelly i'. Bliss, 54 Wis. 187 ■ Gates v. Goodloe, 101 U. S. 612 ;J or a contract for personal services, which the servant is prevented from per- forming by permanent illness. Boast v. Firth, L. R. 4 C. P. 1 ; Robinson u. Davi- son, L. R. 6 Ex. 269 (see Stewart v. Lor- ing, 5 Allen, -306) ; or by the death of the master, Farrow u. Wilson, L. R. 4 C. P. 744 ; Yerrington v. Greene, 7 R, I. 589 ; [Spalding v. Rosa, 71 N. Y. 40 ;] or by the prevalence of the cholera making it un- safe for the servant, as a prudent man, to remain in the place where the work is to be done, Lakeman i'. Pollard, 43 Me. 463 ; or by the arrest of the servant for crime, Hughes V. Wamsutta Mills, 11 Allen, 201. If the servant has performed services valu- able to his employer before being taken the exact performance of a contract to deliver within that time. For a vast number of cases, see the American note to Cutter u. Powell, 2 Sm. L. C, last ed. Some of them seem opposed to Appleby V. Myers, and inclined to push the doc- trine of Paradine v. Jane, Aleyn, 26, as far as it will go. The nature of the dec- laration, and the parties by whom the action was brought, should be carefully examined in each case, however. Tomp- kins „.. Dudley, 25 N Y. 272; School Trustees of Trenton v. Bennett, 3 D>i teller, 513; Dermott v. Jones, 2 Wall. 1 ; Scnooi District No. 1 u. Dauchy, 25 Conn. 530 ; Bacon v. Cobb, 45 111. 47. See iii. 206, n. 1, (e); 468, n. 1. (6) It is sometimes hard to say when a refusal to perform amounts to a breach of contract. Breaking off an engagement and refusal to marry has been held ac- tionable before the time specified for the marriage in the promise. Frost v. Knight, L. R. 7 Ex. Ill ; Holloway v. Griffith, 32 Iowa, 409. See Hochster v. De la Tour, 2 El. & Bl. 678 ; Brown v. Muller, L. R. 7 Ex. 319. a;l xl It has been held that the true test is whether the refusal is such as to indicate an intention to finally abandon the con- tract. Freeth v. Burr, 9 L. R. C.'P. 208; Mersey Steel, &c. Co. u. Naylor, 9 Q. B, D. 648. See also Bloomer v. Bernstein, 9 L. R. C. P. 588 ; Morgan v. Bain, 10 L. R. C. P. 15. It is admitted in Mersey Steel, &c. Co. 0. Naylor, svpra, that it is im- possible to reconcile the previous authori' [671] * 468 OF PERSONAL PROPEETT. [PART V. thing sold, which is the object of the contract, the price, and the consent of the contracting parties. (/) (1.) Of ihe-Thing Sold. — The thing sold must have an actual or potential existence, {g) and be specific or identified, and capa- 446. Ross, in his Treatise on the Law of Purchasers and Vendors, adopts the same definition and I take this ouoasion to recommend that work of Mr. Eoss as a learned and faitliful performance. It is republislied in tliis country as part of the 12th volume of the Law Library, edited by Thomas J. Wliarton, Esq., — a most valuable series of publications to the profession. (/) Pothier, Traite' du Contrat de Vente, n. 3 ; Bell's Prin. L. S. sec. 85, 90-92. (g) It is sufficient that the thing contracted for has a potential existence; and a single liope or expectation of means founded on a right in esse, may be the object of sale, as the next cast of a fisherman's net, or fruits or animals not yet in existence, or the good will of a trade. But a mere possibility or contingency, not coupled with any interest in, or growing out of, property, as a grant of the wool of the sheep the grantor may thereafter buy, or the expectancy of an heir apparent, is void as a sale. Dig. 18. 1. 8 ; Pothier, Cont. de Vente, n. 5, 6 ; Plowd. 13 a ; Grantham v. Hawley. Hob. 132; Harg. Co. Litt. lib. 1, n. 363, s. c. ; Robinson v. Macdonnell, 5 Maule & S. 228; Com. Dig. tit. Grant, D. ; Carleton v. Leighton, 3 Meriv. 667. See, infra, iii. 64. See also, infra, 504 ; [492, n. 1, (c) ;] [Thrall v. Hill, 110 Mass, 330 ; Heald v. Builders' Assn., Ill Mass. 38; Sanborn u. Benedict, 78 111. 309.] A covenant to pay out of future profits of an existing office is good. Clapham v. Moyle, 1 Lev. 155. Mr. Bell, in his Principles of the Law of Scotland, 30 (a work very comprehensive, but admirably condensed), states that the hope of succession may be the subject of sale ; but in the case from Merivale, Lord Eldon held, that such an expectancy could not be the sub- ject of assignment or contract. Reversionary interest and expectancies, founded on settlements and entailments, are the subject of sale, as, see post, 475 ; but a mere hope, where there is no existing right sustaining the expectation, as where the ancestor is seized in fee-simple, with a power of alienation and devise, is not the subject of a valid sale. But see post, 475, n. (c). A bill or note, or inland bill of exchange, is not the subject of sale, unless it be such a security in the hands of the seller that he could sue on it at maturity. Powell v. Waters, 8 Cowen, 669 ; Cram v, Hen- dricks, 7 Wend. 589 ; Munn v. Commission Company, 15 Johns. 44. But foreign exchange in the hands of the drawer is a subject of traffic and sale, — a commodity bought and sold like merchandise. Bankers' drafts are also existing things in action, ties. See Honck u. MuUer, 7 Q. B. D. Mass. 74. See further, Leopold v. Salkey, 92 ; Simpson v. Crippeu, 8 L. R. Q. B. 89 111. 412 ; Borrowman o. Free, 4 Q. B. 14. D. 500. The distinction between a refusal be- In an entire contract, if part of the fore and after part performance is re- goods do not comply with the terms of jected in Mersey Steel, &c. Co. v. Naylor, the contract, the whole may be rejected. supra ; but it seems clear that more une- Tarling u. O'Riordan, 2 L. R. Ir. 82 ; quivocal acts would be required to indi- Renter v. Sala, 4 C. P. D. 239. cate an intention to abandon m the latter As to when inability of one party to than in the former case. See Langdell's perform warrants repudiation of the con- Summary, IT 160. Contra to Hochster v. tract by the other, see Poussard v. De la Tour, see Daniels v. Newton, 114 Spiers, 1 Q. B. D. 410 ; Bettini u. Gye, Mass. 530. Comp. Parker v. Russell, 133 ib. 183. [672] LECT. XXXIX.] OF PERSONAL PROPERTY. * 468 ble of delivery, otherwise it is not strictly a contract of sale, but a special or executory agreement. (Ji) If the subject-matter of the sale be in existence, and only constructively in the possession of the seller, as by being in the possession of his agent or carrier abroad, it is, nevertheless, a sale, though a conditional or imper- fect one, depending on the future actual delivery, {i) But if the article intended to be sold has no existence, there can be no con- tract of sale. Thus, if A. sells his horse to B., and it turns out and subject to the like traffic. The drawer sells his foreign bill as money or funds abroad. His credit abroad is to the payee eqilivalent to cash, and the bill of ex- change is the instrument of transfer. The commission charge on the transfer is part of the price of the sale, and not usurious. Holford u. Blatchford, 2 Sandf. Ch. 149. (h) Rondeau ti. Wyatt, 2 H. Bl. 63; Mucklow v. Mangles, 1 Taunt. 318; Groves u. Buck, Z Maule & S. 178. (i) Boyd V. Siffkin, 2 Campb. 326 ; Withers v. Lyss, 4 id. 237. In the civil law, ownership in the seller at the time of the contract was not essential to its validity. Dig. 15. 1. 1. 57; Heinecc. Elem. Jur. Secund. Ord. Inst. lib. 3, tit. 24, sec. 905; Pothier, Contrat de Vente, n. 7. In Bryan v. Lewis, Ry. & Moody, 386, Lord Tenterden ruled, that if goods be sold to be delivered at a future day, and the seller has not the goods, nor any contract for them, nor any reasonable expectation of receiving them by consignment, but intends to go into the market and buy them, it was not a valid contract. It was a mere wager on the price of the commodity. This is contrary to the rule at law, as suggested by Lord Chancellor Parker, in Cud v. Rutter, 1 P. Wms. 670. The observation of Lord Tenterden, in this case, is said to be a mere- dictum, and unsupported by any other case. Wells v. Porter, 3 Scott, 141. In this last case in the C. B., it was held, that time bargains in foreign funds were not illegal or void at common law ; and in Hibblewhite o. M'Morine, 5 M. & W. 462, the decision of Lord Tenterden, in Bryan v. Lewis, was completely overruled. [See Hawley d. Bibb, 69 Ala. 52.] Mr. Bell says, that where the distinction exists between sale as a trans- fer of property and sale as a contract, as in the civil law, Holland, Scotland, &c., a thing which belongs to another may be the subject of sale, and the seller must make good the contract, or answer in damages. But that in England and America, as a sale is a transfer of property, it cannot exist as to property not belonging to the seller at the time. Bell on the Contract of Sale, Edin. 1844, pp. 26, 27. In France, by the Code Civil, No. 1616, on a contract of sale of goods which can be purchased in the market, the seller is bound to fulfil the contract. By the N. Y. Revised Stat- utes, 3d ed. i. 892, in order to prevent stock jobbing, it is declared that all contracts, written or verbal, for the sale or transfer of stocks, are void, unless the party con- tracting 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 with due authority to sell the same; and all wagers upon the price of stock are void. The English statute of 7 Geo. II. c. 8, was made to prevent stock jobbing, and v/hich the statute termed an infamous practice. The discussions in the English courts on this statute have been many and interesting and the operation of the statute made subject to important distinctions. An agreement to transfer stocks for a valuable consideration to be paid, though the seller was not at the time actually possessed of, or entitled to, the stock, in his own right, has been held not to be within the statute, which only applied to fictitious sales of stocks. Mortimer v. M'Callan, 6 M. & W. 58; s. c. 7 id. 20; 9 id. 636. yOL. II.-43 [673 J * 469 OP PERSONAL PROPERTY. [PAET T. that the horse was dead at the time, though the fact was unknown to the parties, the contract is necessarily void. So, if A., at New York, sells to B. his house and lot in Albany, and the house should happen to have been destroj^ed by fire at the time, and the * 469 parties are * equally ignorant of the fact, the foundation of the contract fails, provided the house, and not the ground on which it stood, was the essential inducement to the ■ purchase, (a) The civil law came to the same conclusion on this point. (6) But if the house was only destroyed in part, then if it was destroyed to the value of*only half or less, the opinion stated in the civil law is, that the sale would remain good, and the seller would be obliged to allow a ratable diminution of the price. Pothier thinks, however, (e) that in equity the buyer ought not to be bound to any part or modification of the contract, when the inducement of the contract had thus failed ; and this would seem to be the reasoning of Papinian, from another passage in the Pandects, (cZ) and it is certainlj"- the more just and reason- able doctrine. The Code Napoleon («) has settled the Fi'ench law in favor of the opinion of Pothier, by declaring, that if part of the thing sold be destroyed at the time, it is at the option of the buyer to abandon the sale, or to take the part preserved, on a reasonable abatement of price ; and, I presume, the princi- ples contained in the English and American cases tend to the same conclusion, provided the inducement to the purchase be thereby materially affected. Where the parties had entered into an agreement for the sale and purchase of an interest in a public house, which was stated to have had eight years and a half to come, and it turned out on examination that the vendor had an interest of only six years in the house. Lord Kenyon ruled, (/) that the buyer had a right to consider the contract at an end, and recover back any money which he had paid in part performance of the agreement for the sale. The buyer had a right to say it was not the interest he had (a) Dig. 18. 1. 1. 57 ; Pothier, Cont. de Vente, n. 4 ; Hitchcock v. Giddings 4 Price, 135 ; s. 0. Daniell's Bxch. 1 ; Story's Comm. on Eq. Jurisprudence, 157 ; Allen b. Hammond, 11 Peters, 63; [Couturier u. Hastie, 5 H. L. C. 673; 9 Exch. 102 j 8 Exch. 40.] (6) Dig. 18. 1. 57. {e) Traite du Contrat de Vente, n. 4. (rf) Dig. 18. 1. 58. (c) No. 1601. (/) Parrer v. Nightingal, 2 Esp. 639. ' [674] LECT. SXXIS.] OF PERSONAL PROPERTY. * 470 agreed to purchase. So, in another ease, and npon the same principle, * Lord Eldon held, (a) that if A. purchased * 470 a horse of B., which was warranted sound, if it turned out that he was unsound, the buyer might keep the horse, and bring an action on his warranty for the difference of the value ; or he might return the horse, and recover back the money paid ; though if he elected to pursue that course, he must be prompt in rescind- ing the contract. (5) There are other cases, however, in which it has been held, (c) that it was no defence at law to a suit on a note or bill, that the consideration partially failed, by reason that the goods sold were of an inferior quality, unless dear fraud in the sale be made out ; and the courts refer the aggrieved party to a distinct and independent remedy. But if "a title to a part of the chattels sold had totally failed, so as to defeat the object of the purchase, as if A. should sell to B. a pair of horses for car- riage use, and the title to one of them should fail, it is evident, from analogous cases, that the whote purchase might be held void even in a court of law. In case of a sale of several lots of real property at auction, the purchaser purchased three lots, and paid the deposit money, but the title to two of the lots failed, and Lord Kenyon ruled, (c?) that it was one entire contract ; and if the seller failed in making title to any one of the lots, the pur- chaser might rescind the contract, and refuse to take the other lots. The same principle was advanced in the case of Judson v. Wass, (e) which was the purchase of several lots of land ; and the (a) Curtis v. Hannay, 3 Esp. 82. (6) Builer, J., 1 T. R. 136; and in Compton u. Burn, Esp. Dig. 13. [But see 479, n. 1, A, (c).\ (c) Morgan v. Richardson, 1 Campb. 40, n. ; Fleming v. Simpson, ib. ; Tye u. Gwynne, 2 id. 346. (d) Chambers v. Griffiths, 1 Esp. 150. (e) 11 J'ohns. 525. There are conflicting cases on this point; but in the English law the better opinion seems to be, that if a purchaser contracts for the entirety of an estate, and a good title can only be made to a part of it, the purchaser will not be compelled to take it. This was the decision in Roffey v. Shallcross, 4 Mad. [227] 122, Phil. ed. ; and in Dalby v. PuUen, 3 Sim. 29. In Cassamajor v. Strode (1 Cooper, Sel. Ca. 510, 8 Conden. Ch. 516, 8. c). Lord Chancellor Brougham said that the decision of Lord Kenyon, in Chambers v. Griffiths, was not sound doctrine ; and was contradicted by the cases of James v. Shore, 1 Starkie, 426 ; and Roots vt Dormer, 4 B. & Ad. 77. He further said, that Lord Eldon, in the note to Roffi^y v. Shallcross, carried the rule too far the other way. The principle laid down by Lord Brougham as the medium one was, that the purchaser was not to be let off from his contract for one lot, on the ground that the title to the other was bad, unless it appeared from the [675J * 471 OP PERSONAL PROPERTY. [PART T. purchaser was held to be entitled to have a perfect title according to contract, without any incumbrance, or he might disaffirm the sale, and recover back his deposit. (/) (2.) Of rescinding and completing the Contract. — On the sub- ject of the claim to a completion of the purchase, or to the *471 payment or return of .the consideration money, *.in a case where the title or the essential qualities of part of the sub- ject fail, and there is no charge of fraud, the law does not seem 10 be clearly and precisdy settled ; and it is difficult to reconcile the cases, or make the law harmonize on this vexatious questioir. The rules on this branch of the law of sales are in constant dis- cussion, and of great practical utility, and they ought to be dis- tinctly understood. It would seem to be sound doctrine, that a substantial error between the parties concerning the subject- matter of the contract, either as to the nature of the article, or as to the consideration, or as to the security, intended, would destroj' the consent requisite to its validity, (a) y^ The principles which govern the subject, as to defects in the quality or quantity of the thing sold, require a more extended examination ; and they are the same in their application to sales of lands and chattels. In the case of a purchase of land, where the title in part fails, the Court of Chancery will decree a return of the purchase-money, circumstances that the two lots were so connected that the purchaser would not have bought, except in the expectation of possessing both lots. (/) If a party has entered into a contract by the fraud of the other party, he may, on discovering the fraud, and on the earliest notice, rescind the contract, and recover whatever he has advanced, on offering to do whatever be in his power to restore the other party to his former condition. Masson v. Bovet, 1 Denio, 69. [See 478, n. 1.] (a) Thornton v. Kerapster, 5 Taunt. 786. Several cases on the same subject, and in support of the doctrine in the text, are referred to in 1 Bell's Comm. 242, 295, in notis, as having been decided in the Scotch courts. By the Civil Code of Louisiana, art. 2496-2519, a redhibitory action is provided for the avoidance of a sale, on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it had he known of the vice. Where a fact in the sale of land is equally unknown to both parties, or each has equal information, or the fact is doubt- ful from its own nature, and the parties have acted in good faith, equity will not interpose. McCobb v. Richardson, 24 Maine, 82. yi Where the consideration was a Denison, 86 III. 142. With which corn- patent right, which turned out to be pare Palmer's App., 96 Penn. St. 106; void, the contract was held void in Har- Begbie v. Phosphate Sewage Co., 1 Q. B. low V. Putnam, 124 Mass. 553 ; Walker v. D. 679. [676] LECT. XXXIX.J OP PERSONAL PEOPERTT. * 4T2 even after the purchase has been carried completely into execu- tion, by the delivery of the deed and payment of the money, provided there had been a fraudulent misrepresentation as to the title, {b) But if there be no ingredient of fraud, and the pur- chaser is not evicted, the insufficiency of the title is no ground for relief against a security given for the purchase-money, or for rescinding the purchase, and claiming restitution of the money. The party is remitted to his remedies at law on his cove- nants to * insure the title, (a) In Fmsbee v. ffoffnagle, (6) *472 the purchaser, in a suit at law upon his note given to the vendor for the purchase-money, was allowed to show in his de- fence, in avoidance of the note, a total failure of title, notwith- standing he had taken a deed with full covenants, and hftd not been evicted. But the authority of that case and the doctrine of it were much impaired by the Supreme Court in Maine, in a sub- sequent case, founded on like circumstances ; (c) and they were afterwards in a degree restored, by the doubts thrown over the last decision by the Supreme Court of Massachusetts, in Knapp V. Lee. (c?) The same defence was made tp a promissory note in the case of G-reenleaf v. Gooh, (e) and it was overruled on the ground that the title to the land, for the consideration of which the note was given, had only partially failed ; and it was said, that to make it a good defence in any case, the failure of title must be total. This case at Washington is contrary to the defence (h) Edwards v. M'Leay, Cooper, Eq. 308; Fenton v. Browne, 14 Ves. 144. (a) Abbott V. Allen, 2 Johns. Ch. 519; Barkhamsted v. Case, 5 Conn. 528; Banks V. Walker, before Ass. "V. Ch., 2 Sandford, Ch. 344. In Brown u. Reves, 19 Martin (La.), 235, it was held, that so long as the buyer is in the peaceable and undisturbed possession of the thing sold, he cannot withhold payment, on the plea of a want of title in the vendor. By the civil law, also, a purchaser in possession could not rescind the contract, nor prosecute the vendor, on the ground of no title. Code, lib. 8, tit. 45. 1. 3 ; Pothier, Traits du Contrat de Vente, art. prelim. (6) 11 Johns. 60. (c) Lloyd u. Jewell, 1 Greenl. 352. See also Wrinkle v. Tyler, 15 Martin (La.), 111. In Tallmadge v. Wallis, 25 Wendell, 117, the chancellor supposed that the Supreme Court of New York, in Frisbee v. Hoffnagle, erred in the application of a correct principle to the case, because it did not appear that tliere was a total failure d{ consideration, as there was no eviction. It was conceded by him, that on a total failure of title in a conveyance of land, and when no interest or possession passed, that fact was a good plea in bar of a suit on the bond given for the purchase-money. (d) 3 Pick. 452. But the case of Frisbee v. Hoffnagle has been virtually overruled in Vibbard v. Johnson, 19 Johns. 77, and is not now regarded as authority. See Whitney v. Lewis, 21 Wend. 132, 134. (e) 2 Wheaton. 13. ^^^ *473 OP PERSONAL PROPERTY. [PART T. set up and allowed, and to the principle established, in the case of G-ray v. Handkinson ; (/) but it seems to be supported by the case of Day v. Wix, {g) where it was decided, by the English court of C. B., that a partial failure of the consideration of a note was no defence, provided the quantum of damages arising upon the failure was not susceptible of definite computation. (A) * 473 * The cases are in opposition to each other, and they leave the question, how far and to what extent a failure of title will be a good defence, and between the original parties to an action for the consideration money on a contract of sale, in a state of painful uncertainty, (a) I apprehend that in sales of land, the technical rule remits the party back to his covenants in his deed ; and if there be no ingredient of fraud in the case, and the party has not had the precaution to secure himself by cove- (/) 1 Bay, 278. ig) 9 Moore, 159. (A) It seems to be now settled in the New York decisions, that on a partial failure of a consideration on a sale, the defendant may recoupe his damages, on a breach of ,the plaintiff's contract of warranty. Reab v. McAlister, 8 Wend. 109 ; Still v. Hall, 20 id. 51; Batterman u. Pierce, 3 Hill (N. Y.), 171. The recoupement is not as a set- off, but allowed to avoid circuity of action, and it is founded on the plainest princi- ples of justice. Goodwin v, Morse, 9 Mete. 279. Under the N. Y. R. S. ii. 406, see. 77, the defendant may recoupe in an action upon a sealed as well as upon an unsealed instrument. He may avail himself, by way of recoupement, in case of fraud by mis- representation on the part of the vendor. Van Epps v. Harrison, 5 Hill (N. Y.), 63. The equitable doctrine of recoupement is of recent origin, and is well calculated to save litigation. It is a question whether evidence, by way of recoupement, can be received under the general issue without notice with the plea. The majority of the court held that it could not in Barber v. Rose, 5 Hill (N. Y.), 76. In Sedgwick on the Measure of Damages, c. 17, the more modern and liberal doctrine of set-off or recoupe- ment of damages in reduction of the plaintiff's claim is considered quite at large, and the numerous cases are ably reviewed and criticised. The doctrine of set-off, or the compensation of one debt for another, came from the courts of equity, who were in possession of the doctrine long before the courts of law interfered, and it was first Introduced with the statute of 5 Geo. II. The doctrine was borrowed from the doc- trine of compensation of the civil law. Dig. 16. 2, de Compensationibus. The set- off was confined at law to mutual debts; but tlie statutes of bankrupts embraced mutual credits, and which, ex vi termini, imported unliquidated damages, and this more liberal practice was adopted in chancery. Grove v. Dubois, 1 T. R. 112 ; Ex parte Deeze, 1 Atk. 228 ; James v. Kynnier, 5 Vesey, 108 ; Duncan v. Lyon, 3 Johns. Ch. 351 ; T. C. & D. Railroad Co. v. Rhodes, 8 Ala. 206. In he case of Whitbeck v. Skinner, 7 Hill (N. Y.), S3, the defendant was admitted to set up by way of recoupe- ment an adverse claim under the same agreement, to save needless suits. (a) The general rule in the English law is, that the partial failure of performance by one party to a contract, for which there may be a compensation in damages, does not authorize the other party to put an end to it. Franklin v. Miller, 4 Ad. & El. 599. [678] LECT. XXXIX.] OP PERSONAL PROPERTY. * 474 nauts, lie has no remedy for his money, even on a failure of title. This is the strict English rule, both at law and in equity ; and it^ applies equally to chattels, when the vendor sells without any averment of title, and without possession. (6) In sales of chattels, the purchaser cannot resist payment in cases free from fraud, while the contract continues open and he has possession. But in this country, the rule has received very considerable relaxation. In respect to lands, the same rule has been considered to be the law in New York ; (c) whUe, on the other hand, in South Carolina, their courts of equity will allow a party suffering by the failure of title, in a case without warranty, to recover back the purchase-money, in the sale of real as well as of personal estates, (c?) In cases where the consideration bad totally failed, the English courts have admitted that fact to constitute a good defence between the original parties to a bill of exchange ; though a partial failure of the consideration is no defence, (e) But with us, a partial as well as total failure of the * consider- * 474 ation may be given in evidence by the maker of a note, to defeat or mitigate, as the case may be, a recovery, (a) In Indi- ana, by statute, 1831, in actions upon specialty or other contract, excepting conveyances of real estate, and paper negotiable by the law merchant, the defendant may allege the want or failure of consideration, in whole or in part. He may allege fraud or breach of warranty ; and if he shows that the article was of no value, or (6) Tanfield, Ch. Baron, in Eoswell v. Vaughan, Cro. Jac. 196; Medina v. Stough- ton, 1 Salk. 210 ; Bree v. Holbech, Doug. 654 ; Lord Alvanley, in Jolinson v. Johnson, 3 Bos. & P. 170*, Urmston v. Pate, cited in Sugden's Law of Vendors, 3d ed. 346, 347 ; and in 4 Cruise's Dig. 90 ; and in Cooper's Eq. 311 ; 1 Fonb. 366, n. (c) Frost V. Eaymond, 2 Caines, 188; Aljbot v. Allen, 2 Johns. Ch. 523; Gouver- neur v. Elmendorf, 5 Johns. Ch. 84. (d) Tucker v. Gordon, 4 Desaus. 63, 58. (e) Morgan u. Richardson, 1 Camp, 40, n. ; Tye v, Gwynne, 2 id. 346 ; Mann v. Lent, 10 B. & C. 877. (a) Hills o. Bannister, 8 Cow. 31; Sill v. Rood, 15 Johns. 230; Payne v. Cutler, 13 Wend. 605; Cook i. Mix, 11 Conn. 4-32; Revised Statutes of Illinois, ed. 1833, p. 484. See supra, 472-3, n. ; the cases from 8 and 20 Wend, and 3 Hill. In Johnson V. Titus, 2 Hill (N. Y.), 606, mere inadequacy of consideration, without warranty or fraud, is no defence to a promissory note ; but entire want of consideration is a defence to any executory contract. But again, in Scudder v. Andrews, 2 McLean, 464, it was held, upon what was deemed the weight of authority, that a total failure of considera- tion was a good defence to a promissory note between the original parties, though a partial failure would not be a defence. [679] *474 OP PERSONAL PROPERTY. [PART V. had been returned or tendered, he destroys the action. (6) In North Carolina, a total failure of consideration may be given in evidence in a suit on a promissory note, though a partial failure cannot, and the relief is by a distinct suit, (c) In equity, as well as at law, the defendant, for the purpose of preventing circuity of action, may show, by way of defence, in order to lessen or de- feat the recovery, a total or partial failure of consideration, as the case may be, when sued for the consideration of a sale, or upon the security given for the puuchase-money. (c?) In Illinois, by statute, a want of title in the vendor of lands may be set up by the vendee on the note given for the purchase-money, as a failure of the consideration, (e) So, the true value of articles sold may be shown in reduction of the price, even on a note given, as between the original parties, in cases of sales with war- ranty, or fraudulent representation, though the article has not been returned ; and this is allowed to avoid circuity of action. (/) (6) Wynn v. Hiday, 2 Blackf. (Ind.) 123. In Georgia, by statute, 1836, partial failure of uonsideration in any contract may be given in evidence. (c) Washburn v. Picot, 3 Dev. 390. See supra, 472-3, note. (d) Lewis v. Wilson, 1 Edw. Ch. (N. Y.), 305. {e) Mason v. Wait, 4 Scamm. 127. Tiie law allows a total or partial failure of consideration, in every note or instrument for the payment of money or property, to be set up as a defence. The object of the act is to prevent a multiplicity of actions. Duncan v. Charles, ib. 561. (/) M'Alister v. Reab, 4 Wend. 483 ; s. c. 8 id. 109 ; Miller v. Smith, 1 Mason, 437 ; Steigleman v. Jeffries, 1 S. & R. 477 ; Beecker v. Vrooman, 13 Johns. 302. See also, to the same point. Street v. Blay, 2 B. & Ad. 456 ; Poulton v. Lattimore, 9 B. & C. 259; Pearson v. Wheeler^ Ryan & Moody, 303; Harrington i,-. Stratton, 22 Pick. 510. In this last case, the authorities pro and con were extensively examined. In the two cases of Street v. Blay, and of Poulton ». Lattimore, it is settled, that where an article is warranted, and the warranty not complied with, the vendee may refuse to receive the article at all, or he may receive it, and bring a cross action for the breach of the warranty, or, without bringing a cross action, he may use the breach of the warranty in reduction of the damages, in an action by the vendor for the price. [But see 479, n. 1.] There is a very learned discussion and citation of authorities under the case of Cutter v. Powell, 6 T. R. 320, in Smith's Leading Cases, Law Library, n. s. xxviii., on the vexed question as to the remedy on special contracts, remaining in part unperformed. To the accumulation of English cases, the learned American editors of the Law Library have given also a view of the American cases on the same subject. In Ferguson v. Huston, 6 Mo. 407, it was held, after an elabo- rate examination of the authorities, that defect or unsoundness in a chattel sold cannot be set up in bar of a recovery on a note given for such chattel, unless the vendee, on the discovery of such defect or unsoundness, returns, or offers to return, the chattel, or shows it to be valueless. In the learned opinion of the dissenting judge it was held that the retention of the chattel, in a case of fraud or breach of warranty, was no waiver of the purchaser's right of defence on these grounds, by [680] LECT. XXXIX.] OP PERSONAL PROPERTY. * 474 In Louisiana, the failure of consideration, either in whole or in part, in a contract of sale, has been held to be a defence as far as it goes ; on the principle that matters which diminish, as well as those which destroy, the demand, may be pleaded in defence of the suit. (^) The discovery by the vendee, before payment, of incumbrances, is also held, in Pennsylvania, to be a valid defence, in a suit for the purchase-money, to the amount of the incum- brance, whether there existed a general or special warranty. (A) The defendant may, by way of defence, show a breach of war- ranty as to the articles sold, without either returning them, or giving notice to the vendor to take them away, (i) In Virginia, it was provided by statute, in 1830, that a defendant might allege, by way of plea, not only fraud in the consideration or procure- ment of any contract, but any such failure in the consideration thereof or any such breach of warranty of the title or soundness of personal property, as would entitle the defendant, in any form of action, to recover damages at law, or to relief in equity. The rule in Ohio is, that the fraud must go to the whole considera- tion, or the payment of a note cannot be avoided at law, upon the ground of fraud. (/) This is also the law in Kentucky ; and a plea going only to a part of the consideration is bad. (A) way of mitigation of damages, and to prevent circuity of action. If, however, he meant to rescind the contract for the fraud or defect, there must then have been sliown a return, or tender of a return, of tlie article. {g) Evans v. Gray, 12 Mart. (La.), 475, 647. But in Fulton v. Griswold, 7 Mart. (La.) 223, it was held that the vendee of land could not refuse payment of the price, nor could he require surety from the vendor until suit brought to evict him. And it seems now to be settled in South Carolina, that, on a sale of land, a defect of title in the vendor is no defence at law to a suit on the note given for the consideration money, so long as the purchaser remains in possession under an equitable title. Car- ter V. Carter, 1 Bailey, 217 ; Bordeaux v. Cave, ib. 250 ; Westbrook <;. M'Millan, ib. 259. {h) Christy v. Reynolds, and Tod v. Gallagher, 16 Serg. & R. 258, 261. (0 Steigleman v. Jeffries, 1 id. 477. ij) Harlan v. Read. 3 Ohio. 285. {k) Delany v. Vaughn, 2 Bibb, 379 ; Wallace v. Barlow, ib. 168. The rule in S. Carolina in respect to warranty of title, both as to real and personal property, is thoroughly discussed and stated by Mr. Justice Earle, in Moore v. Lanham, 3 Hill (S. C), 299. In regard to the construction of the warranty of title, there is no dif- ference between real and personal property. Every covenant of general warranty of title is held to be a covenant of seisin, and the vendee may bring covenant on the warranty, or resist an action for the price, without actual eviction, and whether there has been a partial or a total failure of consideration. A total or partial failure in regard to title, as well as a total or partial failure in regard to soundness, will avail [681] *475 OP PERSONAL PBOPEETY, £PAET T. * 475 * There has been much discussion and diversity of opin- ion on the subject of rescinding and of enforcing the spe- cific performance of contracts, in the cases of partial failure of the consideration. In one case, (a) Lord Kenyon observed, when sitting in chancery, that the court had gone great lengths in com- pelling parties to go on vi'ith purchases, contrary to their original agreement and intention ; but he said a case migkt be made out sufficient to put an end to the whole contract, when the seller could not make a good title to part ^oi the subject sold. In the case of the Cambridge Wharf, the seller made title to all the estate but the wharf, and that part of the land was the principal object of the buyer in making the purchase, and the buyer who had contracted for the house and wharf was compelled to com- plete the purchase without the wharf. But, as Lord Kenyon truly observed, that was a determination contrary to all justice and reason. There have beerra number of hard cases in chancery, (6) and in which performance has been enforced, though there was a material variance between the actual and supposed circumstances of the subject, and when those circumstances were wanting which were the strong inducement to the contract. These cases had gone to such extravagant lengths, that Lord Erskiue declared (e) he would not follow them, nor decree specific performance, when the main inducement to the purchase had failed. In many cases, however, where the title proves defective in part, or to an extent not very essential, specific performance will be decreed, with a ratable deduction of the purchase-monej', by way of compensation for the deficiency, (c?) a purchaser of personal property as « valid defence, when sued for the purchase- money, to the same extent, in the same form, and upon the same principles, as the like failure would avail a purchaser of real estate. The jurisprudence of South Carolina is thus rendered free from embarrassing distinctions on this subject, by the comprehensiveness, simplicity, and certainty of the rule. la) Poole V. Shergold, 1 Cox, 273. (6) Several cases of that kind are alluded to by Lord Eldon, in 6 Ves. 678 ; and see also Oldfield v. Round, 5 id. 508. (c) Halsey v. Grant, 13 Ves. 78; Stapylton i'. Scott, ib. 426. {d} Milligan v. Cooke, 16 Ves. 1 ; King v. Bardeau, 6 Johns. Ch. 38 ; Smith <. Tolcher, 4 Russell, 305; Soule v. Hee-man, 5 La. 3-58. See a statement of the diffi- culties on this subject by the Master of the Rolls, in Thomas v. Bering, 1 Keen, 7^9. Sales by an heir apparent of expectancies or reversionary interests will be set aside when the consideration is inadequate, and advantage was taken of his necessities. Earl of Portmore v. Taylor, 4 Sim. 182; Gibson u. Jeyes, 6 Ves. 266; Peacock v. Evans, 16 Ves. 512 ; Gowland v. De Faria, 17 id. 20 ; Addis v. Campbell, 4 Beav, [682] LECT. 2XXIX.J OP PERSONAL PROPERTY. * 476 Tlie good sense and equity of the law on this subject is, that if the defect of title, whether of lands or chattels, be so * great as to render the thing sold unfit for the use in- * 476 tended, and not within the inducement to the purchase, the purchaser ought not to be held to the contract, but be left at liberty to rescind it altogether. This is the principle alluded to by Pothier, and repeated by Lord Erskine and Lord Kenyon. (a) In South Carolina it has been held, that if the deficiency in the quantity of land be so great as to defeat the object of the pur- chase, the vendee may rescind the bargain ; and if the defects were not so great as to rescind the contract entirely, there might be a just abatement of price ; and this doctrine applies equally to defects in the quantity and quality of land, and for unsoundness and defects in personal property. (6) The same principle was declared in Pennsylvania, in the wcase of Stoddart v. Smith, (c) on a contract for the purchase of land. If there be a failure of title to part, and that part appears to be so essential to the resi- due that it cannot reasonably be supposed the purchase would have been made without it, as in the case of the loss of a mine, or of water necessary to a mill, or of a valuable fishery attached to a parcel of poor land, and by the loss of which the residue of the land was of little value, the contract may be dissolved in toto. But the court in the last case limited very much the right of rescinding a contract for a partial failure of title ; for if the sale was of lots in different parts of a city, it was not dissolved by 401, s. p. See, in Lord Aldborough v. Trye, 7 Clark & Fin. 436, the observations of Lord Cottenliam, on the ease of Gowland u. De Faria, relative to the value of expectancies. The sale of the expectation of an heir of an inheritance in real as well as personal estate, will be supported in chancery, if made Imafide and for a valuable consideration. This was so declared by the assistant vice-chancellor, in Varick v. Edwards, 1 Hoff. Ch. 383, 395-405, after an elaborate examination of authorities. , Post, iv. 261, s. p. So, the release by an heir apparent of his estate in expectancy, with the consent of the ancestor, on a valid consideration, with a covenant of war- ranty running with the land, is good and effectual at law. Coburn v. Hollis, 3 Met- calf, 125. In Scotland, an agreement for the sale of a future or expected inheritance is lawful. Stair's Institutions, by More, vol. i. note 1, p. 63. (o) This principle was expressly recognized, after a full and elaborate discussion of the subject, by the Court of Errors and Appeals in Mississippi, in Parkham v. Randolph, 4 How. (Miss.) 435. (b) Pringle v. Witten, 1 Bay, 256; Gray v. Handkinson, ib. 278; Glover v. Smith, 1 Desaus. 433; Wainwright v. Read, ib. 573; Tunno v. Elood, 1 M'Cord, 121 ; Mar- vin V. Bennett, 8 Paige, 312. (c) 5 Binney, 355, 363. [683] * 477 OF PERSONAL PROPERTY. [PART V. the failure of title to some of the lots, not adjoining or particu- larly connected with the others, nor essential to their use or en- joyment, (c?) It is to be regretted that the embarrassment and contradiction which accompany the English and American cases on this subject cannot be relieved by the establishment of some clear and definite rule, like that declared in France, which shall be of controlling infliience and universal reception, (e) * 477 * (3.) Of the Price. — The price is an essential ingredi- ent in the contract of sale ;^ and it must be real, and not merely nominal and fixed, or be susceptible of being ascertained in the mode prescribed by the contract, without further negotia- tion between the parties. Pretium constituti oportet, nam nulla emptio sine pretio esse potest, (a) ^ (d) VFhere a farm was sold in gross or by its boundaries, and neither party knew the precise quantity conveyed, and the deed contained the words more or less, and the quantity was afterwards ascertained to be less than the parties supposed, the Court of Chancery refused to interfere for tlie relief of the purchaser, the transac- tion being fair and honest, and the deficiency small. Marvin v. Bennett, 8 Paige, 312. (e) The rule in chancery, upon the principle of equitable conversion, is to consider that which was agreed to be done as done, if the execution of the agreement would be lawful and just. In pursuance of this doctrine, the purchase-money of lands, con- tracted to be sold during the life of the testator, is treated as personal estates. Baden V. Countess of Pembroke, 2 Vern. 212 ; Lawes v. Bennett, 1 Cox, 167. Vide swpra, 230, u. (5). (a) Inst. 3. 24; Dig. 18. 1. 2; Pothier, du Cent, de "Vente,.part 1, art. 2, ii. 18; Brown ;;. Bellows, 4 Pick. 189 ; Bell on the Contract of Sale, Edin. 1844, p. 18. But if the price be not fixed, yet after delivery of the goods tlie contract of sale is deemed valid, and the purchaser must pay for their reasonable value. Acebal o. Levy, 10 Bing. 382 ; Hoadley v. M'Laine, ib. 482 ; Bell, uhi supra, 20. Inadequacy of price, independent of other circumstances, is no ground for relief in equity against a bargain, unless it be so gross or excessive as to afford a necessary presumption of fraud, imposition, undue influence, or want of a reasonable judgment. Osgood v. Franklin, 2 Johns. Ch. 23, 24. The opinions of Sir Thomas Clarke, Lord Thurlow, Lord Ch. B. Eyre, Lord Eldon, and Sir William Grant, were all referred to in the case cited in support of that position. See also, to the same effect, Copis v. Middle- ton, 2 Madd. Ch. 410; Butler v. Haskell, 4 Desaus. Eq. (S. C.) 651; Glenn v. Clapp, 11 Gill & J. 1. By the civil law, a sale for one half the value might be set aside for 1 Price. — According to the language money only. Bigley r. Risher, 63 Penn. of an important decision of the Privy St. 152. Hoadly v. M'Laine, supra, n. (a), Council, the price may be money's worth is approved in Joyce v. Swaiin, 17 C. B. as well as money South Australian Ins. n. s. 84. [That the consideration must be Co. V. Bandell, L. R. 3 P. C. 101 ; [Gould money is held in Slayton v. McDonald, V. Mansfield, 103 Mass. 408.] Compare 73 Me. 50 ; Massey v. The State, 74 Ind. Williamson v. Berry, 8 How. 495, 544, 368. See also Mackaness v. Long, 85 where an authority to sell lands in a pri- Penn. St. 158.] vate act was construed to mean, sell for [684] LECT. XXXIX.] OP PERSONAL PROPERTY. * 477 (4.) Of Mutual Consent. — Mutual consent is requisite to the creation of the contract, and it becomes binding when a proposi- tion is made on one side and accepted on the other ; and, on the other hand, it is no contract if there be an error or mistake of a fact, or in circumstances, going to the essence of it. This is a clear principle of universal justice. Non videntur qui errant consentire. (6) In creating the contract the negotiation may- be conducted by letter, as is very common in mercantile transac- tions ; and the contract is complete when the answer containing the acceptance of a distinct proposition is despatched by mail or otherwise, provided it be done with due diligence, after the receipt of the letter containing the proposal, and before any intimation is received that the offer is withdrawn. Putting the answer by letter in the mail containing the acceptance, and thus placing it beyond the control of the- party, is valid as a construc- tive notice of acceptance. An offer by letter, or by a special agent, is an authority revocable in itself, but not to be revoked without notice to the party receiving it, and never after it has been executed by an acceptance. There would be no certainty in making contracts through the medium of the mail, if the rule were otherwise, (e) ^ On the other hand, it has been held, that inadequacy ; and Lord Nottingham, in Nott v. Hill, 2 Ch. Cas. 120, observed, that he wished it were so in England. If the price of the purchase was less than one half the value, the inequality was deemed in the civil law enormis Icesio, and relief was afforded. This is the rule also in Louisiana. Copley v. Flint, 1 Eob. (La.) 12.5. At law the rule is more stern, and a promise or obligation cannot be defeated, in whole or in part, on the ground of the inadequacy of the consideration. The slightest con- sideration is sufficient to support the most onerous obligation. The consideration may be impeached only by showing fraud, mistake, or illegality in its concoction, or non-performance of the stipulations on the part of the promisee. Oakley v. Boorman, 21 Wend. 588. See also Story's Comm. on Eq. Jurisprudence, 248-254. (?)) Pothier on Oblig. 1, c. 1, No. 17, 18; Thornton u. Kempster, 5 Taunt. 786; Hammond v. Allen, 2 Sumner, 395, .399; [469, 471, 479, n. 1 ; 482, n. 1.] (c) Adams v. Lindsell, 1 B. & Aid. 681 ; Chiles v. Nelson, 7 Dana, 281. The dis- tinctions on this subject are refined and subtle. In Mactier v. Frith, 6 Wend. 108, an offer to sell, made by letter, was standing and held open for acceptance at the time 2 Contracts by Letter. — To a similar note, A.'s letter of acceptance was not effect with the case cited in the note from mailed until Jan. 3; and that if the case Merlin, is Countess of Dunmore v. Alex- can be supported, it is on the ground sug- ander, 9 Shaw & Dunlop, 190, Langdell'e gested by Wilde, J., who asked why, if Cases on Contracts, 'l 12, commented on putting the acceptance into the post was in Thomson v. James, infra. a delivery to B. on the 3d, putting in the It should be noticed that in M'CuUoch withdrawal was not «. delivery to A. on V Eagle Insurance Co., mentioned in the the 2d. However, in Tliomson v. James, [ 685 ] *477 OF PERSONAL PROPERTY. Fpart T. if A. makes an offer to B. and gives him a specified time for an answer, A. may retract before the offer is accepted, on the ground it was accepted, and the contract was then consummated, though the knowledge of the concurrence of wills, when the acceptance was made, was not known to the party who wrote the letter, and though he died before, notice of the acceptance, by answer to the letter, was received, but after the lime of acceptance. The offer may be deemed to stand open for acceptance until it is expressly or by presumption with- drawn. So, also, in Brisban v. Boyd, 4 Paige, 17, where A. wrote to his factor, pro- posing to ship to him cotton on joint account ; the agent, on the receipt of the letter, 18 Dunlop, 1, Langdell's Cases on Contr. 117, after an able discussion, the majority of the court held that a contract became binding from the posting of the letter of acceptance, although a letter withdrawing the offer had been previously posted, and was received by the offeree before the acceptance was received by the offerer. See other cases below in this note. In British & American Telegraph Co. c. Colson, L. R. 6 Ex. 108, it was held that when a letter accepting a previous offer was put into the post office, but was never received, there was no contract; and it was laid down that although the letter of acceptance may in general be binding from the time it was written and put into the post, provided it be received, it is only binding at all when afterwards duly notified. Dunlop v. Higgins, 1 H. L. C. 381, seemed to be narrowed by this to a decision that, on the particular facts, an unavoidable delay of a few hours in the arrival of the post did not affect the accept- ance. The principles admitted would per- haps have been sufficient for the decision of Trevor v. Wood, 36 N. Y. 307 ; Potter v. Sanders, 6 Hare, 1 ; Tayloe v. Merchants' Fire Ins. Co., 9 How. 390 ; Levy v. Cohen, 4 Ga. 1 ; Hamilton w. Lycoming Mut. Ins. Co., 5 Penn. St. 339 ; see also Abbott v. Shepard, 48 N. H. 14; and B. & A. T. Co. o. Colson was corroborated by Reidpath's Case, L. R. 11 Eq. 86, &c., before Lord Romilly, by In re Imp. Land Co. of Mar- seilles, Townsend's Case, L. R. 13 Eq. 148, 153; and by an able article in 7 Am. Law Rev. 433, where the foreign author- ities are carefully collected. But it was directly opposed to the earlier decision of Vassar v. Camp, 1 Kern. 441 ; 14 Barb. 341 ; and in the subsequent case of In re Imperial Land Co. of Marseilles, Harris's Case, 41 L. J. n. s. Ch. 621 ; L. R. 7 Cli. 587, where a. letter accepting an offer was posted in London, and, a little later on the same day, a letter withdrawing the offer was posted in Dublin, and both letters were delivered in the morning of the next day, there was held to be a binding contract. The Lord Justice Hel- lish states the reasons of convenience for holding a contract binding from the moment of posting the letter, with great force, and distinguishes B. & A. T. Co. v. Colson, but finds it difficult to reconcile that case with the paramount authority of Dunlop V. Higgins. See also Wheat v. Cross, 31 Md. 99. x^ x^ In discussing the question here raised, the distinction should be carefully borne in mind between contracts which contemplate an acceptance by the doing of some act which forms the considera- tion, and those which contemplate a coun- ter promise ; viz., between unilateral and bilateral contracts. In the former case [686] there may be an implied condition that notice of the acceptance shall be given ; but this condition only requires that due diligence be exercised in sending the no- tice, and mailing Ihe notice is clearly sufficient. Such are the cases of applica- tions for allotment of shares. Langdell's Summary of Contracts, 1 6 e< passim; LECT. XXXIX.J OP PERSONAL PROPERTY. '477 that until both parties are agreed, it is no contract, and either of them has a right to recede, and one party cannot be bound without the other, (i) gives notice of his assent, and it was held, that as soon as the agent, so replied, and the letter was transmitted, the contract was complete, and mutually binding. Merlin states this case in the French courts. A. writes to B., and otfers to buy articles on (d) Payne v. Cave, 3 T. R. 148 ; Cooke v. Oxley, ib. 653 ; Kutledge v. Grant, 4 Bing. 653; Gravier v. Gravier, 15 Martin (La.), 206. But see supra, 236, and infra, 510, for exceptions to tlie general rule that both parties must be bound, or neither can be. The good faith and justice of the case would lead to the conclusion that if A., who makes the offer, gives B. a specified time to accept, and he accepts within the time, it becomes a valid contract, and A. is bound by his offer, which left it optional in B. to accept or reject tlie offer within the time. The criticisms which have been made upon the case of Cooke v. Oxley are sufficient to destroy its authority. The Roman law gave an action to one who did anything proper and beneficial to the estate of another, who was absent and ignorant of it ; and it went on the ground of a positive benefit conferred, and of the equity of not permitting one man to profit by the labor of another without compensation. Dig. 3. 5. 2. The Supreme Court of Louisiana has followed this principle. Police Jury v. Hampton, 17 Martin (La.), 398. But there is no principle in the English law which would support eucli an action for compensation, on the footing of a contract. See infra ad finem, as to the effect of death on the validity of a contract not already consummated. Harris's Case, n. 1, supra ; Household Fire Ins. Co. V. Grant, 4 Ex. D. 216 ; Brogden V. Metropolitan Ry. Co., 2 App. Cas. 666 ; Shuey v. United States, 92 U. S. 73 ; Shattuck V. Mut. Life Ins. Co., 4 Cliff. 598. On the other hand, where the original offer contemplates that the offeree can accept only on condition of himself be- coming bound by a promise, it would seem that the contract should not become binding until communication of this prom- ise, which logically contains a counter offer. Langdell's Summary, IT 14 et pas- sim. But the cases do not take this dis- tinction, but lay down the rule broadly, that an acceptance of an offer by letter is complete on mailing. Byrne v. Van Tien- lioven, infra. See Lord Blackburn in Brogden v. Metropolitan Ry. Co., supra, where the ground is stated to be an im- plied authority in the offer to accept in that manner. Bryant v. Booze, 65 Ga. 438. But see Lewis u. Browning, 130 Mass. 17o. It is admitted that a revoca- tion is ineffectual until communicated. Byrne v. "Van Tienhoven, 5 C. P. D. 344; Stevenson v. McLean, 5 Q. B. D. 346. There being actual notice, formal notice of revocation was held unnecessary in Dickinson v. Dodds, 2 Ch. D. 463. The thing to be proved in all cases is the consensus which must exist as to all the terms, and must be to treat the con- tract as finally binding. This does not exist, and there is no contract where there is a mistake as to any term, or as to the person with whom the contract is made, Harvey v. Harris, 112 Mass. 32; Bos- ton Ice Co. V. Potter, 123 Mass. 28 ; Cundy V. Lindsay, 3 App. Cas. 459 ; Ex parte Barnett, 3 Ch. D. 123 ; Hussey v. Home- Payne, 4 App. Cas. 311 ; see infra, 482, n. 1 ; nor if the acceptance is not in the terms of the offer. Proprietors, &c. i/. Ar- duin, 5 L. R. H. L. 64 ; Appleby v. John- son, 9 L. R. C. P. 158; Hussey v. Home- Payne, 4 App. Cas. 311 ; see Rossiter i-. Miller, 3 App. Cas. 1124 ; Lewis v. Brass, 3 Q.B.D.667. The proof need not be direct. Brogden v. Metropolitan Rv. Co , supra. [ 687 1 * 478 OF PERSONAL PROPERTY. [PART V. * 478 * 5. Of Implied Warranty of the Articles Sold. — ^ In every sale of a chattel, if the possession be at the time in an- other, and there be no covenant or warranty of title, the rule of caveat emptor applies, and the party buys at his peril, (a) ^ But certain conditions. B. writes an answer in the morning, and accepts the oHer. ^e writes a second letter in the evening of tliat day, that he cannot accede to the offer exactly, according to all the conditions. Both answers are received by A. at the same instant, and it was held that A. was not bound by the offer, as the second letter did away the force of the first. Re'pertoire, tit. Vente, sec. 1, art. 3, note 11. But in the case of M'CiiUoch v. The Eagle Insurance Co., 1 Pick. 278, A. wrote by mail to B. to inquire on what terms he would insure a vessel ; B. wrote an answer on 1st January that he would insure at a certain rate ; on 2d January he wrote another letter, retracting; A., before he received the last letter, wrote by mail an answer to B.'s first letter, acceding to the terms ; and it was held there was no contract, and that the treaty was open until B. had received the letter of A. If A., who makes the proposal, should die or become rum cmnpos before his letter is received and assented to, the assent is void, because there is no concurrence of wills at the time. Pothier, Traits du Cont. de Vente, no. 32 ; vide infra, 646. The better opinion of the French jurists seems to be, that as soon as an offer by letter is accepted the consent is given, and the contract complete, although the acceptance had not been communi- cated to the party by whom the offer was made, provided the party making the offer was alive when the offer was accepted. Pothier, Tr. de Vente, n. 32 ; Duvergier, Tr. de la Vente, 6. 1. 60 ; and though Merlin & TouUier are of a contrary opinion, yet against them may be cited Wolf, part 3, sec. 715, and the decisions supra. The case of M'CuUoch v. The Eagle Ins. Co., 1 Pick. 283, has been questioned as a valid authority by Mr. Duer, the learned author on Marine Insurance, i. 67, 116-131. His criticisms appear to be just, and his reasoning conclusive. He vindicates the decision of the K. B. in Adams v. Lindsell with great force, and it has received a very strong support from the able opinion of Mr. Justice Marcy, in Mactier v. Frith, in the New York Court of Errors, in 6 Wendell, 104. (o) Tanfield, C. Baron, Cro. Jac. 197; Holt, C. J., Medina v. Stoughton, 1 Salk. 210. If, however, the seller affirms the chattel not in his possession to be his, Mr. Justice Buller thinks he is bound to answer for the title, for the vendee has nothing else to rely upon, if the property was out of possession. Buller, J., in Pasley v. Free- man, 3 T. E. 57, 58. There is good sense and equity in the observation. 1 Implied Warranty. — (a) Title. — The And so do the English cases, where the text is confirmed by Scranton v. Clark, vendor either by words affirms, or by his 39 N. Y. 220; McCoy v. Artcher, 3 Barb, conduct gives the purchaser to understand, 323 ; Edick u. Crim, 10 Barb. 445. The that he is the owner. If, for instance, he American cases also sustain what follows sells the goods in his shop in the ordinary in the text as to sales by one in possession course of business, on failure of title the of the article. Cases supra ; Thurston v. purchase-money can be recovered back. Spratt, 52 Me. 202; Sherman v. Cham- Eichholz v. Bannister, 17 C. B. n. s. 708; plain T. Co., 31 Vt. 162, 175; Hoe v. Morley r. Attenborough, 3 Exch. 500, 513. Sanborn, 21 N. Y. 552, 556 ; Williamson But see Bagueley v. Hawley, L. B. 2 C. P. c. Sammons, 34 Ala. 691; Shattuck v. 625. In Morley u. Attenborough, 3Exch. Green, 104 Mass. 42. [See B. & A. 500, which threw some doubt on the R. R. Co. u. Richardson, 135 Mass. 473.] existence of the general rule, the sale was [688j LECT. XXXIX.] OP PERSONAL PROPERTY. 478 if the seller has possession of the article, and he sells it as his own, and not as agent for another, and for a fair price, he is un- derstood to warrant the title. (6) y^ A fair price implies a war- ranty of title ; and the purchaser may have a satisfaction from the seller, if he sells the goods as his own, and the title proves deficient. This was also the rule of the civil law in all cases, whether the title wholly or partially failed, (e) With regard to (6) Medina v. Stoughton, 1 Ld. Raym. 523 ; 1 Salk. 210 ; Adamson v. Jarvis, 12 J. B. Moore, 241 ; Crosse v. Gardner, Carth. 90. An afBrmation by the vendor at tlie time of the sale amounts to a warranty, if so intended. Medina v. Stougliton, supra ; Buller, J., 3 T. R. 57 ; Swett v. Colgate, 20 Jolms. 196. On a sale of goods, with warranty, the seller must make good to the letter of the warranty ; but on a simple representation, if he had no reason to suspect his representation to be untrue, lie is not responsible. The scienter is the gist of the action. Ormrod v. Huth, 14 M. & W. 651. (c) Dig. 21. 2. 1. By the civil law there was an implied warranty that the article made by a pawnbroker, as such, and perhaps there is no warranty in any case where the seller acts in a special character, and not as owner. Page o. Cowasjee Eduljee, L. R. 1 P. C. 127, 144, was the case of a sale by a master upon a bona fide belief of his authority to sell. See The Monte AUegre, 9 Wheat. 616, 645 (sale by U. S. marshal under order of court) (b) Quality. — With regard to quality, where the contract is executory, to supply, the question is, whether the article ten- dered satisfies the terms 'of the contract, as is explainec 479, n. 1. Where there is a present executed sale, the authorities are as stated in the text. Nor is a warranty to be implied from the fact that the seller knows the purpose for which the article is purchased. Deming v. Foster, 42 N. H. 165; Bartlett «. Hoppock, 3t N Y. 118; [Dounce v. Dow, 64 N. Y. 411 ;] Mason v. Chappell, 15 Gratt. 572 ; Morley v. Claver- ing, 29 Beav. 84. There has been said to be an exception in the case of food sold for domestic consumption. Hoover v. Peters, 18 Mich. 51; 479, n. (c). But in the English law this is confined to the case of common dealers in victuals, and is put on the ground that they are made liable to punishment for selling corrupt victuals, by an ancient statute. Burnby v. Bollett, 16 M. & W. 644. And even they are only liable for defects of which they had or might have had knowledge. Emmerton V. Mathews, 7 Hurlst. & N. 586. A war- ranty of quality is not to be implied from the payment of a sound price. Beirne v. Dord, 1 Seld. 95, 98; Laraert v. Heath, 15 M. & W. 486. And it has been held that the mere exhibition of a sample at the time of sale does not of itself amount to a warranty that the hulk is of the same quality, if the buyer has an opportunity to inspect the goods. Hargous v-. Stone, 1 Seld. 73 ; Beirne v. Dord, ib. 95. But if he has not, an intention to warrant is inferred as a matter of fact. See 479, n. 1 ; Schuchardt v. Aliens, 1 Wall. 359, 371 ; Dickinson v. Gay, 7 Allen, 29, 81 ; Gun- ther V. Atwell, 19 Md. 157. yi This might more properly be called a warranty of quiet possession, since it is broken only when the vendee is in some way disturbed in his possession. Mc- Giffin V. Baird, 62 N. Y. 329; Matheny v. VOL. II. — 44 Mason, 73 Mo. 677 ; Estelle v. Peacock, 48 Mich 469. See National Bank v. Mass. Loan & Trust Co., 123 Mass. 3-30 ; Palmer V. Johnson, 12 Q. B. D. 32 ; In re Gloag, &c., 23 Ch. D. 320. [6S9] * 479 OF PERSONAL PROPERTY. [PART T. the quality or goodness of the article sold, the seller is not bound to answer, except under special circumstances, unless he expressly warranted the goods to be sound and good, or unless he hath made a fraudulent representation, or used some fraudulent con- cealment concerning them, and which amounts to a warranty in law. The common law very reasonably requires the purchaser to attend, when he makes his contract, to those qualities of the article he buys, which are supposed to be within the reach of his obseryation and judgment, and which it is equally his interest and his duty to exert. This distinction between the responsibility of the seller as to the title and as to the quality of goods sold is well established in the English and American law. (^d) * 479 In Seixas v. * Wood, (a) the rule was examined and de- sold was sound ; and, if not, and was unfit for the purpose intended, the vendee might return it, and rescind the sale and recover back the price, though the vendor might exempt himself from liability by stipulation in cases free tfom fraud. Pothier, Cont. de Veute, No. 184. (d) Co. Litt. 12, a ; 2 Bl. Comm. 4.51 ; Bacon's Abr. tit. Action on the Case, E. ; Comyn on Contracts, ii. 263; Doug. 20; Parkinson v. Lee, 2 East, 314; Defreeze v. Trumper, 1 Johns. 274 ; Johnston v. Cope, 3 Harr. & J. 89 ; Wilson v. Shackleford, 4 Eand. 5; Dean v. Mason, 4 Conn. 428; Boyd v. Bopst, 2 Dallas, 91; Emerson v. Brighara, 10 Mass. 197 ; Swett v. Colgate, 20 Johns. 196 ; Kimmel v. Lichty, 3 Yeates, 262 ; Ritchie v. Summers, ib. 534 ; Willings v. Consequa, 1 Peters, C. C. 317 ; 12 Serg. & R. 181, Tilghman, C. J.; Chism i. Woods, Hard. (Ky.) 531; Lanier v. Auld, 1 Murphey, 138 ; Erwin v. Maxwell, 3 id. 241 ; Westmoreland u. Dixon, 4 Hayw. (Tenn.) 227 ; Barrett v. Hall, 1 Aiken, 269 ; McFarland v. Newman, Supreme Court, Penn., September, 1839, Law Reporter, ii. 301 ; [9 Watts, 55 ;] Towell v. Gatewood, 2 Scam. 22; Maney v. Porter, 3 Humph. (Tenn.) 347. If one buys, says Heineccius (Elem. Juris. iTat. et Gentium, b. 1, c. 13, sec. 352, n.), anything at a certain price, which he hath not seen nor sufficiently examined, his error ought to fall on himself, if the seller used no guile to deceive him. [a] 2 Caines, 48; Welsh v. Carter, 1 Wend. 185; Chandelor v. Lopus, Cro. Jac. 4, s. p. This last case is condemned in Bradford ;;. Manly, 13 Mass. 139. The case ot Chandelor v. Lopus was, that A. sold to B. a stone, which he affirmed to be a, Bezoar stone, and which was not one ; and It was held that no action lay, unless A. knew it was not a Bezoar stone, or warranted it to be one. This doctrine is so far qualified at this day that the action will lie, if it appears that the affirmation at the time ot the sale was intended to be warranty, or that A., from circumstances, was to be presumed cognizant of the falseliood of the representation. What circumstances or facts wiU support or imply the inference of an intention to warrant or deceive, has opened a wide field for discussion. In Henshaw v. Robins, 9 Mete. 86, the subject was learnedly discussed, and the celebrated case of Chandelor v. Lopus, and the New York decision in Seixas v. Wood, brought under the eye of criticism. It was declared in the Massachusetts case to be well settled law there, that on a sale of goods, with a bill of parcels describing or clearly designating the goods sold, there is a warranty that the goods are as described or designated in the bill ; and the cases of Bradford v. Manley, 13 Mass. 139 ; Hastings !>. Lovering, 2 Pick. 214 ; Osgood v. Lewis, 2 Harr. [690] LECT. XXXIX.] OP PERSONAL PROPERTY. * 479 clared to be, tliat if there was no express warranty by the seller, or fraud on his part, the buyer, who examines the article himself, must abide by all losses arising from latent defects, equally unknown to both parties ; and the same rule was again declared in Swett v. Colgate. (6) There is no doubt of the exist- ence of the general rule of law, as laid down in Seixas v. Wood; and the only doubt is, whether it was well applied in that case, where there was a description in writing of the article by the vendor which proved not to be correct, and from which a war- ranty might have been inferred. But the rule fitly applies to the case where the article was equally open to the inspection and examination of both parties, and the purchaser relied on his own information and judgment, without requiring any warranty of the quality; and it does not reasonably apply to those cases where the purchaser has ordered goods of a certain character, and relies on the judgment of the seller, or goods of certain de- scribed quality are offered for sale, and, when delivered, they do not answer the description directed or given in the contract. They are not the articles which the vendee agreed to purchase ; and there is an implied warranty that the article shall answer the character called for, or be of the quality described, and sal- able in the market, and under that denomination. (c)iy When & G. 496 ; Borrekius v. Sevan, 3 Kawie, 23 ; Batturs v. Sellers, 5 Harr. & J. 117, and 6 H. & J. 249, were referred to as containing that doctrine. (6) 20 Johns. 196. A bare representation and no warranty as to goods sold, will not afford an action, if tlie vendor believes the representation to be true in fact. Stone r. Denney, 4 Mete. 151. (c) Laing v. Fidgeon, 6 Taunt. 108 ; Tindal, C. J., in Brown v. Edgington, 2 Mann. & Gr. 279, 290; Weall u. King, 12 East, 452; Gardiner v. Gray, 4 Cainpb. 144; 1 A. When an Article may be refused or re- the article tendered does not reasonably turned. — (a) /( must answer the Description, answer the description, either in kind or 4-c. — In the case of an executory contract quality in the one case, or the purpose in to sell an ascertained article of a certain the other, the contract is not performed, description, or one not described, but On the other hand, if the article is defined stated to be for a particular purpose, if by the buyer independently of the object yi (1.) Warrant!/. — Condition Precedent, no separate consideration, and the proper — Condition Subsequent. — The legal con- remedy is, as stated in the note, damages ceptions involved in these terms should for the breach or set-ofi in an action for be carefully distinguished from each other the price. A condition precedent gives and from the evidence necessary to prove simply a right to reject the goods, and a them. A warranty is an agreement col- condition subsequent a right to return or lateral to the main contract, but having disclaim them. Grimoldby v. Wells, 10 [691] 480 OP PERSONAL PROPERTY. [part V. * 480 goods ate discovered not to answer * the order given for them, or to be unsound, the purchaser ought immedi- Bridge v. Waine, 1 Stark. 104 ; Hastings v. Lovering, 2 Pick. 214 ; Wopdworth, J., in Swett v. Colgate, 20 Johns. 204; Hyatt v. Boyle, 5 Gill & J. 110; Osgood v. Lewis, for which he wants it, of course he cannot return it for not answering that object, althougli known, if it answers the descrip- tion. Chanter v. Hopkins, 4 M. & W. ■399,404,406; Hey worth t. Hutchinson, L. E. 2 Q. B. 447, 451 ; Behn v. Burness, 3 Best & S. 751, 756 ; Wieler v. Schilizzi, 17 C. B. 619 ; Kreuger v. Blanck, L. R. 5 Ex. 179 ; Mason v. Chappell, 15 Gratt. 572 ; Hamilton v. Ganyard, 3 Keyes, 45, 47 ; Pacific Iron W. v. Newhall, 34 Conn. 67, 77 ; Brown v. Murphee, 31 Miss. 91 ; Pease v. Sabin, 38 Vt. 432 ; Deming a. Foster, 42 N. H. 165, 174; Rotlgers v. Niles, 11 Ohio St. 48 ; Hargous i'. Stone, (1 Seld.), 5 N. Y. 73, 86. It is added that in every contract to supply goods of a'specified description, which the buyer has no opportunity to inspect, they must also be salable or merchantable under their description. Jones v. Just, L. R. 3 Q. B. 197, 205; 9 Best & S. 141"; Mody V. Gregson, L. R. 4 Ex. 49, 52; Mor- ley V. Attenborough, 3 Exch. 500, 510; L. R. C. P. 391. A mere warranty, as such, gives no right to reject or return the goods, and hence a mere retention of the goods does not waive the right to recover on the warranty. But re- tention, together with silence as to known defects, may be a waiver. Day v. Pool, 52 N. Y. 416; Gaylord Mfg. Co. v. Al- len, 53 N. Y. 515; Dounce <;. Dow, 57 id. 16 ; 64 id. 411 ; Gurney v. A. & G. W. Ry. Co., 58 N. Y. 358. But the thing warranted may also be a condition prece- dent or a condition subsequent, if so in- tended. Mansfield v. Trigg, 113 Mass. 350; Rogers v. Hanson, 35 Iowa, 283; Kimball, &c. Mfg. Co. a. Vroman, 35 Mich. 310 ; Horn v. Buck, 48 Md. 358, 372. But the better doctrine is that the mere fact of warranty does not import a condi- tion. Buckingham v. Osborne, 44 Conn. 133. (2.) Evidence. — In general, a warranty or condition may be proved by any com- petent evidence. But where there is no evidence of actual intent to warrant, the law will presume a warranty to have been tacitly assented to by the seller, wherever tlie buyer might reasonably have called for such warranty, provided it be one which it may reasonably be presumed, under all the circumstances, the seller [692] would have assented to if called upon. According to this test the facts of each case must determine both as to .the exist- ence and extent of the warranty. The more important facts to be considered maybe grouped under two classes: (a) If the buyer has knowledge of the defect, or the means of obtaining such knowledge by inspection, the defect being one which can be so discovered, there is no warranty implied. McCormick v. Kelly, 28 Minn. 135 ; Rocohi v. Schwabacker, 33 La. An. 1364 ; Heilbutt u. Hickson, 7 L. R. C. P. 438. (6) The warranty extends so far, and so far only, as the seller either had, or in legal contemplation ought to have had, knowledge of the defect. Thus the war- ranty is more extensive in the case of a seller who has special knowledge of the ^oods sold. Jones v. George, 56 Tex. 149 (druggist). So it is more extensive in the case of a manufacturer than in thai of a. merchant. Johnson c. Raylton, 7 Q. B. D. 438 ; Randall v. Newson, 2 Q. B. D. 102; Dounce ^. Dow, 64 N. Y. 411. See also Kellogg Bridge Co. t. Hamilton, 110 U. S. 108. In Randall t. Newson it was held that the warranty was not limited by defects of which the seller had knowledge, oi might have avoided by due care in the LECT. XSXIX.] OP PERSONAL PEOPERTT. ^480 ately to return them to the vendor, or give him notice to take them back, and thereby rescind the contract ; or he will be pre- 2 Harr. & G. 495 ; Borrekins ,,. Bevan, 3 Rawle, 23. The recent English cases of Gray v. Cox, and Jones v. Bright (4 B. & C. 108; 4 Camp. 144), give countenance Merriam u. Field, 24 Wis. 640 ; MoClung chaser will be bound by what he actually V. Kelley, 21 Iowa, 508; Hamilton v. Gan- yard, 3 Keyes (N. Y.), 45. But compare Bull V. Robison, 10 E.\ch. 342. See also Holden v. Clancy, 58 Barb. 590. And this is so although a sample is shown, or even, it seems, after inspection of bulk, the sample being looked upon as a mere ex- pression of the quality of the article, not of its essential character. If from causes not appearing by the inspection or sam- ple, though not known to the seller, tlie bulk does not reasonably answer the description in a commercial sense, the seller is liable, and it is supposed the buyer may refuse to receive the article on the ground that the contract is not performed. But it is said that the pur- recognizes in the sample, and by what he might, by due diligence in the use of all ordinary and usual means, have ascer- tained. Mody V. Gregson, L. R. 4 Ex. 49, 56, 58 ; ante, 478, ■■. 1, (6) ; Gunther :;. Atwell, 19 Md. 157, 171. But compare Dickinson a. Gay, 7 Allen, 29. So it is supposed when, there purports to be a present sale of articles not delivered or otherwise designated than by their de- scription, it is no sale if they are found not to reasonably answer to the descrip- tion. Jones V. Just, L. R. 3 Q. B. 197, 204; Mody v. Gregson, supra; Nichol v. Godts, 10 Exch. 191; Behn v. Burness, Wieler v, Schilizzi, supra; Lariierr r. Heath, 15 M. & W. 486. See Guntlier v. construction of the article. But this case, tliough perhaps supported by some general expressions in earlier cases, seems contrary to the general tendency of the decisions. See further, Littauer v. Gold- man, 72 N. y. 506 ; Challiss v. McCrum, 22 Kans. 157, as to the extent of tlie warranty implied in the transfer of a note. As to warranty in sale of stock, see Peoples' Bank v. Kurtz, 99 Penn. St. 344. Comp. B. & A. R. R. Co. u. Richardson, 135 Mass. 473. Under some circumstances a seller is reasonably called upon to exercise greater diligence against defects than in others, and in these cases a warranty is more easily implied. Thus, if he is allowed by the buyer to select for him an article to be used for a specific purpose. Randall V. Newson, supra; Robertson v. Amazon, &c. Co., 7 Q. B. D. 598 ; Walker v. Pue, 57 Md. 155 ; Dounce u. Dow, 64 N. Y. 411 ; Van Wyck v. Allen, 69 N. Y. 61. See also Tattersall o. National Steam- ship Co., 12 Q. B. D. 297. So where the articles are to be used for food, or for other purposes where defects may have dangerous consequences. Ward v. Hobbs, 2 Q. B. D. 331 ; Beer i: Walker, 46 L. J. C. P. 677 (with which compare Smith V. Baker, 40 L. T. 261) ; Jones v. George, 56 Tex. 149 ; Burch u. Spencer, 15 Hun, 504 ; Rocchi v. Schwabacker, 33 La. An. 1364. See Howard v. Emerson, 110 Mass. .320. A failure to answer to the description is sometimes treated as a breach of warranty, but is, of course, a breach of the principal contract. White o. Miller, 71 N. Y. 118, 129; Hawkins u. Pemberton, 51 N. Y. 198, modifying Seixas u. Wood and Swett v. Colgate, cited in the text; Bowes v. Shand, 2 App. Cas. 455, 480. It should be noticed that for the pur- pose of this discussion the distinctions between executory and executed sales, and between specified and unspecified goods, are important only as elements in determining whether a warranty or a condition, either precedent or subsequent, is to be implied. Their force is eviden- tiary only. [693] 480 OF PEBSONAL PROPERTY. [part T. sumed to acquiesce in the quality of the goods, (a) In the case of a breach of warranty, he may sue upon it without returning to the more extended doctrine of the civil law, tliat on the sale of an article there is an implied warranty that it is merchantable, or fit for the purpose declared. The progress of the new English doctrine, which raises, on a fair sale of an article (a) Fisher v. Samuda, 1 Camp. 190. Atwell, 19 Md. 157, 168. But see Wether- ill V. Neilson, 20 Penn. St. 448, a case which is disapproved in the American note to Chandelor v. Lopus, 1 Sm. L. C. 270, but seemingly approved in Dickinson V. Gay, 7 Allen, 29, 32. x^ (6) Wtien the Thing is specified. — So when there is a contract to sell a specific thing, the contractee is not bound to accept one different in kind. Azemar ». Casella, L. E. 2 C. P. 431; ib. 677. Compare Ship's Case, 2 DeG.,J.&S. 544. And al- though there purports to be a present sale of a specific thing, yet if it is described as one kind of thing and turns out to be an- other, both parties having been misled by a latent defect, the purchaser can recover the money paid by him. Gompertz v. Bartlett, 2 El. & Bl. 849 ; Gurney v. Wom- ersley, 4 El. & Bl. 133 ; Azemar v. Casella, L. E. 2 C. P. 677, 678 ; Pooley v. Brown, 11 C. B. N. s. 566, 577 ; Kennedy v. Pana- ma, &c. Mail Co., L. B. 2 Q. B. 580, 587 ; perhaps on the ground that the sale is void (Gardner «. Lane, 12 Allen, 39 ; 9 Allen,492. See below in this note, Pooley v. Brown, 11 C. B. N. s. 566, 577 ; 482, n. 1) : just as error in corpore made a sale void by the Eoman law (D. 18. 1. 9), although disap- pointment in quality did not. Ib. 10. Cf Laferriere, Hist, du Droit Fran^ais, i. 302. But see Lord v. Grow, 39 Penn. St. 88, qua- lifying Borrekins v. Be van. In L. E. 2 Q. B. xi In case of a breach of condition, the buyer is not bound to return the goods, but may reject them at the place where the contract contemplated that he should examine them. Grimoldby v. Wells, 10 L. E. C. P. 391 ; Heilbutt v. Hickson, 7 L. E. C. P. 4.38; Couston v. Chapman, 2L. E. H. L. (Sc.) 250. [694] 587, Blackburn, J., speaks of " rescinding " in this case. As to fraud, see 482, n. 1. t (c) Warranty. — Of course, if so intend- ed, a sale may be made conditional, to be null if any warranty is l)roken. Banner- man V. White, 10 C. B. n. s. 844; Hopkins V. Hitchcock, 14 C. B. n. s. 65, 70, 71 ; Head a. Tattersall, L. E. 7 Ex.7. But in the ordi- nary case of the sale of a specific thing, for a stated purpose, or with a warranty of quality (and it seems that a warranty that it is equal to sample is a warranty of qual- ity), the buyer cannot return it after the property has passed to him. Dawson v. Colhs, 10 C. B. 528 ; Parson v. Sexton, 4 C. B. 899 ; West i-. Cutting, 19 Vt. 536 ; Lyon V. Bertram, 20 How. 149, 154. The contrary statement in Curtis v. Hannay is overruled by Street v. Blay, post, 480, n. (6), and subsequent cases in England, although still adhered to in some states where every warranty on the sale of a chattel is held to create a condition subsequent, for a breach of which the chattel may be returned, if the vendor can be put in statu quo. Morse v. Brackett, 98 Mass. 205, 209; Kent v. Bornstein, 12 Allen, 342; Cutler V. Gilbreth, 53 Me. 176. And the vendor will be put in statu quo to satisfy the rule, if the chattel is returned, in- jured, if the injury was not caused by tlie purchaser's negligence. Head v. Tatter- sall, 41 L. J. N. s. Ex. 4; L. B. 7 Ex. 7. If there is an entire contract, and only part of the goods answer the description, the buyer may reject the whole, and, it seems, must do so, unless he is willing to accept the whole as a substituted per- formance. Eeuter v. Sala, 4 C. P. D. 239 ; Tarling v. O'Eiordan, 2 Ir. L. E. 82 See Brandt i: Lawrence, 1 Q. B. D. 344. LECT. XXXIX.] OF PERSONAL PROPERTY. *480 the goods ; but he must return them and rescind the contract in a reasonable time, before he can maintain an action to recover of goods or mercliandise, the implied warranty that it is merchantable or fit for the purpose intended, is worth attending to. In Jones v. Bowdeu, 4 Taunt. 847, tlie war- ranty was implied from the custom of the trade. In Laiug v. Fidgeon (6 Taunt. It has been laid down in England that even when the contract to sell is execu- tory, yet, if it refers to specific goods, the purchaser cannot refuse to receive them because they are not about similar to samples, although they were guaranteed to be so. Hey worth i'. Hutchinson, L. R. 2 Q. B. 447 ; criticised, Benj. Sales, 676. It is obvious that what are called differ- ences in kind shade so gradually into differences of quality, that it may be a very nice question on which side of the line a case falls. Compare Lyon v. Ber- tram, 20 How. 149, 153, with AziSmar v. Casella, L. K. 2 C. P. 677. See also the examples, D. 18. 1. 11, § 1. When a purchaser is allowed to recover his con- sideration money upon the article turning out different in kind from that described, whether on the ground of failure of con- sideration, or payment under a mistake of fact (11 C. B. N. s. 577), or on any other, it must be because the judges think the missing qualities go to the essence of the contract (L. R. 2 Q. B. 588 ; 20 How. 153) ; but when any quality is warranted, there seems to be some rea- son for saying that the parties have agreed that the presence of that quality was of the essence of that contract. The Ameri- can cases seem to distinguish diflference in kind and in warranted quality, so far as to hold a sale void in case of the former, and voidable in case of the latter. Compare Gardner v. Lane with Cutler v. Gilbreth, Morse v. Brackett, supra; post, 482, n. 1. But it is hard to go further and admit that the purchaser has not an option to avoid, if he is ever permitted to return an article in a case free from fraud. (rf) By the present English law, the judges decide whether a particular de- scriptive statement was intended to be a substantive and essential part of the con- tract (Behn v. Burntss, 3 Best & S. 751, 755, 757) ; and the jury, whetlier the ar- ticle meets the description, Josling u. Kingsford, 13 C. B. n. b. 447. Compare Hopkins v, Hitchcock, 14 C. B. n. s. 65, 71. B. Remedy for Breach of Warranty. — Damages. — In those cases where there is only a breach of the warranty of quality, and no condition, the purchaser's remedy is to show how much less the thing was worth by reason of the breach, when sued for the price, or to sue for the breach, Mondel y. Steel, 8 M. & W. 858 ; Hey- worth V. Hutchinson, L. R. 2 Q. B. 447, 461 ; Behn v. Burness, 3 Best & S. 751, 755; Withers i;. Greene, 9 How. 213; [Thoreson v. Minneapolis, &c. Works, 29 Minn. 341 ;] or to do first one and then the other, Mondel u. Steel, 8 M. & W. 858, 872. See Bealt v. Brown, 12 Md. 550; Davis v. Hedges, L. R. 6 Q. B. 687. But see ill. 225, n. 1; O'Connor v. Varney, 10 Gray, 231 ; Fab- brizcotti v. Launitz. 3 Sandf. 743. See an article on Recoupment, 7 Am. Law Rev. 389. For the measure of damages for breach of a contract to sell, see Engell v. Fitch, L. R. 4 Q. B. 659 ; L. R. 3 Q. B. 314 ; explaining Flureau v. Thornhill, and ap- proving the general rule laid down in Rob- inson V. Harman, 1 Exch. 850, 855, that when a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situa- tion, with respect to damages, as if the contract had been performed. [Wigsell v. School for Indigent Blind, 8 Q. B. D. 357 ; Waddell v. Blockey, 4 Q. B. D. 678;] Bain i;. Fothergill, L. R. 6 Ex. 59 ; [7 L. R. H. L. 158. See Wall v. City of London, &c. Co., 9 L. R. Q. B. 249,] [695] *480 OF PERSONAL PROPERTY. [PART V. back the price. (6) He cannot deal with the article purchased after discovery of fraud in a sale, without losing his right of 108), it was implied, that in the sale of manufactured goods they should be merchant- able, or fit for some purpose. In Gray «. Cox, 4 B. & C. 108, Lord Tenterden held, that if a commodity be sold for a particular purpose, there was an implied warranty that it should be reasonably fit for that purpose. Lord Ellenborough, in Bluett u. Osborne, 1 Stark. 384, expressed himself to the same effect ; and in Jones v. Bright (5 Bing. 533), and Shepherd v. Pybus, 3 Mann. & Gr. 868, the court of C. B. estab- lished the same doctrine. The rule is not universally applied, but it approaches very near to the estabUshment of an implied warranty in every case. As yet it is the usage of trade, the manufactured goods, or the specific purpose, that raises the warranty. But the principle would apply equally to the sale of a horse for a par- ticular purpose, as for a carriage, or to carry a female ; and some of the American cases have taken hold of the new English doctrine, and shown a disposition to domesticate it. Thus, in Osgood v. Lewis, 2 Harr. & G. 495, and in Van Bracklin t;. Fonda, 12 Johns. 468, and in Moses v. Mead, 1 Denio, 378 ; and by Cowen, J., in Hart D. Wright, 17 Wend. 267, it was held, that on the sale of provisions for imme- diate domestic use, there was an implied warranty that they were wholesome ; but if provisions be sold as merchandise, and not for immediate consumption, there is no implied warranty of soundness. lb. In Gallagher u. Waring, 9 Wend. 20, it was held, that on a sale of cotton in bales, without sample or examination, and when the inspection of the article was equally accessible, and its quality equally unknown to both parties, there was an implied warranty that the article was merchantable. So, in the case of Harmony v. Wager (N. Y. Superior Court, April, 1836), on a sale by a commission merchant, of barilla, it was held, that as the defendant had not an oppor- tunity (the article being in bales, and its intrinsic merits equally unknown to both parties) to examine the bulk of the article sold, he was entitled to expect a merchant- able article ; and that having bought, with the knowledge of the seller, the article for a particular purpose, he was entitled to an article which would answer for that (6) Fielder v. Starkin, 1 H. Bl. 17 ; Weston v. Downes, Doug. 23 ; Towers v. Bar- rett, 1 T. R. 133; Curtis i'. Hannay, 3 Esp. 82; Kellogg v. Denslow, 14 Conn. 411 ; Patteshall v. Tranter, 4 Nev. & Mann. 649; 3 Ad. & El. 103, s. c. In this last case the decision in Fielder v. Starkin, that an action will lie on a breach of warranty of soundness of a horse sold, though it be not returned, and thougli notice of the unsoundness be delayed, was held to be sound law. Franklin v. Long 7 Gill & J. 407; Boorman v. Jenkins, 12 Wend. 566; Waring v. Mason, 18 id. 426. ToJ;he same purpose it has been held that if the chattel had a defect fraudulently concealer!, the vendee has his election either to keep it, and sue for damages, or to return, or offer to return, it within a reasonable time, and rescind the contract. Hoggins u. Becraft, 1 Dana (Ky.), 30. The vendor, after notice that the horse warranted sound is unsound, and when an ofier is made to return him, and the vendee sells him, is answerable for the difference of price, and the keep of the horse for a reason- able time. Chesterman v. Lamb, Nev. & Mann. 196. In Street v. Blay, 2 B. & Ad. 456, it was held that the vendee could not rescind the sale and return the property if the sale was without fraud. Cowen, J., in Gary v. Gruraan, 4 Hill (N. Y.), 625, s. p. He has only an action on his warranty, Sedgwick on Damages, 290 ; and it is now well settled, he observes, ib. 290, that the rule of damages is the difference between the actual value and the value the article would have possessed if it had conformed to the warranty. As to the measure of damages on breaches of contract, it seems not to be explicitly settled whether in the case of a horse sold and warranted sound, [696] LECT. XXXIX.] OP PERSONAL PROPERTY. *480 action, (e) An offer to return the chattel in a reasonable time, on breach of warranty, is equivalent in its effect upon the purpose. These last cases go quite so far at least as any of the English eases, and trench deeply upon the plain maxim of the common law, caveat emptor; and I cannot but thinlc that the old rule, and the old decisions down to that of Sei.xas v. Wood, were the safest and wisest guides ; and that the new doctrine, carried to this extent, will lead to much difficulty and vexatious litigation in mercantile business. In Hart V. Wright, 17 Wend. 267, Judge Cowen learnedly revievvs the cases on the subject, and the conclusion of the court is justly and spiritedly in favor of the old rule of the common law, in contradiction to the rule of the civil law ; and he says it is the American doctrine, and emphatically so in New York. C. J. Bronson, in Moses v. Mead, 1 Denio, 378, is of the same opinion. On a. general sale of merchandise for a sound price, there is no implied warranty that the article is fit for merchantable or manufacturing purposes. A warranty is not raised by a sound price alone, except under peculiar circumstances, as where there is a written description as to kind or quality, or goods of a certain description are contracted for, or perhaps in some other peculiar cases. So, again, in the case of Waring v. Mason, 18 Wend. 425, the Chancellor and Mr. Senator Paige expressed themselves decidedly in favor of the common-law doctrine ; and in the case of Wright v. Hart, in error from the Supreme Court to the Court of Errors (ib. 449), Chancellor Walworth and Mr. Senator Tracy gave a strong sanction to the argument of Judge Cowen, in support of the common- law doctrine of caveat emptor, and the rule of the civil law was rejected. The com- mon law on this point is now reinstated in the jurisprudence of New York. C. J. Gibson, also, in the Pennsylvania case of MTarland v. Newman, September, 1839, Law Reporter, ii. 301 ; 9 Watts, 55, supports this common-law doctrine of caveat emptor, on the sale of chattels, in cases without fraud, misrepresentation, or war- which proves to have been unsound, and is resold by ,the buyer at a reduced price, the measure of damages is to be the difference between the original price and the price the horse sold for, or between the price the horse sold for and the value of the horse, if sound, going far beyond tlie original price. The dictum of Lord Eldon, in Curtis v. Hannay, 3 Esp. 82, is in favor of the actual value of the horse, if sound, at the resale ; but Lord Loughborough, in Fielder v. Starkin, 1 H. Bl. 17, is in favor of the value, as ascertained by the orignal agreement, and tliis would seem to be in harmony with the rule of damages on the covenant of warranty in the sale of land. The general rule is well settled, that in a suit by vendee for a breach of contract on the part of the vendor, for not delivering an article sold, tlie measure of damages is the price of the article at the time of the breach. The contract price, on the one hand, and the rise subsequent to the breach, are both to be disregarded. Mr. Sedgwick, in his Treatise on the Measure of Damages, 266, says, that in this place, the author of the Commentaries appears to have overlooked the distinction running through the cases, resulting from the payment of the price beforehand, and which distinction is, that if the price be not advanced beforehand, the measure of damages is the value of the article contracted for at the time it was to be delivered, but if the price be pre- viously advanced, the contract price is not the rule of damages, but the highest (c) Campbell v. Fleming, 1 Ad. & El. 40. A party defrauded in a contract has his choice of remedies. He may stand to the bargain, and recover damages for the fraud, or he may rescind the contract, and return the thing bought, and receive back what he paid or sold. [697] *480 OP PERSONAL PROPERTY. [PABT V. remedy, to an offer accepted by the seller, and the contract is rescinded, and the vendee can sue for the purchase-money in ranty, understandingly made, with distinguished strength and success. In South Carolina (as see infra, 481), the prior doctrine of the English law is adhered to in a case analogous to the one in New York. In the London Law Magazine, No. 7, p. 192-197, this subject is fully and ably discussed. Again, the Supreme Court of New York, in Howard o. Hoey, 23 Wend. 350, has strongly enforced the distinction between executed and executory contracts. It has declared, that in contract of sale of an article of merchandise at a future day, where tliere is no selection or setting apart at the time of specific articles, so as to-pass the property m prcesenti, merchant- able qmdity, bringing the average market price, is intended. In the case of an exe- cuted sale, an express warranty of quality is necessary to bind the vendor in the absence of fraud. Moses v. Mead, 1 Denio, 878. But if the sale be executory, or to deliver an article not defined at the time, on a future day, there is an implied war- ranty that the article shall be at least of medium quality or goodness. The rule, in such a case, of caveat venditor, and not caveat emptor, governs. If the thing comes short of being merchantable, it may be returned after the vendee has had reasonable time to inspect it. " Suitableness," say the court, " enters into every promise to deliver articles of manufacture." In this case the court seems to relax from the severity of the doctrine in 17 and 18 Wend, and to repose upon the modem and milder English rule. It is to be regretted that the rule (whatever it may be) con- cerning the application of implied warranties in the sale of personal property, is not more certain and stable. In Sutton i?. Temple, 12 M. & W. 52, it was held, after much discussion, that on a demise of land simply for pasture of cattle for a certain term, at a fixed rent, there was no implied warranty that the pasture should be fit for that purpose, though where a contract was for a specific chattel, for a specific purpose, there was an implied obligation that it should be fit for that purpose. Hart <;. Windsor, 12 M. & W. 68, s. p. ; Sedgwick on Damages, 289-300, has col- lected the cases on the rule of damages on warranties contained in sales, and they are in perplexing contrariety ; and the masterly writers on the civil law, to whom Mr. Sedgwick refers, leaves us in equal difficulty, and without any certain guide or definite rule. lb. 300-303. value of the article at the time of trial. The cases that declare or countenance this distinction are Shepherd v. Johnson, 2 East, 211 ; M'Arthur v. Seaforth, 2 Turn. 257; Downes v. Back, 1 Starkie, 318; Harrison i supra], cited in Wharton's Dig. of Penn. Cases, tit. Vendor, n. 76 ; Lobdell ^. Hopkins, 5 Cowen, 516 ; Chipman's Essay on the Law of Contracts, 29, 30 ; Goodwin v. Holbrook, 4 Wend. 380. The Code Kapoleon, in respect to the contract of sale, and in respect to all other contracts, seems to be, in a great degree, a concise abridgment or summary of the writings of Pothier. M. Dupin, In a dissertation prefixed to the edition of the works of Pothier, published in Paris in 1827, says, that tliree fourths of the Code Civil have been literally extracted from Pothier's treatises. The utility of the latter, and their great merit in learning, perspicuity, and accuracy of illustration are far from being superseded or eclipsed by the simplicity, precision, and brevity of the code. The aid of the French civilians of the former school has been found as indispensable as ever. The Code Napoleon and Code de Commerce deal only in general rules and regulations. They are not sufficiently minute and provisional to solve, without judicial discussion, the endless questions that constantly arise in the business of life. The citation of adjudged cases, M. Dupin says, is so very com- mon in the French courts, that there seems to be an emulation who shall cite the most. (Jurisprudence des Arrets, Pref. ) Between the years 1800 and 1827, there were upwards of two hundred original treatises and compendiums, upon different titles of the law, published in France. M. Toullier has undertaken a commentary upon the French Civil Law, according to the order of the Code, which has already extended to twelve volumes, and in 1839, his Droit Civil, the 5th edition, was pub- lished at Paris in fifteen volumes ; and, as far as I may be permitted to judge, from a very imperfect knowledge of the Frencli law, he seems to rival even Pothier him- self in tlie comprehensiveness of his plan, and in the felicity of its execution. In 1844, the Cours de Droit Franpais suivant le Code Civil, by M. Duranton, was pub- lished at Paris in twenty-two volumes. yi Delivery.. — The term "delivery" is required in the performance of the con- unfortunately used in several different tract of sale. The last seems the most senses ; e. jr., as equivalent to passing of proper sense of the term. See Benjamin title, to actual receipt under the statute on Sale, §§ 674-676. For the general rule of frauds, to transfer of possession to de- stated in the text, see Benjamin on Sale, feat creditors, and to the acts of delivery § 679 et seq. [ 740 ] LECT. XZXIX.] OP PERSONAL PROPERTY. * 507 tracts for a thing certain, as for all the wine of the vintage of the vendor, and a contract for anything indeterminate, as a pair of gloves, a certain quantity of corn, wine, &c. In the former case, the delivery is to be at the repository where the wine was at the time of the contract ; and this is reasonably sup- posed to be the understanding of the parties, as the purchaser would then be able to see that he had the whole quantity agree- ably to the contract. In the latter case, the property is to be delivered at the debtor's place of residence, unless the parties lived near each other, and the thing be portable ; in which case the place of payment would be the creditor's residence, (a) The common law on the subject of the delivery of specific articles which are portable, makes a distinction between the contract of sale, and the contract to pay a debt at another time in such arti- cles. We have seen, that in the contract of sale, the delivery is to be at the place where the vendor has the article ; but in the other case, the weight of authority would seem to be in favor of the rule, that the property was to be delivered at the creditor's place of residence, though the cases on the subject are not easily reconcilable with each other. Lord Coke lays down the rule, (i) that if the contract be to deliver specific articles, as wheat or timber, the obligor is not bound to carry the same abroad, and seek the obligee (as in the case of payment of money), but he must call upon the obligee before the day, to know where he would receive the articles, and they must be delivered, or the obligor must be ready and able to make the delivery, at the place designated by the obligee, (c) This doctrine was admitted in the case of Aldrich v. Albee, (d) in which it was declared, that if * no place be * 507 (a) Pothier, Traits des Oblig. noe. 512, 513 ; Bradley v. Farrington, 4 Ark. 532. (6) Co. Litt. 210, b. (c) In the ease of the payment of money, the old law was declared, as late as the case of Smith v. Smith, 2 Hill (N. Y.), 351, that if no place of payment be agreed on, the party who is to pay must seek the other, if within the State ; and a tender at his residence, in his absence, is not good. ((/) 1 Greenl. 120. In the subsequent case, in the same court, of Bixby v. Wliit- ney, 5 id. 192, it was declared to be well settled, that where no place is appointed for the delivery of specific articles, the obligor must go before the day of payment to the obligee, and know what place he will appoint to receive them. The first act is to be done by the debtor, and if he omits to do it, he is in default. See also Bean v. Simpson, 16 Me. 49 ; Howard u. Miner, 20 id. 325, and Mingus v. Pritchet, 3 Dev. (N. C.) 78, 8. p. [741] * 608 OP PEESONAL PROPERTY. [PART V. I mentioned in the contract, to deliver specific articles (and which in that case were hay, bark, and shingles), the creditor had the right to name the place. It is evident, however, that this rule must be received with considerable qualification, and it will depend, in some degree, upon the nature and use of the arti- cle to be delivered. The creditor cannot be permitted to appoint an unreasonable place, and one so remote from the debtor that the expense of the transportation of the articles might exceed the price of them. If the placsi intended by the parties can be inferred, the creditor has no right to appoint a different place. But if no place of performance be designated, and none can be clearly inferred from collateral circumstances, it seems to have been again admitted that the creditor may designate a reasonable place for the delivery of the articles, (a) Mr. Chipman (6) states it as a rule of the common law, well understood and settled in Vermont, that if a note be given for cattle,, grain, or other port- able articles, and no place of payment be designated in the note, the creditor's place of residence, at the time the note is given, is the place of payment. The same rule is declared in New York, when the time, but not the place, of the payment of the portable article is fixed, (c) If the article be not portable, but ponderous and bulky, then Lord Coke's rule prevails, and the debtor must seek the creditor, or get him to name a place ; and if no place, or an unreasonable one, be named, the debtor may deliver the articles at a place which circumstances shall show to be suitable and convenient for the purpose intended, and pre- * 508 sumptively in the contemplation * of the parties when the contract was made, (a) There is a material difference in the reason of the thing, between a tender of cumbersome goods, and those which are portable ; and the same removal from one place to another is not equally required in the two cases. (6) There is another class of cases, in which the position is assumed, that [a) Currier v. Currier, 2 N. H. 75. (6) Essay on the Law of Contracts for the Payment of Specific Articles, 25, 26. (c) Goodwin v. Holbrook, 4 Wend. 377. If the place of payment of specific arti- cles be at the election of the payee, it is a privilege, which, if not exercised in a reasonable time, is waived, and the debtor may elect the place, and there tender the articles and give notice to the payee. Adra. of Peck v. Hubbard, 11 Vt. 612. (a) Chipman's Essay on the Law of Contracts for the Payment of Specific Arti- cles, 27 ; Howard v. Miner, 20 Me. .S25. (6) Stone v. Gilliam, 1 Show. 149. [742] LECT. XXXIX. J OP PERSONAL PEOPEET-X. * 508 if the parties have not designated any particular place of delivery, it is to be at the debtor's residence, or where the property was at the time of the contract; as in the case of a note payable in farm produce, without mentioning time or place, the place of demand and delivery is held to be at the debtor's farm, (e) It is likewise adjudged, that where a person in the character of a bailee prom- ises to deliver specific goods on demand, though the demand may be made wherever he may be at the time, his offer to deliver at the place where the property is, or at his dwelling-house or place of busiiiess, will be sufficient. ((^) If the debtor be present in person or by his agent, and makes a tender of specific articles at the proper time and place, accord- ing to contract, and the creditor does not come to receive them, or refuses to accept them, the better opinion is, that if the article be properly designated and set apart (and such designation is necessary), (e) the debt is thereby discharged. (/) If the debtor be sued, he may plead the tender and refusal, and he will be excused by the necessity of the case from pleading uncore prist, and bringing the cumbersome articles into court ; {g) and it is not like the case of a tender of money, which the party is bound (c) Lobdell v. Hopkins, 5 Cowen, 516. So also in Minor v. Miohie, Walker (Miss.), 24, it was held, that if no time or place be specified in the contract for the delivery of specific articles, the debtor is not bound to seek the creditor, but the latter, to en- title himself to sue, must allege and prove a special demand. This is more reason- able than Lord Coke's rule. The law relative to the practical execution of contracts for payment in goods or specific articles is well expounded in Chipman on Contracts. See also Roberts v. Beatty, 2 Penn. 65; Cowen, .1., 20 Wend. 199; Barr v. Myers, 3 Watts & S. 295. (d) Scott u. Crane, 1 Conn. 255 ; 5 id. 76 ; Mason •!. Briggs, 16 Mass. 453 ; Slin- gerland v. Morse, 8 Johns. 474. (e) Wyman v. Winslow, 2 Fairf. 398. (/) Co. Litt. 207, a; Peytoe's Case, 9 Co. 79, aj Bro. tit. Touts temps prist, pi. 31; Smith v. Loomis, 7 Conn. 110; Garrard v. Zachariah, 1 Stewart (Ala.), 272; Thaxton v. Edwards, ib. 524 ; Savary v. Goe, 3 Wash. C. C. 140 ; Robinson v. Batch- elder, 4 N. H. 46 ; Lamb v. Lathrop, 13 Wend. 95. (g) Hio. ubi supra. In Johnson u. Baird, 3 Blackf. (Ind.) 182, in an action on a. promise to pay a certain sum in hats, at a certain time and place, it was lield to be a good defence, that the defendant had the hats ready for delivery at the time and place, and that no person was present to receive them. But the plea also contained the uncore prist, and the court said that it was necessary that the plea should state where the articles were, and that they were either left at the place properly desig- nated, or that they were retained, and were still ready for delivery. Dorman v. Elder, ib. 490; Fleming v. Potter, 7 Watts, .380, a. p. No demand was held to be necessary in the latter case, but the defendant must show that he was ready at the time and place. *509 OP PERSONAL PROPERTY. [PAKT V. to keep good, and on a plea of tender to bring the money *509 into court. The creditor * is entitled to the money at all events, whatever may be the fate of the plea ; (a) and there is equal reason that he should be entitled to the specific articles tendered. But in Weld v. Hadley, (6) it was decided, after a very able discussion, that on a tender and refusal of spe- cific articles, the property did not pass to the creditor. This was contrary to the doctrine declared in other cases ; (e) and the weight of argument, if not of authority, and the analogies of the law, would appear to lead to the conclusion, that on a valid ten- der of specific articles the debtor is not only discharged from his contract, but the right of property in the articles tendered passes to the creditor, (d") The debtor may abandon the goods so tendered ; but if he elects to retain possession of the goods, it is in the character of bailee to the creditor, and at his risk and expense, (e) With respect to part performance of an entire contract for the sale and delivery of personal property of a given quantity, at a specified price and time, or for the performance of certain labor and service, a delivery of a less quantity than that agreed on, or a refusal or omission to perform the entire labor or service, with- out any act or consent of the other party, will not entitle the party who has delivered in part, or performed in part, to recover any compensation for the goods which have been delivered, or the {n) Le Grew v. Cooke, 1 Bos. & P. 332. (b) 1 N. H. 295. (c) Nichols V. Whiting, 1 Root, 443 ; Rix v. Strong, ib. 55 ; Slingerland u. Morse^ 8 Johns. 474. (d) Code Napoleon, n. 1257; Pothier, Traits des Oblig. n. 545; Smith v. Loomis, supra; Mitchell v. Merrill, 2 Blackf. (Ind.) 87; Lamb v. Lathrop, 13 Wend. 95. In Bailey v. Simonds, 6 N. H. 159, it was held, that if a note be payable in goods at a particular place, on demand, the maker must have the goods iilways ready at tlie place. Mason v. Briggs, 16 Mass. 453, a. p. (e) Mr. Chipman, in the able essay to which I have already referred, supposes that the debtor may sell the goods which he so retains, if they be perishable articles, and he will be accountable for the net proceeds. He has reasoned well, and upon sound legal principles, in support of his position, that on the tender and refusal of specific articles the debt is discharged on the one hand, and the title to the property transferred to the creditor on the other. In Illinois, it is declared by statute, that if no place be specified in the written contract for the payment or delivery of specific articles, the obligor may tender them at the payee's place of residence. But if the article be too ponderous, or the payee has no known place of residence, the obligor may tender them at his own place of residence. Such tender vests the property in the creditor. Revised Laws of Illinois, edit. 1833, pp. 484, 485. [744] LECT. XXXIX.] OF PERSONAL PROPERTY. * 509 service which has been performed. The entire performance is a condition precedent to the payment of the price, and the courts cannot absolve men from their legal engagements, or make con- tracts for them. (/) (/) Waddington v. Oliver, 5 Bos. & P. 61 ; M'Millan ;,•. Vanderlip, 12 Johns. 165 ; Jennings v. Camp, 13 Johns. 94; Champlin w. Kowley, 13 Wend. 258; s. c. 18 Wend. 187 ; Mead v. Degolyer, 16 id. 632 ; Stark v. Parker, 2 Pick. 267 ; Olmstead V. Beale, 19 id. 528. See also sup-a, 258, and Steamboat Co. o. Wilkins, 8 Vt. 54; Hehn V. Wilson, 4 Mo. 41 ; Wooten u. Reed, 2 Sm. & M. 585; Givhan v. Dailey, 4 Ala. 336. The cases of Oxendale v. Wetherell, 9 B. & C. 386, and Britton v. Turner, 6 N. H. 481, considered the rule as rather stern, and relaxed its severity ; and in Mead v. Degolyer, above mentioned, Mr. Justice Cowen intimated that a court of chancery might, perhaps, feel itself driven to interfere in some of these hard cases, and it was repulsive to Lord Tenterden's ideas of justice, that if a man agreed to deliver two hu,ndred and fifty bushels of wheat by a certain day, fell short but one bushel, the vendee should get the two hundred forty-nine for nothing. But in Champlin v. Rowley, 18 Wend. 191, the chancellor repudiated the doctrine in the case of Oxendale v. Wetherell, with much severity. It is said to be now settled, that after a rescission and abandonment of a special agreement, compensation for partial performance may be recovered. Porter «. Woods, 3 Humph. (Tenn.) 60. On this vexed question of the riglit of a party to redress, who fails to perform an entire contract, except in part, the numerous and conflicting authorities, both Englisli and American, have been industriously collected by Mr. Sedgwick, in his very valuable Treatise on the Measure of Damages. The principal ones, besides those already referred to, are to be seen in that treatise, 219- 232, and found to be against any remedy, in 6 T. R. 320; 3 Taunt. 52; 2 Starkie, 256 ; 9 B. & C. 92 ; 2 Mass. 147 ; 2 Pick. 267, 332; 9 Johns. 327 ; 8 Cowen, 63 ; 18 Wend. 187. The condition precedent precludes the action. The cases in relaxation of the rule, besides those already referred to, are Buller, N. P. 139 ; 4 Bos. & P. 351, 5; 7 Pick. 181; 8 id. 178. If there has been any acquiescence in a part perform- ance, so as to benefit the party accepting, or the non-performance was owing to any act of the other party, or arose from inevitable necessity, it seems most reasonable, that if any benefit has been conferred, and no mala mens mingle with the default, a reasonable allowance should be made for the part performed. The decision of Par- ker, J., in Britton v. Turner, in 6 N. H. 481, is supported by very impressive remarks. It is to be observed, that as to the rule of damages for breach of contract in personal actions, the motive or animus of the party in default is disregarded, and the damages are limited to the pecuniary loss for the breach of the agreement, without reference to the fraud or malice of the party, for such considerations [belong ?] properly to actions on the case, or for deceit. Sedgwick on Damages, 206-212. Mr. Sedgwick says that the rule of damages in actions for breach of contract is now generally regulated by the discretion of the court, according to fixed principles, and tlie court will not allow an unconscio[nable] recovery, and that jurors have not an arbitrary discretion over the terms of the contract, and for this is cited 4 Bibb, 541 ; 3 J. J. Marshall, 35; 10 Mass. 459; 2 Brod. & B. 680; Sedgwick, 214, 215. Indeed, as Mr, Sedgwick has observed in another place, the settled tendency of our law, as well at all sound reasoning, is to reduce the measure of damages as far as possible, cases of tort and wrong excepted, to fixed legal rules. But the contradictions and variations in the multitudinous cases which are cited and dispersed throughout his treatise sliow a very great failure in the effort. [745] * OlO OP PERSONAL PROPERTY. [PART V. I have thus endeavored to mark the prominent and most prac- tical distinctions, on the very diffusive subject of the delivery requisite to pass the title to goods, or to take the case out of the operation of the statute of frauds. But even in this general view of the subject, it has been difficult to select those leading principles which were sufficient to carry us safely through the labyrinth of cases that overwhelm and oppress this branch of the law. * 610 * 8. Of the Memorandum Required by the Statute of Frauds. ■ — The statute of frauds, of 29 Car. II. c. 3, sec. 4, de- clared, that no action should be brought to charge any executor or administrator, upon any special promise, to answer damages out of his own estate ; (a) or to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person ; or to charge any person, upon any agreement made upon consideration of marriage ; (6) or upon any agreement that was not to be performed in one year, (c) unless there was (a) The New York Reyised Statutes, ii. 113, sec. 1, have improved upon the phraseology of the English statutes, by adding, or to pay the debts of the testator or intestate out of his own estate, [h) This did not apply to mutual promises to marry. Cork v. Baker, Str. 34; and in the New York Revised Statutes, ii. 135, sec. 2, this exception is expressly made. (c) The statute only applies to agreements which are, by express stipulation, not to be performed within a year. It does not apply to an agreement which does not appear from its terms to be incapable of performance within the year, nor to cases in which the performance of the agreement depends upon a contingency which may or may not happen within the year. Peter v. Compton, Skinner, -353 ; ToUey v. Greene, 2 Sandf. Ch. 91 ; Fenton «. Emblers, 3 Burr. 1278 ; Wells v. Horton, 12 B. Moore, 177 ; Moore v. Fox, 10 Johns. 244 ; M'Lees v. Hale, 10 Wend. 426 ; Peters v. Westborough, 19 Pick. 364; Lockwood v. Barnes, 3 Hill (N. Y.), 128. An inchoate performance within the year, under a parol agreement, is not sufBcient to take the case out of the statute. The statute excepts agreements only that are to be performed, that is, com- pleted witliin the year. Boydell v. Drumraond, 11 East, 142 ; Birch !'. Earl of Liver- pool, 9 B. & C. 392 ; Hinckley v. Southgate, 11 Vt. 428; Lockwood v. Barnes, 3 Hill {N. Y.), 128; Herrin v. Butters, 20 Me. 119; Johnson v. Watson, 1 Kelly, 348. The statute of frauds does not apply to executed contracts, which have been completely performed on^both sides. Nor does the statute apply to the case of goods sold and to be delivered within the year, but where the price was not to be paid until after the expiration of the year. Donellan o. Reed, 3 B. & Ad. 890 ; Holbrook v. Arm- strong, 1 Fairf. 31 ; Johnson c. Watson, 1 Kelly, 348. The design of the statute, said Lord Holt, was not to trust the memory of witnesses beyond one year. Lord Raymond, 317 ; and it was adjudged, in Broadwell v. Getman, 2 Denio, 87, that a parol agreement which was not wholly to be performed within a year, was void, even thoiigh one of the parties had a longer time than a year for the performance, and the authority of the decision in Bonelliin v. Reed was questioned and not acceded to. [746] LECT. XXXIX.J OF PERSONAL PROPERTY. * 511 some memorandum or note in writing of the agreement, signed by the party to be charged, or his agent. The statute in respect to the memorandum applied also to contracts for the sale of goods, wares, and merchandise', in cases where there was no de- livery and acceptance of part, or payment in part, or something in earnest given, (d) This statute is assumed to be the basis of the statute laws of the several states on this subject. It has been frequently reenacted in New York, and the last revision of the statute law of the state has not changed its force or con- struction, (e) and it applies equally to the grant or assignment of any existing trust in goods and things in action, as well as to lands. (/) The signing of the agreement by one party only is sufficient, provided it be the party sought to be charged. He is estopped by his signature from denying that the contract was validly executed, though the paper be not signed by the other party who sues for a performance, (^g} ^ It is sufficient, like- wise, if the note or * memorandum be made by a broker *511 employed to effect the purchase; and if he settles the bar- (d) The statute applies to the contract of sale of goods to be made and delivered within the year. Gardner v. Joy, 9 Met. 177. (c) New York Revised Statutes, ii. 113, sec. 1 ; ib. ii. 135, sec. 2 ; ib. ii. 136, sec. 3 ; ib. ii. 137, sec. 2. But the New York statute uses the word subscribed, instead of the word signed in the statute of Charles II. The Massachusetts Revised Statutes of 1836, and the Revised Laws of Illinois of 1833, and of Indiana, 1838, and of Connecti- cut, 1838, and of New Jersey, 1794, followed closely the words of tlie English statute of frauds. But in Pennsylvania, tlie provision in the 4tli section requiring a promise in writing to be lield for the debt, default, or miscarriage of anotlier, is not adopted. The New York statute contains a provision which puts an end to the question which has much agitated and divided the courts of law in England and in this country (see infra, iii. 121, 122). The consideration of the promise need not be expressed in the writing, but may be proved by parol. (/) It seems not to be settled in England whether stock be comprehended under the words goods, wares, and merchandise, in tlie 17th section of the statute. Pickering V. Appleby, Comyn, 354 ; Mussell u. Cooke, Prec. in Ch. 533 ; Colt v. Nettervill, 2 P Wms 308. See supra, 494, n. Treasury checks are held not to be included in the words. Beers u. Crowell, Dudley (Ga.), 28. But in Massachusetts it is held that a contract for the sale of manufacturing stock is within the statute of frauds Tisdale v. Harris, 20 Pick. 9. ig) Allen v. Bennet, 3 Taunt. 169 ; Lord Manners, in 2 Ball & B. 370 ; Sir William Grant, in 3 Ves. & B. 192 ; Sir Thomas Plumer, in 2 Jac. & Walk. 426 ; Flight o. Bolland, 4 Russ. 298; Ballard w. Walker, 3 .Johns. Cas. 60; Seton v. Slade, 7 Ves. 265 ; Clason v. Bailey, 14 Johns. 487 ; Douglass u. Spears, 2 Nott & M'C. 207 ; Palmer v. Scott, 1 Russ. & My. 391 ; Davis v. Shields, 26 Wend. 341. 1 Justice V. Lang, 42 N. Y. 493; Liverpool Bank v. Eccles, 4 Hurlst. & N. 139. [747] * 511 OP PERSONAL PEOPERTy. [PART V. gain, he is considered as agent for both parties, and the instrument is liberally construed without a scrupulous regard to forms, (a) The signature may be with a lead pencil, according to the prac- tice in cases of hurried business. The mark of one unable to write, or even a printed name, under certain circumstances, is a sufficient signature ; and if the name be inserted in such a man- ner as to have the effect of authenticating the instrument, it is immaterial in what part of it the name be found. (5) ^ The con- tract must, however, be stated witk reasonable certainty, so that it can be understood from the writing itself, without having recourse to parol proof, (c) Unless the essential teims of the sale can be ascertained from the writing itself, or by a reference con- tained in it to something else, the writing is not a compliance with the statute ; and if the agreement be thus defective, it can- not be supplied by parol proof, for that would at once introduce all the mischiefs which the statute of frauds and perjuries was intended to prevent, (d') (a) Goom v. Aflalo, 6 B. & C. 117. The agent under the statute must be a third person, and not one of the principals, and his authority may be by parol. Fare- brother V. Simmons, 6 B. & Aid. 333. (b) Stokes V. Moore, 1 Cox, 219; Selbyu. Selby, SMeriv. 2; Ogilvie v. Foljambe, ib. 53 ; Knight v. Crockford, 1 Esp. 190 ; Saunderson v. Jackson, 2 Bos. & P. 238 ; Schneider v. Norris, 2 Maule & S. 286; Clason v. Bailey, 14 Johns. 484; Thornton V. Kempster, 5 Taunt. 786 ; Penniman u. Hartshorn, 13 Mass. 87. (c) Bailey v. Ogdens, 3 Johns. 399; Cliampion u. Plummer, 4 Bos. & P. 252; Elmore v. Kingscote, 5 B. & C. 583. If a bill of parcels be delivered to and accepted by the purchaser, with his name in it, from the commission merchant, it is a sufficient memorandum of the sale of the goods within the statute of frauds. Batturs v. Sellers, 5 Harr. & J. 117. But a written agreement may be waived, and the terms of it varied by a subsequent parol agreement, for that becomes a new subsequent con- tract. Thomas v. Currie, Brevard's MSS. Kep. cited in Rice's Dig. tit. Agreement, sec. 117; Neil u. Cheves, 1 Bailey (S. C), 537. In Langford d. Cummings, 4 Ala. (n. s ) 49, it was declared that either the time or the place of performance fixed in a written contract may be changed or modified by a subsequent parol agreement. A mutual promise by parol may be waived, and the party discharged by parol, before any breach. King v. Gillett, 7 M. & W. 55 ; Medomak Bank v. Curtis, 24 Me. 36. (d) Parkhurst v. Van Gortlandt, 1 Johns. Ch. 280, 281 ; Abeel v. Radcliff, 13 Johns. 297; vide supra, 498. It was lield, in the cases of Towers v. Osborne, Str. 506, and Clayton v. Andrews, 4 Burr. 2101, tliat a contract for the sale of goods, to be thereafter produced by work and labor, was not within the statute of frauds, which only related to sales where the delivery was to be immediate, and the buyer imme- ' The signature must govern every relate and refer to, every part of the in- part of the instrument, and be so placed strument. Caton v. Caton, L. R. 2 H. L. as to show that it was intended to relate 127, 143 ; Durrell v. Evans, 1 Hurlst. & and refer to, and that in fact it does C. 174. [748] LBCT. XXXIX.J OP PERSONAL PROPERTY. * 513 *9. Of Sales of Goods, as affected by Fraud.l — Though * 512 there be a judgment against the vendor, and the purchaser has notice of it, that fact will not, of itself, affect the validity of the sale of personal property. But if the * pur- * 513 chaser, knowing of the judgment, purchases with the view and purpose to defeat the creditor's execution, it is iniquitous and fraudulent, notwithstanding he may have given a full price, for it is assisting the debtor to injure the creditor. The question of fraud depends upon the motive. The purchase must be lona fide, as well as upon a valuable consideration. The rule has diately answerable. In the one case, the coach was to be afterwards made, and in the other, the wheat was to be threshed ; and as the article contracted to be sold was to be first manufactured, or labor bestowed upon it, the contrfict might be deemed to be one for work or labor in making or preparing an article for delivery. These cases have been since somewhat questioned, and the latter went quite far with its distinction. It seems now to be settled that the statute of frauds extends to execu- tory as well as to executed contracts ; and that if the article sold existed at the time in solido, and was capable of delivery, the contract is within the statute of frauds but if the article is to be afterwards manuf ictured, or prepared by work and labor for delivery, the contract is not witliin the statute. Rondeau v. Wyatt, 2 H. Bl. 63 Cooper V. Elston, 7 T. E. 14; Smith v. Surman, 9 B. & C. 561 ; Gadsden v. Lance, 1 M'MuU. (S. C.) Eq. 87 ; Hight v. Ripley, 19 Me. 1.S7 ; Bennett v. Hull, 10 Johns. 364 Crookshank v. Burrell, 18 id. 58; Sewall v. Fitch, 8 Cowen, 215; Jackson v. Covert, 5 Wend. 1.39. These latter cases admit the distinction above stated to be well set tied, and that it goes to sustain the correctness of the decisions in Strange, if not in Burrow, though not entirely upon the ground assumed in them. And yet, in Garbutt V. Watson, 5 B. & Ad. 613, the decision of Clayton v. Andrews is strongly and justly shaken, as liaving pushed the distinction to an extreme of refinement ; and though, in the last case, the sacks of flour sold were not then prepared, but were to be got ready for delivery in a few weeks, yet the sale was held to be within the statute, and that though the flour was not ground at the time, it was still a contract for the sale of goods, and not for work and labor and materials found. This seems to be the most reasonable construction of such a contract. See also to the s. r. Downs v. Ross, 23 Wend. 270; and see, in Scott v. Eastern Co. R. Co., 12 M. & W. 33, where part of the goods are made and delivered, and the residue are to be manufactured according to order, the whole forms one entire contract, and the acceptance of part applies to the whole, so as to satisfy the statute of frauds. The Court of Appeals in Maryland, in Eichelberger o. M'Cauley, 5 Harr. & J. 213, followed, with some reluctance, the case of Clayton v. Andrews, and declared that it was not to be extended to cases where the work and labor to be done might be, of themselves, considered parts of the contract. The English statute of 9 Geo. IV. c. 14, entitled, " An act for rendering a written memorandum necessary to the validity of certain promises and engagements," has provided for tliis ckse, by declar- ing that the statute of frauds of 29 Car. II. c. 3, shall extend to all contracts for the sale of goods of the value of ten pounds and upwards, notwithstanding the goods may be intended to.be delivered at some future time, or may not, at the time of the 1 Aide, 482, n. 1. [749] * 514 OF PERSONAL PROPERTY. [PART V. been repeatedly declared and established, (a) y^ Whether it would be an act of fraud sufiBcient to vacate the contract, if the pur- chaser, knowing of his own insolvency and utter incapacity to make payment, but without using any device or contrivance to deceive the vendor, purchases goods of another, who is igno- rant of his insolvency, and sells them under the belief of the sol- vency as well as good faith of the buyer, is a question which * 514 * was raised, but left undecided, in Conyers v. Ennit. (a) It has been since decided in another case, (6) that the mere insolvency of the vendee, and the liability of the goods to immediate attachment bj- his creditors, though well known to himself, and not disclosed to the vendor, would not, of itself, avoid the sale. In that case there was no false assertion, or fraudulent misrepresentation or deceit practised, or concert, or secret agreement, with any other person, and there was no direct contract, be actually made, procured, or provided, or fit, or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery. It was said, in the last century, at Westminster Hall, that the statute of frauds of 29 Car. II. had not been explained at a less expense than one hundred thousand poiinds sterling. I should suppose, from the numerous questions and decisions which have since arisen upon it, that we might put down tlie sum at a. million and upwards. How hazardous it would now seem to be to attempt to recast the statute in new language, or to disturb the order and style of its composition, considering how costly its judicial liquidation has been, and how applicable its pro- visions are to the daily contracts and practical affairs of mankind ! It has been affirmed in England, that every line of it was worth a subsidy ; and uniform expe- rience shows how difficult it is, by new provisions, to meet every contingency, and silence the tone of sharp, piercing criticism, and the restless and reckless spirit of litigation. (a) Lord Mansfield, 1 Burr. 474 ; Cowp. 434 ; Dallas, C. J., 8 Taunt. 678; Seals v. Guernsey, 8 Johns. 446 ; Duncan, J., 7 Serg. & K. 89. (a) 2 Mason, 2.%. (b) Cross V. Peters, 1 Greenl. 376 ; [Mitchell v. Worden, 20 Barb. 25.3 ; Buckley c. Artcher, 21 Barb. 585. It has often been held that the vendor may repudiate a sale of goods which were purchased with a preconceived intention not to pay for them. Dow V. Sanborn, 3 Allen, 181 ; Fox v. Webster, 46 Mo. 181 ; Stewart u. Emerson, 52 N. H. 301 ; contra, Nichols v. Michael, 23 X. Y. 264 ; Backentoss ... Speicher, 31 Penn. St. 324 : Nichols f. Pinner, 18 N. Y. 295 ;] [Donaldson v. Farwell, 93 U. S. 631 ; Ex parte Whittaker, 10 L. R. Ch. 446.] y^ Beurmann v. Van Buren, 44 Mich, knowledge on the part of the purchaser 496 ; Carroll i-. Hay ward, 124 Mass. 120. of a fraudulent intent on the part of the Tlie same rule applies as to real property, seller will render the sale voidable, see Schmidt v. Opie, 33 X. J. Eq. 138; Prewit Dudley v. Danforth, 61 N. Y. 626; Leh- !•. Wilson, 103 U. S. 22 ; Mehlhop v. Pet- man v. Kelly, 68 Ala. 192. See Ferris v tibone, 54 Wis. 652. As to how far mere Irons, 83 Penn. St. 179. [750] LECT. SXXIX.] OP PERSONAL PROPERTY. * 514 evidence that the vendee knew at the time that he was insolvent. The decision was put upon the ground that the credit was, in fact, obtained without any fraudulent intent, and the validity of the sale would depend upon the decision of the question, whether there was fraud in fact, (c) If the vendee discovers that he is insolvent, and that it is not in his power to pay for the goods, the courts have allowed him to rescind the contract, and return the goods to the seller with ids assent, provided he did it before the cont);'act was consummated by an absolute delivery and acceptance, and provided it was done in good faith, and not with the colorable design of favoring a particular creditor. He cannot rescind the contract after the transit has ceased, and the goods have been actually received into his possession, and the rights of other creditors have at- tached, (c?) (c) It was settled in the Court of Errors in New York, in Lupin v. Marie, 6 Wend. 77, tliat where goods are delivered unconditionally to the vendee, a mistake or error as to his solvency will not invalidate the contract, or entitle tlie vendor to relief, for tlie vendor of personal property has no lien on the goods sold and delivered. But if there be fraud, in fact, on the part of the buyer, in respect to the purchase, the vendor may elect either to aflSrm the sale and sue for the price, or to treat the sale as void and follow the goods or proceeds even into the hands of a third person, who received them without paying any new consideration. Lloyd v. Brewster, 4 Paige, 537 ; Gary v. Hotailing, 1 Hill (N. Y.), ,311; [Kayser v. Sichel, 34 Barb. 84;] George v. Kimball, 24 Pick. 241. If, however, the purchaser from the fraudulent vendee has actually paid for the goods, he will hold them. See the last case, supra. A fraudu- lent purchase of goods gives no title as against the vendor, nor will such a pur- chaser's transfer of the goods, to pay or secure a bona fide creditor for a preexisting debt, vest a title in the creditor. But if the under or second purchaser obtains tlie goods bona fide, in the usual course of trade, by giving value, or incurring responsi- bilities on the strength of a pledge of the goods, he may hold the goods as against the original vendor. Root v. French, 13 Wend. 576; Trott u. Warren, 2 Fairf. 227; Mowrey v. Walsh, 8 Cowen, 238 ; Rowley v. Bigelow, 12 Pick. 307. But these latter cases are questioned in Ash v. Putnam, 1 Hill (N. Y.), 306, 7, and, with the exception of commercial paper, the rule is, that he who has acquired no title can convey none. Vide supra, 324, note. In the jurisprudence of some parts of continental Europe, it is admitted that there exists a presumption juris et de jure of fraud, if the buyer becomes insolvent within a few days (and which, in some cases, has been fixed at three), after receiving the goods. Voet, Com. ad Pand. 6. 1. 14, cites several authorities in sup- port of this rule. In 1736, it was attempted to be introduced into the law of Scotland as a rule, that the cessiofori, within three days after the purchase, should be received as evidence per se of fraud ; but such a strict and precise test was finally rejected, in 1788, in the case of Allan & Stewart v. The Creditors of Stein, 1 Bell's Coram. 244-248. (rf) Barnes o. Freeland, 6 T. R. 80 ; Richardson v. Goss, 3 Bos. & P. 119 ; Neate V. Ball, 2 East, 117; Dixon i/. Baldwin, 5 id. 175; Salte v. Field, 5 T. R. 211. In Neate v. Ball, Lord Kenyon said, it was much to be wished that, where goods con- [751] * 615 OP PERSONAL PROPERTY. [PART V. * 515 * (!•) Of Sales without Possession. — On the subject of fraudulent sales, another and a very vexatious question has arisen, as to the legal consequence and effect of an agree- ment between the parties at the time of the sale, that possession was not to accompany and follow the bill of sale of the goods. There is no doubt of its being evidence of fraud ; but the great point has been, whether the fraud which was to be inferred in such a case, was an inference of law to be drawn by the court, and resulting inevitably from the -fact, or whether the fact was only evidence of fraud to be drawn by the jury, and susceptible of explanation. The history and diversity of the decisions on this subject form a curious and instructive portion of our jurisprudence. By the English statutes of 3 Hen. VII. and 13 Eliz. c. 5, which have been reenacted in New York, (a) and the essential provi- sions of which have been adopted generally throughout the United States, all conveyances of goods and chattels not made hona fide and upon good consideration, but in trust for the use of the person conveying them, or made to delay, hinder, or defraud creditors, are declared to be void ; and it is everywhere admit- ted (J) that the statutes of fraud of 13 and 27 Eliz. were declaratory of the principles of the common law ; and the deci- sions of the English courts are, therefore, applicable to questions of constructive fraud arising in this country, (c) Twyne's case, (c^) which arose in the Star Chamber in the 44th Eliz., is the basis of the decisions on the question of fraud aris- ing from possession being retained by the vendor. Among other indicia of fraud upon which the court relied, tinned in bulk, and discernible from the general mass of the trader's property at the time of bankruptcy, they could be returned to the original owners who had received no compensation for them, but that it could not be done without breaking in upon the whole system of the bankrupt laws. (a) Vide supra, 440. (6) Lord Mansfield, Cowp. 434; Marshall, C. J., 1 Cranch, 316; Robertson v. Ewell, 3 Munf. 1 ; Story, J., 1 Gall. 423. (c) By constructive frauds are meant such contracts or acts as, though not orig- inating in any actual evil design or contrivance to perpetrate a positive fraud or injury upon other persons, are yet, by their tendency to deceive or mislead other persons, or to violate public or private confidence, or to impair or injure the public interests, deemed equally repreliensible with positive fraud, and therefore are pro- hibited by law, as within the same reason and mischief as contracts and acts done malo animo. Story's Coram, on Equity Jurisprudence, 261. {d) 3 Co. 87, 8. r. ; infra, 532, note. [752] LECT. XXXIX.J OP PERSONAL PROPERTY. * 517 * and adjudged the deed fraudulent in that case, a prom- * 516 inent one was, that the vendor, after a bill of sale of chattels for a valuable consideration to a creditor, continued in possession, and exercised acts of ownership over the goods. Afterwards, in Stone v. Grubham, (a) upon a bill of sale of chattels, being a lease for years, the vendor continued in posses- sion ; but as the convej'ance was only conditional upon payment of money, it was held that the possession did not avoid the sale, as by the terms of the deed the vendee was not to have posses- sion until he had performed the condition. The rule was ex- plicitly declared in Sheppard's Touchstone, in the time of James I., that if a debtor secretly made a general deed of his goods to one creditor, and continued the use and occupation of the goods as his own, the deed was fraudulent, and void against a sub- sequent judgment and execution creditor, notwithstanding the deed was made upon good. consideration. (J) Again, in Bucknal V. Roiston, (c) a bill of sale of goods was given by way of secur- ity or pledge for money lent, and a trust in the vendor to keep the goods, and sell them for the benefit of the vendee, appeared on the face of the deed ; and for that reason it was held by the lord chancellor not to be fraudulent. One of the counsel in that case observed, that it had been ruled forty times in his experi- ence, at Guildhall, that if a man sells goods, and still continues in possession as visible owner of them, the sale was fraudulent and void as to creditors. The case of a mortgage of goods was afterwards held, in Ryall v. Itowles, (d) not to form an exception to the general rule recognized in former cases. It was declared by very strong authority, in that case, that a mortgagee of goods, permitting the mortgagor to keep possession, had no specific lien against general assignees under a commission of bankruptcy ; and he was understood to confide in the personal credit of the vendor, and not in any security. Though * that case was * 517 decided upon the Bankrupt Act of 21 James I., and not upon the statutes of Elizabeth, the reasoning of the court, relative to the distinction between absolute and conditional sales and mortgages, was founded on general principles applicable to every case. It was the doctrine of the case, that in a mortgage of (a) 2 Bulst. 225. (6) Shep. Touchstone, 66. (c) Preo. in Ch. 285. (d) 1 Vea. 348 ; 1 Atk. 165. VOL. n.- 48 [753] * 518 OP PERSONAL PROPERTY. [PART T. goods the mortgagee takes possession : and that there was no reason, unless in very special cases, why an absolute or condi- tional vendee of goods should leave them with the vendor, unless to procure a collusive credit. There was no distinction, it was admitted, under the. 13 Eliz., between conditional and absolute sales of goods, provided they were fraudulent ; and continuance in possession by the mortgagor was fraudulent at common law, and void by the statute of Elizabeth. The doctrine of that case was powerfully sustained by Lord Mansfield, in Worseley v. De Mattos §• Slader. («) That case arose under the Bankrupt Act of 21 James I., and it was held by the K. B. that a mortgage of goods, with possession retained by the mortgagor, was fraudulent in law, equally as it would be upon an absolute sale. To give a creditor priority by such a mortgage, when the mortgagor is allowed to appear and act as owner, is enabling him to impose upon mankind by false appear- ances ; for where possession is not delivered, goods may be mort- gaged a hundred times over, and open a plentiful source of deceit. But in Cadogan v. Kennett, (6) where household goods, by settle- ment before marriage, in consideration of the marriage, and of the wife's marriage portion, were conveyed to the trustees in trust for the settler for life, remainder to his wife for life, and remainder to the sons of the marriage, it was held that those goods were protected from execution in favor of a creditor existing at the time of the settlement though the grantor continued in posses- sion of the goods. The transaction was fair and honest in. point of fact, and it was part of the trust that the goods should *518 continue in the house. * Other subsequent cases have established the rule that the wife's goods may, before mar- riage, be conveyed to trustees with her husband's assent, for her use during coverture, and such property will not be liable to his debts, (a) Again, in Edwards v. Harhen, (6) the K. B. laid down the principle emphatically, that if the vendee took an absolute bill of sale, to take effect immediately by the face of it, and agreed to leave the goods in possession of the vendor for a limited time, such an absolute conveyance, .without the posses- la) 1 Burr. 467. (b) Cowp. 432. (a) Haselinton v. Gill, 24 Geo. III. ; 3 T. R. 620, n. ; Jarman v. Woolloton, 3 id. 618. (6) 2 T. R. 587. [754] LECT. XXXIS.] OP PERSONAL PROPERTY. * 519 sion, was such a circumstance per se as made the transaction fraudulent in point of law. It was admitted, however, that if the want of immediate possession be consistent with the deed, as it was in Bucknal v. Roiston, and Lord Cadogan v. Kennett, and as it is if the deed be conditional, and the vendee is not to have possession until he has performed the condition, the sale was not fraudulent, for there the possession accompanied and followed the deed within the meaning of the rule. After the English rule on this subject had been thus discussed, declared, and settled, it was repeatedly held that an absolute bill of sale of chattels, unaccompanied with possession, was fraudulent in law, and void as against creditors, (e) The change of posses- sion was required to be substantial and exclusive. But, on the other hand, there have been many exceptions taken, and many qualifications annexed to the general rule ; and it has become difficult to determine when the circumstances of possession, not accompanying and following the deed, are per se a fraud in the English law, or only presumptive evidence of fraud resting upon the facts to be disclosed at the trial. It certainly is not anything more, if the purchaser was not a creditor at the time, and * the goods were under execution, and the transaction was * 519 notorious, and not, in point of fact, either clandestine or fraudulent. In Kidd v. Rawlinson, (a) goods were purchased on execution by a stranger, and left in possession of the debtor for a tempo- rary, and honest, and humane purpose ; and as the parties did not stand in the relation of debtor and creditor, Lord Eldon, as C. J. of the C. B., held that the title was in the vendee. He admitted that a bill of sale of goods might be taken as security on a loan of money, and the goods fairly and safely left with the debtor. The decision in this case was conformable to one made by Lord Holt under similar circumstances ; (5) and Lord Eldon many years afterwards, when lord chancellor, (c) adhered to the same doctrine, and declared that possession of chattels by the vendor (c) Paget V. Perchard, 1 Esp. 205 ; Wordall v. Smith, 1 Campb. 332. In Eastwood V. Brown, Ryan & Moody, 312, Lord Tenterden dissented from tlie doctrine in Wor- dall V. Smith, and he held non-delivery into possession to be only prima facie evidence of fraud. (a) 2 Bos. & P. 59, (5) Cole V. Davies, 1 Ld. Raym. 724. Ic) Lady Arundel v. Phipps, 10 Ves. 145. [755] * 520 OP PERSONAL PROPERTY. [PART Y. was only prima facie evidence of fraud. If the property cannot be reached by bankruptcy, and the possession be according to the deed which creates the title, and the title be publicly created, it is not fraudulent. Other cases have protected the purchaser of goods seized on execution (and whether the purchase was from the sheriff or the defendant seemed to be immaterial) from sub- sequent executions, though the goods were suffered to continue in the possession of the defendant, on the ground that the trans- action was necessarily notorious to the whole neighborhood, and the execution notice to the world ; and the cases, being free from fraud in fact, were, under those circumstances, free from the infer- ence of fraud in law. (c?) The question of fraud in such cases is declared to be a question of fact for the jury. The purchaser of goods sold at auction, by trustee's, under an assignment by an insolvent debtor, is also protected, though he leave the * 520 goods in the possession of * the prior owner, provided it be a matter of fact to be found by a jury, that the assign- ment was not made with a fraudulent intent, and that the sale was notorious, (a) So, a person may lend his goods for another's use, and, except in cases of bankruptcy under the statute of 21 James I., they will be protected from the creditors of the person for whose use they were supplied. (5) In Steward v. Lombe, (c) as late as 1820, the court of C. B. even questioned very strongly the gen- eral doctrine in Edwards v. Marhen, that actual possession was necessary to transfer the property in a chattel, and the authority of the case itself was shaken. (cZ) The conclusion from the more recent English cases would seem to be, that though a continuance in possession by the vendor or mortgagor be prima facie a badge of fraud, if the chattels, sold or mortgaged, be transferable from (d) Watkins v. Birch, 4 Taunt. 823; Jezeph v. Ingram, 8 id. 838; Latimer V. Batson, 4 B. & C. 652. But in Imray v. Magnay, U M & W. 267, wliere goods were seized on execution, under a judgment fraudulent against creditors, and tliey remained unsold m the hands of tlie sheriflT, who received a subsequent execution, founded on a bma fide debt, and after notice of the fraud, neglected to sell on the latter writ, and returned it nulla bona, he was held liable to an action for a false return. (a) Leonai'd v. Baker, 1 JVIaule & S. 251. {h) Dawson v. Wood, 3 Taunt. 256. (c) 1 Brod. & B. 506. (d) The case was, however, corroborated in Reed o. Wilmot, 7 Bing. 583, and by Mr. Justice Lawrence, in 1 Taunt. 382. [756] LECT. XXXIX.J OP PERSONAL PROPERTY. * 521 hand to hand, yet the presiinjption of fraud arising from that cir- cumstance may be rebutted by explanations showing the transac- tion to be fair and honest, and giving a reasonable account of the retention of the possession. The question of fraud arising in such cases is not an absolute inference of law, but one of fact for a jury ; ^ and if the personal chattels savor of the realty, as, for instance, the engines, utensils, and machinery belonging to a manufacturing establishment, no presumption of fraud will arise from the want of delivery, (e) So a bill of sale of goods is good as between the parties, though no possession be given at the time, when the interests of third persons are not concerned. (/) The law on this subject is still more unsettled in this country than it is in England. * In the Supreme Court of the United States, the doc- * 521 trine in Edwards v. Harben has been explicitly and fully adopted ; and it is declared, that an absolute bill of sale is itself (e) Eastwood u. Brown, Ry. & M. 312 ; Wooderman v. Baldock, 8 Taunt. 676 ; Jezeph u. Ingram, ib. 838; Reed v. Blades, 5 id. 212; Hoffman v. Pitt, 5 Esp. 22; Armstrong v. Baldock, Gow, N. P. 33 ; Storer v. Hunter, 3 B. & C. 368 ; Martindale u. Booth, 3 B. & Ad. 498. On the other hand, where goods were seized on^. fa. and not sold by direction of the plaintiff, but left under the control of the defendant from March to November, tlie execution and levy were deemed fraudulent, and the goods were held to be liable to a subsequent^i.ya. Lovick v. Crowder, 8 B. & C. 132. (/) Warren v. Magdalen College, 1 Rol. 169; Martindale v. Booth, 3 B. & Ad. 505 ; Jones v. Yates, 9 B. & C. 532; Doe dem. Roberts v. Roberts, 2 B. & Aid. 369. A deed constructively fraudulent as to creditors may be good to every other intent and purpose, and stand both in law and equity. 1 Story, 864, 365, 371. 1 Hale D. Saloon Omnibus Co., 4 Drew. 500; Norton v. Doohttle, 32 Conn. 405 492, 496 ; 28 L. J. N. b. Ch. 777, 779 ; Benj. Robbins v. Oldham, 1 Duvall (Ky.), 28 Sales, 365,366; May on Vol. & Fraud. Enders K.Williams, 1 Met. (Ky.), 346 Conv. 106 ; Alton v. Harrison, L. R. 4 Ch. The Romp, Olcott, 196 ; [Dunning u. 622; Macdona v. Swiney, 8 Ir. C. L. 73, Mead, 90 III. 376; Capron <-. Porter, 43 83; Weaver v. Joule, 3 C. B. n. s. 309; Conn. 383; Hull v. Sigsworth, 48 Conn. Forkner u. Stuart, 6 Gratt. 197 ; Curd 258 ; Plaisted v. Holmes, 58 N. H. 293 V. Miller, 7 Gratt. 185 ; Peck v. Land, (semble). The possession intended is the 2 Kelly (Ga.), 1, 12 : Collins v. Myers, apparent, not the legal, possession. Sum- 16 Ohio, 547, 552 ; Freeman .;. Rawson, ner ,;. Dalton, 58 N. H. 295 ; Wright v. 5 Ohio St. 1 ; [Brett v. Carter, 2 Low. McCormick, 67 Mo. 426 ; Dempsey v. 458 ; Primrose u. Browning, 59 Ga. 69 ; Gardner, 127 Mass. 381 ; Kahn v. Good- Tilson V. Terwilliger, 56 N. Y. 273.] But hart, 81 Ky. — . As to what amounts to a the old rule is laid down as to real prop- change of possession, see Ross v. Draper, ertyin Lukins u. Aird, 6 Wall. 78; and 55Vt. 404; s. c. 45 Am. R. 624 and note ; as to personal property in Born v. Shaw, Tognini v. Kyle, 17 Nev. 209.] The sub- 29 Penn. St. 288; Houston v. Howard, 39 ject is expressly regulated by statute in Vt. 54 ; Webster u. Peck, 31 Conn. 495, some states. [757] * * 522 OP PERSONAL PROPERTY. [PAET V. a fraud in law, unless possession accompanies and follows the deed, (a) This decision, of course, leaves open for discussion the distinction taken in that case between a bill of sale absolute, and one conditional upon its face, and also the conclusions in the other cases where the continuance of possession in the vendor is consistent with the deed. The principle of the decision at Wash- ington has been adopted in the circuit courts of the United States, and we may consider it to be a settled principle in federal juris- prudence. In pursuance of the rule, if property be abroad, and incapable of actual delivery at the time, as in the case of a ship at sea, the possession must be assumed as soon as possible on the arrival of the vessel in port. (6) In Virginia, the same principle has been directly and repeats edly adjudged to be well settled ; and it is declared, that an ab- solute bill of sale of personal property, with possession continuing in the vendor, is fraudulent per se as to creditors, without other evidence of fraud, or being connected with other circum- 522 stances, (c) In * South Carolina, the same doctrine was alluded to as being founded on the better authority ; (a) and in one case in equity (5) it was decided, that if possession did (a) Hamilton v. Eussel, 1 Craneli, 310. (h) United States v. Conyngham, 4 Dallas, 358; s. c. Wallace, C. C. 178; Meeker V. Wilson, 1 Gal. 419 ; Mair v. Glennie, 4 Maule & S. 240. (c) Alexander v. Deneale, 2 Munf. 341; Robertson v. Ewell, 3 id. 1; Land ». Jeflries, 6 Rand. 211, the rule was somewhat qualified ; and it was held, that when the grantor of personal property remains in possession after an absolute conveyance, the conveyance is prima facie fraudulent ; but such possession is not conclusive evidence of fraud, barring every explanation. It will lay with the purchaser to explain and rebut the presumption of fraud ; as if a slave be purchased and not taken nway in several months, it may be shown that he- was too sick to be removed; or if a horse be purchased, and to be sent for the next day, a levy upon him in the inter- mediate time upon execution against the seller, it was supposed, would hardly be sustained. In Clayton v. Anthony, 6 Randolph, 285, Judge Green elaborately investi- gates the doctrine, and ably sustains the rule established by the previous authorities. Again, in Sydnor v. Gee, 4 Leigh, 535, tlie Court of Appeals held, that in case of an absolute sale and delivery of chattels, and an immediate redelivery to the vendor, upon bailment, for a limited time, on valuable consideration, and when the sale and redelivery were fair transactions, the bailment was not inconsistent with the sale, and good within the rule of Edwards v. Harben. It was also deemed within the rule, and good, if, on an absolute and fair sale of chattels, possession be not imme- diately passed to the vendee, but is taken before the rights of any creditor of vendor attaches. This is the Massachusetts doctrine in Bartlett v. Williams, 1 Pick. 288. So the statute of executions in Virginia authorizes the sheriff to take forthcoming bonds, for delivery, at the day and place of sale, of property taken in execution. (oj Croft V. Arthur, 3 Desaus. 229. (6) De Bardeleben v. Beekman, 1 id. 346. [768] LECT. XSXIX.] OF PERSONAL PKOPERTT. * 522 not accompany a bill of sale of chattels which was not recorded, it was void as to the creditors, though there was no doubt of the fairness of the transaction. Afterwards, in the constitutional court, the doctrine of the English law, iu Edwards v. Harhen, was declared by all the judges, to be a settled rule, (c) In Ten- nessee, also, the doctrine of the English law, as stated iu Edwards V. 'Sarhen, is clearly asserted, (^d) In Kentucky, the same prin- ciple, under the modifications it has subsequently undergone iu England, seems to have been adopted ; for after an absolute bill of sale, if the property remains in the possession of the vendor, it is held to be fraudulent ; and yet, when such possession is not inconsistent with the sale, the fraud becomes a matter of fact for a jury, (e) Afterwards, in Wash v. Medley, (/) the milder doc- trine was declared, that a transfer of chattels by deed, without any change of possession, was not per se fraud, but only a matter of inference for a jury. (^) (c) Kennedy v. Ross, 2 Mill, Const. (S. C^ 125; Hudnal v. Wilder, 4 M'Cord,294, 8. P. But in Terry v. Belcher, and Howard v. Williams, 1 Bailey (S. C), 568, 575, and Smith v. Henry, 2 id. 118, the Court of Appeals in South Carolina recurred to and adopted the more modern and prevalent and less stern doctrine of the cases, that a vendor's or donor's retaining possession after an absolute and unconditional sale or gift of chattels was not conclusive, but only prima facie evidence of fraud, for it was susceptible of explanation. See infra, 529, note (a). But in Anderson v. Fuller, ' 1 M'Mull. Eq. 27, the case of Smith v. Henry, in 1 Hill (N. Y.), 22, was cited as war- ranting the principle that if a debtor, in a deed of assignment, secures an advantage to himself, it invalidates the deed, and that leaving the property in the hands of the debtor raises the presumption of a secret trust between the debtor and the preferred creditor, and the deed is void so far as the rights of creditors are affected. The law in such a case raises the conclusion of fraud, "incapable of being rebutted or explained." But if the case rested only on constructive and no actual fraud, the deed would be permitted to stand as a security for any consideration advanced at the time. (d) Ragan v. Kennedy, 1 Tenn. 91. Since that decision, it has been declared in Callen v. Thompson, 3 Yerger, 475, and in Maney v. Killough, 7 Yerger, 440, and again in Mitchell v. Beal, 8 id. 142, that possession remaining with the vendor after an absolute sale, or with the grantor or mortgagor in deeds of trust and mortgages, ajier the time of payment, is prima facie evidence of fraud ; but the presumption may be repelled by proof. It was further held that the retaining of possession by mortgagor of personal property before the day of payment, is not prima facie evidence of fraud, because it is understood to be a tacit or presumed agreement that the mortgagor should retain possession. See also infra, 526, note (a). (e) Baylor v. Smithers, 1 Littell, 112 ; Goldsbury v. May, 1 Litt. 256; Hundley v. Webb, 3 J. J. Marsh. 643. (/) 1 r)ana (Ky.), 269. ((/) Again, in Brummel v. Stockton, 3 Dana (Ky.), 134, and Laughlin v. Ferguson, 6 id. 117, the rule is laid down strictly, that on an absolute sale of movable property, [759] * 523 OF PERSONAL PROPEETT. [PAET Y. In Pennsylvania, the English doctrine is adopted and followed in its fullest extent. The general principle is explicitly and em- phatically recognized, that on an absolute sale or assignment of chattels, possession must accompany and follow the deed, and vest exclusively in the vendee, or it is fraudulent in law, though there be no fraud in fact. (K) As between the vendor and ven- dee, the property will belong to the vendee ; but the sale without delivery is void as to creditors ; and if the vendor sells and de- livers it to a bona fide purchaser, ^without notice, the purchaser will hold against the original vendee, (i) As an exception to the general rule, it is admitted that goods ma.j, after they have been levied upon, or after a fair purchase of them at a sale *523 *on execution, be safely left in the possession of the defendant, without a necessary inference of fraud ; though the exception in the case of a levy merely, was afterwards re- stricted to household furniture, (a) Delivery of the goods is held to be as requisite in the case of a mortgage of goods, as of an absolute sale of goods under the statutes of 13 and 27 Eliz. ; and merely stating on the face of the deed that possession was to be retained is not sufficient to take the case out of the statute, possession must go with thie title, or the sale will be per se void as to the creditors and subsequent purchasers, notwithstanding any agreement, however fair, that the seller may retain possession. And such seems to be the law in Missouri. Sibly t . Hood, 3 Mo. 290 ; Foster v. Wallace, 2 id. 231 ; and as laid down in Georgia, in Howland v. Dews, K. M. Charlton, 386. The rule in Kentucky applies only to sales by private voluntary contract, and not to sales on execution, where the simple reten- tion of possession by the debtor is not necessarily fraudulent ; nor to sales upon a mortgage condition, provided the condition be inserted and the deed recorded. 6 Dana, 120; Vernon v. Morton, 8 id. 253; Swigert v. Thomas, 7 id. 222. The rule, that possession must go with the deed, does not apply in Kentucky to mortgages and deeds of trust, which are required to be recorded. 5 Littell, 243; 1 J. J. Marsh. 282; 8 id. 363 ; 3 Dana, 204 ; 16 Peters, 112. (h) Young V. M'Clure, 2 Watts & S. 147. {i) Dawes u. Cope, 4 Binney, 258 ; Babb v. Clemson, 10 Serg. & R. 419 ; Shaw V. Levy, 17 id. 99 ; Hower v. Geesaman, ib. 251 ; Streeper v. Eckart, 2 Wharton, 302; Hoofsmith v. Cope, 6 Wharton, 53. A constructive, symbolical, or temporary delivery of personal property is not sufficient to change the ownership as to creditors. There must be actual delivery at the time, and a continuing possession. M'Bride v. M'Clelland, 6 Watts & S. 94. By statute of Pennsylvania of 14th June, 1836, and the construction given to it, an assignee, under a voluntary deed of assignment for the benefit of Creditors, may suffer the goods to remain in possession of the assignor for thirty days, witliout subjecting them to an execution of a creditor of assignor. This delay is to afford time to comply with the requisitions of the statute. (a) Levy v. Wallis, 4 Dallas, 167 ; Waters ^. M'Clellan, ib. 208 ; Chancellor v Phillips, ib. 213; Myers v. Harvey, 2 Penn. 478. [ 760 ] LECT. XXXIX.] OP PERSONAL PROPERTY. * 524 even in the case of a mortgage of goods ; and the transaction has been adjudged to be fraudulent per Be, and void against a subse- quent bona fide purchaser without notice, (ft) The just policy and legal solidity of the rule, that holds all such deeds of chattels fraudulent in law, were asserted in the case to which I have last alluded, with distinguished ability and effect. The retention of possession must not only be a part of the contract, but it must appear to be for a purpose, fair, honest, and necessary, or con- ducive to some fair object in view. Appearances' must not only agree with the real state of things, but the real state of things must be honest and consistent with public policy. Such were the cases of Bucknal v. Roiston, and Cadogan v. Kennett.^ Where the motive of the sale is the security of the vendee, and the ven- dor is permitted to retain the visible ownership for tlie conven- ience of the parties, it is a fraud, though the arrangement be inserted in the deed or mortgage. The policy of the law will not permit the owner of personal property to create an interest in another, either by mortgage or absolute sale, and still continue to be the visible owner. The law will not stay to inquire whether there was actual fraud or not, and will infer it at all events ; for it is against sound policy to suffer the vendor to remain in pos- session, whether an agreement to that effect be or be not ex- pressed in the deed. It necessarily creates a secret incumbrance as to personal property, when, to the world, the vendor * or mortgagor appears to be the owner, and he gains *524 credit as such, and is enabled to practise deceit upon man- kind. If the possession be withheld pursuant to the terms of the agreement, some good reason for it, beyond the convenience of the parties, must appear ; and the parties must leave nothing unperformed within their power, to secure third persons from the consequences of the apparent ownership of the vendor. If it be the sale or mortgage of articles undergoing a process of manu- facture, to be delivered when finished, or of various other goods and chattels, and possession can properly be retained, there ought to be a specific inventory of the articles, so as to apprise creditors of what the conveyance covered, and to prevent the vendor from changing and covering property to any extent by dexterity and fraud. (6) Clow V. Woods, 5 Serg. & R. 275 ; Welsh v. Hayden, 1 Penn. 57, s. p. 1 Free. Ch. 285; Cowp. 432. [761] *525 OP PERSONAL PROPERTY. [PART V. The Supreme Court- of Pennsylvania have regretted, that even in the excepted case of household furniture, the goods seized on executiou may be left in the hands of the defendants. This was contrary to the common law, which would not endure the levying on goods only as a security, (a) and wisely gave a subsequent execution creditor the preference, if goods levied on by execution were suffered to remain in the hands of the defendant. The exception of household furniture has notoriously occasioned col- lusion and fraud, and been prodagtive of gross abuse. The levy was a verj' imperfect notice to third persons. (6) * 525 * The same doctrine has been declared to be the law in Illinois, New Jersey, Connecticut, and Vermont. Deliv- ery of possession, in the case of a sale or mortgage of chattels, is held to be necessary whenever it is practicable ; and to permit the goods to remain in the hands of the vendor is declared to be an extraordinary exception to the usual course of dealing, and requires a satisfactory explanation. There must be an actual and not a colorable change of possession. The leading decisions, in England and in this country, in favor of the legal inference of fraud in such cases, are referred to, and the conclusion adopted, that on a sale or mortgage of goods, an agreement either in or (a) Bradley v. Wyndhani, 1 Wils. 44. {b) Cowden v. Brady, 8 Serg. & R. 510 ; Dean v. Patton, 13 id. 345. In Barnes v. Billington, 1 Wash. C. C. 38, Judge Washington held, that liouse'hold furniture did not properly form an exception to the general rule ; that if the goods be levied on under a fi.fa., and left in the possession of the defendant for any length of time, no lien attached by the levy, as against subsequent executions or purchasers. The rule, as it was afterwards declared in Berry v. Smith, 3 id. 60, does not require the officer to remove the goods or sell them immediately, provided he does It in a reasonable time, and does not leave the debtor in the mean time with the power to deal with the prop- erty as owner. So in Wood v. Vanarsdale, 3 Eawle, 401, it was held that tlie sheriff was only bound to take possession of goods levied on execution, within a reasonable time ; but if on a levy he be directed by the plaintiff to stay further proceedings until further order, and the object be security for the debt, the lien created by the levy is discharged. Commonwealth v. Stremback, 2 Rawle, 341. In North Carolina the same general doctrine prevails ; and the sheriff who seizes goods and chattels on execution must take possession, or by some notorious act devest the debtor's posses- sion and use of them, or he will lose his preference over a subsequent seizure, unless the leaving the goods in the debtor's possession be accounted for, as in the case of i growing crop, or an article in the course of being manufactured, or the like. Roberts V. Scales, 1 Battle, 88 ; 8. c. 1 Iredell, 88. In South Carolina the courts do not follow the rule in most of the other states, that a senior execution creditor will lose his lien as asainst a junior creditor, by inactivity. Local considerations have led to this policy. Adair i-. M'Daniel, 1 Bailey, 158. [762] lijct. xsxix.] op personal property. * 525 out of the deed, that the vendor may keep possession, is, except in special cases, fraudulent and void, equally against creditors and bona fide purchasers, (a) (a) Thornton v. Davenport, 1 Scam. 296. In this Illinois case the true doctrine is laid down with precision. All conveyances, it is held, of goods and chattels, where the possession is permitted to rfemain with the donor or vendor, are fraudulent per se, and void as to creditors and purchasers, unless the retaining of possession be consistent with the deed; where the transaction is bona fidct, and from the nature and provisions of the deed the possession is to remain with the vendor, that pos- session, being consistent with the deed, does not avoid it ; and therefore mortgages, marriage settlements, and limitations over of chattels, are vahd without transfer of possession, if the transfer be hona fide, and the possession remain with the person according to the deed. But an absolute sale of personal property, and the possession remaining with the vendor, is void as to creditors and purchasers, eoen though author- ized by the terms of the bill of sale. The opinion of one of the judges in that case went to the whole length of the salutary doctrine, that the mortgagee or vendee taking a hill of sale for security, must take possession, even though the arrangement in the deed or mortgage be different, because the policy of the law will not permit the owner of personal property to create an interest in another, either by mortgage or absolute sale, and still continue to be the visible owner. Chumar v. Wood, 1 Halst. lo-j; Patten i,. Smith, 5 Conn. 196; Swift v. Thompson, 9 id. 63; Toby v. Keed, 9 id 216 ; Mills v. Camp, 14 id. 219 ; Osborne v. TuUer, ib. 529. But in New Jer- sey, the subject has been since fully discussed, and a rule of a more qualified character declared. In Sterling v. Van Cleve, 7 Halst. 285, it was held, after an elaborate view of the subject, that a mere agreement by the creditor to delay the sale of a debtor's goods, levied on by execution, was not, of itself, evidence of fraud. There must be some proof of actual fraud to subject a prior execution to postpone- ment. It the plaintiff suffers the goods levied on by execution to remain with the debtor for a specific time, on his agreeing to pay a rent therefor, equivalent to keeping the goods of the same value and in good order, it is not a fraud upon a sub- sequent execution creditor, and will not postpone the prior execution. See also, in Bank of New Brunswick v. Hassert, Saxton, Ch. (N. J.) 1 ; Cumberland Bank v. Hann, 4 Harr. (N. J.) 166, a more relaxed indulgence in leaving goods seized on exe- cution with the defendant, if done in good faith. In Vermont, it was held, that in ordinary cases of sales of personal property, if the vendor retains possession, the sale is fraudulent and void as to creditors. Bona fide sales by sheriffs were an exception. Boardman u. Keeler, 1 Aiken (Vt.), 158; Mott iv McNiel, 1 id. 162. In Weeks v Wead, 2 id. 64, the same conclusion was adopted, after a full review of the author- ities on each side of the question ; and it was declared, that in the sale of chattels, if the conveyance be absolute, the want of a change of possession was not merely prima facie evidence of fraud, but a circumstance per se which rendered the transac- tion fraudulent and void; and no stipulation in the contract, that the vendor should retain possession, would take the case out of the rule, if, /com the nature of the transac- tion, the sale was absolute, and possession would accompany it. So, again, in Fletcher t. Howard, 2 Aiken (Vt.), 115, it was decided to be essential to a pledge, as well as to a sale of personal chattels, that it be accompanied with delivery of possession as against third persons ; and that if the pawnee takes a delivery, and yet immediately re-delivers the thing pledged to the former owner, or permits it to go back into his possession, the special property created by the bailment is determined and gone. The same doctrine was followed out in Beattie v. Robin, 2 Vt. 181 ; and it was [763] * 526 OP PERSONAL PROPERTY. [PART V. * 526 * In these American decisions, the stern conclusions of the doctrine, that fraud in the given case is an inference of law, are asserted not only in a tone equally explicit and decided as in the English cases in the age of Mansfield and Buller, but with much greater precision and more powerful and convincing argument. There is another series of decisions, however, which have, under sanction, established a more lax and popular doctrine. In North Carolina, it is held, that whether a deed be fraudu- lent or otherwise, from the wantjaf possession in the vendee, or within the operation of the statute of 1-3 Eliz. c. 5, was a ques- tion of fact, and not of law. (a) The Supreme Court of that state, in a more recent case, (S) carried the relaxation of the English rule to a great extent. A bill of sale of a horse was absolute on its face, but taken as a security for a debt, and pos- session was left with the vendor. The property, after being kept by the debtor for six years, was seized on execution by another creditor ; and the court decided that such a transaction was only presumptive evidence of fraud for a jury ; and as they had found no fraud in the fact, the verdict was sustained, (c) declared, that unless a purchase be followed by a visible change of possession, the property will continue liable to the creditors of the vendor. Judd v. Langdon, 5 Vt. 231 ; Baylies, J., lb. 531, s. p. In Farnswortli u. Shepard, 6 Vt. 521, the Supreme Court of Vermont adhered to their former decisions with great resolution, and declared that a sale of personal property, unaccompanied with a change of posses- sion, was per se fraudulent as against the creditors of the vendor. " This still remains," said Mattock, J., " the settled law of the land ; and although some learned gentlemen of the law have supposed that the court would eventually retrace their steps, as the courts in some of the neighboring states have done, that is, leave that as a badge of fraud to a jury, yet we are not disposed to recede a jot, nor to advance a whit, but to remain stationary upon this, in other governments, vexed question, so as to give this branch of the law, at least, the quality of uniformity." I think this decision reflects the highest honor upon the firmness of the court, and it is a consol- ing example of tlie triumph of the conservative principle in our jurisprudence. How long the court will be able to stand on that ground is another question. Wilson v. Hooper, 12 Vt. 6-53, s. p. (a) Tick u. Kegs, 2 Haywood, 126; Falkner v. Perkins, ib. 224; Smith v. Niel, 1 Hawk, 341 ; Trotter v. Howard, ib. 320. (6) Howell V. Elliott, 1826, 1 Dev. 76, (c) In 1830, provision was made by law, in North Carolina, for the registry of deeds of trust or mortgages of chattels ; and they were not to be valid in law, as against creditors or purchasers for a valuable consideration, without such registry. This will prevent the inconvenience of the antecedent doctrine. There were also statutes in 1784, 1801, and 1820, providing for the registry of bills of sale of chattels. In Gregory i-. Perkins, 4 Dev. (X. C.) 50, it was decided that a deed absolute on its face, but executed upon a parol agreement for redemption, is, in law, fraudulent and [764] LECT. XXXIX.] Ot PERSONAL PROPERTY. * 527 In New York, the current language of the court originally was, (c?) that the non-delivery of goods at the time of the sale o> mortgage was only prima facie evidence of fraud, and a circum. stance which admitted of explanation. But in Sturtevant V. Ballard, (e) the subject received a .more * full and * 527 deliberate consideration, and the English and American authorities were extensively reviewed ; and it was decided, that on a bill of sale of goods, partly for cash and partly to satisfy a debt, with an agreement in the instrument that the vendor was to retain the use and occupation of the goods for the term of thiee months, the goods were liable to the intervening execution of a judgment creditor. It was considered to be a settled principle of law, that if the vendor be permitted to retain possession in the void, as against the creditors of the vendor ; and the registry of it under tlie statute did not add to its validity. The object of tlie Registry Act was to give notice of the existence and extent o£ incumbrances, as mortgages, deeds, or conveyances in trust, and the true cliaracter of the deed must appear on the record, to give it protection. In that case, Cli. J. RufiBn observed tliat fraud was matter of law, and a question for the court, but the actual intent was generally concealed, and was within the province of a jury, and in that sense fraud is a mixed question. But when tlie facts are ascertained, the conclusion is exclusively matter of law. The English rule for some time prevailed in North Carolina, that possession retained by the vendor was per se fraudulent. But it admittad of so many exceptions proper for the jury, as to the intents, that the rule itself hardly remained ; and the court finally resorted, as has been done in New York, to the plain rule of leaving to the jury the possession, as a fact and ground of presumption, under all the circumstances, whether or not there was a secret trust and a fraudulent intent, without, however, intending to leave it to the jury to follow their own uncertain judgment, when the ascertained facts would, in judgment of law, amount to a fraudulent intent. Decisions so guardedly and firmly expressed are exceedingly consoling and valuable. The case of Leadman v. Harris, .3 Dev. 146, contained the same sound doctrine. So in Wilson Shaw, C. J., in Eussell v. Woodward, 10 Pick. 413; State of Maryland v. Bank ot Maryland, 6 Gill & J. 205. In making assignments of property, the owner cannot assign part only of one entire debt, without the consent of the debtor ; for that would subject him to distinct demands on one single contract. Gibson v. Cooke, 20 Pick. 15. Nor does the assignee of a voluntary assignment for the benefit of cred- itors, stand in a better situation than the assignor. Neither he nor the creditors whom he represents are purchasers for a valuable consideration, without notice, as against prior equitable liens. Haggerty v. Palmer, 6 Johns. Ch. 437 ; Knowles v. Lord, 4 Wharton, 500. As between different assignees of a chose in action, the one prior in point of time is preferred, though no notice be given either to the subsequent assignee or the debtor ; but notice is requisite to the debtor, as between him and the first assignee, in order to protect the latter from payment by the debtor. Muir v. Sclienck, 3 Hill, 228; Wood v. Partridge, 11 Mass. 488. Notice is, however, requi- site under the Scotch law (wliich is there termed an intimation), to the debtor, in order to render the assignment a complete preference as against a subsequent assignee. Eedfearn v. Ferrier, 1 Dow, 50. So, in Connecticut, an assignment of debts orchoses in action is not valid as against subsequent purchasers and attacliing creditors, with- out notice of such assignment given to the debtor witliin a reasonable time. The rule in New York is different, and an assignment made in New York of a debt due in Connecticut will be held valid without such notice, on the principle of the lex loci. 14 Conn. 141, 583. (rf) Pickstock V. Lyster, 3 Maule & S. 371. So a conveyance or transfer of goods, if made by a party in insolvent circumstances, to a creditor, in pursuance of a bona fide demand by the creditor, is not voluntary within the English Insolvent Act of 7 Geo. IV. Mogg v. Baker, 4 M. & W. 348. (c) Pickstock V. Lyster, 3 Maule & S. 371 ; The King v. Watson, 3 Price, 6 ; Wilt V. Franklin, 1 Binney, 502; Hendricks v. Kobinson, 2 Jolins. Ch. 307, 308; Stevens V. Bell, 6 Mass. 339 ; NicoU v. Mumford, 4 Johns. Ch. 529 ; Brown v. Minturn, 2 Gal. 557 ; Moore v. Collins, 3 Dev. (N. C.) 126 ; Moffatt v. M'Dowall, 1 M'Cord, Ch. 434 ; Buffum v. Green, 5 N. H. 71 ; Haven v. Richardson, ib. 113 ; Marbury v. Brooks, 7 Wheaton, 556 ; Brashear v. West, 7 Peters, 608 ; Sutherland, J., in Grover V. Wakeman, 11 Wend. 194, 195 ; State of Maryland v. Bank of Maryland, 6 Gill & J. 205 ; Marshall v. Hutchison, 5 B. Mon. 305. The directors of an insolvent cor- poration may, equally with individuals, give preferences by assignment of their effects. Catlin v. Eagle Bank, 6 Conn. 233 ; State of Maryland v. Bank of Maryland, 6 Gill & J. 205, s. r. ; Conway, Ex parte, 4 Ark. 302. See also supra, 315. The law in New Jersey is an exception to the rule in the text. It is made essential there, by statute (Elmer's Dig. 16), to the validity of an insolvent's assignment, that it create no preferences, and that it be for the equal benefit of the creditors. An assignment of real and personal property in trust, to pay a favored creditor, and then to divide [ 774 ] LECT. XXXIX. J OP PERSONAL PEOPERTY. * 533 assignment has been held, under tlie New England attachment and trustee process, to be essential 'to its validity, so far as that the intervening attachment of another creditor who is no party to the assignment, issued before* such assent be *683 given, has been preferred, (a) But, subject to this quali- the residue ratably among the other creditors, and the surplus, if any, to return, though good in New York, where it was made, was consequently adjudged void as to property, personal as well as real, in New Jersey. Varnum v. Camp, 1 Green (N. J.), 326. So in Georgia, by statute of 19th December, 1818, all assignments and transfers of property by insolvent debtors, giving preferences, are declared to be fraudulent and void. Prince's Dig. 164. The Insolvent Act of Massachusetts, of 1838, e. 163, establishes the principle, that when a debtor is unable to pay his debts, his property is to be equally divided among his creditors ; and that if the insolvent debtor has not been guilty of fraud or gross misconduct, he is to be discharged from liability, upon surrendering all his property for the benefit of his creditors. The dis- charge goes to all debts actually proved against his estate, and to all debts founded on contracts made after the statute, if made within the state, and to be performed therein, and provable under the act, or due to persons resident within the state at the first publication of notice of the proceeding by warrant, and to all demands for goods wrongfully obtained, taken, or withheld by the debtor. The statute destroys all voluntary payments, assignments, and preferences made in contemplation of in- solvency. It is a simple and well-digested system of bankrupt law. The proceed- ings under this law may be commenced on the voluntary application of the debtor himself; or, if he omits to do it, then on the application, under certain circumstances, of a portion of the creditors, to compel an assignment of his property for the general benefit of the creditors. The statute of Ohio, of 1838, prohibits assignments in trust, in contemplation of insolvency, with the design to prefer one crfeditor to another ; and such assignments are made to enure ratably to all. So, the Connecticut act of 1828 declares all assignments of lands, chattels, or choses in action, with a view to insolvency, to any person in trust for his creditors, or any of them, to be void as to creditors, unless made in writing for the benefit of all the creditors, in proportion to their claims, and be lodged for record in the probate office of the district ; and the duty of such trus- tee is specially regulated. Statutes of Connecticut, 1838, p. 300. In Pennsylvania, by statute of 24th March, 1818, voluntary assignments, for the benefit of creditors, must be recorded within thirty days, or they are void as against any of the creditors of the assignor, without as well as within the assignment. It is settled in New York, that a voluntary assignment by an insolvent debtor must declare the uses and settle the rights of creditors under the assignment, and not leave it to the assignees, or re- serve to himself the right of subsequently doing it. That would be arbitrary, and liable to uncertainty and abuse, and such an assignment is fraudulent and void. The debtor must, in the assignment, declare preferences, if any, among his creditors, and he cannot transfer that power to his assignee. Wakeman v. Grover, 4 Paige, 41 ; Barnum v. Hempstead, 7 id. 568; Boardman v. Halliday, 10 id. 223. The right of allowing preferences to be given at all by the insolvent debtor has been strongly condemned by judges in various parts of the United States as inequitable and unjust. 10 Paige, 229. (a) Widgery v. Haskell, 5 Mass. 144; Stevens v. Bell, 6 id. 339; Ward u. Lam- son 6 Pick. 358; Jewett u. Barnard, 6 Greenl. 381. In Boyden v. Moore, 11 Pick. [775] *533 OP PERSONAL PROPERTY. [PART V. fication, the assent of the creditors need not be given at the time of the assignment; and a subsequent assent in terms, or by actually receiving the benefit of the assignment, will be suffi- cient. (6) The assignment has been held to be good against a subsequent attachment, if the creditors had assented to the assignment prior to the attachment ; (c) and the assignment has been supposed to be valid, even without such intervening assent, in the case of an assignment to trustees, for the benefit of the preferred creditors. The legal estate passes and vests in the trustees ; and a court of equity will compel the execution of the trust for the benefit of the creditors, though they be not, at the time, assenting, and parties to the conveyance, (d^ The assent 362, it was held, tliat an assignment in trust, to pay the assignee and other creditors who were parties, and assenting, was valid. But if not parties, and assenting, an intervening attachment prior to the assent will have preference. So, a, voluntary assignment, in contemplation of insolvency, and giving preferences, made in Penn- sylvania, is not good in Delaware against a, subsequent attachment, by a, citizen there, of the insolvent's effects in Delaware. Maberry v. Shisler, 1 Harring. 349. (6) Marbury v. Brooks, 7 Wheaton, 556; Brooks v. Marbury, 11 id. 78 ; Brashear V. West, 7 Peters, 608; Ellison v. Ellison, 6 Ves. 656; Cunningham i;. Freeborn, 1 Edw. Ch. 262. (c) Brown v. Minturn, 2 Gal. 557 ; Halsey v. Whitney, 4 Mason, 217 ; Hastings v, Baldwin, 17 Mass. 552. ^d) Small V. Dudley, 2 P. Wms. 427 ; NicoU v. Mumford, 4 Johns. Ch. 529 ; Brooks V. Marbury, 11 Wheaton, 97; Gray v. Hill, 10 Serg. & R. 436; Halsey v. Whitney, 4 Mason, 206; Ward u. Lewis, 4 Pick. 518. This rule in the English chancery seems to have been made subject to some embarrassing qualifications. If the creditors are not parties or privies to a conveyance by a debtor to trustees, to pay scheduled creditors, and do not conform to its provisions, and the trustee have not dealt with the creditors, in pursuance of the deed, they cannot in chancery en- force performance, and have no lien on the property conveyed. The deed is re- garded as a mere disposition between the debtor and his trustees for his own accommodation ; and the property is not deemed to be withdrawn from the debtor's absolute control. If, liowever, there can be an actual settlement made for vesting an estate or stock in trustees for volunteers, the case is different, and the trustees, hav- ing the legal estate, become such for the volunteers, who, as cestui que trusts, may claim against the trustees in the deed. Ellison u. Ellison, 6 Ves. 662 ; Wallwyn v. Coutts, 3 Meriv. 707 ; Garrard v. Lord Lauderdale, 3 Simon, 1 ; Acton v. Woodgate, 2 My. & Keen, 492. In Marston v. Coburn, 17 Mass. 454, a conveyance to trustees for the benefit of creditors was said to be void without the assent of the creditor, though assented to by the trustees ; but in that case the deed was held to be incom- plete, according to the intention of the parties, when an attachment intervened and prevailed. Though assignments of possibilities, contingent interest, and of rights or choses in action, may not be valid at law unless the creditor assents, yet no difficulty of this kind exists in equity, where the assignment is considered as amounting to a declaration of trust. See the numerous cases referred to in the notes to 2 Story's Equity Jurisprudence, 305. [776] LECT. XXXTX.] OF PERSONAL PROPERTY. * 534 of absent persons to an assignment will be presumed, unless their dissent be expressed, if it be made for a valuable consideration, and be beneficial to them, (e) It is admitted in some of the cases that the debtor may indi- rectly exert a coercion over the creditors through the influence of hope and fear, by the insertion of a condition to the assignment, that the creditors shall not be entitled to their order of preference, unless, within a given and reasonable time (for if no time, or an unreasonable time, be prescribed, the deed is fraudu- lent), (/) they execute a release of their debts, by * be- * 534 coming parties to the instrument of assignment, containing such a release, or by the execution of a separate deed to that effect, (a) In Jackson v. Lomas, (6) there was a proviso to the assignment, that in case any creditor should not execute the trust (c) North V. Turner, 9 Serg. & R. 244; De Forest v. Bacon, 2 Conn. 633. If the assignment be directly to the creditors, their assent must be shown ; but if to trustees, for their benefit, the legal title passes to the trustees without their assent, but it must be made with the knowledge and privity of the trustees or the creditors. The assent of the trustees is presumed, until the contrary be shown ; and if the assignment be made without their knowledge, they may, when it comes to their knowledge, affirm it, and it will be binding. Gait v. Dibrell, 10 Yerg. 146 ; NicoU v. Mumford, 4 Johns. Ch. 529 ; Brown v. Minturn, 2 Gall. 557 ; Small v. Marwood, 9 B. & C. 300 ; Smith V. Wheeler, 1 Vent. 128 ; Marbury v. Brooks, 7 Wheat. 556 ; Weston v. Barker, 12 Johns. 276. Under the New York Revised Statutes, such an assignment to trustees operates as a grant, and does not require any express consideration ; nor is it neces- sary to its validity that a creditor should be a party to the conveyance, or signify his assent thereto. Cunningham o. Freeborn, 11 Wend. 240. But equity may re- quire the creditors to come in within a reasonable time and signify their assent, or be excluded from all benefit of the trust. Dunch v. Kent, 1 Vern. 260, 319. The assent of trustees would seem to be requisite to the validity of the assignment ; for it is assumed to be so in Gordon o. Coolidge, 1 Sumner, 537, where it was held, that if the assignment in trust for creditors be made to two persons, and one of them accepts the trust, and the other repudiates it, the assignment is operative as to the assenting trustee, unless it contains some condition rendering the assent of both requisite. The assent of both was, however, to be presumed, unless one of them, upon notice, refuses to accept the trust, and notifies his refusal to the debtor. See also the cases supra, iii this note, and Neilson v. Blight, 1 Johns. Cas. 205 ; Moses v. Murgatroyd, 1 Johns. 129. (/) Wharton's Dig. tit. Deed, n. 70, [Debtor & Creditor] ; Pearpont v. Graham, 4 Wash. 232. In Halsey v. Whitney, 4 IVIason, 206, six months was held not to be an unreasonable time. The reasonableness of the period of limitations for the cred- itors to come in, will depend on circumstances. (a) The King y. Watson, 3 Price, 6 ; Lippincott w. Barker, 2 Binney, 174; Cheever V. Clark, 7 Serg. & R. 510 ; Scott v. Morris, 9 id. 123 ; Wilson v. Kneppley, 10 id. 439 ; Halsey v. Whitney, 4 Mason, 206 ; De Caters i-. Le Ray De Chaumont, 2 Paige, 492 ; The Canal Bank v. Cox, 6 Greenl. 395. (6) 4 T. B. 166. * 534 OF PERSONAL PROPERTY. [PAET V. deed, which contained, among other things, a release of the debts by a given day, he should not be entitled to the benefit of the trust deed, and his share was to be paid back to the debtor. It seems to have been assumed throughout that case that such a provision would not affect the validity of the assignment. What- ever might have been the understanding in that case, such a con- clusion is not well warranted by the language of many of the American cases ; and a deed with such a reservation would, under them, be invalid. The debtor, may deprive the creditor, who refuses to accede to his terms, of his preference, and postpone him to all other creditors ; but then he will be entitled to be paid out of the residue of the property, if there should be any, after all the other creditors who released and complied with the con- dition of the assignment are satisfied. If the condition of the assigument be, that the share which would otherwise belong to the creditor who should come in and accede to the terms and release, shall, on his refusal or default, be paid back to the debtor, or placed at his disposal by the trustees, it is deemed to be oppressive and fraudulent, and destroys the validity of the assignment, at least against the dissenting creditors, (c) (c) M'AUister v. Marshall, 6 Binney, 338 ; Hyslop v. Clarke, 14 Johns. 458 ; Seav- ing V. Brinkerhoff, 5 Johns. Ch. 329 ; Austin v. Bell, 20 Johns. 442 ; Borden v. Sum- ner, 4 Pick. 265 ; Ingraham o. Wheeler, 6 Conn. 277 ; Atkinson i: Jordan, 5 Ham. (Ohio) 294; Lentilhon v. Moflfat, 1 Edw. Ch. 451; Ames ?•. Blunt, 5 Paige, 16, 18; Graves v. Roy, 13 La. 467 ; The Brig Watchman, in the District Court of Maine, Ware, 232. In Brashear v. West, 7 Peters, 608, the Supreme Court of the United States were far from being satisfied that a deed of assignment of all a debtor's prop- erty, and excluding from the benefit of its provisions those creditors who should not, within a given time, execute a release of their demands, ought to be sustained. At any rate, a court of chancery, after the preferred creditors were satisfied, would decree the surplus (if any) to those creditors who had not acceded to the deed. In Brown V. Knox, 6 Mo. 302 (1840), the Supreme Court, after an able review of the American authorities, considered the point not to be authoritatively settled ; and they decided that an assignment by a debtor, of all his property to trustees, for the benefit of such creditors as should, within a given time, execute a release, was void. But in Andrews 1. Ludlow, 5 Pick. 28, such a reservation was held not to render the assignment fraudulent, because it did not appear, in point of fact, to have been inserted with an intention to make a provision for the debtor. And in Halsey v. Whitney, 4 Mason, 206, the learned judge, under the influence of some of the American authorities, gave effect to the condition annexed to the assignment requiring a release, though the assignment did not purport to convey all the debtor's property ; but his own judgment was not satisfied with the authorities under which he acted, and partial assignments with such a condition ought not to be tolerated. In the case of the Watchman, Ware, 232, the court carries out the general principle, so forcibly illustrated in Halsey V. Whitney, and in opposition to what may be considered, after the decision in Borden [778] LBCT. XXXIX.J OP PERSONAL PROPERTY. * 536 * Nor can the debtor in such an assignment make a reser- * 535 vation, at the expense of his creditors, of any part of his property or income, for his own benefit. It has been supposed that such a reservation, if not made intentionally to delay, hinder, and defraud creditors, would not affect the validity of the residue, or main purpose of the assignment ; and that if the part of the estate assigned to the creditors should prove insufficient, they might resort to the fund so reserved by the aid of a court of equity. The case of lEstwick v. Caillaud, (a) and the language of other cases, were in favor of this opinion. (&) But later au- thorities have given to such reservations the more decided effect of rendering fraudulent and void the whole assignment ; and no favored creditor or grantee can be permitted to avail himself of any advantage over other creditors, under an assignment, which, by means of such a reservation, is fraudulent on its face, (c) These latter decisions contain a just and salutary check of the abuse of the debtor's power of assignment and distribution ; for, as was observed in the case of Riggs v. Murray, (c?) " if an insolvent debtor may make sweeping dispositions of his property to select and favorite creditors, yet loaded * with * 536 durable and beneficial provisions for the debtor himself, and incumbered with onerous and arbitrary conditions and penal- V. Sumner, 4 Pick. 265, as quite a doubtful point, under the local usages of Massa- chusetts. In Johnson v. Wliitwell, 7 Pick. 71, it was held, that if a debtor made a partial assignment to select creditors, even for a valuable consideration, it was fraudu- lent and void, if made with a view to prevent an attachment by other creditors. The case of Haven v. Richardson, 5 N. H. 113, is on the lax side of the question ; for where an insolvent assigned all his property to pay the debts of one or more specified cred- itors, neither the want of a schedule, or of an estimate of the value of the property assigned, nor a stipulation in the assignment for a release of the debts of those who became parties, nor a reservation of the surplus after payment of the debts of those who assent to the assignment, was considered to be conclusive evidence of fraud. The reservation would now generally, and it ought to be everywhere, fatal to the instrument. (a) 5 T. B. 420. (h) Riggs u. Murray, 2 Johns. Ch. 580; s. c. Murray v. Riggs, 15 Johns. 571; Austin o. Bell, 20 Johns. 442; Sutherland, J., and Woodworth, J., 5 Cowen, 547. (c) Mackie v. Cairns, 1 Hopkins, 373 ; 5 Cowen, 547 ; Harris v. Sumner, 2 Pick. 129 ; Chartres v. Cairns, decided irt Louisiana, 1825, and cited in 5 Cowen, 578, n. ; Passmore v. Eldridge, 12 Serg. & R. 198; Gait v. Dibrell, 10 Yerg. 146. The act of Pennsylvania of 1818 requires voluntary assignments for the benefit of creditors, to be recorded within thirty days. (d) 2 Johns. Ch. 682. [779] * 536 OP PERSONAL PROPERTY. [PART V, ties, it would be impossible for courts of justice to uphold credit, or to exact the punctual performance of contracts." (as) (a) In the case of Murray v. Riggs, 15 Johns. 671, the New York Court of Errors held a debtor's assignment to be valid, though it in the first place reserved to the use of the grantors, until one year after they should be discharged by law ft-om their debts, two thousand dollars a year, and then gave preferences and a power in the assignees to settle witlj the creditors on certain terms ; and that the creditors who did not accept the condi- tions in one year, or should knowingly embarrass the objects of the deed, should be forever debarred from any share under the assignment. Such a deed was held good, and the decree in chancery setting it aside was reverged. The Court of Chancery afterwards, in Macliie u. Cairns, 1 Hopkins, 373, very properly held a'deed much less obnoxious than that in Murray v. Eiggs, absolutely and in tola fraudulent and void. The last decision appears to have been guided by sound policy and enlightened justice. 5 Cowen, 584, s. c. See also Mead v. Phillips, 1 Sandf. Ch. 83, a reservation in a voluntary assignment giving preferences, and providing previously for the payment of all costs and expenses necessarily incurred by him in defending suits, was held to be fraudulent. The decision of the Court of Errors, in Murray v. Kiggs, may be con- sidered as justly exploded. But the case of Grover v. "Wakeman (11 Wend. 187 ; 4 Paige, 23, s. c), on appeal from chancery, goes still further. The case was ably and elaborately discussed in the New York Court of Errors, and it was held, in affirmance of the decree in chan- cery, that a debtor in failing circumstances might, by assignment of his property in trust, prefer one creditor or set of creditors to another, provided he devoted the whole of his property assigned to the payment of his just debts, and the assignment be absolute and unconditional, without any reservation or condition for his benefit, and without extorting from the fears or apprehension of his creditors, or any of them, an absolute discharge as a consideration for a partial dividend, or making the preferences, or any of them, to depend upon the execution of a release, by such pre- ferred creditors, to him of all claims against him. An assignment giving preferences upon such a condition is void ; and the assignment, being void in part as against creditors and the provision of the statute, is void in toto, though there be no fraud in fact intended. This appears to be the most stern decision that exists, either in Eng- land or this country, on this subject. See Ames v. Blunt, 5 Paige, 22, and Goodrich V. Downs, 6 Hill (N. Y.), 438, to s. p. The weight of general authority, both English and American is, that an assignment by a debtor of all his property for the payment of his debts, and at the same time giving preferences, and requiring an absolute release from each creditor who accedes, is not per se fraudulent and void. The circumstances of the debtor assigning over to trustees all his property, without any reservation to himself, and giving the surplus, if any, to those creditors, if any, who do not come in and agree to release, on taking their preferred share, is deemed to disarm the transaction of all illegality and unfairness. See the cases collected in Mr. Angell's Laws of Assignments in Trusts for Creditors, Boston, 1835, pp. 96-108, which is a neat and valuable little manual of the law of voluntary assignments by insolvent debtors. A provision in the assignment, that the surplus after all debts are paid should revert to the debtor, is not improper, for such a resulting trust would follow of course without any stipulation. In Pennsylvania, the judicial decisions were for a time quite lax in favor of voluntary assignments, but their influence was counteracted by statute provisions requiring the assignee to give security, and giving to the court power to remove him, and substitute another, and requiring him to file an inventory. The debtor may still give preferences, and require the cred- [780] LECT. XXXIX.J OP PERSONAL PROPERTY. * 537 10. Of Sales at Auction. — An auctioneer has not only posses- sion of the goods which he is employed to sell, but he has an interest coupled with that possession. He has a special prop- erty in the goods, and a lien upon them for the charges of the sale, and his commission, and the auction duty. He may sue the buyer for the purchase-money ; and if he gives credit to the vendee, and makes delivery without payment, it is at his own risk, (by If the auctioneer has notice that the property he is about to sell does not belong to his principal, and he sells not- withstanding the notice, he will be held responsible to the owner for the amount of the sale, (c) So, if the auctioneer does not disclose the name of his principal at the time of the sale, the purchaser is entitled to look to him personally for the com- pletion of the contract, and for damages on its non-perform- ance. ((£) * In the sale of real property at auction, care should be * 537 taken that the description of it be accurate, or the pur- chaser will not be held to a performance of the contract. But if itors who accede to execute a general release. The commissioners, in their Report on tlie Civil Code of Pennsylvania, in January, 1835, suggest that this stipulation for a release be placed under some restrictions. Report, 50-52. But since that report, and in June, 1836, the legislature of Pennsylvania regulated the voluntary assignments by debtors of their estates, real or personal, or of any part thereof, in trust for their creditors, or some of them, and so far have given those assignments sanction. Purdon's Digest, 74. In the case of Thomas v. Jenks, decided in the Supreme Court of Pennsylvania, in March, 1835, the court held the whole assignment fraudulent and void, it being an assignment by a partnership firm of a part of their property for the benefit of their creditors, with a stipulation for a release as an equivalent for the assignment. It was such an exercise of the right of preference as to impose upon the creditors, indirectly, the necessity of resorting to a part of the debtor's property in exclusion of the rest. So, in M'CuUoch v. HutchinsoUj 7 Watts, 434, a voluntary assignment by an insolvent debtor, absolute on its face, to a particular creditor, to pay him and return the surplus to the debtor, was held to be fraudulent and void. The trust was secret, and the deed deceptive. The judicial decisions on this subject seem at last to have taken a firm and vigorous stand in favor of the rights of cred- itors and the claims of justice. The case of Van Nest v. Yoe, before the assistant V. Ch. in New York.(l Sandf. Ch. 4), contains a stringent and sound application of principles against the delay of creditors, by a voluntary assignment of his property by a debtor, to retain and hinder the operation of executions at law. Though the law allows of voluntary assignments, and permits the insolvent debtor to select his own assignees, yet where he selected his own relatives of very apparent incapacity for the trust, it was held to be evidence of fraud, and the assignment was set aside. Cram V. Mitchell, 1 Sandf. Ch. 251, s. p. (6) WilUams v. Millington, 1 H. Bl. 81. (c) Hardacre v. Stewart, 5 Esp. 10.3. id) Hanson v. Koberdeau, Peake, Gas. 120. [781] * 538 OP PERSONAL PROPERTY. [PART V. the description be substantially true, and be defective or inac- curate in a slight degree only, the purchaser will be required to perform the contract if the sale be fair and the title good. Some care and diligence must be exacted of the purchaser. If every nice and critical objection be admissible, and sufKcient to defeat the sale, it would greatly impair the efficacy and value of public judicial sales ; and, therefore, if the purchaser gets substantiall}' the thing for which he bargained, he may generally be held to abide by the purchase, with the. allowance of some deduction from the price, by way of compensation for any small deficiency in the value by reason of the variation, (a) A bidding at an auction may be retracted before the hammer is down. Every bidding is nothing more than an offer on one side, which is not binding on either side until it is assented to, and that assent is signified on the part of the seller by knocking down the hammer. (6) If the owner employs puffers to bid for him at an auction, it has been held to be a fraud upon the real bidders. He must not enhance the price by a person privately employed by him for that purpose. It would be contrary to good faith, as persons resort to an auction under a confidence that the articles set up for sale will be disposed of to the highest real bidder. A secret puffer em- ployed by the owner is not fair bidding, and is a fraud upon the public ; nor can the owner privately bid upon his own goods. All secret dealing on the part of the seller is deemed fraudulent. If he be unwilling that his goods shall be sold at an under price, he may order them to be set up at his own price, and not lower, or he may previously doclare,'as a condition of the sale, * 538 that he reserves a bid for himself. * This was the doctrine declared by Lord Mansfield in Bexwell v. Christie, (a) and again, by Lord Kenyon, in Howard v. Castle, (6) and in each case with the approbation of the court of K. B. The governing prin- ciple was, that the buyer should not be deceived by any secret manoeuvre of the seller. But the doctrine of those cases has since been considered as laid down rather too broadly. Lord Rosslyn and Sir William Grant have each questioned the sound- (a) Calcraft u. Roebuck, 1 Ves. 221; Dyer v. Hargrave, 10 Ves. 505; King!). Bardeau, 6 Johns. Ch. 38. (6) Payne v. Cave, 3 T. E. 148. (a) Cowp. 395. (6) 6 T. R. 642 ; Thornett v. Haines, Exch. 1846, s. p. [15 M. & W. 367.] [782] LECT. XXXIX. J OP PERSONAL PROPERTY. * 539 ness of the doctrine, (e) The latter seemed to think, that if bid- ders were employed by the owner merely for the purpose of taking advantage of the eagerness of them to screw up and enhance the price, it would be a fraud ; but that he might lawfully, even with- out making the fact publicly known, employ a person to bid for defensive precaution and with a view to prevent a sale at an under value. This relaxation of the former rule was also approved of in Steele v. Ellmaker ; (cZ) and the chief justice, in that case, sug- gested that the tone of Lord Mansfield's morality was, perhaps, too lofty for the common transactions of business. He held that the owner might lawfully instruct the auctioneer to bid in the goods for him at a limited price, to prevent a sacrifice. In Bram- ley V. Alt, (e) it was held that a sale was not fraudulent because a puffer had been employed, if there were real bidders who bid after the puffers had ceased ; and in Smith v. Clarke a specific performance was decreed against a vendee, though the person who bid immediately before him was employed to bid, under the pri- vate direction of the vendor, for the purpose of preventing a sale under a specified sum. (/) It would seem to be the conclusion, from the latter cases, that the employment of a bidder by the owner would or * would not be a fraud, according to circumstances tend- * 539 ing to show innocence of intention, or a fraudulent design. If he was employed bona fide to prevent a sacrifice of the property under a given price, it would be a lawful transaction, and would not vitiate the sale. But if a number of bidders were employed by the owner to enhance the price by a pretended competition, and the bidding by them was not real and sincere, but a mere artifice, in combination with the owner, to mislead the judgment and inflame the zeal of others, it would be a fraudulent and void sale, (a) So it will be a void sale if the purchaser prevails on (c) Conolly v. Parsons, 3 Ves. 625, n. ; Smith v. Clarke, 12 id. 477. (rf) 11 Serg. & E. 86. (e) 3 Ves. 620. (/) Woodward v. Miller, 2 Coll. 279, 8. p. (a) Hazul v. Dunham, N. Y. Mayor's Court, July, 1819, [1 Hall, 655] ; Morehead V. Hunt, 1 Dev. Eq. (N. C.) 35; Woods v. Hall, ib. 411; Wolfe v. Luyster, 1 Hall (N. Y.), 146. An association of bidders, with a design to stifle competition, is a fraud upon the vendor. Smith v. Greenlee, 2 Dev. (N. C.) 126. The case of Phippen v Stickney, 3 Mete. 384, seems to place the validity of private agreements, between bidders at auction sales, on the quo animo, and to be good or void according to the purpose with which they are made. [Curtis v. Aspinwall, 114 Mass. 187 ; Guern- sey V. Cook, 120 Mass. 501.1 [783] • 540 OP PERSONAL PROPERTY. [PART V, the persons attending the sale to desist from bidding, by reason of suggestions, by way of appeal, to the sympathies of the com- pany. (5) The original doctrine of the K. B. is the more just and salutary doctrine. In sound policy, no person ought, in any case, to be employed secretly to bid for the owner against the bona fide bidder at a public auction. It is a fraud in law on the very face of the transaction ; and the owner's interference and right to bid, in order to be admissible, ought to b^ intimated in the conditions of sale ; and such a doctrine has been recently declared at West- minster Hall, (c) ^ It has been made a question, how far auction sales were within the provisions of the statute of frauds ; but it is now understood to be settled that they are within the statute, and that the auction- eer is the ageiit of both parties, and lawfully authorized by the purchaser, either of lands or goods, to sign the contract of sale for him as the highest bidder, (c?) The writing his name as the highest bidder in the memorandum of the sale by the auctioneer, immediately on receiving his bid, and knocking down the * 540 hammer, * is a sufficient signing of the contract within the statute of frauds, so as to bind the purchaser. Entering the name of the buyer by the auctioneer, in his book, is just the same thing as if the buyer had written his own name. The purchaser who bids, and announces his bid to the auctioneer, gives the auctioneer authority to write down hi^ name, and the (6) Fuller v. Abrahams, 6 Moore, 316 ; 3 Brod. & B. 116, s. c. Mr. Justice Story, in Veazie v. Williams, 3 Story, 623, approves of the conclusion I have drawn from the cases. (c) Crowder v. Austin, 3 Bing. 368. Tlie language of the Supreme Court of Louisiana is strongly in favor of the doctrine of Lord Mansfield. Bahan v. Bach, 13 La. 287. Mr. Justice Ware, in his dissenting and very learned opinion in the above case of Veazie v. Williams, 637, 638, approves of the original doctrine of the K. B. {d) Whetlier the auctioneer be the agent of both parties, depends upon the facts of the particular case, and he is not so, as of course, in. all cases. Bartlett v. Punnell, 4 Ad. & El. 792. 1 Green v. Baverstock, 14 C. B. w. 8. and some doubt was thrown on even that 204 ; Warlow v. Harrison, 1 El. & El. 295 ; in Mortimer v. Bell, L. R. 1 Cli. 10, which Towle V. Leavitt, 23 N. H. .360; Pennock's led to the passage of an act affirming the Appeal, 14 Penn. St. 446. The rule in principle of the legal decisions. Gilliati). equity, which had been laxer than that Gilliat, L. R. 9 Eq. 60 ; [Parfitt v. Jepson, laid down by the common-law courts, was 36 L. T. 251.] limited to the allowance of a single puffer, [784] LECT. X:^XIX.] OF PERSON'AL PROPERTY. * 541 authority to the agent need not be in writing. There is no differ- ence in the construction of the fourth and seventeenth sections of the statute of frauds of 29 Car. II. c. 2, (a) as to what is a suificient signing of the contract by the party to be charged. The English law, as originally suggested in the case of Simon v. Motivos, (b~) has been repeatedly recognized and considered as the established doctrine in respect to auction sales of lands and chat- tels by the English and American courts, (c) 11. Of the Vendor's Right of Stoppage in Transitu. — This right, which has been already alluded to, requires a more particular discussion. It is the right which the vendor, when he sells goods on credit to another, has of resuming the possession of the goods, while they are in the hands of a carrier or middle- man, in their transit to the consignee or vendee, and before they arrive into his actual possession, or to the destination which he has appointed for them, on his becoming bankrupt or insolvent. The right exists only as between the vendor and vendee ; and as the property is vested in the vendee by the contract of sale, it * can be revested in the vendor during its transitus * 541 to the vendee, under the existence of the above circum- stances, (a) The right is very analogous to the common-law right of lien. The latter right enables the vendor to detain goods before he has (o) Keenaoted, N. T. Eevised Statues, ii. 135, sec. 2 ; ib. ii. 136, sec. 3. (6) 3 Burr. 1921 ; s. c. 1 Blacks. 599. (c) Hinde v. Whitehouse, 7 East, 558; Heath, J., in 1 H. Bl. 85; Emmerson V. Heelis, 2 Taunt. 38 ; White v. Proctor, 4 id. 209; Kemeys v. Proctor, 3 Ves. & B. 57 ; Kenworthy v. Schofield, 2 B. & C. 945 ; M'Comb v. Wright, 4 Johns. Ch. 659 ; Cleaves v. Foss, 4 Greenl. 1 ; Ahia v. Plummer, 4 id. 258 ; First Baptist Church of Ithaca V. Bigelow, 16 Wend. 28. The N. Y. Revised Statutes, i. 3d ed. 649, requires that when goods are struck off at auction, and there be not immediate payment of the price, or delivery of the goods, it shall be the duty of the auctioneer to enter in a sale book a memorandum of the sale, specifying the nature, quantity, and price of the goods, the terms of sale, the names of the purchaser, and of the person on whose account the sale is made. And by the R. S. 3d ed. ii. 195, an entry in the auctioneer's sale book, specifying the nature and price of the property sold, the terms of the sale, and the names of the parties, is a memorandum or note within the statute of frauds. The memorandum in the auctioneer's sale book must be made at the time and place of sale, and the entry of the name of the agent or consignee who has lawful authority to sell, is entering the name of the person on whose account the sale is made, within the statute. Hicks v. Whitmore, 12 Wend. 548. (a) Mason v. Lickbarrow, 1 H. Bl. 357 ; Hodgson v. Loy, 7 T. R. 440 ; Bohtlingk V. Ipglis, 3 East, 881 ; Burghall v. Howard, 1 H. Bl. 366, n. ; Oppenheim v. Russell, 3 Bos. & P. 44. VOL. n. - 50 [ 785 ] *542 OF PEESONAL PEOPESTY. [PART V; relinquished the possession of them ;y and this right of stoppage enables him to resume them before the vendee has acquired pos- session, and to retain them until the price be paid or tendered. If the price be paid or tendered, he cannot stop or retain the goods for money due on other accounts. The right of stoppage does not proceed upon the ground of rescinding the contract, but as a case of equitably lien. (J) ^ It assumes its existence and con- tinuance ; and, as a consequence of that principle, the vendee, or his assignees, may recover the goods, on payment of the price ; and the vendor may sue for and recover the price, notwithstanding he had actually stopped the goods in transitu, provided he be ready to deliver them upon payment, (c) If he has been paid in part, he may stop the goods for the balance due him, and the part payment only diminishes the lien pro tanto on the goods de- tained, {d') There must be actual payment of the wliole price, before the right to stop in transitu, in case of failure of the vendee, ceasfes. Though a bill of exchange has been received by the vendor for the price, and indorsed over by him to a third person, even that will not take away the right ; and if the bill be proved under a commission of bankruptcy against the vendee, it will only be considered a payment to the extent of the dividend, (e) The right to stop in transitu is paramount to any lien of the canier for a general balance between him and the consignee ; but the ^ lien of the carrier or wharfinger in the particular case is * 542 preferred. (/) * The right came from the courts of equity, and was first established in Wiseman v. Vandeputt, (a) and (6) Lord Kenyon, in Hodgson v. Loy, 7 T. R. 445. It is said to be a question still undecided, whether the effect of stoppage in transitu be to rescind the contract of sale, or only to replace the vendor in the position he occupied before parting with the possession, and to hold the goods till the price be paid. See Wentworth v. Outhwaite, 10 M. & W. 436. (c) Kymer v. Suwercropp, 1 Campb. 109. (d) Hodgson v. Loy, 7 T. R. 440 ; Feise u. Wray, 3 East, 93 ; Newhall v. Vargas, 13 Me. 93. (e) Feise v. Wray, 3 East, 93. (/) Oppenheim v. Russell, 3 Bos. & P. 42 ; Morley v. Hay, 3 Mann. & Ryl. 396. (a) 2 Vern. 203. See also Snee n. Prescott, 1 Atk. 245 ; D'Aquila «. Lambert, Amb. 399, to the same point, of the early establishment of the doctrine in equity. 1 See 545, n. 1. y' Grice v. Richardson, 3 App. Gas. 319 ; Gunn v. Bolokow, 10 L. R. Ch. 491 ; Keeler v. Goodwin, 111 Mass. 490. [786] LECT. XXXIX.] OP PERSONAL PROPERTY. * 543 its apparent equity recommended the adoption of it in the courts of law as a legal right. It would be very unreasonable to allow the goods of the vendor to be appropriated to the payment of other creditors of the vendee, who fails before payment, and before the goods have actually reached him. The right has accordingly been greatly favored and encouraged, and many dis- tinctions made relative to its continuance and termination ; and yet it is now declared, that a court of equity, from whence the right originated, has no jurisdiction to interfere and- support it by process of injunction. Lord Eldon said, there was no instance of stopping in transitu by a bill in equity. (6) ^ The English law on the suV)ject of this right, and the class of cases by which it is asserted and established, have been very generally recognized and adopted in our American courts, (c) (1.) Of the Persons entitled to exercise this Right. — The right extends to every case in which the consignor is substantially the vendor ; and it does not extend to a mere surety for the price, nor to any person who does not stand in the character of vendor or consignor, and rest his claim on a proprietor's right, {d} As between principal and factor the right does not exist ; but a factor or agent who purchases goods for his principal, and makes himself liable to the original vendor, is so far considered in the light of a vendor, as * to be entitled to stop the * 543 goods, (a) So a principal who consigns goods to his fac- tor upon credit, is entitled to stop them if the factor becomes in- solvent ; and a person who consigns goods to another, to be sold on joint account, is likewise to be considered in the character of a vendor, entitled to exercise this right. (6) y^ The vendor's (6) Goodhart v. Lowe, 2 Jae. & Walk. 349. (c) Ludlows V. Bowne & Eddy, 1 Johns. 16; Parker v. M'Irer, 1 Desaus. Eq. (S. C.) 281; Stubbs w. Lund, 7 Mass. 453; The St. Joze Indiano, 1 Wheaton, 212; Wood u. Roach, 2 Dallas, 180; Walter v. Ross, 2 Wash. C. C. 283; Howatt w. Davis, 5 Munf. 34. (d) Siffken v. Wray, 6 East, 371. (a) D'Aquila v. Lambert, Amb. 899 ; Feise v. Wray, 3 East, 93. (6) Kinloch v. Craig, 3 T. R. 119; Newsom v. Thornton, 6 East, 17; Fenton v. Pearson, 15 id. 419. ' But see 549, n. 1 ; Schotsmans v. Lancashire & Y. R. Co., L. B. 2 Ch. 332, 335, 340. y' In MuUer v. Pondir, 56 N. Y. 325, is that faith and credit shall have been 338, it is said, " All that is necessary . . . given to the solvency of another who haft [787] * 544 . OP PERSONAL PROPERTY. [PART V. right is so strongly maintained, that while the goods are on the transit, and the insolvency of the vendee occurs, the vendor may take them by any means not criminal, (c) The validity of the right depends entirely on the bankruptcy or insolvency of the vendee. (cZ) It is not requisite that lie should obtain actual possession of the goods before they come to the hands of the vendee ; nor is there any specific form requisite for the stoppage of goods in transitu ; though it is well settled that the bankruptcy of the buyer is not of itself tantamount to a stoppage in tran- situ, (e) But a demand of the goods of the carrier, or notice to him to stop the goods, or an assertion of the vendor's right by an entry of the goods at the custom-house, or a claim and endeavors to get possession, is equivalent to an actual stoppage of the goods. (/) y^ C2.) Of Matters which allow or defeat the Right. — The tran- situs of the goods, and consequently the right of stoppage, is determined by actual delivery to the vendee, or by circumstances which are equivalent to actual delivery. * 544 * There are cases in which a constructive delivery will, and others in which it will not, destroy the right. The (c) Lord Hardwicke, in Snee v. Prescott, 1 Atk. 245. (rf) The Constantia, 6 C. Rob. 321. The consignor, having made the consign- ment, has no right to vary it, except in the sole case of insolvency, s. c. Abbott on Shipping, 5th Am. ed., Boston, 1846, pp. 621, 622. (e) Haswell v. Hunt, cited in 5 T. R. 231 ; Ellis v. Hunt, 3 id. 464 ; Scott v. Pettit, 3Bos. &P. 471. (/) Walker v. Woodbridge, Cooke, B. L. 494; Northey & Lewis v. Field, 2 Esp., 613 ; Mills v. Ball, 2 Bos. & P. 457 ; Litt v. Cowley, 7 Taunt. 169 ; Newhall u. Var- gas, 13 Me. 93. Notice to the carrier on the part of the vendor or his authorized agent is sufficient, unless the goods have in the mean time arrived to the actual or constructive possession of the vendee. The notice is to be given to the person who has the immediate custody of the goods ; and if a servant has the custody of the goods, and notice be given to his principal, it must he in time to enable him, with reasonable diligence, to prevent a delivery to the consignee ; for if the vendee takes the goods from the carrier before they have arrived at their destination, with or without his consent, the transit is at an end. Whitehead v. Anderson, 9 M. & W. 518. failed, while yet the fruits of that credit 5 Daly, 476 ; Seymour v, Newton, 105 are in the actual or constructive posses- Mass. 272. sion, or within the reach, of the party y^ The notice must in general be given giving the credit, and who will be the to the one who holds the actual posses- loser unless he can retain or reclaim such sion. Whitehead v. Anderson, 9 M. fruits ; and the particular relation of the & W. -518 ; Ex parte Falk, 14 Ch. D. parties to each other ... is not ma- 446. Compare Ex parte Watson, 5 Ch. terial." See also Gossler v. Schepeler, D. 35. [788] LECT. XXXIX.] OP PERSONAL PROPERTY. * 545 delivery to a carrier or packer, to and for the use of the vendee, or to a wharfinger, is a constructive delivery to the vendee ; btit it is not sufficient to defeat this right, even though the carrier be appointed by the vendee. It will continue until the place of delivery be, in fact, the end of the journey of the goods, and they have arrived to the possession, or under the direction, of the vendee himself, (a) If they have arrived at the warehouse of the packer, used by the buyer as his own, or they are landed at the wharf where the goods of the vendee were usually landed and kept, the transitus is at an end, and the right of the vendor extin- guished. (6) The delivery to the master of a general ship, or of one chartered by the consignee, is, as we have already observed, a delivery to the vendee or consignee, but still subject to this right of stoppage, which has been termed a species oi jus postliminii. (c) And yet, if the consignee had hired the ship for a term * of years, and the goods were put on board to be sent by * 545 him on a mercantile adventure, the delivery would be ab- solute, as much as a delivery into a warehouse belonging to him, and it would bar the right of stoppage, (a) The idea that the goods must come to the corporal touch of the vendee is exploded ; and it is settled that the transitus is at an end, if the goods have arrived at an intermediate place, where they are placed under the (o) The transitus is not at an end until the goods have reached the place of destina- tion named by the vendee. Coates v. Railton, 6 B. & C. 422 ; and hare come to the actual possession of the vendee, or under circumstances equivalent thereto. Buckley u^Fumiss, 15 Wend. 137; Covell v. Hitchcock, 23 Wend. 611 ; Edwards o. Brewer, 2 M. & W. 375. (d) Snee v. Prescott, 1 Atk. 248 ; Stokes v. La Riviere, cited in 3 T. R. 466, and 3 East, 397 ; Ellis v. Hunt, 3 T. R. 464 ; Richardson o. Goss, 3 Bos. & P. 119 ; Scott V. Pettit, 3 id. 469 ; Smith v. Goss, 1 Campb. 282 ; Lord Alvanley, in 3 Bos. & P. 48 ; Dutton v. Solomonson, 3 id. 582 ; Rowe v. Pickford, 8 Taunt. 83 ; Tucker v. Humphrey, 4 Bing. 516. (c) Bohtlingk v. Inglis, 3 East, 381 ; Cox v. Harden, 4 id. 211 ; Newhall v. Vargas, 13 Me. 93. The master gave a receipt for the goods on delivery on board by the con- signor, and afterwards signed a bill of lading to the consignee. That circumstance did not take away the right of stoppage. Thompson o. Trail, 2 Carr. & P. 334. But in Bolin V. Huffhagle, 1 Rawle, 1, there was a delivery of goods at a foreign port to the master of the consignee's own ship, for him ; and it was held that the transitus was at an end. This last decision may, perhaps, be questioned, inasmuch as the delivery in that case, to the master of the consignee's ship, was for the purpose of conveyance to him, and not Uke the case of Fowler v. Kymer^ cited in the next note, for the purpose of disposal in a foreign market. (a) Fowler v. Kyraer, cited in 8 East, 396 ; Wright v. Lawes, 4 Esp. 82 ; Stubbs v. Lund, 7 Mass. 457, s. p. [ 789 ] * 545 OP PERSONAL PBOPERTY. [PAET V. orders of the vendee, and are to remain stationary until they receive his directions to put them again in motion for some new and ulterior destination, (b) In many of the cases, where the vendor's right of stopping in transitu has been defeated, the deliv- ery was constructive only ; and there has been much subtlety and refinement on the question, as to the facts and circumstances which would amount to a delivery sufficient to take away the right. The point for inquiry is, whether the property is to be considered as still in its transit ; for if it has once fairly arrived at its destination, so as to give the vendee the actual exercise of dominion and ownership over it, the right is gone, (c) The cases in general upon the subject of constructive delivery may be recon- ciled by the distinction, that if the delivery to a carrier or agent of the vendee be for the purpose of conveyance to the vendee, the right of stoppage continues, notwithstanding such a constructive delivery to the vendee ; but if the goods be delivered to the car- rier or agent for safe custody, or for disposal on the part of the vendee, and the middleman is by the agreement converted into a special agent for the buyer, the transit or passage of the goods terminates, and with it the right of stoppage, (c?)^ So, a complete (6) Dixon V. Baldwen, 5 East, 175 ; Poster v. Framptoa, 6 B. & C. 107 ; Dodson v. Wentworth, [4 Man. & Gr. 1080]. (c) Wright V. Lawes, 4 Esp. 82. (d) James v. Griffin, 1 M. & W. 29, 30. I Stoppage in Transitu. — (a) When the contract of sale is completely per- Goods may be stopped. — The vendor may formed, the seller, although he may have stop the goods upon a subsequent discov- agreed to allow credit, is not bound to ery of insolvency existing at the time of deUver any more goods until the price of the sale, as well as upon a subsequent those not yet delivered, or delivered and insolvency, although he could not If not paid for,- is tendered to him. Ex parte he knew it when he sold. Benedict v. Chalmers, In re Edwards, L. E. 8 Ch. Schaettle, 12 Ohio St. 515, disapproving 289, 291. Rogers v. Thomas, 20 Conn. 53. See also Goods must not be in the Hands of Buyer's O'Brien v. Norris, 16 Md. 122 ; Blum t. Servant. — The essential feature of stop- Marks, 21 La. An. 268 ; [Loeb v. Peters, page in transitu is, that the goods should 63 Ala. 243 , Reynolds o. B. & M. E. R. be at the time in the possession of a mid- Co., 43 N. H. 580.] And an overt act of dleman, or some person intervening be- insolvency, such as stopping payment, is tween the seller who has parted with, and not necessary. lb. ; Secomb v. Nutt, 14 the purchaser who has not j'et acquired, B. Monroe, 324. [See Durgy, &c. Co. u. actual possession. A case where the line O'Brien, 123 Mass. 12.] But see Black- of distinction indicated by the text was burn on Sales, 266. applied was said by Wood, V. C, to turn If a purchaser become insolvent before upon whether or not it was the buyer's [790] LECT. XXXIX.] OP PERSONAL PROPERTY. ^ 546 delivery of part of an entire parcel or cargo, with inten- tion to take the whole, terminates * the transitus, and the vendor cannot stop the remainder, (a) ^546 (a) Slubey v. Hey ward, 2 H. Bl. 504; Hammond v. Anderson, 4 Bos. & P, 69; l/ord Ellenborough, 6 East, 627 ; Jones v. Jones, 8 M. & W. 431. In these cases there was an unequivocal act of possession and ownersliip. In other cases, where only a portion of the goods were delivered, and the intention of the vendee was only to take part of the goods, the right of stoppage as to tlie residue has been maintained. Hanson v. Meyer, 6 East, 614 ; Buckley v. Furhiss, 17 Wend. 504 ; Tanner v. Scovell, 14 M- & W. 28. own ship tliat received the goods, or whether he had contracted with some one else, qua carrier, to deliver the goods ; and, on appeal, the Lord Chancellor said the best test was, " wliat would be the case suppose the shipowner or shipmaster had misconducted Iiimself, and either care- lessly lost the goods or misdelivered them." He then went on to show that the declaration of the purchaser against the shipowner would suppose possession in the latter by means of his custody. In this case the charter-party was assumed to be only a contract by tlie owner to carry, and not a demise of the ship. Berndtson v. Strang, L. R. 3 Ch. 588, 590 ; L. R. 4 Eq. 481, 492 ; [Ex parte Rosevear, &c. Co., 11 Ch. D. 560.] The distinction between a servant, whose possession is that of his master, and a bailee, who holds in his own name, is explained 260, u. 1 ; 492, n. 1 ; 558, n. 1. See also'7 Am. Law Rev. 62-64. The ship was the ship of the vendee in Schotsmans v. Lancashire & Yorkshire R. Co., L. R. 2 Ch. 332. See Hays v. Mouille, 14 Penn. St. 48, 52. Effect of Bill of Lading. — But even when the ship belongs to the purchaser, the seller may protect himself, and re- strain the effect of the delivery, by taking bills of lading making the goods deliver- able to his order or assigns. L. R. 2 Ch. .S36 ; L. R. 4 Eq. 492 ; Turner v. Liver- pool Docks, 6 Exch. 543 ; Van Casteel v. Booker, 2 Exch. 691. See Shepherd v. Harrison, L. R. 4 Q. B. 196 ; ib. 493 ; L. R. 5 H. L. 116 ; although, if that was not the object of taking them in that form, they will notpreventthe property from passing. Joyce V. Swann, 17 C. B. n. s. 84, 102 ; Browne v. Hare, 4 Hurlst. & N. 822. As to the eSect of a transfer of the bill, and the equitable right of stoppage after a pledge, see 549, n. 1, [and if, ad fin.'\ (6) End of Transitus. — When the goods have arrived at the place which, as between buyer and seller, is the place of their destination, the transitus is at an end. For instance, when they have been left by the seller at a railway station, and are in the custody of the company, not as carriers but as warehousemen, for the purpose of being afterwards forwarded as the buyer shall direct, there is no right of stoppage. Smith o. Hudson, 6 Best &, S. 431, 434, 445; Biggs v. Barry, 2 Curtis, 259; [Kendall v. Marshall Stevens & Co., 11 Q. B. D. 356 ; Becker v. Hallgarten, 86 N. Y. 167.] See Cabeen D.Campbell, 30 Penn. St. 254. In Harris v. Pratt, 17 N. Y. 249, the original destination was New York. Ib. 262, 269. But it has been held to be other- wise when the goods are in the carrier's warehouse at the end of the transit, await- ing payment of charges and removal by the consignee. Calahan v. Babcock, 21 Ohio St. 281. [See, especially, Ex parte Cooper, 11 Ch. D, 68 ; Durgy, &o. Co. v. O'Brien, 123 Mass. 12.] But compare Guilford v. Smith, 30 Vt. 49, 71, 72. The right remains until the goods have arrived at their contemplated destination. Mohr V. Boston and Albany R. R., 106 Mass. 67. And although the property in the goods [791] * 546 OF PERSONAL PROPERTY. [PART V. A delivery of the key of the vendor's warehouse to the pur- chaser ; (b) or paying the vendor rent for the goods left in his warehouse ; (c) or lodging an order from the vendor for delivery with the keeper of the warehouse ; (d') or delivering to the vendee a bill of parcels, with an order on the storekeeper for the delivery of the goods ; (e) or demanding and marking the goods by the agent of the vendee, at the inn where they had arrived at the end of the journey ; (/) or suffering the goods to be marked and resold, and marked again by the ♦under purchaser, (^) have all been held to amount to acts of delivery, suflBcient to take away the vendor's lien, or right of stoppage in transitu. On the other hand, if the delivery be not complete, and some other act remains (6) Lord Kenyon, 3 T. E. 468. , (c) Hurry v. Mangles, 1 Camp. 452. Suffering the goods, by agreement, to lie free qf rent, in the vendor's warehouse, for a time, is still a complete delivery, and destroys the lien. Barrett v. Goddard, 3 Mason, 107. But as between vendor and vendee, the lien is not devested by an order of vendor, that he holds, to the order of vendee, the goods specified, free of rent, while the goods remain in the same warehouse unpaid for. Townley v. Crump, 4 Ad. & El. 58. (d) Harman v. Anderson, 2 Camp. 243. (e) HoUingsworth v. Napier, 3 Caines, 182.' In Akerman v. Humphery, 1 Carr. & P. 53, it was held that the delivery of a shipping note by the consignee to a third person, with an order to the wharfinger to deliver the goods to such third person, did not pass the property so as to prevent a stoppage in transitu by the consignor ; and that decision was adopted as sound law in Tucker v. Humphrey, 4 Bing. 516. (/) Ellis V. Hunt, 3 T. R. 464. (g) Stoveld v. Hughes, 14 East, 308. has passed, and they have arrived at their unpaid vendor, not to rescind the sale, destination as between buyer and seller. There are many expressions of the same yet, if the consignee repudiates them, it opinion in America. Rowley v. Bigelow, will authorize the conclusion, by a court 12 Pick. 307, 318 ; Atkins a. Colby, 20 having power to draw inferences of fact, N. H. 154 ; Benedict v. Schaettle, 12 Ohio that the right of stoppage remains. Bolton St. 615, 521; Jordan v. James, 5 Ohio, V. Lancashire & Yorkshire R. Co., L. R. 88 ; Rogers v. Thomas, 20 Conn. 58, 68 ; 1 C. P. 431. Chandler v. Fulton, 10 Texas, 2 ; [Bab- (c) Effect of Stoppage. — The language cock v. Bonnell, 80 N. Y. 244; Gunn v. of the text, 541, that the property is Bolckow, 10 L. R. Ch. 491 ; Campbell on revested in the vendor, is believed to be Sales of Goods, &c., 366.] See also inconsistent with what follows, and inac- Schotsmans v. Lancashire & Yorkshire R. curate. It is thought by Mr. Benjamin, Co., L. R. 2 Ch. 332, 340, which contains in his book on Sales, that there is no strong intimations that the lien may be longer a reasonable doubt that the effect enforced in equity. [Ex parte Chalmers, of this remedy is simply to restore tlie 8 L. R. Ch. 289 ; Babcock v. Bonnell, 80 goods to the seller's possession, so as to N. Y. 244.] enable him to exercise bis rights as an See further, 549, n. 1. [792] LECT. XXXIX.] OF PERSONAL PROPERTY. * 547 to be done by the consignor, the right of stoppage is not gone. (K) So, while a vessel is performing quarantine at the port of delivery, and the voyage not at an end, the consignor's right of stoppage has been held not to be devested, even by a premature * possession on behalf of the consignee, (a) That doctrine * 547 has, however, been since contradicted and overruled by Lord Alvanley, in Mills v. Ball, (J) and by Mr. J. Chambre, in Oppenheim v. Russell; (a) and the better opinion now is, that if the vendee intercepts the goods on their passage to him, and takes possession as owner, the delivery is complete, and the right of stoppage is gone.^ But if the goods have arrived at the port of delivery, and are lodged in a public warehouse, for de- fault of payment of the duties, they are not deemed to have come to the possession of the vendee, so as to deprive the consignor of his right, (rf) (A) Withers v. Lyss, 4 Camp. 237; Busk v. Davis, 2 Maule & S. 397; Coates v. Railton, 6 B. & C. 422 ; Naylor v. Dennie, 8 Pick. 198. (a) Hoist V. Pownal, 1 Esp. 240. (b) 2 Bos. & P. 461. (c) 3 id. 54. (d) Northey v. Field, 2 Esp. 613 ; Nix v. Olive, cited in Abbott on Shipping, 426. The English system of warehousing goods was proposed by Sir Eobert Walpole, in 17-33, in his Excise Scheme, but not adopted. Its advantages were pointed out by Dean Tucker, in 1750. The scheme was revived and recommended by Mr. Pitt, and digested in a practical shape under the administration of Mr. Addington. The stat ute of 43 Geo. III. c. 132, laid the foundation of this wise and politic system, and the successive statutes on the subject were consolidated by the act of 4 Geo. IV. in 1823, and the whole amended and reenacted by the statute of 6 Geo. IV. u. 94, and lastly by the statute of 3 & 4 William IV. c. 57, and the Consolidated Act of 8 & 9 Victoria, c. 91, which comprehends the system as now in operation. The object of the warehoiusing system is to lodge imported articles in public warehouses of special security, at a reasonable rent, without payment of the duties on importation, till they are withdrawn for home consumption, and if reexported, no duty is ever paid. It secures the duties on goods lawfully imported for use and sale in England, and relieves the trader from immediate payment in cash, and until the goods are with- drawn for home consumption. It allows the storage even of prohibited goods in British warehouses on special security for reexportation ; and permits the transfer of goods in the warehouse, without requiring payment of the duties, until they are withdrawn for use. If the goods are destroyed by inevitable accident before they are withdrawn, although the government does not stand insurer for their safety, the duties are uniformly remitted. A clear analysis of the warehousing provisions is 1 Whitehead u. Anderson, 9 M. & W. 259. As to the point next stated, see 518 ; ante, 543, n. (/) ; L. R. 6 Eq. 49 ; Donath v. Broomhead, 7 Penn. St. 301 ; London & N. W. R. Co. v. Bartlett. 7 H. Mottram v. Heyer, 5 Denio, 629. Com- & N. 400 ; Secomb v. Nutt, 14 B. Monroe, pare Parker v. Byrnes, 1 Lowell, 539. 324, 327. But see Blackburn on Sales, ,[793] * 548 OF PERSONAL PROPERTY. [PART V. (3.) Of Acts of the Vendee affecting the Right. — A resale of the goods by the vendee does not, of itself, and without other cir- cumstances, destroy the vendor's right of stoppage in transitu, (e) But if the vendor has given to the vendee documents sufficient to transfer the property, and the vendee, upon the strength * 548 of them, sells the goods * to a bona fide purchaser without notice, the vendor would be devested of his right. A bill of lading usually has the word " assigns ; " the goods are to be de- livered to the consignee or his aligns, he or they paying freight; and a great question has accordingly arisen, and been very elabo- rately discussed and litigated in the English courts, whether the bill of lading could be negotiated by the consignee like a bill of exchange, and what legal rights were vested in the assignee. In the case of Lickharrow v. Mason, (^a') it was decided by the K. B. that a bona fide indorsement, for a valuable consideration, of a bill of lading, by the consignee to an assignee, who had no notice given in 1 Bell's Coram. 187-190, 5th ed., and in McCuUoch's Dictionary of Com- merce, 2d ed. art. Warehousing System, where the statute of 3 & 4 William IV. is given at large, with its numerous and detailed provisions. The New York Chamber of Commerce, in November, 1842, prepared and sent a memorial to Congress in favor of estabUsliing the warehousing system in the United States ; and in addition to powerful considerations in favor of it, the memorial sug- gested that tlie warehouse, or dock warrants, or storage receipts, were in England transferable paper, and the holder was regarded as owner of the goods. A flexible and desirable security, representing actual property, was thus thrown into commer- cial circulation. See Phillips v. Huth, 6 M. & W. 572, on the construction of the Factors' Act of 6 Geo. IV. The Congress of the United States, in August, 1846, c. 84, established for the first time a warehouse system. The act declares that duties on all imported goods shall be paid in cash ; but it provides that if duties are not paid, or if the importer or consignee shall make an entry in writing for warehousing the same, the goods shall be deposited in the public stores, or other stores agreed on, at the charge and risk of the importer or consignee, subject to their order, on paying the duties and expenses, to be secured by bonds with sureties, but not to be withdrawn except in specified parcels ; and if satisfactorj' security be given that the goods shall be landed out of the jurisdiction of the United States, or on entry for reexportation, and the payment of the expenses, &c., the goods may be shipped without payment of duties. That if any goods so deposited shall remain beyond one year, without pay- ment of the duties and expenses as aforesaid, they shall be appraised and sold at auction, and the surplus proceeds, after payment as aforesaid, shall be paid over to the owner or consignee. Goods deposited may also be withdrawn and transported to any other port of entry in the United States, with the benefit of drawback under specified regulations. (c) Craven v. Ryder, 6 Taunt. 4.33 ; Lord Alvanley, 3 Bos. & P. 47 ; Whitehouse V. Frost, 12 East, 614 ; Stoveld v. Hughes, 14 id. 308. (o) 2 T. K. 6.3. [794] LECT. XXXIX.] OF PERSONAL PROPERTY. * 549 that the goods were uot paid for, was an absolute transfer of the property, so as to devest the consignor of his right of stoppage in transitu, in case of the vendee's insolvency, as against such assignee. There is no case on mercantile law which has afforded a greater display of acute investigation. The judgment of the K. B. was reversed in the Exchequer Chamber ; and Lord Lough- borough took a masterly view of the whole subject, and com- pletely overthrew the doctrine of the negotiability of bills of lading. (S) The case then went to the House of Lords, where Mr. Justice Buller most ably supported the decision of the K. B. (c) A new trial was awarded, (d) and a special verdict taken, and judgment given thereon without discussion ; the judges of the K. B. declaring, that, notwithstanding the decision in the Ex- chequer Chamber, they retained their former opinions, (e) The question therefore remains, to a certain * degree, still * 549 floating and unsettled ; though it seems now to be consid- ered as the law at Westminster Hall, that if a bill of lading be assigned, bona fide, and for a valuable consideration, it is a trans- fer of the property ; and in the case of the consignee, if it be made without notice of the insolvency of the consignee, the prop- erty is absolutely vested in the assignee of the consignee, and the consignor has in that case lost his right to stop, (a^y^ It (5) Mason v. Lickbarrow, 1 H. Bl. 357. (c) 6 East, 17, in notis. (d) 2 H. Bl. 211 ; 5 T. R. 367. (e) Lickbarrow v. Mason, 5 T. R. 688. In France, the debatable nature of the subject has been strikingly displaiyed ; for the question of the negotiability of bills of lading was discussed by such masters of commercial law as Valin and Emerigon, and they came to directly opposite conclusions. The first maintained that bills of lading were negotiable instruments, and the latter denied it. Valin's Comm. i. 606, 607; Emerigon, des Ass. i. 318, 319. By the Code of Commerce (art. 281), bills of lading may be to order or to bearer. This settles the question in favor of their negotiability. (a) Coxe V. Harden, 4 East, 211 ; Cuming v. Brown, ib. 9, 506 ; Morison v. Gray, 2 Bing. 260 ; Walter v. Ross, 2 Wash. C. C. 283 ; Wharton's Dig. tit. Vendor, n. 80 ; 1 Effectof transferring the Bill of Lading, the property itself while the cargo is at — The bill of lading is not negotiable, in sea. An assignment of it, therefore, the absence of such a statute as is in force passes the complete ownership in the in England ; but for the purpose of con- goods, even as against a person who has veying an interest in the property, it is taken a subsequent bill of lading, and jp- Bill of Lading. — Effect of Dealings with bills of lading, on the question of the with, in transferring Title and Possession. — transfer of title,' rests entirely upon their 1. Title. — The importance of dealings force as evidence of the intention of the [795] 549 OP PERSONAL PEOPERTT. [part V. is likewise considered to be the law in this country that the deliv- ery of the bill of lading transfers the property to the consignee ; Haille v, Smith, 1 Bos. & P. 563. In Morison v. Gray, 9 Moore, C. B. 484, it was held, that the bona fide assignee of a bill of lading had a sufficient property to stop the goods while in transitu, on the insolvency of the vendee, and to sue in his own name the wharfinger who refused to deliver up the goods. But though a bill of lading be negotiable, it seemed in a late case to be doubted whether a bill of lading was conclusive as between the shipowner and a bonajide indorsee for value. Berk- ley V. Watling, 7 Ad. & El. 29. In Birckhead v. Brown, 5 Hill (N. Y.), 634, it was declared that letters of credit and commercial guaranties were not negotiable instruments^ and that no special contracts, other than bills of exchange and promissory notes, were negotiable instruments, and no one could sue in his own name but an original party to the contract. Lamourieux v. Hewit, 5 Wend. 307 ; Watson v. McLaren, 19 id. 557 ; 26 id. 425 ; Miller v. Gaston, 2 Hill (N. Y.), 188. [Of. iii. 84 c] In Thompson v. Dominy, 14 M. & W. 403, it was adjudged that a bill of lading was not negotiable like a bill of exchange, so as to enable the indorsee to sue in his own name. The indorsement transfers the right of property in the goods, but not the contract itself. The court said that there was no case that went so far. who gets possession of the goods. Barber V. Meyerstein, L. R. 4 H. L. 317; L. E. 2 C. P. 38, 661 ; Lickbarrow v. Mason, 1 Sm. L. C. Am. note ; Blanchard i^. Page, 8 Gray, 281, 298. A somewhat similar effect is given to grain receipts in some cases. M'Neil v. Hill, 1 Woolw. 96 ; Bur- ton V. Curyea, 40 111. 320 ; McPherson u. Gale, ib. 368; Second Nat. Bank v. Wal- bridge, 19 Ohio St. 419 ; Gibson v. Stev- ens, 8 How. 384, 400. The law is now well settled in accordance with the text. Gurney v. Behrend, 3 El. & Bl. 622, 687 ; Lee V. Kimball, 45 Me. 172 ; Dows v. Greene, 24 N. Y. 638 ; Pease v. Gloahec, L. R. 1 P. C. 219. But it was held in Spalding v. Ending, 6 Beav. 876 ; L. B. 4 Eq. 486, n. 4, that when the legal right in the goods was transferred for a limited purpose only, such as securing the repay- parties. The presumption is, in case of goods ordered to be shipped from a dis- tance, that both parties intend the title to pass upon shipment. But the mak- ing out and signing of the bill of lading being the final act by which the shipment is completed, the seller may indicate, by the manner in which he orders it to be made out, that it was not his intention to [ 796 ] ment of advances, the seller had still an equitable right to stop, subject to the lien of the holder of the bill of lading. Cov- entry V. Gladstone, L. E. 6 Eq. 44, 48 ; Eodger v. Comptoir d'Escompte de Paris, L. E. 2 P. C. 393, 407. It may be added that when a bill Of lading is accompanied by a bill of ex- change, drawn against the goods covered by it, the bill of exchange must be accepted as a condition precedent to the right to retain the bill of lading, or to any property passing in the goods. Shepherd v. Har- rison, L. E. 5 H. L. 116, 133 ; Bank of Rochester v. Jones, 4 Comst. 497, 502 ; Winter v. Coit, 3 Seld. (7 N. Y.) 288; Marine Bank of Chicago i'. Wright, 48 N. Y. 1. [See National Bank o. Mer- chants' Bank, 91 U. S. 92.] A common transaction is for the have the title pass. This he usually does by having it made to his own order, retaining it in his possession. He there- by reserves at least a right of disposing of the goods while the buyer remains in default, and, it would seem, the legal title as well. Ogg V. Shuter, 1 C. P. D. 47 ; Gabarron v. Kreeft, 10 L. R. Ex. 274; Mirabita v. Imperial Ottoman Bank, 3 LECT. XXXIX.] OF PERSONAL PROPERTY. *549 and it seems to be conceded that the assignment of it by the consignee, by way of sale or mortgage, will pass the property, drawer to hand the bills of lading to the person who discounts the draft, who thereupon becomes entitled to hold them as security for its payment. (48 N. Y. 1. Compare Robey & Co.'s Perseverance Iron Worlds v. Oilier, L. R. 7 Ch. 696.) If they are transferred to the drawee when he accepts the draft, they become part of his estate, as security for the lia- bility he incurs on belialf of the drawers ; and it has been held that when a special acceptance is given, payable on the de- livery up of the bills of lading, which remain meanwhile in the hands of the holder of the acceptance, the holder is to be treated in banlcruptcy as having a security on the property of the acceptor, just as if the latter had received the bills from the holder of the draft, and tlien pledged them back to him. Ex parte Brett, In re Howe, L. R. 6 Ch. 838. See Bissell o. Steel, 67 Penn. St. 443. See further, iii. 85, n. 1, adfinem. Ex. D. 164 ; Farmers', &c. Bank v. Logan, 74 N. Y. 568, and cases infra, in this note. The right which the seller thus retains he may transfer by a transfer of the bill of lading to a bona fide purchaser for value, who will hold the goods as against the original buyer. Miribita o. Imperial Ottoman Bank, and other cases supra. So there is a strong presumption that the title was intended to pass to the ven- dee, where the bill is originally made out in his name, or is indorsed to him. Wig- ton V. Bowley, 130 Mass. 252. In Glyn Mills, &c. Co. u. Dock Co., 5 Q. B. D. 129; 6 Q. B. D. 476; 7 App. Cas. 591, the real question was as to the extent of the contract entered into by the Dock Company, and whether there had been a breach of it ; but in the court of appeal (6 Q. B. D. 475) the question of the passing of the title was largely dis- cussed. It was held by Brett and Bag- gallay, L. JJ., that the effect of a trans- fer of a bill of lading with draft at- tached, on the discount of the draft, was to pass the legal title to the goods ; and that where the bills were made in sets, the first person obtaining a transfer of one of the set gets a title good as against even a bona fide purchaser of a second of the set, — and this though each bill dis- closed the fact that it was only one of a set. See also Skilling v. Bollman, 78 Mo. 666; Gilbert v. Guignon, 8 L. E. Ch. 16. Bramwell, L. J., dissented from this view, holding that such an indorsee gets only a pledgee's title. The question seems to depend upon the intention of the parties, and in many cases this will appear; where it does not, the presumption would seem to be in favor of the title passing. Chartered Bank v. Henderson, 5 L. R. P. C. 501 ; Newcomb v. Boston & Lowell R. R., 115 Mass. 230 ; First Nat. Bank v. Kelly, 57 N. Y. 34 ; Commercial Bank v. Pfeiffer, 22 Hun, 327 ; Skilling V. Bollman, 73 Mo. 665 ; Robinson v. Stuart, 68 Me. 61 ; B. & O. Ry. Co. ». Wilkens, 44 Md. 11. See further, Harris V. Bradley, 2 Dill. 284 ; Halsey v. "War- den, 25 Kans. 128 ; Lee v. Bowen, 5 Biss. 154. So far as the title is concerned, it would seem to be immaterial whether the bill was originally made to order, though the question may be different as to possession. Infra, in this note; Na- tional Bank v. Dearborn, 115 Mass. 219; First Nat. Bank v. Crocker, 111 Mass. 163 ; Emery's Sons v. Irving Nat. Bank, 26 Ohio St. 360, 368. See Henderson v. Comptoir, &c. De Paris, 5 L. R. P. C. 253. So, also, there need not be an actual indorsement. Merchants' Bank v. U. R. R. & T. Co., 69 N. Y. 373 ; St. Louis Nat. Bank v. Ross, 9 Mo. App. 399 (warehouse receipt) ; Holmes v. Bailey, 92 Penn. St. 67. The exact nature of the [797] ^549 OP PERSONAL PROPERTY. [part V. though no actual delivery of the goods be made, provided they vsrere then at sea. The rule is founded on sound principles of mercantile policy, and is necessary to render the consignee right retained by the consignor is not clear. It would seem to be at least a right to re- deem the goods by payment of the draft on default of the drawee. See Glyu Mills, &c. Co. u. Dock Co., 6 Q. B. D. 475. It is quite clear that a bill of lading is not negotiable in the strict sense, even when made transferable or " negotiable '' by statute, and that no one who has sim- ply possession of the bill without title to the goods, or authority from the owner to deal with the title, can transfer the title by transfer of the bill. Possession of the bill confers no greater rights than posses- sion of the goods would. Shaw v. Rail- road Co., 101 U. S. 557; Stollenwerck V. Thacher, 115 Mass. 224; Barnard v. Campbell, 55 N. Y. 456, 462; Tison v. Howard, 57 Ga. 410. But see Tiederaan V. Knox, 53 Md. 612. So as to warehouse receipts. Insurance Co. v. Kiger, 103 U. S. 352 ; Louisville Bank v. Boyce, 78 Ky. 42. 2. Possession. — In many of the cases which have been cited will be found dicta that possession as well as title may be, and presumably is, transferred by a trans- fer of a bill of lading. It is said that the effect of a transfer of a bill is not depend- ent upon its nature as an instrument, but upon the fact that it is the symbol of the goods, and that a delivery of the symbol operates as a delivery of the goods them- selves would if they jyere accessible. It seems clear that a transfer by indorse- ment of a bill made out to order does give an immediate right to possession sufficient to enable the transferee to sus- tain a possessory action. First Nat. Bank u. Crocker, 111 Mass. 163 ; Forbes v. B. & h. R. R. Co., 133 Mass. 154. And it would seem that » sufficient possession is transferred in such case to defeat sub- sequent attaching creditors of the trans- ferror. National Bank v. Dearborn, 115 Mass. 219 ; Hathaway v. Haynes, 124 [798] Mass. 811 ; Adoue v. Seeligson & Co., 54 Tex. 593. But it has been intimated that this would not be true if the bill was not made out originally to order. Hallgarten K. Oldham, 135 Mass. 1. This was a case of a private warehouse receipt, but it was Intimated that even in the case of a bill of lading an assent of the carrier to cease to hold for the transferror and to hold for the transferee must be shown, and that this could not be found where the bill was not to order. Sufficient possession may be transferred by bill of lading to constitute a valid pledge of the goods. Taylor v. Turner, 87 111. 296. So as to warehouse receipts. Merchants', &c. Bank V. Hibbard, 48 Mich. 118; Cochran V. Ripy, 13 Bush, 496. And the ten- dency, at least, of the language of the cases seems to favor the view that a bill of lading is to be treated as a symbol of the goods while they are in transit, and that a transfer of the bill has the same effect as a transfer of the goods would have if they were in hand, subject, of course, to the carrier's right of lien. Forbes v. Fitch- burg R. R. Co., 133 Mass. 154, and cases supra. That a transfer of a bill of lading to a bona Jide purchaser defeats the right to stop in transitu, and that a transfer as secu- rity for an advance has a like effect to the extent of the advance only, see Leask V. Scott, 2 Q. B. D. 376; Kemp v. Falk, 7 App. Cas. 573 ; Becker v. Hallgarten-, 86 N. Y. 167; Loeb v. Peters, 63 Ala. 243; Newhall ti. Central Pac. Ry. Co., 51 Cal. 345. See Farmeloe v. Bain, 1 C. P. D. 445. It has been held, however, that in case of a subsale, if the second vendee has not paid his vendor, the original vendor may inter- cept the payment and cause it to be made to himself. Ex parte Golding, 13 Ch. D. 628. See also Ex parte Falk, 14 Ch. D. 446. But see Kemp v. Falk, supra. LECT. XXXIX.J OP PERSONAL PROPERTY. * 550 safe in the acceptance of the drafts of his correspondent abroad, and to afford him the means of prompt reimbursement or indemnity. (5) *But it must not be understood that the consignee can, * 550 in all cases, by his indorsement of the bill of lading to a third person, even for a valuable consideration and without col- lusion, defeat the right of the consignor to stop the goods. It will depend upon the nature and object of the consignment, and the character of the consignee. As a general rule, no agreement made between the consignee and his assignee can defeat or affect this right of the consignor ; and the consignor's right to stop in transitu is prior and paramount to the carrier's right to retain as against the consignee, (a) A factor, having onlj' authority to sell, and not to pledge the goods of his principal, cannot devest the consignor of the right to stop the goods in transitu, by indorsing or delivering over the bill of lading as a pledge, any more than he could by delivery of the goods themselves by waj' of pledge ; and it is the same thing whether the indorsee was or was not igno- (6) Wright V. Campbell, 4 Burr. 2051 ; Griffith v. Ingledew, 6 Serg. & R. 429 ; Peters v. BaLlistier, 3 Pick. 495 ; Walter v. Ross, supra. In Conard v. The Atlantic; Insurance Company, 1 Peters, .386, it was decided that the consignee being the authorized agent of the owner to receive the goods, his indorsement of the bill of lading to a bona fide purchaser, for a valuable consideration, without notice of any- adverse interest, passed the property as against all the world. This is the result of the principle, that bills of lading are transferable by indorsement, and pass the prop- erty. Strictly speaking, no person but such consignee can, by indorsement of the bill of lading, pass the legal title to the goods ; but if the shipper be the owner, and the shipment be on his account and risk, he can pass the legal title by assignment of the bill of lading, or otherwise ; and it will be good against all persons, except the pur- chaser, for a valuable consideration, by an indorsement of the bill of lading itself. The same principle was declared in Nathan v. Giles, 5 Taunt. 558. A deposit of the bill of lading, without indorsement, will create a lien on the cargo to the amount of the money advanced on the strength of the deposit, which would be superior to the consignor's right of stoppage. That right came from the courts of equity, and is founded upon equitable considerations; and it consequently must yield to a still higher equity in a third person. In Louisiana, it has been held that goods shipped could not be attached by the creditors of the shipper, after the bill of lading had come into the hands of the consignee ; but they might be attached by the creditors of the consignee. M'Neill v. Glass, 13 Martin (La.), 261. (a) Oppenheim v. Russell, 3 Bos. & P. 42, The right of stoppage is held not to be devested, though the goods be levied on by execution, at the suit of a creditor of the purchaser, provided it be exercised before the transitvs is at an end. The vendor's lien has preference ; it is the elder lien, and cannot be superseded by the attachment of a creditor. Smith v. Goss, 1 Campb. 282 ; Buckley v. Furniss, 15 Wend. 137 ; Marshall, J., in Hause v. Judson, 4 Dana (Ky.), 11. [799] *551 OF PEBSONAL PROPERTY. [PART V; rant that he acted as factor. (6) If the assignee of the bill of lading has notice of such circumstances as render the bill of lading not fairly and honestly assignable, the right of stoppage as against the assignee is not gone ; and any collusion or fraud between the consignee and his assignee will of course enable the consignor to assert his right. But the mere fact that the assignee has * 551 notice that * the consignor is not paid, does not seem to be of itself absolutely sufficient to render the assignment de- feasible by the stopping of the cargo in its transit, if the case be otherwise clear of all circumstances of fraud; though, if the assignee be aware that the consignee is unable to pay, then the assigiament will be deemed fraudulent as against the rights of the consignor, (a) The buyer, if he finds himself unable to pay for the goods, may, before deliTery, rescind the contract, with the assent of the seller. But this right of the buyer of rejecting the goods subsists only while the goods are in transitu. After actual delivery, the goods become identified with his property, and cannot, in con- templation of bankruptcy, be restored to the seller ; nor can he interfere and reject the goods, though in their transit, after an act of bankruptcy committed ; for this would be to give a pref- erence among creditors. (J) Sir William Scott observed, (c) that this privilege of stoppage was a proprietary right, recognized by the general mercantile law of Europe, as well as by that of England. It was recognized in Scotland in 1790 ; and the French law has gone very far towards the admission of the right, to the full extent of the Eng- lish rule. It allows the vendor to stop the goods in their transit to the consignee, in case of his non-payment or failure, provided the . (6) Newaon v. Thornton, 6 East, 17. (o) Cuming v. Brown, 9 East, 506. As long as the vendor of goods deUvered for exportation retains the receipt given to the cartmen, the shipment is not complete, and the right of stoppage not gone. Bradner v. Jones, N. Y. Legal Observer for March, 1847. (fc) Smith V. Field, 5 T. R. 402 ; Barnes v. Freeland, 6 id. 80 ; Richardson v. Goss, S Bos. & P. 119 ; Bartram v. Parebrother, 1 Dans. & Lloyd, 42. Independent of the question under statutes of bankruptcy, it seems to be settled that the vendee's consent to restore goods, and the vendor's consent to receive them, revests the prop- erty in the vendor, and amounts to a rescission of the sale, so as to prevent a seizure at the suit of creditors. Atkin v. Barwick, Str. 165 ; Salte v. Field, 5 T. R. 211 ; Ash V. Putnam, 1 Hill (N. Y.), 303, 310. (c) 6 C. Rob. 498. [800] LECT. XXXIX.] OF PERSONAL PROPERTY. * 553 goods have not been in the mean time sold bona fide, according to the invoices and bills of lading, or altered in their nature or quan- tity, and the estate of the insolvent vendee be indemnified against all necessary expenses and advances on account of the goods ; and the assignees of the vendee will be entitled to the goods on pay- ment of the price. (J) The civil law, and the laws of those European nations which have * adopted the civil law, con- * 552 tain a great impediment to- the absolute negotiability of bills of lading ; for they do not consider the transfer of property to be complete, even by sale and delivery, without payment or security for the price, unless credit be given. In case of insol- vency, the seller may reclaim the goods, as being his own prop- erty, even from the possession of the buyer, provided they remain unchanged in form, and distinguishable from his other goods, (a) This was also the law of France, until the commercial code adopted the law of stopping m transitu, and rejected the old law of revendication, as tending to litigation and fraud, (h) 12. Of the Interpretation of Contracts. — The rules which have been established for the better interpretation of contracts, are the conclusions of good sense and sound logic, applied to the agreement of the parties. Their object is to ascertain with pre- cision the mutual understanding of the contract in the given case ; and like other deductions of right reason, they have been quite uniform in every age of cultivated jurisprudence. The title De Diversis Regulis, in the Pandects, (e) as well as the senten- tious rules and principles which pervade the whole body of the civil law, show how largely the common law of England is indebted to the Roman law for its code of proverbial wisdom. There are scarcely any maxims in the English law but what were derived from the Romans ; and it has been affirmed, by a very competent judge, that if the fame of the Roman law rested solely on the single book of the Pandects, which contains the regulce Juris, it would endure * forever on that founda- * 553 (ef ) Code de Commerce, nos. 576-580, 582. (a) See Lord Abinger's sketch of the progress of the doctrine of stoppage in transitu. Gibson v. Carruthers, 8 M. & W. 336. (6) Dig. 18. 1. 19; Domat, b. 4, tit. 5, sec. 2, art. 3; "Van Leeuwen's Coram, on the Roman Dutch Law, b. 4, c. 17, sec. 3; Case at St. Petersburg, in Russia, cited in Bohtlingk v. Inglis, 3 East, 386 ; Case at Amsterdam, cited in the note to 1 Bell's Comm. 217, 218. See supra, 498. (c) Dig. 50. 17. yoL.u.-51 [801] *554 OP PERSONAL PROPERTY. [PART V. tion. (a) Besides the authoritative collection of maxims already referred to, there is a still larger collection of principles in the same condensed shape, drawn by one of the modern civilians from every part of the civil law, and digested with great dili- gence and study. It is contained in some of the editions of the Corpus Juris Civilis; and in them it immediately precedes thej code. (6) Among the common-law writers who have made compilations of this kind, Lord Bacon stands preeminent. In his treatise De Augmentis Sdentiarum there are nearly one hundred aphorisms, containing principles which lie at the foundation of universal jus- tice, and the sources of municipal law. He defines his collection to be Hxemplum tractatus de justitia universali, sive de fontibus I'uris ; and it is a code proper for the study of statesmen, as well as lawyers ; for it abounds in principles of legislation, as well as of distributive justice, (e) Another work of Lord Bacon consists of his maxims, or elements of the common law, being some of those conclusions of reason, or condensations of truth, dispersed throughout the body of the law, and worthily and aptly called by a great civUian, legum leges> Ancient wisdom and science were frequently embodied and delivered in this form. And Lord Bacon does not content himself with merely setting dowu his axioms, like ambiguous oracles, obscure by their brevity and affording little light or direction ; he accompanies each of * 554 his maxims with a clear and ample * exposition, " breaking them into cases, and opening them with distinctions, and sometimes showing the reasons whereon they depend, and the affinity they have with other rules." (a) There are other collec- tions of law maxims of great value. " The Grounds and Maxims of the English Laws," by William Noy, attorney general in the (a) In Wood's Institutes of the Civil Law, b. 3, c. 1, p. 207, there is a collection of the most useful and practical rules of the civil law to be observed in the interpreta- tion of contracts. (6) It is entitled, Regulae et SententisB Juris, ex universo Corpore Juris Civilis . sparsim coUectaB, et in Ordinem alphabetlcum digestae ; and it is the production of J. Hennequinis, a learned doctor of the civil law. (c) Bacon's Works, vii. 489. The aphorisms relate specially to the dignity of the law ; to defective and omitted provisions ; to the obscurity and uncertainty of law ; to retrospective and cumulative laws ; to the new digests of the laws ; to the force and value of precedents ; to the influence of commentaries and forensic opinions, &c. (a) See the Preface to Lord Bacon's "Maxims of the Law." Bacon's Works, iv. 10. [ 802 ] LECT. XXXIX.] OP PERSONAL PROPEETY. * 554 reign of Charles I., is a collection of reputation and authority, applicable to every general head of the law. In imitation of Lord Bacon, Noy has accompanied each of his maxims with cases and precedents, affording a copious illustration of his principles. The collection by T. Branch is much more extensive and com- plete. It is an admirable vade mecum, for the use of the bench and the bar. It draws so copiously from the common-law reports and writers of the age of Elizabeth, and since that time, that it may be regarded as the accumulated spirit and wisdom of the great body of the English law. The only difficulty is, that the maxims require study and profound reflection in the application of them, especially as they are unassisted by any commentary, and stand naked in all the brevity and severity of their original abstraction. (5) The space allowed to the subject will only permit me to refer, by way of sample, to a few of the more leading rules of construc- tion applicable to contracts, (c) It may be observed, in the first place, that the rules of con- struction of contracts are the same in courts of law and of equity, and whether the contract be under seal or not under seal. C<^) The mutual intention of the parties to the instrument is the great, and sometimes the difficult, object of inquiry, when the terms of it are not free from ambiguity. To reach and carry that inten^ tion into effect, the law, when it becomes necessary, will control (6) This work was originally a small duodecimo volume, printed at London in 1753, entitled, Principia Legis et Equitatis, being an alphabetical collection of Max- ims, Principles, or Rules, Definitions, and Memorable Sayings, in Law and Eauiiy. It adds very much to the utility and interest of the compilation, that it gives, in almost every instance, the original author, and book, and case, from whence the maxims were drawn. The third American edition, taken from the ninth London edition of Noy's Maxims, edited by Mr. Hening, was published at Philadelphia, in 1845, by T. & J. W. Johnson ; to which was added Francis's Maxims of Equity ; and Branch's Principia Legis, forming a very valuable collection of legal principles, and with which every lawyer should be familiar. (c) There is, in the American Jurist for July and October, 1840 (vols, xxiii. and xxiv.), a useful collection of the most prominent rules of construction of contracts, accompanied with practical illustrations, and a large reference to the authorities sus- taining them. It is understood to be the production of a learned and accurate com- mon-law jurist. "A Selection of Legal Maxims, classified and illustrated," by Herbert Broom, Esq., London, 1845, is also a valuable compilation of the more important legal maxims of practical use, and they are accompanied with the exposi- tion of them in the leading cases and with a commentary upon them, which is exceedingly instructive, and may be safely recommended to the profession. (d) The Master of the Rolls, 3 Ves. 692; Lord Ellenborough, 13 East, 74. [ 803 ] * 555 OF PERSONAL PROPERTY. [PAET Y. even the literal terms of the contract, if they manifestly • 555 contravene the purpose ; and many cases * are given in the books, in which the plain intent has prevailed over the strict letter of the contract, (a) The rule is embodied in these common-law maxims : "Verba ita sunt intelligenda ut res magis valeat quam pereat — Verba debent intentioni inservire ; and in these in the civil law : In conventibus contrahentium voluntatem potius, quam verba, spectari placuit — Quoties in stipulationibus ambigua oratio est commodissimum est id accipi quo res de qua agitur in tuto sit. (J) In furtherance of the rule that the inten- tion of the parties is to be ascertained, it is another principle, that plain, unambiguous words need no interpretation, and sub- tlety and refinement upon terms would defeat the sense. The bulk of mankind act and deal with great simplicity ; and on this is founded the rule that benignse faciendse interpretationes car- tarum propter simplicitatum laicorum. Words are tobe taken in their popular and ordinary meaning, unless some good reason be assigned to show that they should be understood in a different sense. Quoties in verbis nulla est ambiguitas ibi nulla exposito contra verba fienda est. Si nulla sit conjectura quae ducat alio, verba intelligenda sunt ex proprietate, nori grammatica sad popu- lar! ex usu. (c) But if the intention be doubtful, it is to be sought after by a reference to the context, and to the nature of the contract. It must be a reasonable construction, and accord- ing to the subject-matter and motive, (c?) Sensus verborum ex causa dicentis accipiendus est, et secundum subjectam materiam. The whole instrument is to be viewed and compared in all its parts, so that every part of it may be made consistent and effect- ual. Ex antecedentibus et consequentibus optima fit interpretatio. So, also, ad proximum antecedens fiat relatio, nisi impediatur sententia. The relative same refers to the next antecedent, (e) though the word said does only when the plain meaning of the writing requires it. The sense of the instrument is to be sought, (a) Co. Litt. 45, a, 301, b; Lord Hardwicke, in 2 Atk. 32; Lord C. J. Willes, in Parkhurst v. Smith, Willes, 332; Bache v. Proctor, 1 Doug. 382, Dormer v. Kniglit, 1 Taunt. 417; Hotham, B., and Thompson, B., 1 H. Bl. 586, 586, 595; Lord Kenyon, in Tatlock v. Harris, 3 T. R. 181 ; Pothier, Traits des Oblig. n. 91. (6) Dig. 46. 1.80; ib. 60. 16. 219. (c) Grotius de Jure B. et P. 2. 16. 2. (d) Ashhurst, J., 1 T. R. 708 ; Best, C. J., 2 Bing. 622. (e) Co. Litt. 20, b, 385, b. [804j 1.ECT. XXXIX. J OF PERSONAL PBOPBRTY. *556 also, by a reference to the usage of the place, or the lex loci, according to another of the maxims of interpretation in the civil law. Si non appareat quid actum est, in contractibus veniunt ea qu8e sunt moris et consuetudinis in regione in qua actum est. (/) If it be a mercantile case, and the instrument be * not clear and unequivocal, evidence of the usage or * 556 course of trade at the place where the contract is to be carried into effect is admissible to explain the meaning and remove the doubt, (a) . The law places more reliance upon written than oral testi- mony ; and it is an inflexible rule, that parol evidence is not admissible to supply or contradict, enlarge or vary, the words of a contract in writing. That would be the substitution of parol to written evidence under the hand of the party, and it would lead to uncertainty, error, and fraud, (h) Parol evidence is received, when it goes, not to contradict the terms of the writ- ing, but to defeat the whole contract, as being fraudulent or illegal; for it then shows that the instrument never had any valid operation ; and this rule is supported on grounds of policy and necessity. So, when a? contract is reduced to writing, all matters of negotiation and discussion on the subject, antecedent to and dehors the writing, are excluded as being merged in the instrument, (e) In the case, however, of a latent ambiguity, or one not appearing on the face of the instrument, but arising entirely in the application of it, — t as when the person or object in view is not designated with precision, — the maxim fitlj' ap- plies, thafr ambiguitas verborum latens verificatione suppletur ; nam quod ex facto oritur ambiguum verificatione facti tollitur. (c?) (/) Dig. 50. 17. 34. Mr. Justice Story, in his Comm. on the Conflict of Laws, 225-233, has enforced the numerous authorities, and by illustrations, the general rule, that, in the interpretation of contracts, the law and custom of the place of the contract are to govern. (a) Webb t,. Plummer, 2 B. & Aid. 746; Coit o. Com. Ins. Co., 7 Johns. 385; Gibbon v. Young, 8 Taunt. 261 ; Bottomley v. Forbes, 5 Bing. N. C. 121. [See Grace V. American Central Ins. Co., 109 U. 8. 278 ; Ledyard v. Hibbard, 48 Mich. 421.] If technical terms are employed, they are to be taken in a technical sense, — verba artis ex arte. (h) Piersons v. Hooker, 3 Johns. 68 ; Jackson v. Foster, 12 id. 488. (c) Abbott, C. J., in Kain u. Old, 2 B. & C. 627 ; Parkhurst v. Van Cortlandt, 1 Johns. Ch. 273; Dean v. Mason, 4 Conn. 428. (d) Lord Bacon's Maxims, Eegula, 23 ; Cole w. Wendel, 8 Johns. 116. It is a well-settled rule, and one which has been acknowledged in all the cases on the subject, [805] *557 OF PERSONAL PROPERTY. [PART V. The rule that the language of a deed or contract is to be taken most strongly against the party using it (verba ambigua fortius accipiuntur contra proferentem), though it be a rule, according to Lord Bacon, " drawn out of the depth of reason," applies only to cases of ambiguity in the words, or where the exposition is requi- site to give them lawful effect. It is a rule of strictness and rigor, and not to be resorted to but where other rules of * 557 exposition fail, (e) The * modern and more reasonable practice is, to give to the Janguage its just sense, and to search for the precise meaning, and one requisite to give due and fair effect to the contract, without adopting either the rule of a rigid or of an indulgent construction. The Roman law maxims of interpretation in such cases Avere that in dubiis benigniora prse- ferenda sunt. In obscuris quod minimum est, sequimur — secundum promissorem interpretamur. (a) The true principle of sound ethics is, to give the contract the sense in which the person making the promise believed the other party to have accepted it, if he in fact did so understand and accept it. (6) If the object of the contract be present, an ei-ror in the name does not vitiate it ; as if A. gives a horse to C. (D. being pres- ent), says to him, (C.) "-D., take this horse," the gift is good, from Cheyney's Case, 5 Co. 68, down to this day, that parol evidence is inadmissible to supply or contradict, enlarge or vary, the words of a will, or explain the intention of the testator, except in a case of a latent ambiguity arising dehors the will, as to the person or subject meant to be described, or to rebut a resulting trust. Mann v. Exec- utors of Mann, 1 Johns. Ch. 234 - Doe i). Chichester, 4 Dow, 65, 96 ; Hand v. Hoff- man, 3 Halst. 71. The rule as to the ambiguity applies equally to deeds and to all written instruments. lb. ; Meres v. Ansell, 3 Wills. 275. The maxim of Lord Bacon, that ambiguitas patens is never helped by averment, is too general. It is sub- ject to qualifications, and this is sufficiently shown in the learned decision in Fish i:. Hubbard's Administrators, 21 Wend. 651. In extrinsic cases, parol evidence is often admitted to explain a patent ambiguity. Duer on Insurance, i. 170, [lect. 2, part 1, § 16.] At the end of the Treatise of Mr. Wigram on the Adoption of Extrinsic Evi- dence, there are observations on the cases relative to Lord Bacon's rule concerning latent and patent ambiguities. (c) Bacon's Maxims of Law, No. 3. (a) Dig. 45, 1. 99 ; ib. 50. 17. 9. 66. However, if the deed from its ambiguity creates a doubt, the construction is to be favorable to the grantee, and there is no distinction, in this respect, between the language of the grant itself, and that of any exception or reservation contained in it. C. J. Parker cites the authorities and enforces the nile in his able decision in Cocheco Man. Co. v. Whittier, 10 N. H. 305. (b) Every treaty, says Vattel, should be interpreted as the parties understood it when the act was prepared and accepted. Droit des Gens. b. 2, c. 17, sec. 268. Vide supra, i. 460, note. [806] LECT. XXXIX.] OP PERSONAL PROPERTY. * 557 notwithstanding a mistake in the name ; for the presence of the grantee gives a higher degree of certainty to the identity of the person than the mention of his name. So, if the error consists in the demonstration or reference, and not in the name of the thing, — as if A. grant to B. his lot of land called Dale, in the parish of B., in the county of D., and the lot lies in the county of H., — yet the falsity of the addition does not affect the efficacy of the contract. Many other cases to the like effect are put by Lord Bacon, and given by way of illustration of the rule, that prgesentia corporis toUit errorem nominis, et Veritas nominis toUit errorem demonstrationis. (o) (c) Bacon's Maxims of the Law, Eeg. 25 j Smith v. Smith, \ Bdw. Ch. 189; Doe V. Cranstoun, 7 M. & W. 1. [807] 559 OP PERSONAL PROPEETY. [PART V. LECTURE XL. OP BAILMENT. *, Bailment is a delivery of goods in trust, upon a contract, expressed or implied, that the trust shall be duly executed, and the goods restored by the bailee, as soon as the purpose of the bailment shall be answered, (a) ^ There are five species of bailment, according to Sir William Jones, in his correction of Lord Holt's enumeration of the differ- ent sorts of bailments. 1. Depositum, or a naked deposit without reward. 2. Mandatum, or commission, which is gratuitous, and by which the mandatary undertakes to do some act about the thing bailed. 3. Oommodatum, or loan for use without pay, and when the thing is to be restored in specie. 4. A pledge, as when a thing is bailed to a creditor as a security for a debt. * 559 * 5. Locatio, or hiring for a reward, (a) I shall examine each of them in their order. (a) 2 Bl. Comm. 451 ; Pothier, Traits du Contrat de Depot, n. 1. Mr. Justice Story, in his Commentaries on the Law of Bailments, spealis of a consignment to a factor as being a bailment for sale ; and he applies the term " bailment " to cases in which no return or delivery, or redelivery to the owner or his agent, is contemplated. But I apprehend this is extending the definition of the term beyond the ordinary acceptation of it in the English law. (a) Jones's Essay on the Law of Bailments, 36. Bailments have been reduced, by a late master hand, to three kinds : 1. Those in which tlie trust is for the benefit of the bailor, and wliich embrace deposits and mandates. 2. Those in which the trust ^ Truniek v. Smith, 63 Penn. St. 18, between bailment, properly so called, and 23. giving a thing into the custody of a ser- The origin of this title is explained by vant or agent to possess. The latter has the present writer, 6 Am. Law Rev. 42 et not possession in a legal sense, as he holds seq. The objections there urged against it ih the name of his master. A bailee, require some qualification. It will be seen properly so called, holds in his own name, that there is an important distinction Ante, 260, n. 1 ; 7 Am. Law Rev. 62-64. [808] LECT. XL.] OF PERSONAL PROPERTY. * 560 * 1. Of Depositnm. — This is a bailment of goods to be * 560 kept for the bailor, and returned upon demand without a recompense ; and as the bailee or depositary derives no benefit from the bailment, he is to keep them with reasonable care ; and he is responsible, if there be no special undertaking to the con- trary, only for gross neglect, or for a violation of good faith, (a) As a general rule, he is not answerable for mere neglect, if the goods be injured or destroyed while in his custody, if he takes no better care of his own goods, of the like value and under the like circumstances, and they be also spoiled or destroyed, (b) Mere neglect, in such a case, is not gross neglect, since the latter is tantamount in the mischief it produces to a breach of good faith, and it usually implies it ; but whether fraud does or does not, in point of fact, accompany gross neglect in a depositary, he is still responsible for it in law. Gross neglect, as was observed by C. J. Parker, (e) bears so near a resemblance to fraud as to be equivalent to it in its effects upon contracts. Gross neglect is the want of that care which every man of common sense, under the circumstances, takes of his own property, (c?) is for the benefit of the bailee, as the commodatum, or gratuitous loan for use. 3. Those in which the trust is for the benefit of both parties, as pledges or pawns, and hiring and letting to hire. Story's Comm. on Bailments, 3, [§ 3.] (a) Quia nulla utilitas ejus versatur apud quem depositur, merito dolus praestatur solus. Dig. 13. 6. 5 ; Foster v. The Essex Bank, 17 Mass. 479 ; Lafarge v. Morgan, 11 Martin (La.), 462 ; Doorman v. Jenkins, 4 Nev. & M. 170. In this last case it was held that what would amount to gross negligence was a question for a jury. The law raises an assumpsit in all cases, even in that of a, gratuitous bailment, that the bailee will keep and deliver safely and securely, which means due care in all cases ; but the degree of care varies according to the nature of the bailment, and becomes stringent in cases of carriers and bailees for hire. Ross v. HUl, C. B. 1846 ; N. Y. Legal Observer for August, 1846 ; [2 C. B. 877,] (6) See Poster «. Essex Bank, infra, 563, n. {d). (c) 17 Mass. 500. (d) Jones's Essay, 90-93 [118] ; Lord Holt, in Coggs v. Bernard, 2 Ld. Raym. 913. In the civil law, gross negligence was termed magna culpa or lata culpa, and it was in some cases deemed equivalent to fraud or deceit. Lord C. J. Tindal, in 2 Mann. & Gr. 852, 1 Q. B. 38, says, that it also, in the English law, approximates to and cannot be distinguished from dolus malus, or misconduct. But it is not fraud by inference of law, but a matter of fact for a jury. Wilson v. Y. & M. R. Road, 11 Gill & J. 58. It was put by Paulus for fraud, and by Ulpian it was held to be plainly assimilated to fraud. Magna negligentia culpa est, magna culpa dolus est. Lata culpa plane dolo comparabitur. Dig. 50, 16. 226; ib. 11. 6. 1. 1. It was not understood by the civilians to be absolutely fraud, but only the presumptive evidence of fraud, when applied to cases "of trust. In many other cases the presumption was not raised. It was not held to be such under the Cornelian law, ne in hac lege culpa lata pro dolo accipitur. Dig. 48. 8. 7. Prooulus would not admit that lata culpa amounted to [809] 561 OP PERSONAL PROPERTY. [PART T. * 561 * The main inquiry in the case is, what is the duty, and what is the responsibility of the bailee. The general measure of diligence requisite in every species of bailment is regulated, in a greater or less degree, by the nature and quality of the thing bailed, and by the understanding and practice of the city or country in which the parties resided or happened to be. Diligence is a relative term ; and it is evident that what would amount to the requisite diligence at one time, in one situation, and under one set of circumstances, might not amount to it in another, (a) ^ The deposit is to be kept with the ordinary care dolus ; but Nerva and Celsus insisted that it amounted to the same thing, in effect, when applied to bailment ; for though a. person had not ordinary care, yet, if he bestowed less care than was ordinary for him on a thing confided to his care, it was evidence of bad faith. Dig. 16. 3. 2. Culpam tamen dolo proximam contineri quis merito dixerit. Dig. 43. 26. 8. 3. Deceit (dolus) is any subtle contrivance, by words or acts, with a design to circumvent. Fraud imports damage or detriment. (o) Batson v. Donovan, 4 B. & Aid. 21 ; Story's Comm. on Bailments, 12, [§ 17.] 1 Negligence. — In most instances judi- cial action is determined by a belief in one of several facts ; as, that the legisla- ture passed a certain statute, and that it applies to the present case ; that an earlier case was decided by the court, and that the present is not distinguishable from it ; that it will be for the public benefit to lay down a certain rule ; that the practice of a specially interested class, or of the pub- lic at large, has generated a rule of con- duct outside the law which it is desirable that the courts should recognize. Such facts have been sometimes alleged in pleading, obviously on the ground that if true, they will suggest the rule of con- duct to be applied by the court ; but their tendency is to disappear, because the fiction is, that the law — that is, the rule of conduct to be applied to any set of circumstances — is known beforehand, and when it is actually known, it is im- material what are the motives upon which the court acts. Compare Crouch v. Lon- don & N. W. E. Co., 14 C. B. 255, 283 ; Calye's Case, 8 Co. Rep. 32 ; Co. Lit. 89, a, n. 77 ; Ch. PI. Ist ed. 219. This fiction cannot be fully acted up to with regard to the customs of merchants, but [810] as the fact that such customs exist is only important for the reasons indicated, the courts need not inquire into one at all if they can see that they would not follow it ; or, if they would follow it, they may ascertain its existence in any way wliich satisfies their conscience. They may recognize it judicially, as they would a statute. Gibson v. Stevens, 8 How. 384, 398, 399. They may inquire about it in pais after a demurrer. Pickering v. Bark- ley, Style, 132. They may act on the statement of a special jury, as in the time of Lord Mansfield and his successors, or upon the finding of a common jury based on the testimony of witnesses, as is the practice to-day. But many instances will be found in the text which show that when the facts are ascertained, they dis- appear, and give place to a rule of law. When there is no definite fact, such as a statute, a precedent, a custom, or a rule of public policy, a belief in which deter- mines the action of the judges, they some- times accept what would be the conduct of a prudent man — meaning thereby of the jury — as their standard. Civil liability does not necessarily depend on culpability, but often simply on LECT. XL.J OP PERSONAL PROPERTY. *561 applicable to the case under its circumstances, and the depositary cannot make use of the thing deposited without the consent of the bailor expressly given or reasonably implied, (b) (A) Dig. 16. 3.29; Pothier, Traits de Depot, n. 34 ; Story, Comm. 67-70, [§§ 89-92.] the bringing about, or permitting to come to pass, certain external facts. This is clear when a defendant is held liable for damage resulting from extra hazardous sources, without any allegation of negli- gence, as in Rylands u. Fletcher, L. R. 3 H. L. 330; Shipley v. Fifty Associates, 106 Mass. 194. It is believed to be equally true in many instances, where the question of negligence is left to the jury. This is generally done where the judges have no clear standard of their own, in doubtful cases lying between two extremes in neither of which the jury would be consulted. When the court decides without a finding, it decides that certain overt acts or external facts are a ground of liability irrespective of any culpable condition of the part3''s con- sciousness. When the jury are called in, it would seem that the ground of liability is not changed, but that the court asks their aid in ascertaining a fact — what would have been the conduct of prudent men — which it adopts as the standard of conduct to be applied. If this be so, it rests in the discretion of the court whether any such question of fact shall be asked, 7 Am. Law Rev. 661, note ; and it is clearly proper for the judge, so far as he entertains an opinion, to lead the jury " by a cautious and discriminating direction ... to dis- tinguish as far as they can degrees of things which run more or less into each other," Giblin u. McMullen, L. R. 2 P. C. 317, 336; although undoubtedly there has been a strong current of opinion against the attempt to distm- guish the degrees of negligence after the manner of the Roman law, Grill V. General Iron Screw Collier Co., L. R. 1 C. P. 600, 612 ; Briggs v. Taylor, 28 Vt. 180, 186 ; The New World, 16 How. 469, 474; Perkins v. N. Y. C. R. R., 24 N. Y. 196, 207 ; Wells v. N. Y. C. R. R., ib. 181, 187 ; Coggs v. Bernard, 1 Sm. L. C. Am. note ad finem ; Jenkins u. Motlow, 1 Sneed, 248, 252 ; 4 Am. Law Rev. 351 and 407. See Beal «. South Devon R. Co., 3 Hurlst. & C. 337, 342. The author- ities on the other side are collected 5 Am. Law Rev. 38 et seq. Furthermore, when the facts are admitted, or capable of exact statement, it is simply a question of policy, not here discussed, whether the function of the Jury shall not cease after a rule suggested by their finding has been applied to the satisfaction of the court, and whether that rule shall not be adopted thereafter by the court as a precedent in like cases, on the principle mentioned at the beginning of this note, and in accordance with the tendency of the law to work out exact lines through the region of uncertainty always to be found between two opposite extremes, by the contact of opposite decisions. As has been done, for instance, in the rule against perpetuities, or as to what is a reasonable time for presenting negotiable paper ; as is happening with regard to sales, by successive decisions as to what are dif- ferences in kind, and what are only differences of quality ; as has partially taken place with regard to ancient lights, when the former rule, that an infraction of a prescriptive right of light and air, to be illegal, must be substantial, a question of fact for a jury (Back v. Stacey, 2 0. & P. 465), is giving place to the exact formula that, in ordinary eases, the build- ing complained of must not be higher than the distance of its base from the dominant windows. Beadel v. Perry, L. R. 3 Eq. 465. The substance of this note will be found amplified in an article by the writer on the Theory of Torts, 7 Am. Law Rev. 652. [811 J * 562 OF PEBSONAL PROPERTY. [PABT V. In Bonian's case (c) the depositary had a chest containing plate and jewels deposited with him. The chest was locked, and he was not informed of the contents. In the night his house was broken open and plundered, as well of the chest with its contents as of his own goods. An attempt was made to charge the bailee ; but there was no foundation for the charge, since the bailee used ordinary diligence, and the loss was by a burg- lary ; and it was accordingly held that the bailee was not answerable. Such a bailee, who^receives goods to lieep gratis, is under the least responsibility of any species of trustee. If he keeps the goods as he keeps his own, though he keeps his * 562 own negligently, he is not answerable * for them ; for the keeping them as he keeps his own is an argument of his honesty. " If, " says Lord Holt, " the bailee be an idle, carel«sss, drunken fellow, and comes home drunk, and leaves all his doors open, by reason whereof the goods deposited are stolen, together with his own, he shall not be charged, because it is the bailor's own folly to trust such an idle fellow, (a) As he assumes the trust gratuitously, he is bound to good faith. He is only answer- able for fraud, or for that gross neglect which is evidence of fraud. Indeed, if such a bailee had undertaken to keep the goods safely, yet, as he hath nothing for keeping them, he would not be responsible for the loss of them by violence. (6) y^ (c) Year Book, 8 Edw. II. ; Fitz. Abr. tit. Detinue, pi. 59, and cited by Lord Holt, in 2 Ld. Kaym. 914, and in Jones on Bailment, 28. - (o) The civil law did not exact of the depositary any greater diligence than that he was wont to bestow on his own property under the like circumstances ; and the civil law has been followed, in this respect, by Bracton, Holt, and Sir William Jones. Dig. 16, 3. 32; Bracton, lib. 3, 99, b; 2 Ld. Raym. 914; Jones on Bailment, 90-93. It was considered that there was no just ground to infer bad faith in such a case. If the depositor knew the general character, employment, and situation of the depos- itary, or was presumed to know him, the rule of the civil law is a sound and just rule. But if the depositor did not know these circumstances, then it has been held that the depositary is bound to bestow ordinary care on the deposit, though he does not on his own goods ; and that such care is to be ascertained without reference to the character of the depositary. The William, 6 C. Kob. 316 ; Story, Comm. 43, [§ 64 et acq.] Great stress is, and ought to be, laid upon the habits, employment, and character of the depositary, and they are to be taken into consideration. In Sodowsky v. McFar- land, 3 Dana (Ky.), 205, it was held that a mere depositary or mandatary was liable only on account of loss from his culpable negligence. (6) Lord Holt, in Coggs v. Bernard, 2 Ld. Raym. 915; Jones on Bailment, 44; yi See further as to the general rule, dridge u. Hill, 97 D. S. 92 ; Tancil r. Schermer v. Neurath, 64 Md. 491 ; El- Seaton, 28 Gratt. 601 ; CMrrington o [812] LECT. XL.] OF PERSONAL PROPERTY. * 563 The Roman law was the same as to the responsibility * 563 of a depositary. He was only answerable under tliat law for fraud, and not for negligence. He was not answerable if the thing had been stolen from him, even though it had been care- lessly kept. He who commits his goods to the care of a negligent friend, must impute the loss, not to his friend, but to his own want of prudence ; or, as Bracton, (a) who copied this rule from the Institutes of Justinian, (5) observed, he must set down the loss to the account of his own folly. Lord Coke (c) laid down a different doctrine on the subject of the responsibility of a depositary. It was held, in Southcote's case, that where a person received goods to heep safely, and they were stolen by one of his servants, he was responsible to the bailor for the loss. The reason of the decision was, that there was a special acceptance to keep safely, and the case afforded an inference that the bailee had not used that ordinary care and diligence which such a special acceptance required, and the goods were stolen by one of his own servants. It is supposed, by Sir William Jones, (c?) that the case itself may be good law ; but Lord Holt followed the language of the civil law, and said that gross negligence in the case of bailment was " looked upon as an evidence of fraud." " Neglect is a deceit to the bailor; for when he intrusts the bailee, upon his undertaking, to be careful, he has put a fraud upon the bailor by being negligent." Sir William Jones expressed himself too strongly, and Mr. Justice Story, in his Commentaries, has, I think, clearly shown, when he laid it down as a rule of the common law, that gross negligence was equivalent to fraud. It may arise from mere thoughtlessness or absence of mind, and consist, in some cases, with honesty of intention ; but it is looked upon as evidence of fraud, and it would require strong and peculiar circumstances to rebut that presumption. Latae culpsB finis est, non intelligere id quod omnes intelli- gunt. Dig. 50. 16. 223. (a) Lib. 3, c. 2, 99, b. (6) Inst. 3. 15. 3. (c) Co. Litt. 89, a, b ; 4 Co. 83, b. (d) , Jones on Bailment, 32, 33, [42, 43.] The opinion of the C. B., in Kettle v. Brom- * Ficklins' Ex'r, 32 Gratt. 670 ; Bronnen- the former, and that the consideration for burg V. Charman, 80 Ind. 475 ; Caldwell the contract in one case is the sum paid V. Hall, 60 Miss. 330 ; Whitney v. First or agreed to be paid, and in the other is National Bank, 55 Vt. 154. the act of deposit. See Holmes's The In Schermer ■,■- Neurath, supra, it is Common Law, 195. The question of said that the liability of a gratuitous negligence is for the jury, except where bailee is not dependent upon contract, the facts disclose so clear a case that the It would seem, however, that the only court would set aside an opposite ver- differences between a gratuitous and a diet. Schermer u. Neurath, 64 Md. paid bailee are that the latter contracts 491 ; Carrington v. Ficklins' Ex'r, 32 to exercise a greater degree of care than Gratt. "670. [813] * 55*4 OP PERSONAL PBOPERTT. [PART T. the doctrine which Lord Coke deduced from it was not warranted by the case, nor by reason, or the general principles of law. Lord Coke said there was no difference between a general accept- ance to keep, and a special acceptance to keep safely ; and * 664 he * advised every one who received goods to keep, to accept specially to keep as his own, and then he would not be responsible for the loss by theft. But the judges of the K. B., in Coggs v. Bernard, (a) expressly overruled every such deduction from Southcotes case^ and they insisted that there was a material distinction between a general bailment and a special acceptance to keep safely.' Lord Holt was of opinion that Coke had improved upon Southcote's case, by drawing con- clusions not warranted by it; and this has been shown more fully, and with equal acuteness and learning, by Sir William Jones ; and I would recommend what he s^js upon that case as a fine specimen of judicial criticism. If the depositary be an intelligent, sharp, careful man in respect to his own affairs, and the thing intrusted to him be lost by a slight neglect on his part, the better opinion would seem to be, that he then is responsible. Pothier (6) says, that this has been a question with the civilians ; and he is of opinion the depositary would be liable in that case ; for he was bound to that same kind of diligence which he uses in his own affairs, and an omission to bestow it was a breach of fidelity. But he admits that it would not be a very suitable point for forensic discussion to examine into the character of the depositary ; and that the inquiry into the comparative difference between the attention that he bestows on his own affairs, and on the interest of others, would be a little sail, Willes, 118, goes in support of the point in judgment in Southcote's case; but in the case of Foster v. The Essex Bank, 17 Mass. 479, the doctrine of that case is held to be exploded. In this last case there was a special deposit of gold coin in a bank, and the cashier embezzled it, with the other property belonging to the bank ; but as there was no evidence of gross negligence on the part of the bank, the banking cor- poration was held not liable to the depositor. (a) 2 Ld. Eaym, 909. (6) Contrat de De'pot, u. 27. 1 Such an acceptance is only an under- Giblin v. MoMuUen, L. R. 2 P. C. 317 ; taking to keep safely with reference to Smith v. First Nat. Bank in Westfield, 99 the degree of care which, under the cir- Mass. 605 ; Knowles u. Atlantic & St. L. cumstances, the law required of the de- R. R., 38 Me. 55 ; Eddy v. Livingston, 35 fendant. Ross v. Hill, 2 C. B. 877, 890. Mo. 487. Foster v. The Essex Bank is followed in [814] LECT. ^L.] OP PERSONAL PROPERTY. * 565 difficult. An example is stated by Pothier, (c) to test the fidelity 01 the depositaiy. His house is on fire, and he removes his own goods, and those of the bailor are burned ; is he then respon- sible ? He certainly is, if he had time to remove both. If he had not, Pothier then admits that a breach of faith cannot be imputed to him for having saved his own effects in preference to those of another intrusted to his keeping. But if the goods intrusted to him were much *more valuable than * 565 his own, and as easily removable, then he ought to rescue the deposited goods, and to look to them for an average indem- nity for the loss of his own. There are several cases in which a naked depositary is answer- able beyond the case of gross neglect. He is answerable, 1. When he makes a special acceptance to keep the goods safely. 2. When he spontaneously and officiously proposes to keep the goods of another. He is responsible in such a case for ordinary neglect ; for he may have prevented the owner from intrusting the goods with a person of more approved vigilance. Both those exceptions to the general rule on the subject are taken from the Digest, (a) and stated by Pothier and Sir William Jones. (6) 3. A third exception is, when the depositary is to receive a compensation for the deposit. It then becomes a lucrative con- tract, and not a gratuitous deposit, and the depositary is held to ordinary care, and answerable for ordinary neglect ; and the same conclusion follows, when the deposit is made for the special accommodation of the depositary. A warehouseman, or deposi- tary of goods for hire, being bound only for ordinary care, is not liable for loss arising from accident, when he is not in default ; and he is not in default when he exercises due and common dili- gence, (c) But he is bound to see that the place, in which the (c) Contrat de Depot, n. 29. (a) Dig. 16. 3. 1 35. (6) Pothier, Contrat deD^pot.n. 30, 31,32; Jones on Bailment, 47, 48 ; The French Code Civil, art. 1927, 1928 ; Code of Louisiana, art. 2908, 2909. Mr. Justice Story, in his Commentaries, 58, 59, ib. 153, [§§ 81, 82, 215,] questions the equity of the rule of the civil law, which exacts more than ordinary diligence from a bailee, who be- came such by his spontaneous and oflScious offer. He says it is punishing a friend rather than a stranger, for an act of disinterested kindness. (c) Garside v. The Proprietors of the Trent Navigation, 4 T. R. 581 ; CailifiE v. Danvers, Peake Cas. 114 ; Thomas v. Day, 4 Esp. 262. He is not responsible, if not chargeable with negligence, though the goods be stolen or embezzled by his storekeeper or servant. Schmidt v. Blood, 9 Wend. 268. [815] * 566 OP PERSONAL PROPERTY. [PART T. articles deposited with him are kept, is fit and properly secured for their reception and safety. Qd') In the case of goods * 566 bailed to be kept for hire, * if the hire be intended as a compensation for house-room, and not as a reward for dili- gence and care, the bailee is only bound to take the same care of the goods as of his own ; and if they be stolen by his servants, witholit gross negligence on his part, he is not liable. This was so ruled by Lord Kenyon, in Finucane v. Small, (a) WhUe on the examination of this contract of gratuitous bail- ment, and which in the civil law is termed depositum, I have been struck with the learning and sagacity of Sir William Jones. But after studying LorCi Holt's masterly view of the doctrine, and especially the copious treatise of Pothier, the admiration which was excited by the perusal of the English treatise has ceased to be exclusive. Pothier's essay on that particular species of bail- ment is undoubtedly superior in the extent, precision, and per- spicuity of its details, and in the aptitude of the examples by which he explains and enforces his distinctions. The person who has only a special property in, or a mere naked possession of, a personal chattel, may deposit it, and hold the bailee responsible. (6) i But the rightful owner may follow his (d) Leek V. Maestaer, 1 Campb. 138; Clarke v. Earnshaw, Gow, 30. See also, to the same point, 1 Bell, Comm. 458. (a) 1 Esp. 315. If a horse be taken from a naked depositary by authority of law, as on fi.fa. against the owner, he is not responsible. Shelbm-y v. Scotsford, Yelv. 23 ; Edson V. Weston, 7 Cowen, 278. (6) Armory v. Delamirie, 1 Str. 505; Rooth v. Wilson, 1 B. & Ad. 59. 1 Z)«<(/ to return. — The text is con- S. P. Co., 30 L. J. n. s. C. B. 247 ; 8 Jur. firmed by Bourne v. Fosbrooke, 18 C. B. N. ». 186; 10 C. B. n. s. Am. ed. 860; N. s. 515, 525. See Shaw v. Kaler, 106 Brown v. Thayer, 12 Gray, 1. [And not Mass. 448 ; Parker v. Lombard, 100 Mass. even then, if he knew of the jus tertii when 405; [Brewster y. Warner (Mass., 1883), he received the goods, .Ba; ;)arte Davles, 19 17 Rep. 50.] It has been said that the Ch. D. 86. See further, Palmtag v. Dou- bailee can set up the title of another per- trick, 59 Cal. 154 ; Dodge v. Meyer, 61 Cal. bon than his bailor, only when he depends 406.] So a borrower of a chattel has been upon the right and title, and has the au- held bound to return it before setting up a thority of that person ; as in the case of title in himself. Simpson v. Wrenn, 50 111. what is equivalent to an eviction by title 222. But the bailee may set up a seizure paramount. Biddle v. Bond, 6 Best & S. of the goods under an attachment against 225 ; 34 L. J. n. 8. Q. B. 137 ; Thome v. third persons, Stiles v. Davis, 1 Black, 101; Tilbury, 3 Hurlst. & N. 534, 537 ; Sheridan Wareham Bank ». Burt, 5 Allen, 113 ; or 1-. New Quay Co., 4 C. B. n. 8. 618, 650 ; that they were forcibly taken from him European & A. R. Mail Co. v. Royal Mail without his fault, Watkins v. Roberts, [816] LECT. XL.J OF PERSONAL PROPERTT. * 567 property into the hands of the bailee, or of a third person ; and in a case of disputed claim upon goods in the hands of a deposi- tary, he must, for his own indemnity, compel the claimants to interplead, (c) The possession of the depositary is, for many pur- poses, deemed in law to be the possession of the depositor, for the better security of his right, and the enlargement of his remedies. The depositary is bound to restore the deposit, upon demand, to the bailor, from whom he received it, unless another * person appears to be the right owner. The bailee has a * 667 good defence against the bailor, if the bailor had no valid title, and the bailee on demand delivers the goods bailed to the rightful owner, (a) He is to deliver it in the state in which he received it, and with the profits or increase which it has produced ; and if he fails in either of these respects, he becomes responsi- ble. (6) He is equally so, as we have already seen, if he has been wanting in fidelity, or in that ordinary care applicable to his situation, character, and circumstances, which is evidence of it. It has been made a question, whether the depositary could law- fully restore the article deposited to one out of two or more joint owners, apd when the thing was incapable of partition. Sir Wil- liam Jones (c) refers to a case in 12 Hen. IV. 18, abridged in Bro. tit. Bailment, pi. 4, where it was held that one joint owner could not alone bring the action of detinue against the bailee ; (c) Thorp V. Burling, 11 Johns. 285; Brownell v. Manchester, 1 Pick. 232; Taylor V. Plumer, 3 Maule & S. 562 ; Rich v. Aldred, 6 Mod. 216. (a) King v. Kicharda, 6 Wharton, 418. (6) Pothier, Contrat de Mandat, n. 58, 59 ; Pr^t a Usage, n. 31, 33, 73, 74 ; Game V. Harvie, Yelv. 50; Coggs u. Bernard, 2 Ld. Eaym. 909; Civil Code of Louisiana, art. 2919. , (c) Essay on Bailment, [-52]. 28 Ind. 167. He cannot refuse to deliver only incidentally becomes aware of what money deposited with him to the credit is intended, he cannot set up a jus tertii. of the plaintifE on the ground that the Gray v. Johnston, L. R. 3 H. L. 1, 11, bailment was fraudulent as against cred- • 14. itors of the bailor, and the fraud known It may be mentioned here that if a to the plaintifE, if the creditors have not bailee converts the chattel, an action of moved. Brown v. Thayer, 12 Gray, 1. detinue will not be barred until the stat- But it seems that a banker may refuse to utory time after a demand and refusal to pay the check of a customer, — an exec- deliver in ordinary course, although the utor and drawing as such, — if a breach bailor might have brought trover imme- of trust is intended, and the banker is diatelyon the conversion, and the stat- privy to tlie intent ; although, it seems, if utorj' period has run since that time, he is not interested in the transaction, and Wilkinson v. Verity, L. R. 6 C. P. 206. TOL. II.-52 [817] *668 OP PERSONAL PROPERTY, [PaRT V; for if they were to sue separately, the court could not know to which of them to deliver the chattel. The Roman law (ti) states the case of a bailment of a sum of money sealed up in a box, and one of the owners comes to demand it. In that case, it is said, the depositary may open the box, and take out his proportion only, and deliver it. But if the thing deposited cannot be divided, then it is declared that the depositary may deliver the entire article to the one that demands it, on taking security from him for that proportion of the interest in the article which does not belong to him ; and if he refuses to give the security, the deposi- tary is to bring the article into court. This implies that it would not be safe to deliver the thing to one alone ; and the rule was correctly laid down by Sir William Jones. If the persons claim- ing as depositors have adverse interests, the deposit is to be de- livered to him who is adjudged to have the right ; and it cannot be safely delivered until the adverse interests are settled. The claim may be settled at law in the action of detinue in which, by the process of garnishment, the rival claimant is brought into the suit. But a more convenient and extensive remedy is afforded in equity, by a bill of interpleader, which may be applied to all cases in which conflicting claimants of the same debt or * 568 duty have * interfered, and apprised the depositary of their demand upon him for their deposit, (a) And in the case of a joint bailment, the deposit cannot safely be restored by the bailee, unless all the proprietors are ready to receive it, or one of them demands it with the consent of the rest. (6) ^ The deposi- (d) Dig. 16. 3. 1. 36. 37. (a) Mr. Justice Story says, thjt where the parties claim in absolutely adverse rights, not founded in any [privityj'of title, or any common contract, the bailee must defend himself as well as he may, for he cannot compel mere strangers to interplead, Coram, on Bailments, 84, 86, 2d ed. [§ llO.] This, if it be a rule in chancery, is a de- fect in the equity process and jurisdiction greater than I had apprehended. Inter- pleader is where the depositary holds as depositary merely, and the claims are made against him in that character only. The plaintiff must not be under any liabilities to either of the defendants, beyond those which arise from the title to the property in contest. Lord Cottenham, in Crawshay v. Thornton, 2 Mylne & Cr. 1, 19, and in Hoggart V. Cutts, 1 Cr. & Phil. 197. (6) May v. Harvey, 13 East, 197. The Code Napoleon says, that the depositary must not give up the thing deposited, except to the order of him who deposited it ; and if he who made the deposit dies, and there be several heirs, it must be yielded up 1 Brandon v. Scott, 7 El. & Bl. 234; Harper v. GodseU, L. R. 5 Q. B. 422; 89 L. J. M. 8. Q. B. 185. [818] LECT. XL. J OP PERSONAL PROPERTY. * 568 tary has, perhaps, strictly speaking, no property^ general or spe- cial, in the article deposited, (c) He has only the naked custody or possession, and he cannot use, and much less dispose of, the subject without the express or presumed permission of the depos- itor, and whether the case will or will' not warrant the presump- tion of that permission, will depend upon circumstances, (d) But his right of possession gives him a right of action, if his posses- sion be unlawfully disturbed, or the property injured, (b) If he sells the goods deposited for a particular purpose, in breach of his trust, the bona fide purchaser, without notice, is not protected against the real owner. (/) The same reasonable care is requi- site, in the case of goods coming to one's possession by finding, as in the case of a gratuitous deposit. (^) to them each according to his share and portion ; and if the thing deposited cannot be divided, the heirs must agree among themselves as to the receiving it. Art. 1937, 1939. The CivU Code of Louismna has adopted the same provisions ; art. 2920, 2922; and both those codes leave the inference to be drawn, that if the thing be indivisible. It cannot safely be delivered to one of two or more claimants, without their joint agreement on consent. See also Story's Comm. 87-90, [§§ 114-116,] as to the duty of the depositary in respect to delivery in cases of a joint bailment. {c) Story's Comm. on Bailment, § 93. (d) Dig. 16. 3. 29 ; Pothier, Traite' de Depot, n. 34 ; French Code Civil, art. 1930 ; Code of Louisiana, art. 2911 ; Story's Comm. 67-69, 2d ed. [§§ 89-92.] (e) Dig. 16. 3. 17 ; 1 Bell's Comm. 257 ; Rooth v. Wilson, 1 B. & Aid. 59 ; Hartop V. Hoare, 3 Atk. 44 ; 1 Wils. 8 ; Lord Coke, in Isaack v. Clark, 2 Bulst. 311 ; Story's Comm. 67, [§ 93 ;] Moore v. Robinson, 2 B. & Ad. 817. See infra, 585. The general rule is, that actual and lawful possession of personal property is sufficient to main- tain trespass or trover against all persons except the lawful owner. Armory v. Delamirie, 1 Str. 505 ; Fisher v. Cobb, 6 Vt. 622 ; Giles v. Grover, 6 Bligh (n. s.), 277 ; [Tancil v. Seaton, 28 Gratt. 601 ;] Sutton r. Buck, 2 Taunt. 302 ; Oughton v. Sep- pings, 1 B. & Ad. 241 ; Story's Comm. §§ 93, 94. In Miller v. Adsit, 16 Wend. 335, it was held, after a learned discussion, that replevin would lie by a receiptor of goods taken on execution against a mere wrongdoer. See, in Story on Bailments, 93-99, 2d ed. [§§ 124-135,] an instructive digest of the law in the New England States, in respect to the rights of the parties in the case of goods attached by public officers, on mesne process for debts, and bailed to some third person, to be forthcoming upon demand, or in time to respond to the judgment. Though the bailee has no property whatever in the goods, and but a mere naked custody, yet the better opinion would seem to be that his possession is a sufficient ground for a suit against a wrongdoer. It has been so decided in New Hampshire, in Poole v. Symonds, 1 N. H. 289, and this is the principle in the case from Wendell. Thayer v. Hutchinson, 13 Vt. 504, s. p. The bailee, having a special property, recovers only the value of his special property as against the owner ; but the value of the whole property as against a stranger, and the balance beyond the special property, he holds for the general owner. White v. Webb, 15 Conn. 802. (/) See supra, 325. Ig) Doct. & Stu. Dial. 2, c. 38; Lord Coke, in Isaack v. Clark, 2 Bulst. 312 j [819] *569 OF PERSONAL PROPERTY. [PART V. 2. Of Mandatum. — Mandate is when one undertakes, without recompense, to do some act for another in respect to the thing bailed. In the case of a deposit, says Mr. Justice Story, (^) the principal object of the parties is the custody of the thing, and the service and labor accompanying the deposit are merely *569 accessorial. In the case of a mandate, the labor and * ser- vice are the principal objects of the parties, and the thing is merely accessorial. If the mandatary undertakes ta carry the article from one place to another, he is responsible only for gross neglect, or a breach of good faith. But if he undertakes to perform gratuitously some work relating to it, then, in that case, Sir William Jones main- tains that the mandatary is bound to use a degree of diligence and attention suitable to the undertaking, and adequate to the performance of it. (a) The doctrine declared in Shiells v. Blach- hurne (6) is, that the mandatary's responsibility is not greater in the latter case than in the former, unless his employment implies competent skill. Mr. Justice Story (c) considers that Sir William Jones has expressed himself inaccurately on this point; and he discusses the merits of the distinction with great force and accu- rate research. It is admitted by Sir William Jones that a bailee of this species ought regularly to be answerable only for a viola- tion of good faith ; but if he does undertake a business which requires a degree of diligence and attention for its performance, that diligence ought to be required of him, unless he assumed the task at the pressing solicitation of the party interested, and with- out any pretensions to competency, (c?) Story's Comm. 61-66, [§§ 85-87,] Mr. Justice Story, in his Comm. on Bailments, § 83, 2d ed., considers the case of goods or chattels ylaced on the land of another, by un- avoidable casualty or necessity, as an involuntary deposit, and that the owner of the articles, in a case free from negligence or fault on liis part, may enter and take them away, without being chargeable in trespass. See supra, 3.39 ; and also the American Jurist for January, 1839, xx., where the subject is learnedly examined. [McLeod u. Jones, 105 Mass. 403.] (h) Story's Comm. 103, [§ 140.] (a) Jones on Bailments, 40, 53. In Wilson v. Brett, 11 M. & W. 113, it was declared that a gratuitous bailee, when his profession or situation is .such as to im- ply the possession of competent skill, is liable for neglect to use it. (6) 1 H. Bl. 158. (c) Story's Oomin. 125-1-38, [§§ 174-188.] (d) See the opinion of Judge Porter, of Louisiana, referred to In a subsequent page, under this head, in favor of the distinction made by Sir William Jones. [820] LECT. XL.] OP PERSONAL PBOPERTY. * 570 A distinction exists between nonfeasahce and misfeasance, that IS, between a total omission to an act which one gratuitously promises to do, and a culpable negligence in the execution of it. It is conceded in the English, as well as in the Roman law, that if a party makes a gratuitous engagement, and actually enters upon the execution of the business, and does it amiss, through the want of due care, by which damage ensues to the other party, an action will * lie for this misfeasance. But *-570 Sir William Jones contends, that by the English law, as well as by the Roman law, an action will lie for damage occbt sioned by the non-performance of a promise to become a manda- tary, though the promise be merely gratuitous. There is no doubt that is the doctrine of the civil law ; but it was shown by the Supreme Count of New York, in Thome v. Deas, (a) i that Sir William Jones had mistaken some of the ancient English cases on this point, and that the uniform current of the decisions, from the time of Henry VII. to this day, led to the conclusion that a mandatary, or one who undertakes to do an act for another without reward, is not answerable for omitting to do the act, and is only responsible when he attempts to do it, and does it amiss. In other words, he is responsible for a misfeasance, but not for a nonfeasance, even though special' damages be averred. In the great case of Coggs v. Bernard, the defendant undertook, gratis, to carry several hogsheads of brandy from one cellar and deposit them in another ; and he did it so negligently and improvi- dently, that one of the casks was staved and the brandy lost. The K. B. held that the defendant was answerable for the dam- age, on the ground of his neglect and carelessness, though he was not a common carrier, and though he was to have nothing for his trouble. If the mischief had happened by any person who had met the cart in the street, the bailee would not have been charge- able ; but the neglect or want of ordinary care in that case was a breach of trust ; and a breach of trust, undertaken voluntarily, (a) 4 Johns. 84; Elsee v. Gatward, 5 T. R. 143, b. p. 1 The difficulty of the early cases was was not a consideration ; and this was the how an action of trespass on the case could original difficulty in the way of the action be brought for a nonfeasance. This dif- of assumpsit, as a branch of the action on ficulty, based on the want of analogy be- the case. Consideration is not adrerted tween a nonfeasance and a trespass, was to in the earlier cases. See a further dis- as great when there was as when there cussion, 6 Am. Law Rev. 48 et seq, [821] *671 OF PEBSONAL PBOPEBTT. [PABT V. is a good ground of action. Lord Holt admitted, that if the agreement had been executory, or to carry the brandy at a future time, the defendant would not have been bound to carry it ; but in the case before him, the defendant had actually entered * 571 upon the execution of the trust, and * having done so, he was bound to use a degree of diligence and attention ade- quate to the 'performance of his undertaking, (a) The case of Ehee v. Qatward (6) is a decision of the K. B. to the same point. It was decided upon the doctrine of Coggs v. Bernard, and of the ancient authorities referred to by the court in that case. The court recognized the justness of the distinction, that if a party undertakes to perform a work, and proceeds to the employment, he makes himself liable for any misfeasance in the course of that work. But if he undertakes without consideration, and does not proceed on the work, no action will lie against him for the nonfeasance, unless it be in special cases, as in the case of a common cai-rier, porter, ferryman, farrier, or innkeeper, who are bound, from their situations in life, to perform the work ten- dered to them, or the employment assumed by them. A bailee, who acts gratuitously, in a case in which neither his situation nor emploj'^ment necessarily implied any particular knowledge or professional skill, is held to be responsible only for bad faith or gross negligence, (c) Thus, where a general merchant undertook, voluntarily, and without reward, and upon request, to enter a parcel of goods for another, together with a parcel of his own of the same sort, at the custom-house, for exportation, and he made an entry under a wi'ong denomination, whereby both parcels were seized ; it was held that he was not liable for the loss, inasmuch as he took the same care of the goods of his friend as of his own, and had not any reward for his under- taking ; and he was not of a profession or employment that (a) Eeoeiving a letter to deliver, or money to pay, or a note by a bank to collect, and by negligence omitting to perform the trust, the mandatary, though acting gra- tuitously, becomes responsible for damages resulting from his negligence. The de- livery and receipt of the letter, money, or note creates a suflScient consideration to support the contract, and is a part execution of it. Dumford v. Patterson, 7 Martin (La.), 460; Shillibeer v. Glyn, 2 M. & W. 145; Story on BaUments, 121-123, 2d ed. [§§ 170-172.] [But see 6 Am. Law Rev. 47.] (6) 5 T. E. 143. (e) Doorman v. Jenkins, 2 Ad. & El. 256; Beardslee v. Richardson, 11 Wend. 25; Story on Bailments, § 174. [822] LECT. XL.] OP PERSONAL PROPERTY. * 572 necessarily implied skill in what he undertook. (cZ) The defend- ant in that case acted with good faith, and that was all that could be required. The case would have been different if a ship broker, or a clerk in the custom-house, had undertaken to enter the goods, because their situation and employment would necessarily imply * a competent degree of knowledge in making such * 572 entries. So, if a surgeon should undertake, gratis, to attend a wounded person, and should treat him improperly, be would be liable for improper treatment, because his profession implied skill in surgery. If, however, the business to be trans- acted presupposes the exercise of a particular kind of knowledge, and a person accepts the office of mandatary, totally ignorant of the subject, then it has been said that he cannot excuse himself on the ground that he discharged his trust with fidelity and care. A lawyer, who would undertake to perform the duties of a physi- cian ; a physician, who would become an agent to carry on a suit at law ; a bricklayer, who would propose to repair a ship, or a landsman to navigate a vessel, are cited as examples to illustrate the distinction. But if the agent has the qualifications necessary for the discharge of the ordinary duties of the trust imposed, it is sufficient to exempt him from responsibility for errors into which a man of ordinary prudence might have fallen, (a) It is a little difficult to reconcile the opinions on this point of a gratuitous undertaking to do some business for another ; but the case of Shiells V. Blackhurne contains the most authoritative declaration of the law, in favor of the more limited responsibility of the bailee. There are, however, a number of instances in which such a mandatary becomes liable for want of due care and atten- tion. (6) Thus, it has been held to be an act of negligence suf- {(1) Shiells V. Blackburne, 1 H. Bl. 158. (a) Porter, J., in Percy u. Millaudon, 20 Martin (La.), 77. Mr. Justice Porter dissents from the more severe doctrines of Pothier, in his Traill du Mandat, n. 48, on this point, and he is deemed by Mr. Justice Story to have combated, vfith entire success, the doctrines of Pothier. (6) The best general test, says Mr, Justice Story (Comm. on Bailment, 137, 2d ed. [§ 186],) is to consider whether the mandatary has omitted that care which bailees without hire, or of common prudence, are accustomed to take of property of that description. The cases put by Sir William Jones and Lord Stowell, Jones on Bail- ment, 62, the case of Eendsberg, 6 C. Rob. 142, 155, and the case of Tracy v. Wood, decided before Mr. Justice Story, 3 Mason, 132, are striking illustrations of the nice and diflScult line of distinction between what is and what Is not sufficient diligence in the bailee under the circumstances. [823] * 573 OP PERSONAL PEOPEETT. [PAET V. ficieut to render a gratuitous bailee responsible, for him to have turned a horse, after dark, into a dangerous pasture, to which he was unaccustomed, and by which means the loss of the horse ensued, (c) So if a mandatary undertakes specially to do the work, he may, like a depositary, be answerable for casualties ; and if he spontaneously and officiously offers to do the act, he may be responsible beyond the case of gross negligence, * 573 and be held * to answer for slight neglect, (a) There is reason, however, to believe^ that this head of mandatum, in the Essay on Bailment, was not examined with perfect accu- racy, and especially when the distinguished author undertook to prove from the English law, what he certainly failed to show, that an action lay for the nonfeasance in promising to do a thing giatuitously, and omitting altogether to do it. The civil law did undoubtedly contain such a principle ; and Pothier, in his elab- orate treatise on the contract of mandatum, (V) adopts the power- ful reasoning and very sound maxitjis of the civil law on the subject of the responsibility of the mandatary, (c) But the Eng- lish law, as has been abundantly shown from the cases already referred to, never carried the liability of the mandatary to the same extent. He is bound to account for the due performance of the trust he assumes, upon the principles already stated ; and if the bailor sustains damages by his fraud, or gross negligence, or misuser, he must answer for the same, (c?) On the other hand, if the mandatary bestows the requisite care and diligence, he is justly entitled to indemnity against his necessary expenses and necessary incidental contracts ; and so if he sustains loss and injury in the execution of the trust, and of which the service was the cause, the bailor ought to indemnify him, upon principles of nioral, if not of legal obligation, (e) 3. Of Commodatum. — This is a bailment or loan of an article for a certain time to be used by the borrower without paying for the use. This loan for use is to be distinguished from a loan for (c) Rooth V. VTilson, 1 B. & Aid. 59. (a) Jones on Bailment, 41, 48, 94 ; vide supra, 565. (6) Traits du Contrat de Mandat. (c) See Dig. 17. tit. 1, and Inst. 3, tit. 27, and Code 4, tit. 35, on the contract of Mandalum. (d) Pothier, h. t. n. 61-66. {e) Pothier, Contrat de Mandat, n. 68-82; Story's Comm. 142-146. 2d ed. [§§ 197- 201.] [824] LECT. XL.J OP PERSONAL PROPERTY. * 574 consumption, or the mutuum of the Roman law. The latter was the loan of corn, wine, oil, and other things that might be valued by weight or measure, and the property was transferred. The value only was to be returned in property of the same kind, and the borrower was to bear the loss of them, even if destroyed by inevitable accident. (/) In the case of the comma datum, or loan for use, as a horse, carriage, or book, the same identical article or thing is to be returned, * and in as good a plight * 574 as it was when it was first delivered, subject, however, to the deterioration arising from the ordinary and reasonable use of the loan, and which deterioration the lender is to bear, (a) The borrower has no special property in the thing loaned, though his possession is sufficient for him to protect it by an action of tres- pass against a wrongdoer. (J) The Roman and the English law coincide in respect to the conclusions on this head. The bor- rower cannot apply, the thing borrowed to any other than the very purpose for which it was borrowed ; (. Machin, 2 Starkie, 311 ; Cooper V. Willomatt, 1 C. B. 672. (d) Harris v. Packwood, 3 Taunt. 264; Marsh v. Home, 5 B. & C. 322; 7 Cowen, 500, note. ^ Burden of. Prmnng Negligence. — See an article by Judge Bennett, 5 Am. Law Kev. 205, criticising Cass v. Boston & L. R. R., 14 Allen, 448, where the majority of the court held that in an action of contract against warehousemen for not delivering goods received by them upon demand, the burden was on them to show that the goods were lost without their fault. See also the able dissenting opinion of Bigelow, C. J., in that case. Browne V, Johnson, 29 Tex. 40 ; Cross v. Brown, 41 N. H. 283 ; post, 611, n. 1. But Cumins V. Wood, 44 111. 416, agrees with Cass v. B. & L. R. R. [See also Claflin v. Meyer, 76 N. Y. 260. As to damages; see Lilley v. Doubleiay, 7 Q. B. D. 510 ; McMahon v. Eield, ib. 591. Comp. Hobbs u. London, &e. Ry. Co., 10 L. R. Q. B. 111.] See Boies V. Hartford & N. H. R. R., 37 Conn. 272; Logan v. Mathews, 6 Penn. St. 417. As to burden of proof in case of risks excepted in the contract of car- riage, see iii. 217, u. 1, (a). As to contrib- utory negligence, see iii. 232, u. 1, (6). As to degrees of negligence, see 561, n. 1. Bailments upon Illegal Contracts. — An interesting question is raised by some oases which have been referred to in a former note, 241, n. 1, and which deter- oaine the rights of the parties to a bailment [840] in connection with an illegal contract; such as. the letting and hiring of ahorse to drive for pleasure on Sunday. The earlier Massachusetts cases denied the right of the owner to recover for the de- struction of his property by negligent over-driving within the limits contem- plated by the agreement. Way v. Foster, 1, Allen, 408 ; or for its conversion by driv- ing to a different point from the one con- templated; or for negligently destroying it while so driving, Gregg u. Wyman, 4. Cush. 322. The case of Gregg v. Wyman has been disapproved, and the last point decided differently in other states. Wood- man V. Hubbard, 25 N. H. 67 ; Wentworth V. McDuffie, 48 N. H. 402, 406 ; Morton V. Gloster, 46 Me. 520 ; Nodine v. Doherty, 46 Barb. 59; Phil., Wil.,&Balt. R. R. v. ' Phil. & H. de G. Steam Towboat Co., 23 How. 209,218; Sutton v. Wauwatosa, 29 Wis. 21, 26 ; and it is no longer main- tained even in Massachusetts, Hall v. Corcoran, 107 Mass. 251. It is said, in the latter cases, that when the hirer uses the horse in a manner wholly outside of' the terms of the contract, the contract is no part of the plaintiff's case, and he recovers on the strength of his general property. It isi a conversion to use another man's property in an unauthor- ized manner, and the defendant, even if DECT. XL.] OP PERSONAL PROPERTY. * 588 it ; and things that may easily be deteriorated require an increase of care and diligence in the use of them. Negligence is a rela- tive term; and the value of the article and the means of security possessed by the bailee are material circumstances in estimating the requisite care and diligence. That may be gross negligence in the case of a parcel of articles of extraordinary value, which, in the case of another parcel, would not be so ; for the tempta- tion to theft, and the necessity for care, are in proportion to the value, (e) Gaius uses the word diligentissimus when the rule is applied * in the Roman law to the case of an under- * 588 taking to remove a column from one place to another, (a) (2.) Of hiring Mechanic Skill. — The case of locatio operis faciendi is, where work and labor, or care and pains, are to be bestowed on the thing delivered, for a pecuniary recompense ; and the workmen for hire must answer for ordinary neglect of the goods bailed, and apply a degree of skill equal to his under- taking. Every man is presumed to possess the ordinary skill requisite to the d ue exercise of the art or trade which he assumes. Spondetperitiam artis, and Imperitia culpce annumeratur. If he (e) Batson v. Donovan, 4 B. & Aid. 21 ; Tracy v. Wood, 3 Mason, 1.34, 135. See the cases put by Sir William Jones and Lord Stowell, by way of illustration of the reason of the distinction between different degrees of diligence requisite in different cases. Jones on Bailment, 62 ; 6 C. Rob. Adm. 142, 165. (a) Dig. 19. 2. 25. 7. Sir William Jones, in his Essay on Bailment, 67, says that the superlative diligentissimus was here improperly applied, and that it would be a case only of ordinary care. But Ferriere, in his Commentaries upon the Institutes, V. 138, thinks otherwise ; and that Gaius was speaking of things that might easily be deteriorated, and would require the most exact diligence for their preservation. The case would depend upon circumstances. Gaius was speaking, not of unhewn blocks of granite or marble, but of columns, which implied, in the midst of the splendid architecture of Rome, productions of great labor and skill ; and in such a case, it would, no doubt, require the utmost attention to avoid injury to the polished shaft or capital, and especially if that capital was finished in the Corinthian style, or surmounted by an entablature, adorned with all the beauty and elegance of the Grecian art. he proves the contract, cannot show any tion permits the acts which caused the authority to use the horse as he did. It injury, — imprudent driving, for instance, remains to be determined whether this — he shows no authority for using the reasoning is not equally inconsistent with horse as he did. The strongest argument the decision in Way v. Foster. An owner suggested on the other side seems to be has a right of action for the negligent that the owner permits the illegal use, injury or destruction of his property. If and that, as to injuries received in the the defendant proves an illegal contract, course of that illegal employment, he is which neither expressly nor by implica- in pari delicto. [841]. * 589 OP PERSONAL PROPERTY. [PART V. performs the work unskilfully, he becomes responsible in dam- ages. (J) Every mechanic who takes any materials to work up for another in the course of his trade, as where a tailor receives cloth to be made into a coat, or a jeweller a gem to be set or engraved, is bound to perform it in a workmanlike manner ; he must bestow ordinary diligence, and that care and fidelity which every man of common prudence, and capable of governing a family, takes of his own concerns, (e) As this contract is of mutual benefit, the bailee is noifc answerable for slight neglect, nor for a loss by inevitable accident or irresistible force, or from the inherent defect of the thing itself ; (^d) he is only answerable for ordinary neglect, (e) * 589 * But though he must exercise a care, diligence, and skill, adequate to the business ; and if he fails in the ordi- nary care and skill which belongs to his undertaking, and the bailor sustains damage, he must answer for that damage ; yet if the delivery was of a nature to transfer the property, a different result would follow. In the case of a delivery to a goldsmith of a bar of silver, to be made into . vases, or an ingot of gold to be made into rings, by the civil law the whole property passed to the smith, and the employer was merely entitled, as a creditor, to have metal equally valuable returned in a certain shape, (a) If the metal in that case should be lost, even by irresistible force, the smith, as the owner of it, would be held to bear the loss, and the creditor to be entitled to his vase or ring ; though it would be otherwise if the same metal was to be returned in its new form. (6) In the case of Seymour v. Brown, (c) a quantity of wheat was sent to a miller to be exchanged for flour, at the rate of a barrel of flour for every five bushels of wheat. The miller mixed the wheat with a mass of the wheat of the same quality belonging (5) Bell's Coram, i. 459; Pothier, Traite du Contrat de Louage, u. 425, 426; McDonald v. Simpson, 4 Ark. 523. (c) Dig. 19. 2. 9. 5 ; Pothier, ib. n. 419, 428 ; 1 Bell's Comm. 456, 458 ; Duncan v. Blundell, 3 Stark. 6 ; Story on Bailment, 281, 2d ed. [§ 431.] (rf) Pothier, Traite' du Contrat de Louage, n. 428 ; Dig. 19. 2. 13. 6. (e) Story on Bailment, 282, 283, 284, 2d ed. [§§ 433-437.] (a) Dig. 19. 2. 31. (ft) Jones on Bailment, 78 [102] ; Buffum v. Merry, 3 Mason, 478. (c) 19 Johns. 44. This decision has been overruled in the very analogous case of Ewing K. French, 1 Blackf. (Ind.) 353, and in Hurd v. West, 7 Cowen, 752, 75S, note, and in Smith >■. Clark, 21 Wend. 85. [842] iECT. XL.J OF PERSONAL PEOPERTY. * 590 to himself and others, and before the flour was delivered, the mill, with all its contents, was destroyed by fire. It was held, upon the question who was to bear the loss, that, as there was no fault or negligence imputable to the miller, he was not respon- sible for the loss, and that the property was not transferred. It was considered that there was no sale within the intention of the parties. If the same identical wheat was to have been returned in the shape of flour, the decision was correct, according to the general principles of law applicable to the case. But as it did not appear to have been understood that the wheat deliv- ered was to be kept separate, and returned * in flour, but * 590 only flour equal to wheat of such quantity and quality, and as the miller acted upon that understanding, the decision was not conformable to the true and settled doctrine. There was in that case a transfer of the property in the wheat to the miller, and he was bound, at his own risk, and at all events, to have returned the flour, (a) ^ (a) Where an article is delivered to be manufactured or altered, and the specific thing to be then restored, it is not a contract of sale, but a regular bailment locatio operis faciendi, and the bailor retains his general property, and the bailee acquires no interest in any part of the articles (as logs to be sawed into boards) by a mere part performance. Pierce v. Schenck, 3 Hill (N. Y.), 28. 1 Bailment or Sale? — (a) The state- to be mixed with certain other specified ment in the text and in note (u) that the parcels, and a proportionate amount of property does not pass by the delivery of the wheat or of flour into which it is an article when the specific thing is to ground is to be returned. Inglebright v. be restored, although in an altered form, Hammond, 19 Ohio, 337, explained in is confirmed by other cases. Foster v. Chase «. Washburn, 1 Ohio St. 244, 251. Pettibone, 3 Seld. 433 ; MaUory v. Willis, As to the nature of the interests of the 4 Comst. 76, 85 ; Hyde v. Cookson, 21 parties, see 365, n. 1. x^ Barb. 92. And ther-law is the same when (6) Deposits in Grain Elevators. — The a parcel of wheat, for instance, is allowed usual course of dealing with grain in a;i Whether a transaction amounts to a that it shall be consumed or disposed of, sale or a bailment depends upon whether yet if it is intended that the transferee the parties intend the title to pass, sup- shall all the time keep on hand a like quan- posing it to be a case in which it is legally tity of other property of similar kind and possible that it should pass. The general quality, even though not separated from test is, as stated supra, whether it is con- other like property, the presumption is templated that the identical property that the transferror becomes a tenant in transferred shall be returned, though in al- common of the entire mass. Such an inter- tered form. Pfiwder Co. v. Burkhardt, 97 est, though continually shifting both as to U. S. 110 ; Dittmar v. Norman, 118 Mass. the property covered by it and as to the 319. But even where it is contemplated proportion of the entire mass, is at any [843] ■■ 590 OP PERSONAL PEOPEETY. [PAET V. There are, verj embarrassing questions, as has been justly observed, (S) arising in cases where the labor bestowed has not (6) Story's Comm. 287, [§ 441.] elevators raises harder questions. Grain is delivered to these storehouses, either on an express understanding, or under a custom which autliorizes the warehouse- man, not only to mix certain specified parcels, but to, add any other grain of the same quality, either of his. own or of others', and to draw from the mass to meet the orders of receipt holders as they may be presented. Even if the ware- houseman is bound to leave- enough grain inthe.mass to meet outstanding receipts, , as has been laid down (Young v. Miles, 20 Wis. 615 ; 23 Wis. 643), and as seems to be recognized by the usual charge for storage, it is obvious that a depositor cannot assert title to his proportion on the ground that his. grain, is part of the mass, for ten times the contents of the bin may have passed through it since he deposited. It has accordingly been laid down that the transaction is a sale, in several cases, which possibly could have been decided on narrower grpunds; (that . the party had an option of taking grain or money, &c. ) . Chase v. Washburn, 1 Ohio St. 244 ; 6 Am. Law Rev: 450 ; Wilson v. Cooper, 10 Iowa, 565 j South Australian Ins. Co. t(. Randell, L. R. 3 P. C. 101. Some practical objections to this view are stated in an amplification of this note, 6 Am. Law Rev. 455, 464 ; and there are cases where it has been assumed, although without satisfactory discussion, that the depositor in these public warehouses re- tains his title. Gushing v. Breed, 14 Allen, 376; Warren ... MilUken, 57 Me. 97 Dole V. Olmstead, 36 111. 150 ; 41 111. 344 Young V. Miles, 20 Wis. 615 ; 23 Wis. 648 [Broadwell i>. Howard, 77' 111. 305.] In the latter view the warehouseman seems to be considered a bailee, with power to change the bailor's tenancy in severalty into a tenancy in common of a propor- tionately largjer mass, and back again, at will, or to substitute other ^ain of the same quality for that received (which is not within the powers of an ordinary bailee. Burton v. Curyea, 40 111. 320, 329 ; cf. 581, n. 1, (c).) He would difier from a banker to whom he has been likened; be- cause the latter is not bound to keep on hand a specific heap of money, or even a specific fund, out of which his customer may demand payment. (c) , Pwchase- from Grain Eleoalors. — The general rule of the ]English law is, that an agreement for the purchase of a certain quantity, out of a larger amount, does not pass^ the title until ' separation. Ante, 492, n. 1, (h) ; Gillett v. Hill, 2 Cr. & Mees: 530, 535 ; Campbell ». Mersey Docks & Harbor Board, 14 G. B. n. s. 412. Some American cases show a contrary tendency. Kimberlyi). Patchin, 19 N. Y. 330 (where, however, the parties supposed that the heap specified contained less, tlian the number of bushels sold) ; Clark u, Griffith, 24 N. Y. 595 ; Russell o. Garrington, 42 N. Y. 118 ; Hall v. Boston & Worcester one moment definite, being expressed by the fraction having as a numerator the number of bushels transferred, and as a denominator the number of bushels in the entire mass. Ledy ard v. Hibbard, 48 ■ Mich. 421 ; Sexton v. Graham, 53 Iowa; 181; Irons t. Kentnerj 51 Iowa, 88 ; Nel- son V. Brown, 44 Iowa, 455. But if it were shown that the warehouseman had the [844] right to use the property, being hound only to restore a like quantity on demand, it would seem that the transaction should be treated as a sale. Rahilly v. Wilson, 3 Dill. 420 ; McCabe v. McKinstry, 5. Dill. 509. But see Nelson v. Brown, supra. The case is then analogoxis to a loan. See Shoemaker v. Hinze, 68 Wis- 116. LECT. XL.] OP PERSONAL PROPERTY. * 590 been properly applied, or not according to contract, or left incom- plete, or where the subject has perished before it was finished, (c) Thus, it was held, in Ellis v. Hamlen, {d) that if a person under- takes to build a house upon a specified plan, and with certain materials, and he departs, without leaye, from the terms of the contract, he is not entitled to any compensation for his labor. This decision rests on the strict ground of contract ; but the civil law speaks a more benign language, and gives the builder, acting in good faith, and in cases where the work is united with the property of the employer, an indemnity to the extent of the benefit conferred. This is also the rule in the Scotch law. (e) If the employer derives no benefit from the work and labor of the mechanic (as where the whole subject-matter of the undertaking is destroyed, by inevitable accident, before the work is completed and the thing delivered) ; even in that case the civil law gave to the mechanic a ratable compensation for his labor and expenses bestowed upon the materials of his employer. And Pothier con- cludes that it is just and equitable ; for, as fast as the building advanced, it had become, by accession, part of the property of (c) See supra, 509, note. The Scottish law deals on this subject upon very equi- table grounds, for it balances the inconvenience and damage arising from the imper- fect or faulty performance against the benefit actually derived from the work, and •gives the workman either a pro ianto compensation, or assesses him in damages, as the difference in the result may require. 1 Bell's Comm. 455, 456. (d) 3 Taunt. 52. (e) 1 Bell's Comm. 456. K. R., 14 Allen, 439, 44-3 ; Waldron v. be a sufficient tender in Chicago to satisfy Chase, 37 Me. 414 ; Young v. Miles, 20 a contract to deliver grain, unless the pur- "Wis. 615 (which was not a case of sale ex chaser should insist on seeing the grain. a mass). At all events a title to an un- McPherson v. Gale, 40 111. 368; Gregory divided interest may pass, if such is the o. Wendell, 40 Mich'. 482 ; 549, n. 1. intention of the parties, and the parties to On the other hand, if the warehouse- an agreement for a sale of grain in an man is the owner of all the grain in his elevator may properly enough be sup- warehouse, and only liable ex contractu to posed to have such an intention, if depos- a depositor, it would seem that if he is itors are held to be owners. In several of liable to a stranger to the consideration, the cases which have been referred to as it must be either on the ground of custom taking that view, it has been held that (7 Am. Law Rev, 657), or else that the the title passed to purchasers from depos- customary recei|)t for grain deliverable to itors before separation, although less than A. or order operates as a letter of credit ; the amount deposited was bought. Cush- (post, iii. 84, n. (e) ; 89, n. 2 ad Jin. ;) which ing V. Breed (an action for goods sold and is not the effect of a similar receipt by an delivered) ; Warren v. Milliken (trover), ordinary bailee. But see Second Nat. supra. A warehouse receipt is thought to Bank v. Walbridge, 19 Ohio St. 419. [845] *591 OP PERSONAL PROPERTY. [PART V. the owner. ("/) So, if an article be delivered to a mechanic to be repaired, or materials are delivered to be wrought into a new form and shape, and the thing is accidentally destroyed before the work is finished and ready for delivery, without any * 591 fault or negligence * on the part of the mechanic, the entire loss, according to the English law, falls upon the owner of the materials ; for he is bound to answer for the work and labor already bestowed. This is the general rule of law, though it is liable to be controlled by the custom of the trade, (a) ^ According to the French law, if the mechanic was to furnish the materials, and the thing accidentally perished before completion and delivery, he bears the loss both of the materials, and of his work ; but if the materials were furnished by the employer, and the workman furnished only his skill and labor, and the article was destroyed without fault, and before it was finished, the one loses the materials and the other his labor. (J) The Civil Code of Louisiana follows, in this respect, the rule in the French code, (c) The reason of the distinction is, that, in the one case, the employer is the owner of the article or subject with which (/) Dig. 19. 2. 59 ; Pothier, Traite du Contrat de Louage, ii. 433. (a) Menetone v. Athawes, 3 Burr. 1592 ; Gillett v. Mawman, 1 Taunt. 137 ; Story on Bailment, 287, 2d ed. [§ 441.] But if the mechanic was by contract to complete the work before payment for a specific sum, and the employer to furnish the materials, and wiien the work was nearly finished, the same be destroyed by an accidental fire, no compensation is recoverable, for the contract is entire, and performance is a con- dition precedent. But without a contract postponing the payment to the completion of the work, the workman would be entitled to a pro rata payment. 3 Burr, supra; Story on Bailment, 287, 2d ed. [§ 426] ; Brumby v. Smith, 3 Ala. 123, where A. con- tracted with B. to build a house on A.'s land, and A. to furnish the materials, and the builder to be paid when the house was finished. It was burnt down by accident when nearly completed, and the builder was held entitled to the value of his labor, on the maxim that A. was owner of the materials and the structure, and res peril domino. Wilson v. Knott, 3 Humph. (Tenn.) 473. So when a manufacturer agrees to construct an article out of his own materials, the property remains with him until completed and delivered. It would be the same if the manufacturer furnished the principal part of the materials ; but if the employer furnished the whole or principal part of the materials, he would retain the property during the performance of the work. Gregory v. Stryker, 2 Denio, 628. (i) Civil Code, n. 1788, 1789, 1790 ; 2 Pardessus, Droit Com. 2, tit. 7, art. 526. (c) Civil Code of Louisiana, art. 2731 ; Seguin v. Debon, 3 Martin (La.), 6. 1 Both parties were thought to be certain materials, was held not entitled to excused from the further performance of recover for what he had done, in Appleby the contract, but the party who had com- v. Myers, L. R. 2 C. P. 651. See 468, pleted part of the work, and furnished n. 1. [846] LECT. XL.] OP PERSONAL PROPERTY. * 592 the labor is incorporated ; and, in the other case, the workman IS the owner. The principle is still the same. Res perit domino. Qd) Mr. Justice Story (e) subdivides this head of Locatio into 1. Locatio operis faciendi, or hire of labor and services. 2. Locatio custodies, or receiving goods on deposit for hire. He includes under the last head, agisters of cattle, warehousemen, and wharf- ingers ; and to these may be added, a class of bailees known in this country by the term of forwarding men, or merchants. They are all responsible for want of good faith, and of reasonable care and ordinary diligence, and not to any greater extent, unless the business and duty of carriers be attached to their other character. (/) *But innkeepers form an exception to *592 the general rule, and the}'- are held responsible to as strict and severe an extent as common carriers ; and the principle was taken from the Roman law, and adopted into modern juris- prudence, (a) (3.) Of Innkeepers. — The responsibility of an innkeeper for the horse or goods of his guest, whom he receives and accommo- dates for hire, has been a point of much discussion in the books. In general, he is responsible at common law for the acts of his domestics, and for thefts, and is bound to take all due care of the goods and baggage of his guests deposited in his house, or intrusted to the care of his family or servants, without subtrac- tion or loss, day and night. He is said to be chargeable on the ground of the profit which he receives for entertaining his guests. (6) The custody of the goods of his guest is part and (. Doney, 2 Johns. Cas. 346 ; Com- monwealth !>. Bryan, 9 Dana, 310. (a) N. Y. Revised Statutes, i. 678-682 ; ib. 661, sec. 6. By the statute, every keeper of a pujjlic inn or tavern, except in the city of New York, is required to keep at least two spare beds for guests, well provided, and good and sufficient stabling, grain, hay, or pasturage, for horses and other cattle belonging to travellers. Every innholder or tavern-keeper, who is licensed as such, is also required to put and keep up a proper sign on or adjacent to the front of his house ; and every person who erects or keeps up such a sign without a license to sell spirituous liquors by retail,' or sells them by retail to be drunk in his house, outhouse, yard, or garden, without entering into recognizance as an innkeeper, is subjected to a penalty for every offence. If the innkeeper has not put up a sign, yet if he keeps a tavern, lie is still responsible at common law as an innkeeper. Calye's Case, 8 Co. 32. At common law, any per- son might keep a tavern and sell vinous liquors tliere without control ; but under the English statute of 6 & 6 Edw. IV., a license to keep a tavern would not authorize the retail of liquors without another license. Stevens v. Duckworth, Hard. 338. The better opinion would seem to be, that under the New York statute there may lawfully be a public inn without an excise license, though without a license no person can put up a sign indicating that he keeps a tavern ; and if he has the excise license to retail in small quantities liquor to be drunk in his house, he must be bound also to keep an inn for the accommodation of travellers, in the common-law sense of the term. The excise license may jjerhaps be regarded as a criterion to determine between the com- mon-law inn, and the statute inn and tavern combined. In the case of The Overseers of Crown Point u. Warner, 3 Hill, 150, occurring in 1842, since the preceding obser- vations were made, it was adjudged that the words inn and tavern, and innholder and taoei-n-keeper, were used in the N. Y. R. S. i. 676, synonymously, and that the right to keep an inn without an excise license is common to all persons. But if a license to sell spirituous liquors be added, the inn then becomes a statute franchise, and the [853] * 597 OP PERSONAL PBOPEBTY. [PABT T. (4:.') Of Oommon Carriers,. — The locatio operis mercium vehen- darum is a contract relating to the carriage of goods for hire ; statute regulations prescribing rules of conduct to inn and tavern keepers, apply onli/ to such licensed houses. By a statute of New York of 12tli April, 1843, c. 97, licenses to keep t»verns may now be granted, without including a, license to sell spirituous liquors or wine. So in Alabama, no person can keep a public inn without a license, though spirituous liquors be not retailed. The State v. Cloud, 6 Ala. 628. The Act of Michigan of 1833 is essentially the same, for no person, unless licensed to keep a tavern, can sell spirituous liquors by retail under a quart. In Pennsylvania, a license to keep a tavern or inn, would seem, ipso Jacto, to imply a license to retail vinous and spirituous liquors, though licenses to sell liquors may be granted to persons combin- ing other business with the same. Burdon's Dig. 502-507. By the law of Ohio, no person is permitted to keep a J.ave^-n without a, license from the Court of Common Pleas of the county. Statutes of Ohio, 1831. By the act of Kentucky of 1884, no tavern within any town or city, or within one half mile thereof, can be kept without license, even though spirituous liquors be not retailed. So in Vermont, no person can keep an inn without a license from the county court ; and a license to keep a victualling house will not authorize a person to keep a house for public entertainment ^ and a person may keep an inn without selling spirits or wine. State v. Stone, 6 Vt. 295. In Connecticut, a distinction is made by statute between taverns and victualling houses. Both kmds require a license, but tavern-keepers only have a right to retail spirituous liquors. The victualling houses are called, also, houses of refreshment. Statutes of Connecticut, 1838, pp. 592-695. In Massachusetts, there seem to be three descriptions of persons in purview of the Revised Statutes, c. 47 ; (1.) A com- mon innholder, who sells liquors and provides accommodation for man and beast ; (2.) A comnion victualler, who sells liquors and food only. Both of these must be licensed; (3.) A common grog-shop or drinking-house keeper, who is not entitled to a license. Commonwealth v. Pearson, 8 Metcalf, 449. In North and South Carolina, a person is indictable for retailing spirituous liquors without license ; and in the for- mer state, public inns are called, in the statute, ordinaries. 1 N. C. R. S. 445 ; State V. Morrison, 3 Dev. (N. C.) 299; The State v. Mooty, 3 Hill (S. C). 187. Tavern- keepers and innholders are generally used synonymously ; and as the local laws in all the states prohibit persons from retailing spirituous liquors, and in Alabama, by act of 1807, even beer or cider, without a license, that license ordinarily becomes essential to the character, and, in some instances, to the lawfulness of a public inn or tavern. In Tennessee, the prohibition to retail spirituous liquors is held not to include wine which is procured by fermentatioDi, and only those liquors which are procured by distillation. Caswell v. The State, 2 Humph. 402. Since the growth and diffusion of temperance societies, the restrictions by law on the retail of spirituous Jiquors have greatly increased. In Massachusetts, by statute, in 1838, the retail <£ spirituous liquors under fifteen gallons was wholly prohibited. By the Revised Stat- utes of Massachusetts of 1836, c. 47, no person can be an innholder or seller of spirit- uous liquor, to he used about his house or other building, without license. License? to innkeepers and retailers may be granted for each town and city, and licenses may be confined to the sale of fermented liquors, such as wine, beer, ale, and cider, and excluding the sale of brandy, rum, or other spirituous liquors. The interdiction in Mississippi was limited to one gallon, and in most of the states the regulations on the subject have become very strict. The laws of the Old Plymouth Colony (ed. 1836, by W. Brigham, 287), declared that no person licensed to kee\p a public house of enter- tainment should be without good beer. Innkeepers are liable to an action if they refuse to receive a guest without just [854] LECT. XL.J OF PERSONAL PBOPERTY. * 5.97 and this is by far the most important, extensive, and useful of all the various coutracts that belong to the head of bailment. The carrier for hire in a particular case, and not exercising the busi- ness of a common carrier, is only answerable for ordinary neglect, unless he, by express contract, assumes the risk of a common car- i:ier. (b) But if he be a common gabbier, he is in the nature of an insurer, and is answerable for accidents and thefts, and even for a loss by robbery. He is answerable for all losses which cause. See infra, 634. The innkeeper is even indictable for the refusal, if he has room in his house, and the guest behaves properly. Bex v. Ivens, 7 Carr. & Pa. 213. [See, especially. The Queen v. Bymer, 2 Q. B.. D. 136.] In the ease of The State V. Chamblyss, 1 Cheves (S. C), 220, the subject of inns and taverns was elaborately discussed. It was held by a majoriiy of the court, that a license to keep a tavern included, also, the privilege of retailing spirituous liquors, in small quantities, to travellers and guests. The minority of the court held that the tavern license and the license to retail were two distinot things, and that the former license did not neces- sarily include the other. It would appear, from the learned investigations in tliat case, that a tavern was originally a place where the keeper sold wine alone, but, in process of time, the seUer of wine (including other strong drinks) began to supply food and lodging for wayfaring men^ and the term tavern came to be synonymous with that of inn, as far back as the reign of Elizabeth. The preamble to the statute of 1 James I., c. 9, declared, that " the ancient, true, and principal use of inns, ale- houses, and victualling-houses, was for tbe receipt, relief, and lodging of wayfaring people, travelling from place to place, and not meant for entertainment an4 harbor- ing of lewd and idle people," &c. The statutes of 2 James I., c. 7, 4 James I., c. 5, and 1 Chas. I., c. 4, shpw, also, the primitive use of the inn, now commonly called a tavern. In the statutes of South Carolina, both under the colony and under the state, inns and taverns have been used promiscuously for places where spirituous liquors were sold under a license. But there were licensed retailers of spirituous liquors who do not keep a tavern, and there were licensed retailers who keep a tavern and retail spirituous liquors as part of the entertainment, together with food, lodgings, &c., for travellers and wayfaring people. The mere business of entertaining travellers and otheri with food, lodging, &e., does not require an excise license. They are not tavern-keepers within the purview of the excise laws, but innkeepers, in the primitive sense, and they are entitled to some of the privileges and subject to some of the liabilities of keepers of taverns. I presume they are responsible for the goods of •their guests to the extent of innkeeper* and tavern-keepers at common law. The regulations of some late English statutes (11 Geo. IV. and 1 Wm. IV., c. 64, and 4 & 5 Wm. IV., c. 85) are very strict, even as to beer-houses. No person licensed to sell beer by retail shall have or keep his house open for the sale thereof, nor retail the same, or suffer it to be drank in or at his house before 4, a. m., and after 10, p. m. ; nor at any time between 10, a. m., and 1, p. m., nor between the hours of 3 and 5 9'clock, p. M., on Sundays. {!}) Bobinson v. Dunmore, 2 Bos. & P. 416 ; Brind v. Dale, 8 Carr. & Pa. 207. But in Gordon v. Hutchinson, 1 Watts & S, 285, the rule was carried out more extensively, and it was held that a wagoner, who carried goods for hire, was responsible as a common carrier, though transportation was only an occasional and incidental em- ployment ; and this decision seems to be founded in better policy as applicable to business in this country. [855] *598 OP PERSONAL PROPEETT. [PART V. do not fall within the excepted cases of the act of God (meaning inevitable accident, without the intervention of man), and public enemies. This has been the settled law of England for ages ; and the rule is intended as a guard against fraud and collusion, and it is founded on the same broad principles of public * 598 policy and convenience * which govern the case of inn- keepers, (a) This principle of extraordinary responsibility was taken from the edict of the pj'setor in the Roman law, (6) and it has insinuated itself into tl^ jurisprudence of all the civil- ized nations of Europe. But the rule in the civil law was not carried to the severe extent of the English common law. So in France, common carriers are not liable for losses resulting from superior force, as robbery, for that comes within the damnum fatale of the civil law, which exempted the carrier ; (c) and the same rule has been adopted in the Civil Code of Louisiana, (rf) In Scotland, loss by fire is also considered as one happening by inevitable accident, and for which the carrier is not responsible ; but Mr. Bell insists that loss by robbery ought not to be deemed an exception to the responsibility of the carrier, and that the many practical illustrations in the English law ought to be received " as of more authority than hundreds of dicta rescued from the cobwebs of the civilians." (e) , Common carriers undertake generally, and not as a casual occupation, and for all people indifferently, to convey goods, and deliver them at a place appointed, for hire as a business, (/) and with or without a special agreement as to price. (^) They (a) Co. Litt. 89, a; Woodleife v. Curties, 1 Rol. Abr. 2 C. pi. 4; Lord Holt, in Coggs V. Bernard, 2 Ld. Raym. 918 ; Lee, C. J., in Dale v. Hall, 1 Wils. 281 ; For- ward V. Pittard, 1 T. R. 27 ; Proprietors of The Trent Navigation v. Wood, 3 Esp. 127 ; Riley i\ Home, 5 Ring. 217. (6) Dig. 4. 9. 1 ; ib. 4. 9. 3. 1. [See, however, the judgment of Cockburn, C. J., In Nugent v. Smith, 1 C. P. D. 423.] (c) Code Civil, art. 1782, 1784, 1929, 1954. {d) Art. 2722, 2725, 2939. (e) 1 Bell's Comm. 470. The English and American decisions held the common carriers responsible for loss by fire. See infra, iii. 304 ; Hale v. N. Jersey Steam Navigation Company, 15 Conn. 589, s. p. (/) Gisbourn v. Hurst, 1 Salk. 249 ; Brind v. Dale, 8 Carr. & P. 207. In this last case Lord Abinger suggested, that a town cartman, whose carts ply for hire near the wharves, was not a common carrier. See Story on Bailments, 323, n. 3, 2d ed. [§ 496, 11. 3], who strongly, and I think properly, questions the solidity of this dis- tinction. ig) Lawrence, J., in Harris v. Packwood, 3 Taunt. 264; Story on Bailments [§] 495, 3d ed. [856] LECT. XL.J OF PERSONAL PROPERTY, * 599 consist of two distinct classes of men, viz. : inland carriers by land or water, and carriers by sea ; and in the aggregate body are included the owners of stage wagons and coaches, and rail- road cars, who carry goods as well as passengers for hire, wagon- ers, teamsters, cartmen, porters, the masters and owners of ships, vessels, and all watercraft, * including steam *599 vessels and steam tow boats, belonging to internal as well as coasting and foreign navigation, lightermen, barge owners, canal boatmen, and ferrymen. As they hold themselves to the world as common carriers for a reasonable compensation, they assume to do, and are bound to do, what is required of them in the course of their employment, if they have the requisite con- venience to carry, and are offered a reasonable or customary price ; and if they refuse without some just ground, they are liable to an action. (^a)y'^ In Morse v. Slue, (b) it was decided, in the reign of Charles II., by the Court of K. B., upon great consideration, that the master of a vessel employed to carry goods beji-ond sea, in con- (a) Jackson v. Rogers, 2 Show. 332; Lord Kenyon and Ashurst, J., in Elsee v. Gatward, 5 T. R. 143 ; Holroyd, J., in Batson v. Donovan, 4 B. & Ad. 32 ; Pickford V. Grand J. Railway Co., 8 M. & W. 372 ; 1 Bell's Comm. 467 ; Dwight v. Brewster, 1 Pick. 50; Jencks v. Coleman, 2 Sumner, 221 ; Story's Comra. on Bailments, 322, 323, 2d ed. f§ 496] ; Bonney v. The Huntress, District Court of Maine, 1840 ; Pome- roy V. Donaldson, 5 Miss. 36; Patton v. Magrath, Dudley (S. C), Law & Eq. 159; Hale V. New Jersey Steam Co., 15 Conn. 539 ; [Chicago & Alton R. R. Co. v. Erickson, 91 HI. 613.] See also infra, 608, 609. An action against a common carrier upon the custom is founded upon a tort, and arises ex delicto ; and it is unnecessary to join as defendants all the owners of the vehicle employed in the conveyance. Orange Bank v. Brown, 3 Wend. 158. (6) 1 Vent. 190, 238; 2 Lev. 69; Barclay v. Gana, 3 Doug. 389, a. p. j' Charges. — Even at common law a Co., 16Ela. 623; Messenger u. Penn. R. R. carrier is bound to make only reasonable Co., 37 N. J. L. 531. See McDuffee v. charges, and perhaps there is a further Portland, &c. R. R. Co., 52 N. H. 430. obligation not to charge two persons dif- That there is no obligation to charge the ferently for exactly the same service, same rate for the same service, see Ex When optional rates are offered, at least parte Benson, 18 S. C. 38. But see note to one of them must be reasonable. Galla- ». c. 44 Am. R. 564, 568. Undue prefer- gher V. Great Western Ry. Co., 8 Ir. ence is forbidden by statute in England. R. C. L. 326 ; M'Nally v. The Lancashire, London, &c. Ry. Co. v. Evershed, 3 App. &c. Ry. Co., 8 L. R. Ir. 81 ; Ruddy o. Cas. 1029. Statutes have also been Midland, &c. Ry. Co., ib. 224; Lewis u. passed in this country regulating railroad Great Western Ry. Co., 3 Q. B. D. 195; charges, and have been held constitu- Manchester, &c. Ry. Co. v. Brown, 8 App. tional. Chicago, &c. R. R. Co. v. Iowa, Cas. 703 ; Johnson v. Pensacola, &c. R. R. 94 U. S. 155. [857] * 600 OP PEESONM" PKOPEBTY, [PABT V. sideration of the freight, was answerable as a common carrier. It was admitted, in that case, and afterward? declared by Lord Hardwicke, in Boucher v. Lciwson, (c) that the action lay equally against masters and owners of vessels. The doctrine in those cases has been recognized ever since ; (. Syracuse, &c. R. R. Co., ib. 351 ; So, a condition limiting liability to the Hoadley v. Northern Transportation Co., carrier's own hne. Taylor u. Little Rock, 115 Mass. 304 ; Morrison i/. Phillips, &c. &c. Ry. Co., 32 Ark. 393. As to what Co., 44 Wis. 406 ; Erie, &c. Co. u. Pater, acts are sufficient to give one dealing with 91 111. 196 ; B. & 0. R. R. Co. v. Campbell. a carrier notice of conditions limiting the 36 Ohio St. 647 ; Railroad Co. v. Manu- latter's liability, so that he must be con- facturing Co., 16 Wall. 318. [873] *609 OP PERSONAL PROPERTY. [PART T. foreign and inland navigation, (e) In Elliott v. Rossell, the whole doctrine was extensively considered ; and it was under- stood and declared that a common carrier warranted the safe delivery of goods in all but the excepted cases of the act of God and public enemies ; and that there was no distinction between a carrier by land and a carrier by water, whether the water naviga- tion was internal or foreign, except so far as the exception is extended to perils of the sea by the special terms of the * 609 contract * contained in the charter party or bill of lading. ^ It was further shown that the marine law of Europe went risk of her master, the owners of the steamboat were not responsible, even for the want of ordinary care and skill. Alexander ;). Greene, 3 Hill (K Y.), 1. But this case was reviewed and reversed in the New York Court of Errors, 7 Hill (N. Y.), 533. The English statute (1 Wm. IV. c. 68), made for the more effectual protection of common carriers for hire, declares that they shall not be liable for the hss of, or injury to, any property of the following description : that is to say, of gold or silver coin, or gold or silver in a manufactured or unmanufactured state, or any precious stones, jewelry, watches, &c., bills, notes, writings, pictures, plated articles, glass, silks, furs, or lace, contained in any parcel to be carried for hire, or to accompany a passenger in any public conveyance, where the value exceeds £W, unless delivered as such with an express formal declaration of the value, and the carrier to be entitled to an increased rate of charge, according to previous notice. See Hinton v. Dibbin, 2 Ad. & El. n. s. 646, on the strict construction of the statute. No public notice is to limit the responsibility of the carrier in respect to other goods. The exception in bills of lad- ing of goods on inland navigation, of "dangers of the river which are unavoidable," narrows the liability of the boat-owner, and exempts him from liability for accidents and loss occasioned by hidden obstructions newly placed in the river, and which human skill and foresight could not discover and avoid. Gordon u. Buchanan, 5 Yerg. 71. (c) Colt V. M'Meehen, 6 Johns. 160 ; Schieffelin «. Harvey, 6 id. 170 ; Elliott V. Eossell, 10 id. 1 ; Kemp v. Coughtry, 11 id. 107 ; Allen v. Sewall, 2 Wend. 827 ; McArthur v. Sears, 21 id. 190. 1 As to whether a general ship is a L. R. 7 Ex. 267, where the statement in common carrier, apart from the liability Morse v. Slue, that masters of ships who assumed by the bill of lading, see post, iii. carry goods for hire are common car- 217, n. 1, (a) ; and in addition to the cases riers, is referred to as authority, and there cited, Liver Alkali Co. v. Johnson, acted on. a' x^ In the case last cited, on appeal in Nugent v. Smith, 1 C. P. D. 423. It is (9 L. R. Ex. 338), it was thought ujinec- at least questionable whether there must essary to decide whether a, general ship not be a fixed route, with definite termini, was a common carrier or not, as it was in order to constitute a common carrier, held that the liability was the same at Cases supra, and Varble v. Biglcy, 14 any rate. Bush, 698t But see Soaife v. Farrant, 10 L. R. Ex. As to a general ship, see infra, iii- 358, and the judgment of Cookburn, C. J., 217, n. 1. [874] LECT. XL.j OF PERSONAL PROPERTY. * 609 to the same extent, as did also the civil law, and the law of those nations in Europe which have made the civil law the basis of their municipal jurisprudence. The principle appeared to be sound and wise, and to have a very general reception among nations. The same doctrine was again declared in New York, in Allen V. Sewall ; (a) and the owners of a steamboat carrying light freight and parcels for hire were held to be liable as com mon carriers. Bank bills were held to be goods, within the meaning of the law ; and directions to the captain not to carry money did not excuse the owner, unless notice of such instruc- tions were brought home to the shipper. There is no doubt, also, that the doctrine of the English common law, which declares that persons carrying goods for hire by land or water, including all kinds of internal as well as external navigation, are common carriers, and liable for all losses happening otherwise than by inevitable accident, prevails generally in these United States, as part of the common law of the land. The slightest neglect or fault, levissima culpa, renders the master of a vessel liable. (J) (a) 2 Wend. 327. The case of Aymar v. Astor, 6 Cowen, 266, would seem to have gone far to unsettle and rererse the common-law doctrine respecting carriers by water. But if there was not originally some inaccuracy or mistake in the statement or report of that case, it is to be considered as completely overruled by the case of Allen V. Sewall. This last case was reversed by the Court of Errors (6 Wend. 335), on the ground that bank bills were not goods, wares, and merchandise, within the meaning of the statute Incorporating the steamboat company, whose agent the defendant was, and that the carriage of such bills was not a part of their ordinary business, and was forbidden by instructions to the master. But the general doctrine in the text respecting the liability of common carriers was not disturbed. So, in the case of Camden Company v. Burke, 13 Wend. 611, it was held that steamboat and railroad companies were liable for the baggage as common carriers ; and even notice, brought home to the passengers, that all baggage to be at the risk of the owners, will not exempt the owners from the implied agreement that the vehicle is sufficient. But they are not responsible for the passengers if due care be used. (6) M'Clures v. Hammond, 1 Bay (S. C), 99 ; Miles v. James & Johnson, 1 M'Cord, 157 ; Cohen v. Hume, ib. 439; Smyrl v. Niolon, 2 Bailey (S. C), 421 ; Murphy v. Staton, 3 Munf. 239 ; Bell v. Reed, 4 Binney, 127 ; Moses v. Norris, 4 N. H. 304 ; Craig V. Childress, Peck (Tenn.), 270; Gordon v. Buchanan, 5 Yerg. (Tenn.) 71 ; Turney w. Wilson, 7 id. 340; Faulkner a. Wright, 1 Rice (S. C), 107 ; Hennen v. Munroe, 11 Martin (La.), 579; Smith o. Pierce, 1 La. 849; Spencers v. Daggett, 2 Vt. 92; Gil- more V. Carman, 1 Sm. & M. 279; Hale v. New Jersey Steam N. Co., 15 Conn. 539; Adams v. New Orleans Steam Towboat Co., 11 La. 46 ; Alexander o: Greene, 7 Hill (N. Y.), 533. In this last case it was held, that the owners of a steamboat on the Hudson, engaged generally in the business of towing canal-boats for hire, were responsible as common carriers ; and though the business was in tliat special case undertaken at the risk of the master and owners of the towboat, yet that the master [875] *610 OP PERSONAL PROPERTY. [PART T. * 610 * It has been the settled law in England, since the case of Lane v. Cotton, (a) that the rule respecting common carriers does not apply to postmasters, and there is no analogy between them. The post-office establishment is a branch of the public police, created by statute, and the government have the management and control of the whole concern. The postmasters enter into no contract with individuals, and receive no hire, like common carriers, in proportion to the risk and value of the letters under their charge, but only a genei-al compensation from govern- ment. In the case referred to, the postmaster general was held not to be answerable for the loss of exchequer bills stolen out of a letter while in the defendant's office. The subject was again elaborately discussed in Whitfield v. Lord Le Bespencer, (J) and the same doctrine asserted. The postmaster general was held not to be responsible for a bank note stolen, by one of the sorters, out of a letter in the post office. But a deputy postmaster or clerk in. the office is still answerable, in a private suit, for miseonr duct or negligence ; as, for wrongfully detaining a letter an un- reasonable time, (c) The English law on this subject was admitted in Bunlop v. Monroe {d) to be the law of the United States ; and a postmaster was considered to be liable in a private action for damages arising from misfeasance or for negligence, or want of ordinary diligence in his office, in not safely transmitting a and owners of the steamboat were in that cage liable for ordinary neglect, and certainly for gross neglect ; and there was evidence of both in that case. I was much struck in this case with the learning and ability of the lay members of the Court of Errors, several of whom gave separate opinions ; and this case leads me to part with still deeper regret with the Court of Errors, which existed, and generally with great dignity and usefulness, from the independence of the State of New York in 1777, down to its destruction, and the substitution of the Court of Appeals, in 1847. In Pennsylvania, the English law, as to carriers by land, is admitted in the full extent ; but with respect to carriers by inland navigation, the law was considered, in Gordon v. Little, 8 Serg. & R. 533, to be unsettled in respect to its application in that state. The carrier on inland waters was held to be clearly liable for every accident which skill, care, and diligence could have prevented ; but beyond that point it was competent for the common carrier to prove a usage different from the common law. In Harrington v. M'Shane, 2 Watts (Penn.), 443, it was, howfever, adjudged, that under the usage of trade on the western waters (the river Ohio), the owners of steamboats carrying goods on freight were common carriers, and liable as such for all losses, except those occasioned by the act of God or the public enemy. (a) 1 Ld. Eaym. 646. (i) Cowp. 754. (c) Eowning v. Goodchild, 3 Wils. 443 ; [Teall v. Felton, 1 Comst. 537 ; 3 Barb. 12.] (d) 7 Cranch, 242 ; [Wiggins v. Hathaway, 6 Barb. 632.] [876] LECT. XL.] OP PERSONAL PROPERTT. * 611 letter, (e) Whether he was liable himself for the negligence of his clerks or assistants was a point not decided ;(/ ) though if he were so to be deemed * responsible in that *611 case, it would only result from his own neglect, in not properly superintending the discharge of his duty in his office, (a) The general doctrines of agency and lien have a material bear- ing on this subject of bailment ; but as they are essentially con- nected with mercantile transactions, their extent and importance require a separate discussion.^ (e) See also Schroyer v. Lynch, 8 Watts, 453 ; Story on Bailment, 302, 2d ed. [§ 463.] {/) In Conwell v. Voorhees, 13 Ohio, 523, it was held that a mail contractor was not liable to the owner of a letter for money lost by the mail by the carelessness of the contractor's agents carrying the mail. [Hutchins v. Brackett, 2 Post. (22 N. H.) 252. But see Sawyer v. Corse, 17 Gratt. 230.] (a) Since the first edition of this work, my learned and estimable friend, Mr. Justice Story, in the discharge of his duties as Dane Professor of Law in Harvard Unirersity, has favored the public with Commentaries on the Law of Bailments, with Illustrations from the Civil and Foreign Law ; and in 1840 he gave to the public an improved and enlarged edition of that work. I would strongly recommend that volume to the student who wishes to pursue more extensively than the plan of the present lecture permitted, the refined distinctions and practical illustrations which accompany this branch of the law. I have availed myself of the lights which that work has afEorded, and the confidence which it has inspired, while engaged in the revision of my own more brief and imperfect survey of the subject. This excellent treatise is the most learned and the most complete of any that we have on the doc- trine of bailment. It aims to lay down all the principles appertaining to the subject, both in the civil, the foreign, the English, and the American law, with entire accu- racy ; and I beg leave to say, after a thorough examination of the work, that, in my humble judgment, it has succeeded to an eminent degree. I Telegraphs. — (a) It is settled by the probably be held that they are bound to best considered cases, that sending a tel- transmit messages for all who offer them, egraphic message is not a bailment, and who are ready to pay the usual or Breese v. V. S. T. Co., 45 Barb. 274; settled charges. Western Union T. Co. Playford v. United Kingdom Tel. Co., v. Carew, 15 Mich. 525, 533. [See, as to L. K. 4 Q. B. 706 ; but the subject is con- telephone companies. Am. Rapid Tel. Co. nected with that of common carriers, in so v. Conn. Telephone Co., 49 Conn. 352; far as it is not improbable that somewhat s. c. 44 Am. R. 237 and note. See also similar duties may be imposed on tel- Atty. Gen. v. Edison Telephone Co., 6 Q. egraph companies in this country, on the B. D. 244.] See iii. 458, n. 1. So they ground that they are chartered for public would not be allowed to impose unrea- purposes, as is shown by the exercise of sonable regulations or stipulations on tlie right of eminent domain in their senders. True v. International T. Co., 60 favor, Wolf v. Western Un. T. Co., 62 Me. 9; although most of the rules or Penn. St. 83, 88 ; [Turnpike Co. v. News limitations of their liability by contract Co 43 N. J. L. 381.] Thus it would which have been before the courts have [ 877 ] ^611 OP PERSONAL PROPERTY. [part V, been upheld. Ellis v. Am. T. Co., 13 Allen, 226 ; Wolf v. Western Un. T. Co., 62 Penn. St. 83 ; Sweatland u. 111. & M. T. Co., 27 Iowa, 433 ; U. S. T. Co. v. GU- dersleve, 29 Md. 232, 247. (6) It seems to be thought that apart from special contract, senders of messages cannot hold telegraph companies to the same measure of liability as common carriers. Western Un. T. Co. v. Carew, 15 Mich. 525, 532; Ellis v. Am. T.'Co., 13 Allen, 226, 233 ; Leonard v. N. Y,, A., & B. T. Co., 41 N. Y. 544, 571; Camp v. Western Un. T. Co., 6 Am. Law Reg. 443 ; De Rutte v. N. Y., A., & B. T. Co., 1 Daly, 547, 558; Breese v. U. S. T. Co., 45 Barb. 274 ; Birney v. N. Y. & W.'T. Co., 18 Md. 341; [Western Union Tel. Co. V. Neill, 57 Tex. 283-1 But see Parks v. Alta Cal. T. Co., 13 Cal. 422; Baldwin v. U. S. T. Co., 1 Lansing, 125, 136; True V. International T. Co., 60 Me. 9. This would certainly be so when the usual condition is inserted in the contract, that the company will not be liable for error unless the message is repeated. Wann v. Western Un. T. Co., 37 Mo. 472 ; Camp v. W. U. T. Co., 6 Am. Law Reg. 443; s. o. affirmed 1 Mete. (Ky.) 164 ; Breese v. U. S. T. Co., 45 Barb. 274 ; MacAndrew v. Elec- tric T. Co., 17 C. B. 3 ; [Western Union Tel. Co. V. Neill, supra ; Womack v. West- ern Union Tel. Co., 58 Tex. 176 ; 8. c. 44 Am. R. 614 and note ; Becker v. Western Union Tel. Co., 11 Neb. 87; Grinnell v. Western Union Tel. Co., 113 Mass. 299.] But it has been held that under the usual printed conditions the company will be liable for negligence or want of ordinary care, and doubts have been expressed whether it could wholly exonerate it- self, x'- Sweatland o. Illinois & Miss. T. Co., 27 Iowa, 443, 451, 452 ; True v. In- ternational T. Co., 60 Me. 9; Western Union T. Co. v. Buchanan, 35 Ind. 429. Compare 608, n. 1. See Wann v. West. Un. T. Co., 37 Mo. 472. So it will be liable for making no effort to send the message. Birney v. N. Y. & W. T. Co., 18 Md. 341 ; Baldwin u. U. S. T. Co., 54 Barb. 505; Western Union T. Co. v. Graham, 1 Col- orado, 230. The burden of proving neg- ligence is said to be on the plaintiff in U. S. T. Co. 0. Gildersleve, 29 Md. 232; Sweatland v. I. & M. T. Co., 27 Iowa, 433 (commenting on Ellis v. Am. T. Co., Wann o. W. U! T. Co., supra, and other cases) ; ante, 587, n. 1. But the delivery of a different message from that received has been treated as proving negligence, unless explained. Rittenhouse v. Inde- pendent Line of T., 44 N. Y. 263; U. S. T. Co. c. Wenger, 55 Penn. St. 262." (c) In this country telegraph compa- nies have repeatedly been held liable to receivers of messages wlio had been mis- led to their damage by the negligence of the companies' servants. New York & W. T. Co. V. Dryburg, 35 Penn. St. 298; Elwood o. Western Un. T. Co., 45 N. Y. 549 ; De Rutte v. N. Y., A., & B. T. Co., 1 Daly, 547, 557 ; Seiler v. W. U.' T. Co., 3 Am, Law Rev. 777 ; ante, 490, ii. 1. In England the liability is held to arise only from contract ; and when the message is not sent by a person representing the re- ceiver, the latter cannot recover for want of privity. Playford v. United Kingdom T. Co., L. R. 4 Q. B. 706 ; [Dickson ;;. Renter's T. Co., 2 C. P. D. 62.] It is further held in England that the telegraph company is only agent to trans- mit messages in the terms in which the senders deliver them, and that therefore the sender will not be liable to the receiver on the terms of a contract as received and acted on if they are different from those which he offered. Henkel v. Pape, L. R. 6 Ex. 7. But it might perhaps be argued that the act of sending a telegram on x* That it cannot contract so as to re- lieve itself from liability for its own or its servant's negligence, see Telegraph Co. V. Griswold, 37 Ohio St. 301 ; Western [878] Union Tel. Co. v. Tyler, 74 111. 168; B.C. 24 Am. R. 279, and note; Western Union Tel. Co. a. Adams, 87 Ind. 698. L.ECT. XL.] OF PERSONAL PROPERTY. 611 business matters imports per se that imme- diate action is expected. The message can only be certainly verified by letter, and the sender, by not writing in the first place, manifests that he desires action be- fore such verification is possible. If the receiver is to act at once, he must act in reliance on the correctness of the mes- sage as received, and he is requested by implication to do so. It would therefore seem possible to hold that the sender assumes the risk of error. See Dunning f. Roberts, 35 Barb. 463. When a message is sent through sev- eral connecting lines, the same principles are applied as in the case of railroads. Ante, 604, u. 1. In one set of cases it Is held that as the message is successively delivered to successive lines, the liability of the line over which it has passed ceases, and that of the new one begins. Leonard V. N. Y., A., & B. T. Co., 41 N. Y. 544, 570 ; Squire v. W. U. T. Co., 98 Mass. 232 ; Baldwin v. U. S. T. Co., 1 Lansing, 125; 45N. Y. 744.a;2 x' A telegraph company, like an ex- press company, is bound to make personal delivery. Pope w. Western Union Tel. Co., 9 111. App. 283; Union Express Co. u. Ohleman, 92 Penn. St. 323. As to the measure of damages in case of mistake or failure to deliver, see Western Union Tel. Co. e. Brown, 58 Tex. 170. So, Relle v. Western Union Tel. Co., 55 Tex. 308; Logan V. Western Union Tel. Co., 84 111. 468 ; Mackay v. Western Union Tel. Co., 16 Nev. 222 ; Western Union Tel. Co. v. Martin, 9 111. App. 587 ; Behm v. Western Union Tel. Co., 8 Biss. 131 ; McColl v. Western Union Tel. Co., 7 Abb. N. C. 151 and note. [879] *614 OP PERSONAL PEOPEBTT. [PART T. LECTURE XLI. OP PRINCIPAL 'and agent. The law of principal and agent is of constant application in the commercial world, and the rights and duties which belong to that relation ought to be accurately as well as universally understood. And while recommending that title to the attention of the student, as well as of the practising lawyer, T will give a summary view of those general principles which apply at large to every branch of the subject, and more especially to agencies that relate to commercial concerns. 1. Agency, how constituted.^ — Agency is founded upon a con- tract, either express or implied, by which one of the parties confides to the other the management of some business to be transacted in his name, or on his account, and by which the other assumes to do the business, and to render an account of it. The authority of the agent may be created by deed or writing, or verbally without writing ; and, for the ordinary purposes of business and commerce, the latter is sufficient, (a) * 613 Though the statute of frauds of 29 Charles II. * requires, in certain cases, a contract for the sale of goods to be in writing, and signed by the party to be charged, or by his author- ized agent, the authority to the agent need not be in writing. It may be parol, (a) The agency may be inferred from the * 614 relation of the parties and the * nature of the employment, (a) Chitty on Commercial Law, iii. 104; Lord Eldon, 9 Ves. 250; Stackpole v. Arnold, 11 Mass. 27; Long v. Colburn, lb. 97; Northampton Bank v. Pepoon, ib. 288 ; Ewing v. Tees, 1 Binney, 450 ; Shaw v. Nudd, 8 Pick. 9 ; TurnbuU v. Trout, 1 Hall (N. Y.), 336 ; M'Comb v. Wright, 4 Johns. Ch. 667. (a) Rucker v. Cammeyer, 1 Eep. 105; Chitty on Contracts, 213; Lord Eldon, in Coles V. Trecothick, 9 Ves. 260. 1 As to difference between agents and servants, see 260, n. 1, (a), {d), ad f. [880] LECT. XLI.] OF PERSONAL PROPERTY. * 615 Without proof of any express appointment, (a) It is sufficient that there be satisfactory evidence of the fact that the princi- pal employed the agent, and that the agent undertook the trust. The extent of the authority of an agent will sometimes be ex- tended or varied on th^ ground of implied authority, according to the pressure of circumstances connected with the business with which he is intrusted. (J) The statute of frauds does not require that the authorit}' of the agent contracting even for the sale of land should be in writing, (c) But if an agent is to convey or complete the conveyance of real estate or any interests in land, or to make livery of seisin, the appointment must be in writing ; (cZ) and where the conveyance or any act is required to be by deed, the authoritj' to the attorney to execute it must be commensurate in point of solemnity, and be bj' deed also, (e) The agency must be antecedently given, or be subsequently adopted ; and in the latter case, there must be some act of recogr nition. But an acquiescence in the assumed agency of another, when the acts of the agent are brought to the knowledge of the principal, is equivalent to an express authority. By permitting another to hold himself out to the world as his agent, the princi- pal adopts his acts, and will be held bound to the person who gives credit thereafter to the other, in the capacitj'^ of his agent. Thus, where a person sent his servant to a shopkeeper for goods upon credit, and paid for them afterwards, and sent the same servant again to the same place for goods, and with money to pay for them, and the servant received the goods, but embezzled * the cash, the master was held answerable for * 615 (a) Whitehead v. Tuckett, 15 East, 400; Hooe v. Oxley, 1 Wash. (Va.) 19; Long V. Colburn, supra. (b) Judson V. Sturges, 5 Day, 556. (c) Clinan v. Cooke, 1 Sch. & Lef. 27, 81 ; Barry v. Lord Barrymore, cited in 1 Sch & Lef. 28 ; McWhorter v. McMahan, 10 Paige, 394. But in Louisiana, it is settled that an agency to purchase real estate cannot be established by parol. Breed v. Guay, 10 Rob. (La.) 85. (d) The statute of frauds, on this point, was adopted verbatim in the first revision of the laws of New York (sess. 10, c. 44), and the provision was continued in the N. y. Revised Statutes, ii. 134, sec. 6, (e) Co. I,.itt. 52, a; Horsley v. Rush, cited in 7 T. R. 209; Cooper v. Rankin, 5 Binney, 613; Plummer v. Russell, 2 Bibb, 174; Sedgwick, J., 6 Mass. 40; Sham- burger w. Kennedy, 1 Dev. 1 ; Mellen, C. J., in 2 Greenl. 260 ; Blood v. Goodrich, 9 Wend. 68 ; Delius v. Cawthom, 2 Dev. (N. C.) 99 ; Toomer, J., ib. 153 ; Gibson, J., 6 Serg. & R- 331 ; Davenport v. Sleight, 2 Dev. & Bat. 381 ; Paley on Agency, by Lloyd, 158-160. VOL. II. — 56 [] 881 2 *616 OP PERSONAL PROPERTT. [PART V. the goods; for he had given credit to his servant by adopt* ing his former act. (a) Bo, where a broker had usually signed policies of insurance for another person, or an agent was in the habit of drawing bills on another, the authority was implied from the fact that the principal had assumed and ratified the acts; and he was held bound by a repetition of such acts, where there was no proof of notice of any revocation of the power, or of col- lusion between a third party and the agent. (6) It is the prior conduct of the principal that affords just ground to infer a con* tinuance of the agency in that particular business ; and the rule is founded on obvious principles of justice and policy. It was familiar to the Roman law, (e) and is equally so in the law of modern Europe, and the jurisprudence of this country, (rf) Emerigon states an interesting case within his experience, of the presumption of ratification of an act, from omission in due season to dissent from it. A merchant of Palermo wrote to a house at Marseilles, that he had shipped goods consigned to them, to be sold on his account. The ship being out of time, the consignees at Marseilles caused the cargo to be insured on account of their friend at Palermo, and gave him advice of it. He received thq letter, and made no reply, and the vessel arriving safe, he refused to account for the premium paid by the consignees, under the pretence they had insured without orders. But the reception of the letter, and the subsequent silence, were deemed by the law merchant equivalent to a ratification of the act. At this * 616 day, and * with us, the authority would be implied from the duty of the consignee, without the aid of the subse- quent silence, provided the previous course of dealing between the parties had been such as to warrant the expectation, (a) The ground taken at Marseilles was undoubtedly sufficient ; and it is a very clear and salutary rule in relation to agencies, that where (n) Hazard v. Treadwell, 1 Str. 506 ; Rusby v. Scarlett, 6 Esp. 76 ; Todd ». Hob- inson, Ryan & M. 217. [See Eamazotti v. Bowring, 7 C. B. N. s. 851.] (b) Nealf. Erving, 1 Eep. 61; Hooe w. Oxley, 1 Wash. (Va.) 19. So, also, if a confidential clerk had been accustomed to draw checks for his principal, and had occasionally been permitted to endorse for him, the jury would be warranted to infer a general autliority to endorse. Prescott v. Elinn, Bing. 19. (c) Dig. 17. 1.6.2; ib. 50. 17. 60. {d) Emerigon,- Traite des Assurances, i. 144; Nickson v. Brohan, 10 Mod. 109; Williams v. Mitchell, 17 Mass. 98 ; Bryan v. Jackson, 4 Conn. 288. (o) BuUer, J., in Wallace v. Tellfair, 2 T. E. 188, n. ; Smith v. Lasoelles, ib. [882] LEW. XLI.J OP PERSONAL PROPERTY. 616 the principal, with knowledges of all the facts, adopts or acquiesces in the acts done under an assumed agency, he cannot be heard afterwards to impeach them, under the pretence that they were done without authority, or even contrary to instructions. Omnis ratihabitio mandato sequiparatur. When the principal is informed of what has been done he must dissent, and give notice of it in a reasonable time ; and if he does not, his assent and ratification will be presumed. (J) Semper qui non prohibet pro se inter- venire, mandare ci-editur. Procurator qui recepit literas mandati, et statim non contradixit, videtur acceptare mandatum.^ (6) Dig. 14. 6. 16 ; Dig. 46. 3. 12. 4 ; Dig. 50. 17. 60 ; Towle v. Stevenson, 1 Johns. Cas. 110 ; Cairnes v. Bleecker, 12 Jolms. 300 ; Erick v. Johnson, 6 Mass. 193 ; Froth- ingham v. Haley, 3 id. 70; Clement v. Jones, 12 id. 60; Shaw v. Nudd, 8 Pick. 9; Merlin, Questions de Droit, i. 482 ; Verbo Compte Courant, sec. 1 ; Pitts v. Shubert, 11 La. 286; Flower v. Jones, 7 Martin (n. s.), 143. 1 Ratification — A person cannot ratify acts done without his authority unless they were done for him by a person assuming to act as his agent. Wilson v. Tumman, 6 Man. & Gr. 236 ; Watson v. Swan, 11 C. B. n. 8. 756. It would per- haps follow from this principle, if strictly carried out, that a forged signature could not be ratified, and so it has been held. Brook V. Hook, L. K. 6 Ex. 89 (Martin, B., dissenting). But the weight of authority is the other way. Forsj'th v. Day, 46 Me. 176 ; Greenfield Bank v. Crafts, 4 Allen, 447 ; Livings r. Wiler, 32 111. 387 ; How- ard V. Duncan, 3 Lans. 174 ; Union Bank V. Middlebrook, 33 Conn. 95 ; Fitzpatrick V. School Commissioners, 7 Humph. 224. But if a person ratifies an act done in his ar' Several more recent American cases hold that a forgery cannot be ratified, and can only be made valid by a subsequent adoption on good consideration, or by an estoppel. Hamlin v. Sears, 82 N. Y. 327 Shisler u. Van Dike, 92 Penn. St. 447 Workman a. Wright, 38 Ohio St. 405 Owsley V. Phillips, 78 Ky. 517 ; Rudd <,. Matthews, 79 Ky. 479. On the other hand, it has been stated by Lord Black- burn, in the House of Lords, that a forgery name by a person assuming to act as his agent, he is said hi Wilson v. Tumman, supra, to be bound by the act whether it be for his detriment or his advantage, and whether it be founded on a tort or a contract, to the same extent as by, and with all the consequences which follow from the same act done by his previous authority. Ancona v. Marks, 7 Hurlst. & N. 686. xi In many cases the general rule has been said to be that the ratification must be made with a full knowledge of all material facts, and it has been held that so long as the principal does not wilfully shut his eyes to means of information within his power, he will not be bound by a ratification made in ignorance of may be ratified. M'Kenzle v. British Linen Co., 6 App. Cas. 82, 99. See also Wellington v. Jackson, 121 Mass. 157; Hefner v. Vandolah, 62 111. 483. There can be no ratification where the principal was not in existence when the acts were done. In re Empress Engineering Co., 16 Ch. D. 125; Melliado v. Porto, &c. Ry. Co., 9 L. R. C. P. 503. In regard to the second paragraph of the note, it has been held not to be [883] '616 OF PERSONAL PROPERTY. [PART' V. The Roman law would oblige a person to indemnify an assumed agent, acting without authority, and without any assent or acqui- material facts which he might have dis- covered but for his negligence. Combs V. Scott, 12 Allen, 493. But a principal, by adopting and ratifying what he has authorized, does not thereby ratify dis- tinct unauthorized acts of his agent of which he has no knowledge ; for instance, by receiving the proceeds of a sale he does not make himself liable on a war- ranty given without his knowledge or authority. Smith v. Tracy, 36 N. Y. 79 ; Condit V. Baldwin, 21 N. Y. 219; Haseler V. Leraoyne, 5 C. B. n. s. 530, 536. There are cases in which a person has been held liable for a tort subsequently ratified by him in ignorance that it was a tort ; as when he ratifies a purchase of a chat- tel belonging to another ; but in that case knowledge of the outstanding title would not have been necessary to make him liable, if he had bought in person. Hil- bery v. Hatton, 2 Hurlst. & C. 822. So he will be liable for the frauds of his agent in the course of his employment (for in- stance, in effecting sales), although igno- rant of them, if he ratifies the transaction (as by receiving the price). Bennett v. Judson, 21 N. Y. 238 ; Crans v. Hunter, 28 N. Y. 389; Haseler u. Lemoyne, 5 C. B.N. s. 530; Mundorff u.Wickersham, 63 Penn. St. 87. Perhaps he would be liable without ratification, Udell v. Ather- ton, 7 Hurlst. & N. 172 ; Barwick v. Eng- lish Joint Stock Bank, L. R. 2 Ex. 259, and other cases cited ante, 284, n. 1 ; but these instances may be exceptions con- sistent with the general rule. When an act which, if unauthorized, would amount to a trespass, has been done enough for the principal to know all the facts known to the agent. Bank of Owensboro v. Western Bank, 13 Bush, 526. It is. elementary that a principal cannot ratify simply the beneficial parts of an entire contract, and also that by ac- [884] in the name and on behalf of another without previous authority, the act of ratification must take place at a time, and under circumstances, when the ratifying party might himself have lawfully done the act which he ratifies. Bird v. Brown, 4 Exch. 786, 799. Thus, when one per- son assumed without authority to stop in transitu, on behalf of another, it was held that the latter could not ratify after a demand by the consignee upon the carrier. Bird v. Brown, supra. But com- pare Hutchings v. Nunes, 1 Moore P. C. N. s. 243, 257. Payment hy C. of A.'s Debt to B With regard to the case put in the text, 616, 617, it has been thought that C.'s pay- ment under such circumstances would not operate as a discharge of A.'s liability, un- less made on behalf of A., and adopted by him, Jones v. Broadhurst, 9 C. B. 173 ; Belshaw v. Bush, 11 C. B, 191, 207 ; Kemp V. Balls, 10 Exch. 607 ; Simpson v. Egging- ton, ib. 845 ; although the contrary opinion has been expressed by a judge of great learning and authority, who thinks assent should be presumed. Cook & Lister, 13 C. B. N. s. 543, 593; post, iii. 86, n. 1. And it has accordingly been held tliat the party receiving and the party making the payment could cancel the transaction be- fore ratification by him on whose behalf it was made, and that the latter could not subsequently take advantage of it. Wal- ter V. James, L. R. 6 Ex. 124. The gen- eral principle of the exceptions to the rule stated in the text is, that when one man has paid, under compulsion, money which another was ultimately liable to pay, so cepting the benefits he becomes liable to the burdens of such a contract. Beidman V. Goodell, 56 Iowa, 592; Strasser v. Conklin, 54 Wis. 102. See also Jones V. National Building Assn., 94 Penn. St. 215. -^ECT. XLi.j Qp PERSONAL PROPERTY. * 617 escence given to the act, provided it was an act necessary and useful at its commencement, (e) But the English law has never gone to that extent ; and, therefore, if A. owes a debt to B., and C.^ chooses to pay it without authority, the law will not raise a promise in A. to indemnify * C. ; for if that were * 617 so, it would be in the power of C. to make A. his debtor nolens volens. (a) If there be any relation between the parties, a payment without authority may be binding on the person for whose use it was made, if it be made under the pressure of a situation in which one party was involved by the other's breach of faith. A surety, from his relation to the principal debtor, has an interest, and a right to see that the debt be paid ; and if he pays to relieve himself, it is money paid to and for the use of the other. (6) So, in the case mentioned by Lord Kenyon, (c) from Rolle's Abridgment, where a party met to dine at a tavern, and all except one went away after dinner without paying their quota of the tavern bill, and the one remaining paid the whole bill ; he was held entitled to recover from the others their aliquot pro- portions. The recovery must have been upon the principle, that as a special association, they stood in the light of sureties for each other, and each was under an obligation to see that the bill was paid. Qd) (c) Dig. 3. 5. 45 ; ib. 3. 5. 10. 1. The negotiorum gestio, according to the civilians, is a species of spontaneous agency, or an interference by one in the affairs of another, in his absence, from benevolence or friendship, and without authority. The nego- tiorum gestor acquires no right of property by means of the interference, and he is strictly bound, not only to good faith, but to ordinary care and diligence ; and in some cases he is held responsible for the slightest neglect. Jones on Bailment, 37 ; 1 Bell's Comm. 269 ; Pothier, du Quasi-Contrat Negotiorum Gestorum, n. 208, 209, 210; Pothier, Contrat de Mandat, n. 200, 212 ; Nelson v. Mackintosh, 1 Starkie, 237 ; Louisiana Civil Code, art. 2274, 2275 ; Lord Ellenborough, in Drake v. Shorter, 4 Esp. 165. To lay a foundation for a claim of recompense or remuneration on the part of the negotiorum gestor, the labor or expense must be bestowed either with the direct intention of benefiting the third party against whom the claim is made, or in the bona fide belief that the subject belongs to the person by whom the expense or labor is bestowed. Lord Stair's Institutions, i. ed. 1832, note g, 54, by J. E. More, the editor. (a) Lord Kenyon, 8 T. R. 310 ; Story, J., 5 Mason, 400. (i) Exall V. Partridge, 8 T. R. 308. (c) Id. 614. (rf) When several persons dine together at a tavern, each is liable for the reckon- ing. CoUyer on Part. 25, note w. They are considered to be liable jointly. They that the latter obtains the benefit of the Leake on Contr. c. 1, sec. 1, § 2 ; John- payraent by the discharge of his liability, son v. Royal Mail Steam Packet Co., L. R. the latter is held indebted to the former. 3 C. P. 38. [_ ooO J *618 OP PEESGNAl, PROPERTY. [PART V. 2. Of the Power and Duty of .Agents, -r— An agent who is intrusted with general powers must exerpise a gound discretion, and he has all the implied powers which are within the scope of the employment. A power to settle an account implieg the right to allow payments already made. If he be an empowered agent in a particular transaction, he is not bound to go on and do all other things connected with, or arising out of the case ; for the principal is presumed to have his attention awakened to every thing not within the specific charge, (e) If his powers ^ 618" * are special and limited, he must strictly follow them ; but whether there be a special authority to do a particular act, or a general authority to do all acts, in a particular business, each case includes the usual and appropriate rneans to accomplish the end. (a) An agent, acting as such, cannot take upon him- self at the same time an incompatible duty. He cannot have an adverse interest or employment. He ca,nnot be both buyer and seller, for this would expose his fiduciaiy trust to abuse and fraud. (J) ^2/1 are parties to a joint contract. But the members of a club are not partners, and are pot to be treated as such. The committee of a club are the agents of the members at large, and bound by the contracts they make in that character, but the members are not bound by the acts of the committee, if they exceed their authority as agents. Todd u. Emly [before Abinger, Ch. B.], 8 M. & W. 505, and cited at large in Wood- worth on Joint Stock Companies, 174^185. See also Eichbaum v. Irons, 6 Watts & S. 67, 8. p. As to the liability of a member of a club, the question is, if the con- tract was not made personally with the member, whether there was sufficient evi- dence of an authorized agency to make a contract binding on the members personally. Flemyng v. Hector, 2 M. & W. 172. It is not a question of partnership, but of prin- cipal and agent. [See Cockerell v. Aucompte, 2 C. B. n. s. 440 ; In re St. James's Club, 2 De G. M. & G. 383.] (e) Dubreuil i>. Rouzan, 13 Martin (La.), 158; Hodge v. Durnford, ib. 100. But the negotiorum gestor of the civil law, who interferes where the interest of his principal does not positively require it, nmst do everything necessarily dependent on the busi- ness he commences, though not within the order or knowledge of the person for whom it is transacted. (a) Paley on Agency, by Lloyd, 198-207; Story on Agency, 71, 99, 2d ed. [§§ 58, 83.] (6) See infra, iv. 488 ; Story on Agency, 199, 200, [§ 165] ; McGhee v. Lindsay, 6 Ala. 16. ' Salomons v. Pender, 3 Hurlst. & C. v. Craveti, 18 Beav. 75 ; Kerfoot v. Hyman, 639 ;Farnsworthw.Hemmer,l Allen, 494; 52 111. 512; Parker w. Voee, 46 Me. 54. Pugsley V. Murray, 4 E. D. Smith, 245; See especially MoUett v. Robinson, L. R. Walker v. Osgood, 98 Mass. 348 ; Bentley 5 C. P. 646, 655 : post, 622, n. 1. y' So an agent to buy or sell is bound principal ; and if he takes any compensa- to make the best bargain he can for his tion from the other party, it becomes at [ 886 ] ^ECT. XLI.] OP PEESONAL PROPERTY. •618 (1.) Agent exceeding his Powers. — If A. authorizes B. to buy an estate fbr him at fifty dollars per acre, and he gives fifty-one dolkrs an acre, A. is not bound to pay that price ; but the better opinion is, that if B. offers to pay the excess out of his own pocket, A. is then bound to take the estate. This case is stated in the civil law, and the most equitable conclusion among the civilians is, that A. ig bound to take the estate at the price he prescribed. Majori summae minor inest. (e) So, where an agent was directed to cause a ship to be insured at a premium not exceeding three per cent, and the agent, not being able to effect insurance at that premium, gave three and a quarter per cent, the assured refused to reimburse any part of the premium, under the pretence that his correspondent had exceeded his orders ; but the French admiralty decreed that he should refund the three per cent ; and Vahn thinks they might have gone further, and made him pay the quarter per cent ex bono et cequo ; because, he says, it is permitted, in the usage of trade, for factors to go a little beyond their orders, when they are not very precise and absolute, (c?) The decree was undoubtedly correct, and the injustice of the defence disturbed in some degree the usually accurate and severe judgment of Valin. (2.) Executing in Part. — If the agent executes the commission of his principal in part only, as if he be directed to purchase fifty shares of bank stock, and he purchases thirty only, or if he be directed to cause 2,000 dollars to be insured on a particular ship, and he effects an insurance for 1,000 dollars, and no more, it then becomes a question, whether the principal be bound to take the stock, or pay the prenjium. The principal may perhaps be (c) Inst. 3. 27. 8 ; Ferriere, sur Inst. h. t. ; Potliier, Traits du Contrat de Mandat, n. 94, 96. The act of an agent exceeding his authority is good pro ianto, and void as to excess. Johnson v. Blasdale, 1 Sm. & M. 1. (d) Valin, Com. sur I'Ord. de la Mer, ii. 32, 33. once the property of his principal, — the agency, can be allowed to make any profit, law not permitting the agent to allege without the knowledge and consent of liis that it was received otherwise than as principal." Parker v. McKenna, 10 L. R. agent. Morison v. Thompson, 9 L. R. Ch, 96, 124; Vreeland v. Van Blarcom, Q. B. 480 ; New Sombrero Phosphate Co. 35 N. J. Eq. 530. So a broker cannot act D. Erlanger, 5 Ch. D. 73 ; s. c. 3 App. for both buyer and -seller without the Gas. 1218 ; Bagnall v. Carlton, 6 Ch. D. consent of both. Bell v. MpConnell, 37 871. And generally "no agent in the Ohio St. 396. course of his agency, in the matter of his [887] •620 OP PERSONAL PROPERTY. [PART V. * 619 bound to the extent of the execution of * the commission in these cases, though it has not been executed to the utmost extent ; and this seems to have been the conclusion of the civil law. (a) ^ But a distinction is to be made according to the nature of the subject. If a power be given to buy a house, with an adjoining wharf and store, and the agent buys the house only, the principal would not be bound to take the house, for the inducement to the purchase has failed. So, if he be instructed to purchase the fee of a certain fa^-m, and he purchases an inter- est for life or years only, or he purchases only the undivided right of a tenant in common in the farm ; in these cases the prin- cipal ought not to be bound to take such a limited interest, because his object would be defeated. It might be otherwise, if the agent was directed to buy a farm of one hundred and fifty acres, and he buys one corresponding to the directions as nearly as possible, containing one hundred and forty acres only. The Roman lawyers considered and discussed these questions with their usual sagacity and spirit of equity ; and whether the prin- cipal would or would not be bound by an act executed in part only, depends in a measure upon the reason of the thing, and the nature and object of the purchase. (J) If the agent does what he was authorized to do, and something more, it will be good, as we have seen, so far as he was author- ized to go, and the excess only would be void. If an agent has a power to lease for twenty-one years, and he leases for twenty- six years, the lease in equity would be void only for the excess, because the line of distinction between the good execution of the power and the excess can be easily made, (c) But, at law, even such a lease would not be good, pro tanto, or for the * 620 twenty-one years, according to a late English * decision in the K. B. (a) If, however, the agent does a different (a) Dig. 17. 1. 33; Greene, J., in Gordon v. Buchanan, 5 Yerg. 81. (b) Dig. 17. 1. 36 ; Pothier, Traits du Contrat de Mandat, n. 95 ; 1 Lirermore on the Law of Principal and Agent, 100, 101. (c) Sir Thomas Clarke, in Alexander v. Alexander, 2 Ves. 644 ; Campbell o. Leach, Amb. 740 ; Sugden on Powers, 545. (a) Roe V. Prideaux, 10 East, 158. 1 Ireland t. Livingston, L. R. 2 Q. B. 395 ; Johnston v. Kershaw, L. R. 2 Ex. 82. 99, reversed in the Exchequer Chamber, See 622, n. 1. L. R. 5 Q. B. 516, but aflSrmed L. R. 5 H. L. [888] L'ECT. XLI.J OP PERSONAL PROPERTY. * 620 business from that he was authorized to do, the principal is not bound, though it might even be more advantageous to him ; as it he was instructed to buy such a house of A., and he purchased the adjoining house of B. at a better bargain ; or, if he was instructed to have the ship of his correspondent insured, and he insured the cargo. The principal is not bound, because the agent departed from the subject-matter of the instruction. (6) (3.) General and Special Agents. — There is a very important distinction on this subject of the powers of an agent, between a genei'al agent, and one appointed for a special purpose, y^ The acts of a general agent, or one whom a man puts in his place to transact all his business of a particular kind, or at a particular place, wiU bind his principal, so long as he keeps within the general scope of his authority, though he may act contrary to his private instructions ; and the rule is necessary to prevent fraud and encourage confidence in dealing, (c) ^ But an agent consti- (6) Dig. 17. 1. 5. 2 ; Pothier, Traitd du Contrat de Mandat, n. 97. Grotius, de Jure, B. & P. b. 2, c. 16, sec. 21, says that the famous question stated by Aulus Gel- lius, whether an order or commission might be executed by a method equally or more advantageous than the one prescribed, might easily be answered, by considering wliether what was prescribed was under any precise form, or only with some general view that might be effected as well in some other way. If the latter did not clearly appear, we ought to follow the order with punctuality and precision, and not interpose our own judgment when it had not been required. (c) Whitehead v. Tuckett, 15 East, 400; Walker v. Skipwith, Meigs (Tenn.), 502 ; Lightbody v. N. A. Ins. Co., 23 Wend. 22 ; Lobdell v. Baker, 1 Mete. 202 ; Cook v. Hunt, 24 111. 535. Attorneys, having a discretionary power to collect a debt, may, in the exercise of their discretion, assent to an assignment for the benefit of creditors, and bind their clients thereto. Gordon v. Coolidge, 1 Sumner, 537. But a law agent 1 Ante, 300, n. 1, (c) ; 284, n. 1 ; post, 2 Black, 372 ; Minter v. Pacific R. R., 621, n. 1; Edmunds u. Bushell, L. R. 41 Mo. 503; Toledo, W., & W. R. Co. v. 1 Q, B. 97 ; Butler v. Maples, 9 Wall. Rodrigues, 47 111. 188 ; Collen v. Gardner 766 ; Calais Steamboat Co. v. Van Pelt, 21 Beav. 540. hI The distinction between general and determine the extent of this ostensible special agents seems to be productive of authority. Swire v. Francis, 3 App. Cas. confusion rather than of clearness. The 106 ; Martin v. Webb, 110 U. S. 7 ; Stew- ground of liability is exactly the same in art v. Woodward, 50 Vt. 78 ; Equitable both cases, the rule being in every case Life Assurance Soc. v. Poe, 53 Md. 28 ; that the principal is bound by contracts Holbrook v. Oberne, 56 Iowa, 324. See, which fall within the ostensible authority especially, Campbell on Sales of Goods, of the agent ; viz., that authority which &c., 398 et seq. A special agent is there de- reasonable men are justified by the acts fined as one who has no ostensible author- of the principal in believing the agent to ity, and can therefore bind his principal possess The facts of each case must only to the extent of his actual authority. [889] * 621 OF PERSONAL PEOPEBTT, [PAET T. tuted for a particular purpose, and under a limited power, cannot bind his principal if he exceeds that power, (i) The * 621 special authority * must be strictly pursued, (a) Who- ever deals with an agent constituted for a special purpose, deals at his peril, when the agent passes the precise limits of his power ; though if he pursues the power as exhibited to the pub- lic, his principal is bound, even if private instructions had still further limited the special power. (6) * Thus, where a holder of - % is responsible for the consequences of professional error when the injury thereby to his client arises from the want of reasonable skill or diligence on his part, both of which qualities he assumes to have and duly employ. Hart v. Frame, [6 CI. & F. 193.] A general agent is to act for his principal as he would for himself, and is, bound to exercise a sound discretion. A special agent has no discretion. Master of the KoUs, in Bertram v. Godfray, 1 Knapp, 383 ; Anderson v. Coonley, 21 Wend. 279. (d) Munn v. Commission Company, 15 Johns, ii; Beals v. Allen, 18 id. 363; Thompson v. Stewart, 3 Conn. 172 ; Andrews v. Kneeland, 6 Cowen, 354 ; BuUer, J,, 3 T. R. 762 ; East India Company v. Hensley, 1 Esp. Ill ; Allen v. Ogden, Wharton's Dig. tit. Agent and Factor, A. 1 ; Blane v, Proudflt, 3 Call, 207. If possession of goods be given for a specific purpose', as to a carrier or wharfinger, the property is not changed by the sale of such a bailee, and the owner may recover them from the bona fide buyer. Wilkinson v. King, 2 Camp. 335. (a) Gordon v. Buchanan, 5 Yerg. 71. (6) The principle that pervades the distinction on this subject rests on sound and plevated morality. There must be no deception anywhere. The principal is bound 1 Seeming Powers of Agents. — The case the act of executing the power is itself a of North River Bank v. Aymar, cited, 621, representation, a third person dealing with note (c), is said to have been reversed by such agent in entire good faith pursuant the Court of Errors. But the decision to the apparent power, may rely upon was never published, and later cases the representation, and the principal is have supported the opinion of the court estopped from denying its truth to his in 3 Hill. Farmers' & Mechanics' Bank prejudice." The decision in 3 Hill is V. Butchers' & Drovers' Bank, 14 N. Y. again affirmed. Madison & Ind. R. R, v. 623, 631, 16 N. Y. 125, 143 ; Westfield Norwich Saving Soc, 24 Ind. 457 ; De Bank v. Cornen, 37 N. Y. 320, 322. The Voss v. Richmond, 18 Gratt. 388, 363 ; principle has been alluded to anle, 300, Bird u. Daggett, 97 Mass. 494; 291, 11. 1, and more at length in 5 Am. Law n. 1, (6) ; 620, n. 1 ; [Merchants' Bank r. Rev. 272, 287, "Ultra Vires," although the Gnswold, 72 N. Y- 472. Comp. Chaplei. reasoning in that article requires some v. Brunswick Bdg. Soc, 6 Q. B. D. 690.] qualification. It is stated thus in New As to directors of a company, see Foun- York & N. H. R. R. v. Schuyler, 34 N. Y. taine v. Carmarthen R. Co., L. R. 5 Eq 30, 73, " where the principal has clothed 316, 322, and c&ses cited ante, 300, n. 1, (c), his agent with power to do an act upon a discussion involving general principles the existence of some extrinsic fact neces- of agency. Compare Westfield Bank v. earily and peculiarly within the knowledge Cornen, su/jj-a. See also 611, n. 1, arf/., of the agent, and of the ejcistenoe of which as to telegraphs ; iii. 164, n. 1 ; 207, u. 1, [890] LECT. ^I-] OF PERSONAL PROPERTY. * 621 a bill of exchange desired A. to get it discounted, but positively- refused to indorse it, and A. procured it to be indorsed by B., it was held that the original holder was not bound by the act of A., who was a special agent under a limited authority, not to indorse the bill, (e) So, in the case of Batty v. Carswell, (d) A. l>y the acts of his agent, if he clothe him with powers calculated to induce Innocent third persons to believe the agent had due authority to act in the given case. On the other hand, if there be no authority, nor the show or color of authority from the pnncipal, to do an act beyond his powers, the party who deals with the agent in any such transaction must look to the agent only. In the case of Williams v. Walker, decided by the Asst. V. Ch. of New York, m January, 1845, 2 Sandf. Ch. 325, it was held, after a learned discussion of the authorities, that the agent or money scrivener for defendant, who had possession of her bond and mortgage, and received interest for her and part of the principal, was entitled to receive the same, and the payments were valid ; but that after the bond was withdrawn from his possession, and delivered to the owner of it, payments of the principal afterwards to him were not good against the owner of the bond, for he was not her general agent, for the inference of agency was founded on the possession of the securities. (c) Fenn «. Harrison, 3 T. R. 757. Unless the manner of doing a particular business be prescribed, even a special agent will be deemed clothed with the usual means of accomplishing it ; and if he makes false representations on the subject, to induce purchasers to enter into the contract, the principal is affected by them, and responsible for the deceit. He who created the trust, and not the purchaser, ought to suffer. Hern v. Nichols, 1 Salk. 289 ; Sandford v. Handy, 23 Wend. 260; Putnam V. Sullivan, 4 Mass. 45 ; North Eiver Bank v. Aymar, 3 Hill (N. Y.), 262. The power of the agent to affect the contract in the name of his principal by an innocent misstatement, was elaborately discussed in Cprnfoot v. Fowke, 6 M. & W. 358. A., by his agent, leased a, house to B. which had a nuisance adjoining it, of which A. was apprised, but did not communicate the fact to his agent, who was ignorant of it, and said, in answer to the inquiry of the lessee, if there were any objections to the house, that there were not. There was no fraudulent intention on the part of the owner, for he was merely passive, and gave no directions to his agent, who acted in good faith. The court held that the contract was valid, as there was no fraud in either principal or agent, and the representation of the latter, collateral to the contract, (d) 2 Johns. 48. as to masters of vessels. But when an & Eq. 1 ; Wheelton v. Hardisty, 8 El. & agent for a special purpose, c. jr. to borrow Bl. 232, 270; Barwick v. English Joint a certain sum of money, has exhausted Stock Bank, L. R. 2 Ex. 259, 262 ; Fitz- his authority, as by having borrowed the siramons v. Joslin, 21 Vt. 129 ; Redfleld's amount named, he cannot afterwards bind note to Story on Agency, §139; [Lud- his principal by assuming to act under the gater v. Love, 44 L. T, 694.] The case is power. Lowell Five Cents Savings Bank different when the agent is guilty of actual V. Winchester, 8 Allen, 109. fraud. See 284, n. 1 ; 616, n. 1. -[See The decision in Comfopt v. Fowke is still Kennedy v. McKay, 43 N. J. L. 288, where debated. It is upheld in 3 Am. Law Rev. the agent was fraudulent but the princi- 430. It is qualified, explained, doubted, or pal innocent. Held, the principal was not denied in National Exch. Co. of Glasgow liable in tort.\ . Drew, 2 Macq. 103, 108, 144 ; 32 E. L. [891] • 621 OP PERSONAL PBOPEETT. [PAET T. authorized B. to sign his name to a note for 250 dollars, payable in six months, and he signed one payable in sixty days ; and the court held that A. was not liable, because the special authority was not strictly pursued. On the other hand, if the servant of a horse dealer, and who seUs for him, but with express instruc- tions not to warrant as to soundness, does warrant, the master is held to be bound ; because the servant, having a general author- ity to sell, acted within the general scope of his authority, and the public cannot be supposed to Jpe acquainted with the private conversations between the master and servant, (e) ^ So, if a broker, whose business is to buy and sell goods in his own name, be intrusted by a merchant with the possession and apparent control of his goods, it is an implied authority to sell, and the principal will be concluded by the sale. There would be no safety in mercantile dealings if it were not so. If the principal sends his goods to a place where it is the ordinary business of the person to whom they Are confided to sell, a power to sell is implied. (/) If one sends goods to an auction room, it is not to be supposed that they were sent there merely for safe keeping. The principal will be bound, and the purchaser safe, by a sale under those circumstances, (jg) could not affect the principal in a case free from fraud. Lord C. B. Abinger strongly dissented, on the ground that the knowledge of the principal was the knowledge of the agent, and I think he was sustained by strong principles of policy. (e) Ashhurst, J., in 3 T. E. 757 ; Bayley, J., in 15 East, 45. If an agent he appointed to sell personal property, the law implies an authority to warrant the soundness of the article in behalf of his principal. Hunter v. Jameson, 6 Ired. {N. C.) [252 ;] C. J. Ruffln, contra. The declarations of an agent, acting within the scope of his authority, and made in the course of the transaction, are evidence as part of the res gestcs. Franklin Bank ». Steam Navigation Co., 11 Gill & J. 28. (/) Saltus V. Everett, 20 Wend. 267. (g) Pickering v. Busk, 15 East, 38. An implied agency is never construed to 2 Howard «. Sheward, L. R. 2 C. P. liver a horse on one particular occasion 148 ; and as to the authority of other gen- at a private sale, cannot bind his master eral agents to sell to give warranties, see by a warranty, unless he has authority in Schuchardt v. Aliens, 1 Wall. 359 ; Mil- fact. Brady u. Todd, 9 C. B. n. s. 592. bum V. Belloni, 34 Barb. 607 ; Eandall v. See Scott v. McGrath, 7 Barb. 53. Neither Kehlor, 60 Me. 37, 47 ; [M'Cormick o. can one employed to sell stock in like KeUy, 28 Minn. 135; Perrine c.. Cooley, manner. Smith t. Tracy, 36 N. T. 79. 42 N. J. L. 623 ; Graul v. Stutzel, 53 See further. Temple v. Pomroy, 4 Gray, Iowa, 722.] But compare Upton v. Suf- 128 ; [Lamm v. Port Deposit, &c Assn., folk County Mills, 11 Cush. 586 ; Palmer 49 Md. 233 ; Herring «. Skaggs, 62 Ala. €/. Hatch, 46 Mo. 585. So the servant of 180.] a private owner intrusted to sell and de- [892] LECT. XLI.] OP PERSONAL PROPERTY. ■622 The presumption of an authority to sell in these cases * 622 is inferred from the nature of the business of the agent ; and it fails when the case will not warrant the presumption of his being a common agent for the sale of property of that descrip- tion. If, therefore, a person intrusts his watch to a watchmaker to be repaired, the watchmaker is not exhibited to the world as owner, and credit is not given to him as such, merely because he has possession of the watch, and the owner would not be bound by his sale, (a) i extend beyond tlie obvious purposes, and the general usage, scope, and course of the business for which it is apparently created ; yet the incidental powers of certain agencies — such, for instance, as those of a master of a ship and the cashier of a bank — are not easily reduced to precise limits. Good sense, sound discretion, and the necessary purposes of the trust, must guide the application of the implied power according to the circumstances of the case. Mr. Justice Story, in his Commentaries on Agency, 2d ed. 127-138, [§§ 114-123,] has collected and digested, with his usual care, the leading cases in which the application for this implied authority in the case of cashiers and masters of vessels has been sustained, (a) Lord Ellenborough, 15 East, supra. ^ Payment. — Effect of Running Ac- counts. — The text is confirmed by Wil- liams V. Evans, L. E. 1 Q. B. 352; Hall u. Storrs, 7 Wis. 253. These cases also show that factors and auctioneers have authority to receive payment in cash, and give a discharge of the price. It would further seem that if " the known general course of business is for the agent to keep a running account with tlie principal, and to credit him with sums which he may have received by credits in accounts with the debtors, with whom he also keeps running accounts, and not merely with moneys actually received," and " an ac- count is bona fide settled according to that known usage, the original debtor is dis- charged, and the agent becomes the debtor, according to the meaning and in- tention, and with the authority of the prineipaL" Stewart v. Aberdein, 4 M. & W. 211, 228 ; Catterall v. Hindle, L. R. 2 C. P. 368; Warner v. Martin, 11 How. 209, 225. See Ex parte White, in re Ne- vill, L. R. 6 Ch. 397. x^ In Massachusetts it has been said to be the usual course of business for a factor to mingle all the moneys received upon the sale of goods of different consignors, together, and with his own funds, and to make himself a debtor to his principal. Vail v. Durant, 7 Allen, 408. [See also Roosevelt v. Do- herty, 129 Mass. 301.] But the general rule is that when an agent is employed to receive money and pay it over to his prin- cipal, he is not authorized to discharge a x^ An agent whose apparent authority is to make cash sales has implied author- ity to receive payment. But if the ap- parent authority is only to sell on credit or to solicit orders, or if the sale is in fact made on credit, the agent has no such authority. Mann's Ex'rs v. Robinson, 19 W. Va. 49; Putnam v. French, 53 Vt. 402; Draperv. Eice, 56Iowa, 114; Butler V. Dorman, 68 Mo. 298; Clark v. Smith, 88 111. 298; McKindley v. Dunham, 55 Wis. 515. That the payment must be in cash, except where at least apparent authority to the contrary appears, see Pearson v. Scott, 9 Ch. D. 198. Comp. Putnam v. French, supra. See further, Bentley v. Doggett, 51 Wis. 224. [893] *622 OP PEESONAL PROPERTY. [part V. (4.) Sales by a Factor. — A factor or merchant, who buys or sells upon commission, or as an agent for .others, for a certain allowance, may, under certain circumstances, sell on credit, with- out any special authority for that purpose, though, as a general rule, an agent for sale must sell for cash, unless he has express liability of his own to the person indebted to his principal by a set-ofE in his princi- pal's account. Cases last cited ; tJnder- wood V. Nicholls, 17 C. B. 239; Sweeting V. Pearce, 7 C. B. n. s. 449 ; 9 id. 534. So a factor's attempt to transfer his princi- pal's goods in consideration of his own antecedent debt does not bind the princi- pal. Warner v. Martin, supra ; Benny v. Pegram, 18 Mo. 191. As [to] the right of one dealing with a factor to insist on a set off, post, 632 and n. It has been held that the factor does not change the prin- cipal's rights by taking one note for the amount due to him and a further sum due to himself, and that the assignees in bank- ruptcy of the factor will take the note in trust for the principal to the extent of his claim. Beach v. Porsyth, 14 Bai'b. 499. A broker, as the word is explained in note (6), has no authority to receive pay- ment. Higgins V. Moore, 34 N. Y. 41 7, re- versing s. c. 6 Bosw. 344. See Morris v. Euddy, 5 C. e! Green (20 N. J..Eq.), 236, 238; Fairlie v. Fenton, L. R. 6 Ex. 169; and, generally, Seiple v. Irwin, 30 Penn. St. 513. In Mollett v. Robinson, L. R. 5 C. P. 646, it was conceded in argument, on the authority of Cropper v. Cook, L. R. 3 C. P. 194, that a broker might make himself personally responsible as between himself and the seller, if there wer6 a usage to warrant it, known to both parties. But the court was equally divided as to whether a jperson employing a broker would be bound by a usage of the trade, unknown to him, to buy on a running account, the whole amount covered by orders from different parties, and then, at the prompt day, to tender the amount covered by his order, or, if the delivery was not taken, to claim any difference. The question arose in the tallow trade, which is of a very speculative character. Other cases in which a usage for brokers to purchase in their own names and then to fill their principal's order themselves, that is, to purchase on behalf of their principals frotn themselves, has been thought bad, are Bostock v. Jardine, 3 Hurlst. & C. 700 ; Pickering v. Demerritt, 100 Mass. 416; Day V. Holmes, 103 Mass. 306. a;" As to a usage, when an entire order for a certain amount is given, to buy in smaller lots at different times as oppor- tunity offers, see Johnston v. Kershaw, L. R. 2 Ex. 82; Ireland v. Livingston, L. R. 5 Q. B. 516, reversing s. c. L. R. 2 Q. B. 99, but in turn reversed in L. R. 5 H. L. 395, on the ground that when a commission agent receives an order capable of two interpretations, and hon- estly gives it one of those interpretations, and acts accordingly, the principal iS botind; 619, n. 1. x^ In Mollett v, Robinson, on appeal mb nom. Robinson v. Mollett, 7 L. R. H. L. 802, it was held that the usage in question was so peculiar in character and BO much at variance with the apparent relations of the parties, that one employ- ing the broker without knowledge of the usage could not be held bound by it. See Duncan v. Hill, 6 L. R. Ex. 265. The [894] extent of a broker's duties are well illus- trated by the cases determining when his commissions are earned. Sibbald v. Bethlehem Iron Co., 83 N. Y. 378 ; Tim- berman v. Craddock, 70 Mo. 638 ; Vinton V. Baldwin, 88 Ind. 104 ; Veazie v. Parker, 72 Me. 443 ; Mansell v. Clements, 9 L, R 0. P. 139 ; Wilkinson v. Alston, 48 L. J. Q. B. 733; Green v. Lucas, 33 L. T. 684. LECT. XLI.] OP PERSONAL PROPERTY. * 623 authority to sell on credit. (J) ^ He may sell in the usual way, and, consequently, it is implied that he may sell on credit with- out incurring risk, provided it be the usage of the trade at the place, and he be not restrained by his instructions, and does not unreasonably extend the term of credit, and provided he uses due diligence to ascertain the solvency of the purchaser, (c) But the factor cannot sell on credit in a case in which it is not the usage, as the sale of stock, for instance, unless he be expressly authorized, because this would be to sell in an unusual manned. ((^) Nor can he bind his principal to other modes of payment * than a payment in money at the time of sale, or on the * 623 Usual credit. If a factor, at the expiration of the credit given on a sale, takes a note payable to himself at a future day, he makes the debt his own. (a) He cannot bind his principal to (6) An agent is a nomen generalissimum, arid includes factors and brokers, who are only a special class of agents. A factor ia distinguished from a broker by being intrusted by others with the possession and disposal, and apparent ownership of property, and he is generally the correspondent of a foreign house. A broker is employed merely in the negotiation of mercantile contracts. He is not trusted with the possession of goods, and does not act in his own name. 1 Domat, b. 1, tit. 17, sec. 1, art. 1 ; Story on Agency, 2d ed. -31-34, [§§ 28, 33 ;| Baring v. Corrie, 2 B. & Aid. 137, 143, 148; [HoUins v. Fowler, 7 L. R. H. L. 757, 774; Sibbald u. Bethlehem Iron Co., 83 N. Y. 378, 381.] His business consists in negotiating exchanges, or in buying and selling stocks and goods ; but in modern times, the term includes persons who act as agents to buy and sell, and who charter ships and effect policifes of insur- ance. A stock broker cannot sell upon credit, for that is not the usual course of his business. (c) Van Allen v. Vanderpool, 6 Johns. 69; Goodenow v. Tyler, 7 Mass. 36 ; James V. M'Credie, 1 Bay (S. C), 294; Emery v. Gerbier, 2 Wash. 413; and other cases cited in Wharton's Dig. of Penn. tit. Agent and Factor, A, 24 ; Burrill v. PhillipSj 1 Gall. 360 ; Willes, C. J., in Scott v. Surman, Willes, 400 ; Chambfe, J., in Houghtort V. Matthews, 3 Bos. & P. 489 ; Leverick v. Meigs, 1 Cowen, 645 ; Greely v. Bartlett, 1 Greenl. 172 ; Forrestier V. Bordman [1 Story, .43], C. C. U. S. Mass. October Term, 1839; Story on Agency, §§ 110, 209. (cf) Wiltshire v. Sims, 1 Campb. 258; State of Illinois u. Delafield, 8 Paige, 327; s. c. 26 Wend. 192. In this last case it was held that an agent/or a state, authorized to borrow money on a sale of stock, cannot sell on credit without express authority, even though, by the usages of trade, it be the custom to sell such stocks on a creditj when they are tlie private property of indiyiduals. It was further held, that if the agent for a state unauthorizedly sell its stock on credit, or below par, to a purchaser, cliargeable with notice of his want of authority, the state may repudiate the contract, and follow the property in the hands of such purchaser, and before it has been passed away to a bona fide holder without notice. (a) Hosraer v. Bebee, 14 Martin (La.), 368. So, if a factor sells on credit, and takes the notes of the vendee, and has tliem discounted for his own accommodation, Ue becomes responsible for the debt. Myers v. Entriken, 6 Watts & S. 44. The [895] *624 OP PERSONAL PROPEKTY. [PART T. allow a set o£E on the part of a purchaser, (i) If the factor, in a case duly authorized, sells on credit, and takes a negotiable note, payable to himself, the note is taken in trust for his principal, and subject to his order; and if the purchaser should become insolvent before the day of payment, the circumstance of the factor having taken the note in his own name would not render him personally responsible to his principal, (c) ^ Even if the factor should guaranty the sale, and undertake to pay if the purcBaser failed, or should sell without disclosing his principal, the note taken by him as factor would still belong to the princi- pal, and he might waive the guarantee and claim possession of the note, or give notice to the purchaser not to pay it to the factor. In such a case, if a factor should fail, the note would not pass to his assignees, to the prejudice of his principal ; and if the assignees should receive payment from the vendee, they would be responsible to the principal ; for the debt was not in law due to them, but to the principal, and did not pass under the assign- ment, (c?) The general doctrine is, that where the principal can trace his property into the hands of an agent or factor, he may follow either the identical article or its proceeds into the posses- sion of the factor, or of his legal representatives or assignees,^ unless they should have paid away the same in their * 624 representative character, before notice of the claim of * the principal, (a) The same rule applies to the case of a banker, who fails, possessed of his customer's property. If it be distinguishable from his own, it does not pass to his creditors, but same results follow if he blend the moneys of the principal with his own, and releases the vendee. He is bound to keep his principal duly informed of matters material to his interest. Brown v. Arrott, ib. 402 ; Story on Agency, § 196. (6) Guy V. Oakley, 13 Johns. 332. (c) Messier v. Amery, 1 Yeates, 540 ; Goodenow v. Tyler, 7 Mass. 36 ; Scott v. Surraan, Willes, 400. (d) Godfrey v. Furzo, 3 P. Wms. 185 ; Ex parte Dumas, 1 Atk. 234 ; Tooke v. Hol- lingworth, 5 T. R. 226 ; Gurratt v. CuUum, cited in Scott v. Surman, Willes, 405, and also by Chambre, J., in 3 Bos. & P. 490 ; Kip v. Bank of N. T., 10 Johns. 63 ; Thomp- son V. Perkins, 3 Mason, 232. (o) Veil V. Mitchel, 4 Wash. C. C. 105 ; Taylor v. Plumer, 3 Maule & S. 562. 1 Gorman v. Wheeler, 10 Gray, 362; 329; Farmers' & Mechanics' Nat. Bank distinguishing Blackman v. Green, 24 v. King, 57 Penn. St. 202 (and English Vt. 17. See also Eich v. Monroe, 14 cases there cited). See Lemcke v. Booth, Barb. 602. 47 Mo. 385 ; ante, 622, a. 1. 2 Sheffer v. Montgomery, 65 Fenn. St. [896] LECT. XLI.] OP PERSONAL PROPERTY. * 625 may be reclaimed by the true owner, subject to the liens of the banker upon it. (J) Though payment to a factor, for goods sold bf him be valid, the principal may control the collection, and sue for the price in his own name, or for damages for non-performance of the con- tract ; and it is immaterial whether the agent was an auctioneer or common factor, (c) (5.) Del Credere Commission. — There are some cases in which a factor sells on credit at his own risk. When he acts under a del credere commission, for an additional premium, he becomes liable to his principal when the purchase-money falls due ; and accord- ing to the doctrine in some of the cases, he is substituted for the purchaser, and is bound to pay, not conditionally, but absolutely, and in the first instance. The principal may call on him without first looking to the actual vendee. This is the language of the case of Grove v. Dubois, (cT) and it seems to have been adopted and followed in Leverick v. Meigs ; (e) and yet there is some difficulty and want of precision in the cases on the subject. It is said that a factor under a del credere commission is a guar- antor of the sAle, and that the notes he takes from the purchaser belong to his principal, equally as if he had only guaranteed them. (/) If he sells under a del credere commission, he is to be considered, as between himself and the vendee, as the sole owner of the goods ; and yet he is considered only as a surety. (^) In some late cases in the C. B., in England, (K) *the *625 doctrine in the ease of G-rove v. Dubois was much ques- tioned, and it was considered to be a vexata qucestio, whether a del credere commission was a contract of guaranty merely on (6) Walker v. Buraell, 1 Doug. 311 ; Bryson v. "Wylie, 1 Bos. & P. 83, n. ; Bolton ./. Puller, lb. 539. In the ease of Sargeant, 1 Rose (Cas.), 153; Parke w. EliasoUj 1 East, 544 ; 3 Mason, 242. (c) Girard v. Taggart, 5 Serg. & R. 19. (d) 1 T. R. 112. (e) 1 Cowen, 645. (/) But if he takes depreciated paper in payment, he must account for the full value in specie. Bunnell v. Mason, 1 Story, 543. (o) Charabre, J., 8 Bos. & P. 489; Thompson v. Perkins, 3 Mason, 232. A del credere factor or agent may sell in his own name. This is according to a custom in the London corn market. Johnson v. Usborne, 11 Ad. & El. 549. (A) Gall V. Comber, 7 Taunt. 558; Peel v. Northcote, ib. 478. VOL. n.- 57 [897] * 625 OP PEESONAL PEOPERTT. [PAET T. default of the vendee, or one altogether distinct from it^ and not requiring a previous resort to the purchaser, (a) ^ (6.) CannotfPledge. — Though a factor may sell and bind' his principal, he cannot pledge the goods as a security for his own debt, not even though there be the formality of a bill of parcels, and a receipt. The, principal may recover the goods of the paw- (o) The liability of a factor to his principal for the proceeds of sales made by him under a del credere commission is not affected by the statute of frauds ; for the un- dertaking is original, and not collateral. Swai\ v. Nesmith, 7 Pick. 220 ; Wolff v. Koppel, 5 Hill (N. Y.), 458. The correct legal import of a del credere engagement, says Mr. Bell, is an engagement to be answerable, as if the person so binding. himself' was the proper debtor. 1 Bell's Conim. 378. But the final settlement of the question in the English courts is otherwise, and the doctrine of the case of Grove v. Dubois maybe considered as overrnled. It was held, in Morris v. Cleasby (4 Manle & S. 566), that the character of a broker, acting under a del credere commission, was tliat of a sureti/, for the solvency of the party with whom his principal deals through his agency. He becomes a guarantor of the price of the goods sold, and has an additional percentage for his responsibility. This was the opinion of Mr. Justice Story, in the case of Thompson v. Perkins, 3 Mason, 2.S6, and confirmed in his Comm. on Agency; §215. In Wolff M. Koppel, 2 Denio, .368, this point was discussed and much con- sidered in the New York Court of Errors ; the conclusion was, that the contract of a. factor to account for the amount of sales under a del credere commission, was not within the statute of frauds, and did not require to be in writing, as his engagement was not absolute, but as a guarantor. 1 Del Credere Guaranty, — (a) Statute of 16. But the language of the English F^rauds. — Wolff u. Koppel, 5 Hill, cited decisions generally seems to uphold the in note (a); was approved by Parke, B., result of Morris v. Cleasby, as stated in in Couturier u. Hastie, 8 Exch. 40; and note (a). Hornby v. Lacy, 6 Maule & S. although the latter decision was reversed 166; Bramble v. Spiller, 18 W. K. 316 ; on another point (9 Exch. 102, 5 H. L. C. s. c. nom. Bramwell v. Spiller, 21 L. T. 678), it is perhaps law in England that sr s. 672 ; Ex parte White, L. R. 6 Ch. the undertaking is not within the statute 397, 403. of frauds. Wickham v. Wickham, 2 Kay (b) In England it is held that a del & J. 478; Sherwood v. Stone, 14 N. Y. credere agent, if he sells for a disclosed 267 ; Bradley w. Richardson, 23 Vt. 720, principal, cannot sue the purchaser in his 731. In Wickham v. Wickham, the Vice- own name. Bramble v. Spiller, supra. Cliancellor intimates a doubt how that The contrary seems to be thought in conclusion could be arrived at unless the Sherwood v. Ston#, supra. See 640. So agreement of a del credere agent is more it is said in Catterall v. Hindle, L. R. 1 C. than a simple guaranty, and amounts to a P. 186 (reversed on another point, L. R. positive undertaking on which he becomes 2 C. P. 368), that an agent selling under primarily liable. It is thought to be such a, del credere commission is not thereby an undertaking in the American cases relieved from any of the obligations of an cited, and in Lewis v. Brehme, 33 Md. ordinary agent as to receiving payments 412 ; Cartwright v. Greene, 47 Barb. 9, on account of his principal. [898] LECT. XLI.] OF PERSONAL PROPERTT. * 626 nee; and his ignorance that the factor held the goods in the character of factor is no excuse. The principal is not even obliged to tender to the pawnee the balance due from the princi- pal to the factor ; for the lien which the factor might have had lor such balance is personal, and cannot be transferred by his tortious act, in pledging the goods for his own debt.^ Though the factor should barter the goods of his principal, yet no prop- erty passes by that act, any more than in the case of pledging them, and the owner may sue the innocent purchaser in trover. (6) The doctrine that a factor cannot pledge, is sustained so strictly, that it is admitted he cannot do it by indorsement and delivery of the bill of lading, any more than by delivery of the goods themselves, (c) To pledge the goods of the principal is beyond the scope of the factor's power ; and every * attempt to do it under color of a sale is tortious and * 626 void. If the pawnee will call for the letter of advice, or make due inquiry as to the source from whence the goods came, he can discover (say the cases) that the possessor held the goods as factor, and not as vendee ; and he is bound to know, at his pe/il, the extent of the factor's power, (a) There may be a question, in some instances, whether the res gesta amounted to a saJe on the part of the factor, or was a mere deposit or pledge as collateral security for his debt. But when it appears that the goodii were really pledged, it is settled that it is an act beyond the anthorit}' of the factor, and the principal may look to the pawnee. There is an exception to the rule in the case of nego- tiable paper, for their possession and property go together, and carry with them a disposing power. A factor may pledge the (b) Ouerreiro v. Peile, 3 B. & Aid. 616 ; Eodriguez v. Heffemafi, 5 Johns. Ch. 429. (c) Martini v. Coles, 1 Maule & S. 140; Shipley u. Kymer, ib. 484 ; Graham «. Dyster, 6 id. 1. (a) Paterson v. Tash, 2 Str. 1178; Daubigny v. Duval, 5 T. R. 604; De Bouchout u. Goldsmid, 5 Ves. 211 ; M'Combie v. Daries, 7 East, 5 ; Martini v. Coles, 1 Maule & S. 140; Fielding v. Kymer, 2 Brod. & B. 639 ; Kinder c. Shaw, 2 Mass. 398; Van Amringe v. Peabody, 1 Mason, 440; Bowie w. Napier, 1 M'Cord, 1. 2 See 585, n. 1 ; 581, n. 1. The doc- 11 How. 209, 224; Michigan State Bank trine that a factor cannot pledge, has been v. Gardner, 15 Gray, 362 ; [Gray v. Agnew, changed or modified by statutes similar to 95 111. 315 ; McCreary v. Gaines, 55 Tex. those mentioned ;)os<, 628, n. (6), in many 485; Ins. Co. v. Kiger, 103 U. S. 352; jurisdictions. Cases in which the com- Kaltembach v. Lewis, 24 Ch. D. 54.J mon law is stated, are Warner v. Martin, [899] *627 OP PERSONAL PROPERTY. [PART V. negotiable papier of his principal as security for his own debt, and it will bind the principal, unless he can charge the party with notice of the fraud, or of want of title in the agent, (i) But though the factor cannot pledge the goods of his principal as his own, he may deliver them to a third person for his own security, with notice of his lien, and as his agent, to keep posses- sion for him. Such a change of the lien does not divest the factor of his right, for it is in effect a continuance of the factor's possession, (c) So, if a factor, having, goods consigned to * 627 him for sale, should put them * into the hands of an auc- tioneer or commission merchant connected with the auc- tioneer in business, to be sold, the auctioneer may safely make an advance on the goods for purposes connected with the sale, and as part payment in advance, or in anticipation of the sale, according to the ordinary usage in such cases, (a) But if the goods be put into the hands of an auctioneer to sell, and, instead of advancing money upon them in immediate reference to the sale, according to usage, the auctioneer should become a pawn- broker, and advance money on the goods by way of loan, and in the character of pawnor instead of seller, he has no lien on the goods. It may be difficult, perhaps, to discriminate in all cases between the two characters. It will be a matter of evidence and of fact, under the circumstances. The distinction was declared in Martini v. Coles, (6) and it was observed in that case, that it would have been as well as if the law had been, that where it was equivocal whether the party acted as principal or factor, a pledge in- a case free from fraud should be valid. To guard against abuse and fraud, it is admitted, that if the factor be exhibited to the world as owner, with the assent of his prin- cipal, and by that means obtain credit, the principal will be (b) Collins V. Martin, 1 Bos. & P. 648; Treuttel v. Barandon, 8 Taunt. 100; Gold- smyd V. Gaden, in chancery, and cited in Collins v. Martin. Trover will lie by tlie principal against the agent, when the latter converts the property to his own use, or disposes of it contrary to his instructions. M'Morris v. Simpson, 21 Wend. 610. (f) M'Combie v. Davies, 7 East, 5 ; Urquhart v. MTver, 4 Johns. 103. (a) Lausatt i-. Lippincott, 6 Serg. & E. 386. If goods be consigned to a com- mission merchant or factor for sale, at a limited price, and he makes advances on them, and they cannot be sold for that price, he may, on reasonable notice to his principal, at a fair market, sell them below that price for his indemnity. Frothing- hara V. Everton, 12 N. H. 239.1 (6) 1 Maule & S. 140. 1 Post, 642, n. 1. [900] LECT. XLI.] OP PERSONAL PROPERTY. * 628 liable. It was suggested, in the case last mentioned, that per- haps, if a consignment of goods to a factor to sell be accompanied with a bill drawn on the factor for the whole or part of the price of the consignment, an advance to take up the bill of the con- signor, and appropriated to that end, might be considered as an advance, under the authority given by the principal, so as to bind him to a pledge by the factor for that purpose. But in Graham v. Byster, (c) it was decided *by the K. B., *628 that though the principal drew upon his factor for the amount of the consignment, and the goods were sent to the factor to be dealt with according to his discretion, the factor could not pledge the goods, even in that case, to raise money to meet the bills.^ This was a very hard application of the general rule ; and the cases go so far as to hold, that though there should be a request of the consignor accompanying the consignment, that his agent, the consignee, will make remittances in anticipation of sales, that circumstance does not give an authority to pledge the goods to raise money for the remittance, (a) In the last case referred to, the judges of the K. B. expressed themselves decid- edly in favor of the policy and expediency of the general rule of law, that a factor cannot pledge. They considered it to be one of the greatest safeguards whicli the foreign merchant had in making consignments of goods to England ; and that, as a meas- ure of policy, the rule ought not to be altered. It operated to increase the foreign commerce of the kingdom, and was founded, it was said, upon a very plain reason, viz. : that he -who gave credit should be vigilant in ascertaining whether the party pledged had, or had not, authority so to deal with the goods, and that the knowledge might always be. obtained from the bill of lading and letters of advice, (i) (c) 2 Starkie, 21. If, however, the owner arras the factor with such indicia at property as to enable him to deal with it as his own, and mislead others, the factor, in that case, can bind the property by pledging it. Boyson v. Coles, 6 Maule & S. 14. (a) Queiroz v. Trueman, 3 B. & C. 342. (b) C. J. Best, in Williams v. Barton, 3 Bing. 139, expressed himself, on the other hand strongly in favor of the policy of allowing a pawnee of goods to hold against the real owner, who permitted the pawnor to deal with the property as if it was his own. He insisted that the old law on this subject was not adapted to the new state of things, and to the alterations in the mode of carrying on commerce. The rule that factor cannot pledge the goods consigned to him for sale, even for bona fide 1 Post, 642, n. 1. [901] * 629 QP ,i;besonal peqpehty. Lpabt v. * 629 (7.) When and how p&Fsanally bound. — * Every contract made with an agent in relation .to the business of the advances, in tlieregular course of commercial dealing, originated in the case of , Pater- son V. Tash, in Str. 1178, wliich was a nisi prius decision of C. J. Lee ; though it has been suggested that the report of that case was inaccurate. In the year 1823, the merits of that rule were discussed in the British Parliament, land the discussion was followed by the statutes of 6 Geo. IV. c. 94, and 7 & 8 Geo. IV. c. 29, for the better protection of the, property of merchants and. others in their dealings with factors arid agents, by which a factor was authorized to pledge, to a certain extent, the goods of his prin- cipal. A great deal may be properly said against the principle of the old rule, and, with the exception of England, it is contrary to the law and pplicy of ^11 the com- mercial nations of Europe. See the report of the committee of tlie English House of Commons, which led to the statute of 4 Geo. IV. On the European continent, possession co'nstitutes title to movable property, so far as to secure ionaj^e purchas- ers, and persons makipg advances of money or credit on the pledge of property by the lawful possessor. There may be something in the commercial policj of,the rule alluded to by the English judges ; but it would seem to be a conclusion of superior justice and wisdom, that a factor or commercial agent, clothed by his principal with the apparent symbols of ownership of property, should be deemed the true owner ip respect to third persons dealing with him fairly in the course of business, as pur- chasers or mortgagees, and under an ignorance of his real character. See 1 Bell's Comm. 483-489. By the statute of 6 & 6 Vict. c. '39, in amendment of the law relating to advances bonfi fide made to agents intrusted with goods, any agent intrusted with the possession pf goods, or of the documents of title to goods, is to be deemed owner of such goods and documents so far as to give validity to any contract or agreement by way of pledge, lien, or security iona _^rfe made by any person with such agent so intrusted,. as well -for any. original loan, advance, or payment made upon the security of such goods or documents, as also for any f (irther or continuing advance in respect thereof ; and such contract shall be binding upon and against the owner of such goods and others interested therein, notwithstanding the person claiming such pledge or lien may have had notice that the person with whom such contract is made is only an agent. The statute law of New York has, changed the former rule of the English courts on this subject. By the act of April 16, 1880, it was enacted (and an act of the St.ate of Rhode Island, passed since the session of January, 1831, and of Pennsylvania, in 1834, Purdon's Dig.402, are to the same effect), that the person in whose name goods were shipped should be deemed the owner, so far. as to entitle the consignee to a hen thereon for his advance and liabilities for the use of the consignor, and for moneys or securities received by the consignor to, his use. But the lien is not to exist, if the consignee had previous, notice, by the bill of lading or. otherwise, that the consignor was not the actual and bona fide owner, Eoerg factor intrusted with the possession of any bill of lading, custom-house permit, or warehouse keepers' receipt for.the delivery of the goods, or with the possession of goods for ,sale, or as security for advances, shall be deemed tlje owner, so far as to render valid any contract by.him for the sale or disposition thereof, in whole or in part, for moneys advanced, or any responsibility in writing assumed upon the ft^ith thereof. The true owner will be entitled to the goods on repayment of the advances, or restoration of the security given on ^he deposit of the goods, and on satisfying any lien that the agent may have thereon. The act does not go to authorize a common carrier, warehouse keeper, or other person to whom goods may be committed ioft transportation or storage, to sell or hypothecate ;[902] ■ LECT. XLI.] OF PERSONAL PROPERTY. 630 agency is a contract with the principal, entered into through the instrumentality of the agent, provided the agent acts in the name of his principal. The party so dealing with the agent is bound to his principal ; i «/' *and the principal, *630 the same. Acts of fraud committed by factors or agents, in breach of their duty in that character, are punishable as misdemeanors. It lias been held under this act that a contract of sale by a factor or agent,, intrusted with goods for sale, will protect the purchaser, though no money be advanced, or negotiable instrument or other obliga- tion be given at the time of the sale. Jennings v. Merrill, 20 Wend. 1. This act is founded cliiefly upon the provisions of the British statute of 6 Geo. IV. c. 94, passed in 1825, in pursuance of the recommendation contained in the report of a select committee from the British House of Commons, of January, 1823. So, by the Civil Code of Louisiana, art. 3214, every consignee or commission _agent, who has made advances on goods consigned to him, or placed in his hands to be sold for account of the consignor, lias a privilege for the amount of those advances, with interest and charges on the value of the goods, if they are at his disposal, in his stores, or in a public warehouse, or if, before their arrival, he can show by a bill of lading or letter of advice, that they have been despatched to him. The undisclosed principal is bound as stated, 631, although the contract was in writing ; and parol evidence is admissible to show that the agent in signing was acting for his principal, Higgins v. Sen- ior, 8 M. & W. 834, 844 ; Baldwin v. Bank of Newbury, 1 Wall. 234 ; and the prin- cipal remains liable, although after his name is disclosed his broker is named as buyer in the bought and sold notes, Calder v. Dobell, L. E. 6 C. P. 486. See 632, n. 1. 1 Contracts with Agent. — See 260, n. 1, (a), {d), adfinem. The party dealing with the agent is not bound to him unless the agent by distinct words makes the con- tract his o wn. Fisher v. Marsh, 6 Best & S. 411, 416 ; [Byington v. Simpson, 134 Mass. 169.] In the case of a broker, this is car- ried to the extent of holding that he can- not sue if the bought note is signed by him as broker, although it reads " I have sold." Fairlie u. Fenton, L. R. 5 Ex. 169; (compare Paice u. Walker, ib. 173;) Fawkes v. Lamb, 31 L. J. u. b. Q. B. 98. y^ There is a tendency to give effect to written contracts, and even to deeds, executed by agents, according to the intent, as it appears from the instruments, and even to allow oral evidence to show the intent where the instrument itself is ambiguous. Metcalf f. Williams, 104 U. S. 93 ; Nobleboro u. Clark, 68 Me. 87 ; Simpson v. Garland, 72 Me. 40 ; McClure V. Herring, 70 Mo. 18 ; Anderson v. Pearce, 36 Ark. 293; Wing v. Click, 56 Iowa, 473. But see Dayton v. Warne, 43 N. J. L. 659. The cases are in much con- fusion as to what facts indicate an inten- tion one way or the other. On principle, the true rule would seem to be that the court must determine from the contract itself, with the aid of such outside helps as are usually allowed in construing con- tracts, who are bound. Only those should be held on the written contract who have not only intended to enter, but have suc- ceeded in entering, into such written con- tract. Other parties may indeed be liable, but it should not be on the written con- tract. See, as to contracts under seal, Mahoney v. McLean, 26 Minn. 415; Bry- son V. Lucas, 84 N. C. 680; Mellen w. Moore, 68 Me. 390. But see Nobleboro v. Clark, supra ; School Town v. Kendall, 72 Ind. 91 ; infra, 631, ii. y^. In the case last cited it is said there is a distinction between agents of public bodies and those of private persons or corporations. [903] 630 OP PERSONAL PROPERTY. [part V. and not the agent, is bound to the party. It is a general rule, standing on strong foundations, and pervading every system of jurisprudence, that where an agent is duly constituted, and names his principal, and contracts in his name, and does not exceed his authority, the principal is responsible, and not the agent, (a) The agent becomes personal!}' liable only when the principal is not known, or where there is no responsible principal, or where the agent becomes liable by an undertaking in his own name, or when he exceeds his power. (J) ^ If he makes the con- (o) Emerigon, Traite des Ass. ii. 465 ; Lord Erskine, 12 Ves. 352 ; Davis v. M' Arthur, 4 Qreenl. 82, n. ; Owen v. Gooch, 2 Esp. 567 ; Ware, J., in the case of the Rebecca, Ware, 205 ; Roberts v. Austin, 5 Wharton, 313. (6) Thomas o. Bishop, 2 Str. 955 ; Leadbitter v. Farrow, 5 Maule & S. 345 ; Dusenbury v. Ellis, 3 Johns. Cas. 70; Parker, C. J., Stackpole v. Arnold, 11 Mass. 1 Notice to Agent. — With regard to the rule mentioned in the note (6), that notice to the agent is notice to the principal, it was thought in the earlier English cases, that it was confined to notice obtained by the agent in the course of the particular transaction, and this is said to be the law in Westfield Bank v. Cornen, 37 N. Y. 320 ; Farmers' and Citizens' Bank v. Payne, 25 Conn. 444 ; Farrel Foundry v. Dart, 26 id. 376, 383; United States Ins. Co. V. Shriver, 3 Md. Ch. 381 ; which were cases of directors of banks, and in N. Y. Central Ins. Co. u. National Protection Ins. Co., 20 Barb. 468 ; McCor- mick V. Wheeler, 36 111. 114, 121 ; Congar V. Chicago & N. W. R. Co., 24 Wis. 157, 160 ; Willis v. Vallette, 4 Mete. (Ky.) 186, 196 ; [Houseman v. Girard, &c. Assn., 81 Penn. St. 256.] But Lord Eldon suggested the doubt whether one transaction might not follow so close upon the other as to render it impossible to give a man credit for having forgotten it (Turn. & Russ- 280) ; and the modern rule seems to be established in courts of the highest authority in this country as well as in England, that the principal is bound by knowledge which the agent is clearly and satisfactorily proved in fact to have had present to his mind at the time of acting for his principal, no matter how the knowledge was acquired, provided that it was of a kind which it was the agent's right and duty to communicate, and not, for instance, a secret intrusted to him professionally by another client in the course of a different transaction, which he is not at liberty to disclose. The Distilled Spirits, 11 Wall. 356; Hart u. Farmers' & Mechanics' Bank, 33 Vt. 252 ; Dresser v. Norwood, 17 C. B. n. s. 466. See Pritchett v. Sessions, 10 Rich. (S. C.) 293, 298; Bierce v. Red Bluff Hotel Co., 31 Cal. 160. xi x^ The question is whether the agent had knowledge present to his mind, how- ever acquired, which it was his duty to his principal to communicate, and as to ■which he was under no superior obliga- tion to any other to withhold. Kettlewell V. Watson, 21 Ch. D. 685, 704 ; Bradley v. Riches, 9 Ch. D. 189; Fairfield Savings [904] Bank u. Chase, 72 Me. 226 ; s. c. 39 Am. R. 319, and note ; National Security Bank V. Cushman, 121 Mass. 490 ; Yerger v. Barz, 56 Iowa, 77 ; Texas Banking Co. v. Hutchins, 53 Tex. 61. See Ford v. French, 72 Mo. 250. See Ulso City of Logans- port I). Justice, 74 Ind. 378 ; 8. c. 89 Am. R. 79 and note. LECT. XLI.] OP PERSONAL PROPERTY. * 631 tract in behalf of his principal, and discloses his name at the time, he is not personally liable, even thopgh he should take a note for the goods sold, payable to himself, (c) But if a person would excuse himself from responsibility on the ground of agency, he must show that he disclosed his principal at the time of making the contract, * and that he acted on his behalf, * 631 so as to enable the party with whom he deals to have 29, and Hastings v. Lovering, 2 Pick. 221 ; Hampton v. Speckenagle, 9 Serg. & R. 212 ; Lazarus v. Sliearer, 2 Ala. 718 ; Woodes v. Dennett, 9 N. H. 55. When the agent becomes personally bound by his own assumption, his principal is not liable. Taber i;. Cannon, 4 Mete. 456. C. J. Shaw says, that the case of Stackpole v. Arnold, establishing this doctrine, is of the highest authority. Where an agent voluntarily disobeys the instructions of his principal, and converts to his own use moneys belong- ing to his principal, to which a definite and specific destination was given, and the article he was directed to buy subsequently acquires additional value, the agent has been held responsible, not merely for the money with interest, but for the article. Short I'. Skipwith, 1 Brockenb. 103. It is likewise a, general rule, that the omission of an agent to keep his principal regularly informed ' of the state of the interests intrusted to him, renders him responsible for the damages his principal may sustain by such neglect ; and if the principal be injuriously misled by the information given, 60 as to place reliance on an outstanding debt, the agent will be deemed to have made the debt his own. Harvey v. Turner, 4 Rawle, 223; Arrot v. Brown, 6 Whart. 1. It is also a general rule, that notice to an agent is notice to his principal. So, notice to one of the directors of a bank, while engaged in the business of the bank, is notice to the bank. Bank of U. S. v. Davis, 2 Hill (N. Y.), 451, 461. It is not consistent with the summary view taken in this lecture of the law of agency, to enter into a detail of the particular responsibilities of agents. We must be content to state generally the principle that the agent is liable to his principal for all losses and damages arising from violations of his duty as agent, by reason of misconduct, delinquency, stretch, or abuse of power, or negligences, provided the loss or damage be reasonably attributable to the same. The illustrations of the general principle are to be seen in the authorities stated or referred to in the treatises at large on agency, and especially in Livermore on Agency, u. 8 ; Paley on Agency, by Lloyd, passim, and particularly 7-20, 46, 55, 100, 130-149, 212-240, 294-304, 335-342, 386-390 ; in Story on Agency, e. 8, and in Sedgwick on the Measure of Damages, as between principal and agent. Treatise, c. 12. (c) Owen V. Gooch, 2 Esp. 567 ; Rathbone v. Budlong, 15 Johns. 1 ; Goodenow V. Tyler, 7 Mass. 36 ; Greely v. Bartlett, 1 Greenl. 172 ; Corlies v. Gumming, 6 Cowen, 181. The agent is not liable individually, if he draws a bill of exchange which is protested, provided he declares himself at the same time to be the agent of the drawers. Zacharie ». Nash, 13 La. 20. The agent is personally liable, though he discloses the name of his principal, if he signs a contract which does not show upon the face of it that he contracts as agent. Mill v. Hunt, 20 Wend. 431. But if he drew the bill in his own name, without stating his agency, he is personally liable, though the payee knew he was but an agent. Newhall v. Dunlap, 14 Me. 180. He must disclose his principal's name, though he sell as auctioneer, or he will be personally liable. Mills V. Hunt 20 Wend. 431. If he acts simply in his own name, he binds himself, and not his principal. This is the general rule, but controlled by circumstances. Bank of Rochester v. Monteath, 1 Denio, 402. r r^r^r ^ [905] 631 OP PERSONAL PEOPERTY. [part V. recourse to the principal, in case the agent had authority to bind him. (a) ^ y^ And if ,the agent even buys in his own name, but (a) Mauri v. HefEernan, 13 Johns. 58; Seaber v. Hawkes, ,6 Moore & Pa. 549; Ormsby v. Kendall, 2 Ark. 338. Mr. Justice Story, in his Treatise on Agency, 2d ed. §§ 268, 200, lays down the rule that.agents or factors for merchants residing Va foreign. 1 Liability for Foriign Principals, ^c. — The doctrine mentioned in the note (a)'is qualified in England so far that it is said to be a question of intention to be gathered from the contract and the surrounding circumstances, and capable of being ex- plained by the custom of trade where any such can be sho\Yn. The fact of the prin- cipal being a foreigner is entitled to some weight ; but there is no rule of law that the agent is liable personally in all cases where the principal is-a foreigner residing abroad. Where the contract is in writing and purports to bind the principal orily, and no custom is shown to exist,, the agent ,wiU not be liable, Green .v. Kopkej 18 C. B. 649 ; Mahony v. Kekule', 14 C. B. 390 ; Paice v. Walker, L. R. 5 Ex. 173, 177.; Bray v. KetteU, 1 Allen, 80; see Rogers V. March, 33 Me. 106 ; and a for- ,eign principal may sue in his own name for goods sold, although the agency was not disclosed at the time of the sale, Barry v. Page, 10 Gray, 398. y^ Undisclosed Principal. — The general rule that an undisclosed principal may sue or be sued upon disclosure is sus- tained in Curtis i^. Williamson, 10 L. R. Q. B. 57; Armstrong v. Stokes, 7 L. R. Q. B. 598 ; Browning v. Proyincial ,Ins. Co., 5 L. R. P. C. 263 ; Cobb v. Knapp, 71 N. Y. 348; Beymery. Bonsall, 79 Penn. St. 298; Baltimore, &c. Co. v. Fletcher (Md.,1884), 17 Rep. 557. The agent having had actual though not apparent authority, and having in- tended to exercise it, the principal is properly held bound, and being bound is held also to have the right to sue, subject to all equities between the agent and the one dealing with him. If the agent did not disclose that he had a principal, it is clear that he also may sue or be sued, since the one deal- ing with him must have intended to con- tract with him, and the agent will not be permitted to deny that such was his intention also. But if only the name of the principal was left undisclosed the question is one of intention, viz. between what parties can the consensus necessary to the contract be shown to exist, or, if a contract in writing or. under seal be sued on, what parties can be said in legal [906] contemplation to have executed such contract. Southwell v. Bowditoh, 1 C. P. D. 374;,Gadd v. Houghton, 1 Ex. D. 357; Hough v. Manzanos, 4 Ex D. 104; Ogden V. Hall, 40 L. T. 751 ; Weidner v. Hoggett, 1 C. P. D. 533 ; Merrill w. Ken- yon, 48 Conn.314. Of course usage may furnish strong evidence as to sudh intent. Fleet V. Murton, 7 L. R. Q. B. 126; Hutchinson v. Tathara, 8 L. R. C. P. 482; Imperial Bank v. London, &c. Dock Co., 5 Ch. D. 195; Southwell v. Bowditch. supra. The right of a third party dealing with the agent to sue the principal will be barred where the principal has been misled by any act of such third party into supposing he has settled with the agent, and in such belief has himself paid the agent. Irvine v. Watson, 6 Q. B. f), 414; Davison v. Donaldson, 9 Q. B. D. 6'23, commenting as to this point upon Armstrong w. Stokes, s«pra. A commis- sion merchant has no implied authority to bind -his foreign principal, whether disclosed or not. Armstrong v. Stokes, 7 L. R. Q. B. 598 ; Button v. Bulloch, 9 L. R. Q. B. 572 ; Elbinger u. Claye, 8 L. R. Q. B. 313. .See also Maspono v. Mildred, 9 Q. B. D. 530. LECT. XLI.] OF PERSONAL PEOPEETT. * 631 lor the benefit of his principal, and without disclosing his name, tHe principal is also bound as well as the agent, provided the goods come to his use, or the agent acted in the business in- trusted to him, and according to his power. (6) The attorney countries are personally liable on contracts made by them for their principals, and this without any distinction, whether they describe themselves as agents or not. The legal presumption is, that the credit is given to the agent exclusively. The Supreme Court of New York, in Kirkpatrick v. Stainer, adhered, however, to the old rule, and held that the agent was not personally responsible when he appeared in the transac- tion as an agent only, and dealt with the plaintiff in that known character. The court held that there was no distinction known to our law on this point, between an agent acting for a foreign and for a domestic house. This decision was affirmed in the Court of Errors, in December, 1839. 22 Wend. 244. Mr. Senator Verplanck gave the opinion of the Court of Errors, and he examined the question witli learning, and ability. He held that there was no general presunjption known to our law and com- mercial usages ; that the credit in such cases was given exclusively to the agent, and that the English cases, on which the presumption as a settled rule of law was deduced, in the treatise referred to, were of recent origin, and founded on special or local usage in England, and one not adopted here. He cited Eyre, C. J., in De Gaillon I'. L'Aigle, 1 Bos. & P. 368 ; Bayley, J., in Paterson v. Gandasequi, 15 East, 70 ; Lord Tenterden, in Thompson v. Davenport, 9 Barn. & Cress. 78 ; Lloyd's Notes to Paley on Agency. He questioned the policy of the rule that credit on sales or con- signments was not presumed to be given to well-established foreign houseg.but to temporary agents, in exoneration of their principals ; and that until the, course of business had established such a rule here, as well known in mercantile usage and practice, it was wisest to adhere to the general law of agency, holding the known principal responsible when the agent discloses his name, and acts avowedly and authorizedly on his behalf, and leaving it to the discretion of the American trader to obtain the security of the factor or ageni, when he judges it best. In Taintor w.Prendergast, 3 Hill, 72, it was admitted that there may be a clear intent shown to give an exclusive credit to the agent , and that if the principal reside in a foreign country, that intent may be inferred from the custom of trade. The Supreme Court of Louisiana, in the Newcastle M. C. o. Red Eiver R. R. Co., 1 Rob. (La.) 145, fol- lowed the rule laid down by Mr. Justice Story ; and itwas also followed in McKenzie V. Nevius, 22 Me. 138 In tlie opinion of Mr. Justice Bliss, in tlie case of Hardy V. Fairbanks, in the Supreme Court of Nova Scotia, at Halifax, in April, 1847, this question jiros^ and was discussed; and the conclusion of the learned judge seemed to he, that the home principal, when discovered, will be liable in all cases, unless lie can discharge himself ; but that a clear case of liability must be established against the foreigner, for the presumption will be in his favor that he is not liable, and the onus of proof will rest with the seller. The agent may he deemed always responsible for the protection of the seller, and the liability of the foreign principal becomes a ques- tion of evidence and presumption ; and as to the remedy of the foreign principal and of the vendor against each other, that must be a question of evidence, and the case which they can generally establish. (6) Nelson v. Powell, 3 Doug. 410 • Upton v. Gray, 2 Greenl. 373; Thompson v. Davenport, 9 B. & C. 78; Cothay v. Fennell, 10 id. 671; Beebee v. Robert, 12 Wend. 413 By acting in his own name, the agent only adds his personal obligation to that of Hip nerson who employs him. This was a principle in the Roman law, »nd it ^ [ 907 ] •632 OP PERSONAL PROPERTY. [PART V. who executes a power, as by giving a deed, must do it in the name of hi^ principal ; for if he executes it in his own name, though he describes himself to be agent or attorney of his principal, the deed is held to be void ; and the attorney is not bound, even though he had no authority to execute the deed, when it appears on the face of it to be the deed of the principal, (e) But if the agent binds himself personally, and engages expressly in his own name, he will be held responsible, though he should, in the contract or covenant, give himself the description or character of agent, (^d) And though the attorney, who acts without authority, but in the name of the principal, be not personally bound bj'^ the instru- ment he executes, if it contain no covenant or promise on * 632 his part, yet there is a remedy * against him by a special action upon the case, for assuming to act when he had no power, (a) If, however, the authority of the agent be coupled with an interest in the property itself, he may contract and sell in his own name. This is illustrated in various instances, as in the case of factors, masters of ships, and mortgagees. (J) The ease of a master of a ship is an exception to the general rule, and though he contracts within the ordinary scope of his powers, he is, in general, personally responsible, as well as the owner, applies equally to our own. Dig. 14. 3, 17, § 3; Pothier, Traits des Oblig. n. 82; Hopkins v. Lacouture, 4 La. 64 ; Hyde v. Wolf, ib. 234. In Andrews ;;, Estes, 2 f airf. 267, it was held that the rule in Combes's case, that an agent binds liimself, and not his principal, unless he uses the name of his principal, applies only to sealed instru- ments. In other contracts, it is sufficient if it appear in the contract that he acted as agent, and meant to bind his principal. Evans o. Wells, 22 Wend. 324, s. p. (c) Combes's Case, 9 Co. 76 ; Frontin v. Small, 2 Ld. Raym. 1418 ; Wilks v. Back, 2 East, 142 ; GwiUim's Bacon's Abr. tit. Leases, 1, sec. 10 ; Bogart v. De Bussy, 6 Johns. 94 ; Fowler «. Shearer, 7 Mass. 14, 19 ; Stinchfield v. Liule, 1 Greenl. 231 ; Hopkins v. Mehaffy, 11 Serg. & R. 126 ; Smith o. Perry, 1 Harr. & J. 706 ; Harper o. Hampton, ib. 622 ; Townsend v. Corning, 23 Wend. 435. In the American Jurist, iii. 71-85, there is a very critical examination of all the cases, and" especially of Combes's case, the great leading case for the doctrine in the text, by Mr. Hoffman, of Baltimore, the learned author of the Legal Outlines. But in the State of Maine, by act of 1823, a deed by an agent in his own name is valid, provided he had authority, and it appears on the face of the deed that he meant to execute the authority. (d) Appleton K. Binks, 5 East, 148; Forsterw Fuller, 6 Mass. 58; Duvall v. Craig, 2Wheaton, 66; Tippets a. Walker, 4 Mass. 595; White v. Skinner, 13 Johns. 307; Stone v. Wood, 7 Cowen, 453; Fash v. Ross, 2 Hill (S. C), 294. (a) Long V. Colburn, 11 Mass. 97 ; Harper v. Little, 2 Greenl. 14 ; Delius v. Caw- thorn, 2 Dev. (N.C.) 90; Emerigon, Traite des Contrats k la Grosse, ii. 458, 461, 468, lays down the rule, and applies it to the captain of a ship, who, he says, is personally answerable, if he draws a bill in his character of agent, without authority. (i) Paley on Agency, by Lloyd, 207, 208, 288, 289 ; Story on Agency, 2d ed. § 164. [908] f^ECT. XU.J OP PERSONAL PROPERTY. ^632 upon all contracts made by him for the employment, repairs, and supplies of the ship. This is the rule of the maritime law, and it was taken from the Roman law, and is founded on commercial policy, (c) But it is of course competent for the parties to agree to confine the exclusive credit either to the owner or to the master, as the case may be. (c^) i When goods have been sold by the factor, the owner is entitled to call upon the buj'er for payment before the money is paid over to the factor ; and a payment to the factor, after notice from the owner not to pay, would be a payment by the buyer in his own wrong, and it would not prejudice the rights of the principal, (e) (c) Rich V. Coe, Cowper, 636, 639 ; Farmer v. Davies, 1 T. R. 109 ; Abbott on Shipping, part 2, c. 2 and 3; Emerigon, 2d ed. §§ 294, 296. See infra, iii. 161. (d) Story on Agency, 2d ed. § 296. 1 Liability of Agent for Unauthorized Act. — When an agent makes a written contract which he has no authority to make, but wliicli purports to bind the principal only, it is clear, by the weight of authority, that he cannot be sued on that contract. Lewis «. Nicholson, 18 Q. B. 503; Jeftst>. York,4Cush. 371; 10 Cush. 392 ; Draper v. Mass Steam Heating Co., 5 Allen, 338; Ogden v. Raymond, 22 Conn. 379 ; Taylor v. Shelton, 30 Conn. 122 ; Duncan u. Niles, 32 111. 532 ; Shef- field V. Ladue, 16 Minn. 388. The early cases in New York to the contrary are qualified in Walker v. Bank of New York, 5 Seld. (9 N. Y.) 582, and doubted in White V. Madison, 26 N. Y. 117. But the contrary doctrine is maintained in Weare o. Gore, 44 N. H. 196, where the point decided, however, may go not much fur- ther than Kelner v. Baxter, L. B. 2 C. P. 174; Pratt v. Beaupre, 13 Minn. 187. The current of authority is in favor of the proposition that the agent impliedly warrants his authority, and may be sued ex contractu on his warranty. CoUen v. Wright, 8 El. & Bl. 647; 7 id. 301; Cherry v. Colonial Bank of Australasia, L. R. 3 P. C. 24 ; Pow v. Davis, 1 Best 6 S. 220 ; Spedding v. Nevell, L. R. 4 C. P. 212 ; Godwin v. Francis, L. R, 5 C. P. tit. 2, 448 ; Dig. 14. 1 ; Story on Agency, (e) Lisset v. Reave, 2 Atk. 394. 295 ; Richardson v. Williamson, L. R. 6 Q. B, 276 ; White v. Madison, 26 N. Y. 117, 124 ; [In re National Coffee Palace Co., 24 Ch. D. 367; May u. Western Union Tel. Co., 112 Mass. 90.] It has been objected to this view that it would make the agent liable for innocent misrepresentations ; (see dissenting judgment of Cockburn, C. J., in CoUen v. Wright, supra, in Exch. Ch. ;) and it has been laid down that the only action would be a special action on the case. Jefts