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Cornell University Library 
KF 560.G77 

V.I C.2 

Select cases and other authorities on th 

3 1924 018 891 584 

Cornell University 

The original of this bool< is in 
the Cornell University Library. 

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Copyright, 1888, 
By John Chipman Gkat. 

University Press : 
John WiI/Son and Son, Cambridge. 


This Collection of Cases is prepared for the convenience of 
students in the Law School of Harvard University. 

The head-notes are always, and the arguments generally, 

As one of the main objects in the study of cases is to acquire 
skill and confidence in extracting the ratio decidendi, the omission 
of head-notes from a collection like this is an essential part of 
the scheme. To thrust before the eyes of a student of law the 
answer to the problem contained in a case is like telling a stu- 
dent in arithmetic the answer to his sum before he does it, with 
the additional disadvantage that the answer in the head-note is 
often wrong. 

On the other hand, the omission of the arguments is an evil, 
but a necessary one. To liave retained them would either have 
compelled the exclusion of many valuable cases, or else have 
swollen the size and expense of volumes already larger and more 
costly than I could wish. 

With the exception of the head-notes and arguments, and of a 
few passages the omission of which is duly noted, the cases are 
reprinted literally from the reports ; but I have striven after some 
consistency in the use of capitals and italics, and where a citation 
was obviously wrong, I have corrected it. 

The book is intended for study, not for practice. That one 
who has carefully read these cases will find the volumes of con- 
siderable aid in after professional life, I have no doubt ; but by 
one who has not thus become acquainted with their contents, the 
want of head-notes will probably be felt an invincible obstacle to 
their use. 


Further, the reading of these cases, it should be remembered, is 
intended to be accompanied by oral instruction, and therefore 
they are without the comments which would, on so difficult a 
subject, be desirable, if the cases were meant for solitary study. 

As any one will find who attempts to compile a collection of 
cases, it is hard to make it small enough. I have tried to limit 
myself to the leading and illustrative authorities, and in the few 
notes no attempt has been made at a full collection of the 
decisions, — indeed, no case is ever referred to without a distinct 
reason for calling attention to it. 

A special difficulty in dealing with the law of property, and 
particularly of real property, is to determine how much to dwell 
on parts of the law which have now become practically obsolete. 
No two persons would probably decide this question in exactly 
the same way. I have endeavored to bear in mind, on the one 
hand, that a real knowledge of the law as it is, requires a knowl- 
edge of the law as it has been ; and, on the other, that I am 
working for men who are preparing themselves to be lawyers, 
and not merely for students of the history of institutions. 

For the parts of the law of which he treats and for which it 
was impossible or undesirable to give cases, I have had recourse 
to the terse and exact sentences of Littleton. 

I desire especially to acknowledge the aid I have received from 
Mr. Leake's Digest of the Law of Land. This excellent book 
(unfortunately not finished) has met with less appreciation than 
it deserves. 

J. C. G. 

August, 1888. 





BOOK 11. 

PROPERTY . . ... 



Introductory. Suits for the Recovery of Personal Property 11 

§ 1. Detinue and Replevin ... 11 

2. Bill in Equity 18 


Acquisition of Rights not under Former Owner . . . 

. 22 


Chattels having no Former Ownei- . . 

. 22 


Wreck . ... . . 

. 29 


Waifs, Estrays, and Deodands . . ... 



Judgments . ..... . . 



Sale in Market-overt ... ... 

. 50 


Statute of Limitations . . 

. 50 


Accession . . . . 

. 65 


Confusion . . . 

. 105 

A. Lawful or Accidental . . .... 


B. Tortious . . 

. 132 



Transfer of Rights in Personal Property 161 

§ 1. Satisfaction of Judgment . 161 

2. Gifts of Chattels , , 165 

3. Annuities . . . . 171 

4. Transfer of Equitable Rights ... . 173 

A. Public Officers . . 173 

B. Champerty . . 188 

C. Life Insurance Policies .. 210 


Possession . .... . . . . . 235 

§ 1 . Taking on Judicial Process . . 235 

2. Bailment 241 

A. Nature and Acquisition of Lien . . . . 241 

B. Lien given by Wrong-doer, when good against True 

Owner . . . 262 

C. Loss of Lien .... . . 281 

D. Fledge ... ■ . . .306 

E. Actions of Bailor against Bailee . • . . 334 

F. Actions of Bailor against Third Persons .... 339 

G. Actions of Bailee against Third Persons . . 347 
3. Finding . . . ... 360 

A. Rights of Finder against Owner . . . 360 

B. Rights of Finder against Third Persons . ... 368 




. 385 

§ 1. Tenure in General 

.... 385 

2. Manors 

. 387 

3. Military Tenures and their Incidents 


4. Socage Tenure . . , 

. . 398 

5. Frankalmoign . . , , 

. 403 

6. Abolition of Military Tenures 

. . 404 

Note on Tenancy in Capite ..... 


Note on Tenure in the United States . . . 

... 407 




Estates 409 

§ 1. Fee-simple . . 409 

2. Fee-tail .... 411 

Note on Warranty and on Fines and Recoveries .... 416 

Note on Determinable and Base Fees . . 425 

3. Estates for Life ... . 426 

4. Estates less than Freehold . 428 

5. Reversions and Remainders . 428 

6. Joint Ownership . . . 429 


Seisin and Conveyance 433 

§ 1 Seisin . . . . 433 

2. Descent and Purchase ... 436 


... 440 

... 450 

. . 451 

.... 452 


3. Livery of Seisin .... 

4. Grant and Attornment 

5. Release and Surrender 

6. Devise 

7. Disseisin and other Ouster 

8. Remedies . . . 


Copyholds 461 


Uses and Trusts . . 462 

§ 1. Uses before St. 27 Hen. VIII. c, 10 .462 

2. Statute of Uses . . . . 468 

3. Uses raised on Transmutation of Possession . . . . 474 

4. Uses raised without Transmutation of Possession . . . 484 

5. Limitation of Uses ... . . . .... . 498 

6. Operation of the Statute of Uses .... . .... 506 

7. Uses not Executed by the Statute . . ... . . 510 

Note on the Statute of Uses in Wills 533 

8. Trusts 535 






Gold and Silver Mines 


.... 539 

Wild Animals . 


.... 541 

Border Trees . . . 


.... 543 



.... 556 

Title-deeds . ... 



Note on Heirlooms . 



Emblements 620 

Manure 641 


Fixtures 657 




Abbot of Shirbourne's Case 


Broughton v. Langley 


Althara v. Anglesey 


Bryan v. Weems 


Anon (Fitz. Ab. Formedon, 65) 


Bryant v. Wardell 


(Fitz. Ab. Formedon, 66) 


Buckland v. Butterfield 


(Fitz. Ab. "Wast, pi. 30) 


Burton v. Hughes 


(48 Edw. III. 20, pi. 8) 


Buster v. Newkirk 


(11 Hen. IV. 17, pi. 39) 


(5 Hen. VII. 15, pi. 6) 


Callard v. Callard 


(21 Hen. VII. 26 pi. 4) 


Campbell v. Stakes 


(Bro. N. C. ty March 89) 


Carpenter v. Walker 


(14 Hen. VIII. 4 pi. 5) 


Castlemain v. Craven 


(Moore, 19, pi. 67) 


Cave V. Care 


(Moore, 248, pi. 392) 


Chapin v. Freeland 


(Cro. El. 46) 


Chapman v. Allen 


(Pop. 88, pi. 2) 


Chase v. Washburn 


(2 Roll. R. 255) 


V. Westmore 


Arbuthnot v. Norton 


Chesley v. St. Clair 

359 n. 

Armory v. Delamirie 


Clark V. Allen 


Armstrong v. Wolsey 


V. Maloney 


Ashley v. Ashley 


Clary v. Owen 


Astbury, Ex parte 


Clavering v. Clavering 


Astry V. Ballard 


Clere's Case 


Aubin V. Daly 


Climie v. Wood 


Constable's Case 


Bakeer v. Bates 


Cooper V. Franklin 


V. Keete 


V. Woolfitt 


Barwick v. Reade 


Bateman v. Hotchkin 

575 n. 

Davekpoet v. Shants 


Bevan v. Waters 


Dent V. Dent 


Bewick v. Whitfield 


Doe d. Lloyd v. Passingham 


Binstead v. Buck 


Doe d. Were v. Cole 


Bligh V. Brent 


Donald v. Suckling 


Bloss V. Holman 


Durfee v. Jones 


Boardman v. Sill 


Bostwick V. Leach 


Egerton's Case 


Bowles's Case 


Elwes V. Maw 


Brackett v. Goddard 


Brennan v. Whitaker 


Fat v. Muzzey 


Brent v. Chapman 


Ferguson v. 


Bridges v. Hawkesworth 


Fisher v. Deering 


Brinsmead v. Harrison 


V. Dixon 


British Empire Shipping Co o. Somes 257 

Fitch V. Newberry 


Broadwood v. Granara 


Flarty v. Odium 




Ford V. Cobb 
Fox's Case 
Franklin Ins. Co. 
Fuller V. Paige 


Gains v. Green Pond Co. 

Gardner v. Campbell 

Gent V. Harrison 

Gerrard r. Boden 

Gibbs V. Estey 

Gibson's Case 

Goodrich v. Jones 

Gordon v. Harper 

Graves v. Weld 

Grenfell v. Dean and Canons of Wi 

Griffin v. Bixby 
Grifiath V. Fowler 
Grimes v. Boweren 

Hali.en v. Runder 
Halliday v. Holgate 
Hamaker v. Blanchard 
Hamilton v. Davis 
Hampton v. Brown 
Hanna v. Phelps 
Harrow School v. Alderton 
Heelis v. Blain 
Henry's Case 
Heme v. Bembow 
Hesseltine v. Stockwell 
Hill V. Boyle 
Hoffman v. Armstrong 
Holder v. Coates 
Holland v. Hodgson 
Honywood v. Honywood 
Hughes V. Cornelius 

Irons v. Smallpiece 
Isle Royale Co. v. Hertin 

Jackson v. Cummins 
Jacobs V. Latour 
Jenkins v. Steanka 
Johnson v. Stear 
Jones V. Pearle 
Judson V. Etheridge 

Kerford v. Mondel 
King, The, v. Ottey 
Krugeru. Wilcox 

Lassell v. Reed 
Latham v. Atwood 
Lawton v. Lawton 

V. Salmon 

Leathes v. Leathes 
















Lee V, Gaskell 


Lewis V. McNatt 


Lloyd, Doe d. v. Passingham 


V. Spillett 


London Loam Co. v. Drake 


Lotan V. Cross 


Ludden v. Leavitt 


Lnshington v. Boldero 


Lutwich V. Milton 


Lyman v. Hale 


M'AvoT V. Medina 


M'Combie r. Davies 


McKee v. Judd 


McLaughlin u. Nash 


Mackintosh v. Trotter 


Market-overt, Case of 


Masters v. PoUie 


Melville v. Brown 


Mennie v. Blake 


Meredith v. Joans 


Mexal V. Dearborn 


Middlebrook v. Corwin 


Mildmay's Case 


Mines, Case of 


Moore v. Bowman 


V. Townshend 


Morgan v. Powell 


Mulgrave r. Ogden 


MuUiner v. Florence 


Mutual Ins. Co. v. Allen 


Natlor v. Mangles 


Needham v. Allison 


Nelson !•. Brown 


Nevil V. Saunders 


Nicholson v. Chapman 


Noble V. Bosworth 


V. Smith 


V. Sylvester 


Obrten' V Obrien 


Orme's Ciise 


Patten v. Wilson 


Peacock r. Eastland 


V. Purvis 


Peirce v. Goddard 


People V. Tioga Common Pleas 


Perrin v. Lepper 


Perrot v. Perrot 


Peters v. Hey ward 


Poole's Case 


Poole V. Symonds 


Prosser v. Edmonds 


Pulcifer v. Page 


Pynchon v. Stearns 




Railway Co. v. Hutchins 
Regina v. Eowe 
Rice V. Stone 
Ricliardson v. Copeland 
Robinson v. Walter 
Roe V. Traniner 
Rogers v. Gilinger 
Rolt !'. Somerville 
Roose, In re 
Rooth V. Wilson 
Rushfortli V. Hadfleld 
Ryder v. HiUliaway 

Sames's Case 
Samraes's Case 
Sawyer v. Twiss 
Scarfe v. Morgan 
Sexton V. Graham 
Sharington v. Strotton 
Shirbourne's, Abbot of, Case 
Shorland v. Govett 
Shortridge v. Lamplugh 
Shrewsbury's, Countess of, Case 
Silsbury v. McCoon 
Skinner v. Upshaw 
Smith V. Clark 

V. Morrill 

V. Price 

V. Sheriff of Middlesex 

V. Smith 

Smyth V. Carter 
Somerset v. Cookson 
Spence v. Union Ins. Co. 
Spencer's Case 
Squier v. Mayer 
Staples V. Emery 
State V. Hastings 
Steinman v. Wilkins 
Stevens v. Warren 
Stillman v. Flenniken 
Stirt V. Drungold 
Stoughton V. Rappalo 
Strong V. Doyle 




Sutton u. Moody 



Swift V. Gifford 




Taylok v. Vale 



Terhune v. Elberson 



Thorougligood's Case 



Threfall v. Berwick 



Thresher v. Water Works Co. 



Turner v. Wright 



Tyrrel's Case 




Vane v. Barnard 


Van Ness v. Pacard 



Vaughen v. Haldeman 




Walmsley v. Milne 



Ward V. Ayre 



V. Macauley 



Warde v. Tuddingham 



Warnock v. Davis 



Waterman v. Soper 



Watriss v. First Bank of Cambridge 



Weeton v. Woodcock 



Wells i: Foster 



Wentworth v. Day 



Were, Doe d. v. Cole 



Wetherbee v. Green 



White V. Arndt 



V. Gainer 



Whitehead v. Bennett 



Whitfield V. Bewit 



Wilbraham v. Snow 



Wilby !'. Bower 



Willard v. Rice 



Williamson v. N. J. R. R. Co. 



Wilson V. Guy ton 



Winn V. Ingilby 



Wood V. Morewood 



V. Rowcliffe 




Yearworth v. Pierce 



Young V. Hichens 





Magna Carta, cc. 2, 3, 6, 15, 39 390 

20 Hen. III. (Merton) cc. 6, 7 390 

52 Hen. HI. (Marlebridge) c. 16 391 

c. 23, § 2 556 

c. 29 458 

3 Edw. I. (Westm. I.) c. 22 391 

c. 36 392 

4 Edw. I. (Z)e Bigamis) c. 6 417 n 

6 Edw. I. (Gloucester) c. 3 417 « 

c. 5 .- 556 

13 Edw. I. c. 1, (Z)e Bonis) 413 

18 Edw. 1. cc. 1, 3 {Quia Emptores) 386 

1 Edw. III. St. 2, c. 12 392 

17 Edw. II. c. 11 (Wreck) 31 

25 Edw. ni. (Purveyors) 393 

27 Edw. III. c. 13 (Wreck) 31 

5 Rich. II. St. 1, c. 7 (Forcible Entry) 456 

1 Rich. m.,c. 1 (Uses) 462 

4 Hen. VII. c. 24 (Fines) 419 n 

27 Hen. VIII. c. 10 (Uses) 468 

c. 16 (Enrolments) 484 

32 Hen. VIH. c. 36 (Fines) 420 « 

12 Car. II. c. 24 (Abolition of Military Tenures) 404 

29 Car. IT. c. 3, §§ 7, 8 (Frauds) 475 

4 Anne, c. 16, § 9 443 

14 Geo. III. c. 48 (Life Insurance) 211 n 






Bractok, Lib. 2, c. 9, fol. 27 a. If a gift be made for a term of 
3-ears, although a very long one, which exceeds the lives of men, yet 
the donor will not have a freehold from it, since a term of years is 
certain and determined, and the term of life uncertain, and because 
although nothing is more certain than death, j'et nothing is more 
uncertain than the hour of death. 

Bkacton, Lib. 4, c. 36, fol. 220 a. Now we must speak of the case 
when any one is ejected from the usufruct [cfe usufructu vel usu et 
habitatione] of any tenement which he holds for a term of j'ears before 
the end of the term. For in one and the same tenement one may have 
the freeJiold , and another the usufruct [usumfructum et usum et habita- 
tionem]. Some are accustomed when they have been ejected during 
their term to seek their remed}- by a writ of covenant. But because 
such writ had no place between an^- persons except only between the 
lessor and lessee, nor can the obligation of the covenant bind other 
persons, and because even between the lessor and lessee the affair could 
be determined hardly at all or only with difficulty, by the advice of the 
court provision was made for the lessee against ejectors of every kind 
by a writ like this. "The king to the sheriff greeting: Command A 
that he duly and without delay restore to B so much land with the 
appurtenances in such a vill, which the said A, who demised," &c. Or 
thus : " If such-a-one [A] gives j'ou security, &c., [summon B] to show 
cause whj' he deforces such-a-one [A] from so much land with the 
appurtenances in such a vill which so-and-so [C] demised to the said 
such-a-one [A] for a term which has not yet expired, within which 
term the said so-and-so [C] has sold it to such-a-one [B] , by reason 
of which sale the said such-a-one [B] afterwards ejected such-a-one 
[A] from the said land, as he says, and have there, &c. "Witness," &c. 


And if such a writ is available against a stranger on account of a sale, 
much more is it available against the lord himself who has demised 
and ejected without cause, than against a stranger who had some kind 
of reason, if because of the sale made to him the seller [qu. purchaser] 
has ejected the lessee, or otherwise if some one other than he who de- 
mised, has ejected ; and then in this fashion : " Which C. of N. demised 
to him for a term which has not yet passed, within which term the said 
A or the said C has wrongfully ejected the said B from the said land (or 
his farm \^firma\) as he says, and unless he does so, and the said B 
gives you security, then summon," &c. . . . No more can any one eject 
a lessee from his farm, than any tenant from his freehold. And if the 
lessor is the ejector, he shall restore the seisin with damages, because 
such a restitution \_qu. ejectment] does not differ much from a disseisin. 
But if some one other than the lessor is the ejector, if he has done it 
with the authority and will of the lessor, both shall be held by the judg- 
ment, one on account of the act, and the other on account of having 
given the authority. But if it was without the will [of the lessor], then 
the ejector is held both to the lord of the property and to the lessee, 
to the lessee by the writ aforesaid, and to the lord of the property by 
an assise of novel disseisin, that the one may have again his term with 
damages, and the other his freehold without damages.' 

Lit. § 740. But where such lease or grant is made to a man and to 
his heires for terme of yeares, in this case the heire of the lessee or the 
grantee shall not after the death of the lessee or the grantee have that 
which is so let or granted, because it is a chattel reall, and chattels realls 
hj the common law shall come to the executors of the grantee, or of 
the lessee, and not to the heire. 

Co. Lit. 388 a. Here is a generall rule, that chattels reals as well 
as chattels personals shall goe to the executors or administrators of the 
lessee, and not to his heires. For as estates of inheritance or freehold 
descendible shall go to the heire, so chattels, as wel reall as personall, 
shall goe to the executors or administrators. 

2 Bl. Com. 21. Incorporeal hereditaments are principally of ten sorts ; 
advowsons, tithes, commons, ways, dfflces, dignities, franchises, corodies 
or pensions, annuities, and rents. 


King's Bench. 1820. 

[Reported i B. & Aid. 59.] 

Bt letters patent under the great seal of England, dated July 19, 

24 Car. II., as well in consideration of the surrender by the Earl of 

1 See Digby, Hist. Real Prop. o. 3, sect. 2, § 17 (in 1st ed. § 16). 


Kinnoul, into the hands of the crown, of the Caribbee Islands and cer- 
tain other islands, and possession therein referred to, and all his estate, 
claim, and demand in or to the same, as also for divers other good 
causes and considerations, his Majesty did, for himself, his heirs, and 
successors, give and grant unto the said earl one annuity' of £600 of 
lawful monej- of England, to hold, enjoy, and receive the same, to him 
the said earl, his executors, administrators, and assigns, for the term 
of five years, from the feast of Saint Michael the Archangel, then last 
past. And the king also granted unto the Earl of Kinnoul and his 
heirs one other annuity of £1,000 of lawful money of England, to him 
the said earl, his heirs, and assigns ; to the only proper use and behoof 
of the said earl, his heirs and assigns forever, from and immediately 
after the end and expiration of the said term of five j-ears, without an}^ 
account or other matter or thing to be rendered or given for the same ; 
which said respective annuities the king appointed should from time to 
time be duly paid to the earl, his heirs, executors, administrators, and 
assigns, at the four most usual feasts and terms in the j'ear, out of his 
Majesty's revenue of 4|^per cent, atBarbadoes and the Leeward Islands 
as the same should come into the receipt of his Majesty's exchequer, or 
by levying tallies of assessments upon the farmers or collectors of the 
said revenue for the time being, notwithstanding any debt or debts 
charged or chargeable upon the said revenue, or any part thereof, the 
first payment to commence from the feast da^' of Saint Michael the 
Archangel ; and if it should happen that the said revenue of 4^ per cent 
should at any time or times after the expiration of five years fall short 
of the said annuities, then the king granted that the same should be 
full}' made up to the said earl, his executors, administrators, and as- 
signs, out of anj' other treasure of his majesty-, his heirs, and successors, 
at any time being or remaining in the receipt of his exchequer ; and his 
said Majesty did thereby authorize the commissioners of his treasury, 
&c., to give warrant for the levying tallies of assessment from time to 
time upon the farmers or collectors of the said revenue of 4^ per cent, 
at Barbadoes and Leeward Islands aforesaid, for the time being, for 
the due payment of the said annuitj' of £1,000 to the said earl, his heirs, 
executors, administrators, and assigns respectivel}' as aforesaid ; and 
did declare, that the receipt of the said earl, his heirs, executors, admin- 
istrators, and assigns respectively, unto the said farmers and collectors, 
should be sufHcient discharge. By virtue of various subsequent convey- 
ances and assurances, and ultimately bj' virtue of a certain indenture 
bearing date the 26th day of May, 1773, the annuity of £1,000 was granted, 
bargained, and sold unto William Stafford, to hold the same unto and to 
the use of him, his heirs, executors, administrators, and assigns respec- 
tively forever, subject, nevertheless, to a proviso in the said indenture 
contained, whereby it was declared that if the grantors, or such persons 
who for the time being should be entitled to the freehold or inheritance, 
or other beneficial interest of and in the same annuity, or any part 
thereof, or any or either of them, should pay or cause to be paid unto 


the said "William Stafford, his heirs, executors, administrators, and as- 
signs, the principal sum of £12,381, 14s. 10c?., with interest, at the rate 
of 4J^ per cent, at certain times in the same indenture mentioned, and 
long since past, he the said "William Stafford, his heirs or assigns, would 
at their request and at their charges re-grant the said annuity and all 
arrears thereof unto and to their use, or unto such person or persons as 
thej' should appoint in that behalf, freed and discharged from all mesne 
incumbrances. The said principal money was not paid to Mr. Stafford 
in his lifetime, and still remains due upon the said mortgage. The 
exchequer annuity, subject to the usual deductions, was regularlj' re- 
ceived up to Jan. 5, 1818. "William Stafford, b3' his will dul3- attested, 
bearing date Oct. 22, 1777, gave all his real and personal estate what- 
soever unto his wife, Alethea Maria Stafford, her heirs, executors, ad- 
ministrators, and assigns, and appointed her sole executrix thereof, and 
died in the year 1796 without issu"©. The said will was duly proved bj' 
his exe^utrix on Sept. 7, 1796. Alethea Maria Stafford, by her will 
bearing date March 12, 1810, and attested by two witnesses, after 
directing that all her just debts, funeral, and testamentary- expenses 
and the charges of proving her said will should be in the first place 
paid ; and after giving sundry pecuniary and specific legacies, and 
divers annuities to several persons and several charitable institutions 
therein mentioned, bequeathed as follows; viz., "And all the I'est, 
residue, and remainder of my personal estate, of what nature or kind 
soever, I give and bequeath the same, and every part thereof, unto 
John Aubin and Patrick Lewis, their executors, administrators, and 
assigns, upon trust, as soon as convenientlj* maj' be after mj' decease 
to get in and convert into money all such parts of m}- estate as shall 
not consist of money or of perpetual stocks or funds." And then, out 
of such monej's, &c., to paj' the several pecuniarj' legacies, and to pro- 
vide sufficient funds for the payment of the several annuities and other 
j-early paj-ments, directed by her will to be made, and to set apart the 
annual sum of £200 to be paid forever to the treasurer, for the time 
being, of the Thatched House Societj-, for the sole uses of that institu- 
tion. And after directing similar appropriations for the benefit of other 
charities, she bequeathed all the residue of her said personal estate and 
effects to be divided equally between and for the benefit of three chari- 
ties therein named, to be paid in equal proportions, for the benefit of 
the same respectively. And she appointed the said John Aubin and 
Patrick Lewis her executors. The testatrix died on Sept. 29, 1810, 
and the said John Aubin and Patrick Lewis duly proved the said will. 
The exchequer annuitj-, under an order of the Court of Chancerj- made 
Feb. 17, 1817, in a cause of Aubin v. Daly, was sold to John Dearman 
Church, Esq., for the sum of £12,050. The question for the opinion 
of this court was, whether the legal estate and interest in the said 
exchequer annuity of £1,000 passed, by the will of Alethea Maria 
Stafford, to John Aubin and Patrick Lewis, the executors named in 
the will. 


Denman, for the plaintiff. The question in this case is, whether 
this annuity duly passed by a will attested only by two witnesses. 
That depends on another question, whether this be personal or real 
property. In Co. Lit. 20 a, it is thus laid down: " And so it is if I, 
by my deed, for me and my heirs, grant an annuity to a man and the 
heirs of his body ; for that this only chargeth my person, and concern- 
eth no land, nor savoureth of the realtie." Holdernesse v. Carmarthen, 
1 Bro. Ch. Ca. 377 ; Buckeridge v. Ingram, 2 Ves. jiin. 652 ; and Earl 
of Stafford y. Buckley, 2 Ves. 170, are authorities to the same effect; 
and in the last case, which is upon the very will now in dispute. Lord 
Hardwicke decided this point on the authority cited from Co. Lit. 

Richmond, contra. It is not necessary here to deny the principles 
of law laid down by the other side. For, admitting that this will is 
sufficiently executed, still there is an ulterior question, viz., whether 
this annuity passes by the will. It must pass by one of two modes. 
Either it vests in the executors virtute officii, or bj' the residuary be- 
quest to them. An annuity of this sort is thus defined by Lord Coke, 
Co. Lit. 2 a: "And so it is if an annuitie be granted to a man and 
his heirs, it is a fee-simple personal." As such it will be descendible 
to his heirs. It was formerly doubted whether an annuity was as- 
signable ; but that doubt did not extend to annuities of inheritance. 
Gerard v. Boden, Hetley, 80 ; Baker v. Broke, Moore, 5. And in 
Brooke's Abr. Tit. Annuitie, pi. 39, it is thus laid down: "It was 
doubted if he who has an annuitie in fee may grant it over, for it is a 
chose in action ; yet^er alios it is an inheritance ; and therefore it may 
well be granted over, and that without attornment, for it charges the 
person ; and j'et the defendant was charged as parson of a church. 
And a debt cannot descend to the heir, but an aunuit3' of inheritance 
maj' descend to the heir ; therefore it is not merely personalty." And 
in Fitzh. Ab. Tit. Release, pi, 48 : " Release of all actions personal is 
a good bar in a writ of annuity, notwithstanding he claim to him and 
his heirs ; ■ and a release of actions real is also good, because it is mixt." 
And in Holdernesse v. Carmarthen, 1 Bro. Ch. Ca. 376, an annuity 
granted by the letters patent of King William and Queen Mary was 
considered on the same footing as an annuity of inheritance, and as- 
signable. And the point was also discussed in Priddy v. Rose, 3 
Meriv. 86. In Nevil's Case, 7 Rep. 124 b, an annuity of inheritance 
was held forfeitable for treason by 26 H. 8, c. 13. And in The Earl 
of Stafford v. Buckley, Lord Hardwicke expressly says of this annuity : 
" All the rest of the personal estate that could pass to executors would 
go to them ; but this is a kind of personalty which, according to Doctor 
and Student, would not be assets in executors, and, consequently, will 
not go to them by being named executors." These authorities, there- 
fore, show that the executors did not take this annuity virtute officii. 
Then are the words in the bequest sufficient to give it to them ? The 
testatrix bequeaths all the rest, residue, and remainder of her personal 
estate, of what nature or kind soever, and every part thereof, unto 


J. A. and P. L., their executors, administrators, and assigns, upon 
certain trusts. Now, it is clear, by reference to Lord Hardwicke's 
judgment, that he entertained considerable doubts ivhether this annuity 
would pass by a sweeping bequest of this nature. Suppose a will be- 
queathed all the testator's hereditaments to A, and all his personal 
estate to B. It seems clear that A would take such an annuity as 
this, and the heir at law is not to be disinherited without express words, 
and that though general words are used. Doe, dem. Spearing, v. 
Buckner, 6 T. R. 610. [Batlet, J. There the devise was followed 
by words showing that the testator had only his personal estate in 
contemplation. The words of the trust in that case were very material, 
for the trustees were to add the interest to the principal, which showed 
that there the testator was only speaking of his personal estate. J 
Where the residuary clause is in favor of executors, it was held, Shaw 
V. Bull, 12 Mod. 593, that no more would pass bj' it than would go to 
executors virtute officii ; and that is the case here. And the words ' ' of 
what nature or kind soever " apply only to real and personal chattels, 
and do not extend to hereditaments. So in Rose v. Bartlett, Cro. Car. 
292, a devise of all lands and tenements was held not to include terms 
for years. The court, therefore, are not bound by the literal sense of 
general words. He also cited Ex parte Sergison, 4 Ves. 147, Ex parte 
Morgan, 10 Ves. 103, and Silberschildt v. Schiott, 3 Ves. & B. 45. 
[Bayley, J. The argument would go the length of saying that property 
of this description could only pass by a special devise.] 

Denman, in replj', contended that it was clear that this annuity 
passed by the residuary clause in Mrs. Stafford's will. Here there is 
nothing to restrain the general words of the devise. And the only 
question is, whether this is personal estate ; whether it would pass to 
the executors virtute officii is a verj' different question from the present. 
This is the case of a specific bequest of the residue, and is quite suffi- 
cient to pass the annuity in question. Cur. adu. vult. 

The following certificate was afterwards sent : — 

This case has been argued before us by counsel, and we are of opin- 
ion that the legal estate and interest in the exchequer annuitj' of £1,000 
passed by the will of Alethea Maria Stafford to John Aubin and Patrick 
Lewis, deceased. 

C. Abbott, J. Baylet, G. S. Holkoyd, W. D. Best. 


Exchequer. In Equity. 1837. 

[Eeported 2 Y. dk C. Ex. 268. '] 

Aldeeson, B., delivered the judgment of the court: This was a bill 
praj'ing in substance that the defendant Margaret Brent, widow and 
executrix of Timothj' Brent, deceased, may account for certain shares 
of the Chelsea Waterworks, and that it may be declared by the court 
that the plaintiff as his heir at law became entitled 'to those shares, 
and that the other defendants, the Governor and Company of the Chel- 
sea Waterworks, may be directed to insert in their transfer-books the 
plaintiffs name as proprietor thereof. There is no dispute as to the 
facts, and the only question for the court was, whether these shares 
were part of the real or personal estate of the testator. If the former, 
the plaintiff as heir at law is entitled to the decree he prays, because 
the will is attested by only two witnesses ; and if the latter, his bill 
must be dismissed. 

When this question originally came before me, I thought it one of 
so much difficulty, and involving such extensive consequences, that I 
was desirous the parties should have the benefit of having the opinion 
of my learned brethren also ; and accordinglj', in conformity to the 
practice here (which is a peculiar advantage in the frame of the Court 
of Equity in the Exchequer), I adjourned the case to be heard before 
the full court. The case was, in the course of last Michaelmas Term, 
very fully and ably argued before Lord Abinger, my brothers Parke 
and Gurney, and myself; and I am now to deliver the opinion of the 
whole court on the point. 

The company of the Chelsea Waterworks was originally constituted 
under the provisions of the statute 8 Geo. I,, 1723. By that act, cer- 
tain persons named therein were constituted commissioners, under- 
takers, and trustees for carrying into eflfect the works then projected, 
and for afterwards maintaining them. For that purpose his Majesty 
was, by a subsequent clause, empowered to incorporate them, by the 
name of the Governor and Company of the Chelsea Waterworks. And 
they were to have the power of purchasing lands not exceeding £1,000 
per annum, and to sell and dispose thereof at tlieir pleasure, and to do 
all necessary works, and to be subject to such rules, qualifications, and 
appointments as his Majesty should think reasonable to be inserted in 
the charter ; and might also be empowered to make bj'-laws from time 
to time for the good government of the corporation. 

In pursuance of this power a charter of incorporation was granted 
almost immediately afterwards by Geoi-ge I. That charter followed 
the directions of the statute, and gave the corporation power to pur- 
chase lands, &c., so as they did not exceed in value £1,000 per annum, 

1 The opinion only is given. It sufficiently states the facts. 


and also estates for life or lives, and for years, and goods and chattels 
of what nature or value soever, for the better carrj'ing on and effecting 
the purposes of the company, not exceeding the value of the joint stock 
of the corporation thereinafter mentioned and limited, and to be taken 
and computed as part thereof. 

The twenty- third section empowered the corporation by subscription 
to raise a joint stock, not exceeding £40,000, and to manage the same 
from time to time, and to receive the benefit and advantage of the 
same to the use of them the said Governor and Company and their suc- 
cessors, according to such shares and proportions as they or any of 
them have or shall have therein. And then it provided that every 
person subscribing and contributing any sum or sums of money should, 
b}- virtue thereof, become members of the said corporation, and should 
be entitled to a share or shares in such joint stock (previouslj- fixed at 
£20 each) equal to the sum or sums of money so by him actually 
contributed and paid in, and no greater ; and should be enabled to sell, 
assign, and transfer the same or any part thereof (not being less than 
one whole share, as by a subsequent clause was provided), bj' transfers 
in the company's books, in such manner as should be hy a general court 
directed, or by his last will and testament ; and the person to whom 
such assignment or transfer, or disposition by last will and testament, 
should be made, should bj^ virtue thereof become member of the said 

What, then, is the intention of the crown and legislature to be col- 
lected from all these particulars as to the nature of the interest which 
each shareholder is to have? That is, in truth, the whole question in 
this cause. Now, in the first place, we have a corporation to whose 
management the joint stock of money subscribed by its individual cor- 
porators is intrusted. Thej' have power of vesting it at their pleasure 
in I'eal estate or in personal estate, limited onlj' as to amount, and of 
altering from time to time the species of propertj' which they may choose 
to hold ; and in order to give them greater facilities and advantages, 
certain powers are intrusted to the undertakers by the legislature, and 
that even before thej^ were constituted a body corporate, of lajing down 
pipes, and thereby occupying land for the purposes of their undertaking. 
These powers render the use of joint stock by the body corporate more 
profitable, but they form no part of the joint stock itself; and one de- 
cided test of this is, that they belong inalienably to the corporation, 
whereas all the joint stock is capable expressly of being sold, ex- 
changed, varied, or disposed of at the pleasure of the corporate body. 
It is of the greatest importance to look carefully at the nature of the 
property originally intrusted, and that of the body to whose manage- 
ment it is intrusted, — the powers that body has over it, and the purposes 
for which these powers are given. The property is money, — the sub- 
scriptions of individual corporators. In order to make that profitable, 
it is intrusted to a corporation who have an unlimited power of con- 
verting part of it into land, part into goods, and of changing and dis- 


posing of each from time to time ; and the purpose of all this is the 
obtaining a clear surplus profit from the use and disposal of this capital 
for the individual contributors. 

It is this surplus profit alone which is divisible among the individual 
corporators. The land or the chattels are onlj' the instruments — and 
those varying and temporarj- instruments — whereby the joint stock of 
money is made to produce profit. Suppose the subscription had not 
been by the individual corporators, but that strangers, having collected 
the money, had put it into the management of a corporate body having 
particular privileges, and had, after giving them power to vest the 
iiioiiej' at their pleasure, stipulated to receive these profits : could it be 
contended that the nature of the propertj' of the subscribers depended 
on the mode of management b^' the independent body? And yai that 
is, in truth, this case ; for the individual members of a corporation are 
quite as distinct from the metaphysical body called "the corporation," 
as any others of his Majesty's subjects are. 

This case varies most materially from those which were cited in the 
argument. In the New River case, the individual corporators have the 
propertj' ; the corporation have only the management of it. Lord 
Hardwicke, in the case in Atkyns,' expressly puts it on that ground. 
" They have the legal right," he says ; " they maj- bring an ejectment 
for so much land covered with water ; and the only diflference between 
the shareholders of the king's half and the others is that the corpora- 
tion of management have as to these shares perhaps the legal estate in 
them, the equitable estate being in the individual proprietors." In that 
case, too, the property given to the corporation was real property, which 
they are to manage for the good of all. They have no powers of con- 
verting it into anj' other sort of property, but must keep it and make a 
profit from it as it is ; viz., as real property. 

The same observations apply to Buckeridge v. Ingram,'' the Avon 
Navigation, with this addition, that there the undertakers do not appear 
to have been a corporation at all. And in both the shares are trans- 
ferred to the shareholders and their heirs. But here the case is wholl3'- 
different, — the property intrusted is money ; the corporation may do 
what thej' like with it, and may obtain their profit in any way they 
please from the employment of their capital stock. If they thought 
that they could with greater profit supply water by conveying it in 
carts or the like, they would have a perfect right so to do. It would be 
strange that the nature of these shares should continually fluctuate, and 
be sometimes real estate, and sometimes personal, according as the cor- 
poration in the course of their management should choose to hold real or 
personal property. Suppose a man made his will, attested by two per- 
sons, and at a time when the corporation held only personal estate. It 
is good. He becomes lunatic or is incapable from age, and then real 
property is bought by the corporation. Is his will to be set aside? 
And yet he cannot make another. 

1 [Townsend v. Ash, 3 Atk. 336.] [2 Ves. Jr. 652.] 


Then, in what way has this property always been treated ? If we 
look to the wording of the charter, the language is much more suitable 
to personal than to real estate. Indeed, on the latter supposition it is 
verj' inaccurate. Again, the form of transfer appointed by the legisla- 
ture (for that which is done under the provisions of the charter is, in 
fact, done by the legislature, and is, indeed, subsequentlj' recognized 
by it) is applicable to personal estate only. These shares are not 
transferred to A. B. and his heirs, but A. B., his executors, adminis- 
trators, and assigns ; and so they have always been. This form, indeed, 
may be considered as almost a contemporary exposition of the law on 
this point. 

Lastly, in Weekley v. Weekley ^ this point came expressly under the 
consideration of Sir Thomas Sewell, Master of the Rolls, and he decided 
that these shares were personal property. 

Upon the whole, therefore, we think that the principles of law, the 
usage of the company, and the distinct authorit3' of one decided case 
are sufficient to warrant us in coming to the conclusion that these shares 
are personal propertj'. 

The result is, that the bill must be dismissed, with costs. 

Decree accordingly. 

Mr. Simpkinson, Mr. Creswell, and Mr. Toller, for the plaintiflF. 

The Attorney- General {Sir John Campbell) , Mr. Boteler, and Mr. 
Prescott White, for the Governor and Company of the Chelsea Water- 

Mr. G. Richards and Mr. Stevens for the defendant Brent. 

1 [2 Y. & C. Ex. 281, note.] 

Note. — So Miossell v. Temple, 3 Dane, Ab. 108. In Connecticut, shares in turn- 
pike corporations, and in Kentucky, shares in railroad corporations, were once held to 
be real estate ; but in both States the law has now been changed by statute. 


BOOK 11. 






Note. — The student cannot too soon observe the inseparable connection between 
substantive rights and the forms of remedies. In most suits which involve rights to 
personal property, only damages can be recovered. It seems desirable here to see when 
possession of the property itself may be obtained. 



Common Bench. 1623. 

[Reported Cro. Jac. 682.] 

Eeeor of a judgment in the Common Pleas in detinue of a bond. 
Upon non detiiiet pleaded, it was found for the plaintiff, and the dama- 
ges assessed to seven pounds and costs sixpence ; and if the bond can- 
not be restored, then they assessed for damages, besides the seven 
pounds, twenty pounds more ; and it was thereupon adjudged that he 
should recover the said seven pounds and sixpence for the costs, and 
the said bond or twenty pounds : etprceceptum fuit vicecomiti distrin- 
gere for the said bond or twenty pounds. 

And thereupon the error was assigned, for the judgment ought to be 
conditional ; viz., the said bond, or if he cnnnot have the said bond, then 
the twenty pounds ; and accordingly the distringas ought to have been 
to demand the bond, and if it cannot be delivered, then the twenty 


pounds ; but these words, " and if it cannot be delivered," were omitted, 
— wherefore it was moved to be error. 

And although Waller, the prothonotai-y of the Common Pleas, certi- 
fied that there were divers precedents there in this manner, and it was 
said that in the Book of Entries, Co. Ent. 170, judgment is entered 
in this manner, and alleged that the judgment being that he shall 
recover the bond or twenty pounds tantamount, and is to be intended 
conditional that he shall have the bond, and if he cannot have it, then 
the twentj' pounds ; yet upon consideration of many other precedents, 
and the books which mention that the judgment is and ought to be con- 
ditional in itself, and not by intendment, the court held that the judg- 
ment was erroneous ; for by that judgment and awarding of a distringas 
the sheriff might distrain for the one or the other at his choice, which 
ought not to be ; but he ought to distrain for the thing itself, and if he 
cannot have it, then for the twenty pounds ; and although the writ of 
distringas was well made, and in that manner as it was shown to the 
court, jet forasmuch as the judgment is otherwise, the awarding upon 
the roll, which is the warrant of the writ, was not good : wherefore 
rule was given that the judgment should be reversed. i 


Queen's Bench. 1856. 

[Beported 6 E. & B. 842.] 

Replevin. Plea : N^on cepit. Issue thereon. 

The cause came on to be tried before Crowder, J., at the last Spring 
Assizes for Devon. The following account of the facts which then 
appeared in evidence is taken from the judgment of this court. 

" One Facey was indebted to the plaintiff. He brought him £15 
towards payment of the debt, but requested and obtained permission 
to lay the money out in the purchase of a horse and cart, which were to 
be the property of the plaintiff, but of which Facey was to have the 
possession and the use, subject to such occasional use as plaintiff might 
require to have of them, and to their being given up to plaintiff when 
he should demand them. Accordingly Facey made the purchase. The 
possession and the use were substantially with him ; he fed, stabled, 
and took care of the horse ; there was some evidence that his name 
was on the front of the cart ; certainly plaintiff's was on the side, — 

1 In an action of detinue on a judgment that the plaintiff shall recover the goods or 
the value, there shall issue to the sheriff a distringas to the defendant ad deliberanda 
bona, and if he will not, the plaintiff shall have the value as it is taxed by the inquest ; 
and so it is in the election of the defendant to deliver to the plaintiff the goods them- 
selves, or the value, &o. Per Frowyk, C. J., in Anon. (Cam. Scacc), Zeil. 61h, 64 h 


under what circumstance placed there, the evidence was contradictorj^ 
the plaintiff alleging it to have been placed in the ordinary way as an 
evidence of property, the defendant insinuating that it was so placed in 
order to protect it from Facey's other creditors. It is not, however, 
material, because on the one hand the plaintiff's property we talte to be 
indisputable, and on the other we do not think there is evidence enough 
to charge the defendant with fraud or collusion in the circumstances 
under which he obtained possession, and which we now proceed to 

"Facey determined to emigrate; and the defendant knew of his 
intention, but the plaintiff did not. The horse and cart were used in 
transporting Facey's effects to the pier at which he was to embark ; and 
the defendant, to whom he owed money for fodder supplied to the horse, 
went with him to procure payment if he could. At parting, Facey 
delivered the horse and cart to him, telling him to take them for the 
debt, but adding that he owed the plaintiff monej' also, and that if he 
would discharge the debt due to the defendant, which was much less 
than their value, he was to give them up to him. In this manner the 
defendant acquired his possession. The plaintiff for some time re- 
mained in ignorance of what had passed, and afterwards, coming to 
the knowledge of it, demanded them ; but the defendant refused to 
deliver them unless his debt were paid : whereupon the plaintiff pro- 
ceeded to replevy the goods, and so brought the present action." 

Upon these facts the learned judge directed a verdict for the plaintiff, 
with leave to move to enter a verdict for the defendant, or a nonsuit if 
under such circumstances replevin did not lie. 

Montague /Smith, in the ensuing term, obtained a rule nisi accord- 

Collier and JKhrslake, in last Hilary Term, showed cause. 

Montague Smith and Coleridge, contra. 

Coleridge, J., now delivered judgment. This was a rule to enter 
a nonsuit or verdict for the plaintiff on a plea of Non cepit to a declara- 
tion in reple-\ in ; and the facts were in substance these. His Lord- 
ship then stated the facts, and proceeded as follows : — 

Upon these facts the question raised is. Whether there was anj- tak- 
ing of the horse and cart from the plaintiff by the defendant? And 
we are of opinion, looking to the nature and purpose of the action of 
replevin, that there was no taking in the sense in which that word must 
be understood in this issue. The whole proceeding of replevin, at com- 
mon law, is distinguished from that in trespass in this, among other 
things : that, while the latter is intended to procure a compensation in 
damages for goods wrongfullj- taken out of the actual or constructive 
possession of the plaintiff, the object of the former is to procure the 
restitution of the goods themselves ; and this it effects by a preliminary 
ex parte interference by the officer of the law with the possession. 
This being done, the action of replevin, apart from the replevin itself, 
is again distinguished from trespass by this, that, at the time of declar- 


ing, the supposed wrongful possession has been put an end to, and the 
litigation proceeds for the purpose of deciding whether he, who by 
the supposition was originally possessed, and out of whose possession 
the goods were taken, and to whom the}- have been restored, ought to 
retain that possession, or whether it ought to be restored to the defen- 
dant. Blackstone (3 Com. 14G), after observing that the Mirror 
ascribes the invention of this proceeding to Glauvil, saj-s that it 
' ' obtains onlj^ in one instance of an unlawful taking, that of a wrongful 
distress." If by this expression he onlj^ meant that in practice it was 
not usual to have recourse to replevin except in the case of a distress 
alleged to be wrongful, he was probablj- justified by the fact. But 
there are not wanting authorities to show that the remedy by replevin 
was not so confined ; and in the case of Shannon v. Shannon, 1 Sch. 
& Lef. 324, 327, Lord Redesdale finds fault with this passage, saying 
that the definition is "too narrow," and that "many old authorities 
will be found in the books of replevin being brought where there was 
no distress : " and the learned reporters, in a note to the passage, refer 
to Spelman's Glossary, 485 (tit. Meplegio) ; Doctrina Placitandi, 
Replevin, 313; Com. Dig. Replevin (A.); and Gilbert, Distress and 
Replevin, 68 (4th ed., p. 80). 

There is no doubt that passages, such as those referred to, may be 
found stating the definition ver^' broadly ; yet we believe that when 
the authorities on which some of them rest are examined, and when 
due attention has been paid to the context in others, it will appear iu 
the result questionable, at the least, whether the commentator's more 
qualified definition was not correct, — at least that replevin was insti- 
tuted as a peculiar remedj-, and under the Statute of Marlbridge by 
plaint as ?ifestinum remedium for the injury- of an unlawful distress. 

Thus in 2 Roll. Abr. 430, Replevin (B) 2, it is said, if trespasser 
takes beasts, replevin lies of this taking at election ; the authority for 
this is Yearb. Mich. 7 H. IV. fol. 28 B, where, the counsel or another 
judge alleging the contrary, Gascoigne, C. J. of K. B., saj's : " He may 
elect to have replevin or writ of trespass ; " but he adds, or the reporter 
adds, "and some understand that he cannot," — for which last a 
reason is given. 

Again, Com. Dig. Replevin (A) : " Replevin lies of all goods and 
chattels unlawfully taken." For this no authority is cited ; but the 
context shows that th3 Chief Baron was thinking, not so much of the 
circumstances under which taken, as of the things themselves, for he 
adds, " whether they be live cattle or dead chattels," or " a swarm of 
■ bees," or " iron of his mill," citing Fitzherbert's Natura Brevium, in 
whose chapter on Replevin we do not find the law so broadly laid 
down. As to the passage to which reference is made in Lord Chief 
Baron Gilbert, it should be remembered that the treatise is on the Law 
of Distresses and Replevins, and the passage occurs in a chapter in 
which replevin is treated of with reference to distress, as if the two 
formed parts of one subject-matter. Little, therefore, can be inferred 


from the generality of the language in a single sentence. A dictum of 
Lord Ellenborough has also been referred to in Dore v. Wilkinson, 2 
Stark. N. P. C. 287, from which the inference is that he thought re- 
plevin might conveniently be had recourse to more oftea than it was, 
instead of bringing trover ; but it was an observation thrown out in 
the course of a cause, a recollection of what Mr. Wallace used to say, 
not ruling an}' point, nor deciding anything, in the cause. Much impor- 
tance ought not to be attached to such casual observations, even of so 
great a judge at Nisi Prius. On the other hand. Lord Coke seems 
to be authority the other way. In Co. Lit. 145 b, is the following pas- 
sage : " A replegiare lyeth, as Littleton here teacheth us, where goods 
are distrained and impounded ; the owner of the goods may have a 
writ de replegiari facias, whereby the sheriff is commanded, taking 
sureties in that behalf, to re-deliver the goods distrained to the owner, 
or upon complaint made to the sheriff he ought to make a replevy in 
the count3^ Heplegiare is compoandeA of re and plegiare / as much as 
to say, as to re-deliver upon pledges or sureties." 

From a review of these and other authorities which might be added, 
it may appear not settled whether originally a replevy lay in case of 
other takings than by distress. Nor is it necessary to decide that 
question now ; for at all events it seems clear that replevin is not 
maintainable unless in a case in which there has been first a taking out 
of the possession of the owner. This stands upon authority and the 
reason of the thing. We have referred already to a dictum of Lord 
Redesdale. Three cases are to be found: Ex parte Chaniherlain, 1 
Sch. & Lef 320 ; In Re Wilsons, 1 Sch. & Lef. 320, note (a) ; and 
Shannon v. Shannon, 1 Sch. & Lef 324, in which the law is so laid 
down bj' Lord Redesdale. And these are cases of great authority ; for 
that verj' learned judge found the practice in Ireland the other way. 
He felt the inconvenience and injustice of it ; he consulted with the 
Lord Chief Justice, and obtained the opinion of the other judges; and 
then pronounced the true rule, which, in one of these cases. In Re 
Wilsons, he thus states : The writ of replevin " is merely meant to 
apply to this case, viz., where A takes goods wrongfully from B, 
and B applies to have them re-delivered to him upon giving securitj' 
until it shall appear whether A has taken them rightfully. But if A 
be in possession of goods in which B claims a property, this is not 
the writ to try that right." In the course of these cases his Lordship 
points out how replevin proceeds against the general presumption of 
law in favor of possession ; how it casts upon him who was in posses- 
sion the burden of first proving his right ; and he puts (Me parte 
Chamberlain, 1 Sch. & Lef. 322), as a reductio ad absurdum, a case 
not unlike the present. "Suppose," says he, " the case of a person 
having a lien on goods in his possession, and who insists on being paid 
before he delivers them up : I do not see, on the principles insisted on, 
why a writ of replevin may not issue in that case." The reason of the 
thing is equally decisive : as a general rule it is just that a partj' in the 


peaceable possession of land or goods should remain undisturbed, 
either bj'the party claiming adversely or by the officers of the law, until 
the right be determined and the possession shown to be unlawful. But 
■where, either by distress or merely bj- a strong hand, the peaceable pos- 
session has been disturbed, an exceptional case arises ; and it ma}- be 
just that, even before any determination of the right, the law should 
interpose to replace the parties in the condition in which they were 
before the act done, security being taken that the right shall be tried 
and the goods be forthcoming to abide the decision. Whatever may be 
thought of Lord Coke's etymology, what he says of replegiare, while it 
shows his understanding of the law, gives a true account of what reple- 
vin is, — a re-delivery to the former possessor on pledges found. But 
this is applicable clearly to exceptional cases only. If wherever a party 
asserts a right to goods in the peaceable possession of another he has 
an election to take them from him bj' a replevin, it is obvious that the 
most crj'ing injustice might not unfrequently result. Now, in the pres- 
ent case Facey was not the servant of the plaintiff, nor was his pos- 
session merelj' the possession of the plaintiff ; he was the bailee of the 
plaintiff, and had a lawful possession from the delivery of the owner, 
which conferred on him a special property. This did not authorize 
him to transfer his possession to the defendant, nor could he give him 
a lien for his debt against the paramount right of the true owner, the 
bailor. After a demand and refusal, upon the admitted facts in this case, 
the plaintiff could clearly have maintained trover against the defendant ; 
but yet there was nothing wrongful in his accepting the possession from 
Facey. He acquired that possession neither by fraud nor violence, — at 
least none is found, and we cannot presume either, — and he retained 
the possession on a ground which might justify the retainer until the 
alleged ownership was proved. This, therefore, in our opinion was a 
case in which the plaintiff could not proceed by replevin, but should 
have proved his prior right in trover or detinue. 

It appeared in this case that the sheriff's deputy for the issuing of 
replevins was the attorney for the plaintiff ; and although we have no 
reason to believe that anything wrong was here intended, we think it 
right to notice this circumstance, because it is one which obviouslj- 
might lead to much abuse and oppression. It is proper to be known 
that there are several cases to be found in the books in which attach- 
ments have issued where replevins have been thought to have been 
granted improperly and from improper motives. 

The rule should be absolute, not to enter a verdict, but a nonsuit. 

Mule absolute for a nonsuit.^ 

1 In Mellor v. Leather, 1 E. & B. 619 (1853), it had been said by the Court of Queen's 
Bench that replevin would lie where goods had been unlawfully taken, though not as a 



Supreme Court of Pennsylvania. 1818. 

{Reported 3 ^S". & R. 559.] 

This was a replevin for 631 barrels of flour, tried before the Chief 
Justice, at Nisi Prius, in November, 1817, when the jury found a ver- 
dict for the plaintiff, subject to the opinion of the court in banc on a 
point reserved. 

The plaintiff, on March 9th, 1813, contracted to ship 631 barrels of 
flour on board the Minerva, a Spanish vessel, of which the defend- 
ant was master, from Philadelphia to Havanna, at four dollars a barrel. 
The flour was accordingly put on board by March 16th, the ship then 
lying at the wharf in Philadelphia. On March 16th the bills of lading 
were signed, and the ship cleared out at the custom-house ; and on the 
17th she cleared out at the Spanish consul's. When the contract was 
made, both parties expected a blockade of the Delaware hy the British, 
and, accordingly, notice was received in Philadelphia ou March 16th 
that the blockade was instituted. Under these circumstances the 
plaintiff several times applied to the defendant either to proceed on 
his voj'age, or to deliver up the flour ; and the defendant, on the last 
application, refused to do either, unless the plaintiff, in case of the 
flour being delivered to him, would pay one half freight (two dollars a 
ban-el), or, in case the vessel proceeded, would guarantee the ship 
and two thirds of the freight. The plaintiff, therefore, on April 29th, 
issued this replevin, on which the flour was delivered to him. 

The defendant pleaded property, on which issue was joined, and a 
verdict taken for six cents damages and six cents costs, subject to the 
opinion of the court whether the property at the commencement of 
the action was in the plaintiff. 

Chauncey and Tngersoll for the defendant. 

J. a. IngersoU, contra. 

Duncan, J. However the law may be in England as to the action 
of replevin, whether it only lies in case of distress, as is held by some 
(3 Bl. 145) , or whether, as held bj- others, it lies in all cases where the 
goods have been taken out of the actual possession of the owner, it is 
the established law of Pennsylvania that it lies in all cases where a 
man claims goods in the possession of another. 1 Dall. 156. 6 Binn. 
8. It is a question of property. It is not like trover, which is an 
equitable action, and if the party has a legal or equitable lien on the 
property, it may be defalked in the damages assessed by the jury. But 
in a case where the claim of the defendant must be entirely uncertain, 
no fixed standard by which to ascertain it, the owner cannot know what 
sum to tender ; and if a verdict passed against him in replevin, because 
he tendered too little, his property' would be lost. Here the goods were 
delivered to the plaintiff. If there is a verdict for the defendant, it 



must be a general one ; in which case there would be judgment de 
retorno habendo, and the defendant might, for the value of the goods, 
and not for the amount of the lien claimed by him, proceed against the 
sheriff or the pledges. In the action the jury could not award damages 
to the defendant. 

The taking here not being tortious, the plaintiff must prove property. 
If the taking were wrongful, this burden would lie on the defendant. 
The plaintiff has proved propertj'. The defendant cannot claim a lien 
on the ground of freight, for no freight was earned ; and it is impossi- 
ble to say certainly that it would have been earned, had there been no 
blockade, for still the voyage might not have been safelj- performed. 
The plaintiff had done everything on his part. The defendant was not 
prevented from earning it by any breach of contract on the part of the 

It is not necessary, as this case comes before the court, to decide 
whether the defendants were entitled to anj* compensation, and if to any, 
what. The occasion does not call for an opinion on the question 
whether the contract is dissolved or suspended. Although no direct 
decision has been produced, j'et it appears from writers whose opinions 
are entitled to great respect, and such, too, would appear to be the rea- 
son of the thing, independently of direct precedents, that in ease of a 
cargo such as this, perishable in its nature, which if kept on board 
during the continuance of the blockade would have been spoiled, or if 
secured on shore must be greatly deteriorated, that the owner had a 
right to have such cargo unladen, and to the possession of it, and the 
power to sell it, without giving any security to replace it. If this be 
so, the defendant could have no lien on the cargo. For the doctrine of 
lien is founded on the possessOT's right to detain until the lien is dis- 
charged. When the possession is gone, the lien is gone. The remedy 
of the defendant for compensation, if he has any, is not by detaining 
the goods, nor action for recovery of freight, but an action for the 
recovery of damages for not being suffered to carry it.^ 

New trial refused. 



In Chancery, before Lord Talbot, C. 1735. 

[MepoHed 3 P. Wms. 390.] 

The Duke of Somerset, as lord of the manor of Corbridge, in North- 
umberland (part of the estate of the Piercys, late Earls of Northumber- 

1 The opinions of the other judges concurring are omitted. For the States which 
agree with the Pennsylvania doctrine, see Morris, Replevin (3d ed.) 52-54. 


laud) , was entitled to an old altar-piece made of silver, remarkable for 
a Greek inscription and dedication to Hercules. His grace became 
entitled to it as treasure-trove within his said manor. This altar-piece 
had been sold by one who had got the possession of it to the defend- 
ant, a goldsmith at Newcastle, but who had notice of the Duke's claim 
thereto. The Duke brought a bill in equity to compel the delivery of 
this altar-piece in specie, undefaced. 

The defendant demurred as to part of the bill, for that the plaintiff 
had his remedy at law by an action of trover or detinue, and ought 
not to bring his bill in equity ; that it was true, for writings savoring 
of the realty a bill would lie, but not for anything merely personal, 
any more than it would for an horse or a cow. So a bill might lie for 
an heirloom, as in the case of Pusey v. Pusey, 1 Vern. 273. And 
though in trover the plaintiff could have only damages, yet in detinue 
the thing itself, if it can be found, is to be recovered ; and if such bills 
as the present were to be allowed, half the actions of trover would be 
turned into bills in chancery. 

On the other side it was urged that the thing here sued for was 
matter of curiositj' and antiquity ; and though at law only the intrinsic 
value is to be recovered, yet it would be very hard that one who comes 
by such a piece of antiquitj' by wrong, or it maj' be as a trespasser, 
should have it in his power to keep the thing, paying only the intrinsic 
value of it, — which is like a trespasser's forcing the right owner to 
part with a curiosity or matter of antiquitj' or ornament, nolens volens. 
Besides, the bill is to prevent the defendant from defacing the altar- 
piece, which is one way of depreciating it ; and the defacing may be 
with an intention that it may not be known, by taking out or erasing 
some of the marks and figures of it. And though the answer had denied 
the defacing of the altar-piece, yet such answer could not help the 
demurrer. That in itself nothing can be more reasonable than that the 
man who by wrong detains my propert}-, should be compelled to restore 
it to me again in specie ; and the law being defective in this particular, 
such defect is properly supplied in equitj-. 

Wherefore it was prayed that the demurrer might be overruled, and 
it was overruled accordingly. 


In Chancery, before Lord Cottenham, C. 1847. 

[Reported 2 Phil. 382.] 

The principal object of this suit was to restrain the sale of certain 
furniture by the defendant Rowcliffe, and to have it delivered up to the 
plaintiff as the rightful owner. 

Rowcliffe claimed the furniture under a bill of sale, by way of mort- 
gage, from the defendant Elizabeth Wright who was at the time in 


possession of it as apparent owner, but who, as the plaintiff alleged, 
had no property in it, having been left in charge of it merely as his 
agent daring his absence abroad. The bill represented that the furni- 
ture was still in the hands of Elizabeth Wright, and that Eowcliffe had 
advertised it for sale. His answer, however, stated, and it was proved, 
that he had taken possession of it soon after the execution of the bill of 
sale, and that he had ever since retained such possession bj- keeping a 
man in the house where it was, although Elizabeth Wright, who resided 
there, was allowed the use of it. 

Elizabeth Wright, by her answer, disclaimed all interest in the 

At the hearing of the cause before Vice-Chancellor Wigram, by whom 
an injunction had been previously granted, a decree was made, by which 
it was ordered, among other things, that the bill should be retained, 
with liberty to the plaintiff to bring an action of trover for the furniture, 
and the defendant was, on the trial, to admit conversion. 

On the hearing of an appeal bj' Eowcliffe from that decree, the fol- 
lowing two points, amongst others, were made hj the counsel for the 
appellant : First, that the plaintiflf's remed}^ was at law, and that a 
bUl in equitj' did not lie to restrain the sale of specific chattels, unless 
thej' possessed some peculiar value which could not be compensated by 
damages, as in the case of the Pusey horn. 1 Vern. 273. Secondly, 
that admitting such a bill would have lain had the goods been still 
in the possession of Elizabeth Wright as the plaintiff's agent for their 
custodj', yet at all events the equity was gone as soon as thej' had 
changed hands and passed into the possession of a stranger. And in 
support of this thej'^ referred to the doubt expressed by the Vice-Chan- 
cellor himself in overruling a demurrer to this very bill, as to whether 
his decision would have been the same if the bill had alleged that 
the goods were in the hands of Eowcliffe. 

In reference to these points. 

The Lord Chancellob said : The cases which have been referred to 
are not the only class of cases in which this court will entertain a suit 
for delivery up of specific chattels ; for where a fiduciary relation 
subsists between the parties, whether it be the case of an agent or a 
trustee or a broker, or whether the subject-matter be stock or cargoes 
or chattels of whatever description, the court will interfere to prevent a 
sale either by the party intrusted with the goods, or by a person claim- 
ing under him, through an alleged abuse of power. In this case there 
is great reason to believe that Elizabeth Wright never had any right to 
the goods except as the plaintiff's agent, for she has disclaimed all in- 
terest in them by her answer, and there is nothing to show how she had 
acquired any property in them. But, says Eowcliffe, I purchased under 
circumstances which give me a legal right to the goods. If that be so, 
the equity of the plaintiff will be intercepted by a prior legal right. In 
such a case this court begins by putting the matter into a course of in- 
vestigation to ascertain that legal right. That is what the Vice-Chan- 


cellor has done. And in that respect I see no ground for impeaching 
the decree. 

[His Lordship then proceeded to comment on some subordinate parts 
of the case, in the course of which he made the following observation] : 
I observe the decree gives the plaintiff liberty to bring an action, but 
gives no directions as to what is to be done if he does not proceed ; 
whereas it ought to have directed that if he did not proceed within 
a certain time, the bill should be dismissed. 

Mr. Parker and Mr. H. Clarice were for the appellant. 

Mr. RomiUy and Mr. Southgate for the respondent. 



UoTE. — In this chapter are considered the cases in which the chattel in question 
either had no former owner, or in which, if it had a former owner, the present claimant 
does not derive his title from him. 


{Inst. II. 1, 12 &13.) 

12. Wild beasts, therefore, and birds and fishes, that is to saj', all 
animals that live on the earth, in the sea or in the air, as soon as they 
are caught bj^ any one, become his at once by virtue of the law of na- 
tions. For whatever has previously belonged to no one, is granted by 
natural reason to the first taker. Nor does it matter whether a man 
catches the wild beasts or birds on his own ground, or on another's ; 
although a person purposing to enter on another's land for the purpose 
of hunting or fowling may of course be prohibited from entering b}- the 
owner, if he perceive him. Whatever, then, you have caught of this 
kind, is regarded as yours so long as it is kept in your custody ; but 
when it has escaped from your custod3' and reverted to its natural free- 
dom, it ceases to be yours, and again belongs to the first taker. And 
it is considered to have recovered its natural freedom when it has either 
escaped out of your sight, or is still in sight, but so situated that its 
pursuit is difficult. 

13. It has been debated whether a wild beast is to be considered 
j'ours at once, if wounded in such manner as to be capable of capture ; 
and some have held that it is yours at once, and is to be regarded as 
j'ours so long as jj^ou are pursuing it, but that if you desist from pur- 
suit, it ceases to be j'ours, and again belongs to the first taker. Others 
have thought that it is not yours until you have actually caught it. 
And we adopt the latter opinion, because many things maj' happen to 
prevent your catching it. 



7 Co. 15 b, 17 a (1592). — And in the same case it is said that the 
truth of the matter was that the Lord Strange had certain swans which 
were cocks, and Sir John Charleton certain swans which were hens, and 
they had cignets between them ; and for these cignets the owners did 
join in one action, for in such case by the general custom of the realm, 
which is the common law in such case, the cignets do belong to both 
the owners in common equally, sc. to the owner of the cock and the 
owner of the hen ; and the cignets shall be divided betwixt them. And 
the law thereof is founded on a reason in nature ; for the cock swan is 
an emblem or representation of an affectionate and true husband to his 
wife above all other fowls ; for the cock swan holdeth himself to one 
female only, and for this cause nature hath conferred on him a gift 
beyond all others ; that is, to die so joyfully, that he sings sweetly 
when he dies ; upon which the poet saith, — 

Dulcia defecta modulatur carmina lingua, 
Cantator, oygnus, funeris ipse sui, etc. 

And therefore this case of the swan doth differ from the case of kine, 
or other brute beasts. Vide 7 Hen. IV. 9. 


Qdeen's Bench. 1844. 

[Reported 6 Q. B. 606.] 

Trespass. — The first count charged that defendant, with force, &c., 
seized and disturbed a fishing scan and net of plaintiff, thrown into the 
sea for fish, wherein plaintiff had taken and inclosed, and then held 
inclosed in his own possession, a large number of fish, to wit, &c., and 
that defendant threw another fishing sean and net within and upon 
plaintiffs sean and net, and for a long time, to wit, &c., prevented 
plaintiff from taking the fish, so taken and inclosed, out of his sean 
and net, as he could otherwise have done ; and drove, &c., the fish : 
wherebj' part of them died, part were injured, and part escaped ; and 
the sean and net was injured. Second count, that defendant with force. 
&c , seized, took, and converted fish of plaintiff. 

Pleas 1. Not guilty. Issue thereon. 

2. To the first count, as to preventing plaintiflT from taking the fish 
alleged to be inclosed in his possession, and driving, &c., the said fish : 
that the fish were not plaintiff's fish, and he was not possessed of them, 
in manner, &c. Conclusion to the country. Issue thereon. 


3. To the second count, that the fish were not the plaintiff's fish, in 
manner, &c. : conclusion to the countrj-. Issue thereon. 

4 and 5. As to other parts of the declaration, raising defences under 
statutes 16 Geo. III. c. 36, and 4 & 5 Vict. c. Ivii. (local and personal, 
public), relating to the St. Ives (Cornwall) pilchard fishery. Issues of 
fact were tendei-ed and joined on those pleas. 

On the trial, before Atcherley, Serjt., at the Cornwall Spring Assizes, 
1843, it appeared that the plaintiff had drawn his net partially round 
the fish in question, leaving a space of about seven fathoms open, which 
he was about to close with a stop net ; that two boats, belonging to the 
plaintiff, were stationed at the opening, and splashing the water about, 
for the purpose of terrifying the fish from passing through the opening ; 
and that at this time the defendant rowed his boat up to the opening, 
and the disturbance, and taking of the fish, complained of, took place.- 
The learned Serjeant left to the jurj' the question of fact whether the 
fish were at that time in the plaintiff's possession, and also other ques- 
tions of fact on the other issues. Verdict for plaintiff on all the issues, 
with damages separately assessed ; namely, £568 for the value of the 
fish, and £1 for the damage done to the net. Leave was given to move 
as after mentioned. In Easter term, 1843, Crowder obtained a rule nisi 
for entering a verdict for defendant on all the issues, or on the 2nd, 3rdj 
4th, and 5th, or for reducing the damages to 20s. and entering a ver- 
dict for defendant on the 2nd and 3rd issues ; or for a new trial ; or for 
arresting the judgment. In Hilary vacation (Feb. 10th), 1844, 

Cockhurn and Montague Smith showed cause. 

Crowder, contra. 

Lord Denman, C. J. It does appear almost certain that the plaintiff 
would have had possession of the fish but for the act of the defendant ; 
but it is quite certain that he had not possession. Whatever interpre- 
tation ma}- be put upon such terms as " custodj'" and "possession," the 
question will be whether any custody or possession has been obtained 
here. I think it is impossible to say that it had, until the partj' had 
actual power over the fish. It may be that the defendant acted unjus- 
tifiably in preventing the plaintiff from obtaining such power ; but that 
would only show a wrongful act, for which he might be liable in a proper 
form of action. 

Patteson, J. I do not see how we could support the affirmative of 
these issues upon the present evidence, unless we were prepared to hold 
that all but reducing into possession is the same as reducing into pos- 
session. Whether the plaintiff has any cause of action at all is not 
clear ; possibly there maj- be a remedy under the statutes. 

WiGHTMAN, J. I am of the same opinion. If the property iu the fish 
was vested in the plaintiff by his partially inclosing them, but leaving 
an opening in the nets, he would be entitled to maintain trover for fish 
which escaped through that verj' opening. 

(Coleridge, J., was absent.) 

Rule absolute for reducing the damages to 20s., and entering the 
verdict for defendant on the second and third issues. 


Supreme Court op New York. 1822. 

[Keported 20 Johns. 75.] 

In error, on certiorari to a justice's court. 

Newkirk brought an action of trover against Buster for a deer skin. 
It appeared tliat N. was hunting deer on the 31st of December, 1819, 
and had wounded one, about six miles from B.'s house, which he pur- 
sued with his dogs. He followed the track of the deer, occasionally 
discovering blood, until night ; and on the next morning resumed the 
pursuit, until he came to B.'s house, where the deer had been killed 
the evening before. The deer had been fired at by another person, 
just before he was killed by B., and fell, but rose again, and ran on, 
the dogs being in pursuit, and the plaintiffs dog laid hold of the deer 
about the same time, when B. cut the deer's throat. N. demanded the 
venison and skin of B., who gave him the venison, but refused to let 
him have the skin. The jury found a verdict for the plaintiff for 
seventj'-iive cents, on which the justice gave judgment. 

Per Curiam : The principles decided in the case of Pierson v. 
Post (3 Caines' Rep. 175) are applicable here. The authorities 
cited in that case establish the position that property can be acquired 
in animals ferce naturae by occupancy onlj-, and that in order to con- 
stitute such an occupancy it is sufficient if the animal is deprived of 
his natural liberty, by wounding or otherwise, so that he is brought 
within the power and control of the pursuer. In the present case the 
deer, though wounded, ran six miles ; and the defendant in error had 
abandoned the pursuit that day, and the deer was not deprived of his 
natural liberty, so as to be in the power or under the control of N. 
He therefore cannot be said to have had a property in the animal so 
as to maintain the action. The judgment must be reversed. 

Judgment reversed. 


United States District Court for Massachusetts. 1872. 

[Reported 2 Lowell, 110.] 

Libel by the owners of the ship Hercules against the agent and 
managing owner of the Rainbow, both whale-ships of New Bedford, 
for the value of a whale killed in the Ochotsk Sea by the boats of the 
Hercules, and claimed by the master of the Rainbow, and taken and 


appropriated by him, because one of Ms harpoons, with a line attached 
to it, was found fastened in the animal when he was killed. The evi- 
dence tended to show that the boats of the respondents raised and 
made fast to the whale, but he escaped, dragging the iron and line, and 
so far outran his pursuers that the boats' ci'ews of the Hercules did not 
know that any one had attacked or was pursuing the whale when thej', 
being to windward, met and captured him; that the master of the 
Rainbow was, in fact, pursuing, and came up before the whale had 
rolled over, and said that one of his irons would be found in it, which 
proved to be true ; and he thereupon took the prize. The parties filed 
a written stipulation that witnesses of competent experience would tes- 
tify that, during the whole time of memory of the oldest masters of 
whaling-ships, the usage had been uniform in the whale-fisherj' of Nan- 
tucket and New Bedford that a whale belonged to the' vessel whose 
iron first remained in it, provided claim was made before cutting in. 
There were witnesses on the stand who confirmed the existence of the 
usage, and who extended it to all whalemen in these seas ; and there 
was nothing offered to oppose this testimony. The only disputed 
question of fact or opinion was concerning the reasonable probabUitj' 
that the whale would have been cajptured by the Rainbow if the boats 
of the Hercules had not come up. The A'alue of the whale was said to 
be about $3,000. 
. e/i C. Dodge and C. T. Sonney, for the libellants. 

G. Marston and W. W. Crapo, for the respondent. 

Lowell, J. : The rule of the common law, borrowed probably from 
the Roman law, is that the property in a wild animal is not acquired 
b^- wounding him, but that nothing short of actual and complete pos- 
session will avail. This is recognized in all the cases concerning 
whales cited at the Bar, as well as in the authorities given under the 
first point. Whether the modern civil law has introduced the modifi- 
cation that a fresh pursuit with reasonable prospect of success shall 
give title to the pursuer, does not seem to be whollj' free from doubt, 
though the ancient commentators rejected such a distinction, for the 
satisfactory reason that it would onlj' introduce uncertainty and confu- 
sion into a rule that ought to be clear and unmistakable. See Pan- 
dects, ^3J Pothier, vol. xvi. p. 550 ; Itb. 41, tit. 1 ; Gaius, hy Tompkins 
& Lemon, p. 270. T do not follow up this inquiry, because it would 
be impossible for me to say that the crew represented bj- the respond- 
ent, though continuing the chase, had more than a possibility of 

The decision, therefore, must turn on the validity of the usage, with- 
out regard to the chances of success which the respondent's crew had 
when the others came up. It is not disputed that the whalemen of this 
State, who have for many years past formed, I suppose, a very large 
proportion of all those who follow this dangerous trade in the Arctic 
seas, and perhaps all other Americans, have for a very long time recog- 
nized a custom by which the iron holds the whale, as they express it. 


The converse of the proposition is that a whale which is found adrift, 
though with an iron in it, belongs to the finder, if it can be cut in be- 
fore demand made. The usage of the English and Scotch whalemen in 
the Northern flsher}-, as shown by the cases, is, that the iron holds the 
whale onlj' while the line remains fast to the boat ; and the result is, 
that every loose whale, dead or alive, belongs to the finder or taker, if 
there be but one such. 

The validity of the usage is denied by the libellants, as overturning 
a plain and well-settled rule of property. The cases cited in the argu- 
ment prove a growing disposition on the part of the courts to reject 
local usages when they tend to control or vary an explicit contract or a 
fixed rule of law. Thus Stoi-y, J., in The Heeside, 2 Sumner, 569, 
says, " I own myself no friend to the almost indiscriminate habit of 
late j-ears of setting up particular usages or customs in almost all kinds 
of business and trade, to control, varj', or annul the general liabilities 
of parties under the common law, as well as the commercial law. It 
has long appeared to me that there is no small danger in admitting 
such loose and inconclusive usages and customs, often unknown to 
particular parties, and liable to great misunderstandings and misin- 
terpretations and abuses, to outweigh the well-known and well-settled 
principles of law." Many similar remarks of eminent judges might 
be cited. But in the application of these general views it will be 
found difficult to ascertain what is considered a principle of law that 
cannot be interfered with. Principles of law differ in their impor- 
tance as well as in their origin ; and while some of them represent 
great rules of policy, and are beyond the reach of convention, others 
may be changed b3' parties who choose to contract upon a different 
footing ; and some of them may be varied by usage, which, if general 
and long established, is equivalent to a contract. Thus in Wiggles- 
worth V. Dallison, Doug. 201, which Mr. Smith has selected as a lead- 
ing case, the law gave the crops of an outgoing tenant to his landlord ; 
but the custom which made them the property of the tenant was held 
to be valid. 

The rule of law invoked in this case is one of very limited applica- 
tion. The whale-fisherj' is the only branch of industry of any impoi'- 
tance in which it is likely to be much used ; and if a usage is found to 
prevail generallj' in that business, it will not be open to the objection 
that it is likely to disturb the general understanding of mankind by the 
interposition of an arbitrary exception. Then the application of the 
rule of law itself is very difficult, and the necessity for greater precision 
is apparent. Suppose two or three boats from different ships make 
fast to a whale, how is it to be decided which was the first to kill it? 
Every judge who has dealt with this subject has felt the importance of 
upholding all reasonable usages of the fishermen, in order to prevent dan- 
gerous quarrels in the division of their spoils. In Fennings v. Oren- 
ville, 1 Taunt. 241, evidence was oflfered of a custom in the Southern 
fishery for the contending ships to divide the whale equally between 


tbem. This custom, which differed entire!}' from that prevailing in the 
North Atlantic, was 3'et thought to be not unreasonable. Chambre, J., 
said, "I remember the first case on the usage which was had before 
Lord Mansfield, who was clear that every person was bound by it, and 
who said that were it not for such a custom there would be a sort of 
warfare perpetually subsisting between the adventurers." The case 
went off upon a question of pleading, and the custom was not passed 
upon ; but it is clear that it was thought to be valid. In the other 
cases cited, the usage first above mentioned was found to be valid. In 
the case of Bartlett v. Budd, 1 Lowell, 223, the respondents claimed 
title to a whale by reason of having found it, though it had been not 
only killed, but carefully anchored, by the libellants. I there inti- 
mated a doubt of the reasonableness of a usage in favor of the larceny 
of a whale under such circumstances, and I still think that some parts 
of the asserted usage could hardlj' be maintained. If it were proved 
that one vessel had become fully possessed of a whale, and had after- 
wards lost or left it, with a reasonable hope of recovery, it would seem 
unreasonable that the finder should acquire the title merely because he 
is able to cut in the animal before it is reclaimed. And, on the other 
hand, it would be difficult to admit that the mere presence of an iron 
should be full evidence of property, no matter when or under what cir- 
cumstances it may have been affixed. But the usage being divisible in 
its nature, it seems to me that, so far as it relates to the conduct 
of the men of different vessels in actual pursuit of a whale, and pre- 
scribes that he who first strikes it so effectually that the iron remains 
fast should have the better right, the pursuit still continuing, it is 
reasonable, though merely conventional, and ought to be upheld. In 
Bourne v. Ashley, determined in June, 1863, but not printed, Judge 
Sprague, whose experience in this class of cases was very great, found 
the custom to be established, and decided the cause in favor of the 
libellants, because they owned the first iron, though the whale was 
killed by the crew of the other vessel, or by those of both together. 
Mr. Stetson, of counsel in that case, has kindly furnished me with a 
note of the opinion taken down by him at the time, and I have care- 
fully compared it with the pleadings and depositions on file, and am 
satisfied that the precise point was in judgment. The learned judge is 
reported to have said that the usage for the first iron, whether attached 
to the boat or not, to hold the whale, was fully established, and that 
one witness carried it back to the year 1800. He added, that although 
local usages of a particular port ought not to be allowed to set aside 
the general maritime law, this objection did not apply to a custom 
which embraced an entire business, and had been concurred in for a 
long time by every one engaged in that trade. 

In this case the parties all understood the custom, and the libellants' 
master j'ielded the whale in conformity to it. If the pursuit of the 
Rainbow had been clearly understood in the beginning, no doubt the 
other vessel would not have taken the trouble to join in it, and 

"WRECK. 29 

the usage would have had its appropriate and beneficial effect. In the 
actual circumstances, it is a hard case for the libellants ; but as they 
have not sustained their title, I must dismiss their cause, and, in con- 
sideration of the point being an old one in this court, with costs. 

Ziibel dismissed, with costs. 



WiLKiNS, Leg. Ang.-Sax. 305. — Of "Wreck of the Sea in the time of 
Henry I. and King Stephen. In these daj's (*. e., a. d, 1139, in the 
fourth j'ear of King Stephen), in a very great storm it happened that a 
certain ship loaded with a variety^ of goods from Rumenel, an estate of 
the Archbishop of Canterburj-, was cast in a broken condition on land 
of the Church De Bello in the lathe of Shepway, a part of Wye (the men 
barely escaping) . But it is to be known that this is to be observed for 
law from ancient times on the sea-coasts, that when a ship is broken by 
the waves, if those who escape shall not have repaired her, within the 
required term and time, the ship and whatever shall have come to shore 
shall belong without suit to that land and be held Wreck. But King 
Henry aforesaid, disapproving greatl}' this custom in his time, through- 
out the extent of his realm made an edict that if but one person should 
have escaped alive from the wrecked vessel, he should have all the 
goods. But a new King came in and a new law ; For when he was dead, 
the chief lords of the realm, having overthrown the late edict, adopted 
for themselves the practice which had in ancient times been observed. 
Whence it happened that the men of the lathe of Shepway, according to 
the customs of the sea and the royal dignities, took by force the aforesaid 
Wreck of the Church De Bello. — From the Chronicle of the Monastery 
Be Bello. 

Letter of Hen. II. (1174), 1 Rym. Fced. 36. — We will and firmly 
order for ourselves and our heirs that whenever it maj' happen in 
the future that any ship is cast away within our realm either on the 
coast of England, or on the coast of Picardy, or on the coast of the 
Island of Oleron, or on the coast of Gascony, and from the ship so cast 
awaj- anj' man shall escape alive, and shall come to land, all the goods 
and chattels in that ship contained shall continue and be the property 
of those whose they were before, and shall not be lost to them under 
the name of Wreck. And if from a ship so cast away no man escapes 
alive, but it happens that some other [sic] beast escapes alive, or is 
found alive in that ship, then those goods and chattels, by the hands of 
the bailiffs of ourselves or of our heirs, or by the hands of the bailiffs 

30 WRECK. 

of those on whose land the ship shall have been cast away, shall be 
delivered to four good men, to be kept for the term of three months, so 
that if those whose those chattels were shall within that term come to 
demand those chattels and can prove that the chattels are theirs, then 
they shall be delivered them. But if within the said term no one shall 
come to demand those chattels, then they shaU belong, under the name 
of Wreck, to us and our heirs or to such other person as may have the 
right of having Wreck. And if from that ship so cast away no man or 
other beast shall escape alive, as aforesaid, then the goods and chattels 
in that ship contained shall belong, by the name of Wreck, to us and 
our heirs, or to such other person where the ship was cast awaj', as 
shall have the privilege of having Wreck, as aforesaid. 

Bkact. Lib. 3, c. 3, fol. 120. — And it should be known what can be 
called wreck, that is, derelict, so that if anything (for the sake of light- 
ening a ship) shall have been thrown from the ship by any one, with- 
out the intention of keeping it, or of getting it back, that may properl3'' 
be called wreck, since the thing thrown away may be held for derelict. 
And whether it may be held for derelict may appear by presumptions, — 
as if a book shall have been thrown awaj', whether it is found shut or 
opened, when it could conveniently and well be shut ; and so of like 
things. Again, it may more properlj' be called wreck, if a ship is 
broken up, and from it no one has escaped alive, and especially if the 
owner of the things has been drowned ; and whatever thence comes to 
land from it shall belong to our Lord the King, nor can anj' other person 
claim or have anything of it against our Lord the King, although he pos- 
sesses an estate near the sea-shore, unless he enjoys a special privilege 
to have wreck. And that things of this sort ought to be called wreck is 
true, unless it be that the true owner, coming from elsewhere, by certain 
proofs and signs can show that things are his, — as if a dog is found 
alive, and it can be shown that he is the owner of the dog, it is pre- 
sumed from this that he is the owner of the dog and of the goods. And 
in the same manner if certain marks have been placed on the merchan- 
dise and other things. And what has been said will have effect if the 
things are found on the sea-shore, and the same if near the shore or 
farther off in the sea ; provided, nevertheless, it can in truth be shown 
that they are to be referred [essent appUcandce] to the shore. But if 
they are found in the sea farther off from the shore, so that it cannot be 
proved to what land or district they are to be referred, then whatever 
shall have been so found shall belong to the finder, because it may be 
said to be no man's goods [nullius in boms'], and is called by the sailors 
lagan, and is therefore given to the finder, because there is no one 
who can have any privilege in it, the King no more than a private per- 
son, on account of the uncertain result of the matter. But as to a stur- 
geon, the rule is that the King shall have the whole of it, by reason of 
his prerogative ; but of a whale, it is enough, according to some, if the 
King has its head, and the Queen its tail. 

WRECK. 31 

St. 3 Edw. I. c. 4. — Concerning Wrecks of the sea, it is agreed that 
where a man, a dog, or a cat escape quick out of the ship, that such 
Ship nor Barge, nor any thing within them, shall be adjudged Wreck ; 
(2) but the goods shall be saved and kept by view of the sheriff, coroner, 
or the King's bailiff, and delivered into the hands of such as are of the 
town, where the goods were found ; (3) so that if any sue for those 
goods, and after prove that they were his, or perished in his keep- 
ing, within a year and a daj', they shall be restored to him without 
delay ; and if not, they shall remain to the King, and be seized by the 
sheriffs, coroners, and bailiffs, and shall be delivered to them of the 
town, which shall answer before the Justices of the Wreck belonging 
to the King. (4) And where Wreck belongeth to another than to the 
King, he shall have it in like manner. (5) And he that otherwise doth, 
and thereof be attainted, shall be awarded to prison, and make fine at 
the King's will, and shall yield damages also. (6) And if a Bailiff do 
it, and it be disallowed by the Lord, and the Lord will not pretend any 
title thereunto, the bailiff shall answer, if he have whereof; and if he 
have not whereof, the Lord shall deliver his bailiff's bodj' to the King. 

St. 17 Edw. II. c. 11. — Also he [the King] has wreck of the sea 
throughout the whole realm, whales and sturgeons taken in the sea or 
elsewhere within the realm, certain places privileged by the Kings 

St. 27 Edw. III. o. 13. — Item, we will and grant. That if any mer- 
chant, privy or stranger, be robbed of his goods upon the sea, and the 
goods so robbed come into any parts within our realm and lands, and 
he will sue for to recover the said goods, he shall be received to prove 
the said goods to be his own by his marks, or by his chart or cocket, 
or by good and lawful merchants, privy or strangers. (2) And by 
such proofs the same goods shall be delivered to the merchants, without 
making other suit at the common law. (3) And in case that any ships 
going out of the said realm and lands, or coming to the same, by tem- 
pest or other misfortune, break upon the sea-banks, and the goods come 
to the land, which may not be said wreck, thej'^ shall be presently with- 
out fraud or evil device delivered to the merchants to whom the goods 
be, or to their servants, by such proof as before is said, paying to them 
that have saved and kept the same, convenient for their travel ; that is 
to say, by the discretion of the sheriffs and bailiffs, or other our minis- 
ters in places guildable, where other lords have no franchise, and b}' the 
advice and assent of four or six of the best or most sufficient discreet 
men of the country (4) and if that be within the franchise of other 
lords, then it shall be done by the stewards and bailiff, or wardens of 
the same franchise, and by the advice of four or six discreet men of the 
country, as afore is said, without any delay. 

1 Of the sturgeon it is the rule that the king shall have the whole of it, on account 
of the royal privilege. But' of the whale it is enough if the king has the head, and the 
queen the tail, — Fleta, lib. i. cc. 45, 46. 

32 constable's case. 

King's Bench. 1601. 

[Reported 5 Co. 106 a.] 

Sir Henkt Constable brought an action of trespass against Gam- 
ble, and declared that King Philip and Queen Mary were seised of the 
manor of Holderness in the countj- of York in their demesne as of fee, 
as in right of the crown of England ; and b}' their letters patent 
granted the said manor and fee, with wreck of the sea within the said 
manor and fee, to Henrj-, Earl of Westmorland, in fee, who conveyed 
them to Sir John Constable, father of the plaintiff, whose heir he is, in 
fee ; and further declared that certain goods, soil, twelve shirts and 
five cloaks, were wreck and cast on the land within the manor of Barns- 
ton, which is within the said fee of Holderness, and that the defendant 
took the said goods, &c. The defendant pleaded to issue, and thereupon 
a special verdict was found to this effect, soil, that the conveyance to 
the plaintiff of the manor and fee aforesaid was true as he had declared ; 
and that the said manor of Barnston was within the said fee ; and fur- 
ther that parcel of the said goods were wreck, and cast super arenas 
aqua falsa minime coopertas manerii de £arneston infra fluxum et 
refluxum maris in manerio de Harneston, and for other parcel of the 
goods that they were floating super aquas maris refluentes ex arenis 
ejusd' manerii de Sarnest infra fluxum & refluxum maris, <&c. 
And the defendant took all the said goods and seised them to the use 
of the Lord Admiral, &c. , and assessed damages entirely for all ; and 
si super totam materiam, <jbc. And this case was often well argued at 
bar and bench, and at last judgment was given against the plaintiff. 
And in this case five points were resolved : — 

1. That nothing shall be said wreccum maris, but such goods only 
which are cast or left on the land by the sea ; for wreccum maris sig- 
nificat ilia bona, quae naufragio ad terram appelluntur : flotsam is 
when a ship is sunk, or otherwise perished, and the goods float on the 
sea ; jetsam is when the ship is in danger of being sunk, and to lighten 
the ship the goods are cast into the sea, and afterwards notwithstand- 
ing the ship perish. Lagan (vel potius ligan) is when the goods 
which are so cast into the sea, and afterwards the ship perishes, and 
such goods cast are so heavj' that they sink to the bottom, and the 
mariners, to the intent to have them again, tie to them a buoj", or cork, 
or such other thing that will not sink, so that they may find them 
again, & dicitur lig. a Uganda ; and none of these goods which are 
called jetsatn, flotsam, or ligan, are called wreck so long as they re- 
main in or upon the sea ; but if any of them by the sea be put upon the 

constable's case. 33 

land, then they shall be said wreck. 80 Jlots., jetsam, or ligan, being 
cast on the land, pass by the grant of wreck ; and where it is provided 
by the stat. of 15 R. 2, c. 3, that the Court of Admiralty shall not have 
cognisance or jurisdiction of wreck of the sea, yet it shall have conu- 
sance and jurisdiction of Jlots., jets., and ligan ; for wreck of sea is, 
when the goods are by the sea cast on the land, and so infra comitaf, 
whereof the common law lakes conusance, but the other three are all on 
the sea, and therefore of them the Admiral has jurisdiction. Bracton, 
lib. 3, c. 3, fol. 120. Itein magis proprie did potent wreccum, si 
navis frangatur, <fb ex qua nullus vivus evaserit, <& maximh si domin' 
rerum submersus fuerit, S quicquid inde ad terram (note these 
words) venit, erit domini Regis. And that also appears \)y the Book 
of Entries, fol. 611, 612. Trespass in Wreck. Always when wreck is 
claimed by prescript, (as hy law it may be) the plead, is bona wreccata 
super mare, <& ad terrain project'. And another prescript, is there 
habere omnimod' wreccum maris iiifra prcecinctum manerii, sive dom- 
inii prmd' project , <b flotsam maris infra eund'' prcecinct' devenient ; 
by which the difference between wreck awAflots. appears. Yide 9 E. 
4, 22. Wreck is when it is cast on the land. 11 H. 4, 16 ; E. 3, 3, 
& 29 ; 21 H. 6 ; Prescript. 14 E. 2, in Trespass, 236 ; 5 H. 7, 36 ; (35) 
39 H. 6, 37, & 9 H. 7, 20, ace'. Vide Regist. inf brevia de trans- 
gress. 102 b. the writ saith, Ostensurus quare cum idem Tho. domi- 
nus manerii, de Estombavent existat & ibidem habere debeat, ipseque 
<& antecessores sui dom,ini manerii praced' a tempore quo, <&c. non 
existat memoria, hucusque habere consueverunt lorecc' maris infra 
prcecincf maner' prced', prced' Jbceus <& Robert, bona <fc catalla ad 
valenc' cent solid, apud S. infra prcecinct' ejusd' manerii ad te?-- 
ram project' cb qum ad ipsum Tho. tanquam. wreccum pertinere 
deberent, vi <& armis ceperunt & asportaverunt. Also the stat. of 
15 R. 2, c. 3, proves it also, where it is enacted and declared that 
wreck of the sea shall be tried and determined bj- the laws of the land, 
which cannot be extended to flots., jets., or ligan, for they are in or 
upon the sea, and therefore cahnot be tried and determined bj' the 
common law (for there trial fails), bnt are to be determined before the 

2. In this case it was resolved b}' the whole court that the soil on 
which the sea flows and ebbs : sc. between the high water mark and 
low water mark, may be parcel of the manor of a subject, 16 El. Dy. 
326, b, ace'. And so it was adjudged in Lacy's case, Trin. 25 El. in 
this court. And yet it was resolved that when the sea flows, and has 
plenitudinem, maris, the Admiral shall have jurisdiction of every thing 
done on the water, between the high water mark and low water mark, 
by the ordinary and natural course of the sea ; and so it was ndjudged 
in the said case of Lacy that the felons' committed on the sea ad pleni- 
tud^ maris, between the high water mark and the low water mark, by 
the ordinarj' and natural course of the sea, the Admiral should have 
jurisdiction of; and yet when the sea ebbs, the land may belong to a 

34 constable's case. 

subject, and every thing done on the land when the sea is ebbed shall 
be tried at the common law, for it is then parcel of the county, and 
infra corp' cbmitat\ and therewith agrees 8 E. 4, 19, a. So note that 
below the low water mark the Admiral has the sole and absolute juris- 
diction ; between the high water mark and low water mark, the com- 
mon law and the Admiral have divisum imperium, interchangeablj', as 
is aforesaid, sc. one super aquam, and the other super terrain. And 
Sir J. Popham, Chief Justice, said that on a trial at Nisi Prius between 
the city of Bristol and the Lord Berkelej-, it was held by the Justices 
of Assise that where the Lord Berkelej' had a manor adjoining to the 
Severn, and prescribed to have wreck within his manor, and certain 
goods floated between the high water mark and low water, and the city 
of Bristol had flotsam there, that the said goods were not wreck as 
long as they were floating upon the water between the high water mark 
and low water mark. See the book in 5 E. 3, 3, a, in a replevin 
brought by William de Newport of London against Sir Henry Nevil, 
and declared that the defendant took 3 lasts of herrings, and a ship ; 
the defendant pleaded that he was lord of the manor of Walring, 
and prescribed to have wreck within his manor a tempore cujus, <&c., 
and that the herrings and ship were wreck within his manor. To which 
the plaintiff said that tbej- were our goods in the keep of our mariners 
which arrived bj' the sea, and we say that he took them out of their 
custodj' : judgment if he can claim as wreck? To which the defendant 
said that we took them as wreck, out of all custody ; on which book I 
observe 3 things: 1. That wreck may be claimed bj^ prescription. 
2. That forasmuch as a ship cannot be wreck, sc. cast on the land, but 
between the high water and low water mark, thence it follows that that 
was parcel of the manor. 3. If the ship perishes, 3-et if anj- of the 
servants escape, the law saith that they have the custodj' of the goods, 
and they are not wreck, 39 E. 3, 35, a, b. One prescribed to have 
roj'al fish, as porpes, &c., found within his manor, which seems to be 
between the high water and low water mark. 

3. It was resolved that the King should have flotsam, Jetsam, et 
ligan when the ship perishes, or when the owner of the goods is not 
known, for in 46 E. 3, 15, it appears that goods cast into tlie sea for 
fear of tempest are not forfeited. Vide F. N. B. 112 ; c. 5 E. 3, 33 ; 
9 E. 4, 22, that the ship ought to perish, which is called shipwreck : 
and that is also proved by the said act of West. 1, c. 4, where it is said, 
if a man, dog, or cat escape alive (which is to be intended when the 
ship perishes) ; and therewith agrees Bract, lib. 2, c. 18, fol. 41 : Item 
sine traditione res hdbitapro derelict, uhi dominus statim desinit esse 
dorrH, si autem causa navis alleviandce, non sic, quia non ed voluntate 
ejecit quis, ut desinat esse dom' , <Sbc. And a man maj' have flotsam 
and jetsam by the King's grant, and may have^oisa»2 within the high 
water and low water mark bj- prescription, as appears before. And 
those of the west countrj- prescribe to have wreck in the sea so far as 
they may see a Humber barrel. 

constable's case. 35 

4. It was resolved that the stat. ofWest. 1, c. 4, bj' which it is en- 
acted that of wreck of the sea it is agreed that where a man, a dog, 
or a cat, escape alive out of a ship, that such ship, nor barge, nor any 
thing within them shall be adjudged wreck, but the goods shall be 
saved and kept by view of the Sheriff, Coroner, or King's Bailiff, so 
that if anj' sue for those goods, and after can prove that they were his, 
or perished in his keeping within a year and a day, they shall be re- 
stored to him without delaj^ &c., was but a declaration of the common 
law ; and therefore all that which is provided as to wreck, extends also 
to flots., jetsam, and lagan. Bract., who wrote in the time of H. 3, 
before the making of the said act, speaking of wreck, saith, et quod 
hujusm' did debet wreccum, verum est, nisi sit, quod verus dom' 
aliunde veniens et certa indicia et signa donaverit res esse suas, vt si 
canis vivus inveniat', et constare poterit, quod talis sit dom' illius 
canis prcesumptive, ex hoc ilium esse dom,'' illius canis et illarum, 
rerum ; eodem, m,odo si certa signa im,posita fuerint mercibus : by 
which it appears that the stat. of Westm. 1, which was made 3 E. 1, 
was but a declaration of the common law against the opinion in Dr. 
and Stud. lib. 2, fo. 118, and if the owner dies, his executors or ad- 
ministrators may make their proofs. And in many cases concerning 
time, the common law gives a year and a day for a convenient time ; 
as in the case of a stray, if the owner (proclamation being made) do 
not claim it within a year and a day, it is forfeited. So a j'ear and daj' 
is given in case of appeal, and in a case of descent after entry or claim ; 
of nonclaim on a fine, or writ of right at the common law ; of a villain 
dwelling in ancient demesne ; of the death of a man who has a blow or 
wound ; of protections, essoins of the King's service, and in many 
other cases : and the year and day in case of wreck shall be accounted 
from the taking or seizure of them as wreck ; for although the property 
is in law vested in the lord before seizure, yet until the lord seises, and 
takes it into his actual possession, it is not notorious who claims the 
wreck, nor to whom the owner shall repair to make his claim, and to 
show to him his proofs. And if the wreck belongs to the King, the 
party may have a commission to hear and determine the truth of it, and 
that by the verdict of 12 honourable men, for no proof is allowable 
by law but the verdict of 12 men : and if it belongs to other than 
the King, then if the owner cannot satisfy him who claims them as 
wreck by his mark or cocket, or by the book of customes, or by testi- 
monj- of honest men, then the owner may have such commission or 
bring his action at the common law, and prove it by the verdict of a 
jury ; and if the commission be awarded, or the action be brought 
within the year and day, although the verdict be given for him after- 
wards, it is sufficient. Vide Regist. and F. N. B. 12. For the com- 
mission vide stat. West. 1, c. 4; 4 E. \, de Offic. Coronat; 15 R. 2, 
c. 3 ; 27 E. 3, c. 13 ; Britton, c. 17 ; 33 Stamf. Prcerog. Regis. Et 
nota that the act de Prcerog. Regis made in 17 E. 2, c. 11, enacts, 
Quod Rex haV wrecc. maris per tot regn' <Sbc., is but a declaration 

36 constable's case. 

and an affirmation of the common law. For notwithstanding that stat. 
•being made within time of memory, a man may prescribe to have 
wreck, as appears in 11 H. 4, 16, Stamf. 38 ; F. N. B. 91, d ; 5 H. 7, 
36 ; 5 E. 3, 3, & 59 ; 9 E. 4, 12, &c. 

5. It was resolved in the ease at bar that part of the goods passed 
by the name of wreck, and part of the goods were flotsam and did not 
pass by the grant of wreck, and damages were intirely assessed for all. 
And in trespass the plaintiff shall recover damages onlj- for the value 
of the goods ; wherefore here judgment was given against the plaintiff. 
And the book 21 H. 7, 34, b, was cited, where the case is, that in tres- 
pass the defendant justified as to one thing, arfd pleaded not guilty- to 
another, and thej' were at issue, and the jurj^ inquired of one thing 
onl3-, and taxed the damages for both entirely-. Fineux held the verdict 
good for the thing found, and of that he should have a writ of inquirj' 
of damages. Quod fuit negatu' per tot' cur. Dj-. 22, El. 269, in eject, 
custod. agrees with this judgment. And it was adjudged M. 14 & 15 
El. in this court in trespass b}- Poolej' against Osburn, for breaking his 
close and beating his servant, and doth not saj^ per quod servitium 
amisit, the defendant pleaded not guilty, and the jurors found him 
guilty and assessed damages entirely ; and because the plaintiff had not 
cause of action for beating of his servant, because he had not averred 
that he lost his service, for that cause the plaintiff took nothing by his 
bill. And Catl. then Chief Justice, caused the reason and cause of the 
judgment to be noted in the margent of the record, 9 H. 7, 3, in Rescous 
ace'. And it was adjudged accordingly, M. 30 & 31 El. between More 
and Bedell, in an action on the case on Assumpsit, which began in the 
King's Bench, M. 28 & 29 El. Rot. 476, where the defendant promised 
to do divers things, and the plaintiff alleged two breaches, one whereof 
was insufficient, the defendant pleaded JVbn assumjjsit, the jury gave 
damages generallj-. It was resolved, 1. That it should be intended 
that they gave damages for both. 2. That forasmuch as the plaintiff 
had no cause of damages for the one, for that cause the judgment 
given for the plaintiff in the King's Bench was reversed by a writ of 
error in the Exchequer-chambei'. 

Note, reader, at fii'st the common law gave as well wreck, jetsam, 
flotsam, and lagan upon the sea, as estray (which Bracton calls anima- 
lia vagantia, or as others call them anirnalia vacantia, quia domino 
vacari dehent), treasure-trove, and the like to the King, because by the 
rule of the common law, when no man can claim propertj- in anj' goods, 
the King shall have them by his prerogative. And therefore Bract., 
lib. 3, cap. 3, saith. Sunt alia quoedam quae in nullius bonis esse dicunt', 
sicut wreccum maris grossus piscis, sicut sturgio, et halasna, et alim 
res quae, dominum non hahent, sicut anirnalia vagantia, qum sunt dom. 
Megis propter privUegium. So that it appears by Bracton that the King 
shall have wreck as he shall have great fish, &c., because thej- are nul- 
lius in bonis, or as he shall have anirnalia vagantia, sive vacantia, 
scil. estrays, because none claims the property. And note that wreck 


is estray on the sea coming to land, as estray of beasts is on the land 
coming within any privileged place ; and the law gives in both cases a 
year and a day to claim them. And Bracton in eod' lib. 3, cap. 33, ful. 
(120) 135, saith, Navis, nee batellus, nee alia catalla de his qui sub- 
■mersi sunt mari, nee in salsa nee in dulci aqua, vyreccum erit, cum 
sit qui catalla ilia advocet, ib hoc docere poterit ; and so he properly 
before resembled it to an estray : and if the goods of an infant, feme 
covert, executrix, man in prison or beyond sea, estray and are pro- 
claimed according to the law, if none claim them within the year and the 
day, they shall be all bound. The same law of wreck of sea, for the 
law is strict and binding in both cases ; but it appears by the opinion of 
Bract, and Britt. also, ihaX, flotsam, jetsam, and lagan, so long as they 
are in or upon the sea, do not belong to the King, sed occupanti con- 
cedunf, quia nan est aliquis qui inde privileg' habere possit, Rex non 
m,agis quam, privata persona propter incert' reieventutn {& paulo ante 
reddit inde ration') eo quod constare non possit ad quam regionem 
essent applicanda. And Britton, lib. 1, c. 17, of treasure hid in the 
ground, we will that it be ours ; and if it be found in the sea, be it to 
the finder. But as it appears before by the resolution of the whole 
court, the King shall have flotsam, jetsam, and lagan, as is aforesaid, 
by his prerogative, although they be in or upon the sea ; for the sea is 
of the King's allegiance, and parcel of his crown of England, as it is held 
6 R. 2, Protect. 46, & Britt. c. 33, well agrees with the opinion of 
Bract., sc. that wreck is of a thing in nullius bonis ; for there he saith, 
it is also purchased by franchise granted, by name of a thing found in 
no man's goods, as wreck of sea, and cattle estraying, coneys, hares, 
partridges, and other savage beasts, hy franchise to have wreck found 
in his soil, and waif and straj' found in his fee, warrens, and in his 
demesne lands. 


King's Bench. 1771. 

[Reported, 5 Burr. 2732.] 

A MOTION had been made, last term, for a new trial. The cause had 
been tried before John Morton, Esq., Chief Justice of Chester, and 
Taylor White, Esq., the other judge of that circuit. 

The report of the case and evidence was as follows (it came from 
Mr. Morton) : — 

Robert Hamilton and Thomas Smyth against John Davis. In trover. 
The plaintiffs declare that on December 20, 1770, they were possessed 
of three hogsheads of tallow, value £100. That the goods came into 
the possession of the defendant, which he converted to his own use, — 
to the plaintiff 's damage £100. 

Defendant pleaded " Not guilty." 


The plaintiffs claimed the goods in question as consignees thereof by 
Dennis Moylan of Cork ; and to prove their case they called William 
Jackson, captain of an Irish trading vessel, who knew the vessel called 
the Hill-House, and Captain Penny, the master of her in her last 
voyage in November, 1770. 

Is then shown the following bill of lading ; and proves the name 
William Penny, subscribed thereto, to be the handwriting of the said 
Captain Perrj'. 

The bni of lading read ; and is as follows, viz. : — 

Cork, November 27th, 1770. 

Shipped by Dennis Moylan on the ship Hill-House, Master William 
Penny, and now lying in Cork, bound for Liverpoole, 20 hogsheads of 
tallow, for account and risque as per invoice marked D. M. No. I. A. 
20, of tallow, branded on the head, D. Moylan. 

To be delivered, &c., at the port of Liverpoole, to Messrs. Hamilton 

and Smith. t^r -d 

--. . , , William Penny. 

Weight unknown. 

That the Hill-House sailed from Cork in November or December 
last, and has never since been heard of; and, as he believes, foundered 
and was totaUj- lost. 

John Stokes was next called, who said the plaintiffs were partners 
in Liverpoole on the 9th of December last. 

That he was sent by the plaintiffs to enquire after the ship and goods. 

That he made inquiry for some days in Cheshire, and then returned 
to the plaintiffs, and gave them account of divers of the goods being 
on shore, in the possession of different persons. 

Returned with their orders to demand the goods and a proper 

That all but Davis, the defendant, delivered up the goods on demand, 
on a salvage paid them. 

That he saw in Davis's possession the three hogsheads of tallow, 
branded and marked as in the bill of lading, which Davis refused to 
agree to deliver on the terms the others had done. 

That on the 19th da_y of December he saw Davis at Heylach in com- 
pany with others who had got, in all, ten hogsheads of tallow in their 

That he then made a demand of all, and tendered them five guineas 
for their trouble and salvage. 

Davis refused to deliver his part, which was the three hogsheads 
belonging to the plaintiffs. 

On the next day a second demand was made on Davis ; and if he 
refused the former offer, the witness offered to leave the salvage to be 
settled bj^ any three justices of the peace of Ms own namiijg. 

But Davis absolutely refused to deliver them unless he was com- 
pelled to do it. 

That in pursuance of the order so received from Mr. Smith, one of 


the plaintiffs, he did obtain several other hogsheads of the same mark, 
for the same salvage, as he had offered Davis, and carried them with 
him to Liverpoole, for the plaintiffs. 

He said J. Blundell was with him at the time of the above trans- 

And Blundell, being called, confirmed Stokes's evidence in all par- 
ticulars ; and also proved the value of the tallow to be £30 per hogs- 
head on an average. 

The plaintiff rested his case on this evidence. The defendant called 
no witness, but objected to the plaintiff's right to recover on the case 
he had thus made ; insisting by his counsel. 

First, that it appearing the ship had been totally lost, and that no 
living creature had come alive from the ship to the shore, the ship and 
the goods therein were a wreck, and thereby became the property of 
the crown or its grantee (under whom Davis, the defendant, acted) , by 
and under the provisions of the statute of the 3 Edw. I. c. 4th. 

Secondh', that supposing the plaintiff not to have lost his property 
hj the ship being a wreck, yet under all the circumstances of this case 
the plaintiffs ought not to recover in this action, as they had not shewed 
that they had complied with the requisites either of the statute 27 
Edw. III. c. 13, or of the 12th Ann. c. 18. 

But Mr. Justice White and I were of opinion, under the circum- 
stances of this case, that the plaintiffs were intitled to recover in this 
action if the jury were satisfied with the proof made of their property 
in the goods ; and that they had tendered a reasonable sum for the ex- 
pense of salvage ; and that under the circumstances of this case none 
of the provisions of the statutes, either of the 27th Edw. III., or the 12th 
Ann., were any bar to the plaintiffs having a verdict on the evidence 
he had laid before the jury. 

The jury were satisfied with the proof of the plaintiff's property, and 
that he had tendered a reasonable salvage ; and found a verdict for the 
plaintiff, with damages for £79 8s. &d. 

"We allowed the defendant leave to move for a new trial, without 
costs, in case we were mistaken in our opinion with respect to the 
objections made by the defendant's counsel to the plaintiff's right to 

Mr. Wallace and Mr. Davenport shewed cause, on behalf of the 
plaintiffs, why there ought not to be a new trial. 

Mr. Dunning, Mr. Kenyan, Mr. Atherton, and Mr. Owen argued on 
behalf of the defendant for a new trial. 

Lord Mansfield. There is no sort of doubt concerning the true 
ownership of these goods, which were cast away in a storm and re- 
cently pursued. Everybody else restored to the true owner the pro- 
portions that they had got of them, upon a proper salvage offered ; this 
defendant refused to deliver the share that he had got, being forfeited, 
according to his apprehension, as a wreck, because no live animal came 
ashore. He likewise objects to the plaintiff's recovering, because cer- 


tain forms, •which he says were requisite to be performed, have not, as 
he alledges, been properly performed. 

The first question is "Whether these goods are forfeited." 
Now, no case is produced, either at common law, or on the construc- 
tion of the statute of 3 Edw. I., c. 4, to prove that the goods were for- 
feited because no dog or cat or other animal came alive to shore. I 
will therefore presume that there never was any such determination, 
and that no case could have been determined so contrarj' to the princi- 
ples of law, justice, and humanitj*. The very idea of it is shocking. 
And th.ere is no ground for such a forfeiture upon the distinction that 
has been so much urged, between a man or other animal coming to 
shore alive, or not alive. The coming to shore of a dog or a cat alive 
can be no better proof than if thej"^ should come ashore dead ; the es- 
caping alive makes no sort of difference. If the owner of the dog or 
cat or other animal was known, the presumption of the goods belonging 
to the same person would be equally strong, whether the animal was 
alive or dead. If no owner could be discovered, the goods belonged 
to the king. But there ought to be a reasonable time allowed to the 
owner to come in and claim them ; and it was proper that the time 
should be limited. The old limitation was a year and a day, which 
was the time limited in many other cases. The mode of proof was as 
it might happen. Goods are now generall3' marked ; perhaps in an- 
cient days it might not be so common, or so accurate ; and then a dog 
or cat might be a presumption towards the ascertaining the owner of 
the goods. Bracton, who wrote in the time of H. III., saj's : Magis 
proprie did poterit wreccum, si navis frangatur <&c.; nisi ita sit, quod 
verus dominus aliunde veniens, per certa indicia et signa docuerit res 
esse suasj ut si canis vivus inveniatur dtc; et eodem modo, si certa 
signa apposita fuerint mercicibus et alijs rebus. And Biacton's opin- 
ion has been recognized b3' later wiiters. Lord Coke, in his fifth Re- 
port, 107, saj's that it appears from Bracton that the statute of W. 
I. was but a declaration of the common law ; and cites the same pas- 
sage from Bracton. JEt quod hujusmodi did debet wreccum, verum est, 
nisi sit quod verus dominus aliunde veniens, certa indicia et signa dona- 
verit res esse suas; ut si canis vivus inveniatur, et constare poterit quod 
talis sit dominus illius canis,' presumptive ex hoc, ilium esse dominum 
illius canis et illarum. rerurn; eodem modo, si certa signa imposita fu- 
erint mercibus. Thus it stands at the common law. Then, has the 
statute of 3 Edw. I. c. 4, altered the common law ? No : quite otherwise. 
And this act was made in favour of the owner. It enacts (negatively) 
" That it shall not be wreck, if man, dog, or cat escape alive ; " but it 
has no contrary (positive) provision, " That if neither man, dog, or cat 
&c., escape alive, it shall belong to the king." This statute has been 
recognized as declaratory of the common law. The words of it are : 
"Concerning wreck of the sea, it is agreed that where a man, a dog, 
or a eat escape quick out of the ship, that such ship, nor barge, nor any 
thing within them shall be adjudged wreck ; but the goods shall be 


saved and kept, &c., so that if any sue for those goods, and after 
prove that the3' were his or perished in his keeping, within a year 
and a day, they shall be restored to him without delay ; and if not, 
they shall remain to the king." Lord Coke says that "These three 
instances (of a man, dog, or cat) are put but for examples ; for be- 
sides these two kinds of beasts, all other beasts, fowls, birds, hawks, 
and other living things are understood, whereby the ownership or 
property of the goods may be known." And this is agreeable to the 
charter of King Henry the Second, which includes everj' animal what- 
soever. And this escape of a dog, or cat, or other animal is consid- 
ered as a medium of proof, whereby the ownership or property of the 
goods may be known. If this was a recent statute, it ought to be con- 
strued according to reason and justice. For the court ought not, un- 
less they are absolutely obliged to it, to construe an act of parliament 
directly contrarj' to the plain and clear principles of justice and human- 
ity, — which the construction urged on the part of the defendant in this 
case would undoubtedlj^ be, in the highest degree. But this is a statute 
of very ancient standing, and was declarator}' of the common law (as 
appears from Bracton, who wrote before the making of it) , and has 
been since sufflcientl}' recognized, and no case produced to the con- 
trary, nor anj' authority in point. The other two statutes are out of 
the case ; Vaey do not relate to this matter. Besides, here the defend- 
ant has insisted upon property. I am very clear that the direction was 
right, and that the rule for a new trial ought to be discharged. 

Mr. Justice Aston and Mr. Justice Ashhuest concurred with his 

All the judges present being clear and unanimous, the rule to shew 
cause why there should not be a new trial was discharged. 



1 Bl. Com. 297. — Waifs, bona waviata, are goods stolen, and 
waved or thrown away by the thief in his flight, for fear of being ap- 
prehended. These are given to the king by the law, as a punishment 
upon the owner for not himself pursuing the felon and taking away 
his goods from him. Cro. Eliz. 694. And therefore if the party 
robbed do his diligence immediately to follow and apprehend the thief 
(which is called making fresh suit), or do convict him afterwards, or 
procure evidence to convict him, he shall have his goods again. Finch. 
L. 212. Waved goods do also not belong to the king till seized by 
somebody for his use ; for if the party robbed can seize them first, 
though at the distance of twenty years, the king shall never have them. 


Finch. L. 212. If the goods are hid b^- the thief, or left any where by 
him, so that he had them not about him when he fled, and therefore 
did not throw them awaj' in his flight, these also are not bona waviata, 
but the owner may have them again when he pleases. 5 Rep. 109. 
The goods of a foreign merchant, though stolen and thrown away in 
flight, shall never be waifs (Fitz., Abr., tit. Astray, 1. 3 Bulstr. 19) ; 
the reason whereof may be, not only for the encouragement of trade, 
but also because there is no wilful default in the foreign merchant's not 
pursuing the thief; he being generally a stranger to our laws, our 
usages, and our language. 

Estraj-s are such valuable animals as are found wandering in any 
manor or lordship, and no man Isnoweth the owner of them ; in which 
case the law gives them to the king as the general owner and lord para- 
mount of the soil, in recompense for the damage which they may have 
done therein ; and they now most commonly belong to the lord of the 
manor, by special grant from the crown. But in order to vest an abso- 
lute property in the king, or his grantees, they must be proclaimed in 
the church and two market towns next adjoining to the place where 
they are found ; and then, if no man claims them, after proclamation 
and a jear and a day passed, thej^ belong to the king or his substitute 
without redemption (Mirr. c. 3, § 19), even though the owner were a 
minor, or under any other legal incapacity. 5 Rep. 108. Bro., Abr., 
tit. JEstray. Cro. Eliz. 716. A provision similar to which obtained in 
the old Gothic constitution with regard to all things that were found, 
which were to be thrice proclaimed : primum coram comitibus et via- 
toribus obviis, deinde in proxima villa velpago, postrenio coram eccle- 
sia veljudicio ; and the space of a year was allowed for the owner to 
reclaim his property. Stiernh., Dejur. Gather., 1. 3, c. 5. If the owner 
claims them within the year and day, he must pay the charges of find- 
ing, keeping, and proclaiming them. Dalt. Sh. 79. The king or 
lord has no property till the jxar and day passed ; for if a lord keepeth 
an estray three-quarters of a year, and within the year it strayeth again, 
and another lord getteth it, the first lord cannot take it again. Finch. 
L. 177. An}' beasts may be estrays that are by nature tame or re- 
claimable, and in which there is a valuable propertj-, as sheep, oxen, 
swine, and horses, which we in general call cattle ; and so Fleta (L. 1, 
c. 43) defines them pecus vagans, quod nullus petit, sequitur, vel 
advocat. For animals upon which the law sets no value, as a dog or 
cat, and animals fercB naturae, as a bear or wolf, cannot be considered 
as estrays. So swans may be estrays, but not any other fowl (7 Rep. 
17, 19) ; whence they are said to be royal fowl. The reason of which 
distinction seems to be that cattle and swans being of a reclaimed 
nature, the owner's property in them is not lost merely by their tempo- 
rary escape ; and they also, from their intrinsic value, are a sufficient 
pledge for the expense of the lord of the franchise in keeping them 
the year and daj'. For he that takes an estray is bound, so long as he 
keeps it, to find it in provisions and preserve it from damage (1 Roll- 


Abr. 889) ; and may not use it bj' way of labor, but is liable to an 
action for so doing. Cro. Jac. 147. Yet he may milk a cow, or the 
like ; for that tends to the preservation, and is for the benefit of the 
animal. Cro. Jac. 148. Noy. 119. 

1 Bl. Com. 300. — By this [a deodand] is meant whatever personal 
chattel is the immediate occasion of the death of anj- reasonable creature ; 
which is forfeited to the king, to be applied to pious uses, and distributed 
in alms by his high almoner (1 Hal. P. C. 419. Fleta, 1. 1, c. 25) ; though 
formerlj- destined to a more superstitious purpose. It seems to have 
been originally designed, in the blind days of popery, as an expiation for 
the souls of such as were snatched awaj' by sudden death ; and for that 
purpose ought properly to have been given to holy church (Fitzh., Abr., 
tit. Miditement, pi. 27. Staunf. P. C. 20, 21) ; in the same manner as 
the apparel of a stranger, who was found dead, was applied to purchase 
masses for the good of his soul. And this may account for that rule of 
law, that no deodand is due where an infant under the age of discretion 
is killed by a fall /rom a cart, or horse, or the like, not being in motion, 
(3 Inst. 57. 1 Hal. P. C. 422) ; whereas, if an adult person falls from 
thence and is killed, the thing is certainly forfeited. For the reason 
given by Sir Matthew Hale seems to be very inadequate, viz., be- 
cause an infant is not able to take care of himself; for why should the 
owner save his forfeiture, on account of the imbecility of the child, 
which ought rather to have made him more cautious to prevent any 
accident of mischief? The true ground of this rule seems rather to 
have been, that the child, by reason of its want of discretion, was pre- 
sumed incapable of actual sin, and therefore needed no deodand to pur- 
chase propitiatory masses ; but every adult, who died in actual sin, 
stood in need of such atonement, according to the humane superstition 
of the founders of the English law. 

Thus stands the law if a person be killed bj- a fall from a thing stand- 
ing still. But if a horse, or ox, or other animal, of his own motion, 
kill as well an infant as an adult, or if a cart run over him, they shall 
in either case be forfeited as deodands ; ' which is grounded upon this 
additional reason, that such misfortunes are in part owing to the negli- 
gence of the owner, and therefore he is properly punished by such for- 
feiture. A like punishment is in like cases inflicted by the Mosaical 
law (Exod. xxi. 28) : "If an ox gore a man that he die, the ox shall 
be stoned, and his flesh shall not be eaten." And, among the Athe- 
nians,^ whatever was the cause of a man's death, by falling upon him, 
was exterminated or cast out of the dominions of the republic. Where 
a thing not in motion is the occasion of a man's death, that part only 
which is the immediate cause is forfeited ; as if a man be climbing up 
the wheel of a cart, and is killed by falling from it, the wheel alone is a 

1 Omnia, qttce movent ad mortem, sunt Deo danda.^ Braotoii, 1. 3, c. 5. 

2 ^schin. emit. OteHph. Thus too ty our ancient law a well in which a person was 
drowned was ordered to be filled up, under the inspection of the coroner. Flet., 1. 1, 
c. 25, § 10; litzh., Abr., t. corone, 416. 


deodand (1 Hal. P. C. 422) ; but, wherever the thing is in motion, 
not onljr that part which immediately gives the wound (as the wheel, 
which runs over his body) , but all things which move with it and help 
to make the wound more dangerous (as the cart and loading, which in- 
crease the pressure of the wheel) are forfeited. 1 Hawk. P. C. c. 26. 
It matters not whether the owner were concerned in the killing or not ; 
for if a man kills another with my sword, the sword is forfeited^ as an 
accursed thing. Dr. and St., d. 2, c. 51. And therefore, in all indict- 
ments for homicide, the instrument of death and the value are presented 
and found by the grand jury (as, that the stroke was given by a cer- 
tain penknife, value sixpence), that the king or his grantee may claim 
the deodand ; for it is no deodand, unless it be presented as such by a 
jury of twelve men. 3 Inst. 57. No deodands are due for accidents 
happening upon the high sea, that being out of the jurisdiction of the 
common law ; but if a man falls from a boat or ship in fresh water, and 
is drowned, it hath been said, that the vessel and cargo are in strictness 
of law a deodand. 3 Inst. 58. 1 Hal. P. C. 423. Molloy, de Jur. 
Maritim. 2, 226. But juries have of late very frequently taken upon 
themselves to mitigate these forfeitures, bj- finding only some trifling 
thing, or part of an entire thing, to have been the occasion of the 
death. And in such cases, although the finding hy the jury be hardly 
warrantable hy law, the court of King's Bench hath generally refused to 
interfere on behalf of the lord of the franchise, to assist so unequitable 
a claim. Foster of Homicide, 266.^^ 

1 A similar rule obtained among the ancient Goths : Si quis, me nesciente, quocun- 
que meo tela vel instrumento in pemiciem suam ahutatur ; vel ex adihis meis cadat, vel 
ineidat in puteum meum, quantumvis tectum et inunituvi, vel in eataractain, et sub 
molendino meo confringatur, ipse aliqua mulcta pledar ; ui in parte infelicitatis mecB 
numeretur, hahuisse vel cedificasse aliquod quo homo periret. Stiernhook dejure Ooth. 
1. 3, 0. 4. 

2 See Stimson, Am. Statute Law, §§ 145, 1162. —Ed. 





King's Bench, 1680. 

[Eeported 2 Show. 232.] 

Trover brought for a ship and goods, and on a special verdict there 
is found a sentence in the admiralty court in France, which was with 
the defendant. 

And now per Curiam agreed and adjudged, that as we are to take 
notice of a sentence in the admiraltj' here, see LadbroJce v. Crickett, 2 
Term Eep. 649, so ought we of those abroad in other nations, and we 
must not set them at large again, for otherwise the merchants would be 
in a pleasant condition ; for suppose a decree here in the Exchequer, 
and the goods happen to be carried into another nation, should the 
courts abroad unravel this ? It is but agreeable with the law of nations 
that we should take notice and approve of the laws of their countries in 
such particulars. If you are aggrieved, you must apply yourself to 
the king and council ; it being a matter of government, he will recom- 
mend it to his liege ambassador if he see cause ; and if not remedied, he 
may grant letters of marque and reprisal. 

And this case was so resolved by all the court upon solemn debate ; 
this being of an English ship taken by the French, and as a Dutch ship 
in time of war between the Dutch and the French.' 

Judgment for the defendants. 

, 1 The special verdict was, that one William Gault, a denizen of England, was owner 
of the ship at the time she was taken ; that the master of the ship was a native of Hol- 
land, but made a denizen of England ; that two of the sailors were Dutchmen, and the 
mate, with the eight other mariners, Englishmen ; that the ship was Dutch-built, and 
taken during the war between Holland and France, and condemned as a Dutch prize in 
the court of admiralty in France, and sold to the plaintiff Hughes under that sentence ; 
and that on her arrival in England, the defendant Cornelius and others, as the servants 
of William Gault, took and converted the ship to their own use. s. o. Raym. 473. 
The sentence of the admiralty was produced under seal. 2 Ld. Eaym. 893. But the 
court would not suffer this verdict to be argued, but ordered judgment to be entered 
for the plaintiff; for sentence in a court of admiralty ought to bind generally, accord- 
ing to jtia gentium, s. c. Skinner, 59, although the facts found by the special verdict 
were contrary to, and falsified the sentence in, the admiralty court, s. o. cited by 
Holt, C. J., who was connsel for the plaintiff, 2 Ld. Eaym. 893, for the property is 
thereby altered, though the sentence be unjust, s. c. cited Ewer v, Jones, 2 Ld. 
Raym. 936. Cartb, 225. 9 Mod. 66. Bull. N. P. 244, 245. It has, however, been 
determined that a sentence of condemnation in a foreign court of admiralty is not con- 
clusive evidence that a ship was not neutral, unless it appear that the condemnation 
went upon that ground, Bernarde v. Motteux, Dougl. 54 ; but such a sentence is 
conclusive as to every thing thai appears on the face of it, Barzillay v. Lewis, Park. 



Supreme Court op Vermont. 1846. 
[Reported 18 Vt. 390.] 

Trespass for taking a shearing machine. The case was submitted 
upon a statement of facts, agreed to by the parties, from which it 
appeared, that in 1836 the defendant, being the owner of the machine 
in question, lent it to one Freeman, to use in his business as a clothier, 
who was to pay a yearly rent therefor, and in whose possession it 
remained until the year 1841, when it was sold at sheriff's sale, on ex- 
ecution, as the propertj' of Freeman, and one Richmond became the 
purchaser; that Richmond, in January, 1842, sold the machine to the 
plaintiff, who at the same time purchased of Freeman the building, in 
which the machine was situated, and took possession thereof; and that 
the defendant, in Februarj', 1842, took the machine from the plaintiff's 
possession, claiming it as his property. The value of the machine was 
admitted to be fifty dollars. 

Upon these facts the county court, — Hebard, J., presiding, — 
rendered judgment for the defendant. Exceptions \>y plaintiff. 

Ins. 359 ; so, where no special ground is stated in the sentence, but the ship is con- 
demned generally as good and lawful prize, Saloucci v. Woodhouse, Park. 362 ; unless 
manifestly, upon the face of it, against law and justice, Saloucd v. Johnston, Park. 
Ins. 364 ; or contradictory to itself, Mayne v. Walter, Park. 363. And see the case of 
Burton v. Fitzgerald, Stra. 1078. — Note by Thomas Leach. 

Note. — " When a tribunal, no matter whether in England or a foreign country, has 
to determine between two parties, and between them only, the decision of that tribunal, 
though in general binding between the parties and privies, does not affect the rights of 
thifd parties ; and if in execution of the judgment of such a tribunal process issues 
against the property of one of the litigants, and some particular thing is sold as being 
his property, there is nothing to pi'event any third person setting up his claim to that 
thing, for the tribunal neither had jurisdiction to determine, nor did determine, any- 
thing more than that the litigant's property should be sold, and did not do more than sell 
the litigant's interest, if any, in the thing. All proceedings in the courts of common 
law in England are of this nature, and it is every day's experience that where the 
sheriff, under Sl fieri facias against A, has sold a particular chattel, B may set up his 
claim to that chattel either against the sheriff or the purchaser from the sheriff. And 
if this may be done in the courts of the country in which the judgment was pronounced, 
it follows, of course, that it may be done in a foreign country. But when the tribunal 
has juiisdiction to determine not merely on the rights of the parties, but also on the 
disposition of the thing, and does in the exercise of that jurisdiction direct that the 
thing, and not merely the interest of any particular party in it, be sold or transferred, 
the case is very different. 

"It is not essential that there should be an actual adjudication on the status of the 
thing. Our courts of admiralty, when property is attached and in their hands, on a 
proper case being shown that it is perishable, order that it shall be sold and the 
proceeds paid into court to abide the event of the litigation. It is almost essential to 
justice that such a power should exist in every case where property, at all events perish- 
able property, is detained." Per Blackburn, J., in Castrique v. /mm, L. R. 4 H. L. 
414, 427, 428 (1870). 

See Megee v. Beime, 39 Pa. 50. 


Tracy and Converse, for plaintiff. 

J". S. J/arcy, for defendant. 

The opinion of the court was delivered by 

Redfield, J. The onlj- question reserved in this case is, whether 
a title to personal property, acquired by purchase at sheriff's sale, is 
absolute and indefeasible against all the world, or whether such sale 
onh' conveys the title of the debtor. 

There has long been an opinion, very general, I think, in this state, 
not only among the profession, but the people, that a purchaser at 
sheriff's sale acquires a good title, without reference to that of the 
debtor, that such a sale, like one in market overt in England, conveys 
an absolute title. But, upon examination, I am satisfied that this 
opinion acts upon no good basis. 

So far as can now be ascertained, this opinion, in this state, rests 
mainly upon a dictum in the case of Heacock v. Walher, 1 Tyl. 338. 
There are many reasons, why this dictum should not be regarded, if 
the matter were strictl}' res integra. It was a declaration of the chief 
justice in charging the jury. Cases were then tried by the jury at the 
bar of this court, as matter of right, and in course, and before the law 
of the case had been discussed and settled bj' the court. In all these 
respects these trials differed essentially from jury trials at the bar of 
the higher courts in Westminster Hall. Such trials, there, being only 
matter of favor, granted in the most important cases, and after the law 
of the cases has been fullv discussed, and settled by the court. 

The law given to the jurj-, in the two cases, will of course partake 
something of the character of the respective form and deliberation of 
the trials. Under our former practice, law laid down in the course of 
a jury trial, unless when questions were reserved and farther discussed 
upon motions for new trials, was not much esteemed, even when it was 
upon the very point in dispute. But especially, the dicta of the judge, 
who tried the, and who must, of necessity, somewhat amplify the 
bare text of the law, in order to show the jury the reason upon which 
it was based, could not be esteemed, as any thing more than the hastilj' 
formed opinion of. the judge — mere argument, to satisfy some possible, 
or apprehended, doubt of the jury in regard to the soundness of the 
main proposition laid down. Such was the dictum referred to. That, 
which was said of Chief Justice Tilghman, of Pennsylvania, is undoubt- 
edlj' good praise, when said of any judge ; — "He made no dicta, and 
he regarded none." There are sufficient reasons, whj' the dictum 
should not be regarded, if the thing were new. And we do not esteem 
the long standing of the dictum of any importance, unless it can be 
shown, that it has thus grown into a generally received and established 
law, or usage ; which, we think, is not the case in regard to this. For 
this court has, within the last ten j'ears, repeatedly held, that a sheriff's 
sale was of no validity to pass any but the title of the debtor, when no 
actual delivery of the thing sold loas made by the sheriff, at the time 
of sale. Austin v. Tilden et al , 14 Yt. 325; Boynton v. Kelsey, 


Caledonia County, 1836; s. p. Lamoille Countj', 1841. Since the 
first of these cases was decided, the main question, involved in this 
case, has been considered doubtful in this state, and we now feel at 
liberty to decide it, as we think the law should be, that is, as it is 
settled at common law. 

But the idea, that some analogy existed between a sheriff's sale and 
a sale in market overt is certainly not peculiar to the late Chief Justice 
Tyler. This opinion seems at one time to have prevailed in Westmin- 
ster Hall, to some extent, at least ; for in the case of Farrant v. 
Thompson, 5 B. & A. 826, which was decided in the King's Bench 
in 1822, nearly twenty years later than that of Seacock v. Walker, 
one of the points raised in the trial of the case before Chief Justice 
Abbott was, that the title of the purchaser, being acquired at sheriff's 
sale, was good against all the world, the same as that of a purchaser 
in market overt. This point was overruled, and a verdict passed for 
the plaintiff, but with leave to move to set it aside, and to enter a 
nonsuit, upon this same ground, with one other. This point was ex- 
pressly argued by Sir James Scarlett, — who was certainly one of the 
most eminent counsel, and one of the most discriminating men of 
modern times, — in the King's Bench, and was decided by the court 
not to be well taken. Since that time I do not find, that the question 
has been raised there. 

It seems to be considered in Massachusetts, and in New York, and 
in many of the other states, that nothing analogous to markets overt 
in England, exists in this countrj-. Dame v. Baldwin, 8 Mass. 518 ; 
Wheelwright v. DePeyster, 1 Johns. 480 ; 2 Kent, 324, and cases 
there cited. Nothing of that kind, surelj', exists in this state, unless 
it be a sheriff's sale. And if the practice of holding sales in market 
overt conclusive upon the title existed in anj^ of the states, it would be 
readily known. I conclude, therefore, that Chancellor Kent is well 
founded in his opinion, when he aflJrms, that the law of markets overt 
does not exist in this countr}'. lb. 

It seems probable to me, that the idea of the conclusiveness of a 
sheriff's sale upon the title is derived from the effect of sales under 
condemnations in the exchequer, for violations of the excise or revenue 
laws, and sales in prize cases, in the Admiraltj' courts, either provis- 
ionallj', or after condemnation. But these cases bear but a slight 
analogy to sheriff's sales in this country, or in England. Those sales 
are strictly judicial, and are merely' canning into specific execution a 
decree of the court in rem,, which, by universal consent, binds the 
whole world. 

Something very similar to this exists, in practice, in those countries, 
which are governed by the civil law ; which is the fact in one of the 
American states, and in the provinces of Canada, and in most, if not 
all, the continental states of Europe. The property, or what is claimed 
to be the property, of the debtor is seized and libelled for sale, and 
a general monition served, notifying all having adversary claims to 


interpose them before the court, by a certain day limited. In this 
respect the proceedings are similar to proceedings in prize courts, and 
in all other courts proceeding in rem. If no claim is interposed, the 
property is condemned, by default, and sold ; if such claims are made 
they are contested, and settled by the judgment of the court, and the 
rights of property in the thing are thus conclusively settled before the 

But with us nothing of this character exists in regard to sheriff's 
sales. Even the right to summon a jury to inquire into conflicting 
claims de bene esse, as it is called in England, and in the American 
states, where it exists, has never been resorted to in this state. And 
in England, where such a proceeding is common, — Impey, 153 ; Dal- 
ton, 146 ; Farr et al. v. Newman et al., i T. R. 621, — it does not 
avail the sheriff, even, except to excuse him from exemplary damages. 
Latkow V. Earner, 2 H. Bl. 437 ; Glassop v. Poole, 3 M. & S. 175. 
It is plain, then, that a sheriff's sale is not a judicial sale. If it were, 
no action could be brought against the sheriff, for selling upon execu- 
tion property not belonging to the debtor. 

With us an execution is defined to be the putting one in possession 
of that, which he has already acquired bj- judgment of law. Co. Lit. 
154 a. (Thomas' Ed. 405.) But the judgment is of a sum in gross 
"to be levied of the goods and chattels of the debtor," which the 
sheriff is to find at his peril. The sale upon the execution is onlj' a 
transfer, by operation of law, of what the debtor might himself trans- 
fer. It is a principle of the law of property, as old as the Institutes 
of Justinian, Ut nemo plus juris in alium transferre potest, quam 
ipse habet. 

The comparison of sheriff's sales to the sale of goods lost, or estrays, 
in pursuance of statutory provisions, which exist in many of the states, 
does not, in my opinion, at all hold good. Those sales undoubtedly 
transfer the title to the thing, as against all claims of antecedent 
property in any one, if the statutory provisions are strictly complied 
with ; but that is in the nature of a forfeiture, and is strictlj' a proceed- 
ing in rem, wherein the finder of the lost goods is constituted the 
tribunal of condemnation. 

There being, then, no ground, upon which we think we shall be justi- 
fied in giving to a sheriff's sale the effect to convey to the purchaser 
any greater title, than that of the debtor, the judgment of the court 
below is affirmed. 





Newgate Sessions. 1595. 

[Eeported 5 Co. 83 6.] 

At the sessions of Newgate now last past, it was resolved by 
Popham, Chief Justice of England, Anderson, Chief Justice of the 
Common Pleas, Sir Thomas Egerton, Master of the Rolls, the At- 
torney-General, and the court, that if plate be stolen and sold openly 
in a scrivener's shop on the market-day (as every day is a market-day 
in London except Sundaj') that tliis sale should not change the prop- 
erty, but the party should have restitution ; for a scrivener's shop is 
not a market-overt for plate ; for none would search there for such a 
thing; & sicde similibus, <S>c. But if the sale had been openlj- in a 
goldsmith's shop in London, so that an}- one who stood or passed bj'' 
the shop might see it, there it would change the property. But if 
the sale be in the shop of a goldsmith, either beliind a hanging, or 
behind a cupboard upon which his plate stands, so that one that stood 
or passed by the shop could not see it, it would not change the prop- 
erty : so if the sale be not in the shop, but in the warehouse, or other 
place of the house, it would not change the property, for that is not in 
market-overt, and none would search there for his goods. So every shop 
in London is a market-overt for such things only which, by the trade 
of the owner, are put there to sale ; and when I was Recorder of 
London, I certified the custom of London accordingly. Note, reader, 
the reason of this case extends to all markets-overt in England.^ 



Supreme Court of the United States. 1809. 

[RepoHed. 5 Or. 358.] 

Error to the circuit court for the District of Columbia, sitting at 
Alexandria, in an action of trespass brought by Chapman against 

^ In the TJnited States there are no markets-overt, Dame v. Baldwin, 8 Mass. 
518, 521 ; Griffith v. FowUr, 18 Vt. 390. 


Brent, marshal of the District of Columbia, for taking in execution, 
on a.Ji.fa. against the estate of Robert Alexander, deceased, a slave 
named Ben, who was claimed bj' Chapman as his property. 

The jury found a verdict for the plaintiff, subject to the opinion of 
the court upon a statement of facts agreed by the parties, which was 
in substance as follows : — 

The slave was the property, and in possession of the late Robert 
Alexander the elder, at the time of his death. His sons, Robert 
Alexander, and Walter S. Alexander, were named execiitors of his 
will, but never qualified as such. On the 17th of December, 1803, 
Walter S. Alexander took out letters of administration with the will 
annexed. No division was ever made, by the order of any court, of 
the personal estate of the deceased among his representatives ; but 
previous to August, 1800, a parol division of the slaves was made 
between Robert Alexander the younger, and his brother, Walter S. 
Alexander, the latter being then under the age of twenty-one years. 
Robert Alexander the younger being possessed of the slave, and 
being taken upon an execution for a debt or debts due from himself 
in his individual character, in August, 1800, took the oath of insol- 
vency under the laws of Virginia, and delivered up to the sheriff of 
Fairfax count}' in that state, the slave as a part of his property in- 
cluded in his schedule. The sheriff sold him at public sale, and the 
plaintiff, knowing the slave to belong to the estate of the deceased 
Robert Alexander as aforesaid, became the purchaser for a valuable 
consideration, and took possession of the slave, and continued pos- 
sessed of him under the sale and purchase until Jul}', 1806. The 
plaintiff in the winter usualh' resided in Marj'land, and in the summer 
in Virginia on his farm where he kept the slave, and has never 
resided in the District of Columbia. 

Dunlop & Co. obtained judgment against Robert Alexander the 
younger, as executor of his father, Robert Alexander, and upon a 
fieri facias issued upon that judgment, the marshal seized and took 
the slave as part of the estate of the testator, Robert Alexander, there 
being no other property belonging to his estate in the couutj' which 
could have been levied except what Robert Alexander the younger 
had sold and disposed of for the purpose of paying his own debts. 
The agent of the creditors, Dunlop & Co., as well as the marshal, had 
notice, prior to the sale, that the plaintiff claimed the slave. 

Upon this state of the case the court below rendered judgment for 
the plaintiff according to the verdict. And the defendant brought his 
writ of error. 

C. Lee, for the plaintiff in error, contended that, under the circum- 
stances of this case, five years' possession did not give a good title to 
Chapman. The possession was not adverse, for there was no adminis- 
tration upon the estate of Robert Alexander, senior, consequently no 
person legally competent to claim the possession. Besides, Chapman 
knew that the slave belonged to the estate of the testator. 


This debt was a legal lien on the slave. 

Robert Alexander, jun., could only transfer his right to the sheriff of 
Fairfax. The goods of the testator cannot be taken in execution for 
the debt of the executor. Farr v. JVewman, 4 T. R. 625. Chapman 
could therefore only purchase the right of Robert Alexander, jun. , in 
the slave. 

The parol partition was void for the infancy of one of the parties. 
There was no executor qualified to assent to the legacj'. By the law 
of Virginia an executor cannot act until he has given bond. Fenwick 
V. Sears, 1 Cranch, 259 ; Ramsay v. Dixon, 3 Cranch, 319. 

It is verj' doubtful whether five years' possession of a slave in 
Virginia is itself a good title for a plaintiff. It may protect the pos- 
session of a defendant ; and that is the only effect of the statute. 

Swann, contra. 

Robert Alexander the younger did not hold the slave as executor of 
his father's will, but under the legacy. 

It is immaterial whether Chapman did or did not know that the 
slave belonged to the estate of the testator. Five years' possession by 
Chapman was a good title against all the world. 

In England twenty years' possession is a good bar in ejectment, 
and it is also a good positive title in itself, upon which an ejectment 
may be maintained. 

Marshall, Ch. J. Can an executor distribute the estate before he 
has qualified and obtained letters testamentary? 

Livingston, J. In England, an executor, before probate, can do 
everything but declare. 

Washington, J., mentioned the case of Burnley v. Lamhert, 1 
Wash. 308, in which it was decided by the Court of Appeals of 
Virginia that "after the assent of the executor, the legal property is 
completely vested in the legatee, and cannot be devested by the 

March 13. 

Marshall, Ch. J., delivered the opinion of the court to the following 
effect : — 

This court is of opinion that the possession of Chapman was a bar 
to the seizure of the slave b^- the marshal under the execution stated 
in this case. The only objection of any weight was, that there was 
no administration upon the estate of Robert Alexander, sen., and 
consequently, that the possession of Chapman was not an adverse 

But there was an executor competent to assent, and who did assent, 
to the legacy, and to the partition between the legatees, and who could 
not afterwards refuse to execute the wiU. Judgment affirmed. 



Supreme Court of Alabama, 1856. 

{Reported 29 Ala. 423.] 

Appeal from the chancery court of Dallas. 

Heard before the Hon. James B. Clark. 

The case made by the record may be thus stated : In December, 
1831, Simmons Harrison, of the county of Jones in North Carolina, 
there executed a deed of gift, conveying certain slaves to one William 
H. Green, his heirs, executors, and administrators, in trust for the sole 
and separate use, benefit, and behoof of Mrs. Mary R. Bush, who was 
the daughter of said Harrison and the wife of Nathan B. Bush, during 
her life ; and after her death, for the use, benefit, and behoof of her 
children by the said Nathan B. Bush, and their heirs forever. Soon 
after the execution of this deed. Bush and his wife removed to this 
State, and brought with them the slaves conveyed by the deed. Mrs. 
Bush died in 1837, leaving three children, Holland, Mary, and Penelope. 
The slaves remained in the possession of said Nathan B. Bush until his 
death which happened in 1844, at which time he had acquired several 
others by his industry and economy, and by the services of the slaves 
convej'^ed by the deed. By his last will and testament, which was duly 
admitted to probate, and of which one Alexander Sledge was the 
executor, said Bush bequeathed all the slaves then in his possession, 
including those conveyed by the deed, with the increase of the females, 
to his three daughters, but not in equal portions — the bequest to Pe- 
nelope being larger than the others. The executor proved the will, took 
possession of all the property, proceeded to a settlement of the estate, 
and delivered the slaves to the respective legatees. After the death of 
said Bush, his daughter Holland married Frederic B. Br3-an ; Mary 
married Thomas J. McQueen ; and Penelope, the j-oungest, married 
Samuel "W. Weems. In August, 1850, Mrs. Weems died, having be- 
queathed all her property to her said husband, who afterwards proved 
her will, and took possession of all her slaves and other property. 

In December, 1850, Mr. and Mrs. Brj-an, with Marj^ Bush, who was 
then unmarried, filed their bill against said Green, Weems and Sledge ; 
alleging their ignorance of the deed from Simmons Harrison until a 
short time previous to the filing of the bill ; and asking that the said 
Sledge, as executor of Bush, might be made to account for the hire and 
services of the slaves during the life of his testator, and that the slaves 
might be divided between Mrs. Bryan and Mrs. McQueen. 

The defendant Weems answered the bill, demurring for want of 
equity, and setting up the statute of limitations in defense of the suit. 
The answer also contains other matter, which is not deemed material. 

On final hearing, the chancellor held the statute of limitations a bar 


to the relief sought, and therefore dismissed the bill ; and his decree is 
now assigned as error. 

Wm. M. £yrd, for the appellants. 

A. H. Manning, contra. 

Stone, J. We are fully satisfied with the views of the chancellor, 
and the result which he attains on all the points necessary to a decision 
of this case. 

1. However the rule might be, if the trustee in this case were ap- 
pointed by will (Hill on Trustees, 239) , his estate and interest did not 
terminate with the life of Mrs. Bush. The deed of Simmons Harrison 
conveyed the property to the trustee, " his heirs, executors, and ad- 
ministrators," . . . "in trust and for the following uses, interests, 
and purposes ; viz., in trust and for the separate and exclusive use and 
benefit of the said Mary R. Bush during her natural life, and in no wise 
or manner to be subject or liable to or for the contracts or debts of the 
said husband, Nathan B. Bush ; and after her death, for the use, benefit 
and behoof of the children of the said Mary E. Bush by her present 
husband, the said Nathan B. Bush, and their heirs forever." There are 
no words in this deed, indicating an intention that the estate in fee, which 
the deed creates in the trustee, shall be cut down into a less estate. 
The estate of the trustee continued after the death of both Mrs. and Mr. 
Bush. Wykhani v. WyJcham, 18 Vesey, 395 ; Coleman v. Tindall, 
Y. & J. 605 ; Jones v. Strong, 6 Ired. 367 ; Murritt v. Wendley, 3 Dev. 
399 ; Martin v. Prage, 4 B. Monroe, 524 ; Fry v. Smith, 2 Dana, 38. 

Our own decisions are not in conflict with this. In Smith v. Mud- 
dle, 15 Ala. 28, the deed directed that at the death of the said Elizabeth 
H., the property, both I'eal and personal, was to go to and be equally- 
divided between the children. Elizabeth H. was dead ; and of course 
the estate of the trustee was an end. 

In Comliy v. McMichael, 19 Ala. 747, the deed directed the trustee 
to " convey the property to such of the issue " of the cestui que trust, 
as should be living at her death. Mrs. McMichael was dead ; and Ch. 
J. Dargan held, that the legal title of the trustee had determined, because 
the deed clearly contemplated that result. 

Couthway v. Berghaus, 25 Ala. 393-406, simply decides that a ten- 
der in that case to the cestui que trust was sufficient. The trustee lived 
out of the State, and was a mere naked trustee without interest. The 
cestui que trust had himself made the purchase of the property, taking 
the title in the name of his sister ; while he, the beneficiary, was in 
possession of the property, receiving the rents and profits. The court 
rightly held, that the money was due to Berghaus, and that the tender 
to him was sufllcient. 

2. While Mr. Bush held the possession of the slaves, he must be re- 
garded as holding in subordination to the title of the trustee. His de- 
clarations to Mr. Green, and to Mr. Whitfield, shortly before his death, 
would establish this proposition, if it needed confirmation. A short 
time before the death of Mr. Bush, he expressed to the trustee an inch- 


nation and wish to make a will, and to make more ample provision for 
Penelope, who afterwards mari'ied Mr. Weems ; speaking of her as his 
" poor afHicted daughter." The testimony of Mr. Gi'een, the trustee, 
who was examined as a witness, satisfies us that he, Green, knew of the 
making of a will by Bush, and its " general character," before such will 
was admitted to probate. This was, at least, enough to put him on in- 
quiry ; and is equivalent to notice. Smith v. Zurcher, 9 Ala. 208, and 
authorities cited. The bill, after stating that Mr. Bush executed his 
will and died in June, 1844, proceeds as follows : " Whereupon Alex- 
ander Sledge, the executor named in said will, caused the same to be 
duly admitted to probate in the Orphans' Court of said county ; obtained 
letters testamentary upon said estate, from the same court ; undertook 
the execution of said will, and possessed himself as such executor as 
aforesaid of all the slaves and other personal property mentioned there- 
in." The will mentions all the slaves in controversy, except some chil- 
dren born since the probate, of females bequeathed by the will ; a part 
of which children are with their mothers in the possession of each lega- 
tee. The answer admits these averments, but states that the executor 
possessed himself of the property before the will was probated. These 
several facts constituted the executor an adverse holder, from and after 
the probate of the wiU, and possession of the propertj- under it by him. 
From that time the statute commenced running against Green, the 
trustee. Findley v. Patterson, 2 B. Monroe, 76; Den, ex dem., 
V. Shanhlin, 4 Dev. & Bat. Law, 289. 

3. Between the time of the probate of the will of Mr. Bush, and the 
commencement of this suit, more than six years elapsed. The trustee 
was then barred of his action of detinue. The rule is certainly well 
settled, that if a trustee delay the assertion of his rights until the 
statute perfects a bar against him, the cestui que trust will also be 
barred. Colhurn v. JBroughton, 9 Ala. 351-363 ; Hovenden v. Lord 
Annesley, 2 Sch. & Lef. 628-629 ; Angell on Limitation, 514, § 6 ; 
Bond\. Hopkins, 1 Sch. & Lef. 429 ; Freeman v. Perry, 2 Dev. Eq. 
243 ; Couch\. Couch, 9 B. Monroe, 160 ; Falls v. Torrence. 4 Hawks' 
Law & Eq. 412. 

4. It will be seen that we have assimilated the complainant's right to 
relief in this case to the trustee's right to maintain detinue. If, at the 
time the bill in this case was filed, Green, the trustee, had instituted his 
action of detinue or trover for the slaves, against Sledge, the executor, 
the six years statute, if pleaded, would have barred either action, not 
only as to the slaves bequeathed by the will, but also as to the offspring 
of the females, born after the adverse holding. Morris v. Perregay, 7 
Gratt. 373 : White v. Martin, 1 Porter, 215. 

When defendant's right to property is established by a successful in- 
terposition of the plea of the statute of limitations, it relates back to the 
time of the first taking, and carries with it all the intermediate profits, 
and the increase of the females while in the adverse possession of such 
defendant, unless, as to such increase, some act be done before the bar 


against recovery of the mother is perfected, which prevents the operation 
of this rule. Partus sequitur ventrem. To hold otherwise, would lead 
to strange results in the case of female slaves. An adverse holding of 
six j'ears would vest the title in the holder. During the time she was 
adversel}' held, she may, at intervals, have given birth to children ; she 
and the children all the time remaining together, out of the possession 
of the claimant. She may have given birth to an infant within a very 
short time before the completion of the six years. According to the 
argument, all claim to the mother would be forfeited, while to bar 
the right to recover her child would require another period of near six 

Another illustration may serve to present this argument in a stronger 
light. Suppose the property adversely held consist of domestic animals, 
who multiply at an early age, and rapidly. Before the six years expire, 
the females, in all probabilitj', will have increased abundantly ; and per- 
haps at no point of coming time, will there be a female that has reached 
the age of six years, without yielding her increase. If the offspring do 
not follow the mother as an incident, but each successive scion must it- 
self be adversely held for the term of six j'ears before the statute runs, 
unless, before its birth, the parent stock had existed and been adversely 
held for a like period, the entire interest of the former owner would not 
probably be extinguished in any conceivable number of years. This 
point was not raised in argument ; but we have felt it our dutj' to notice 
it, as the court is not unanimous. , 

The claim for hire, and for profits of the labor of the slaves, while in 
the possession of Mr. Bush, is barred both by lapse of time, and by the 
statute of non-claim. 

Under these principles, the right of complainants is barred. Whether 
Mr. Bush, or those claiming under him, can set tip fraud in the original 
deed to Mr. Harrison, and from him to Mr. Green in trust, we need not 
inquire. See Walton v. Bonham, 24 Ala. 513 ; Twine's Case, 3 Rep. 
83; Roberts on Conveyances, 10-11. 

The decree of the chancellor is affirmed. 


StrPEEME Judicial Couet of Massachusetts. 1886. 
[Reported 142 Mass. 383.] 

Replevin of two counters. Writ dated November 14, 1881. Trial 
in the Superior Court, without a jury, before Blodgett, J., who 
allowed a bill of exceptions, in substance as follows : — 

There was evidence tending to show, and the judge found, that in 
1867, one Daniel Warner built a building upon his land in Oxford, 
and fitted up the same with shelving and counters, and designed the 


same for use as a store for the sale of general merchandise ; that the 
counters in controversy were put into the store by him, and were 
arranged for convenient use therein ; that the same were nailed to the 
floor, and were used in said building; that on January 2, 1871, War- 
ner mortgaged the premises to Alexander DeWitt ; that DeWitt died 
in 1879, and Charles A. Angell and "William Newton were appointed 
executors of his will ; that in April, 1879, said executors foreclosed 
said mortgage by sale, under the power contained therein, and became 
the purchasers of the premises ; that, soon after such sale, Warner 
removed the counters from the building, and the executors regained 
possession of them, and put them back upon the premises, but did not 
nail or fasten them to the premises ; that afterwards the executors sold 
the premises to the plaintiffs, but did not make mention of the counters 
in their deed, nor speak of them in the sale ; and that the defendant 
took the counters from the premises occupied by the plaintiffs in 1881. 

The defendant offered evidence tending to show, and the judge found, 
that she purchased these counters, with two others, in 1861 ; that they 
were built in Worcester and sent to her complete at Oxford, and 
placed in her store ; that they were heavy counters with black-walnut 
tops and heavy bases, with panelled front, supported by standards 
standing upon the floor, and were not fastened to the floor, but were 
kept in position by their own weight, and were used there until some 
time in 1866, when,' the store being then occupied by a tenant, they 
were set on one side as not being adapted to the business for which 
such store was then used, and flnallj', with the knowledge and consent 
of DeWitt, were moved out of the building on to the street, and placed 
one upon the other ; that Warner took the counters from their place in 
the street, and put them in his store, as aforesaid ; that there were two 
mortgages on the defendant's store premises given some time previ- 
ously to November 26, 1866, which were assigned to DeWitt on that 
day ; that from that date, by agreement with the defendant, DeWitt, 
who was the defendant's brother, had charge of said estate and of said 
counters for the defendant ; that she never authorized him or any other 
person to dispose of the counters, and never herself parted with her 
property in them ; that soon after the counters were removed from her 
store; she missed them and made inquiries for them, but failed to find 
them ; and that when she learned that they were upon the plaintiff's 
premises, she took them away, 

There was no other evidence than as above stated as to the means 
of the defendant of obtaining information as to where the counters 
were after they were taken from her store, or as to any concealment 
of the taking of the counters by Warner. It was in evidence, however, 
that the defendant, after 1861, resided some of the time in Oxford and 
some of the time in Sutton. 

There was no evidence, except as before stated, tending to show 
what interest, if anj"-, Warner claimed to have in the counters at the 
time they came into his possession, or at any time thereafter; and 


there was no other material evidence in the case applying to the rulings 
made or asked for at the trial. 

The plaintiffs asked the judge to rule as follows: "1. Upon the 
evidence, the counters, though attached to the store by one who had 
no title to them, became fixtures and a part of the realty, and passed 
to the mortgagee, and to the purchasers at the foreclosure sale, and 
came rightfully into the possession of the plaintiffs when thej' pur- 
chased the premises, as belonging thereto, though not then nailed to 
the building. 2. The defendant had lost the right to take the counters, 
if Warner had no right or title to them when he so took and attached 
them to the store building, such taking being a tort, and, as a cause of 
action, barred by the statute of limitations long before the defendant 
removed them in 1881, and therefore having no right to recover them, 
and nothing appearing sufficient to take the case out of the statute. 
3. Upon the evidence and facts, as before stated, the plaintiffs, as 
matter of law, were entitled to maintain their action, and the facts in 
the case would not wai'rant a finding for the defendant." 

The judge declined to rule as requested ; and found for the defendant. 
The plaintiffs alleged exceptions. 

A. J. Bartholomew, for the plaintiffs. 

tT. Hopkins, for the defendant. 

Holmes, J. This is an action of replevin for two counters. There 
was evidence that they belonged to the defendant in 1867, when one 
Warner built a shop, put the counters in, nailed them to the floor, and 
afterwards, on January 2, 1871, mortgaged the premises to one De- 
Witt. In April, 1879, DeWitt's executors foreclosed, and sold the 
premises to the plaintiffs. The defendant took the counters from the 
plaintiffs' possession in 1881. The court found for the defendant. 
Considering the bill of exceptions as a whole, we do not understand 
this general finding to have gone on the ground either of a special 
finding that the counters remained chattels for all purposes, and were 
not covered by the mortgage, Carpenter v. Walker, 140 Mass. 416, or 
that there was a fraudulent concealment of the cause of action, within 
the Gen. Sts. c. 155, § 12 (Pub. Sts. c. 197, § 14). But we under- 
stand the court to have ruled or assumed that, although the statute 
should have run in favor of Warner or DeWitt before the transfer to 
the plaintiffs, that circumstance would not prevent the defendant 
from taking possession if she could, or entitle the plaintiffs to sue her 
for doing so, if she was the original owner. 

A majority of the court are of opinion that this is not the law, and 
that there must be a new trial. We do not forget all that has been 
said and decided as to the statute of limitations going only to the 
remedy, especially in cases of contract. We do not even find it neces- 
sary to express an opinion as to what would be the effect of a statute 
like ours, if a chattel, after having been held adversely for six years, 
were taken into another jurisdiction by the originally wrongful pos- 
sessor, although all the decisions and dicta, so far as we know, agree 


that the title would be deemed to have passed. Cockfield v. Hudson, 
1 Brev. 311 ; Howell v. Hair, 15 Ala. 194; Jones v. Jones, 18 Ala. 
248, 253 ; Clark v. Slaughter, 34 Miss. 65 ; Winburn v. Cochran, 
9 Tex. 123; Preston v. Briggs, 16 Vt. 124, 130; Baker v. Chase, 
55 N. H. 61, 63 ; Campbell v. Holt, 115 U. S. 620, 623. What we do 
decide is, that where the statute would be a bar to a direct proceeding 
by the original owner, it cannot be defeated by indirection within the 
jurisdiction where it is law. If he cannot replevy, he cannot talse with 
his own hand. A title which will not sustain a declaration will not 
sustain a plea. 

It is true that the statute, in terms, only limits the bringing of an 
action. But whatever importance may be attached to . that ancient 
form of words, the principle we lay down seems to us a necessary con- 
sequence of the enactment. And a similar doctrine has been applied 
to the statute of frauds. Carrington v. Boots, 2 M. & W. 248. See 
King v. Welcome, 5 Gray, 41. 

As we understand the statutory period to have run before the plain- 
tiffs acquired the counters, we do not deem it necessarj' to consider 
what would be the law if the plaintiffs had purchased or taken the 
counters, within six years of the original conversion, from the person 
who first converted them, and the defendant had taken them after the 
action against the first taker had been barred, but within six years of 
the plaintiffs' acquiring them. We regard a purchaser from one against 
whom the remedy is already barred as entitled to stand in as good a 
position as his vendor. Whether a second wrongful taker would stand 
differently, because not privj' in title, we need not discuss. See Leon- 
ard V. Leonard, 7 Allen, 277 ; Sawyer v. Kendall, 10 Cush. 241 ; 
JVorcross v. James, 140 Mass. 188, 189 ; Co. Lit. 114 b, 121 b. 

Exceptions sustained. 

Field, J. I am unable to assent to the opinion of the court. As 
the case was tried without a jury, and the court found generally for the 
defendant, the onl}' questions of law are those raised by the plaintiffs' 
requests for rulings, which were refused. The plaintiffs must prevail, 
if at all, upon their own title or right of possession. There was evi- 
dence that the defendant purchased the counters in 1861, and placed 
them in her store, where they were used until some time in 1866, 
when with the knowledge and consent of DeWitt, the defendant's 
brother, they were moved out of the building to the street ; that De- 
Witt, from November 26, 1866, held a mortgage upon the defendant's 
" store premises," and " from that date, by agreement with the de- 
fendant, had charge of said estate and of said counters ; " that in 1867, 
Daniel Warner took the counters without the defendant's knowledge or 
authority, and put them into his store, and nailed them to the floor, 
and mortgaged his premises to DeWitt on January 2, 1871 ; that De- 
Witt died in 1879, and this mortgage was foreclosed by a sale made by 
the executors of DeWitt's estate to themselves in April, 1879, and they 


afterwards " sold the premises to the plaintiffs," not mentioning the 
counters in their deed ; that the defendant, "soon after the counters 
were removed from her store, missed them, and made inquiries for 
them, but failed to find them ; and that when she learned that they 
were upon the plaintiffs' premises, she took them awaj'," in 1881, and 
retained possession until the plaintiffs replevied them. "There was no 
evidence, except as before stated [in the exceptions], tending to show 
what interest, if any, Warner claimed to have in the counters at the 
time thej' came into his possession, or at any time thereafter." From 
the time Warner took the counters until he mortgaged his premises to 
DeWitt, six j-ears had not expired ; but if it be assumed that Warner 
remained in .possession until the mortgage given bj- him was foreclosed 
by a sale, he held possession more than six years. The possession of 
the plaintiffs could not have been for a longer time than about two 
years. If DeWitt was in possession from the date of the mortgage to 
him until his death, this was more than six years ; but there was evi- 
dence that he was the agent of the defendant to take charge of the 
counters. The terms of the mortgage and convej'ance under which 
the plaintiffs claim are not set out, but it has been assumed that they 
conve3-ed whatever title, if any, Warner had in the counters. It is 
manifest that, as between landlord and tenant, these counters would 
have been either furniture or trade fixtures, and that if they were taken 
by Warner and aflSxed to his store tortiouslj', without the consent of 
the defendant, she could have retaken them. Kimball y. Grand J^odge 
of Masons, 131 Mass. 59 ; Hubhell v. East Cambridge Savings Bank, 
132 Mass. 447 ; Ouihrie v. Jones, 108 Mass. 191. 

The rule that the title of personal property is lost by a wrongful 
conversion of it into some other species of propertj'^, or bjr making it 
a part of real estate, has its foundation in the impossibility or imprac- 
ticability of tracing the property, or of severing it from the real estate ; 
and when personal chattels are, without the consent of the owner, and 
without right, taken b}' another and afl9xed to real property, the title 
of the owner is not lost unless the identity of the chattels has been 
destroyed, or they have been so affixed to the real property that it is 
impracticable to sever them. See TPe^AerSee v. Cheen, 22 Mich. 311 ; 
Jewett V. Dringer, 3 Stew. (N. J.) 291. I think that the first request, 
therefore, ought not to have been given. 

As the plaintiffs first took possession of the counters as their own 
some «ime after the foreclosure of the mortgage in 1879, the statute of 
limitations would have been no defence to them if the defendant had 
brought trover against them in 1881, when she took possession of the 
counters ; their onlj- defence would have been title in themselves de- 
rived from their vendors, and this title rests ultimately upon the pos- 
session of Warner. The second request, as applicable to the case, is 
in effect that, if Warner took the counters tortiouslj-, and kept them 
attached to his building more than six years, the defendant lost her 
right of property in the counters. It is not stated in the request, that 


Warner's possession to effect a change of title must have been either 
known to the defendant or open and notorious, and must have been 
under a. claim of right ; and that his possession was of this character 
is not necessarily to be inferred from the evidence. The effect of the 
statute of limitations of real actions upon the acquisition of title to real 
property is carefully discussed in Langdell on Eq. PI. §§ 119 et seq. 
Our statute of limitations of real actions provides that "no person shall 
commence an action for the recovery of lands, nor make an entry 
thereon, unless within twent}' years after the right to bring such action 
or to make such entrj' first accrued, or within twentj' j-ears after he, or 
those from, by, or under whom he claims, have been seised or pos- 
sessed of the premises except as is hereinafter provided." Pub. Sts. 
c. 196, § 1 ; Gen. Sts. c. 154, § I ; Rev. Sts. c. 119, § 1 ; Sts. 1786, c. 
13 ; 1807, c. 75 ; Commissioners' Notes to the Rev. Sts. c. 119. As 
writs of right and of formedon, and all writs of entry except those pro- 
vided by the Pub. Sts. c. 134, were abolished bj' the Rev. Sts. c. 101, 
§ 51, it follows that, with certain exceptions not necessary to be no- 
ticed, after a disseisin continued for twenty years, or in other words 
after twenty years from the time when the right to bring a writ of 
entry or to enter upon the land first accrued, the former owner of a 
freehold can neither maintain any action to recover possession, nor 
enter upon the land, nor, without an entry, convej- it ; and as all remedj', 
either by action or by taking possession, is gone, his title is held to 
have been lost. The effect of the statute has been to extinguish the 
right, as well as to bar the remedy ; and this is the construction given 
to the English St. of 3 & 4 Wm. IV. c. 27. Our statute of limitations 
of personal actions was taken from the St. of 21 Jac. I. c. 16, and this 
statute has been held not to extinguish the right, but onl}- to bar the 
remedy. Owen v. Be Beauvoir, 16 M. & W. 547; 5 Exch. 166; 
Dawkins v. Penrhyn, 6 Ch. D. 318 ; 4 App. Cas. 51 ; Dundee Har- 
bour \. Dougall, 1 Macq. 317, 321 ; In ^q Alison, 11 Ch. D. 284. 

Section 1 of the Pub. Sts. c. 197, declares : " The following actions 
shall be commenced within six j'ears next after the cause of action 
accrues, and not afterwards . . . actions of replevin, and all other 
actions for taking, detaining, or injuring goods or chattels." There 
is no statute, and no law, prohibiting the owner of personal chattels 
from peaceably taking possession of them whenever he may find them, 
and the technical law of seisin and disseisin was never applied to per- 
sonal chattels. It is established in this Commonwealth that a debt 
barred by the statute of limitations of the place of the contract is not 
extinonished. The statute only bars the remedy by action within the 
jurisdiction where the defendant has resided during the statutory pe- 
riod. Bulger v. Roche, 11 Pick. 36. It was formerly contended that 
if the parties to a contract had resided within the same jurisdiction so 
long a time that, under the statute of limitations there, the remedy by 
action was barred, this ought to be held everywhere to have extin- 
guished the right of action, and thus to have extinguished the debt, 


especially if the residence was that of the place where the contract was 
made; and the courts of some jurisdictions so held. Br own y. Parker, 
28 Wis. 21, 30 ; Goodman v. Munks, 8 Port. 84, which is overruled 
in Jones v. Jones, 18 Ala. 248. See LeRoy v. CrowninsMeld, 2 
Mason, 151, 168. This view was, however, general!}' abandoned, and 
was never the law of this Commonwealth, of the English courts, of the 
Supreme Court of the United States, or of the courts of most of the 
States. A distinction was made in some of the Southern States be- 
tween debts and chattels ; and in suits for the recovery of slaves, it 
was held that adverse possession for the statutory period of limitations 
of personal actions created a title. In some of the decisions it is said 
that the possession must be bona fide, and acquired without force or 
fraud, and must be peaceable and adverse. It was held, however, that 
where there had been successive purchases of a slave, the possession of 
the successive purchasers could not be tacked, so as to create a title hy 
adverse possession, because each purchase, if the purchaser took pos- 
session, was a new conversion ; but such a title acquired bj' one person 
could be transferred to another. In some of these States, at the time 
of these decisions, it was also held that the statute of limitations of 
personal actions extinguished debts. Cockfield v. Mudson, 1 Brev. 
311 ; Howell v. Hair, 15 Ala. 194; Clarh v. Slaughter, 34 Miss. 65 ; 
Winburn v. Cochran, 9 Tex. 123 ; Wells v. Ragland, 1 Swan, 501 ; 
Bryan v. Weems, 29 Ala. 423 ; Secnj v. Sacon, 4 Sneed, 99 ; Ber- 
nard V. Chiles, 7 Dana, 18; Moffatty. Buchanan, 11 Humph. 369; 
Newhy v. Blakey, 3 Hen. & M. 57 ; Beadle v. Hunter, 3 Strob. 331. 
See Goodman v. Munks, ubi supra. 

In Preston v. Briggs, 16 Vt. 124, and Baker v. Chase, 55 N. H. 
61 , it was suggested that adverse possession of a chattel for six years 
transferred the title ; but the cases did not require a determination of 
the question. In Campbell v. Holt, 115 U. S. 620, 623, there is an 
express declaration that ' ' the weight of authority is in favor of the 
proposition that where one has had the peaceable, undistm-bed, and 
open possession of real or personal propertj-, with an assertion of his 
ownership, for the period which, under the law, would bar an action for 
its recover}' by the real owner, the former has acquired a good title, 
a title superior to the latter, whose neglect to avail himself of his legal 
rights has lost him his title." The cases there cited are two of the 
slave cases which have been mentioned, and decisions of the Supreme 
Court of the United States relating to real property. 

The law of the Supreme Court of the United States in regard to 
contracts was carefully stated in Townsend v. Jemison, 9 How. 407 ; 
and it was there held that, when the statute extinguished the right or 
title, and created a new one, this new right or title would be recog- 
nized by courts in other jurisdictions ; but if the statute only affected 
the remedy, the courts would afford the remedies provided by their own 
laws. Our decisions upon the effect of our statute of limitations upon 
debts or contracts uniformly hold that it affects only the remedy by 


action. Sulger v. Roche, ubi supra ; Thayer v. Mann, 19 Pick. 
535 ; Hancock v. Franklin Ins. Co., 114 Mass. 155. 

Tiiere is nothing in the statute which suggests any distinction be- 
tween actions to recover chattels and actions to recover debts, and it 
does not purport to be a statute relating to the acquisition of title to 
property, but a statute prescribing the time within which certain actions 
shall be brought. There is not a trace to be found in our reports of 
the doctrine that possession of chattels for the statutorj' period of lim- 
itations for personal actions creates a title, and I can find no such doc- 
trine in the English reports, or in the reports of a majoritj- of the 
courts of the States of this country. The law concerning the acquisi- 
tion of easements in real propertj- by prescription, in its modern form, 
was established bj' the courts by adopting in part the Roman law, and 
by limiting the period of enjoyment necessary to create the right to 
the time required by statute for bringing actions for the recovery of 
land. Edson v. Munsell, 10 Allen, 557. 

A right of way may be acquired by repeated trespasses, if they are 
openly made under a claim of right, and are uninterrupted ; but twenty 
3'ears' user is required, although the limitation for actions of tort in the 
nature of trespass quare clausum is six years. It was inevitable, per- 
haps, that if a title to land could be acquired by adverse possession, 
a privilege or easement in land should be acquired hy adverse use. '&y 
the Pub. Sts. c. 197, § 14, if a person liable to an action " fraudulently 
conceals the cause of such action from the knowledge of the person 
entitled to bring the same, the action may be commenced at any time 
within six j-ears after the person so entitled discovers that he has such 
cause of action." This section has been construed strictl}'. Nudd v. 
Samhlin, 8 Allen, 130. Under this section, if one man stole another 
man's watch and carried it on his person as watches are usually car- 
ried, it might be held that the thief fraudulently concealed the cause of 
action from the owner ; but if the thief sold the watch to one who pur- 
chased it in good faith, and he carried it in his pocket, this could not 
be held to be a fraudulent concealment ; and if the statute of limita- 
tions transfers the title, the owner at the end of six j-ears would lose 
the title to his watch, although he may not have known or been able 
to discover who had it. The possession of personal chattels, even 
although honestly held, is not always open and notorious, and if title 
to such chattels is to be acquired by possession, it ought to be by an 
adverse possession bona fide held under a claim of right which was 
known to the owner, or so open and notorious that the owner ought to 
have known it. The second request does not assume, and it has not 
been found as a fact, that such was the nature of Warner's possession. 

Larnby. Clark, 5 Pick. 193, was assumpsit by an executor to re- 
cover money paid to the defendant by the makers of certain promissory 
notes which had been delivered more than six j'ears before the action 
was brought to the defendant as his property, by the plaintiff's testator 
as the consideration of a conveyance of land by the defendant to the 


testator's Tifife. The plaintiff contended that there was a fraudulent 
combination between the defendant and the wife of the testator, 
whereby the testator had been defrauded of his property. It was con- 
ceded by the court, that an action of trover might have been brought 
at any time within six years after the defendant received the notes, and 
that such an action was barred by the statute of limitations. The 
plaintiff, however, was permitted to recover all sums of monej- received 
by the defendant from the makers of the notes within six years before 
the commencement of the action. If the expiration of the six years 
had transferred the title of the notes to the defendant, it is difficult to 
see how the action could have been maintained. 

Wilkinson v. Verity, L. R. 6 C. P. 206, was detinue by the church 
wardens of All Saints against the vicar, who in 1859, having the cus- 
tody of the communion plate, sold it for old silver. The church war- 
dens discovered this in 1870, and then made a demand. The defence 
was the statute of limitations, and that the conversion occurred when 
the defendant sold the plate. The court say: "If this had been an 
action for damages for the conversion of the plate, in which the demand 
and refusal would have been only evidence of a conversion, it would 
have been impossible to contend that the date of the conversion could 
be excluded, or to deny that the defence upon the statute was sustained. 
Nor could the ignorance of the plaintiffs or their predecessors have 
prevented its operation." But the court held that the plaintiffs could 
elect to sue the defendant in detinue upon his contract as bailee to 
deliver the plate on demand, and that "it is no answer for the bailee 
to say that he has incapacitated himself from complying with the lawful 
demand of the bailor." 

These cases show that the statute of limitations of personal actions 
is construed with reference to the particular action brought, and indi- 
cate that there is no change of title in property, although the time for 
bringing an action of trover has expired. I think that the subject of 
the acquisition of title to personal chattels by adverse possession can 
best be dealt with by the Legislature, if it is thought necessary to es- 
tablish such a rule of law ; and that it was not the intention of our 
statute of limitations of personal actions to extinguish rights or titles. 

There is much force in the suggestion, that if the defendant could 
not have recovered the counters by action at the time she took pos- 
session, she ought not to be permitted to take them from the possession 
of the plaintiffs by force or fraud ; but it is not found in the case that 
she took them by force or fraud, and the request does not assume this ; 
and I think that the defendant, at the time she took possession, could 
have recovered these counters of the plaintiffs by action, as the statute 
of limitations did not begin to run in favor of the plaintiffs until they 
took possession, which was at least as late as 1879 ; and it is not found 
that the plaintiffs' vendors had any title which they could convey to the 
plaintiffs. I think the second and third requests ought not to have 
been given. 




Inst. 2, 1 (25, 26, 33, 34). "When any one has converted anothei" 
person's property into a new form, the question is often asked, which 
of them is the owner thereof on natural principles ; whether the man 
who made the thing, or rather he who was previously the owner of the 
substance : for example, when any one has made wine or oil or corn 
from the grapes or olives or ears of another, or made any vessel of 
another's gold or silver or copper, or compounded mead of another's 
wine or honey, or made a plaster or eye-salve of another's drugs, or 
a garment of another's wool, or a ship or chest or seat out of another's 
planks. And after many controversies between the Sabinians and 
Proculians, the middle view has been approved, held by those who 
think that if the new form can be reconverted into its materials, that 
man is to be regarded as owner who was originally owner of the mate- 
rials ; but that if it cannot be reconverted, the other who made it is to 
be regarded as owner : for example, a vessel made by casting can be 
reconverted into the rough mass of copper or silver or gold ; but wine 
or oil or corn cannot be returned into grapes or olives or ears, neither 
can mead be resolved into wine and honey. But when a man has cre- 
ated a new form out of materials partly his own and partly another's, 
for instance, when he has compounded mead out of his own wine and 
another person's honey, or a plaster or eye-salve out of his own drugs 
and those of other people, or a garment out of wool partly his and 
partlj' another's, in such a case there is no doubt that the maker is the 
owner ; since he has not onl}- given his labour, but provided also a por- 
tion of the materials of the article. 

If, however, any one has interwoven with his own garment purple 
thread which belongs to another person, the purple thread, though the 
more valuable, accrues to the garment as an accessory ; and the former 
owner of the purple thread has an action of theft and a condiction 
against the man who stole it, whether the latter or another person be 
the maker of the garment : for although things that have ceased to ex- 
ist cannot be recovered by vindication, j'ct a condiction lies for them 
against thieves and certain other possessors. 

Writing too, even if of gold, is as much an accessory to the paper or 
parchment, as buildings or crops are an accessory to the soil : and 
therefore, if Titius have written on j'our paper a poem, a history, or an 
oration, j'ou, and not Titius, are regarded as the owner of the sub- 
stance. But if you claim from Titius your books or parchments, and 
do not offer to pay the expense of the writing, Titius can defend him- 
self by plea of fraud, at any rate if he obtained possession of the paper 
or parchment in good faith. 



If anj' man have painted upon another's tablet, some think that the 
tablet is an accessory to the picture : whilst others hold that the pic- 
ture, however valuable it may be, is an accessor3' to the tablet. But to 
us it seems better that the tablet should be an accessory to the picture ; 
for it is absurd that a picture by Apelles or Parrhasius should go as an 
accessor}' to a paltry tablet. Hence, if the owner of the tablet be in 
possession of the picture, and the painter claim it from him, but refuse 
to pay the price of the tablet, he can be met by the plea of fraud. But 
if the painter be in possession, it follows that the owner of the tablet 
will be allowed an utilis actio against him : although in such case, un- 
less he pay the expense of the painting, he can be met by the plea of 
fraud, at any rate if the painter took possession in good faith. For it 
is clear that if the painter or any one else stole the tablet, the owner 
thereof has an action of theft. 


[Reported Year-Book, 5 Hen. VII. 15, pi. 6.] 

A MTiiT of trespass was brought for the taking of so many slippers 
and shoes, and the defendant said that he was possessed of so many 
dickers of leather, and delivered them to one J. S., who gave them to 
the plaintiff; and afterwards the plaintiff made the slippers and shoes 
and boots, and the defendant came and took them as he well might. 
Judgment if the action lay. . . .^ 

[The plaintiff] moved the court that this plea, that the defendant 
could take them back, was not good ; but bj- the making of shoes and 
boots, &c., the property was altered, because thej' were now of another 
nature. As if one takes barlej- or grain and makes malt of it, he from 
whom the grain was taken cannot take the malt, because the chattel is 
changed into another nature. And so it is if trees are taken, and out 
of them a house is made, he from whom the trees were taken cannot 
tear down the house and take them back, and so other chattels are 
joined together with it. For where a chattel is taken with force, and 
no other chattel is joined or mixed with it, and it is not altered into 
another nature, the partj' can take it. So if one takes a tree, and 
squares it with an axe, now the partj' can take it, because it is not 
altered into another nature, nor is any other chattel mixed with it or 
joined to it ; but if a man takes silver, and then makes a piece of it, or 
takes a piece of silver and has it gilt with gold, in this case the party 
cannot take it ; and so here the leather is mixed with thread, and there- 
fore the party cannot take it ; and so it seems that the plea is not good. 
And the court holds the contrarj- clearh*. And as to the cases of grain 

1 A pait of the case relating to a point of pleading is omitted. 


taken and malt made from it, the party cannot take it, because the 
grain cannot be known. And so it is with pennies or groats, and a 
piece made of them, it cannot be taken, because of the pennies one can- 
not be known from another. And so if one takes a piece, and strikes 
pennies from it at the mint, the party cannot take the pennies, because 
the pennies cannot be known one from another; and so in all like 
cases. And also in the case of the building of a house, now the timber 
is altered, for now it is freehold, and for this reason he cannot take it ; 
but in ever3- case where the chattels themselves can be known, there 
the party can take them, notwithstanding that some chattel is joined or 
mixed with them. As if one takes a piece of cloth and makes a coat 
for himself, the partj' can take it back well enough, because it is the 
same chattel and not at all altered ; and so it is in the case put, if one 
cuts a tree and squares it, the party can take it well enough, because 
the tree can be known well enough notwithstanding. And so it is of 
iron, where a smith makes of it a bar, &c. And so it was held bj- all 
the court. Wherefore the plaintiff replied, for that matter appeared. 



{Reported Moore 19, pi. 67.] 

In a writ of trespass, the defendant justifies by reason that one I. S. 
was seised of an acre of land and let it to him for a term of ten j'ears, 
and afterwards one A. entered into the said land so leased and cut down 
certain trees there growing, and from them made timber, and after- 
wards carried it on to the land where the trespass is alleged, and after- 
wards gave the timber to the plaintiff, wherefore the defendant entered 
on the said land and retook his timber as well he might. And the writ 
was quare clausum fregit et mearemium cepit. 

Senlows. ^ It seems to me that the plea is not good for two reasons : 
the one because when he took the trees and made timber of them, now 
he has lost the notice [fo notice] of them, and so the property in them 
is altered. The other is because the defendant has confessed an entr}' 
which he cannot justify. 

And as to the first point, the judges think the plea good enough, for 
by the seizure of the trees the notice is not cut off, but the property yet 
remains. In all cases where a thing is taken tortiouslj' and altered in 
form, if yet that which remains is the principal part of the substance, 
then is not the notice lost, as if a man takes my cloak and makes a 
doublet of it, yet I can retake it. So if a man takes from me a piece of 
cloth, and then he sews on to it a piece of gold, yet I can retake it. And 
if a man takes certain trees and afterwards he makes boards of them, 
j'et the owner can retake them, quia major pars substanticB remanet. 
But if the trees are fixed on the land, or if a house be made of the tim- 
ber, it is otherwise. Qucere. The house now is the principal substance. 



Derby Summer Assizes. 1841. 

[Reported 3 Q. B. 440, note.] 

This was an action by the plaintiff for an injur}^ to his reversion in 
certain closes by making holes and excavations and getting coals, with 
a count in trover for coals. There were pleas of leave and licence, and 
that the defendant was seised as of freehold in the mines of coal, on 
which issue was joined. The defendant claimed under Sir John Zouch, 
who was seised of the closes, with others, and the beds of coal under 
the same, temp. Eliz., and convej'ed all the coals belonging to him to 
one under whom the defendant proved his title. The plaintiff claimed 
the closes in question hy a prior convej-ance of them, without the excep- 
tion of coals, from Zouch. The defendant had won the coals under the 
closes, bona fide supposing that these were his own under his title from 
Zouch. Whether they passed or not depended upon the question 
whether an ancient settlement by another Zouch, temp. Eliz., which 
existed at the time of the convej'ance of the plaintiff's closes for value, 
was voluntary or not. There was also some evidence of licence as to 
part. The plaintiff claimed damages on the principle laid down in the 
case of Martin v. Porter., 5 M. & W. 351, which amounted to about 
£10,000, or £11,000. 

/Sir W. W. Follett, for the defendant. 

Parke, B., told the jury that, if they found for the plaintiff, they were 
to determine what damages should be given : that, if there was fraud 
or negligence on the part of the defendant, they might give, as dam- 
ages under the count in trover, the value of the coals at the time thej' 
first became chattels, on the principle laid down in 3Iartin v. Porter; 
but, if they thought that the defendant was not guiltj- of fraud or negli- 
gence, but acted fairly and honestlj'in the full belief that he had a right 
to do what he did, thej- might give the fair value of the coals as if the 
coal field had been purchased from the plaintiff. 

The jury adopted the latter estimate, and found for the plaintiff, 
damages £210 per acre ; £2310. 

No motion for a new trial was made. 



Queen's Bench. 1842. 

[Beported 3 Q. B. 278.] 

Trespass for breaking and entering plaintiflf s coal mine and strata, 
and digging and getting plaintiff's coal, to wit 20,000 tons, &c., out of 
the said mine and sti-ata ; also for digging and making levels in cer- 
tain strata, &c., of plaintiff', and canning away and converting the ma- 
terials, to wit 10,000 cart loads of coal ; and for carrying coals with 
horses, trams, &c., through the said levels ; and by the several means 
aforesaid damaging the strata, &c., and causing loss of plaintiff's coal, 
&c. Judgment by default. 

An inquiry of damages was executed, before Coleridge, J., at the 
Monmouthshire Spring assizes, 1841 ; when it appeared that the plain- 
tiff" and defendant were proprietors of adjoining coal mines, the defend- 
ant holding two, and the plaintiff' a third, partly situate between them. 
The defendant had, from one of his own mines, entered that of the 
plaintiff", and had there worked coal belonging to the plaintiff", carried 
it away, and brought it up to the mouth of his own pit, and had also 
carried coal from one of his own mines (held under Lord Dynevor) 
through the workings so made in the plaintiff"'s mine. Compensation 
was claimed : 1. For the value of plaintiff's coal worked and taken away 
by defendant ; 2. For the injury which plaintiff"'s unworked coal had 
sustained by the mode in which defendant had made the headings or 
workings ; 3. In respect of the coal from Lord Dynevor's mine which 
defendant had conveyed through the workings of plaintiff"'s mine. On 
the last two heads damages were assessed,^ as to which no subsequent 
question arose. On the first, the plaintiff" demanded compensation at 
the rate per ton which a purchaser would paj' for the coal at the pit's 
mouth, and which was i)roved to be bs. 8d. For the defendant it was 
urged that he ought not to pay more than the value of the coal after 
deducting the expenses of cutting and bringing it to the pit's mouth, 
which were estimated at 3s. 10c?. per ton. Martin v. Porter^ 5 M. 
& W. 351, was cited for the plaintiff; and the learned judge, consider- 
ing himself bound by the decision as stated, though he expressed a 
doubt of its correctness,'^ advised the jury to give their verdict on the 
principle of the plaintiff's estimate, but reserved leave to move to reduce 
the damages by the difference between the values at the pit's mouth and 

1 Is. and 20Z. 

2 By a short-hand writer's note, his Lordship appears to have said: " But for that 
case I should have thought that the ordinary principle would have prevailed, and that 
Sir Charles Morgan would be entitled to recover compensation only for the damage he 
has actually sustained, and that all he would have a right to ask at your hands would 
have been, to put him in the same position as he would have been if the coal had never 
been stirred." 


in the ground. The jury found their verdict as directed ; damages, on 
this head of claim, £1400. 

Sir J. Campbell, Attorney-General, in Easter term, 1841, obtained 
a rule to shew cause why the verdict should not be reduced " by the 
amount of the expense of getting the coals and bringing them to the 
pit's mouth." Cause was shewn in Easter term, 1842.^ 

Ludlow, Serjt. , for the plaintiff. • 

Sir W. W. Follett, Solicitor-General, Talfourd, Serjt., ^nd Keating, 
in support of the rule. 

Ludlow, Serjt., and B. V. Richards were then called upon to shew 

Lord Denman, C. J., in this term (June 9th), delivered the judg- 
ment of the court. 

This was an action for breaking a mine, digging coal, carrying it 
unlawfully along the plaintiff's adit, and taking and converting it to 
the defendant's use. Judgment was suffered by default, and a writ of 
inquiry executed before my brother Coleridge. 

The question was, how the value of the coal taken was to be esti- 
mated ; and the learned judge directed the jury to act on the rule laid 
down in Martin v. Porter, 5 M. & W. 351. The rule, however, was 
misstated at the trial ; and the calculation has been accordingly taken 
without making certain allowances which that rule provides for. The 
direction of the learned judge in that case was, that the plaintiff was 
entitled to the value of the coal as a chattel, " at the time when the 
defendant began to take it awaj-," that is (as there stated), as soon as 
it existed as a chattel ; which value would be the sale price at the pit's 
mouth, after deducting the expense of carrying the coals from the place 
in the mine where they were got to the pit's mouth ; and this direction 
the Court of Exchequer has affirmed. In the present case the rule was 
taken to be absolute, and without the deduction. 

We are of opinion that the rule in Martin v. Porter, 5 M. & W. 
351, is correct, and properly applicable to the present case. The jury 
must give compensation for the pecuniar}' loss sustained by the plain- 
tiff from the trespass committed in taking his coal, compensation having 
been separately given for all injury done to the soil by digging, and for 
the trespass committed in dragging the coal along the plaintiff's adit ; 
and the estimate of that loss depends on the value of the coal when 
severed ; that is, the price at which the plaintiff could have sold it. 
This plainly was the value of the coal itself at that moment. The 
defendant had no right to be reimbursed for his own unlawful act in 
procuring the coal ; nor can he, properly speaking, bring any charge 
against the plaintiff for labour expended upon it. But it could have 
nolialue as a saleable article without being taken from the pit ; any one 
purchasing it there would, as of course, have deducted from the price 
the cost of bringing it to the pit's mouth. Instances may easily be sup- 

' May 2d. Before Lord Denmaiu C. J., Patteson, Williams, and Coleridge, J J. 


posed where particular circumstances would vary this mode of calculat- 
ing the damage ; but none such appear here. We do not find that the 
cost incurred by the defendant in bringing the coal to the pit's mouth 
is greater by a single farthing than that which the plaintiff must have 
incurred for the same purpose. 

The damages found by the verdict must therefore be reduced by the 
amount of this charge, which may be ascertained by reference to the 
"■judge's note ; or there must be a new execution of the writ. 

Rule absolute for reduction as above} 

' " Xow, my Lords, there was a technical rule in the English courts in these matters. 
When something that was part of the realty (we are talking of coal in this particular 
case) is severed from the realty and converted into a chattel, then instantly on its 
becoming a chattel, it becomes the property of the person who had been the owner of 
the fee in the land whilst it remained a portion of the land ; and then in estimating 
the damages against a person who had carried away that chattel, it was considered and 
decided that the owner of the fee was to be paid the value of the chattel at the time 
when it was converted, and it would in fact have been improper, as qualifying his own 
wrong, to allow the wrongdoer anything for that mischief which he had done, or for 
that expense which he had incurred in converting the piece of rock into a chattel, 
which he had no business to do. 

"Such was the rule of the common law. Whether or not that was a judicious rule 
at any time I do not take upon myself to say ; but a long while ago (and when I say a 
long while I mean twenty-five years ago) Mr. Baron Parke put this qualification on it, 
as far as I am aware for the first time. He said. If however the wrongdoer has taken 
it perfectly innocently and ignorautly, without any negligence and so forth, and if the 
jury, in estimating the damages, are convinced of that, then you should consider the 
mischief that has been really done to the plaintiff who lost it whilst it was part of 
the rock, and therefore you should not consider its value when it had been turned into 
a piece of coal after it had been severed from the rock, hut you should treat it at what 
would have been a fair price if the wrongdoer had bought it whilst it was yet a portion 
of the land as you would buy a coal-field. Wood v. Morewood, i Q. B. n. 440. That 
was the rule to be applied where it was an innocent person that did the wrong ; that 
rule was followed in the case of Jecjon v. Vivian, Law Eep. 6 Ch. 742, which has been 
so much mentioned ; it was followed in the Court of Chancery, and, so far as I know, 
it has never been questioned since, that where there is an innocent wrongdoing the 
point that is to be made out for the damages is, as was expressed in the minutes of 
the decree : ' The defendants to be charged with the fair value of such coal and 
other minerals at the same rate as if the mines had been purchased by the defendants 
at the fair market value of the district ; ' that I understand to mean as if the mines 
had been purchased while the minerals were yet part of the soil." Per Lord Black- 
burn, in Livingstone v. Bawyard Ooal Co., 5 App. Cas. 25, 39. 


Supreme Court of New York. 1844, 1847. Court for the Cor- 
rection OF Errors. 1850. 
[Reported 6 Hill, 425 ; 4 Denio, 332 ; 3 Covist. 379.] 

Trover for a quantity of whisky, tried at the Montgomery circuit in 
May, 1843, before Willard, C. Judge. The facts proved by the plain- 
tiffs to establish their title to the whiskj' were as follows : On the 18th 
of February, 1842, the sheriff of Montgomery levied on five hundred 
bushels of grain by virtue of a Ji. fa. against one Wood in favor of 
Eldert Tymason. The grain was in Wood's distillery at the time, 
having been purchased by him with a view of manufacturing it into 
whisky, and the sheriff did not remove it. Shortly after the levy, the 
plaintiffs, who it seems succeeded Wood in the possession of the dis- 
tiller^', converted the grain into whisky. When the sheriff went to the 
distillery for the purpose of selling, he was informed by Silsburj', one of 
the plaintiffs, that they had converted the grain into whisky, and were 
willing to pay for it; but no terms were then agreed upon. On the 
10th of March, 1842, the plaintiffs gave their note to the sheriff for the 
grain, allowing him fifty cents per bushel ; and Tymason afterwards 
accepted the note as so much paid upon the _/?. fa. The whisky- in 
question was a part of that which the plaintiffs had manufactured from 
the grain levied on bj' the sheriff. 

The defence was as follows : On the 25th of February, 1842, after 
the whisky in question had been manufactured bj' the plaintiffs, it was 
seized by one of the deputies of the sheriff of Montgomery, by virtue 
of a f. fa. issued against Wood, in favor of the defendants. The 
deputy sold the whisky on the 23d of March following, and it was bid 
in by the defendants. It appeared that the sheriff was informed of the 
levy made under the defendants' f. fa., before he settled with the 
plaintiffs for the grain. 

The defendants moved for a nonsuit, insisting that the plaintiffs 
acquired no title to the whiskj' by their compromise with the sheriff. 
The circuit judge ordered a nonsuit, and the plaintiffs now moved for a 
new trial on a bill of exceptions. 

/S. Wilkeson, Jr. , for the plaintiffs. 

2^. Hill, Jr., for the defendants. 

J3y the Court, Nelson, Ch. J. Even conceding that the settlement 
with the sheriff for the taking and conversion of the grain was inopera- 
tive, (which I should not be willing to admit, if made in good faith,) 
still, a decisive answer to the defence is, that the identity of the grain 
was destroyed bj' the act of manufacturing it into whisky, and the 
property in the new article vested in the plaintiffs. The doctrine on 
this subject is stated by Blackstone as follows : "By the Roman law, 
if any given corporeal substance received afterwards an accession by 


natural or by artificial means, as by the growth of vegetables, the 
pregnancy of animals, the embroidering of cloth, or the conversion of 
wood or metal into vessels and utensils, the original owner of the thing 
was entitled by his right of possession to the property of it under such 
its state of improvement. But if the thing itself, by such operation, 
was changed into a different species, as by making wine, oil, or bread, 
out of another's grapes, olives, or wheat, it belonged to the new opera- 
tor ; who was only to make a satisfaction to the former proprietor for 
the materials which he had so converted. And these doctrines are 
implicitly copied and adopted by our Bracton, and have since been 
confirmed by many resolutions of the courts." 2 Bl. Com. 404 ; and 
see Bro. Ab. tit. Property, 23 ; IVToore, 20 ; Poph. 38 ; Vin. Ab. tit. 
Trespass, (H. a. 3,) pi. 8 ; Id. tit. Property (E.) pi. 5 ; Beits v. Zee, 
5 Johns. Rep. 348 ; 2 Kent's Com. 364. The same doctrine was laid 
down in Brown v. Sax, 7 Cowen, 95. The court there said: "The 
rule, in case of a wrongful taking is, that the taker cannot, by any act 
of his own, acquire title, unless he either destroy the identity of the 
thing ; as by changing monej- into a cup, or grain into malt ; or annex- 
ing it to and making it a part of some other thing, which is the princi- 
pal ; or changing its nature from personal to real property ; as where 
it is worked into a dwelling-house." 

In the present case, the nature and species of the commodity was 
entirely changed and its identity destrojed ; as eflTectually, it seems to 
me, as by " making wine, oil, or bread, out of another's grapes, olives, 
or wheat." I think the circuit judge erred in nonsuiting the plaintiflfe, 
and that thej' are entitled to a new trial. New trial granted. 

On the second trial it was proved that one Hackney, a deputy of the 
sheriff of Montgomery county, on the 22d day of March, 1842, by vir- 
tue of a fi. fa. on a judgment in this court in favor of the defendants, 
against one Uriah Wood, sold the whiskey in question, being about 
twelve hundred gallons, and worth $277.68, he having previously levied 
upon it ; and that upon the sale the defendants became the purchasers, 
and afterwards converted it to their own use. The wliiskey was levied 
on and sold at the plaintiffs' distillery, and they forbade the sale. The 
plaintifis having rested, the defendants oflTered to prove in their defence 
that the whiskey was manufactured from corn belonging to Wood, 
the defendant in the execution ; that tlie plaintiffs had taken the corn 
and manufactured it into whiskey, without anj' authority from Wood ; 
and that they knew at the time they took it that it belonged to him. 
The plaintiffs' counsel objected to this evidence, insisting that Wood's 
title to the corn was extinguished by the conversion of it into whiskey. 
The judge sustained the objection and rejected the evidence, and the 
defendants' counsel excepted. Verdict for the plaintiflTs. A motion is 
now made for a new trial, on a bill of exceptions. 

N. Hill, Jr., for the defendants. i 

D. Cady, for the plaintiffs. 


Beonson, C. J. It is undoubtedly a general rule in every civilized 
state, that a man can only lose his title to property by the operation of 
law, or his own voluntarj' act. But this, like most other general rules, 
has its exceptions. If one wrongfully take the chattel of another, and 
merely change its form and value by bestowing his labor and skill upon 
it, without destroying its identitj', the property still remains in the 
original owner, and he may either retake it, or recover the value in 
its state of improvement. Thus, where leather is made into boots and 
shoes, cloth into a garment, trees into square timber, iron into bars, 
or timber into boards, shingles, or coal, the title remains in the owner 
of the original materials, and he ipay either retake the chattel in its 
improved state, or recover its enhanced value. But if the thing be 
changed into a different species, so that it cannot be reduced to its 
former rude materials, it then belongs to the new operator ; and he is 
onlj- to make satisfaction to the former owner for the materials con- 
verted. Examples of this kind are, where grapes are made into wine, 
olives into oil, wheat into bread, milk into cheese, grain into malt, or 
corn into whiskey. In such cases the property is changed, and the 
original proprietor only has an action to recover his damages. Thus 
far our lawyers have followed the rule of the civil law. It will be suffi- 
cient to refer to the report of this case when it was before us on a for- 
mer occasion, and the learned note of the reporter for the authorities 
on this subject. Silsbury v. McCoon, 6 Hill, 425. We there held, 
that when corn is wrongfully taken and manufactured into whiskey, by 
which the nature and species of the commoditj' is entirely changed, and 
its identitj- destroyed, the property is also changed, and the new pro- 
duct belongs to the manufacturer. The ease has come back again 
upon an offer to show that the corn was taken with the knowledge that 
it belonged to another ; and we are referred to the further teaching of 
the civilians, who hold that where the property was taken bj- a wilful 
trespass, the title is not changed, however great may be the change 
which has been wrought in the original materials. But I do not find 
that this doctrine has ever been adopted into our law by any adjudica- 
tion either here or in England. It was mentioned in Betts v. iee, 
5 John. 348, and again in Curtis v. Groat., 6 Id. 168 ; but although 
the judge who wrote the per curiam opinions in those cases evi- 
dently had a strong leaning to the doctrine of the civilians, the decis- 
ions turned upon other grounds. The changes had been from timber 
into shingles and coal : but the property had never been out of the pos- 
session of the original owner ; and it was held in both cases that the 
identity of the original materials was sufficiently established. And 
where the change was from timber to coal, the only point necessarily 
decided was the one on which the case was put at the outset, that the 
matter in litigation was res adjudicata. The reasons for those judg- 
ments were, I presume, assigned by the learned commentator upon 
American law, who in his treatise still retained his former opinion. 
2 Kent, 363. But Blackstone, 2 Com. 404, 405, lays down the rale. 


■without anj' qualification, that when the thing is changed into a differ- 
ent species, as by making wine, oil, or bread out of another's grapes, 
olives, or wheat, it belongs to the new operator ; who is only to make 
satisfaction to the former proprietor for the materials converted. The 
decisions on the general subject commenced as early as the Year-Book, 
5 H. 7, fol. 15 ; and if the distinction of the civiUans between a wilful 
and an innocent trespass had ever been adopted into our law, we 
should be able to find the evidence of it in some reported adjudication. 
But none seems to have been known to Blackstone ; none is cited by 
Chancellor Kent in his Commentaries ; nor was any such decision pro- 
duced by the counsel who argued this case. 

The question is not, as it has been sometimes artfully put, whether 
the common law will allow the owner to be unjustly deprived of his 
propert3-, or will give encouragement to a wilful trespasser. It will do 
neither. But in protecting the owner, and punishing the wrongdoer, 
our law gives such rules as are capable of practical application, and are 
best calculated to render exact justice to both parties. The proper 
inquiry is, in what manner and to what extent should the trespasser be 
punished, and what should be the kind and measure of redress to the 
injured party. A trespasser who takes iron ore and converts it into 
watch-springs, by which its value is increased a thousand fold, should 
not be hanged, nor should he lose the whole of the new product. Ei- 
ther punishment would be too great. Nor should the owner of the ore 
have the watch-springs ; for it would be more than a just measure of 
redress. Our law has therefore wisely provided other remedies and 
punishments. The owner may retake his ore, either with or without 
process, so long as its identity remains, and may also recover damages 
for the tortious taking. Or without repossessing himself of the prop- 
ertj-, he may have an action of trespass, in which the jury will not fail 
to give the proper damages. But the law will not allow the owner to 
wait until the ore has been converted into a different species of prop- 
erty, and then to seize the new product, either with or without process. 
Nor is the value of the new product the proper measure of damages, if 
he bring an action of trespass or trover. 

Although there will not be many cases where the difference be- 
tween the value of the rude material and the new product will be so 
striking as in the case which has been mentioned, yet in almost every 
instance where the chattel taken has been converted into a differ- 
ent species of property, the value of the new product will be more 
than the trespasser ought to pay, or the owner of the chattel ought to 

The common law not only has regard to the proper measure of re- 
dress and punishment, but its rules are such as can be successfully 
applied and administered. Before the thing has been transformed into 
a different species, its identity can be easilj* established ; the owner 
can know what to retake, and his title can be proved in a court of jus- 
tice. But after iron ore has been changed into watch-springs or nee- 


dies, grapes into wine, or corn into whiskey, it is nearly or quite 
impossible to trace the connection between the new products and the 
original rude materials. 

In conceding for all the purposes of this case that the owner may fol- 
low the property until it is changed into a different species, I must not 
be understood as expressing the opinion that such is the proper rule. 
As an original question, I think the owner should either reclaim the 
propertj' before the new possessor has greatly increased its value, either 
by bestowing his labor and skill upon it, or by joining it to other mate- 
rials of his own ; or else that he should be restricted to a remedy by 
action for the damages which he has sustained. But the question may 
not be open to consideration upon principle ; and for the present I 
onl}' mean to say that we have followed the civil law far enough, with- 
out taking another step, and holding that in the case of a wilful tres- 
pass the owner can never lose his title to the property'. And it comes 
to that ; for if he may trace his title from corn to whiskey, he may 
follow it so long as matter endures. 

Beaedsley, J., concurred. 

Jevtett, J., dissented.^ 

After judgment the defendants brought error to this Court [for the 
Correction of Errors] , where the cause was first argued by Mr. Sill, for 
the plaintiffs in error, and Mr. Reynolds, for the defendants in error, in 
September, 1848. The judges being divided in opinion, a re-argument 
was ordered, which came on in January last. 

]SF. Hill, Jr., for the plaintiffs in error. 

M. T. Reynolds for the defendants in error. 

Edggles, J. It is an elementary principle in the law of all civilized 
communities, that no man can be deprived of his property, except by 
his own voluntary' act, or by operation of law. The thief who steals a 
chattel, or the trespasser who takes it by force, acquires no title by 
such wrongful taking. The subsequent possession by the thief or the 
trespasser is a continuing trespass ; and if during its continuance, the 
wrongdoer enhances the value of the chattel by labor and skill bestowed 
upon it, as by sawing logs into boards, splitting timber into rails, mak- 
ing leather into shoes, or iron into bars, or into a tool, the manufactured 
article still belongs to the owner of the original material, and he may 
retake it or recover its improved value in an action for damages. And 
if the wrongdoer sell the chattel to an honest purchaser having no notice 
of the fraud by which it was acquired, the purchaser obtains no title 
from the trespasser, because the trespasser had none to give. The 
owner of the original material maj' still retake it in its improved state, 
or he may recover its improved value. The right to the improved 
value in damages is a consequence of the continued ownership. It 
would be absurd to say that the original owner may retake the thing by 
an action of replevin in its improved state, and yet that he may not, if 

I This dissenting opinion is omitted. 


put to his action of trespass or trover, recover its improved value in 
damages. Thus far, it is conceded that the common law agrees with 
the clvU. 

They agree in another respect, to wit, that if the chattel wrongfully 
taken, afterwards come into the hands of an innocent holder who 
believing himself to be the owner, converts the chattel into a thing of 
different species so that its identity is destroyed, the original owner 
cannot reclaim it. Such a change is said to be wrought when wheat is 
made into bread, olives into oil, or grapes into wine. In a case of this 
kind the change in the species of the chattel is not an intentional wrong 
to the original owner. It is therefore regarded as a destruction or con- 
sumption of the original materials, and the true owner is not permitted 
to trace their identity into the manufactured article, for the purpose of 
appropriating to his own use the labor and skill of the innocent occu- 
pant who wrought the change ; but he is put to his action for damages 
as for a thing consumed, and may recover its value as it was when the 
conversion or consumption took place. 

There is great confusion in the books upon the question what consti- 
tutes change of identity. In one case, (5 Hen. 7, fol. 15,) it is said 
that the owner may reclaim the goods so long as they may be known, 
or in other words, ascertained by inspection. But this in many cases is 
by no means the best evidence of identity ; and the examples put by 
way of illustration serve rather to disprove than to establish the rule. 
The court say that if grain be made into malt, it can not be reclaimed 
by the owner because it can not be known. But if cloth be made into 
a coat, a tree into squared timber, or iron into a tool, it maj'. Now 
as to the cases of the coat and the timber they may or may not be cap- 
able of identification by the senses merely ; and the rule is entirely 
uncertain in its application ; and as to the iron tool, it certainly can not 
be identified as made of the original material, without other evidence. 
This illustration, therefore, contradicts the rule. In another case, 
(Moore's Rep. 20,) trees were made into timber and it was adjudged 
that the owner of the trees might reclaim the timber, " because the 
greater part of the substance remained." But if this were the true 
criterion it would embrace the cases of wheat made into bread, milk 
into cheese, grain into malt, and others which are put in the books as 
examples of a change of identity. Other writers say that when the 
thing is so changed that it can not be reduced from its new form, to its 
former state, its identity is gone. But this would include many cases 
in which it has been said by the courts that the identit}' is not gone ; as 
the case of leather made into a garment, logs into timber or boards, 
cloth into a coat, &c. There is therefore no definite settled rule on this 
question ; and although the want of such a rule may create embarrass- 
ment in a case in which the owner seeks to reclaim his property from 
the hands of an honest possessor ; it presents no difficulty where he 
seeks to obtain it from the wrongdoer ; provided the common law 
agrees with the civil in the principle applicable to such a case. 


The acknowledged principle of the civil law is that a wilful wrong- 
doer acquires no property in the goods of another, either by the wrong- 
ful taking or by any change wrought in them by his labor or skill, 
however great that change maj' be. The new product, in its improved 
state, belongs to the owner of the original materials, provided it be 
proved to have been made from them ; the trespasser loses his labor, 
and that change which is regarded as a destruction of the goods, or an 
alteration of their identity in favor of an honest possessor, is not so 
regarded as between the original owner and a wilful violator of his right 
of propertj-. 

These principles are to be found in the digest of Justinian. (Lib. 
10, tit. 4, leg. 12, § 3.) " If any one shall make wine with my grapes, 
oil with mj' olives, or garments with my wool, knowing they are not 
his own, he shall be compelled "by action to produce the said wine, oil 
or garments." So in Vinnius' Institutes, tit. 1, pi. 25. " He who 
knows the material is another's ought to be considered in the same 
light as if he had made the species in the name of the owner, to whom 
also he is to be understood to have given his labor." 

The same principle is stated by Puffendorf in his Law of Nature and 
of Nations, (b. 4, ch. 7, § 10) and in Wood's Institutes of the Civil Law, 
p. 92, which are cited at large in the opinion of Jewett J. delivered in 
this case in the Supreme Court. (4 Denio, 338,) and which it is un- 
necessary here to repeat. In Brown's Civil and Admiralty Law, p. 
240, the writer states the civil law to be that the original owner of any 
thing improved by the act of another, retained his ownership in the 
thing so improved, unless it was changed into a different species ; as if 
his grapes were made into wine, the wine belonged to the maker, who 
was only obliged to pay the owner for the value of his grapes. The 
species however must be incapable of being restored to its ancient 
form ; and the materials must have been taken in ignorance of their 
being the property of another. 

But it was thought in the court below that this doctrine had never 
been adopted into the common law, either in England or here ; and the 
distinction between a wilful and an involuntary wrongdoer hereinbefore 
mentioned, was rejected not only on that ground but also because the 
rule was supposed to be too harsh and rigorous against the wrongdoer. 

It is true that no case has been found in the English books in which 
that distinction has been expressly recognized ; but it is equally true 
that in no case until the present has it been repudiated or denied. The 
common law on this subject was evidentlj' borrowed from the Roman 
at an early day ; and at a period when the common law furnished no 
rule whatever in a case of this kind. Bracton, in his treatise compiled 
in the reign of Henry III., adopted a portion of Justinian's Institutes 
on this subject without noticing the distinction ; and Blackstone, in his 
Commentaries, vol. 2, p. 404, in stating what the Roman law was, 
follows Bracton, but neither of these writei's intimate that on the point 
in question there is any difference between the civil and the common law. 


The authorities referred to bj- Blackstone in support of his text are 
three onl3'. The first in Brooljs' Abridgment, tit. Property 23, is the 
case from the Year Book, 5 H. 7, fol. 15, (translated in a note to 4 
Denio, 335,) in which the owner of leather brought trespass for taking 
slippers and boots, and the defendant pleaded that he was the owner of 
the leather and bailed it to J. S. who gave it to the plaintiff", who manu- 
factured it into slippers and boots, and the defendant took them as he 
lawfullj' might. The plea was held good and the title of the owner of 
the leather unchanged. The second reference is to a case in Sir Francis 
Moore's Reports, p. 20, in which the action was trespass for taking tim- 
ber, and the defendant justified on the ground that A entered on his 
land and cut down trees and made timber thereof, and carried it to the 
place where the trespass was alledged to have been committed, and 
afterwards gave it to the plaintiff, and that the defendant therefore 
took the timber as he lawfullj^ might. In these cases the chattels had 
passed from the hands of the original trespasser into the hands of a 
third person ; in both it was held that the title of the original owner 
was unchanged, and that he had a right to the property in its improved 
state against the third person in possession. The^* are in conformity 
with the rule of the civil law ; and certainly fail to prove any difference 
between the civil and the common law on the point in question. The 
third case cited is from Popham's Reports, p. 38, and was a case of con- 
fusion of goods. The plaintiff" voluntarily mixed his own hay with the 
h&y of the defendant, who carried the whole away, for which he was 
sued in trespass ; and it was adjudged that the whole should go to the 
defendant ; and Blackstone refers to this case in support of his text, 
that " our law to guard against fraud gives the entire property, without 
anj- account to him whose original dominion is invaded and endeavored 
to be rendered uncertain without his own consent." The civil law in 
such a case would have required him who retained the whole of the 
mingled goods to account to the other for his share, (Just. Inst. lib. 2, 
tit. 1, § 28 ;) and the common law in this particular appears to be more 
rigorous than the civil ; and there is no good reason why it should be 
less so in a case like that now in hand, where the necessitj- of guarding 
against fraud is even greater than in the case of a mingling of goods, 
because the cases are likely to be of more frequent occurrence. Even 
this liability to account to him whose conduct is fraudulent, seems by 
the civil law to be limited to cases in which the goods are of such a 
nature that they may be divided into shares or portions, according to 
the original right of the parties ; for by that law if A obtain by fraud 
the parchment of B, and write upon it a poem, or wrongfully take his 
tablet and paint thereon a picture, B is entitled to the written parch- 
ment and to the painted tablet, without accounting for the value of the 
writing or of the picture. (Just. Inst. lib. 2, tit. 1, §§ 23, 24.) Neither 
Bracton nor Blackstone have pointed out any diff"erence except in the 
case of confusion of goods between the common law and the Roman, 
from which on this subject our law has mainly derived its principles. 


So long as property wrongfuUj' taken retains its original form and 
substance, or maj- be reduced to its original materials, it belongs, ac- 
cording to the admitted principles of the common law, to the original 
owner, without reference to the degree of improvement, or the addi- 
tional value given to it by the labor of the wrongdoer. Nay more, this 
rule holds good against an innocent purchaser from the wrongdoer, 
although its value be increased an hundred fold by the labor of the 
purchaser. This is a necessary consequence of the continuance of the 
original ownership. 

There is no satisfactory reason why the wrongful conversion of the 
original materials into an article of a diflferent name or a different 
species should work a transfer of the title from the true owner to the 
trespasser, provided the real identitj^ of the thing can be traced by evi- 
dence. The diflSculty of proving the identitj' is not a good reason. It 
relates merely to the convenience of the remedj', and not at all to the 
right. There is no more difficult}' or uncertainty in proving that the 
whisky in question was made of Wood's corn, than there would have 
been in proving that the plaintiff had made a cup of his gold, or a tool 
of his iron ; and yet in those instances, according to the English cases, 
the proof would have been unobjectionable. In all cases where the new 
product can not be identified bj- mere inspection, the original material 
must be traced by the testimony of witnesses from hand to hand through 
the process of transformation. 

Again. The court below seem to have rejected the rule of the civil 
law applicable to this case, and to have adopted a principle not hereto- 
fore known to the common law ; and for the reason that the rule of the 
civil law was too rigorous upon the wrongdoer', in depriving him of the 
benefit of his labor bestowed upon tlie goods wrongfully taken. But 
we think the civil law in this respect is in conformitj- not onlj' with 
plain principles of moralitj', but supported by cogent reasons of public 
policy ; while the rule adopted by the court below leads to the absurdity 
of treating the wilfal trespasser with greater kindness and mercy than 
it shows to the innocent possessor of another man's goods. A single 
example may suffice to prove this to be so. A trespasser takes a 
quantity of iron ore belonging to another and converts it into, iron, thus 
changing the species and identity of the article : the owner of the ore 
may recover its value, in trover or trespass ; but not the value of the 
iron, because under the rule of the court below it would be unjust and 
rigorous to deprive the trespasser of the value of his labor in the trans- 
mutation. But if the same trespasser steals the iron and sells it to an 
innocent purchaser, who works it into cutlery, the owner of the iron 
may recover of the purchaser the value of the cutler}', because by this 
process the original material is not destroyed, but remains, and may be 
reduced to its former state ; and according to the rule adopted by the 
court below as to the change of identity the original ownership remains. 
Thus the innocent purchaser is deprived of the value of his labor, while 
the guilty trespasser is not. 


The rule adopted b^' the court below seems, therefore, to be objec- 
tionable, because it operates unequal!}' and unjustly. It not only divests 
the true owner of his title, without his consent ; but it obliterates the 
distinction maintained by the civil law, and as we think by the common 
law, between the gniltj^ and the innocent ; and abolishes a salutary 
check against violence and fraud upon the rights of property. 

"We think, moreover, that the law on this subject has been settled by 
judicial decisions in this country-. In Jietts v. iee, 5 John. 349, it 
was decided that as against a trespasser the original owner of the prop- 
erty may seize it in its new shape, whatever alteration of form it may 
have undergone, if he can prove the identity of the original materials. 
That was a case in which the defendant had cut down the plaintiffs 
trees, and made them into shingles. The property could neither be 
identified bj' inspection, nor restored to its original form ; but the 
plaintiff recovered the value of the shingles. So in Curtis v. Groat, 
6 John. 169, a tresspasser cut wood on another's land and converted 
it into charcoal. It was held that the charcoal still belonged to the 
owner of the wood. Here was a change of the wood into an article of 
different kind and species. No part of the substance of the wood 
remained in its original state ; its identitj' could not be ascertained by 
the senses, nor could it be restored to what it originally was. That 
case distinctly recognizes the principle that a wilful trespasser can not 
acquire a title to property merely by changing it from one species 
to another. And the late Chancellor Kent, in his Commentaries, 
(Vol. 2, p. 363,) declares that the English law will not allow one 
man to gain a title to the propert}' of another upon the principle of 
accession, if he took the other's property wilfully- as a trespasser : and 
that it was settled as early as the time of the Year Books, that what- 
ever alteration of form anj' propert}' had undergone, the owner might 
seize it in its new shape, if he could prove the identity- of the original 

The same rule has been adopted in Pennsylvania. Snyder v. 
Vaux, 2 Rawle, 427. And in Maine and Massachusetts it has been 
applied to a wilful intermixture of goods. Ryder v. Hathaway, 21 
Pick. 304, 5; Wingate v. Smith, 7 Shep. 287; Willard v. Rice, 11 
Mete. 493. 

We are therefore of opinion that if the plaintiffs below in converting 
the corn into whisky knew that it belonged to Wood, and that the}- 
were thus using it in violation of his right, they acquired no title to the 
manufactured article, which although changed from the original material 
into another of different nature, yet being the actual product of the 
corn, still belonged to "Wood. The evidence offered by the defendants 
and rejected by the circuit judge ought to have been admitted. 
■ The right of "Wood's creditors to seize the whisky by their execution 
is a necessary consequence of "Wood's ownership. Their right is para- 
mount to his, and of course to his election to sue in trover or trespass 
for the corn. 



The judgment of the Supreme Court should be reversed and a new 
trial ordered. 

Gardiner, Jewett, Hurlbut, and Pratt, JJ., concurred. 

Brostson, Ch. J. Two verj' able arguments here, against the opinion 
which I delivered when the case was before the Supreme Court, (4 
Denio, 332,) have only served to confirm me in the conclusion at which 
I then arrived. I shall add but little now to what I said on the former 

The owner may, as a general rule, follow and retake the property- of 
which he has been wrongfully deprived so long as the same thing 
remains, though it may have been changed in form and value by the 
labor and skill of the wrong-doer. But when, as in this case, the 
identity of the thing has been destroj'ed by a chemical process, so 
that the senses can no longer take cognizance of it — when it has 
not only changed its form and appearance, but has so combined with 
other elements that it has ceased to be the same thing, and become 
something else, the owner can, I think, foUow it no longer : his 
remedy is an action for damages. Such I take to be the rule of 
the common law ; and that is our law. 

The rule for which the defendants contend, that in the case of a 
wilful trespass, the owner may follow and retake his property after it 
has been changed into a thing of a different species — that he may 
trace corn into whisky, and take the new product — is open to several 
objections. First : it would be nearly or quite impossible to. administer 
such a rule in trials bj' jury. Second : the rule would often work injus- 
tice, by going beyond the proper measure of either redress or punish- 
ment ; while an action for damages would render exact justice to both 
parties. It is very true that a wilful trespasser should be punished : but 
that proves nothing. All agree that he should be made to suffer ; but 
the mode and measure of punishment are questions which still remain. 
If one has knowingly taken six pence worth of his neighbor's goods as 
a trespasser, he should neither be imprisoned for life, nor should he 
forfeit a thousand dollars. We should not lose sight of the fact, that the 
rule now to be established is one for future, as well as present use ; and 
it may work much greater injustice in other cases than it can in this. 
Third : there is no authority at the common law for following and re- 
taking the new product in a case like this. I make the remark with the 
more confidence, because the very diligent counsel for the defendants, 
after having had several years, pending this controversy, for researcli, 
has only been able to produce some dicta of a single jurist, without so 
much as one common law adjudication in support of the rule for which 
he contends. He is driven to the civil law ; and then the argument is, 
that because we, in common with the civilians, allow the owner to re- 
take his property in certain cases, we must be deemed to have adopted 
the rule of the civil law on this subject in its whole extent. But tliat 
is a non sequitur. It often happens that our laws and those of the 
Romans — and, indeed, of all civilized nations — are found to agree in 


some particulars, while they are widely different in others ; and this is 
true of laws relating to a single subject. There is no force, therefore, 
in the argument, that because our law touching this matter is to some 
extent like the civil law, it may be presumed that the two systems are 
alike in every particular. And clearlj-, the burden of showing that the 
Roman law is our law, lies on those who affirm that fact. There is not 
only the absence of anj' common law adjudication in favor of the rule 
for which the defendants contend, but in one of the earliest cases on 
the subject to be found in our books, (Year Book, 5 H. 7, fo. 15, 4 
Denio, 335, note,) the court plainly recognized the distinction which 
has been mentioned, and admitted that the owner could not retake the 
propertj' after its identity had been destroyed; and "grain taken and 
malt made of it " was given as an example. 

There are manj^ cases where the title to a personal chattel may be 
turned into a mere right of action, without the consent of the owner, 
although the thing was taken by a wilful trespasser, or even by a thief. 
If a man steal a piece of timber, and place it as a beam or rafter in his 
house ; or a nail, and drive it into his ship ; or paint, and put it upon 
his carriage, the owner can not retake his goods, but is put to his action 
for damages ; and this is so in the civil, as well as at the common law. 
If a thief take water from another's cistern, and use it in making beer ; 
or salt, and use it in pickling pork ; or fuel, and use it in smoking 
hams, I suppose no one will saj', that the owner of the water, the salt, 
or the fuel may seize the beer, the pork or the hams. And there is no 
better reason for giving him the new product, where sand is made into 
glass, malt into beer, coal into gas, or grain into whiskj\ In the case 
now before us, the civilians would not go so far as to say, that the 
owner of the grain might take the swine which were fattened on the 
refuse of the grain after it had gone through the process of distillation. 
And yet that would hardly be more unjust or absurd than it would be 
to give him the whiskj'. There must be a limit somewhere ; and I 
know of none which is more safe, practical and just than that which 
allows the owner to follow a chattel until it has either been changed 
into a different species, or been adjoined to something else, which is 
the principal thing ; and stops there. Thus far our courts have gone, 
and there they have stopped. We have neither precedent nor reason 
in favor of taking another step ; and I can not take it. 

Judge Harris agrees with me in the opinion that the judgment of the 
Supreme Court is right, and should be affirmed. 

Taylor, J. did not hear the argument, and gave no opinion. 

Judgment reversed. 



Supreme Couet of Maine. 1851. 
[Iieported32 Me. iOi.] 

Trespass for an iron chain, which each of the parties claimed 
to own. r 

The evidence tended to show, that each of the parties had a chain ; — 
that each chain had been broken into several pieces ; that the plain- 
tiff, without the consent or knowledge of the defendant, carried all the 
pieces to a blacksmith, and had them made up into two chains ; — and 
that the defendant carried away one of them into which some part of 
his own chain had been incorporated. It was for this chain, that this 
suit is brought. 

The judge instructed the jurj' that if the plaintiff had only incorpo- 
rated into this chain some small portion of the defendant's chain with- 
out his consent, not exceeding two or three links, it would not thereby 
become the property of the defendant. To this ruling the defendant 

Woodman, for the defendant. 

Goodwin, for the plaintiff. 

Howard, J. This case presents a question of acquisition of property 
by accession, but does not involve an inquiry concerning the admixture 
or confusion of goods. It is a general rule of law, that if the materials 
of one person are united to the materials of another, by labor, forming 
a joint product, the owner of the principal materials will acquire the 
right of property in the whole, bj' right of accession. This was a rule 
of the Roman, and of the English law, and has been adopted, as it is 
understood, in the United States, generally. Dig. 6, 1, 61 ; Bracton 
de acq. rerum dom. B. 2, c. 2, § 3, 4 ; Molloy, B. 2, c. 1, § 7 ; Pothier, 
Trait du droit de propriety, L. 1, c. 2, art. 3, No. 169-180 ; 2 Black. 
Com. 404 ; 1 Bro. Civil Law, 241 ; Glover v. Austin, 6 Pick. 209 ; Sum- 
ner V. Hamlet, 12 Pick. 83 ; Merritt v. Johnson, 7 Johns. 474 ; 2 Kent's 
Com. 361. 

The distinctions and qualifications, that may be appropriate and 
necessary in the application of this doctrine to a variety of cases that 
may arise, do not require consideration, in determining this case. The 
first instruction stated was favorable to the defendant, and forms no 
ground of exceptions for him ; and the plaintiff does not complain of it. 
The second instruction, that " if the plaintiff had only incorporated into 
this chain some small portion of the defendant's chain, without his con- 
sent, not exceeding two or three links, the chain would not by the incor- 


poration of such small portion, become the property of the defendant," 
is understood to be in accordance with the rule of law before mentioned, 
and is not erroneous. 

Exceptions overruled, judgment on the verdict. 



[Repm-tud 11 Mich. Z\l.] 

Error to Bay Circuit. 

This was an action of replevin, brought by George Green, Charles 
H. Camp and George Brooks, in the Circuit Court for the county of 
Baj', against George Wetherbee, for one hundred and fifty-eight thou- 
sand black ash barrel hoops, alleged to be of the value of eight hundred 
dollars. The hoops were cut upon a tract of land which Green, one of 
the plaintiffs, and one Thomas Sumner had owned as tenants in com- 
mon. Green, bj' parol, had authorized Sumner to sell timber from off 
the land. Afterwards, Sumner being indebted to Camp and Brooks, 
the other plaintiffs, convej'ed to them, by warranty deed, his undivided 
half of the land, they agreeing orally to re-convey upon payment. 
Sumner after his eonvej'ance to Camp and Brooks, sold a quantity of 
timber growing upon the land to Wetherbee, wlio cut and manu- 
factured the same into hoops, — for the possession of which this action 
is brought. 

On the trial, the circuit judge excluded the testimony offered by the 
defendant, to show the character of the transaction between Sumner 
and Camp and Brooks, and the license derived from Sumner to cut the 
timber ; and under the charge of the court the jury found for plain- 
tiffs. The judgment entered upon the verdict comes into this court by 
writ of error. 

Marston and Hatch, for plaintiff in error. 

Clark and 2)ay, for defendants in error. 

CooLEY, J. The defendants in error replevied of Wetherbee a quan- 
tity of hoops, which he had made from timber cut upon their land. 
Wetherbee defended the replevin suit on two grounds. First, he 
claimed to have cut the timber under a license from one Sumner, who 
was formerlj' tenant in common of the land with Green, and had been 
authorized by Green to give such license. Before the license was 
given, however, Sumner had sold his interest in the land to Camp and 
Brooks, the co-plaintiffs with Green, and had conveyed the same by 
warranty deed ; but Wetherbee claimed and offered to show by parol 
evidence, that the sole purpose of this conveyance was to secure a pre- 


existing debt from Sumner to Camp and Broots, and that consequently- 
it amounted to a mortgage only, leaving in Sumner, under our statute, 
the usual right of a mortgagor to occup}^ and control the land until 
foreclosure. He also claimed that the authority given bj' Green to Sum- 
ner had never been revoked, and that consequeutlj' the license given 
would be good against Green, and constitute an effectual bar to the 
suit in replevin, which must fail if any one of the plaintiffs was precluded 
from maintaining it. 

But if the court should be against him on this branch of the case, 
Wetherbee claimed further that replevin could not be maintained for the 
hoops, because he had cut the timber in good faith, relying upon a per- 
mission which he supposed proceeded from the parties ha\'ing lawful 
right to give it, and had, b}- the expenditure of his labor and monej-, 
converted the trees into chattels immensely more valuable than they 
were as they stood in the forest, and thereb}- he had made such chattels 
his own. And he offered to show that the standing timber was worth 
twent3--five dollars only, while the hoops replevied were shown bj- the 
evidence to be worth near seven hundred dollars ; also, that at the 
time of obtaining the license from Sumner he had no knowledge of 
the sale of Sumner's interest, but, on the other hand, had obtained an 
abstract of the title to the premises from a firm of land agents at the 
county seat, who kept an abstract book of titles to land in that countj', 
which abstract showed the title to be in Green and Sumner, and that he 
then purchased the timber, relying upon the abstract, and upon Sum- 
ner's statement that he was authorized by Green to make the sale. 
The evidence offered to establish these facts was rejected bj' the court, 
and the plaintiffs obtained judgment. 

The principal question which, from this statement, appears to be pre- 
sented by the record, may be stated thus : Has a party who has taken 
the property of another in good faith, and in reliance upon a supposed 
right, without intention to commit wrong, and by the expenditure of his 
money or labor, worked upon it so great a transformation as that which 
this timber underwent in being transformed from standing trees into 
hoops, acquired such a property therein that it cannot be followed into 
his hands and reclaimed by the owner of the trees in its improved 
condition ? 

The objections to allowing the owner of the trees to reclaim the prop- 
erty under such circumstances are, that it visits the involuntary wrong- 
doer too severely for his unintentional trespass, and at the same time 
compensates the owner beyond all reason for the injury he has sus- 
tained. In the redress of private injuries the law aims not so much to 
punish the wrong-doer as to compensate the sufferer for his injuries ; 
and the cases in which it goes farther and inflicts punitory or vindictive 
penalties are those in which the wrong-doer has committed the wrong 
recklessly, wilfully, or maliciously, and under circumstances presenting 
elements of aggravation. Where vicious motive or reckless disregard 
of right are not involved, to inflict upon a person who has taken the 


property of another, a penalty equal to twenty or thirty times its value, 
and to compensate the owner in a proportion equallj- enormous, is so 
opposed to all legal idea of justice and right and to the rules which 
regulate the recovery of damages generallj', that if permitted by the 
law at all, it must stand out as an anomaly and must rest upon peculiar 

As a general rule, one whose property has been appropriated by an- 
other without authoritj' has a right to follow it and recover the posses- 
sion from any one who maj- have received it ; and if, in the meantime, 
it has been increased in value b}' the addition of labor or money, the 
owner maj', nevertheless, reclaim it, provided there has been no destruc- 
tion of substantial identitj'. So far the authorities are agreed. A man 
cannot generally be deprived of his property except by his own volun- 
tary act or by operation of law ; and if unauthorized parties have be- 
stowed expense or labor upon it that fact cannot constitute a bar to his 
reclaiming it, so long as identification is not impracticable. But there 
must, nevertheless, in reason be some limit to the right to follow and 
reclaim materials which have undergone a process of manufacture. Mr. 
Justice Blackstone laj'S down the rule ver3' broadly, that if a thing is 
changed into a different species, as by making wine out of another's 
grapes, oil from his olives, or bread from his wheat, the product belongs 
to the new operator, who is onl}- to make satisfaction to the former pro- 
prietor for the materials converted. 2 Bl. Com., 404. "We do not un- 
derstand this to be disputed as a general proposition, though there are 
some authorities which hold that, in the case of a wilful appropriation, 
no extent of conversion can give to the wilful trespasser a title to the 
property so long as the original materials can be traced in the improved 
article. The distinction thus made between the case of an appropria- 
tion in good faith and one based on intentional wrong, appears to have 
come from the civil law, which would not suffer 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 given them a form which precluded 
their being restored to their original condition. 2 Kent. 36.3. While 
many cases have followed the rule as broadly stated by Blackstone, 
others have adopted the severe rule of the civil law where the conversion 
was in wilful disregard of right. The New York cases of Hetts v. Zee, 
5 Johns. 348 ; Curtis y. Groat, 6 Johns. 168; and Chandlery. Edson, 
9 Johns. 362, were all cases where the wilful trespasser was held to have 
acquired no property by a very radical conversion, and in Silsbury x. 
McCoon, 3 Comstock, 378, 385, the whole subject is very fully examined, 
and Ruggles, J., in delivering the opinion of the court, says that the 
common law and the civil law agree " that if the chattel wrongfully 
taken come into the hands of an innocent holder who, believing himself 
to be the owner, converts the chattel into a thing of different species, 
so that its identity is destroyed, the original owner cannot reclaim it. 
Such a change is said to be wrought when wheat is made into bread, 
olives into oil, or grapes into wine. In a case of this kind, the change 


in the species of the chattel is not an intentional wrong to the original 
owner. It is, therefore, regarded as a destruction or consumption of 
the original materials, and the true owner is not permitted to trace the 
identitj' into the manufactured article, for the purpose of appropriating 
to his own use the labor and skill of the innocent occupant who wrought 
the change ; bat he is put to his action for damages as for a thing con- 
sumed, and may recover its value as it was when the conversion or 
consumption took place," and further on he saj-s of the civil law, with 
which the common law is supposed bj' him to harmonize: "The ac- 
knowledged principle of the civil law is that a wilful wrong-doer acquires 
no property in the goods of another either by the wrongful taking, or 
by any change wrought in them by his labor or skill, however great that 
change may be. The new product in its improved state belongs to the 
owner of the original materials, provided it be proved to be made from 
them ; the trespasser loses his labor, and that change which is regarded 
as a destruction of the goods, or an alteration of their identity in favor 
of an honest possessor, is not so regarded as between the original owner 
and a wilful violator of his right of property." In further illustration 
of the same views we refer to Hyde v. Cookson, 21 Barb. 104 ; Mar- 
fin V. Porter, 5 M. & W. 351 ; Wild v. ITolt, 9 M. & W. 672 ; £aker 
V. Wheeler, 8 Wend. 508 ; Snyder v. Vaux, 2 Rawle, 427 ; Middle v. 
Driver, 12 Ala. 590. 

It does not become necessary for us to consider whether the case of 
Silshury v. McCoon, 3 Comstock, 378, which overruled the prior de- 
cisions of the supreme court (reported in 4 Denio, 425, and 6 Hill, 332), 
has not recognized a right in the owner of the original materials to fol- 
low them under circumstances when it would not be permitted by the 
rule as recognized by the authorities generally'. That was the case 
where a wilful trespasser had converted corn into whisky, and the 
owner of the corn was held entitled to the manufactured article. The 
rule as given by Blackstone would confine the owner, in such case, to 
his remed}' to recover damages for the original taking. But we are not 
called upon in this case to express an}' opinion regarding the rule ap- 
plicable in the case of a wilful trespasser, since the authorities agree 
in holding, that when the wrong had been involuntarj', the owner of 
the original materials is precluded, by the civil law and common law 
alike, from following and reclaiming the property after it has under- 
gone a transformation which converts it into, an article substantially 

The cases of confusion of goods are closely analogous. It has al- 
ways been held that he who, without fraud, intentional wrong, or reck- 
less disregard of the rights of others, mingled his goods with those of 
another person, in such manner that thej' could not be distinguished, 
should, nevertheless, be protected in his ownership so far as the circum- 
stances would permit. The question of motive here becomes of the 
highest importance ; for, as Chancellor Kent says, if the commingling 
of property "was wilfully made without mutual consent, . . . the 


common law gave the entire property, without any account, to him 
whose property was originally invaded, and its distinct character de- 
stroyed. Popham's Rep. 38, pi. 2. If A will wilfully intermix his 
corn or hay with that of B, or casts 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. Popham's Rep. ub. supra ; 
Warde v. Ayre, 2 Bulst. 323, 2 Kent, 364, 365 ; and see 2 Bl. Com. 
404 ; JIart v. Ten M/ck, 2 Johns. Ch. 62 ; Gordon v. Jenney, 16 
Mass. 465; Treat v. Barber, 7 Conn. 280; Barron v. CoUeigh, 11 
N. H. 561 ; Roth v. Wells, 29 N. Y. 486 ; Willardy. Rice, 11 Met. 
493 ; JenJfins v. Steanka, 19 Wis. 128 ; Sesseltine v. Stockwell, 30 
Me. 237. But this rule only applies to wrongful or fraudulent inter- 
mixtures. There maj' be an intentional intermingling and yet no wrong 
intended ; as where a man mixes two parcels together, supposing both 
to be his own ; or, that he was about to mingle his with his neighbor's, 
hy agreement, and mistakes the parcel. In such cases, which may be 
deemed accidental intermixtures, it would be unreasonable and unjust 
that he should lose his own or be obliged to take and pay for his neigh- 
bor's, as he would have been under the civil law. Morton, J., in Ryder 
V. Hathaway, 21 Pick. 305. In many cases there will be difficulty in 
determining precisely how he can be protected with due regard to the 
rights of the other party ; but it is clear that the law will not forfeit his 
property in consequence of the accident or inadvertence, unless a just 
measure of redress to the other party renders it inevitable. Storj' on 
Bailm. § 40 ; Sedg. on Dams. 483. 

The important question on this branch of the case appears to us to 
be, whether standing trees, when cut and manufactured into hoops, are 
to be regarded as so far changed in character that their identity can be 
said to be destroj'ed within the meaning of the authorities. And as we 
enter upon a discussion of this question, it is evident at once that it is 
difficult, if not impossible, to discover any invariable and satisfactory 
test which can be applied to all the cases which s^se in such infinite 
variet}'. " If gi'ain be taken and made into malt, or mone}' 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. 
Bro. tit. Property, pi. 23 ; '' 2 Kent, 363. But cloth made into gar- 
ments, leather into shoes, trees hewn or sawed into timber, and iron 
made into bars, it is said may be reclaimed by the owner in their new 
and original shape. Sedg. on Dams. 484 ; Snyder v. Vaux, 2 Rawle, 
427 ; Betts v. Zee, 5 Johns. 348 ; Curtis v. Groat, 6 Johns. 168 ; 
Brown v. tSax, 7 Cow. 95; Silsbury v. McGoon, 4 Denio, 333, per 
Bronson, J. ; Ibid., 6 Hill, 426, per Nelson, Ch. J. ; Ibid., 3 Comstock, 
386, per Ruggles, J. Some of the cases place the right of the former 
owner to take the thing in its altered condition upon the question 
whether its identity could be made out by the senses. Year Book 5, 
H. 7, fo. 15, pi. 6 ; 4 Denio, 335 note. But this is obviously a very 
unsatisfactory test, and in many cases would wholly defeat the pur- 


pose which the law has in view in recognizing a change of title in 
any of these cases. That purpose is not to establish any arbitrar3' 
distinctions, based upon mere physical reasons, but to adjust the re- 
dress afforded to the one partj^ and the penalty inflicted upon the 
other, as near as circumstances will permit, to the rules of substan- 
tial justice. 

It may often happen that no difHcultj- will be experienced in determin- 
ing the identity of a piece of timber which has been taken and built into 
a house ; but no one disputes that the right of the original owner is gone 
in such a case. A particular piece of wood might perhaps be traced with- 
out trouble into a church organ, or other equally valuable article ; but 
no one would defend a rule of law which, because the identitj- could be 
determined bj' the senses, would permit the owner of the wood to appro- 
priate a musical instrument, a hundred or a thousand times the value of 
his original materials, when the party who, under like circumstances, has 
doubled the value of another man's corn bj' converting it into malt, is 
permitted to retain it, and held liable for the original value only. Such 
distinctions in the law would be without reason, and could not be toler- 
ated. When the right to the improved article is the point in issue, the 
question, how much the property or labor of each has contributed to 
make it what it is, must always be one of first importance. The owner 
of a beam built into the house of another loses his property in it, because 
the beam is insignificant in value or importance as compared to that to 
which it has become attached, and the musical instrument belongs to 
the maker rather than to the man whose timber was used in making it, 
— not because the timber cannot be identified, but because in bringing 
it to its present condition the value of the labor has swallowed up and 
rendered insignificant the value of the original materials. The labor, in 
the case of the musical instrument, is just as much the principal thing as 
the house is in the other case instanced ; the timber appropriated is in 
each case comparatively unimportant. 

No test which sajj^fies the reason of the law can be applied in the ad- 
justment of questions of title to chattels by accession, unless it keeps in 
view the circumstance of relative values. When we bear in mind the 
fact that what the law aims at is the accomplishment of substantial 
equity, we shall readity perceive that the fact of the value of the mate- 
rials having been increased a hundred fold, is of more importance in 
the adjustment than any chemical change or mechanical transformation, 
which, however radical, neither is expensive to the party making it, nor 
adds materially to the value. There may be complete changes with so 
little improvement in value, that there could be no hardship in giving 
the owner of the original materials the improved article ; but in the 
present case, where the defendant's labor — if he shall succeed in sus- 
taining his offer of testimony — will appear to have given the timber in 
its present condition nearlj' all its value, all the grounds of equitj' exist 
which influence the courts in recognizing a change of title under any 


We are of opinion that the court erred In rejecting the testimony 
offered. The defendant, we think, had a right to show that he had 
manufactured the hoops in good faith, and in the belief that he had the 
proper authority to do so ; and if he should succeed in making that 
showing, he was entitled to have the jury instructed that the title to the 
timber was changed by a substantial change of identity, and that the 
remedy of the plaintiff was an action to recover damages for the unin- 
tentional trespass. 

This view will dispose of the case upon the present record. Upon the 
other points we are not prepared to assent entirely to the views of the 
plaintiff in error. It does not appear to us important that the deed 
from Sumner to Camp and Brooks was intended as a mere securitj'. 
Under such a deed Sumner would have had a right of redemption, but 
it does not follow that he would have been entitled to possession, and 
to all the other rights of mortgagor in the courts of law. When a deed 
absolute in form is given to secure a debt, the purpose generallj' is to 
vest in the grantee a larger power of control and disposition than he 
would have b3' statute under an ordinary mortgage ; and we are not pre- 
pared to say that the statute — Comp. L. § 4614 — which forbids eject- 
ment by mortgagees before foreclosure was intended to reach a case of 
that description. We think, however, that the mere circumstance of the 
sale of Sumner's interest did not operate in law as a revocation of the 
authority previously given to Sumner to sell the timber. It is quite 
possible that Green would not have given his authorit}' had Sumner not 
been tenant in common of the land with him ; but there is no absolute 
presumption of the law to that effect ; and we cannot say that Green 
would have revoked the authority' had he been aware of Sumner's con- 
vej'ance. Nor was it necessary that the license given by Sumner to 
Wetherbee should have been in any particular form. A mere license to 
enter upon land and cut timber does not confer a legal right to do so ; 
but it nevertheless protects the licensee so far as he has acted under it 
before revocation, and the protection does not depend upon its form, 
but upon what has been done having proceeded by consent. However 
informal the consent may have been, the land owner cannot be allowed, 
by afterwards recalling it, to make the licensee a trespasser for what he 
has done in reliance upon it. 

For the reasons given, the judgment must be reversed, with costs, 
and a new trial ordered. 

The other justices concurred. 



Supreme Couet of Michigan. 

[Meported 37 Mich. 332.] 

Eeeor to Houghton. Submitted June 14. Decided Oct. 16. 

Trover and indebitatus assumpsit. The facts are in the opinion. 

T. L. Chadhourne and S. F. Seager, for plaintiff in error. 

Chandler tfc Grant and G. V. iV. Lothrop, for defendant in error. 

CooLET, C. J. The parties to this suit were owners of adjoining 
tracts of timbered lands. In the winter of 1873-74 defendants in error, 
who were plaintiffs in the court below, in consequence of a mistake re- 
specting the actual location, went upon the lands of the mining com- 
pany and cut a quantitj' of cord wood, which they hauled and piled on 
the bank of Portage Lake. The next spring the wood was taken pos- 
session of by the mining eompanj', and disposed of for its own pur- 
poses. The wood on the bank of the lake was worth $2.87J per cord, 
and the value of the labor expended bj' plaintiffs in cutting and placing 
it there was $1.87J per cord. It was not clearly shown that the mining 
company had knowledge of the cutting and hauling by the plaintiffs 
while it was in progress. After the mining company had taken posses- 
sion of the wood, plaintiffs brought this suit. The declaration contains 
two special counts, the first of which appears to be a count in trover 
for the conversion of the wood. The second is as follows : — 

"And for that whereas also, the said plaintiff, Michael Hertin, was 
in the year 1874 and 1875, the owner in fee simple of certain lands in 
said county of Houghton, adjoining the lands of the said defendant, 
and the said plaintiffs were, during the years last aforesaid, engaged as 
co-partners in cutting, hauling and selling wood from said lands of said 
Michael Hertin, and by mistake entered upon the lands of the said de- 
fendant, which lands adjoined the lands of the said plaintiff, Michael 
Hertin, and under the belief that said lands were the lands of the said 
plaintiff, Michael Hertin, cut and carried away therefrom a large 
amount of wood, to wit : one thousand cords, and piled the same upon 
the shore of Portage Lake, in said county of Houghton, and incurred 
great expense, and paid, laid out and expended a large amount of 
money in and about cutting and splitting, hauling and piling said wood, 
to wit : the sum of two thousand dollars, and afterwards, to wit : on the 
first day of June, a. d. 1875, in the county of Houghton aforesaid, the 
said defendant, with force and arms, and without any notice to or con- 
sent of said plaintiffs, seized the said wood and took the same from 
their possession and kept, used and disposed of the same for its own 
use and purposes, and the said plaintiffs aver that the labor so as afore- 
said done and performed by them, and the expense so as aforesaid 
incurred, laid out and expended by them in cutting, splitting, hauling 


and piling said wood, amounting as aforesaid to the value of two thou- 
sand dollars, increased the value of said wood ten times and constituted 
the chief value thereof, by reason whereof the said defendant then and 
there became liable to paj- to the said plaintiff, the value of the labor so 
as aforesaid expended by them up«n said wood and the expense so as 
aforesaid incurred, laid out and expended by them in cutting, splitting, 
hauling and piling said wood, to wit : the said sum of two thousand 
dollars, and being so liable, the said defendant in consideration thereof, 
afterwards to wit : on the same day and year last aforesaid and at the 
place aforesaid, undertook, and then and there faithfully promised the 
said plaintiffs to pay unto the said plaintiffs the said sum of two thou- 
sand dollars, and the interest thereon." 

The circuit judge instructed the jury as follows : — • 

" If you find that the plaintiffs cut the wood from defendant's land 
by mistake and without anj' wilful negligence or wrong, I then charge 
you that the plaintiffs are entitled to recover fi-om the defendant the 
reasonable cost of cutting, hauling and piling the same.'' This pre- 
sents the onlj' question it is necessarj' to consider on this record. The 
jurj' returned a verdict for the plaintiffs. 

Some facts appear by the record which might perhaps have warranted 
the circuit judge in submitting to the jury the question whether the 
proper authorities of the mining company were not aware that the wood 
was being cut by the plaintiffs under an honest mistake as to their 
rights, and were not placed by that knowledge under obligation to 
notify the plaintiffs of their error. But as the case was put to the jury, 
the question presented by the record is a narrow question of law, 
which may be stated as follows : whether, where one in an honest mis- 
take regarding his rights in good faith performs labor on the property 
of another, the benefit of which is appropriated by the owner, the per- 
son performing such labor is not entitled to be compensated therefor to 
the extent of the benefit received by the owner therefrom ? The affirma- 
tive of this proposition the plaintiffs undertook to support, having first 
laid the foundation for it by showing the cutting of the wood under an 
honest mistake as to the location of their land, the taking possession of 
the wood afterwards hy the mining company, and its value in the con- 
dition in which it then was and where it was, as compared with its 
value standing in the woods. 

We understand it to be admitted by the plaintiffs that no authority 
can be found in support of the proposition thus stated. It is conceded 
that at the common law when one thus goes upon the land of another 
on an assumption of ownership, though in perfect good faith and under 
honest mistake as to his rights, he may be held responsible as a tres- 
passer. His good faith does not excuse him from the payment of 
damages, the law requiring him at his peril to ascertain what his rights 
are, and not to_ invade the possession, actual or constructive, of an- 
other. If he cannot thus protect himself from the pa^-ment of damages, 
still less, it would seem, can he establish in himself any affirmative 


rights, based upon his unlawful, though unintentional encroachment 
upon the rights of another. Such is unquestionably the rule of the 
common law, and such it is admitted to be. 

It is said, however, that an exception to this rule is admitted under 
certain circumstances, and that a twspasser is even permitted to make 
title in himself to the property of another, where in good faith he has 
expended his own labor upon it, under circumstances which would 
render it grossly unjust to permit the other party to appropriate the 
benefit of such labor. The doctrine here invoked is the familiar one 
of title by accession, and though it is not claimed that the present case 
is strictly within it, it is insisted that it is within its equity, and that 
there would be no departure from settled principles in giving these 
plaintiffs the benefit of it. 

The doctrine of title by accession is in the common law as old as the 
law itself, and was previously known in other sj'stems.. Its general 
principles maj- therefore be assumed to be well settled. A wilful tres- 
passer who expends his monej' or labor upon the property of^another, 
no matter to what extent, will acquire no property therein, but the 
owner may reclaim it so long as its identity is not changed by conver- 
sion into some new product. Indeed some authorities hold that it may 
be followed even after its identity is lost in a new product ; that grapes 
maj' be reclaimed after they have been converted into wine, and grain 
in the form of distilled liquors. Silsbury v. McCoon, 3 N. Y. 379. 
See Riddle v. Driver, 12 Ala. 690. And while other authorities refuse 
to go so far, it is on all hands conceded that where the appropriation 
of the property of another was accidental or through mistake of fact, 
and labor has in good faith been expended upon it which destroj's its 
identity, or converts it into something substantially different, and the 
value of the original article is insignificant as compared with the value 
of the new product, the title to the property in its converted form must 
be held to pass to the person \>j whose labor in good faith the change 
has been wrought, the original owner being permitted, as his remedj', 
to recover the value of the article as it was before the conversion. 
This is a thoroughlj- equitable doctrine, and its aim is so to adjust the 
rights of the parties as to save both, if possible, or as nearly as possible, 
from anj' loss. But where the identity of the original article is suscep- 
tible of being traced, the idea of a change in the property is never 
admitted, unless the value of that which has been expended upon it is 
sufficiently great, as compared with the original value, to render the injus- 
tice of permitting its appropriation bj' the original owner so gross and 
palpable as to be apparent at the first blush. Perhaps no case has 
gone further than Wetherhee v. Green, 22 Mich. 311, in which it was 
held that one who, by unintentional trespass, had taken from the land 
of another j'oung trees of the value of $25, and converted them Into 
hoops worth $700, had thereby made them his own, though the iden- 
tity of trees and hoops was perfectly capable of being traced and 


But there is no such disparity in value between the standing trees 
and the cord wood in this case as was found to exist between the trees 
and the hoops in Wetherbee v. Green. The trees are not only suscep- 
tible of being traced and identified in the wood, but the difference in 
value between the two is not so great but that it is conceivable the 
owner may have preferred the trees standing to the wood cut. The cord 
wood has a higher market value, but the owner may have chosen not to 
cut it, expecting to make some other use of the trees than for fuel, or 
anticipating a considerable rise in value if they were allowed to grow. 
It cannot be assumed as a rule that a man prefers his trees cut into cord 
wood rather than left standing, and if his right to leave them uncut is 
interfered with even by mistake, it is manifestly just that the conse- 
quences should fall upon the person committing the mistake, and not 
upon him. Nothing could more encourage carelessness than the accept- 
ance of the principle that one who hy mistake performs labor upon 
the property of another should lose nothing by his error, but should 
have a claim upon the owner for remuneration. Why should one be 
vigilant and careful of the rights of others if such were the law? 
Whether mistaken or not is all the same to him, for in either case he 
has employment and receives his remuneration ; while the inconveniences, 
if any, are left to rest with the innocent owner. Such a doctrine offers 
a premium to heedlessness and blunders, and a temptation by false evi- 
dence to give an intentional trespass the appearance of an innocent 

A case could seldom arise in which the claim to compensation could 
be more favorably presented by the facts than it is in this ; since it is 
highly probable that the defendant would suffer neither hardship nor 
inconvenience if compelled to pay the plaintiffs for their labor. But a 
general principle is to be tested, not by its operation in an individual 
case, but bj' its general workings. If a mechanic emplo3'ed to alter 
over one man's dwelling house, shall bj' mistake go to another which 
happens to be unoccupied, and before his mistake is discovered, at a 
large expenditure of labor shall thoroughly overhaul and change it, 
will it be said that the owner, who did not desire his house disturbed, 
must eithtir abandon it altogether, or if he takes possession, must pay 
for labor expended upon it which he neither contracted for, desired nor 
consented to? And if so, what bounds can be prescribed to which the 
application of this doctrine can be limited ? The man who hy mistake 
carries off the property of another will next be demanding payment for 
the transportation ; and the onlj' person reasonablj- secure against 
demands he has never assented to create, will be the person who, pos- 
sessing nothing, is thereby protected against any thing being acciden- 
tally improved by another at his cost and to his ruin. 

The judgment of the Circuit Court must be reversed, with costs, and 
a new trial ordered. 

The other justices concurred. 



Supreme Couet Commission of Ohio. 1877. 
[Reported 32 Ohio St. 571.] 

Ereok to the District Court of Cuyahoga Count}'. 

The petition in this case avers that the said minors Joseph and 
Edward Barbour are owners in fee simple of a certain tract of land in 
Lake County, and then proceeds as follows : — 

Said land, when owned by said minors, was thicklj' wooded with 
excellent timber, and was very valuable on that account ; that all, or 
nearly all, of said timber, while said land was owned by said minors, 
was cut down and removed by persons now to this plaintiff unknown, 
without any authority whatever, and the same taken, used, and pos- 
sessed for its own benefit, without any authority whatever, bj" the 
Cleveland, Painesville, and Ashtabula Railroad Company, which was, 
on or about the 1st day of April, 1869, consolidated with certain other 
railroad companies under the name and stj'le of the Lake Shore and 
Michigan Southern Railway Companj', which last named company is 
made the defendant in this action. 

By reason of said timber being taken from said land and converted 
to its own use by the Cleveland, Painesville, and Ashtabula Railroad 
Company, said minor children were damaged in the amount of four 
thousand six hundred and fifty dollars ($4,650), for which sum, by 
reason of the premises, plaintiff asks judgment against the defendant, 
the Lake Shore and Michigan Southern Railway Company. 

It is denied in the answer, that plaintiffs were owners in fee simple 
of the land in question. 

A large quantity of wood and railroad ties was cut, upon this land, 
by persons who were trespassers, acting without legal right. There is 
some attempt in the evidence to show that these trespassers had some 
lawful claim, by virtue of a tax title, to part of the premises. But for 
the purposes of the case, this claim is ignored, and it is assumed that 
the timber was actually' stolen. Having been thus unlawfully appro- 
priated, it was sold bj' the parties who took it to the railroad companj-, 
but it is admitted that the company purchased and paid for the wood, 
trees, and ties, in good faith, without notice of plaintiffs' rights, or 
that any wrong had been or was done his woods. 

The fair value of the timber standing upon plaintiffs' land, and be- 
fore cut into cord wood, and hauled to the defendant's railroad, was 
about $1 per cord — after being so cut and hauled it was worth about 
$3 per cord. There was the same difference as to the relative value of 
standing timber and that cut into ties and hauled. 

The railroad companj- claimed, as the rule of damages, that it was 
liable only for the value of the timber as it stood upon the ground, say 


$1 per cord. Plaintiffs claim that the company was liable for the 
■wood, as it was increased in value bj- the labor of the trespasser, 
cutting and hauling it, saj' $3 per cord. Defendant, the railroad com- 
panj', asked the court to charge : — 

" 2. That if the jury find the fact to be that the defendant cut no 
timber upon the land of plaintiff's said wards, and employed no person 
to do so, but purchased all the wood and timber of all sorts that it is 
charged with the conversion of from persons who did cut and remove 
it from the land and sold it to the defendant ; that the defendant would 
not be liable to the plaintiff for the value of the timber, wood, and ties 
purchased, at the time of the purchase, but only for the value of the 
timber before it was cut into wood and ties and sold to defendant. 
That the measure of damages if the defendant purchased said property 
in good faith was the fair value of the timber standing on the plaintiffs' 
woodland, and, before it was cut into wood or ties and hauled onto 
defendant's railway and sold to it." 

This charge was refused, and the court did charge as follows : — 

" Judge Foot in a former trial of this case settled the rule of dam- 
ages to be the value of the timber, in the condition it was in at the 
time it was received and converted by the defendant. This I also say 
to you should be the rule you should adopt in ascertaining the amount 
of j'our verdict. 

" I have found it much easier to repose confidence in the court, and 
adopt its consideration in this question of damages than reconcile m}'- 
self to its correctness. But you will take it as the law of the case." 

The refusal to charge as requested, and the charge as given was 
excepted to. 

On the first trial to the court, November term, 1871, plaintiff re- 
covered a judgment of $2,500. On the second trial to a jmy, February 
term, 1872, the verdict was $3,843.72. This judgment was reversed in 
the Disti'ict Court. At the third trial, November term, 1873, the ver- 
dict for plaintiff was $5,680, which was reduced by the court to 
$3,412.72, and judgment was rendered for that amount. 

The principal errors assigned are, in the charge as to the matter of 
title, and the rule of damages. 

The District Court having aflSrmed the judgment of the Common 
Pleas, a petition in error was filed in the Supreme Court. 

J. Mason, Estep & Burke, and W. J. Boardman, for plaintiffs 
in error. 

J. E. Ingersoll, for defendant in error. 

Wright, J. We have not deemed it necessary to solve all the nice 
and difficult questions that relate to the plaintiffs' (Barbours') title to 
this land. Whether or not they had the legal, the}' did also claim an 
equitable title, and there was some evidence to sustain the claim. 
This question of fact was left to the jury, who found upon it for plain- 
tiffs below. We are not clear that this finding was so palpably against 
the weight of evidence as to justify interference by us. We therefore 



assume that plaintiffs had title sufficient to maintain the action in that 
respect, and proceed to the second point, the rule of damages. 

The petition, it will be noticed, is not as for a trespass to real estate, 
but to recover the value of the wood and timber stolen ; the action 
throughout was treated as one to recover that value, and the case is 
so treated here. 

Upon the point now to be determined, the case is thus : A large 
amount of wood was cut down upon plaintiffs' land, and stolen. The 
thieves worked it up into cord wood and ties, thus increasing its value 
threefold. The depredators then sell it to the railroad companj-, who 
is entirely innocent in the whole matter. The real owner now sues the 
railroad company for the property' taken from his land. Shall he 
recover one dollar or three? 

It is said upon the one hand to be an universal rule of law that a 
man's propert}^ cannot be taken from him without his consent, unless 
by law, and that stealing can convey no title to the thief. In Silsbury 
V. McCoon, 3 Comst. 381, it is said: " It is an elementary' principle 
in the law of all civilized communities, that no man can be deprived of 
his propertj^, except by his own voluntary act, or by operation of law. 
The thief who steals a chattel, or the trespasser who takes it bj' force, 
acquires no title by such wrongful taking." It is then argued that the 
thief, having none himself, could convej- no title to any other person 
taking it however innocently. Hence when the railroad company ob- 
tained the property thej'' obtained what was the plaintiffs', and they 
could have replevied it, increased in value as it was, by the labor of 
the thief. If this were so, then it is argued that the company were 
liable for the value of the wood in its improved condition, enhanced to 
the extent of threefold. 

If the owners were bringing this action against the thieves, perhaps 
it might be conceded that the full amount could be recovered. This 
we understand to be upon the principle m odium spoliatoris. The 
thief will not be allowed to have anything hy virtue of his own wrong, 
and if he has spent his labor upon stolen goods, he shall not profit by 
it. It is his own loss. 

" 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 willfully as a trespasser." 2 Kent, 363. ■ 

But it seems to be well understood that the rights of the parties are 
made to depend, to a great extent, upon the intent with which the 
conversion of property has been brought about. If it was taken mala 
fide, by theft, or with a wilful purpose to do wrong, the consequences 
are different from those which follow upon the act done under an 
honest mistake, and perhaps it is as wise to punish the robber as to 
protect the innocent. 

In treating of confusion of goods, Blackstone speaks of the difference 
between cases where admixture is by consent of both parties, and 
where it is by the wilful act of one, and in regard to the latter the 


author says: " Onr law, to guard against fraud, gives the entire 
property, without any account to him whose original dominion is in- 
vaded." In case of the confusion by consent, it is otherwise, and 
each party retains his interest. 

Mr. Cooley, in his note to page 404, book 2, recognizes the same 
distinction between a fraudulent purpose, and an innocent mistake. 
The same distinction is made in 2 Kent, 363 ; Sedg. Dam. 484. 

Field on Damages, section 818, says: "There should certainly be 
a distinction between a case of mere technical conversion, when, per- 
haps, the defendant acts in good faith, and that of a wilful conversion 
and wrong done b}' the defendant." 

The cases as to what is the proper rule of damages, where property 
has been taken and by the taker improved in condition or enhanced in 
value, are numerous, but a reference to some will show some of the 
difficulties attending the subject. 

In Silshury Y. McCoon, the corn of one Wood had been manufac- 
tured into whiskej' by plaintiflF. The defendants, as judgment creditors 
of Wood, took it, and plaintiff sued for the value of the whiskey. The 
case is first reported 6 Hill, 425. Here it is decided that the change 
from corn to whiskej- was a change of identity, and transferred the 
property to plaintiffs, who were the manufacturers producing the 
change. This decision goes wholly upon the question of identitj'. 

There is a learned note to this case, which discusses the question of 
innocent and wrongful conversion, and the citations there given from 
PuflFendorf, Justinian, and Wood's Institutes are apposite. 

This case is again reported in 4 Denio, 332. Here the idea that the 
rights of the parties depend upon motive or intention is flatly repu- ' 
diated, the court holding that as long as the owner can trace his 
property, he may regain it ; thus again making identity the criterion. * 

The case is reversed in 3 Comstock, 381, upon the ground that the 
animus with which the corn was converted was an important element, 
and that if plaintiflfs, when they took it, knew that thej- had no right 
to it, they could obtain no title, although hj the manufacture into ' 
whiskey thej^ had changed the identity. 

The simple fact, therefore, that the property can be traced into its 
improved state is not alwaj's sufficient to insure a recoverj' of the im- ' 
proved article or its value. 

It must be remarked, however, that the text books do assert that 
the proposition of identity is the controlling one. Kent says: "It 
was a principle settled as earlj' 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 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." 2 Kent, 363 ; Betts v. Lee, 5 Johns. 348 ; 2 
Bl. Com. 404. It will, however, appear that other considerations enter 
into the solution of the question. 


In Byde v. Corlcson, 21 Barb. 92, it is held that, " in acquiring title 
to property h}^ accession, the law makes a distinction between a wilful 
and an involuntary wrong-doer. Tlie former can never acquire the 
title, however great the change wrought in the original article may be, 
while the latter may." 

" Where a manufacturer has expended his money and labor, in good 
faith, upon property, in pursuance of a contract with the owner, he 
can not be regarded as a wrong-doer, or deprived of the enhanced value 
which he has given to the propertj', in an action bj' the owner, sound- 
ing in damages." 

It is said, in the course of the opinion, that the " distinction between 
a wilful and an involuntar}- wrong-doer runs through the authorities, 
and stands upon the principle that a party can obtain no right bj- his 
own wrong" (p. 105). 

Martin v. Porter, 5 M. & "W. 351, was a case where defendant, in 
working his coal mine, broke through the barrier, and took the coal 
under the land belonging to plaintiff. Plaintiff recovered the full 
value, without any deduction to defendant for his expenses in getting 
the coal. But in Hilton \. Woods, L. R. 4 Eq. 440, the rule in 
3Iartin v. Porter is limited to cases of fraudulent conduct. And such 
is the effect of the case of Morgan v. Powell, 3 Ad. & El. (N. S.) 
278; and in Wood v. Morewood, 3 Ad. & El. (N. S.) 441, Parke, B., 
told the jurj' that "if there was fraud or negligence on the part of 
defendant, they m'ight give, as damages under the count in trover, the 
value of the coals at the time they first became chattels, on the princi- 
ple laid down in Martin v. Porter ; but if the}' thought the defendant 
not guilty of fraud or negligence, but acted fairlj' and honestlj', in the 
full belief that he had the right to do what he did, the}- might give the 
fair value of the coals, as if the coal-fields had been purchased from 
the plaintiff." 

In Hilton v. Woods, L. R. 4 Eq. 432, the head-note is: " In as- 
sessing compensation for coal already gotten by defendant, the court 
being of opinion that he had worked it inadvertenth', and not fraudu- 
lentl}', held that he was to paj' only the fair value of such coal, as if he 
had yjurchased the mine from defendant " 

Malins, V. C, says: "There is much difficultj- as to the mode of 
assessing the compensation to an owner of coal which has been im- 
properl}- worked bj' the owner of an adjoining mine. It is clear upon 
the authorities that a different principle is applicable when the coal is 
taken inadvertently, or, as in the present case, under a bona fide belief 
of title, and when it is taken fraudulentlj', with a full knowledge on the 
part of the taker that he is doing wrong, or, in other words, commit- 
ting a robber^^" 

In these English cases, the right of plaintiff to recover the increased 
value of the coal — that is, the value occasioned bj' the expense of 
mining, is made to depend on the animus of the party committing the 
trespass. If he stole, he loses his labor and monej'. If he made an 


honest mistake, he does not incur that loss, and the owner onlj' re- 
covers the value of the coal without its accession. There would seem 
to be a very short way out of these difHculties, if the question of iden- 
tity was the only one. There was no trouble in the owner identifying 
his coal, but this does not entitle him to recover its value, increased 
by being mined, except in case of bad faith. It should be noted that 
Jegon v. Yivia7i, L. R. 6 Ch. App. 742, seems disposed to limit this 
rule of damage to cases at law, not applying it in equity. There are 
a number of coal cases in Pennsylvania. In Forsyth v. Wells, 41 
Penn. St. 291, Lowrie, C. J., after discussing the conflict in the cases, 
says: "We prefer the rule in Woody. Morewood, where Parke, B., 
decided, in a case of trover for taking coals, that if the defendant 
acted fairly and honestlj-, in the full belief of his right, then the meas- 
ure of damages is the fair value of the coals, as if the coal-field, had 
been purchased from the plaintiffs." 

" Where the defendant's conduct, measured by the ordinary standard 
of morality and care, which is the standard of the law, is not charge- 
able with fraud, violence, or wilful negligence, or wrong, the value of 
the propertj' taken and converted is the just measure of compensation. 
If raw material has, after appropriation and without such using, been 
changed by manufactui'e into a new species of property, as grain into 
whiskoj-, grapes into wine, fur into hats, hides into leather, or trees 
into lumber, the law either refuses the action of trover for the new 
article, or limits the recovery to the value of the original article. 

"Where there is no wrongful purpose or wrongful negligence in the 
defendant, compensation for the real injury done is the purpose of all 
remedies ; and so long as we bear this in mind, we shall have but little 
difflcultj' in managing tlie forms of action, so as to secure a fair result. 
If the defendant in this case was guilty of no intentional wrong, he 
ought not to have been charged with the value of the coal, after he had 
been at the expense of mining it, but onlj- with its value in place, and 
with such other damage to the land as its mining may have caused." 

This case also holds that no change in the form of action can vary 
the rule of damages. 

In Herdie v. Young, 55 Penn. St. 176, the defendant had been 
cutting timber on his own tract, and by mistake cut some upon an 
adjoining tract of plaintiff. The trespass was not wilful or wanton, 
but was in a bona fide belief of title. The logs had been driven to the 
boom, and plaintiff sought to recover their value at that place, which 
was of course enhanced by the labor and expense defendant had put 
upon them. But it was held that the rule of damages was the value of 
the timber in the stump when the trees were cut. 

Agnew, C. J., says: If defendant "denies that his trespass was 
wilful or wanton, and claims a right to the additional value given to 
the chattel by his labor and money in converting and transporting it to 
the place where it is replevied, he has it in his power to bi'ing the 
damages of the plaintiff to their true standard. In a case of inadver- 


tent trespass, or one done under a bonajide, but mistaken, belief of 
right, this would generally be the value of the logs at the boom, less 
the cost of cutting, hauling, and driving to the boom. Such a stand- 
ard of damages, growing out of the nature of the act and of the form 
of action, is reasonable, and does justice to both parties. It saves to 
the otherwise innocent defendant his labor and money, and gives to 
the owner the enhancement of the value of his propertj-, growing out 
of other circumstances, such as a rise in the market price, a difference 
in price between localities, or other adventitious causes." Coleman's 
Appeal, 62 Penn. St. 252-278. 

In the case oi Barton Goal Co. v. Walter Cox, 39 Md. 1, the ques- 
tion is much discussed and the authorities reviewed. 

In Heard v. James, 49 Miss. 236, the rule of damages in case of 
conversion is said to be determined by the a?iimus of the party tres- 
passing. If the act was in good faith, upon some supposed right or 
claim, or error, the rule is the value of the propertj' when taken ; but 
if the taking be characterized by malice or oppression, damages may 
be punitive, and in an action no allowance will be made the defendant 
for any increased value bestowed on the propert3' by his sliill and labor. 

In this case trees had been cut down on plaintiflTs land and made 
into staves, and the question was whether plaintiff should recover as 
damages the value of the staves, or only of the trees as they stood on 
his ground. The plaintiff was allowed to recover the full value, allow- 
ing defendants nothing for their labor in working up the timber into 
staves, and upon the principle stated. The court says, "The conduct 
of defendant was wilful, utterly regardless of the rights of the plaintiff." 

That the intent of the defendant is material in regard to damages 
has alwaj's been recognized in our law. Upon this is founded the 
whole idea of exemplary damages. We know it has been stren- 
uouslj' urged in what has been called " the speculative notions of fanci- 
ful writers" {McBride v. McLaughlin, 5 Watts, 375 ; Sedgw. 463), 
that punishment belongs only to the administration of criminal law, 
and has no proper place in that civil procedure which adjusts only the 
rights of parties ; but the principle is too firmly settled to be contro- 
verted now. Pratt v. Pond, 42 Conn. 318 ; Walker v. Fuller, 29 
Ark. 448 ; Grund v. Van Vleck, 69 111. 478. And yet the rule 
should be carefully applied, as it maj* leave to courts and juries to 
determine the extent of punishment unrestricted by the well-defined 
limits of statutory enactment. Therefore it is that there are authorities 
holding that even in cases of wilful trespass, if the trespasser has 
made a large increase in the value of the property bj' his labor, it will 
not be allowed that it. shall all go to the original owner, because it is 
said to be unjust. 

The fact that the trespasser is to lose the labor and expense he has 
put upon propert}' he has wrongfully taken, results as a punishment to 
him for what he has done ; on this ground the original owner recovers 
the increased value, not because of any rights in him, but because the 


law gives this infliction as a terror to offenders. Yet the punishment 
must be proportioned in some wa}' to the circumstances of the case, 
and a proper inquiry is, in what manner and to what extent should the 
trespasser suffer, and conversely what should be the kind and measure 
of redress to the injured party. 

Brown, J., puts this case {Silsbury v. McGoon, 4 Den. 337) : A 
trespasser who takes iron ore and converts it into watch-springs, by 
which its value is increased a thousand-fold, should not be hanged ; 
nor should he lose the whole of the new product. Either punishment 
would be too great. Nor should the owner of the ore have the watch- 
springs, for it would be more than a just measure of redress. 

The Supreme Court of Wisconsin adopts the same idea. The case 
of /Single v. Schneider, 30 Wis. 570, is a case where logs were wil- 
fullj* cut from the premises of another, they saj' it is unnecessarih' 
severe that defendant should lose the value of all their labor, s. c. 
24 Wis. 299; Weymouth v. C. & N. W. li.B., 17 Wis. 550; 
Hungerford v. Redford, 29 Wis. 345. An interesting discussion of 
the question of damages by Judge Cooley is to be found in Wetherbee 
V. Green, 22 Mich. 311, the syllabus of which is: "No test which 
satisfies the reason of the law can be applied in the adjustment of ques- 
tions of title to chattels, by accession, unless it keeps in view the 
circumstances ■ of relative values. The purpose of the law will not 
be gained by establishing arbitrary distinctions based upon physical 
reasons ; but its object must be to adjust the redress afforded to one 
party and the penaltj' inflicted on the other, as near as the circum- 
stances will permit, to rules of substantial justice, if very great in- 
crease in value in the change of property from one form to another, is 
of more importance in determining the rights of parties in it, than any 
inexpensive chemical change of mechanical transformation, however 
radical. And where timber of the value of $25 had been, in the exer- 
cise of what was supposed to be proper authoritj', converted into 
hoops, of the value of $700, the title to the property, in its con\erted 
form, passed to the part}' by whose labor, in good faith, the change 
had been wrought." In this case it was a conceded fact that the 
taking of the timber was in good faith, defendant supposing that he 
had a license s.o to do from the owner of the land. In this, however, 
it appears he was mistaken. Judge Cooley discusses verj' fully the 
distinction between cases where property" is taken innocently, and 
where it is taken dishonestly, and recognizes the proposition that the 
rule of damages is varied accordingly. He also discusses the rule 
already so frequently spoken of, that when the owner can trace the 
identity of his property, he may reclaim it however it may be increased 
in value. But this he seems to think an unsatisfactory test, the pur- 
pose of the law being to adjust the redress afforded to the one party, 
and the penalt}' inflicted upon the other, as near as the circumstances 
will permit, to the rules of substantial justice. If one had a stick of 
timber stolen, and could distinctly trace it into a house being newly 


built, the identification might be beyond peradventure, yet no one 
would claim that the owner of the stick could recover the whole house, 
either in ejectment or its value in damages. Or a particular piece of 
wood might be followed into an organ, but the owner of the wood could 
not replevy the organ. Where the right to the improved article is the 
point in issue, certainly' the question should be considered, how much 
the property or labor of each has contributed to make it what it is, at 
least in those cases where no bad faith exists. 

It can not therefore be true, in every instance, that because a man 
can trace his propertj', he can always recover it, regardless of the 
circumstances under which it has come into the hands of the present 
holder, regardless of its improved condition, and regardless of the 
injury an absolute and unconditional recaption may occasion. The 
law as Judge Cooley saj-s, endeavors to do what is right and just be- 
tween the parties, and while it will seek to compensate the real owner, 
will not occasion outrage to one who has been innocent. 

It maj' be that if these owners had found their wood in the hands of 
the trespassers, it might have been retaken, or its value as cord wood 
recovered ; but if so it would be upon the principle in odium spolia- 
toris ; the thief could gain nothing b}' his own wrong, and therefore 
the results of his labor go to the owner of the property. But this 
principle can not apply where an innocent purchaser comes into the 
case, for the simple reason that he has done no wrong. 

It is very true that the wilful trespasser or thief can convey no title 
to one to whom he sells, however innocent the purchaser may be. 
But the question right here is, what does "title" in this connection 
mean? The original owner has the "title" to his timber, and, as 
against the thief, the title to the results of the thiefs labor. The 
wrong-doer, as it were, being estopped from setting up any claim by 
virtue of the wrong he has done. Against the innocent purchaser from 
the thief, the original owner still has the "title" to his timber, but b^' 
virtue of what does he now have " title" to the thiefs labor? The 
estoppel, so to call it, being created b}' fraud or wrong, exists only 
against the one guilty of that fraud or wrong, which the purchaser is 
not, and while it is effectual against the wrong-doer, the reason of it 
does not exist as against the innocent man, as to whom it therefore 
fails. As Judge Cooley says, it does not comport with notions of 
justice and equity, that against those who have done no wrong, these 
owners should recover three times the value of what they have lost. 
Thej' have never spent one cent of money, nor one hour of labor, in 
changing this timber worth one dollar into cord wood worth three. 
All this was done by some one else, and why should the owners re- 
cover for it? If they are compensated for what they have lost, and 
all thej' have lost, thej' are certainly fully paid. Woolsey v. Seeley, 
Wright, 360. And this is all they should be allowed to recover. 

For this error, in the charge on the subject of damages, the judg- 
ment is reversed. 




A. Lawful or Accidental. 

Court of Common Pleas. 1868. 

[Reported L. B. 3 C. P. 427.] 

Declaration on a policy of marine insurance, averring a total loss. 

Pleas: 1. Payment into court of £122. 2. Except as to £122, 
payment before action. 

The plaintiffs took the £122 out of court, and joined issue on the 
second plea. 

The cause was tried before Shee, J., at the Liverpool summer assizes, 
1867. The facts were as follows : The plaintiffs are merchants at 
Liverpool. The defendants are a marine insurance company also 
carrying on business at Liverpool. The action was brought to recover 
a total or salvage loss on a policy of insurance at and from Mobile to 
Liverpool, on forty-three bales of cotton, marked and numbered as 
therein mentioned, in the ship called the Caroline Nasmyth. 

The defendants paid the plaintiffs before action £1150, being 50 per 
cent on the polic}-. 

On the 10th of October, 1865, the Caroline Nasmyth sailed from 
Mobile with a cargo of cotton consisting of 2493 bales belonging to 
various owners, and shipped under separate bills of lading ; 532 bales 
(including the 43 for the loss of which the action was brought) belonged 
to the plaintiffs, who effected insurances with the defendants thereon 
under six different policies, one of which was the poliej' sued upon. 
The vessel on the 23d of October, 1865, after having been at sea 
thirteen days, took the ground on the Florida reef, about eightj' miles 
from Kej' West, and became a total wreck. The cargo was landed at 
Key "West, all more or less damaged, and manj^ of the bales broken, 
the marks and numbers on others entirely obliterated. Some bales 
were lost, and some were so damaged that they had to be sold at Key 
West. The remainder of the cotton was forwarded to Liverpool in a 
vessel chartered by the master at Key West. 

Of the 2493 bales which were on board the Caroline Nasmyth when 
she sailed on her voj-age, 617 bales arrived in Liverpool in such a state 
that thej' could be identified, and they were delivered to the different 
consignees, but more or less damaged ; 1645 bales were sold at Liver- 
pool, the marks being so obliterated by sea-water that they could not 


be identified as belonging to any particular consignee, and 231 bales 
were either lost on the reef or sold at Key West. Of the plaintiff's 43 
bales, two only (of the value of £59 12s. lie?.) could be identified at 
Liverpool, and these were delivered to the plaintiffs. 

Due notice of the abandonment of the 41 bales had been given by 
the plaintiffs. 

Subject to a question as to the correctness of the calculation, the 
underwriters had paid the plaintiffs their share (in the proportion of 43 
to 2493) on the value of the cotton which was actuallj' lost, and also 
(under an arrangement which was made for the sale of the cotton with- 
out prejudice to the rights of the parties) in the same proportion for 
the damage to the cotton which arrived at Liverpool but could not be 

It was contended on the part of the plaintiffs, that, as no one of their 
remaining 41 bales arrived in Liverpool in such a state that it could be 
identified, thej- were entitled to treat the loss as a total loss with benefit 
of salvage. It was conceded that, if it were an average loss onlj-, the 
£122 paid into court, plus the sum paid before action, would cover the 
plaintiffs' claim. 

The defendants contended that they were entitled to assume that, of 
the plaintiffs' remaiuing 41 bales, part were among those lost at Key 
"West and part amongst those which arrived at Liverpool ; and that, 
upon that assumption, the loss would be an average loss, and covered 
by the payment into court. 

A verdict was entered for the plaintiffs for £460, subject to leave 
reserved to the defendants to move to enter the verdict for them. 

jE. James, Q. C, in Easter Term, accordingly obtained a rule nisi to 
enter a verdict for the defendants or a nonsuit. 

Brett, Q. C, Quain, Q. C, and It. G. Williams, shewed cause. 

Cohen and G. Russell {Mellish, Q. C, with them). 

BoviLL, C. J. This case was argued before us last term, with 
great learning and abilitj' on both sides ; and we are much indebted to 
the learned counsel for the assistance they have rendered to the 

The plaintiffs claimed to recover against the defendants as for a 
total loss of forty-one bales of cotton. The defendants paid a sum of 
money into court upon the principle of there having been a total loss 
of a small portion of the cotton and a partial loss only of the remain- 
der, according to a calculation of the proportion that would be appli- 
cable to the plaintiffs' cotton with reference to the 231 bales which 
were actually lost, and the 1645 bales which arrived, but without anj' 
marks or the means of distinguishing the respective owners to whom 
those bales belonged. The principal question in the case was, whether 
there was a total loss of the whole of the plaintiffs' fort3'-one bales 
which were not delivered. 

The ground upon which the plaintiffs contended for such a total loss 
was, that the whole forty-one bales must be considered as included in 


the 231 bales, or that, by the perils of the seas, the marks on the plain- 
tiffs' bales, as well as upon other bales of cotton in the same ship, 
and which reached this country, had become obliterated, so that it was 
impossible to distinguish one person's cotton from that of another, and 
therefore impossible for the plaintiffs to obtain the identical bales which 
they had insured. 

Subject to a subordinate question as to the correctness of the calcu- 
lation, the plaintiffs had been paid their proportion of the cotton that 
was actually lost, and had been offered what would be their proportion 
of the cotton which was saved, or, rather, its equivalent in money was 
paid to them under the arrangement that was made for sale of the 
cotton without prejudice to the rights of the parties ; but, the price of 
cotton having fallen very materially in the market, the plaintiffs en- 
deavored to treat the obliteration of the marks, and the consequent 
impossibility of identifying any of the bales except the two which were 
delivered to them, as a total loss, and contended that, as the impossi- 
bilitj' of the ship-owner delivering to them their identical bales of 
cotton had been caused by the perils of the seas, it was a total loss, 
either actual or constructive, within the meaning of the policy. 

It is manifest that the plaintiffs' argument would equally apply if 
not a single bale of cotton had been lost or damaged out of the whole 
cargo, and if the marks only had been obliterated from this and other 
cotton by the same vessel ; and it would lead to the strange anomaly 
that, altliough all the goods which had been put on board arrived safely 
at their destination, there would, according to the plaintiffs' conten- 
tion, be a total loss, for the purpose of insurance law, of the whole of 
them. Indeed, in every case of the accidental confusion of goods on 
board a ship, so that they could not be identified, where it arose from 
the perils of the seas, if the principle contended for by the plaintiffs be 
correct, it might be said that the ship-owner was absolved from any 
liability to deliver the goods, and this strange conclusion would also 
follow, that, if the cargo all belonged to one owner, it might be said to 
be entirely safe and uninjured, under circumstances in which, if there 
were two owners, however small the proportion of one of them, it 
must be said to be totally lost ; so that, if one shipper owned ninety- 
nine bales, and another, one, of the same description, and by reason of 
the stranding of the vessel all were transhipped with the loss of the 
marks, after which the cargo arrived safe, each owner would have 
wholly lost all he had, because neither could affirm as to any given 
bale that it belonged to him. Practically, in such a case, the owner of 
the one bale would receive one of the bales, either by delivery of the 
ship-owner or by agreement, and probably be content, and this ought 
to operate as a partition, so as to vest the residue in the owner of the 
larger share. 

We must, thus, necessarily consider what is the effect of the oblit- 
eration of marks upon various goods of the same description which are 
shipped in one vessel, and which without any fault of the owners be- 


come so mixed that one part is undistinguishable from another ; and it 
seems to us not altogether immaterial to inquire in whom the property 
in the goods is vested under such circumstances, or whether thej' ber 
come bona vacantia, and pass to the first finder or to the Crown. In 
endeavoring to arrive at a conclusion upon that subject, we should be 
guided hj any direct authorities as well as by analogous cases in our 
own law, and by the principles of law which have been laid down and 
established in our courts ; and, as the rules and principles of our mer- 
cantile and maritime law are in a large measure derived from foreign 
sources, we gladly avail ourselves of the codes and laws of other 
countries, and especiallj' of the Roman Civil Law, to see what amongst 
civilized nations has usually in like cases been considered reasonable 
and just. 

In our own law there are not manj- authorities to be found upon 
this subject ; but, as far as they go, the}' are in favor of the view, that, 
when goods of different owners become bj' accident so mixed together 
as to be undistinguishable, the owners of the goods so mixed become 
tenants in common of the whole, in the proportions which thej- have 
severall}' contributed to it. The passage cited from the judgment of 
Blackburn, J., in the case of the tallow which was melted and flowed 
into the sewers, is to that effect. SucMey v. Gross, 3 B. & S. 574. 
And a similar view was adopted by Lord Abinger in the case of the 
mixture of oil bj' leakage on board ship, in Jones v. Moore, 4 
Y. & C. 351. 

It has been long settled in our law, that, where goods are mixed so 
as to become undistinguishable, by the wrongful act or default of one 
owner, he cannot recover, and will not be entitled to his proportion, or 
any part of the property, from the other owner : but no authority has 
been cited to show that any such principle has ever been applied, nor 
indeed could it be applied, to the case of an accidental mixing of the 
goods of two owners ; and there is no authority nor sound reason for 
saying that the goods of several persons which are accidentally mixed 
together thereby absolutely cease to be the property- of their several 
owners, and become bona vacantia. 

The goods being before thej^ are mixed the separate property of the 
several owners, unless, which is absurd, thej' cease to be property by 
reason of the accidental mixture, when the}' would not so cease if the 
mixture were designed, must continue to be the property of the original 
owners ; and, as there would be no means of distinguishing the goods 
of each, the several owners seem necessarily to become jointly inter- 
ested, as tenants in common, in the bulk. 

This is the rule of the Roman Law as stated in Mackeldey's Modern 
Civil Law, under the title Commixtio et Confusio, in the special part. 
Book 1, s. 270. In the English edition of 1845, at p. 285, the passage 
is as follows : " The mixing together of things solid or dry (commix- 
tio) or of things liquid (confusio) which belong to different owners, has 
no effect upon their rights in the things, if the latter can be separated. 


If, on the other hand, such separation is not practicahle, then the for- 
mer proprietors of the things now connected will be joint owners of the 
whole, whenever the mixture has been made with the consent of both 
parties, or by accident." 

We need not discuss the distinction sometimes made between com- 
mixtio and confu.iio^ apparently upon the ground that it is possible to 
separate the individual solid particles, but not the liquid ; because, in 
cases like the present, it is impracticable, and for all business pur- 
poses therefore impossible, to distinguish the particles, in respect of 

The passages in Mr. Justice Story's work on Bailments, s. 40, and 
in the 9th volume of Pothier, " De La Confusion," as well as the 
French and various other codes, are to the same effect. 

We are thus, by authorities in our own law, b}' the reason of the thing, 
and by the concurrence of foreign writers, justified in adopting the 
conclusion that, bj' our own law, the property in the cotton of which 
the marks were obliterated did not cease to belong to the respective 
owners-, and that, by the mixture of the bales, and their becoming 
undistinguishable bj- reason of the action of the sea, and without the 
fault of the respective owners, these parties became tenants in common 
of the cotton, in proportion to their respective interests. This result 
would follow only in those cases where, after the adoption of all rea- 
sonable means and exertions to identify or separate the goods, it was 
found impracticable to do so. 

We cannot assume that the whole of the plaintiffs' fortj'-one bales 
were amongst those that were destroyed, any more than we can as- 
sume that they all formed part of the 1645 which were brought home ; 
and we see no means of determining the extent of the interest of the 
several owners, except by adopting a principle of proportion, and 
which would, we think, be equally applicable in determining the plain- 
tiffs portion of the 231 bales that were totally lost as of the 1645 which 
arrived in this country, though without the marks. 

The principle of proportion is that which was applied by Lord 
Ellenborough, where one gross sum was paid to a broker in respect of 
two debts due to different principals without distinguishing how much was 
paid in respect of each. Flavenc v. Bennett, 11 East, at p. 41. It is also 
the principle adopted in cases of general average, and of jettison, where it 
is not known whose goods are sacrificed, as stated b}* Cassaregis and 
Emerigon in the passages that were quoted in the argument ; and we 
think it is the proper principle to applj' to this case. 

Upon the main question, therefore, that was argued before us, we 
think that there was not an actual total loss of the plaintiffs' forty-one 
bales of cotton. We think also there was not a constructive total loss 
of those bales. We adopt the principle upon which the defendants 
have paid money into court ; and onr decision upon this question is in 
their favor. 

It was attempted to show by calculations what was the probability of 


the plaintiffs' bales being included or not in the quantitj' totally lost ; 
but, in the absence of information as to the part of the vessel in which 
those bales were stowed, so as to show whether they were exposed, 
and to what extent, to the perils which caused the total loss of the 
bales that perished, it is obvious that such calculations can result only 
in drj' formulae of combinations, subject to be disturbed bj' the miss- 
ing element of extent of exposure to danger, and that they furnish no 
practical assistance upon the one side or upon the other. 

It was upon a calculation of this description that Mr. Grifflth Wil- 
liams, on behalf of the plaintiffs, for the first time, at a verj' late stage 
of the argument, contended that, assuming the defendants' principle to 
be correct, yet that it had not been correctlj' applied. Mr. Williams 
has, however, failed to satisfy us that the calculation was incorrect. 
It seems to us that, so far as it is practicable, and without entering 
into everj' minute circumstance and probabilitj' connected with the 
state of the weather and of the vessel, the position of the different 
parts of the cargo, and the effects of the sea and weather upon the 
vessel and cargo, upon which there was no evidence, the amount paid 
into court, together with the other payments, is sufficient to cover the 
plaintiffs' claim, so far as it was proved, for an average loss. 

Upon the remaining question which was raised, as to whether, if 
there were a total loss, it was a loss proximately bj- the perils of the 
seas, it is not necessary to pronounce any opinion. 

Our judgment is in favor of the defendants ; and the rule to enter the 
verdict for them, or a nonsuit, will therefore, at the election of the 
plaintiffs as to the alternative, be made absolute. 

JRule absolute accordingly. 


Supreme Court of New York. 1839. 

[Beported 21 JVend. 83.] 

This was an action of replevin tried at the Yates circuit in June, 
1838, before the Hon. Daniel Moseley, one of the circuit judges. 

The plaintiffs declared for the taking and detaining of 75 barrels of 
wheat flour. The defendant pleaded non cepit and property in himself. 
On the trial the following facts appeared : Charles Hubbard owned a 
flouring and custom mill on the outlet of the Crooked Lake. In Decem- 
ber, 1834, the plaintiffs made an agreement with him to deliver wheat 
at his mill, and he agreed that for every 4 bushels and 56 pounds of 
wheat which should be received, he would deliver the plaintiffs one bar- 
rel of superfine flour, warranted to bear inspection in Albany or New 
York. The plaintiffs purchased from farmers and others nearly 2,000 
bushels of wheat, which was from time to time delivered at the mill, 


and put into a bin with other wheat which Hubbard purchased on his 
own account, and with the toll wheat taken by him from time to time. 
Hubbard delivered 230 barrels of flour to the plaintiffs, but that was 
not enough to satisfy his contract. On the 25th March, 1835, he sold 
100 barrels of flour to the defendant, and in May following delivered 
him the 75 barrels of flour in question, in pursuance of the contract of 
sale. The plaintiffs brought this action and arrested the propertj' on 
board a canal boat, in which the defendant had caused it to be shipped 
for market. Hubbard also sold between 30 and 50 barrels of flour at 
retail, and took 10 or 12 bushels of wheat for his own use. All the 
wheat manufactured and used by Hubbard was taken from the same 
bin. The plaintiffs attempted to prove that the 75 barrels of flour in 
question had been delivered to them by Hubbard. 

The defendant moved for a non-suit, which was refused, and raised 
other questions on the charge of the judge, which are noticed in the 
opinion of the court. The jury, under the charge of the judge, found 
a verdict for the plaintiff's, and the defendant now moved for a new 

JB'. Welles and S. Stevens, for defendant. 

S. Oheever, for plaintiffs. 

£>/ the Court, Bronson, J. The contract between the plaintiffs and 
Hubbard was, in eflfect, one of sale, — not of bailment. The property 
in the wheat passed from the plaintiffs at the time it was delivered at the 
mill, and Hubbard became a debtor, and was bound to paj' for the grain 
in flour, of the specified description and quantity. There was no agree- 
ment or understanding that the wheat delivered by the plaintiffs should 
be kept separate from other grain, or that this identical wheat should be 
returned in the form of flour. Hubbard was onlj' to deliver flour of a 
particular qualitj', and it was wholly unimportant whether it was manu- 
factured from this or other grain. Jones on Bail. 102, 64. A different 
doctrine was laid down in Seymour y. Brown, 19 Johns. R. 44; but 
the authorit3' of that case has often been questioned. 2 Kent, 589 ; 
Story on Bail. 193-194, 285 ; Buffum v. Merry, 3 Mason, 478 ; and 
the decision was virtually overruled in ITurd v. West, 7 Cow. 752, and 
see p. 756, note. The case of Slaughter v. Green, 1 Rand. (Va.) R. 3, 
is much like Seymour v. Brown. They were both hard cases, and have 
made bad precedents. 

There was, I think, no evidence which would authorize the jury to 
find that the flour in question had been delivered by Hubbard to the 
plaintiffs. There cei'tainly was no direct evidence of that fact, and 
Hubbard himself testifled expressly' that there had been no deliver}'. 
The proof given by the plaintiff's of what Hubbard had said to others 
about the flour in the mill was not necessarily inconsistent with his 

But if there had been a delivery, so that the property in the flour 
passed to the plaintiflTs, they still labor under a difficulty in relation to 
-the form of the remedy. Notwithstanding the transfer, the property 


was left in the possession and under the care of Hubbard. He was a 
bailee of the goods, and as such would have been answerable to the 
plaintiffs for any loss happening through gross negligence on his part. 
The defendant took the flour bj' delivery from the bailee, who had a 
special property in it. Such a taking is not tortious. Marshall v. 
Davis, 1 Wend. 109; Earllv. Camp, 16 Wend. 570. The plaintiffs 
should have counted on the detention, not on the taking of the goods. 
Randall v. Cook, 17 Wend. 57 ; 10 Wend. 629. There must be a new 
trial. New trial granted. 

ScPKEME Court of Ohio. 1853. 

[Reported 1 Ohio St. 244.] 

Error to the Common Pleas, reserved in the District Court of Huron 
County for decision by the Supreme Court. 

The original action was assumpsit, in which the plaintiff, Wash- 
burn, sought to recover the value of a quantitj' of wheat, which had 
been delivered by him to the defendants, Ciiase & Co., as ware- 
housemen, engaged in the produce business, at the village of Milan, 
in said county. 

It appears from the bill of exceptions taken in the case that on the 
trial of the cause in the Common Pleas, Washburn offered in evidence 
sundry warehouse receipts, given him by Chase & Co. for wheat de- 
livered at various times, between the month of October, 1847, and the 
month of August, 1849, amounting in the aggregate to six hundred 
bushels and more. The receipts are similar in form and effect, and the 
first in date, which maj' be taken as a sample of the others, is as 
follows : — 

" Milan, O , Nov. 5, 1847. 

Received in store from J. C. Washburn (by son), the followiiig articles to 
wit: Thirty bushels of wheat. H. Chase & Co." 

It further appears that the agent of Washburn was introduced as a 
witness, who testified that he had been instructed by Washburn, the de- 
fendant in error, when he delivered the first load of the wheat, not to 
sell the wheat for less than one dollar per bushel, and if he could not 
get that, to leave it in store with Chase & Co., the plaintiffs in error, 
and that he told Chase that Washburn had five or six hundred bushels 
to draw, and that Chase at the time told the agent, when he left the 
first load, that they (Chase & Co.) would paj' the highest price when 
Washburn should call for it. The wheat was accordingly from time 
to time delivered, and in May, 1850, a demand was made for either the 
wheat or the money, and both refused. 


Chase then offered evidence tending to prove that his warehouse was 
burnt on the night of the 26th of October, 1849, and that there was then 
consumed in it sufficient wheat to answer all his outstanding receipts. 
He also offered evidence tending to prove that the custom at Milan was 
to store all wheat received in a common mass and to ship from the same 
as occasion required, and that this custom was understood by Wash- 
burn ; also that the custom was, when parties called for their paj-, eiiher 
to pay the highest market price, or deliver wheat to the holder of 
the receipts. 

Washburn then offered rebutting evidence, tending to prove that 
Chase had not sufficient wheat in his warehouse, at the time of the fire, 
to answer all his outstanding receipts, and also that the warehouse was 
emptied of all wheat between the date of the last receipt given Wash- 
burn and the time of the fire. 

Upon this state of facts the counsel for Chase asked the court to 
charge the juiy, " that the customs at Milan, if known to Washburn, in 
the absence of an express contract, became a part of the contract be- 
tween the parties, and if the jur}' should find that Chase had sufficient- 
wheat on hand at the time of the fire to answer all his outstanding re- 
ceipts, that he was not liable in this action, and that neither the min- 
gling of the wheat nor the shipment of it would make Chase liablg, if he 
had a sufficient amount on hand at the time of the fire to answer his 
outstanding receipts." 

The court, however, refused to charge as requested. The bill of ex- 
ceptions sets out the charge of the court in full, to which the counsel 
for the defendants below excepted. The verdict and judgment was in 
favor of the plaintiff below, to reverse which this writ of error is 

It is alleged for error that the court of Common Pleas erred in their 
charge as follows, to wit : — 

1st. Because that court charged the jury, " that if they should 
find that the wheat was received and put in mass, with other wheat of 
defendant, and that received of other persons, with the understanding 
that the wheat was to be at the disposal of the defendant, either to re- 
tain or to ship it, and with the agreement that when the receipts were 
presented the defendant would either pay the market price therefor or 
re-deliver the wheat or other wheat equal in amount and quality ; then, 
if the jury should further find that the wheat thus left prior to the fire 
had all been shipped and disposed of, the defendant cannot be excused 
unless there was an agreement between the parties that the wheat sub- 
sequently purchased by defendant was to be substituted in place of that 
left by plaintiff, and to be his property." 

2nd. Because the court charged the jury " that where a warehouse- 
man receives grain on deposit with an understanding that he may if he 
choose dispose of it, and that he will, when demanded, return other 
grain or pay for it, in case of such a disposition he is bound to do the 
one or the other. A subsequent purchase of grain by the warehouse- 


man, for the purpose of meeting the demand for grain thus received, 
would not be sufficient to vest tiie property in the plaintiff." 

3rd. Because that court refused to charge the jury that the custom at 
Milan, as proved by defendants if known to plaintiff, was a part of the 
contract between the parties. 

Osborne and Taylor, for plaintiff. 

Worcester and Pennewell, for defendant. 

Bartley, J. To determine which of the parties in this case shall 
sustain the loss of the propert}- in question occasioned bj- the accident, 
it becomes necessary to ascertain the true nature and character of the 
transaction between them, and the rights created and duties imposed 
thereby. It was either a contract of sale, a mutuum, or a deposit. If 
a contract of sale, the right of property passed to the purchaser on 
deliverj-, and the article was thereafter held by him at his own risk. 
If a mutuum, the absolute propertj- passed to the mutuarj-, it being a 
delivery to him for consumption or appropriation to his own use ; he 
being bound to restore not the same thing, but other things of the same 
kind. Thus, it is held, that if corn, wine, monej", or anj- other thing 
which is not intended to be delivered back, but only an equivalent in 
kind, be lost or destroyed by accident, it is the loss of the borrower or 
mutuary ; for it is his property, inasmuch as he received it for his own 
consumption or use, on condition that he restore the equivalent in kind. 
And in this class of cases, the general rule is ejus est periculum., cujus 
est dominium. Storj- on Bailments, § 283 ; Jones on Bailments, 64 ; 
2 Ld. Raym. 916. But if the transaction here was a deposit, the prop- 
erty remained in the bailor, and was held by the bailee at the risk of 
the bailor, so long as he observed the terms of the contract, in so doing. 
But if the bailee shipped the wheat and appropriated the same to his own 
use, in violation of the terms of the bailment, before the burning of his 
warehouse, he became liable to the bailor for the value of the propertj-. 

What then was the real character of the transaction between the 
parties ? The receipt I suppose to be in the ordinarj^ form of ware- 
house receipts, and such as would be proper to be delivered bj' a 
warehouse depositary- of wheat, to the owner, upon its being received 
into a warehouse, for temporarj- safe-keeping, and to be re-delivered to 
the owner on demand. The obhgation or contract which the law would 
impl}- as against the warehouseman, on the face of such a receipt, would 
be, that he should use due diligence, in the care of the property, and 
that he should re-deliver it to the owner, or to his order, on demand, 
upon being paid a reasonable compensation for his services ; and if the 
warehouseman, under such circumstances, should, without the consent 
of the owner, mix the wheat with other wheat, belonging to himself or 
other persons, and ship the same to market, for sale, he would be liable 
to the owner for the value of the wheat thus deposited with him. 

The receipts themselves are silent as to the time the wheat was to be 
kept, the price to be paid for its custody, when or how to be paid, whose 
property it was to be after deliver}' into the warehouse, and what dis- 


position was to be made of it. But it is claimed that, inasmuch as 
written receipts, whether for money or other propertj', are alwaj-s sub- 
ject to explanation by parol, that the terms on which this wheat was 
delivered can be explained by the declarations of the parties at the time 
of the delivery of the first load of wheat, and also by the custom of 
trade which prevailed among warehousemen at Milan ; and that, by 
such explanation it is shown that the real transaction was that the 
wheat was received, and, with the consent of the depositor, put in mass 
with other wheat of the warehouseman, and that received of other per- 
sons, with the understanding that the wheat was to be at the disposal 
of the warehouseman, either to retain or ship it, and that when the re- 
ceipts should be presented by the depositor the warehouseman should 
either pa}' the market price therefor or re-deliver the wheat, or deliver 
other wheat equal in amount and quality. 

If these terms were incorporated into the contract, they could not 
have excused the liability of the warehouseman in this case. The dis- 
tinction between an irregular deposit, or a mutuum, and a sale, is some- 
times drawn with great nicetj', but it is clearly marked, and has been 
settled by high authority'. In case of a regular deposit, the bailee is 
bound to return the specific article deposited ; but where the depositary 
is to return another article of the same kind and value, or has an option 
to return the specific article, or another of the same kind and value, it 
is an irregular deposit or mutuum, and passes the propert}' as fully as 
a case of ordinary sale or exchange. Sir William Jones says, " It may 
be proper to mention the distinction between an obligation to restore 
the specific things, and a power or necessity of returning others of 
equal value. In the first case, it is a regular bailment ; in the second 
it becomes a debt." In the latter case, he considers the whole property 

Judge Story, in his commentaries on the law of bailment, says, 
" The distinction between the obligation to restore the specific things, 
and the obligation to restore other things of the like kind and equal in 
value, holds in cases of hiring, as well as in cases of deposits and gra- 
tuitous loans. In the former cases, it is a regular bailment ; in the 
latter, it becomes a debt or innominate contract. Thus, according to 
the famous laws of Alfenus, in the Digest, " if an ingot of silver is de- 
livered to a silversmith to make an urn, the whole property is trans- 
ferred, and the employee is only a creditor of metal equally valuable, 
which the workman engages to pay in a certain shape, unless it is 
agreed that the specific silver and none other shall be wrought up in 
the urn." Story on Bailments, § 439. 

In all this class of cases, the risk of loss by unavoidable accident at- 
taches to the person who takes the control or dominion over the prop- 
erty. When, therefore, Washburn's wheat was delivered to Chase & 
Co., and became subject to their disposal, either to retain or to ship it on 
their own account, the property passed, and the risk of loss by accident 
followed the dominion over it. 


The doctrine here adopted was at one time somewhat obscured hy the 
opinion of Chief Justice Spencer, in the case of Seymours v. JSrown, 
19 John. Eep. 44, in which the court decided that where the plaintiff 
delivered wheat to the defendants, on an agreement that for every five 
bushels of wheat the plaintiffs should dehver at the defendants' mill, 
the}-, the defendants, would deliver in exchange one barrel of flour, was 
a bailment, locatio operis faciendi ; and the wheat having been con- 
sumed bj' fire, through accident, the defendants were not liable on their 
agreement to deliver the flour. This decision, however, was disapproved 
of by Chancellor Kent, as not being conformable to the true and settled 
doctrine laid down by Sir William Jones, who has been stj-led the great 
(racle of the law of bailment. 2 Kent's Com. 464. And the decision 
has been distinctlj- overruled by repeated subsequent adjudications in 
the State of New York. Hurd v. West, 7 Cowen, 752 ; Smith v. 
Clark, 21 Wend. 83 ; Norton v. Woodruff, 2 Comstock, 153 ; Mal- 
lory V. Willis, 4 Comstock, 77 ; and Pierce v. Skenck, 3 Hill, 28. 

The same doctrine has been affirmed in the case of Baker v. Roberts, 
8 Greenleafs E. 101, and also Ewing v. French, 1 Blackford, 354. 
In the latter case, a quantity of wheat having been delivered bj- the 
plaintiff to the defendants, at their mill, to be exchanged for flour, and 
the defendants having put the wheat into their common stock of wheat, 
the mill, with the wheat, was afterwards casually destroj-ed b}' fire. 
The court held that the defendants were liable for a refusal to deliver 
the flour. If in that case the agreement of the parties had been that 
the flour to be furnished should be the flour which should be manufac- 
tured from the specific wheat delivered, instead of an exchange of wheat 
for fiour, it would have been a bailment, and the loss would have fallen 
upon the plaintiff. 

In the case of Buffum v. Merry, 3 Mason, 478, where the plaintiff 
had delivered to the defendant cotton yarn on a contract to manufacture 
the same into cotton plaids, and the defendant was to find filling, and 
to weave so many yards of plaids, at eighteen cents per j'ard, as was 
equal to the value of the yarn at sixty-five cents per pound, it was held 
to be a sale of the yarn ; and that, by the deliverj' of it to the defend- 
ant, it became his property, and he was responsible for the delivery of 
the plaid, notwithstanding the loss of the j'arn bj' an accidental fire. 
But had the plaintiff and the defendant agreed to have the particular j'arn, 
with filling to be found by the defendant, made into plaids on joint ac- 
count, and the plaids, when woven, were to be divided according to 
their respective interests in the value of the materials ; but, before the 
division, the plaids had been destroyed by accident, the loss, in the 
opinion of Judge Story, would have been mutual, each losing the mate- 
rials furnished by himself. 

The case of Slaughter v. Green, 1 Randolph, 3, and also the case of 
Inglehright v. Hammond, 19 Ohio Rep. 337, are relied upon as sus- 
taining the plaintiffs in error. These two cases, on examination, do not 
sustain the doctrine of the case of Seymours v. Brown, above referred to 


in 19 Johns. Rep. On the contrary, instead of an exchange of wheat for 
flour, in each of the cases, by the express terms of the contract, the 
flour to be returned was to be manufactured out of the wheat furnished. 
In the former case, the written receipts given for the wheat expressly 
provided, " that it is received to be ground" wliich excludes the idea 
of passing the ownership to the miller. And in the latter case, it was 
also expressly provided by the agreement, that the flour in controversy- 
was '■'■to be made out of the wheat furnished by Hammond," and 
" the flour made therefrom, loas to be delivered at Steubenville for said 
Hammond's use." In both these cases, therefore, the limitation in the 
agreement of the parties imported a bailment, and not an exchange for 
flour. And this character of the transaction is not lost either because 
the custom of the countrj' in reference to which the wheat was received, 
warranted the mixing of it with the wheat of others, received on like 
terms ; or because, by the express consent of the parties, the wheat 
was mixed with other wheat in the mill, belonging to the miller himself. 
When the owners of wheat consent to have their wheat, when delivered 
at a mill or warehouse, mixed with a common mass, each becomes 
the owner in common with others, of his respective share in the com- 
mon stock. And this would not give the bailee any control over the 
property which he would not have, if the wheat of each one was kept 
separate and apart. If the wheat, thus thrown into a common mass, be 
delivered for the purpose of being converted into flour, each owner will 
be entitled to the flour manufactured from his proper quantity or pro- 
portion in the common stock. If a part of the wheat held in common 
belong to the bailee himself, he could not abstract from the common 
stock any more than his own appropriate share without a violation of 
the terms of the bailment ; and such a breach of his engagement could 
not be cured by his procuring other wheat, to be delivered to supply the 
place of that thus wrongfully taken. But if the wheat be thrown into 
the common heap, with the understanding or agreement, that the per- 
son receiving it, may take from it at pleasure and appropriate the same 
to the use of himself or others, on the condition of his procuring other 
wheat to supply its place, the dominion over the property passes to the 
depositary, and the transaction is a sale, and not a bailment. 

It is claimed that the court of Common Pleas erred in refusing to 
charge the jury, as requested, that the custom among warehousemen 
at Milan, in the absence of an express contract, if known to Washburn, 
became a part of the contract. 

A custom, it is true, is not admissible, either to contradict or alter 
the terms or legal import of a contract, or to change the title to prop- 
erty' by varying a general rule of law. But a custom, when fully estab- 
lished, becomes the law of the trade in reference to which it exists ; 
and the presumption is that the parties intended to conform to it, when 
they have been silent on the subject. Its ofHce is to interpi'et the other- 
wise indeterminate intentions of the parties, and to ascertain the nature 
and extent of their contract, arising not from express stipulations, but 


from mere implications and presumptions, and of acts of doubtful and 
equivocal character. I am not prepared to saj' that the customs at 
Milan, if fully established, and known to both the parties to a contract, 
for the delivery of wheat to a warehouseman, may not be regarded as 
law, as well as the customs of London, or of Kent. But, unfortunately 
for the plaintiffs in error, the customs of Milan, as the evidence tended 
to prove, according to the bill of exceptions, very clearly showed the 
transaction between the parties in this case, to be a contract of sale, 
and not a bailment. Had the court, therefore, charged as requested 
upon this point, it could not have aided the defence set up against the 
action. So that if the court did err in this particular, no injury was 
therefore done to the plaintiffs in error. Judgment affirmed. 

Supreme Court of Iowa. 1876. 

[Reported 44 Iowa, 455.] 

The plaintiff claims as the assignee of seven contracts, executed by 
defendants, of one of which a copj' is as follows : — 

" Received of C. C. Cowell, for Thompson in store for account and 
risk of C. C. Cowell, one hundred and eighty-three bushels No. 3 wheat, 
loss by fire, heating and the elements at owner's risk. Wheat of equal 
test and value, but not the identical wheat, may be returned." The 
other six contracts are the same, except as to amount of wheat deliv- 
ered, and the parties named as delivering the same. The petition alleges 
that defendants have failed and refused to perform their contract. 

The answer alleges, " That at the time of the execution of the con- 
tracts set forth in said petition, the defendants were engaged in the 
business of buying, selling, and storing for hire, grain at Dj-sart, Tama 
Count}-, and in their said business owned and used an elevator building 
at the place aforesaid ; that in their said business it was impossible to 
store and keep in separate parcels the grain delivered to them by their 
various customers, but it was necessary to mix the grain of different 
parties by placing the same in common bins, and it was and is the cus- 
tom of warehousemen at said place, receiving grain belonging to differ- 
ent parties, to so place the same in common bins, and that the customers 
of the defendants, including the plaintiff and all the parties to whom the 
said receipts were issued, had full knowledge of said facts and of said 
custom, and consented that their wheat should be so stored by the de- 
fendants ; that, with a full knowledge of such facts and of said custom, 
the plaintiff and the other parties named in the receipts sued on herein 
stored and caused to be stored, in the aforesaid elevator of the defend- 
ants, the grain mentioned in said receipts therefor, copies of which are 
set forth in the petition. 


"And the said grain was, in accordance with said custom, stored in 
common bins with the wheat of other parties of equal test or value, at 
the risk of the respective owners mentioned in said receipts, storing the 
same, as to loss bj- flre, heating, etc. And that thereafter, and while 
said wheat was so in store in said elevator and before any demand 
therefor, and while the same was being housed and cared for b}' the 
defendants with all reasonable diligence, and without any fault or negli- 
gence on their part, the said building with the wheat therein, including 
that sued for herein, was destroyed by fire." 

The plaintiff demurred to this answer. The demurrer was sustained. 
Defendants appeal. 

Stivers and Leland, for appellant. 

Struble and Goodrich, for appellees. 

Dat, J. We have held that, where grain is deposited with a ware- 
houseman with the understanding that he is to ship and sell it on his 
own account, and when the depositor desires to sell the warehouseman 
will pay the highest price or return a like quantity and quality, the 
transaction constitutes a sale, and the propertj' passes to the warehouse- 
man. Johnston v. -Browne, 37 Iowa, 200. 

The contract in question provides that " wheat of equal test and 
value, but not the identical wheat, may be returned." This clearly 
gives the warehouseman the right to dispose of the wheat deposited on 
his own account, and, if there were no other provisions in the contract 
limiting and qualifying this provision, it would bring the case fuUj^ 
within the principle of Johnston v. Browne, and the wheat, from the 
time of the deposit, would be at the risk of the warehouseman. But, 
in order to get the exact sense and true meaning of the contract, all of 
its provisions must be construed together. The contract further pro- 
vides that the wheat is received in store " for account and risk of C. C. 
Cowell, . . . loss by fire, heating, and the elements at owner's risk." 
As the wheat is at the risk of Cowell, it is evident that he is the party 
who is alluded to in the contract as owner. To hold that, because the 
warehouseman was not under obligation to return the identical wheat, 
the transaction in law became a sale, and hence Brown, Doty & Co. 
are the owners, at whose risk is loss by fire, heating, and the elements, 
would do violence to the evident intention of the parties. 

The meaning of the whole contract taken together is clearly this : 
That so long as the wheat remains in the elevator, loss by fire, heating, 
and the elements, is at the risk of the depositor. In other words, so 
long as the wheat is kept in the elevator, though thrown in a common 
bin and mingled with other wheat of like quality, it is a mere bailment. 
But the warehouseman is not under obligation to retain the wheat of 
the depositor in his warehouse. He may, without breach of contract, 
and without being guilty of a conversion, ship the wheat away on his 
own account. When he avails himself of this privilege the character of 
the transaction and the relation of the parties change. There is then a 
completed sale, and the warehouseman assumes a liability which he can 


discharge only bj' paj^ment in wlieat of like quality and value, or in 
money. The wheat does not pass to the warehouseman, and become 
at his risk, simply because that of a number of depositors, of like grade, 
is with their consent mingled in a common mass. Upon this subject 
see Young v. MUes, 20 Wis. 615 ; Sterns v. Raymond, 26 "Wis. 74 ; 
and Gardner v. Dutch, 9 Mass. 407. 

The answer alleges that the wheat deposited by the respective owners 
named in the contracts sued on was in the elevator, and with it, without 
fault or negligence of defendants, was destroyed by fire. These facts 
constituted a defense, under the contract of the parties. 

The demurrer was improperly sustained. Heversed. 


Supreme Court of Iowa. 1880. 

[Eeported 53 Iowa, 181.] 

Action in equity to determine the respective rights of plaintiffs and 
others as warehouse receipt holders in a common mass of grain. The 
defendant James R Graham was for many years a dealer in grain at 
Davenport, Iowa. He received grain belonging to other parties on 
storage, and bought and sold on his own account, and in the course of 
his business he issued from time to time a large number of warehouse 
receipts. He transacted his business at a building called Bazar Block, 
in which there was an elevator which was used for the purpose of 
receiving grain, and distributing it in the various apartments of the 
building. On the 20th day of October, 1875, the said Graham, being 
largely in debt, absconded, leaving his warehouse or grain elevator in 
charge of his son, who had been for some time before that his clerk 
and book-keeper. There were then in the warehouse nearly 7,000 
bushels of oats and about 8,900 bushels of wheat. There were out- 
standing warehouse receipts for more than 60,000 bushels of wheat, 
and for 38,000 bushels of oats, which receipts had been issued to the 
several parties hereto. The plaintiffs. Sexton & Abbott, held a wheat 
receipt for 13,000 bushels which was in these words : 

No. 33. Elevator, Davenport, April 1, 1875. 

Received in store from Sexton & Abbott thirteen thousand bushels of 
wheat, subject only to the order hereon of Sexton & Abbott, and the surren- 
der of this receipt and the payment of charges. 

It is hereby agreed by the holders of this receipt that the grain herein men- 
tioned may be stored with other grain received about the date hereof, of the 
same quality by inspection. Loss by fire or heating at owner's risk. 
13,000 bush. James R. Graham, 

per P. Graham, 

In Bazar Block, Room No. 3. 


Said Sexton & Abbott also held a receipt for oats of which the fol- 
lowing is a copy : 

No. 16. Elevator, Davenpokt, Oct. 16, 1875. 

Received in store from Sexton & Abbott ten thousand bushels of oats, sub- 
ject only to the order herebn of Sexton & Abbott, and the surrender of this 
receipt and the payment of charges. 

It is hereby agreed by the holders of this receipt that the grain herein men- 
tioned may be stored with other grain received about the date hereof, of the 
same quality by inspection. Loss by fire or heating at owner's risk. 
10,000 bush. James K. Guaham, 

per F. Graham. 

There was also a receipt to the defendant Geo. W. Baker for 
5,000 bushels of wheat, dated May 31, 1875, assigned by Baker to 
the Davenport National Bank, as collateral securitj" for a loan to hitn. 
Also, another receipt to Baker, dated June 4, 1875, for 5,000 bushels 
of wheat, assigned bj- Baker to the First National Bank of Davenport, 
as collateral security for a loan to him of $3,800. Also, another re- 
ceipt to said Baker for 1,200 bushels of wheat, dated July 13, 1875, 
and held by Baker. There were, also, two receipts to the defendants 
D. B. Sears & Sons, each for 2,000 bushels of wheat, one dated on the 
27th daj' of August, 1875, the other on the 2d daj- of October, 1875. 
The defendants Chandler, Brown & Co. also had a receipt for 10,000 
bushels of wheat, dated September 23, 1875. The defendant the 
Davenport National Bank also held wheat receipts amounting in the 
aggregate to 28,000 bushels, which had been issued by Graham to 
the bank as collateral securitj' for loans of monej' made by the bank to 
him at various times. The said bank also held receipts for 17,300 
bushels of oats. These were also collaterals for loans of money. 

At the time of Graham's failure he was indebted to said bank in the 
sum of about $20,000, evidenced by his promissory notes, and the 
bank had no other security aside from said warehouse receipts. 
Chandler, Brown & Co. were commission merchants in the city of 
Milwaukee, with whom Graham transacted a large amount of business. 
He issued the receipt to them as collateral security for an indebtedness 
of $20,000, which arose by reason of overdrafts made by Graham upon 

The receipts of Sexton & Abbott, those held by the Davenport 
National Bank and the First National Bank as assignee of Baker, and 
that held by Baker in his own right, and the receipts of D. B. Sears 
& Sons, are all claimed to have been issued by Graham to the respect- 
ive parties holders thereof upon actual purchase of grain made by 
them, and upon full payment therefor, or upon actual storage of grain 
by the parties with Graham. The receipts issued to the several parties 
were mostlj' in the same form as those issued to Sexton & Abbott, of 
which copies are above given, except that most of those issued to the 
Davenport National Bank contain the clause, "storage and insurance 


paid," and some of them omit the clause about loss by fire and heating. 
Those issued to Baker and to Chandler, Brown & Co. also omit the 
provision to store with other grain of same quality. 

On the next morning after Graham absconded, B. B. Woodward, 
president of the Davenport National Bank, went to the warehouse or 
elevator of Graham, where the grain was stored, and demanded of 
Graham's son the delivery of the grain called for in the receipts held 
bj' the bank. Fremont Graham, the son of Jas. R. Graham, tliere- 
upon delivered to said "Woodward the keys of the building, and Wood- 
ward took possession of the warehouse and put one Brown, a former 
employee of Graham, in charge of it, with instructions to permit no one to 
have anj' of the grain in the warehouse except" on the order of the bank. 
On the next day the said Geo. W. Baker, D. B. Sears & Sons, and 
Sexton & Abbott, commenced actions of replevin against Graham and 
the Davenport National Bank, and seized the grain upon writs issued 
in said actions. 

Sexton & Abbott and the Davenport National Bank were the only 
parties who held receipts for oats, and the oats found in the warehouse 
were in one pile or mass. 

On the 27th day of October, 1875, this action in equity was com- 
menced bj Sexton & Abbott, claiming that thej' were entitled to a 
balance of 5,000 bushels of wheat on their receipts for 13,000 bushels, 
and 10,000 bushels of oats on their receipt for oats, and that the other 
receipt-holders made claim to grain to fill their receipts, and that the 
amount of grain left by Graham was insufficient to fill all the outstand- 
ing receipts. They asked the appointment of a receiver to take pos- 
session of the wheat and oats and sell the same, and that the suits of 
replevin be enjoined, and that upon a final hearing the rights of the 
parties in the grain, or the proceeds thereof, might be adjusted and 

All of the other receipt-holders answered. Some of them filed cross- 
petitions claiming the grain, and to these there were answers and 
replies until, as one of the counsel expresses it, there was a " wilder- 
ness of pleadings." 

D. B. Sears & Sons claimed a balance of 3,200 bushels of wheat as 
due them when Graham left. They obtained, by their writ of replevin, 
640 bushels, which was in a separate pile in the warehouse. Their 
right to this was not disputed by any of the parties. Pending the suit, 
by an agreement consented to by all the parties, a further amount of 
1,481 bushels, which was also in a separate pile, was divided between 
Sears and Sexton & Abbott. Sears & Sons had also removed some 
wheat from the main body or mass, and when the cause was sub- 
mitted to the court below, they claimed 1,076 bushels. There was, 
therefore, left for such of the parties as were entitled thereto, a quan- 
tity of wheat, all stored in said warehouse in one undivided mass, con- 
taining 6,791 bushels, and also 6,796 bushels of oats, aU stored in one 
mass in said warehouse. 


The Davenport National Bank claimed the entire quantity of wheat 
and oats. Sexton & Abbott claimed all the oats. All of the other 
parties, including Sexton & Abbott, claimed an interest in the wheat, 
and denied the right of the Davenport National Bank to any part 
thereof. A receiver was appointed, who sold the grain in controversy, 
and the decree distributed the proceeds among the several parties, as 
follows : All the proceeds of the oats were awarded to Sexton & 
Abbott. It was found that D. B. Sears & Sons were entitled to the 
entire proceeds of the sale of 1,076 bushels of wheat, and that Sexton 
& Abbott, the two banks as assignees of the Baker receipts, and 
Baker for the receipt held in his own name, were entitled to participate 
in the balance of the proceeds of the wheat in proportion to the amount 
due upon the respective receipts held b^- them. No relief was given 
to Chandler, Brown & Co., nor to the Davenport National Bank upon 
the receipts held by it as collateral securitj' for loans of money to 
Graham. Isaac M. Hill and W. H. Hubbard, who had filed a petition 
of intervention, claiming a right in the fund in the hands of the re- 
ceiver by virtue of a judgment against Graham, and a garnishment 
process served upon the receiver, were, by the decree, denied anj' 
right to participate in said fund. The Davenport National Bank 

Davison <& Lane, for appellant. 

Putnam <& Rogers and George E. Subhell, for Sexton & Abbott. 

Qreeii S Peters, Bills & Block, Martin, Murphy S Lynch, 
Chas. Whittaker, Cook S Bichman, and Stewart & White, for the 
other appellees. 

Adams, Ch. J. The defendants Chandler, Brown & Co., Isaac M. 
Hill and W. H. Hubbard, who were, by the court below, denied any 
participation in the proceeds of the grain, do not complain of the de- 
cree. They are, therefore, practically out of the case, and their rights 
need not be considered. 

The plaintiffs. Sexton & Abbott, and the defendants Baker and 
Sears & Sons have, as their counsel expresses it, waived minor differ- 
ences among themselves and made common cause against their common 

We will proceed, in the first place, to determine the rights of Sexton 
& Abbott as against the appellant, and in so doing we shall dispose 
for the most part, of the questions which arise between the appellant 
and the other appellees. 

Sexton & Abbott claim that the appellant acquired no right in the 
grain, either by the issue to it of the receipts by Graham, or afterward 
by the delivery to it of the grain. 

The appellant claims that, while Sexton & Abbott m&y at one time 
have owned the grain described in their receipts, they sold the same to 
Graham at the time of the issuance of the receipts, or, if not, that their 
title to the grain became extinguished by reason of what afterward 


The first question to be determined is as to whether the transaction, 
in pursuance of which the receipts were issued to plaintiffs lay Graham, 
was a sale bj' them to him. Of course, if the grain had been specially 
deposited, that is, with the agreement or understanding that it should 
be kept separate from all other grain, no question could have arisen. 
It would be conceded bj' the appellant that the transaction would have 
been a bailment and not a sale. But the receipt expressly provided 
that the grain might be stored with other grain of the same kind and 
grade, the conceded meaning of which is that the grain might be mixed 
with other grain of the same kind and grade in a common mass. Now, 
while the appellant contends that this is a most important fact, it does 
not contend that this fact alone would necessarily make the transac- 
tion a sale. Where a warehouseman merely receives grain from sev- 
eral depositors, with the understanding that it ma}' be mixed in a 
common mass, and it is so mixed, the transaction is a bailment, and the 
depositors are tenants in common. Cushing v. Breed, 14 Allen, 380. 
But it is said that where the warehouseman is himself a depositor, and 
it is understood by the other depositors that their grain is to be mixed 
with his, with the right, on his part, to draw from the mass to the 
amount of his deposit, then the depositors do not become tenants in 
common, but the title to all the grain passes at once, upon deposit, to 
the warehouseman. In support of this view, the appellant cites South 
Australian Insurance Co. v. Handall, Law Rep. 3 Pri^y Council 
Appeals, 101 ; Chase v. Washhurne, 1 Ohio St. 244 ; Norton v. 
Woodruff, 2 Coms. 155; Carlisle v. Wallace, 12 Ind. 252; Smith 
V. Clarke, 21 Wend. 84 ; Hurd v. West, 7 Cow. 762 ; Lornegan v. 
Stewart, 55 111. 45 ; Wilson v. Cooper, 10 Iowa, 565 ; Johnston v. 
Browne, 37 Iowa, 200. It is claimed by appellant, and we think the 
evidence so shows, that at the time of the transaction in question 
Graham was depositing, upon his own account, grain in his warehouse 
or elevator in common mass, and shipping therefrom, and that the 
plaintiffs knew it. We have then the question whether, such being 
the fact, the title to plaintiffs' grain under their receipts passed to 

Upon this point one other fact ought to be mentioned. The evi- 
dence shows that the grain described in the plaintiff's receipt was 
already in the elevator, having been originally deposited bj' Graham 
as the owner. The receipts were issued in pursuance merely of what 
the parties claimed to be a sale from Graham to plaintiffs. How the 
same transaction could be a sale from plaintiffs to Graham is, to say 
the least, a little diflBcult to understand. 

But suppose that the plaintiffs had bought the grain of a third per- 
son and brought it to the elevator and deposited it, would the title 
have passed to Graham? It is a common thing, we believe, for pro- 
prietors of elevators to employ them for the deposit of their own 
grain, if they have any, in common mass with others' grain. Deposi- 
tors, we think, generally know this, and consent that their grain maj' 


be mised not only with grain belonging to third persons, but with 
grain belonging to the proprietor, if he should have anj-. This mode 
of doing business seems to be demanded by considerations of economy. 
Now we are asked to hold that such depositors lose title to their grain 
immediately upon its being deposited, and that the receipts issued to 
them, though expressly calling for grain, are no evidence of a claim 
for grain, but at best are merely evidence of a claim for money, and 
are good or otherwise, according as the maker is or is not responsible. 
It is contended that such deposits of grain are like general bank de- 
posits of money. In our opinion, however, there is a very important 
difference. In case of a general bank deposit it is understood that the 
bank will use it in its own way. It is from the use of deposits that the 
bank is to receive its compensation for receiving the deposits and ac- 
counting for the same. It is true that as grain has a definite and 
well recognized market value it would not, ordinarily, make much 
difference to the receipt-holder whether he received the grain which 
liis receipt called for, or was paid its market value in cash. But the 
rule contended for would make a great difference in the safety of the 
receipt-holder. In our opinion it cannot be sustained either upon 
principle or authority. The cases above cited as relied upon by appel- 
lant's counsel are none of them in point. In all of them there was 
enough in the receipts, or in the circumstances, or both, to evince an 
understanding upon the part of the depositor that the warehouseman 
should have a right to sell the thing deposited upon his own account, 
or otherwise appropriate it to his own use. Such an understanding 
does not exist upon the part of grain receipt-holders by reason of a 
mere agreement that the warehouseman may mix his own grain with 
theirs and draw out and sell the same amount. In such case the ware- 
houseman becomes a tenant in common like any other depositor, and 
may be permitted to enjo}' the same right of severance without affect- 
ing the title of his co-tenants. 

Again, upon looking into the plaintiffs' receipts, we find that they 
are something more than mere receipts. They contain what appears to 
us to be an express contract of bailment. If so, it is not competent to 
show that there existed a different contemporaneous parol understand- 
ing. Marks v. Cass County Elevator Co., 43 Iowa, 146. 

The transaction, then, being a bailment in the outset, we come to 
inquire whether the relation of the parties became changed hy reason 
of what afterwards transpired. The appellant contends that it did. 
It is insisted that the evidence shows that the grain in controversy is 
entirely different grain from that in store when the plaintiff's receipts 
were issued. 

The business which Graham was doing was an ordinarj' grain ware- 
house or elevator business. Grain received from different depositors 
was put in at the top of the elevator and delivered to them at the bot- 
tom. Grain of like kind and gi-ade was mixed in a common mass. 
Delivery was made to each depositor without the slightest reference to 


identity of grain deposited. It was not onty useless but impracticable to 
respect the identity of the deposit. The plaintiffs wheat receipt was 
held about six months. There were in store at the time of its issuance 
about 55,000 bushels. Afterwards there passed through the elevator 
about 150,000 bushels. This fact alone, it is said, is suflBcient to ren- 
der it improbable that any considerable part of the wheat in controversy 
is identical with that originally covered by the plaintiff's receipt ; 
besides, it is said that the evidence shows that the elevator was cleaned 
out two or three times. It appears that a mode of receiving and de- 
livering grain was employed two or three times which resulted in sub- 
stantially effecting a change in the mass ; it was done to prevent 
heating ; it was accomplished by preventing grain received after a cer- 
tain date from mingling with that received before. This was easily 
practicable bj- reason of the different floors and compartments of the 
elevator. The amount of grain in store, however, at any given time 
was neither greater nor less by reason of the cleaning out process. The 
different floors or compartments were emptied successively and succes- 
sivelj' refllled, but the change of mass was effected as substantially as 
if all had been emptied at once. The appellant insists that the change 
of mass destroj'ed all identity between the wheat in controversj^ and 
that originally covered by the plaintiff's receipts, and, if so, that the 
receipt cannot be upheld. 

In the ordinary conduct of the business of an elevator a partial 
change of mass is effected by every receipt and shipment. Such partial 
change, however, does not impair the value of the outstanding receipts. 
As each receipt-holder withdraws his grain, the remaining receipt- 
holders become each the owner of a larger fraction in a smaller mass. 
Upon each new deposit being made, the receipt-holders become each 
the owner of a smaller fraction iu a larger mass. So far, we presume 
that there is no controversy. The process may be continued from 
day to day, and so long as the change of mass is a partial one, 
though approximating day by day to completeness, the value of 
the outstanding receipts remains unchanged. Possibly it would be 
admitted by appellant that the value of a receipt would remain un- 
changed when next to the last kernel originally covered bj' it was with- 
drawn. Possibly somewhat more than that amount might be deemed 
necessary to uphold the receipt. But according to the appellant's 
theor3', as we understand it, whatever the amount may be, whether one 
kernel or one bushel, its withdrawal, although in the ordinary and 
necessarj^ conduct of the business, renders the receipt worthless as 
evidence of a claim to grain, and what a moment before was a valid 
title in the receipt-holder to all the grain called for b}- his receipt 
becomes transferred from the receipt-holder to the warehouseman,- and 
that, too, in the absence of any agreement or understanding of that 
kind between the parties. It will be seen at once that the rule con- 
tended for would result in the most painful uncertaintj- and intermina- 
ble confusion. No receipt-holder who had held his receipt even for a 


short time during a period of active business would know, or could 
possibly ascertain, what his rights are. This result, so undesirable in 
every respect, is reached by appellant upon the purely technical view 
that unless a portion of the original grain, at least a kernel or two, 
remains, the receipt must, in the nature of things, fail. In our opinion, 
a complete answer is that as the receipt attaches upon each new deposit 
the receipt-holder becomes and remains a tenant in common at all 
times of the mass which is being added to and subtracted from. 

At this point a question arises as to what is to be deemed a common 
mass. The elevator, as we have seen, was constructed with different 
floors and compartments. Grain was put in at the top of the elevator 
and delivered at the bottom. If a receipt-holder called for his grain 
immediately it seems probable that he would not only receive no part 
of the grain deposited, but would receive grain from some floor or com- 
partment, which would contain no part of the grain deposited. He 
would, therefore, receive grain with which the grain deposited by him 
had not been actually mixed. But the delivery to him would not for 
that reason, we think, be wrongful. When grain is deposited in an 
elevator with the understanding that it may be mixed with all grain of 
that kind and grade in the elevator, and the grain of that kind and 
grade is distributed upon different floors or in different compartments 
merely because the weight of the grain, or prevention from heating, or 
convenience in handling, or some other reason of that kind requires it, 
and not at aU for the preservation of identitj', all the grain of that kind 
and grade is to be deemed a common mass within the view of the law 
as applicable to such a case. This must be so, because the grain is 
practically treated as a common mass. When grain passes into the 
elevator with the understanding that it may be mixed with other grain 
of the same kind and grade it passes beyond the control of the de- 
positor, so far as identity is concerned. What the parties have agreed 
to treat as a common mass is such for the purpose of determining the 
rights of the parties. We think, then, that a depositor becomes a 
tenant in common of all the grain in the elevator with which his grain 
may properh- be mixed, and he may demand the satisfaction of his 
receipt out of any or all such grain. Of course if grain is wrongful^ 
abstracted there would not be enough to meet all the receipts. In such 
case the loss should be borne pro rata. 

In this case gi-ain was wrongfully abstracted. Graham after exhaust- 
ing his own deposits drew largely in excess. The amount wrongfully 
taken by him exceeded the amount left on hand when he absconded. 
It is contended by the appellant that the amount thus left belonged to 
Graham. The appellant's theory is, as we understand it, that the 
amount on hand must be solely the result of Graham's deposits. The 
assumption that this grain belonged to Graham at the time he ab- 
sconded involves the assumption that when grain was wrongfully 
abstracted by Graham, and afterwards a deposit was made by him, 
the law would not, in the absence of an agreement to that effect, apply 


the subsequent deposit toward making good the previous wrongful 

Whether, if Graham's deposits had all been made subsequent to his 
wrongful taking, he could in a controversy between the receipt-holders 
and himself, in respect to the grain left on hand, be heard to say that 
they had no interest in it, because he had before the deposit of this 
grain wrongfully taken all their grain, is a question perhaps not fully 
settled by adjudication. As tending to support the rule that he would 
be estopped in such case, see Gardiner v. Suydam, 3 Selden, 363. 
But we need not go into this question. There is nothing to show that 
Graham's wrongful shipments were all made prior to his deposits. To 
the extent of his deposits at the time of his shipments they were not 
wrongful. And his shipments altogether never equalled the amount of 
his deposits, and the amount called for bjr the outstanding receipts. 
They lacked precisely the amount left on hand. That, we think, must 
be deemed to belong to the receipt-holders. 

But it is said that subsequent to the issuance to the plaintiffs of 
their wheat receipts they gave their consent to Graham that he might 
sell their wheat upon his account. If they did give such consent, and 
the deficiency resulted from the sales of their wheat in pursuance of 
such consent, perhaps as between them and other receipt-holders they 
should sustain the loss. 

There is some evidence showing a consent by plaintiffs to certain 
sales. One of the plaintiffs testified that Graham sometimes asked for 
permission to sell wheat, and that he gave permission on condition of 
his replacing it, wliich he generally did in a few days. Now while it 
is certain that he sold a large amount which he did not replace, it is 
not shown that that grain was sold by plaintiffs' permission. 

The appellant further insists that the evidence shows that Graham 
not only sold a portion of plaintiffs' grain bj- their permission, but pur- 
chased of them all the balance. In the evidence upon this point there 
is a very decided conflict. Graham testifies that he not only purchased 
the plaintiffs' grain but paid them for it. But Graham's relation to 
the case is not such as to commend bis testimony to us as entitled to 
the fullest credit. Besides there is an undisputed fact that prevents 
us from beheving that Graham made such purchase and payment. The 
plaintiffs' receipt was held by the Citizens' National Bank of Daven- 
port as collateral to a loan of 810,000, which was well known to 
Graham. It was not within Sexton & Abbott's power to give Graham 
a good title while the bank held the receipt. Possibly title was of no 
consequence to Graham. He maj' have contemplated selling and ship- 
ping the grain without title, as he in fact did do to a considerable extent. 
But that is no reason wh}' he should buj' the grain of the plaintiffs, who 
he knew could not sell it, and pay them for it. 

But it is said that Graham's testimony is corroborated. Four wit- 
nesses do indeed testify' to hearing one of the plaintiffs saj' that they 
had sold their grain to Graham. It seems improbable that these wit- 


nesses were all mistaken. There were negotiations for a sale, as 
appears from the evidence, and we are inclined to think that plaintiffs, 
for reasons known to themselves, spoke of the sale to others as having 
been consummated. But this is not, in our opinion, suflHcient to over- 
come the testimony of the plaintiffs that such sale was not in fact made, 
corroborated as they are by the undisputed fact to which we have 

The appellant further insists that the evidence shows that the plain- 
tiffs were partners with Graham, and that Graham had a right as 
partner to sell the grain. Graham testifies that such was the fact. 
But the right on the part of Graham to sell the grain as partner would 
not include the right to sell it upon his own account, and there is no 
pretence that he sold it upon any other. That circumstance alone 
would discredit him. But further than that the undisputed fact is that 
the -title to the grain was not only solely in the plaintiffs, but thej^ had 
transferred their receipt to the Citizens' National Bank as security, 
which bank still held it. If anything more were necessarj^ to show 
that Graham did not consider the shipment and disposal of the grain 
by him as a partnership transaction, it may be found in the fact that 
no specific shipment and disposal of the grain appears to have been 
made. The shipment and disposal appear to have been an undistin- 
guishable part of a criminal raid. 

Having reached the conclusion that the plaintiffs and Graham in the 
outset sustained to each other the relation of bailors and bailee, and 
that nothing afterward transpired which changed the relation, we pro- 
ceed to consider the relation of the plaintiffs to the appellant. 

Both plaintiffs and appellant are receipt-holders. In our opinion, 
however, they do not stand in the same relation to the grain. The 
appellant's receipts were not issued to it upon deposits made by it, nor 
because it had acquired the title to any grain in the elevator. The 
understanding between Graham, the maker of the receipts, and the 
appellant was, that the receipts were issued upon grain owned by him, 
and to which he still retained the title. They were issued merely as 
security. The appellant insists that as such they are valid, being 
evidence of a pledge of the quantity of grain therein described. 

Section 2172 of the Code provides that " no warehouseman . . . shall 
issue any receipt ... for any'personal property to any person unless 
such property is in store," and section 2171 provides that " all" ware- 
house receipts, or other evidences of the deposit of property . . . 
shall be, in the hands of the holder thereof, presumptive evidence of 
title to said property." 

It is evident that the property contemplated by the statute, for which 
a warehouse receipt may be issued, must be the property of the re- 
ceipt-holder. This is so because the statute provides tliat the re- 
ceipt shall be presumptive evidence of title in the holder. If it is 
issued in a case where the holder has no title, and where the receipt 
was not designed by either party to be evidence of title, it appears 



to US that it is issued in conti-avention of the statute and cannot be 

Under the rule contended for by the appellant we should have two 
distiuct kinds of receipts, although of the same import upon their face ; 
the one kind issued as evidence of title, and the other merely as a 
mode of effecting a lien. The allowance of two distinct kinds of 
receipts of the same import upon their face would have a tendency to 
introduce uncertainty and confusion, for which no advantage, so far as 
we can discover, would be a suflScient compensation. "We should hesi- 
tate, therefore, about sanctioning the rule contended for even if the 
provisions of the statute were less explicit than they are. The appel- 
lant, however, cites and relies upon Cochran v. Mippey, 13 Bush, 
(Kj.) 495. In that case a warehouse receipt issued by a person upon 
his own property , and designed as security to the holder, was held 
valid. The appellant claims that the statute under which the decision 
was made is in its essential provisions similar to our own. But it ap- 
pears to be contemplated by the fifth section of the statute that such 
receipts maj- be issued. 

But it is claimed by appellant that even if the receipts held by it are 
invalid, it acquired a lien upon the grain paramount to any right or 
interest of the appellees. This claim is predicated upon the delivery of 
the grain made to the appellant after Graham absconded. The evi- 
dence shows that appellees purchased the grain described in their 
receipts of Graham, and allowed him to retain it without placing upon 
record any evidence of their purchase. The appellant therefore, claims 
that its lien is valid as against the appellees even though it were held 
to date merely from the time of delivery. We shall not consider all 
the questions discussed by counsel in this connection. No pledge was 
created by the delivery unless such was the understanding of the 
parties. Now it appears to us that such was not the understanding of 
either. The evidence shows conclusively that the appellant obtained 
possession under a claim of a subsisting lien and not by reason of a 
new agreement designed to give a lien. Graham says in his testimony, 
in speaking of the delivery of the grain to appellant — " I did not have 
any mind to give it to anybody particularly." This shows that there 
was no understanding upon his part that a lien would be created by the 
delivery which would supersede the rights of all other receipt-holders. 
Nor do we see anything in what he said or did, or authorized his son 
to say or do, which could properly be constraed as evincing such 
understanding. The reasonable inference is that he understood that 
all the holders of valid receipts would share in the grain according to 
their respective claims. 

The understanding of the appellant is shown by what was done by 
its president at the time it took possession of the grain. The president 
testifies that he said to Graham's son who was in charge that he wished 
to get possession of the grain for the bank, and at the same time pre- 
sented the receipts held by the bank, and possession was delivered to 


him. The possession, then, was gained solely under an antecedent 
claim. The transfer thus made is not of itself evidence of a new and 
independent agreement, such as would be necessary to create a pledge, 
and we see notliing else that is. 

The views which we liave expressed thus far have had reference more 
especially to the plaintiffs' wheat receipt. The claims in respect to tlie 
oats are less complicated. No question is raised in respect to them 
not alreadj' disposed of. 

Upon the receipts issued to Baker, an independent question is raised. 
It is claimed that Baiter sold 10,000 bushels of his wheat through 
Graham, in Milwaukee. Baker, it appears, owned 11,200 bushels. A 
receipt for 5,000 bushels had been deposited bj' Baker in the appellant's 
bank as collateral securitj', and another receipt for the same amount 
had been deposited in another bank for tlie same purpose. A receipt 
for 1,200 was still retained by him. While the three receipts were so 
held, it appears that Baker directed Graham to make a sale of 10,000 
bushels. Graham claims that in accordance with such directions he did 
make such sale in Milwaukee in August, 1875. But his testimony 
shows that what he calls a sale of 10,000 bushels of Baker's wheat was 
a mere contract to deliver that amount in September, and that he did 
not contemplate shipping from Baker's wheat unless, to use his own 
words, " wheat went against them." The evidence tends to show that 
no shipment was made from Baker's wheat in pursuance of any such 
contract, and that it was understood between Graham and Baker that 
none should be made, but that the contract was otherwise disposed of, 
and such, we think, was the fact. 

The amount found due Seai's & Sons as a basis of division of the 
common mass was 1,076 bushels. The appellant insists that there was 
not that amount due them, if anything. 

The evidence shows that a part of the grain covered b}' the receipts 
held by Sears & Sons had been drawn out bj' tliem. In the decree in 
their favor some deduction was made on this account. The appellant 
insists that the deduction was not large enough. We have examined 
the evidence carefully upon this point, and are unable to determine 
with entire certainty what deduction should have been made. The 
receipts were evidence in their favor, and they were entitled to all that 
they were allowed unless there was affirmative evidence showing other- 
wise. In the obscurity of the evidence we are not disposed to disturb 
the decree upon this point. 

The appellant objects to the amount allowed the receiver for services, 
and also to the amount allowed for other expenses, all of which were 
made a charge upon the fund in the receiver's hands. Of this the 
appellees, who are entitled to the principal part of the fund, do not 
complain. The appellant is interested only to the small extent to 
which it is allowed to share in the fund through one of the Baker 
receipts. In view of these facts, and the meagre condition of the 


evidence upon this point, we do not think it would be proper for us to 

We think that the judgment of the Circuit Court must be Affirmed. 

EoTHROCK, J., dissenting} 

B. Tortious. 

Queen's Bench. 1593. 

[Reported Pop. 38, pi. 2.] 

In trespass for canying away certain loads of hay, the case hap- 
pened to be this : The plaintiff pretending title to certain hay which 
the defendant had standing in certain land, to be more sure to have 
the action pass for him, took other hay of his own (to wit, the plain- 

1 "In the cases which we have now gone over the argument is very strong that there 
is a sale to the owners of the elevator, and it has already been fully stated. At the 
same time it cannot be denied that if the law is so, it will be followed by injustice and 
inconvenience. Undoubtedly those who deliver grain to an elevator think they have 
something more than the personal liability of the warehouseman, and regard him as 
their bailee in charge of their property. The holders of accepted orders look upon 
them as representing property in like manner. If the transaction is regarded as a 
sale, the safety of receipt-holders depends upon the warehouseman's solvency ; if the 
doctrine which will be advocated here prevails, they run no risk unless he is both 
insolvent and dishonest. Of course, the opinion of merchants as to the nature of the 
transaction is not conclusive. As is observed by the Lord Justice James in a late 
case, ' there is no magic in the word "agency." It is often used in commercial mat- 
ters, when the real relation is that of vendor and purchaser.' Ex parte White. In 
re Nevill, L. E. 6 Ch. 397, 399. But it is undoubtedly desirable to work out the 
expectations and intentions of the parties if the machinery of the law admits it. 
Suppose that warehousemen became insolvent, having always been careful to keep a 
quantity of grain in store corresponding to the amount for which they had receipts out, 
would not the holders of the receipts have a right to feel that they were unjustly 
treated, unless they were preferred to the general creditors in their claim upon that 
grain ? Let us look at it a little more exactly. 

" Suppose I deliver a copy of the General Statutes of Massachusetts, or other book 
easily purchasable in the market, to an agent to keep, telling him, Tiowever, that he 
may sell it at any time, provided that he will immediately appropriate another copy 
to me upon doing so, and give him like power of sale and substitution as to all suc- 
ceeding copies. The title in the copy for the time being appropriated to me, to be 
vested in me. Is not that a perfectly possible transaction ? The analogies of the 
law show that the title to a substituted volume would vest in me as soon as it was 
definitely appropriated to me. Aldridge v. Johnson, 7 El. & Bl. 885, 898, per Lord 
Campbell, C. J. ; Laiigton v. Higgins, 4 H. & N. 402. 

"Would it make any difference if the agent also had power to mix the volume with 
others belonging to third persons, from which it was not distinguishable, each owner 
being at liberty to call for one at any time ? Would it make any difference that he 
was at liberty to add others of his own, if he was only at liberty to withdraw as many 
as he put in ? " — 6 Am. Law Rev. 464, 465. 

WARD V. AYRE. 133 

tiff) and mixed it with the defendant's hay, after which the defendant 
took and carried away both the one and the other that was intermixed, 
upon which the action was brought, and by all the court clearly the 
defendant shall not be guilty for any part of the haj-, for by the inter- 
mixture (which was his own act) the defendant shall not be prejudiced 
as the case is, in taking the hay. And now the plaintiff cannot say 
which part of the hay is his, because the one cannot be known from 
the other, and therefore the whole shall go to him who hath the prop- 
erty in it with which it is intermixed, as if a man take my garment 
and embroider it with silk, or gold, or the like, I may take back my 
garment, but if I take the silk from j'ou, and with this, face or em- 
broider my garment, you shall not take my garment for j-our silk which 
is in it, but are put to the action for taking of the silk from j'ou. 

So here, if the plaintiff had taken the defendant's hay and carried it 
to his house, or otherwise, and there intermixed it with the plaintiff's 
hay, there the defendant cannot take back his hay, but is put to his 
action against the plaintiff for taking his hay. The difference appear- 
eth, and at the same day at Serjeants' Inn in Fleetstreet, the difference 
was agreed by Anderson, Periam, and other justices there, and this 
case was put by Anderson : If a goldsmith be melting of gold in a 
pot, and as he is melting it, I will cast gold of mine into the pot, which 
is melted together with the other gold, I have no remedy for my gold, 
but have lost it. 

King's Bench. 1615. 

[Reported Cm. Jac. 366.] 

Trespass of assault and battery, et quod cumulum pecunice, con- 
taining five marks, cepit, &c. 

The case was. The plaintiff and defendant being at play, the plain- 
tiff thrust his money into the defendant's heap and mixed it, and the 
defendant kept it all ; whereupon (they striving for the money) plaintiff 
brought this action. 

The whole court were of opinion, in regard the plaintiff's own money 
cannot be known, and this his intermeddling is his own act, and his 
own wrong, that by the law he shall lose all ; for, if it were otherwise, 
a man might then be made to be a trespasser against his will, by the 
taking of his own goods ; therefore, to avoid that inconvenience, the 
law will justify the defendant's detaining of all : and so it is of an 
heap of corn voluntarily intermingled with another man's. Whereupon 
the rule of the court was, quod querens nihil capiat per Milam. 



Supreme Judicial Court of Massachusetts. 1838. 

[Reported 21 Pick. 298.] 

Morton, J. delivered the opinion of the court.* This is trespass de 
bonis asportatis, in which the plaintiff claims to recover for twentj'- 
three cords of wood. 

It appeared in evidence that the defendant took a certain quantity of 
wood, but he justified the taking, on the ground that the plaintiff had 
cut and carried the wood from his land, and so that the wood was his, 
and he had a lawful right to take it. The wood in controversy was cut 
by the plaintiff and removed by him to a landing-place by the shore of 
the swamp, the soil of which was owned by the defendant. From this 
place the defendant carried it away. If the wood was really cut upon 
the defendant's land, the cutting and removing it bj- a wrong-doer 
would not divest him of his property in the wood, and he might law- 
fully remove it from the place where the plaintiff had put it. 

The principal question in the case relates to the title of the land on 
which the wood grew. 

Upon a careful revision, we are well satisfied, that in reference to the 
title, the instructions were correct, and the finding of the jury war- 
ranted by the evidence. 

But in the next branch of the case we have found much greater 

It appeared that a part of the wood taken by the defendant had 
been cut and carried to the landing-place by the plaintiff from land 
indisputabl}' his own. For this part he contended that he had a right 
to recover, however the title to the other lot might be decided. In re- 
lation to this part of the case the jury were instructed, that if " a part 
of the plaintiff's own wood was so mixed with the defendant's wood in 
the same pile, either that the defendant did not know it or could not 
by any reasonable examination distinguish it, the taking of such part 
was not a trespass for which this action would lie." Now if, under 
any circumstances, the taking of wood thus mixed might be a tres- 
pass, this general instruction would need some qualification, and with- 
out it would be incorrect, and might mislead the jury. And although, 
in all other respects, the instructions are right, and this may need but 
a slight modification, yet even that, under our practice, must lead to a 
new trial. 

Few subjects in the law are less familiar, or more obscure, than that 
which relates to the confusion of property. If different parcels of 
chattels, not capable of being identified, owned by different persons, 

' The opiuion states t]i« facts. That part of the opinion relating to the question 
of title is omitted. 


get mixed, how are they to be severed ? What are the relative rights 
of the different owners? Take, for example, grain or liquor. Can 
each one of the former owners take from the common mass his pro- 
portion, or do they become tenants in common of the whole ? If one 
takes the whole, what shall be the remedy? Will trespass lie? If 
thej' become tenants in common, clearly not. There is some conflict 
on this subject between the common law and the civil law. If the 
intermixture takes place by accident, or without the fault o£ the parties, 
it would be very unreasonable to deprive either party of his property, 
or materially' to affect his right to it. And yet oftentimes there must 
be great suffering, as by the confusion of property of different kinds 
and qualities, as of different kinds of grain or liquors, the intermixture 
of which would greatly impair, if not entirely' destroj', the \alue of 
the whole. But it will not be useful further to consider the intermix- 
ture of propertjf by accident, as it will not have much application to 
the case under consideration. 

The cases of intentional intermixture present questions of greater 
perplexity. If the owners of goods incapable of being identified con- 
sent to intermix them, their consent makes them tenants in common. 
But if the property be wilfully and unlawfully intermingled, it clearly 
cannot constitute a tenancy in common, because a person cannot be 
made a tenant in common or copartner without his consent. The act 
of God or of the law may create such a confusion of the property of 
different owners, as necessarily' to constitute a community of property 
between them. But no one person by his own act can compel another 
to become his cotenant. 

By the rules of the civil law, if the intermixture was made wilfully 
and not by mutual consent, he who made it acquired the whole, and the 
onlj- remedy for the other partj- was a satisfaction in damages for the 
property' lost. Vinn. ad Inst. lib. 2, tit. 1, § 28. This rule seems to be 
very imperfect, as it would enaBle one person to acquire the property 
of another against his will, merelj' rendering himself liable to pay the 
value of it. But it undoubtedh' went upon the ground, that the inter- 
mixture was a conversion, and, in this respect, is analogous to many 
cases of trover and trespass. But our law adopts an entirely opposite 
rule. That ver}' learned commentator, Chancellor Kent, in 2 Kent's 
Comm. 297, sa3's " the common law, with more policy and justice, to 
guard against fraud, gave the entire property, without any account, to 
him whose property' was originally invaded and its distinct character 
destroyed. If A will wilfully intermix his corn or hay with that of 
B, so that it becomes impossible to distinguish what belonged to A 
from what belonged to B, the whole belongs to B." Hart v. Ten JEyck, 
2 Johns. Ch. R. 62. 

But this rule only applies to wrongful or fraudulent intermixtures. 
There may be an intentional intermingling, and yet no wrong intended ; 
as where a man mixes two parcels together, supposing both to be his 
own, or that he was about to mingle his with his neighbor's, by agree- 


ment, and mistakes the parcel. In such cases, which may be deemed 
accidental intermixtures, it would be unreasonable and unjust that he 
should lose his own, or be obliged to take his neighbor's. If they were 
of equal value, as corn, or wood, of the same kind, the rule of justice 
would be obvious. Let each one take his own given quantit3^ But if 
they were of unequal value the rule would be more difficult. And if 
the intermixture was such as to destroj^ the property-, the whole loss 
should fall on him whose carelessness or folly or misfortune caused the 
destruction' of the whole. This doctrine is recognized and discussed 
by Lord Eldon, in l^upton v. White, 15 Ves. 432. See also Panton v. 
Panton, cited in 15 Vesey, 442 ; Story on Bailments, § 40 ; Ayliffe's 
Pand. lib. 3, tit. 3, p. 291 ; Ersk. Inst. bk. 2, tit. 1, § 17 ; 2 Dane's 
Abr. 119. 

The intentional and innocent intermixture of property of substantially 
the same qualitj' and value, does not change the ownership. And no 
one has a right to take the whole, but in so doing commits a trespass 
on the other owner. He should notify him to make a division, or take 
his own proportion at his peril, taking care to leave to the other owner 
as much as belonged to him. It must already' have been perceived 
that these principles are not perfectl}' consistent with the unqualified 
rule laid down for the government of the jur}'. 

According to the above doctrine, if the plaintiff actually supposed 
that the land from which the wood was taken was his own, and that all 
the wood was his, then the mingling it together should not divest him 
of that which honestly belonged to him. But if he knew that the land 
was not his, or if he doubted whether it was his or not, and mixed the 
wood with an intent to mislead or deceive the defendant, and to pre- 
vent him from taking his own without danger of taking the plaintiff's, 
then he has by his own fraudulent act lost his property and can have 
no remedj'. But if, as above stated, the plaintiff mingled the wood 
from the different lots supposing all of jt to be his own, and if the de- 
fendant, knowing that some part of the wood came from the plaintifTs 
land, took the whole, he was a trespasser and is responsible in this 
action for the value of the plaintiffs wood thus taken bj- him. But if 
the defendant took the wood without anj' knowledge that any of it be- 
longed to the plaintiff, then he is not liable in an action of trespass, 
though he maj' be in assumpsit if he has sold the wood, or if not, in 
trover, after a demand and refusal, ^ond v. 'Ward, 7 Mass. R. 127. 

The verdict must therefore be set aside and a new trial granted. 
But as the question of title has been fully and fairly tried and set- 
tled, there can be no reason for retrying that, and the new trial must 
be confined entirely to the question of damages. 

Coffin and Ezra Bassett, for the plaintiff. 
Warren and Eliot, for the defendant. 


- SuPKEME Judicial Court of Massachusetts. 1846. 
[ReporUd 11 Met. 493.] 

Trover for 527 dozen of palm leaf hats. At the trial before Sub- 
bard, J., it appeared that B. G. Sampson, on the 22d of March, 1842, 
mortgaged to the plaintiff a quantity of hats in New York, and the 
goods in a store in Keene (New Hampshire), among which were 450 
dozen finished and 300 dozen unfinished palm leaf hats, and 7000 palm 
leaves. There was evidence tending to prove that the plaintiff, imme- 
diately after the mortgage was made, took possession of the mortgaged 
property and sent Sampson to New York to sell the hats there, and 
with the proceeds purchase goods in the plaintiff's name ; that Sampson 
did so, and sent the goods which he so purchased to the store in Keene ; 
that the plaintiff carried on business in said store so far as to sell the 
goods mortgaged, and those so received from New York, and received 
paj', to a considerable extent, in palm leaf hats ; that Sampson con- 
tinued in said store, and received large quantities of unfinished palm 
leaf hats in payment of debts due to him on his store books ; and that 
said hats so received were by him mixed indiscriminately with the 
mortgaged hats and the hats received by the plaintiff' in pay for goods 
sold by him as aforesaid, so that they could not be distinguished. It 
appeared that within a month after the mortgage was given, over 600 
dozen of unfinished hats were received into the store from the sales of 
goods and from the aforesaid debts, and that hats were continually 
taken from the store and finished ; but it did not appear on whose ac- 
count this was done. It was in evidence that about the 1st of Maj', 
1842, Sampson took, for the plaintiff, 400 or 500 dozen hats which had 
been finished, after the mortgage was made, from those that were in 
the store when the mortgage was made, and from those that were re- 
ceived into the store afterwards, and sent them to New York where 
they were sold by him ; that at the time when said hats were so sent to 
New York, or immediately after, the hats in question in this action 
were taken from the store and sent by Sampson to the defendants for 
sale. The question in the case was whether any of the hats so sent 
to the defendants by Sampson were included in the mortgage. 

The judge instructed the jurj' that " if Sampson had mixed the hats 
which he received after the plaintiff had taken possession indiscrimi- 
nately with those mortgaged by him and with those received on account 
of the plaintiff from the sales of the mortgaged goods and of the goods 
brought from New York, so that the same could not be distinguished, 
then the plaintiff would be entitled to hold the same on account of the 
debts due to him from Sampson, as well as the other hats ; and that 


the defendants, if they afterwards received the hats in question from 
the mixed lot and sold them by Sampson's order, would bo liable in 
this action to the plaintiff for their value." 

A verdict was found for the plaintiff, subject to the opinion of the 
whole court as to the instructions given to the jury. 

Hartshorn, for the defendants. 

F. H. Dewey, for the plaintiff. 

Shaw, C. J. The defendants, holding the goods as the consignees 
of Sampson, can onh' stand on his title, and make the same defence, 
after conversion proved, as he could make. That defence is, that part 
only of the identical hats which came to the hands of the defendants 
were included in the plaintiff's mortgage, and that the residue were 
Sampson's own goods. This leads to the only question of law that is 
raised by the report, viz., whether the rule of law prescribed by the 
judge in his instructions to the jurj^ was correct. The jur}' were in- 
structed that if Sampson intermixed the hats received from other 
sources, and which were his own, with those mortgaged, so that thej^ 
could not be distinguished, the mortgagee had a right to hold the 
whole. This instruction, taken in connection with the subject matter, 
and the facts in proof, we think was right. Sampson was the mort- 
gagor, but being intrusted with the possession of the goods it was his 
dutj' to keep them separately and preserve the mortgagee's property. 
His intermixing them purposely, or through want of proper care, was 
a violation of his duty, and unlawful. As his own could not be dis- 
tinguished, he could take none of the mixed parcel without taking the 
plaintiff's, which he had no right to do ; and as against him and his 
consignees, the plaintiff must hold the whole. Hathaway v. Ryder, 
21 Pick. 298 ; Colwill v. Reeves, 2 Camp. 576 ; 2 Kent Com. (3d ed.) 
364. Judgment on the verdict. 

Sdpeeme Court of Maine. 1849. 

lUeforUd 30 Mi. 237.] 

Trover, for a quantity' of pine mill logs. 

At the trial before Wells, J., the plaintiff introduced testimony 
tending to prove, that in the winter of 1844-5, one Leander Preble, 
cut on his own land about 600,000 feet of pine lumber, and also cut on 
the land of the plaintiff, wrongfully and wilfully, about 100,000 feet of 
lumber of a similar qualitj', all of which lumber was marked with the 
same mark, and indiscriminately hauled and landed on the same land- 
ing place. That in the spring of 1845, said lumber was run down the 
stream and came into the possession of Franklin Adams & Co., and a 
part of it was taken to market, and the other part remained in the 
stream, and was subsequently' sold by them to the defendant, who in 


the spring of 1846, ran to market all the residue of said lumber, except- 
ing that in controversy, which consisted of about 100,000 feet that had 
remained behind, and in November, 1846, was seized by the plaintiff. 

Soon afterwards the defendant took this lumber out of the plaintiff's 
possession, for which taking this action is brought. 

There was evidence introduced by the defendant that Preble had cut 
on the plaintiff's land only about 7,000 feet, for which he had given 
his note. And there was much evidence from both parties as to the 

The Court instructed the jury that the plaintiff must prove that the 
logs for which he claimed damages in this action, had been cut on bis 
land, and had been taken by the defendant ; and that the plaintiff was 
entitled to recover for any logs cut by said Preble on the plaintiff's 
land, and which were taken by the defendant, unless said Preble had 
paid the plaintiff therefor ; and that it did not appear that any question 
of confusion of property arose in the action. 

A verdict was returned for the defendant. 

JSint S Cutting, for plaintiff. 

A. W. Paine, for defendant. 

Sheplet, C. J. This was an action of trover brought to recover the 
value of certain pine logs. 

The logs appear to have composed a part of a larger lot estimated to 
contain more than 600,000 feet, which were cut and hauled by Leander 
Preble. The case states that there was testimony tending to prove that 
Preble cut on his own land about 600,000 feet of pine lumber, and also 
cut on the land of the plaintiff about 100,000 feet of pine lumber of a 
similar qualitj-, all of which logs were marked with the same mark and 
hauled and landed on the same landing place. 

With other instructions the jur}' were instructed, "that it did not 
appear that any question of confusion of property arose in the action." 

What will constitute a confusion of goods has been the subject of 
much discussion, and it has become a question of much interest to the 
owners of lands upon which there are timber trees, as well as to those 
persons interested in the lumbering business, whether the doctrine can 
be applicable to the intermixture of logs. 

When there has been such an intermixture of goods owned by differ- 
ent persons, that the property of each can no longer be distinguished, 
what is denominated a confusion of goods has taken place. And this 
may take place with respect to mill logs and other lumber. But it can 
do so onlj' upon proof that the propertj- of each can no longer be dis- 
tinguished. That the doctrine might be applicable to mill logs is 
admitted in the case of Loomis v. Green, 7 Greenl. 393. The case of 
Wingate v. Smith, 20 Maine, 287, has been alluded to as exhibiting a 
different doctrine ; but the case does not authorize such a conclusion. 
The instructions were, "that merely taking the mill logs and fraudu- 
lently mixing them with the defendant's logs would not constitute con- 
fusion of goods." These instructions were, and clearly must have been 


approved ; for an additional element was required that the mixture 
should have been of such a character that the property of each could 
no longer be distinguished. The opinion merely refers with approba- 
tion to the case of JRyder v. Hathaway, 21 Pick. 298, and says, " the 
principles there stated would authorize the instructions which were 
given on that point in this case." 

The common law in opposition to the civil law assigns the whole 
property without liability to account for any part of it to the innocent 
party when there has been a confusion of goods, except in certain 
cases or conditions of propertj'. Chancellor Kent correctly obser\'es 
that the rule is carried no further than necessity requires. 2 Kent's 
Com. 365. 

There is therefore no forfeiture of the goods of one who voluntarily 
and without fraud makes such an admixture. As when, for example, 
he supposes all the goods to be his own, or when he does it by mis- 

And there is no forfeiture in case of a fraudulent intermixture when 
the goods intermixed are of equal value. This has not been sufficiently 
noticed, and jet it is a just rule and is fully sustained by authority. 
Lord Eldon, in the case of Lupton v. White, 15 Ves. 442, states the 
law of the old decided eases to be, "if one man mixes his corn or flour 
with that of another and they were of equal value, the latter must have 
the given quantity ; but if articles of a different value are mixed, produ- 
cing a third value, the aggregate of the whole, and through the fault of 
the person mixing them, the other partj' cannot tell what was the origi- 
nal value of his propei'tj', he must have the whole." This doctrine is 
stated with approbation by Kent. 2 Kent's Com. 365. It is again 
stated in the case of Ryder v. Hathaway. The opinion says, "if 
they were of equal value, as corn or wood of the same kind, the rule of 
justice would be obvious. Let each one take his own given quantity. 
But, if they were of unequal value, the rule would be more difficult." 

In the case of 'Willard^. Rice, 11 Met. 493, the question, whether 
palm-leaf hats, which were intermixed, were of equal value, does not 
appear to have been, although it would seem that it might have been, 
made. The case is not therefore opposed to the doctrine here stated. 
The doctrine is noticed in the cases of Hart v. Ten Eyck, 2 Johns. 
Ch. 62 ; Ringgold v. Ringgold, 1 Har. & Gill, 11 ; Brackenridge v. 
Holland, 2 Bl'ackf. 377. 

If no logs were cut upon land owned by the plaintifi", no question 
could have arisen of confusion of goods. The jury were required by 
the instructions to find onlj', that none of those taken bj' the defendant 
were cut on the plaintiffs land. Thej^ were not required to find that no 
logs, composing the whole lot of six or seven hundred thousand feet, 
were cut on the plaintiffs land. 

If Preble wrongfully cut any logs on land owned by the plaintiff, and 
mixed them with logs cut on his own land, so that they could not be 
distinguished, a question respecting confusion of goods might properly 


have arisen. The admixture might have been of such a character that 
the whole lot of logs, including those in the possession of the defend- 
ant, might have become the property- of the plaintiff. Or it might 
have been of such a character, the logs being of equal value, that the 
plaintiff would have been entitled to recover from any one in possession 
of those logs or of a part of them, such proportion of them as the logs 
cut upon his land bore to the whole number. 

While the facts reported might not necessarily prove a confusion of 
goods, if part of the whole lot of logs were cut upon land owned by the 
plaintiff, they might have been sufficient to raise that question, and to 
present it for the consideration of the jurj-. 

The instructions therefore, when considered together, requiring the 
plaintiff to satisfy the jurj' that some of that particular portion of the 
whole lot of logs, which the defendant had in his possession, were cut 
upon land owned by the plaintiff, and that no question of confusion of 
property appeared to arise, were too restrictive. Thej' may have 
deprived the plaintiff of the right to recover upon proof that some of 
the logs composing the whole lot had been cut upon his land and so 
mixed with logs cut on land owned by Preble that they could not be 

Exceptions sustained, verdict set aside, and new trial granted. 


Supreme Court of Illinois. 1861. 
[Reported 26 111. 358.] 

This was an action of trespass commenced by Fuller against Paige 
in Aurora Common Pleas Court, and taken, by change of venue, to the 
Kane Circuit Court. 

The declaration was in trespass in the usual form, for taking and 
carrying awaj' goods and chattels of the plaintiff, consisting of a lot of 
drugs and medicines. There was a trial by jurj', and a verdict for the 

One Myers mortgaged the goods in controversj' to Paige, Myers 
attending the store as a clerk. Mj-ers sold the goods to Fuller, who 
was fullj' informed of the mortgage from Myers to Paige. Fuller stated 
that he knew of the existence of the mortgage at the time of the pur- 
chase, but that it was good for nothing, inasmuch as it had not been 
recorded. The consideration from Fuller to Myers was a pre-emption 
claim in Kansas, and a bond for a tract of land in Michigan. Mj'ers 
stated that the sale to Fuller was to get property with which to pay his 
debts. The goods when mortgaged to Paige were appraised at $1,000. 
Fuller, after his purchase from Myers, added a small stock to the drugs, 
and carried on business. When requested by Paige to select the goods 


SO added by him to the stock derived from Mj-ers, he refused to do so, 
and Paige took the entire stock as mortgaged, together with such as 
Fuller had added to it. The mortgage described the goods secured 
by it. 

Glover, Cook S Campbell, for plaintiff in error. 

Hoyne, Miller <& Jjewis, for defendant in error. 

Breese, J. In this case the court below instructed the jury, in sub- 
stance, that if the appellant, then plaintiff, purchased the goods 
described in the declaration, with a full knowledge of the mortgage to 
the defendant, and with the intent to cheat and defraud him of his lien, 
the sale was void as to the mortgagee. 

This we hold to be the law. The mortgage was good as against 
Mj'ers the mortgagor, without being recorded. If then the appel- 
lant purchased the goods of Mj-ers with the knowledge of the mort- 
gage, and for the purpose and with the intent to enable Myers to put 
the money in his own pocket and cheat the mortgagee, that was such a 
fraud in fact as to avoid the sale to appellant. It cannot be tolerated 
that a party thus acting should be permitted to enjoy the fruits of such 

We do not say that the mere knowledge of the existence of a mort- 
gage unrecorded would make the purchase from the mortgagor a fraud 
in law, where there is no intent manifested by such purchaser to com- 
mit a fraud in fact by enabling the mortgagor to pocket the avails, and 
so cheat the mortgagee. 

When a purchase from a mortgagor is bona fide and without any 
intent to cheat, the case might be different. Here the facts show a con- 
trivance and a design by the appellant knowing of the existence of the 
mortgage in collusion with the mortgagor to cheat the mortgagee. The 
parties cannot receive our aid in furtherance of such intention, nor do 
we think the law requires it. Good faith and absence of fraudulent 
intent must characterize all contracts. 

Upon the other point the appellant had mixed up his own goods with 
the goods mortgaged, and he was notified to select his and take them 
awaj', which he refused to do. The appellee had a right to take his 
own goods, and if he took some, not his property', they being so con- 
founded with his own that he could not distinguish them, it would be 
fraud to charge him in trespass however he might be liable in trover. 
On the whole case we think justice is with the appellee, and we accord- 
ingly affirm the judgment. Judgment affirmed. 



Supreme Coitrt of Wisconsin. 1865. 

[Sepwted 19 Wis. 126.] 

Error to the Circuit Court for Winnebago County. 

Tlie action below was by Jenkins and others against Steanka, to 
recover possession of certain lumber, or the value thereof (alleged to 
be $400), with damages for the detention. The plaintiffs obtained 
possession under the statute. Steanka was master of a sloop in which 
the lumber was found when seized by the sheriff; and claimed by his 
answer that the title to the lumber was in one Wright (for whom he 
was carrying the same on said sloop) , subject to a lien for freight in 
favor of the owner of said sloop, and that said defendant, at the time 
of such seizure, was entitled to the possession as agent of said owner. 

The jurj' found that defendant had the right of possession at the 
commencement of the action ; tliat Wright owned the lumber ; and that 
the value was $360; and nominal damages. Judgment accordingly; 
and plaintiffs sued out their writ of error. 

£^arl P Finch, for plaintiffs in error. 

S. B. Jackson, for defendant in error. 

£y the Court, Downer, J. This is an action to recover forty thou- 
sand feet of pine lumber, alleged in the complaint to be wrongfully 
detained by the defendant, and of the value of $400. The value is 
not denied by the answer. At the trial, the plaintiffs offered to prove 
the value less than $400 ; but the Circuit Court refused to permit the 
evidence to be given, holding that the pleadings fixed and were con- 
clusive as to the amount of the value. In this the court below erred. 
In actions of trover, trespass or replevin, before the Code, it was not 
necessary for the defendant to denj' the amount of the value or the 
allegation of damages, and in this respect the Code has not altered the 
practice. They must be proved even though the defendant puts in no 
answer. Conness v. Main, 2 E. D. Smith, 314 ; McKenzie v. Farrell, 
4 Bosworth, 202. 

Questions were put to different witnesses by the plaintiffs during the 
progress of the trial, as to what the kind or quality of the lumber in 
dispute was. The court below refused to permit these questions to be 
answered. It seems to us the answers should have been received. 
They were competent as bearing on the question of the value of the 
lumber ; also for another purpose. Testimony was given tending to 
prove that some part of the lumber in dispute was manufactured by one 
Wright, in his mill, at Fremont, out of logs belonging to the plaintiffs 
and cut on streams above Fremont, and that there was a great differ- 
ence in the quality of lumber sawed out of logs cut at or near Fremont 
and that cut out of the plaintiffs' logs, the latter being much superior 


in qualitj' to the former. The defendants' witnesses, or some of them, 
testified that this lumber was made out of logs cut at Fremont. After 
this testimony was in, the plaintiffs renewed their inquiry as to the 
quality of the lumber in dispute, and the court again ruled the evidence 
inadmissible. It seems to us that it was clearlj' admissible as tending 
to prove whether the lumber in dispute was manufactured out of the 
plaintiffs' or Wright's logs. 

The Circuit Court also erred in instructing the jurj^ that " if they 
found for the plaintiffs, they could only recover the amount of lumber 
which they have proved to have been wrongfully taken by Wright, 
although it may have been commingled with the lumber of Wright 
wrongfully." The law, we think, is that if Wright wilfully or indis- 
criminately intermixed the lumber sawed from the logs of the plaintiffs 
with his own lumber, so that it could not be distinguished, and the 
lumber so mixed was of different qualities or value, then the plaintiffs 
would be entitled to Iiold the whole. WillardY. Mice, 11 Met. 493 ; 
2 Kent's Com. (3d ed.), 364 ; Eyder v. Hathaway, 21 Pick. 298. 

We do not deem it necessary to notice other rulings assigned for 
error of the court below excluding testimony, as the same questions 
may not arise upon a new trial. 

Judgment of the court below reversed, and a new trial ordered. 


Supreme Court of New Hampshire. 1867. 

[Reported 47 N. B. 494.] 

Trespass for taking the plaintiff's mare. Plea, the general issue, 
with a statement that the defendant, being a deputv of the sheriff, took 
the mare on writs against Azariah W. Moore as his propertj-. On trial 
it appeared that the mare belonged to the plaintiff. There was no evi- 
dence that she was liable to be taken for the plaintiff's debt, or that he 
was in debt. It was proved that Azariah W. Moore was in embarrassed 
circumstances when the mare was attached, and had been for several 
years before. The attachment was made in the stable belonging to 
Knapp's hotel in Littleton, on the 8th of March, 1865. 

On that day Azariah W. Moore bought two horses of Orrin Bronson, 
at Landaff, professing to act as agent for his mother, and led the horses 
to a point half or three quarters of a mile above Lisbon village, where 
he tied and left them by the side of the highway leading to Littleton. 
He then rode with another horse to Lisbon, village, where he met his 
son, John A. Moore, and his brother, the plaintiff. The plaintiff and 
John A. Moore came that morning from Lyman, where the plaintiff re- 
sided, with the mare which was afterwards attached. 

At Lisbon village it was arranged that the plaintiff and John A. 


Moore should go to Littleton with the pLaintiflfs horse and sleigh, and 
on their wa^- talie with them to Littleton the two horses bought of Bron- 
son. The plaintiff and John A. Moore started from Lisbon village, 
took the two horses bought of Bronson, and led them behind the sleigh 
for about two and one half miles. They then took the plaintiflTs mare 
out of his sleigh, and put in one of the Bronson horses, which was a 
large black mare, and after that led the other Bronson horse and the 
plaintifi's mare behind to Littleton. The plaintiff and John A. Moore 
testified that before the Bronson mare was put into the sleigh she was 
difHcult to lead ; that she pulled the man who led her twice out of the 
sleigh, and got away from them more than once ; that this was the 
reason, and the only reason, why the shift of the horses was made. 

The horses bought of Bronson were a large black mare and a small 
one. The plaintiffs mare was black ; but the evidence did not tend to 
show that, except in color, there was any close resemblance between 
her and either of the Bronson horses. 

Azariah W. Moore started from Lisbon after his son and the plain- 
tiff, passed them on tlie way to Littleton, and had the horse which he 
drove, and which was a bay mare, pUt in the stable at Knapp's hotel. 

That day a telegraphic dispatch was sent from Lisbon to Littleton, 
which was communicated to the defendant, informing him that Azariah 
W. Moore was on liis way to Littleton with two horses, and directing 
him to attach them as the property of Azariah W. Moore. 

Soon after the horse which A. W. Moore drove to Littleton was put 
in the stable, the plaintiff and John A. Moore arrived there and directed 
Herod Stevens, the hostler, to put the three horses they came with into 
the stable and feed them. There was no evidence that they or either 
of them gave the hostler any directions as to the manner in which the 
horses should be placed in the stalls, and they and the hostler testified 
that no such directions were given. The hostler put the plaintiff's mare 
and the small mare bought of Bronson in adjoining stalls near the door, 
and the other large Bronson mare in another part of the stable, several 
stalls distant. 

The defendant, who was the only witness for the defence, testified 
that, after receiving the instructions before mentioned, he went to the 
stable and asked Stevens, the hostler, which of the three horses that 
came with the plaintiff were led ; that the hostler told him the two that 
were in the stalls together near the door ; that he then attached those 
two horses and directed Stevens to keep them for him. This was con- 
tradicted by Stevens, who testified that Bowman came and asked him 
to show the horses that the Moores brought ; that he showed him the 
horse that A. W. Moore came with, and then the other three, and told 
him they were the three the bo3's came with ; that the defendant looked 
at the horses and then told him he had attached the two that stood to- 
gether next the door, and told him to keep them for him ; that nothing 
was said about the horses being led there. 

The front part of the stable was divided from the back part by a par- 



tition, and the horses were put in the back part. The defendant testi- 
fied that when he went to attach the horses, the plaintiff and John A. 
Moore were in the back part of the stable and had the large black Bron- 
son mare out in the floor looking at her ; that thej' put her back into the 
stall, and went out of the, back part of the stable before he attached the 
horses ; that as he was going out into the front part of the stable, he 
met A. W. Moore coming in, and gave him a summons, and pointed 
out to him the two horses which he had attached ; that the plaintiff and 
John A. Moore were in the front part of the stable at that time, and 
near by when he spoke with A. W. Moore. A. W. Moore testified 
that the defendant did not point out the two horses he had attached, 
and that he supposed the two horses bought of Bronson were those at- 
tached ; that neither the plaintiff nor John A. Moore were there when 
the summons was given him. The plaintiff, John A. Moore, and Stevens, 
the hostler, testified that neither the plaintiff nor John A. Moore were 
in the stable at all until about 6 o'clock, after the plaintiff called for his 
horse to go home. 

The two horses were attached somewhere from three to four o'clock in 
the afternoon. The plaintiff testified that some time in the afternoon, 
he was told two of the horses were attached as his brother's, but that 
he supposed they were the Bronson horses, and had no information that 
his horse was attached tUl about six o'clock, when he directed the hostler 
to harness her. He and Stevens, the hostler, testified that, on being 
directed to harness his horse, the hostler told the plaintiff two of the 
horses were attached, and his horse might be one of them. That on 
going to the stable and seeing the horses attached, the plaintiff said one 
of them was his, and he must have her to go home to Lj'man ; that at 
the plaintiff's request the hostler went out and found the defendant, and 
told him Bernice E. Moore claimed one of the horses attached, and said 
he had owned it for two years, and wanted he should give it up ; that 
the defendant told him to hold on to the horses he had put in his 
hands, and that he reported this to the plaintiff. The plaintiff testified 
that he then found his brother, Azariah W. Moore, and they went to- 
gether to Mr. H. Bingham's office, and stated the case to him. The 
plaintiff, A. W. Moore, and Mr. Bingham, testified that bj^ Mr. Bing- 
ham's advice, A. W. Moore went out to bring the defendant to the office ; 
that A. W. Moore came to the office with the defendant ; that Mr. 
Bingham, in the presence of A. W. Moore and the plaintiff, explained 
to the defendant the title of the plaintiff to the mare, and urged him to 
give up the plaintiff's mare and let him go home with her ; that the de- 
fendant, in answer to this, said that he was ordered to make the at- 
tachment, was indemnified, and should not give up the horses he had 
attached, nor make any shift. There was evidence that after this, and 
towards nine o'clock in the evening, the plaintiff, by advice of Mr. 
Bingham, and with the consent of A. W. Moore, took the other Bron- 
son horse and drove him home to Lyman. It appeared by evidence on 
the part of the plaintiff that both the Bronson horses remained in the 


stable until one of them was taken by the plaintiff to go home with. 
There was no evidence except that above stated, to show that the de- 
fendant inquired to ascertain which two were the Bronson horses. 

The defendant testified that he supposed he had attached the two 
Bronson horses ; that he was not informed that the plaintiff made any 
claim to either of the horses attached, until, according to a previous ar- 
rangement made with Mr. Bingham, he went to acknowledge service of 
the writ in favor of A. W. Moore's mother, which he understood to 
have been made for his taking the two Bronson horses, wlien he was 
surprised to find there was another writ for the plaintiff ; that he then 
understood for the first time that the plaintiff claimed to own one of the 
horses. The defendant's written acknowledgment of service was dated 
March 14, 1865, and Mr. Bingham testified that it was in fact made 
on that day. 

The defendant rested his defence on two grounds : — 

1. That there was a fraudulent contrivance between the plaintiff and 
his brother, Azariah W. Moore, to induce the defendant to attach the 
plaintiff's mare instead of one of the Bronson horses ; that the defend- 
ant, by what was done in pursuance of this fraudulent contrivance, was 
deceived into the belief that the plaintiffs mare was one of the Bronson 
horses, and that, relj'ing on the false representation and fraudulent con- 
duct of the plaintiff, he attached the plaintiffs mare, believing her to be 
one of the Bronson horses. 

2. That the plaintiffs mare was so mingled with the Bronson horses 
that he could not, by due diligence, ascertain which was the plaintiff's 
mare, and was not liable for taking her till the plaintiff should point 
her out. 

At the commencement of his argument, the counsel for -defendant 
read the following passage from Taylor v. Jones, 42 N. H. 36, and 
meant to be understood as requesting the court to charge the jury in 
accordance therewith : — 

" In Ziewis v. Whittemore, 5 N. H. 366, it was expressly held that 
an officer had a right to attach the goods of another, intermixed with 
those of the debtor, and hold them until they were identified by the 
owner, and a re-delivery demanded ; that he could not be treated as a 
trespasser for doing what he had a right to do ; that if, after identifi- 
cation and demand for re-delivery, he refused to give up the goods and 
proceeded to sell them, it would be a conversion for which trover would 
lie, but that trespass could not be maintained for the original taking." 

The court instructed the jury, that, in order to make out the defence 
on the first ground, it must appear that the plaintiff", by his declarations, 
or his conduct, induced the defendant to believe that the mare was one 
of the Bronson horses ; that this must have been done by the plaintiff 
with the design to deceive and defraud, or in such circumstances that 
he was bound to suppose that it probably might deceive and defraud 
the defendant, or others, who were interested in the title to the mare ; 
that the defendant must have been in fact deceived and misled into the 


belief that the mare was one of the Bronson horses ; and that he must 
have used due dUigence to ascertain the fact ; that if there was a con- 
spiracy between A. W. Moore and the plaintiff, what was done by A. 
W. Moore in pursuance of the conspiracy would bind the plaintiff as 
much as if it had been done bj' himself. 

On the second point, the court instructed the jury that, in ease the 
plaintiff ordered the hostler to put the three horses in the stable, with- 
out any direction as to the manner in which they should be placed there, 
and the hostler put them together in the stable accidentally, and as 
matter of convenience, if the defendant, meaning to attach two of the 
three horses as the property of A. W. Moore, and knowing that one 
of them did not belong to A. W. Moore, undertook to select two of them 
as the horses of A. W. Moore, intending to hold them at all events, and 
finallj', and not temporarily tiU he might get further information, and 
when informed that one of the horses belonged to the plaintiff, still in- 
sisted on holding the two which he had attached, he would be liable 
to the plaintiff in tliis action, provided there was no fraudulent design 
on the part of the plaintiff to procure his horse to be attached as the 
horse of A. W. Moore ; but the question as to the plaintiff's negligence 
on the foregoing statement of facts, the court did not leave to the jury ; 
and at the request of the defendant, the court further instructed the 
jury that it was a question for them to decide, whether defendant, when 
he went into the barn and selected the two horses that he would attach, 
meant to hold them at all events, and finally, and not temporarily, till 
he might get further information. 

The plaintiff claimed exemplary damages. The court instructed the 
jury that, ordinarily, in trespass against an officer for taking the plain- 
tiffs propertj' on process against another party, the plaintiff would not 
be entitled to exemplarj^ damages, but that in this case, if thej' found 
that the defendant rashly and heedlesslj' took the plaintiffs horse with- 
out taking due care to learn what the plaintiffs rights were, they might, 
if, looking to all the circumstances, they thought proper, give the plain- 
tiff exemplary damages. 

The defendant requested the court to instruct the jurj- that, in order 
to find exemplarj' damages, thej' ought to find that the defendant acted 
in bad faith, and knew that the horse belonged to the plaintiff. The 
court declined so to instruct the jury, but repeated the former instruc- 
tions on this point. 

The jury returned a verdict for the plaintiff. They found exemplary 
damages, and bj- consent returned separatelj' $115, for the value of the 
horse, and interest from the taking, and in addition |25, for exemplary 

The defendant moved to set aside the verdict for error in the forego- 
ing instructions and refusal to instruct. 

C. W. & E. Rand, for defendant. 

Binghams, for the plaintiff. 

Bellows, J. If there was a fraudulent contrivance between the 


plaintiff and his brother, A. W. Moore, to induce the officer to attach 
the plaintiff's mare, instead of one of the Bronson horses, by holding out 
that mare to be one of those horses, either by representation or acts, 
and the officer, relj'ing upon such holding out, had attached the mare, 
and suffered the Bronson horse to escape, the plaintiff would be estopped 
to set up title to the mare in himself. Dreww. Kimball, 43 N. H. 282. 
To have this effect, however, the defendant must actuall3- have been 
misled by the plaintiff's conduct, and induced thereby to change his 
position. If he was not so misled, but still believed that the mare be- 
longed to the plaintiff, or had reason to think so, and with a reasonable 
use of means within his reach he might have ascertained the fact, he 
could not set up an estoppel. Tlie truth is, the party setting up an es- 
toppel is himself bound to the exercise of good faith and due diligence 
to ascertain the truth ; and what is reasonable diligence is a question 
for the jury upon all the circumstances of the case. In some cases he 
might reasonablj' rely upon the acts or representations of the partj- to 
be estopped, without any inquiry whatever. In others, it would be 
gross negligence and want of good faith not to make use of the means 
at hand to ascertain the truth. 

In Odlin v. Gove, 41 N. H. 479, which was a writ of entry to re- 
cover a strip of land fifteen inches wide on the street on which defend- 
ant had placed the walls of a building, and defendant attempted to set 
up an estoppel, upon the ground that plaintiff stood bj' and saw the 
building erected without objection, it was held, that if, under all the 
circumstances, including the plaintiff's silence, the defendant unreason- 
ably failed to use the means of ascertaining the boundaries which were 
within hi^ reach, he had no cause to complain ; because, in cases of this 
sort, he is to be charged with sucli knowledge as reasonable diligence 
would have given him ; and it has been accordingly held that a prior 
mortgagee of real estate who stands b}' and witnesses a second mort- 
gage without objection, will not be postponed thereby, if his mortgage 
was duly registered ; see Odlin v. Gove, before cited, p. 477, and 
cases. Such is also the doctrine of Carter v. Champion, 8 Conn. 
554 ; Begalow et itx. v. Topliff et al., 25 Vt. 273 ; and Brinkerhoff 
V. Lansing, 4 Johns. Ch. Kep. 63. In the latter case it is said by 
Chancellor Kent that it would require direct proof of intentional de- 
ception and fraud on the part of Lansing, before he could be postponed 
to a subsequent purchaser, his (Lansing's) mortgage, being duly regis- 
tered. He does not, to be sure, say that if such intentional fraud had 
been shown, Lansing's mortgage would be postponed ; nor did that ques- 
tion arise, though it may fairly be inferred that such was the learned 
Chancellor's opinion. 

It may, however, be difficult to distinguish between the case as it 
really existed, and what it would have been had intentional fraud been 
shown. In that case Lansing's mortgagor leased part of the mortgaged 
lands for sixteen years, and Lansing was a subscribing witness to the 
execution of the lease, with a knowledge of its contents, and without 


anj- objection ; and it was held, that, as the mortgage was registered, 
the lessee was charged with constructive notice of it, and there was no 
estoppel. If the mortgage had not been registered, Lansing would 
have been estopped ; and upon the ground that his conduct amounted 
to an affirmation that he had no title inconsistent with that which the 
lessor was then conveying ; and it would, therefore, be a fraud in him 
to attempt afterwards to set up his mortgage. Whether at the time of 
executing the lease he intended at a subsequent period to assert his 
mortgage title against the lessee, or not, would be entirely immaterial 
in respect to the estoppel, for the fraud would consist in denying what 
he had before affirmed by his conduct to be ti-ue, namely, that the lessor 
had a right to make a lease of the land, by which the lessee had been 
misled. As the mortgage in this instance was recorded, it might be 
urged that Lansing may have supposed that the lessee had knowledge 
of it, and therefore there would be more propriety in charging him with 
notice, than if Lansing had distinctly affirmed that he held no such 
mortgage, and something like this may have been the view of Chan- 
cellor Kent. 

However this may be, we find no case that goes the length of enabling 
a party to set up an estoppel of this sort, when with reasonable atten- 
tion to the means of information at his hand he would not have been 
misled. In the case before us, the evidence of fraud on the part of the 
plaintiff was not very explicit, and the circumstances stated are equivo- 
cal ; and it .was proper that the jurj' should be instructed that the de- 
fendant was bound to the exercise of reasonable diligence under the 
circumstances, in the use of means at his hands to ascertain the truth 
about the horses. If he rashly decided upon the matter, with a careless 
indifference to the means of information, reasonably within his reach, he 
would not be entitled to complain. 2 Kent's Com. 485. Such, as we 
understand it, was the charge of the judge, in substance. What would 
be due diligence, was for the jury. 

In regard to the intermingling of the horses, no instructions were 
given, although that point was argued by defendant's counsel, and an 
authority cited, meaning to be understood as requesting the court to 
charge the jury in accordance with that authorit}'. We think, however, 
that the instructions should be asked for in a way to leave it open to no 
doubt ; and that if no instructions were given upon a particular subject, 
and the attention of the judge not called to it at the close of or during 
the charge, ordinarily it would be understood as waived. 

If the horses were accidentally placed as they were in the stable, with- 
out fraud on the part of the plaintiff, and the defendant selected two as 
the horses of the debtor, and attached them, intending to hold them at 
all events, and not temporarily till he could get further information, 
and he insisted upon holding them after notice that one of them belonged 
to the plaintiff, he would be liable in trespass, if the horse did belong to 
the plaintiff, and he was not estopped to claim it by some fraudulent 
act on his part. Had the plaintiff's and the debtor's horses been inter- 


mingled so that the officer, using due diligence, could not distinguish 
them, he might, perhaps, talje ail and hold them until there was an op- 
portunity' to Identify them ; but hiis right to talie possession and hold 
the plaintiff's horse would be limited by the occasion for it, and if, in- 
stead of taking it for the lawful purpose, he took it with the purpose of 
holding it at all events, he-would be liable in trespass. The instructions 
on that point were, therefore, correct. 

But it is urged tliat the two horses were so placed by the fault and 
negligence of the plaintiff, and that as the defendant was thereby mis- 
led, the taking was not unlawful. Had they been accidentally placed 
in adjoining stalls, it is quite clear that this would give the defendant 
no right to attach the plaintiff's horse as the property of the debtor, an}- 
more than to sell it as such. He might have taken and detained the 
three horses a reasonable time till he could make inquiries and ascer- 
tain which belonged to A. W. Moore ; but if, instead of that, upon the 
knowledge he already had, he selected these two, and attached them 
with a determination to hold them at all events, he would be liable to 
the plaintiff in this form of action, and could not justify the taking up- 
on the ground of mistake, any more than if he had taken the plaintiff's 
horse alone. He would have power to detain the whole until he could 
make inquiry ; but if he did not take and detain them for that purpose, 
he had no right to take the plaintiff's horse at all. This would be illus- 
trated by the supposition that he took the plaintifTs horse upon the 
ground that his title was derived from the debtor, and that the sale was 
fraudulent as to' the creditor. 

It is clear, then, we think, that, in case the horses were so placed by 
accident, the defendant had no right to attach the plaintiffs horse. This 
is clearl}' the doctrine of Kingsbury v. Pond, 3 N. H. 513 ; and it is 
not, in fact, contested bj- defendant's counsel ; but they urge that if the 
horses were so placed by the plaintiffs fault, the law is otherwise ; and 
this position makes it necessary to look more closely to the law which 
governs the rights of the parties where there is a confusion of goods. 
If the goods are accidentally mingled, and they are of such character 
that the}' can be distinguished and separated, there will be no change 
of propert}', but each is entitled to his own ; if they are of such a 
nature that they cannot be identified and separated, as corn, oil, wine, 
hay, &c., then each is entitled to his aliquot part of the entire 

If goods are mixed by the neghgence or inadvertence of one of two 
owners, and they are of such nature that thej' can be identified and sep- 
arated, the property of each remains as before ; and the law must be 
the same where the mixture is by the wilful act of one party, unless the 
purpose was fraudulent. As if A mixes some of B's cattle, sheep, 
horses, wood, or furniture with his own, erroneously supposing that 
they belong to him. Byder v. Hathaway^ 21 Pick. 298, 30.5 ; Story 
on Bailments, sec. 40. To hold otherwise would be clearly unjust, and 
is not sanctioned by the authorities. The true rule seems to be this, 


that if one man so confounds the goods of another with his own, that 
thej- cannot be distinguished, he must himself bear all the inconveniences 
of the confusion, and it is for him to distinguish his own property or 
lose it. This doctrine was applied to the case of a trustee having charge 
of the property of another. Hart v. Ten Eyck, 2 Johns. Ch. 107. 

So, also, is Lapton v. White, 15 Ves. 432 ; and this doctrine is rec- 
ognized by Judge Story in his work on Bailments, sec. 40 ; and so is 
2 Kent's Com., 365. In Pratt v. Bryant et ah, 20 Vt. 333, it was 
held that a person who had intermingled his wood with that of an- 
other did not lose it thereby, although it could not be distinguished, 
and the intermingling was intentional, the person having erroneously 
supposed the other had bargained for it. 

If the mixing is wilful and without the consent of the other, and the 
articles are of such a nature that they cannot be distinguished and sep- 
arated, the civil law gives the whole to the one not consenting to the 
mixture, but allows a satisfaction to the other ; but the common law, as 
it is laid down, gives the whole to the one not consenting, but without 
compensation to the other. Story on Bailments, sec. 40 ; 2 Kent's 
Com., sec. 364 ; and so it is distinctly held in Willard v. Jtice, 11 Met. 
493 ; Beach v. Schmuttz, 20 111. 185 ; 19 U. S. Dig. 127, sec. 2. This, 
however. Is to be carried no further than necessity requires, and it 
seems to be understood bj^ these same writers, that if the articles so 
mingled are of the same kind and of equal value, the injured party may 
take his given quantitj^, and not the whole. In man}' cases this would 
clearly be just, but however the law maj- be on this point, we think it 
quite clear, on the authorities, that a partj- does not lose his property 
in goods bj' a careless and negligent intermixture of them with the 
goods of another, if they can still be distinguished and separated. 

It is clear, of course, that by mingling these horses, even if done 
negligently, the debtor acquired no title to the plaintiff's horse, and the 
creditor had no right to attach him for A. W. Moore's debt. Indeed, 
the law which affects the title in case of the confusion of goods, does 
not apply to cattle and horses, and things of a similar kind, that may 
readily be identified. It is so distinctly determined in respect to cattle, 
in Holhrook v. Hyde, 1 Vt. 286 ; and it is quite obvious, we think, that 
it must be so, for the very foundation of the rule is here wanting, and 
that is, the confusion of the goods, or the inabilit}' to identify them. 
See Treat v. Barber, 7 Conn. 274. 

The right of a sheriff having a writ against one of the persons whose 
goods are together, but distinguishable, grows out of the necessitj' of 
the case. He has no right to attach the other's goods, but is bound to 
attach the debtor's. If he is unable to distinguish them, he may detain 
the whole reasonably, for the purpose of making inquiry ; but his right 
in this direction extends no farther than the necessity of the case de- 
mands. If, on reasonable inquiry, he will be enabled to distinguish the 
goods, he is bound to make it, and could not otherwise justify the de- 
tention of another's goods. If the other owner, on request by the offl- 


cer to point out his goods, refuse to do it, the officer might then take 
them and detain them'untll distinguished and demanded. Such is the 
doctrine ot Albee v. Webster, 16 N. H. 362. 

The mere fact that a partj' has been negligent or careless in allowing 
the goods to be mixed, would not exonerate the offleer from the dutj^ of 
making inquiry. If the part}', by his acts or words, wilfully affirmed 
the property to be the debtor's, and so misled the sheriff, he might be 
estopped to claim the goods afterwards ; but the mere negligence of the 
plaintiff in allowing the horses to be placed in adjoining stalls, could 
confer no right on the officer to attach and hold the plaintiff's horse for 
A. W. Moore's debt, or to do anything more than to detain it for rea- 
sonable inquirj-. 

If, then, he took the plaintiff's horse, not to detain it to make inquirj-, 
but because he understood he was directed to attach it, and he did so, 
intending to hold it at all events, he did it at his peril, and would be 
liable to plaintiff in trespass ; and there was evidence tending to prove 
that he so intended to hold it, there being testimony that plaintiff's 
counsel explained to the defendant the plaintiffs title, and requested 
him to give up the horse, but that the defendant declined to do so, say- 
ing he was ordered to make the attachment, was indemnified, and should 
make no shift. 

In the case of Qihnan et al. v. Hill, 36 N. H. 311, which was trover 
for a lot of sheep's pelts, attached on a writ against one Sanborn, it ap- 
peared that part of them belonged to the plaintiffs, and the rest had 
been mingled with the plaintiffs' without their knowledge, by the debtor. 
Upon the attachment, defendant was notified that the pelts belonged to 
plaintiffs, but he removed them without inquiry as to the plaintiffs' 
rights, and after the suit was brought sold them ; the court held this 
was evidence of conversion ; and it must have been upon the ground 
that defendant took them intending to attach and hold them, and not 
for the purpose of inquiry. 

Where a debtor drove his sheep to plaintiffs pasture, and mixed them 
with plaintiffs without his consent, and the sheriff took the whole, the 
court held that he was liable in trespass to the plaintiff. Kingsbury v. 
Pond, 3 N. H. 513. The courts say that if the sheriff had requested 
the plaintiff to point out his sheep, and he had refused to do so, it might 
have altered the case. We think, however, that the result would have 
been the same if the plaintiff had consented to take the debtor's sheep 
to pasture, but without any purpose to conceal them from the officer. 

When corn of the plaintiff's was intermixed with that of the debtor, 
without the consent of either, it was decided that an officer might take 
and hold the whole until the plaintiff identified his corn and demanded 
a delivery. Lewis v. Whittemore, 5 N. H. 366. In that case the 
intermixture must be regarded as accidental, and as the corn could not 
be distinguished, the owners would be tenants in common of their several 
shares ; Story on Bail. sec. 40 ; and a shei'iff might take and sell the 
debtor's intei-est. 


In Walcott V. Keith, 22 N. H. 211, it is said that to justify an at- 
tachment of the goods of another, on the ground of their being mixed 
•with those of the debtor, defendant must show that they were inter- 
mixed in such manner that he could not, upon due inquiry, distinguish 
them from the others ; and so is Wilson v. Lane, 33 N. H. 476, hold- 
ing, per Sell, J. , that it is the duty of the officer to make reasonable 
inquirj- to ascertain what goods are liable to be attached ; but that it 
■was enough if he applied to plaintiff to point out his goods, and he re- 
fused to do it. 

The case of Robinson v. Molt, 39 N. H. 557, goes upon the ground 
that the liaj' sued for was so intermixed with that of the debtor that it 
could not be distinguished, and that it was intermixed b}- the fault or 
negligence of the debtor, of such character that, as between the plaintiff 
and the officer, it all became the property of the debtor. If the facts 
are all reported, such a conclusion might be questionable, perhaps, but 
however this may be, the case differs widelj^ from the one before us, 
because here the property was easily distinguished. 

Taylor v. Jones, 42 N. H. 25, was trespass, and it was held that as 
the goods were mixed with those of the debtor, being marked as the 
debtor's without objection bj' the plaintiff, and in consequence of plain- 
tiflTs absence the goods could not be distinguished, the defendant was 
justified in taking the whole in the first instance, and trespass could not 
be maintained for the taking, unless bj' subsequent acts defendant be- 
came a trespasser ah initio. 

In Shumway v. JRutter, 8 Pick. 443, which was trover for some fur- 
niture attached bj' the defendant as the propertj- of J. S., it appeared 
that plaintiff's furniture was mixed with the debtor's, and in his posses- 
sion, and so mixed that neither the plaintifl" nor the debtor could distin- 
guish it ; that at the time of the attachment, J. S. told the officer it was 
all his, but soon after the plaintiff claimed a part of it, and defendant 
desired him to select what he claimed, but the plaintiff, although he 
produced the bill of sale of what he claimed, and showed it to the de- 
fendant, said he could not select the articles, neither could the debtor 
select them. The officer, therefore, retained and sold the whole. 

The court decided that defendant was not a trespasser for taking the 
plaintiflf's goods which he had allowed to be so intermixed, but that the 
sale of the whole was a conversion, upon the ground that he ought to 
have selected from the whole quantity enough to correspond with the 
bill of sale, and might, if he chose, retain the most valuable. The 
court also says that if the owner of a part can distinguish and point 
out what belongs to him, the officer would be a trespasser if he should 
take it. 

In that case, the goods were so intermixed they could not be distin- 
guished, and it is therefore clear that the officer would not be a tres- 
passer for taking possession of the whole. In principle, the case is 
much like that of Lewis v. Whittemore, where plaintiff and the debtor 
were tenants in common of the whole mass. 


The case of Ryder v. Hathaway, 21 Pick. 306, was trespass for 
wood, and the court held that if the plaintiff mixed wood from his own 
lot with wood from the defendant's lot adjoining, supposing it all to be 
his, and the defendant, knowing that part of it was the plaintiff's, took 
the whole, he would be a trespasser. This would certainly be so, if de- 
fendant knew what part belonged to plaintiff, and could distinguish it ; 
otherwise, if so intermixed that it could not be separated, they would, 
in such case, be tenants in common. 

Smith V. Sanborn, 6 Gray, 134, is a case where a debtor sold his 
stock of furniture to the plaintiff for $2,000, and the plaintiff took pos- 
session of the store and furniture, and commenced retailing it, making 
new purchases from time to time, to the amount of $200, which was 
added to the original stock. The defendant attached and sold the whole 
as the debtor's property. The court decided that the defendant had no 
right to attach the whole stock in plaintiff's possession, without first en- 
deavoring, by the exercise of a proper degree of caution and diligence, 
to ascertain whether anj', and if any, what part of it, was honestly 
owned by the plaintiff, and that it did not necessarily devolve upon the 
plaintiff, and without request, to give information about the state of 
the title ; that it was no more than a reasonable precaution on the part 
of the officer to make some inquiry of the plaintiff in relation to the stock, 
before the service of the writ. 

In Treat v. Jiarber, 7 Conn. 274, it was held that the confusion 
of goods is the mixture of substances that make one undistinguish- 
able mass, such as liquids, corn, hay, &c., citing Wood's Just. 158, and 
2 Bl. Com. 404. But that placing crockery, china, or other articles 
resembling each other on the same shelf, is not a confusion of them, 
within the meaning of the law. 

The defendant introduced evidence tending to show that plaintiff had 
intermingled her goods with her father's goods, so that she alone could 
distinguish them, and that, wishing to attach the father's goods, he re- 
quested her to select such as belonged to her, but she refused to do it, 
claiming the whole as her own, part of them hy bona fide purchase of 
l\er father. The court held that, as she claimed the whole, her refusal 
to select was no violation of her duty, and the defendant took them at 
his peril ; and the court held that there was no error in refusing to in- 
struct the jury that if she refused so to select, the defendants were not 
trespassers for taking the whole ; but the court held that if the plaintiff 
had fraudulently intermingled the goods so as to be inseparable by the 
officer, to prevent an attachment of those that were her father's, the 
officer might justify taking tlie whole. 

From this review of the cases, it is quite apparent that there is some 
confusion in the authorities upon the subject of confusion of goods ; and 
so far as the rights of an officer about to make an attachment is con- 
cerned, it arises from not properly discriminating between those things 
which can, and those which cannot, be distinguished, when mingled 


As to those which can be distinguished, the doctrine of confusion of 
goods does not apply, and although they may be wrongfully mingled by 
one owner, without the consent of the other, the title of neither is af- 
fected ; and consequently the goods of one cannot be taken for the debts 
of the other. If, however, they are fraudulently intermingled to mis- 
lead and embarrass the officer, and prevent an attachment, he would be 
justified in taking and holding the whole for the purpose of selecting 
those of the debtor. As if in a case like that of IRnc/shicry v. Pond, 
3 N. H. 513, the plaintiff had consented to the mixing of the debtor's 
sheep with his, so as to conceal them from the officer. 

To justif)- the attachment of the goods of another where the^' are in- 
termingled without any fraudulent design, and they are distinguishable, 
the officer must show that they were mixed in such manner that upon 
due inquiry he could not distinguish those of the debtor from the others. 
Walcott V. Keith, 22 N. H. 211 ; Wilson v. Lane, 33 N. H. 476 ; 
Smith v. Sanborn, 6 Gray, 134 ; Treat v. Barber, 7 Conn. 274 ; 
Kingsbury v. Pond, 3 N. H. 511, 

The language of some of the cases would seem to imply that, if the 
goods were. so intermingled that the officer could not select those of 
the debtor, he might, without notice to the other partj-, attach and hold 
the whole, until those of the other party were designated and claimed 
bj- him. Upon such views the officer might have taken all the horses in 
the stable when he found these, and held them until identified bj' their 

Such a doctrine, we think, cannot be supported. It is not necessary 
to enable the sheriflT properly to execute his precept. If, as in this case, 
he wishes to attach two out of manj- horses, in the same stable, he is 
bound to make reasonable efforts and inquiries, in order to ascertain 
what horses belong to the debtor. If the various owners and the debtor 
are at hand, he would ordinarily inquire of them, although to guard 
against interference he might, while making such inquiries, detain in 
the stable such horses as he had reason to suppose might prove to be 
those he sought. This power, we think, is all that is necessarj', and is 
the view that best accords with the adjudged cases. Nor do we think 
that the rule is otherwise where the goods are carelessly or negligently 
intermingled, but without fraud. 

In the case of goods that cannot be distinguished, the fault of one 
partj^ who causes the intermixture may affect the rights of both ; but in 
a case like this it could not relieve the ofiicer from the duty of making 
reasonable inquirj' to ascertain what goods belong to the person other 
than the debtor, for such fault does not' affect the title ; Bryant v. 
Weave, 30 Me. 299 ; Gilman v. Jlill, 36 N. H. 323 ; 2 Kent's Com. 
364 ; and unless it was intended to mislead the ofllcer, in which case 
it would be a fraud, it cannot relieve him of the duty to make reason- 
able inquiries. 

"What would be reasonable inquiry, must depend upon the circum- 
stances of the particular case, and cannot be fixed by any positive rule ; 


Wilson V. Zane, 33 N. H. 476 ; and it is urged by defendant that 
among the considerations that ought to bear on the question of reason- 
able inquirj' would be the plaintiff's own negligence, and that there was 
error in not submitting that to the jury. 

There is, however, no objection to the instructions as to reasonable 
inquiry by the defendant ; but the question of negligence in the plain- 
tiff, not submitted to the jury, and for which exception is taken, was, 
as we understand it, whether, by the plaintiff's fault in mixing the 
horses, the defendant was not authorized to attach the two he did take, 
as he would be, had there been fraud. Besides, from the case as re- 
ported, we are at a loss to perceive any evidence tending to prove 
negligence on the part of the plaintiff in allowing these horses to be 
placed in adjoining stalls. 

As already suggested, we are of the opinion that if the defendant at- 
tached the plaintiff's horse with the purpose of holding him at all events, 
and not temporarily, to make inquiries, he is liable in trespass, and that 
the instructions on that point are correct. 

Under the circumstances, it is clear that if there was no fraud in the 
plaintiff', the defendant had no right to attach the horse and hold him 
for A. W. Moore's debt. At the most, he had only the right to detain 
him a reasonable time for inquirj-, and if he took him for the other pur- 
pose he is a trespasser. 

It is proper to sa3' that we have been led into this extended examina- 
tion of authorities by the able and searching arguments at the bar. 

As to exemplary damages, the instructions were, that the jury might 
give such, if thej- found that the defendant rashly and heedlessly' took 
the plaintiff's horse without taking due care to learn what the plaintiff's 
rights were. 

Where the act complained of is malicious or wanton, or is character- 
ized by gross negligence in the defendant, exemplary damages may be 
awarded, according to the decisions in this State ; but we are not aware 
that the}'^ have gone so far as the rule in this case. In Whipple v. 
Walpole, 10 N. H. 130, the rule laid down was, that exemplarj' dam- 
ages might be awarded where there was gross negligence ; and the rule 
laid down by Mr. Sedgwick, in his valuable work on Damages, p. 39, 
is, that exemplary damages may be awarded whenever the elements of 
fraud, malice, gross negligence, and oppression mingle in the contro- 
versy. This rule, however, is questioned in 2 Greenl. Ev. sec. 253, 
and note, where the authorities are extensively reviewed. 

Upon the whole, we are not disposed to extend the rule which allows 
exemplar}' damages to cases where the injurious acts are merely rash 
and heedless. 

There must, therefore, be judgment on the verdict for $115, the ex- 
emplary damages being excluded, on the plaintiff's remitting the $25 
for exemplary damages. 



Supreme Court of Maine. 1869. 

{Reported 56 Me. 566.] 

Trover, for a quantity of logs alleged to have been converted by the 
defendants in 1860. The writ is dated November 6, 1863. 

There was evidence tending to show that, in the winter of 1858-9, 
the plaintiff lumbered on his township, called Holeb, adjoining which 
was the township called Forsyth, owned by the defendants ; that the 
line between the townships was well marked and known to the plaintiff 
and his servants ; that, during the operation, the plaintiff's servants, 
having cut all his timber accessible without removal of camps, breaking 
new roads, &c., intentionally and, without the knowledge or consent of 
the defendants, went upon the township of Forsj-th, finished their 
operation thereon, hauled the logs to the same landing, and marked 
them with the same mark ; that subsequently, after the plaintiff had 
learned all the facts of the trespass, together with the quantity of logs 
cut on Forsyth, from the return of his scaler, he caused the whole 
quantity to be put into the river, driven to Gardiner, caught, boomed, 
and rafted for sale, thus intermingling the logs in such a manner as to 
render it impracticable to separate those cut on Forsyth from those 
cut on Holeb ; that the defendants, having no means of determining 
the quantitj' of logs cut on their land, seized a quantit}" which they 
deemed sufficient to cover their loss ; that the plaintiff never, until the 
time of trial, informed the defendants of the quantit3' cut on Forsyth, 
although he had the means of doing so as early as April, 1859 ; that 
the defendants requested such information of the plaintiff, but did not 
receive it. 

The court were to render such judgment as the legal rights of the 
parties required, upon the legal evidence reported. 

8. Heath., for the plaintiff. 

A. Libbey, for the defendants. 

Appleton, C. J. The plaintiff and defendants were owners of ad- 
jacent townships. The plaintiff trespassed upon the defendant's land, 
cutting thereon a considerable quantity of logs which were marked 
similarly to those cut on his own land, and were run with them to 

The defendants having ascertained that the plaintiff had trespassed 
upon their land, seized a portion of the logs thus commingled, as cut 
on their premises, and more, as the plaintiff alleges, than were so cut. 
This action is brought to recover such excess. 

As the plaintiff was a trespasser, the defendants had a legal right 


to seize the logs cut on their land wherever they could find them. 
Their title thereto was as perfect as if cut by themselves. 

It was the fault of the plaintiff that they were so mingled by him 
or his agents with his logs so that they could not be distinguished 
from them. ■ The plaintiff must suffer from the consequences of this 
confusion . 

By the common law, where an intermixture of goods is fraudulently 
made without the knowledge of the owner, and they cannot be separ- 
ated and identified, the latter is entitled to the whole propertj- without 
making satisfaction to the former for his loss. In Bryant v. TFcrre, 
30 Maine, 295, where lumber was cut upon two tracts of adjoining 
owners bj' a trespasser, and the whole was so intermixed \)\ him, or 
persons claiming under him, that the part belonging to each owner 
could not be distinguished, and the owner of one tract seized and took 
possession of the whole, — it was held, tliat one claiming under the 
wrongdoer could not maintain an action of trespass for such taking. 

But the defendants seized only a portion of the logs cut b}- the plain- 
tiff. Waiving, therefore, their right to all, if they had such right in 
the present case, the question arises whether they are liable as wrong- 
doei's if thej- seize more logs than, as it is ultimately shown, were cut 
on their land. 

It has been repeatedly held that an officer has a right to attach the 
goods of another, negligently or fraudulently intermixed with those of 
the debtor, and hold them until thej' were identified by the owner and 
re-delivery demanded ; that he could not be treated as a trespasser for 
doing what he had a right to do ; and that, if after identification and 
demand for re-deliverj- he refused to give up the goods, he would be 
liable for their value in trover, but that trespass could not be main- 
tained for the original taking. Bondx. Ward, 7 Mass. 127 ; Shiimway 
V. Butter, 8 Pick. 443 ; WillardY. Bice, 11 Met. 493 ; Leiois v. Whitte- 
more, 5 N. H. 366 ; Taylor v. Jones, 42 N. H. 36. So here the de- 
fendants had a right to seize their own logs. It was by the wrongdoing 
of the plaintiff that they were cut, marked, and intermingled with his 
own. The plaintiff knew the number and kind of logs cut on the 
defendants' land. The defendants were ignorant of all this, and wei-e 
never informed thereof by the plaintiff, as they testif)', till the time of 
the trial. They seized what they regarded as the number of logs cut 
on their land. If they seized logs not so cut, the plaintiff should have 
notified them of such fact and pointed out the specific logs he claimed, 
if it was in his power so to do. If they took more than they had a 
right to take, he should have advised them of the exact amount of his 
own trespass. He cannot claim that they are wrongdoers when thej^ 
rightfully seized their own logs, wrongfully commingled by him with 
those cut on his land. This they clearly' had a right to do. Bryant v. 
Ware, 30 Maine, 295. The partj' wrongfully intermingling his goods 
with another's cannot reclaim them without first pointing them out. 
Seavy v. Dearborn, 19 N, H. 351 ; Gilman v. Sanborn, 36 N. H. 311. 


So too if the defendants, acting in good faith, took more logs than the 
plaintiff had cut on their land, having a right to take all logs cut by 
trespassers, they would not be liable as wrongdoers until the plaintiff 
had pointed out the property belonging to him, and demanded it of 
them, which the defendants say was never done. It must be remem- 
bered that, if the plaintiff suffers, it is in consequence of his own 
wrongful acts. The defendants were acting for the protection of their 
acknowledged rights. Judgment for defendants. 

Kent, Walton, Danfoeth and Taplex, JJ., concurred. 

Note. — The acquisition hy a transferee of a chattel or obligation of a right greater 
than that of the transferrer is dealt with later in this course under the head of Priority, 
and also in a separate course on Bills and Notes. 




Note. — Other modes in which personal property is transferred without the consent 
of the person whose property is transferred are Forfeiture, Execution, Bankruptcy, and 
Marriage; as to the transfer of personal property on intestacy, see note to next section. 

(Common Pleas. 1871. 

[Reported L. R. 6 C. P. 584, 587-590.] 

June 23. The judgment of the Court ^ (Willes and Montague Smith, 
JJ.) was delivered by 

"Willes, J. We decided yesterday that, according to the law laid 
down by Lord Wensleydale in King v. Hoare, 13 M. & W. 494, a 
judgment in an action against one of two joint tort-feasors is a bar to 
an action against the other for the same cause. There remains, how- 
ever, an entirely different question, which arises upon the new assign- 
ment, and which is, whether a judgment in trover, without satisfaction, 
changes the property in the goods so as to vest the property therein in 
the defendant from the time of the judgment, or of the conversion, or 
whether such recovery operates as a mere assessment of the value, on 
paj-ment of which the property in the goods vests in the defendant. It 
is obvious that this is a different question from that which we have 
already disposed of; because, if the mere recovery vests the property 
in the defendant, the property is equall}- changed as to all strangers. 
It is a question which affects the transfer of property generally. 

We are of opinion that no such change is produced by the mere re- 
cover}'. The proceeding in such an action is not a proceeding in rem : 
it is, to recover prima facie the value of the goods. It may be that 
the goods have been returned, and the judgment given for nominal 
damages only. To saj' in such a case that the mere obtaining judgment 
vests the property in the defendant would be an absurdity. It is clear, 

1 The question which it is here desired to present is sufficiently given in the 



therefore, that the judgment has no specific effect upon the goods. The 
only way the judgment in trover can have the effect of vesting the prop- 
ert}' in the defendant is, b}- treating the judgment as being (that wliich 
in truth it ordinarily is) an assessment of the value of the goods, and 
treating the satisfaction of the damages as paj-ment of the price as 
upon a sale of the goods, according to the maxim in Jenk. 4th Cent. 
Case 88. Any other construction would seem to be absurd. 

This question vi^hether the property is changed b^- the mere recovery 
in trover appears to have led to much difference of opinion. The au- 
thority mainly relied upon by Mr. Powell was the dictum of Jervis, C J., 
in Buckland v. Johnson, 15 C. B. 145, 157 ; 23 L. J. (C. P.) 204, in 
which that very learned and accurate judge did \a.y it down, upon the 
authority of a case in Strange, Adams v. Broughton, 2 Str. 1078, that 
the propertj- is changed by the mere recover}', without any satisfaction. 
I would observe, however, that the case, as reported in Strange, is far 
from satisfactory. It is also* reported in Andrews, p. 18, where the 
ease is thus stated: "An action of trover was brought by the present 
plaintiff against one Mason, wherein he obtained judgment by default, 
and afterwards had final judgment ; whereupon a writ of error was 
brought. And another action was now brought against Broughton by 
the same plaintiff, and for the same goods for which the first action was 
brought." An application appears to have been made to hold the de- 
fendant in the second action to special bail ; and there was sufficient 
reason why special bail should not be allowed, because the judgment 
against Mason had the effect of preventing a second action being main- 
tained against Broughton. The loose expressions of the Court, — that 
" the property of the goods is entirelj' altered b}' the judgment obtained 
against Mason, and the damages recovered in the first action are the 
price thereof; so that he hath now the same property therein as the 
original plaintiff had ; and this against all the world," — were quite un- 
necessary. The same may be said as to the dictum of Jervis, C. J., in 
Buckland\. Johnson, 15 C. B. 145 ; 23 L. J. (C. P.) 204. That was an 
action against a person who jointlj- with his son had sold goods the pro- 
ceeds of which the defendant had received. After the sale, the plaintiff 
(who claimed the goods), in ignorance that the father had received the 
monej^ brought an action against the son for monej' had and received 
and for damages for the conversion, and recovered a verdict for lOOZ. 
against him ; but, not succeeding in obtaining satisfaction, in conse- 
quence of the son's insolvency, he brought a second action against the 
father for the same causes. It is clear that the proceedings in the first 
action amounted to an election to treat the matter as a wrong, and pre- 
cluded the plaintiff from bringing a fresh action for money had and re- 
ceived. It was equally clear that the judgment in the first action was 
a merger of the remedy against either the father or the son ; and, when 
the action was brought against the father, the answer was obvious. It 
was wholly unnecessar}-, therefore, to decide, as suggested by Jervis, 
C. J., that the recovery in the first action changed the property; and 


what was said was properly treated by the reporter as amounting only 
to a " setnble.'' 

On the other hand, there is a series of decisions showing that a mere 
recover}^ without satisfaction, has not the effect of changing the prop- 
ertj-. In Jenkins, 4th Cent. Case 88, it is said: "A, in trespass 
against B for taking a horse, recovers damages ; by this recoveiy, and 
execution done thereon, tlie propert}' of the horse is vested in B. 
So\t,tio pretii emptionis loco habetur." That doctrine is acted upon 
in Cooper v. Shepherd, 3 C. B. 266 ; and, though the marginal note 
treats the recovery as changing the property, — a doctrine thrown out 
also in the note to Barnett v. Srandao, 6 M. & G. at p. 640, — the 
plea shows that the damages were satisfied ; and tlie judgment of 
Tiudal, C. J., shows that the property vests in the defendant only " on 
payment of the damages." To the same effect are the observations of 
Holroj-d, J., in Morris v. Robinson, 3 B. & C. 196, at p. 206. " "Where 
in trover," he says, " the full value of the article has been recovered, 
it has been held that the property is changed by judgment and satisfac- 
tion of the damages. Unless the full amount is recovered, it would not 
bar even other actions in trover." To the same effect is the note in 
2 Wms. Saund. 47 c c, n. (z). It maj' also be proper to refer to the 
note to the case of Holmes v. Wilson, 10 Ad. & E. at p. 511, in which 
the law is stated \>y the reporters probably at the suggestion of one of 
the judges. The good sense of the thing and abundant authority thus 
appearing, we feel bound to give judgmejit for the plaintiff upon the 
new assignment. 

In order, however, to act upon our judgment of yesterday and today, 
it must be recollected that the present defendant will not be liable ex- 
cept in respect of a wrong other than that which was the subject of the 
action against the other wrong-doer. 

Another point arises upon the new assignment. The plaintiff may 
have acquired the propertj' in the goods after the recovery of the judg- 
ment in the former action. As, however, that point was not argued, 
we prefer resting our judgment upon the main point. 

The judgment therefore will be for the defendant upon the sixth plea, 
and for the plaintiff upon the new assignment. 

Judgment accordingly. 

Powell, Q. C. {Joyce with him), for the defendant. 

Kelly, for the plaintiff.^ 

1 See s. c. L. R. 7 C. P. 547. Cf. also Osterhout v. Eoberts, 8 Cow. 43 ; Sogers v. 
Moore, Rice, 60, ia contra. 



Supreme Judicial Court of New Hampshire. 1872. 

[Reported 5\ N. H. 571.] 

Ladd, J.^ The agreed statement of facts upon which the former 
opmion in this case was rendered (50 N. H. 212), showed that after 
this plaintiff had paid the judgment recovered against him for the 
original taking of the posts, &c., this defendant entered upon the plain- 
tiff's premises and carried them awaj^ again. The defendant now offers 
to prove that his taking was before that judgment was paid, though 
after it was rendered ; and we are called on to decide that the plaintiff 
cannot recover the value of the propertj- which he thus paid for in pa}'- 
ing that judgment, because it was taken from him bj' the defendant 
before instead of after the payment. 

The defendant's position, in a word, is this : he had changed his 
securit}' for the conversion of his property from an unliquidated claim 
for dailiages for a tort into a judgment for its value. Without releas- 
ing or surrendering that judgment, he broke and entered the plaintiff's 
close, and took awa}' the propertj' for whicli he held the judgment ; 
and having thus secured the property, he enforced payment for its 
value b}' collecting the judgment. He now claims that he is not liable 
for its value in this action, because the propert3- did not pass to the 
defendant until the judgment was paid, that is, after his taking. 

If there were no other waj' of meeting this position, it would doubt- 
less furnish a strong argument in favor of the former doctrine, that it 
is the judgment and not the satisfaction which passes the property. 
Adams v. Broughton, 2 Stra. 1078 ; and see cases collected in Buck- 
land y. Johnson^ 15 C. B. 145. Such is not the law, however, in this 
State — Hyde v. Noble, 13 N. H. 494 — and probably not now in 
England ; Brinsmead v. Harrison, Law Eep. 6 C. P. 584 ; s. c. 
Law Rep. 7 C. P. 547 ; — and the aid of no such doctrine need be 

In the former opinion it was said that a satisfaction of the judgment 
bj' this plaintiff passed the title of the property to him to take effect by 
relation from the time of the conversion. 

That remark was not strictlj' called for as the case then stood ; but 
we have no doubt it was correct, and it fully meets the case as now 
presented. 2 Par. Bills and Notes, 436 ; 1 Hilliard on Torts, 51 ; 
Bucklandv. Johnson, sup. ; Hepburn v. Sewell, 5 Har. & Johns. (Md.) 
211. In the latter case the point was directlj' raised and distinctly' 
decided by the court. The remarks of Dorsey, J., in delivering the 
judgment of the court, are so much in point that I quote a portion of 

1 The case is sufficiently stated in the opinion. 


them. He says, — "It must be borne in mind that the plaintiff, in 
an action of trover, compels the defendant to become a purchaser 
against his will ; and from what period does he elect to consider the 
defendant as a purchaser, or as answerable to him for the value of the 
thing converted ? He selects the date of conversion as the epoch of the 
defendant's responsibilitj', and claims from him the value of the prop- 
erty at that period, with interest to the time of taking the verdict. 
The inchoate right of the defendant as a purchaser must therefore be 
considered as coeval with the period of conversion, and this right being 
consummated bj' the judgment and its discharge, must, on legal and 
equitable principles, relate back to its commencement." 

This view disposes of the defendant's case ; for if, upon paj'ment of 
the judgment, the property' in the posts, &c., passed absolutely to the 
plaintiff, and his title thereupon took effect by relation from the date of 
the conversion, he is clearly entitled to recover their value in the pres- 
ent suit. 

We do not undertake to say that there may not be cases where this 
doctrine would not apply. All we decide is, that it does apply in a 
case like the present.' 



Note. — The passing of personal property on death, either testate or intestate, is 
dealt with later under the title of Wills and Administration. The important subjects 
of Sales and Mortgages are treated in separate courses. 

King's Bench. 1819. 

iReported 3 S. <& Aid. 551.] 

Tkover for two colts. Plea, not guilty. The defendant was the 
executrix and residuary legatee of the plaintiff's father, and the plaintiff 
claimed the colts, under a verbal gift made to him by the testator 
twelve months before his death. The colts, however, continued to 
remain in possession of the father until his death. It appeared, further, 
that about six months before the father's death, the son having been 
to a neighboring market for the purpose of purchasing hay for the colts, 

1 See Fox v. Northern Liberties, 3 W. & S. 103. Cf. also Barb v. Fish, 8 Blackf. 
481 ; Lovejoy v. Murray, 3 Wall. 1. "If one declares in replevin for cattle with an 
adhue detinet, and defendant has judgment against him for damages, by payment 
•thereof the property of the distress shall be vested in him." Per Holt, C. J., in 
Mme V. WaUs, 12 Mod. 424, 428. 


and finding the price of that article very high, mentioned the circum- 
stance to his fatlier ; and that the latter agreed to furnish for the colts 
any hay they might want at a stipulated price, to be paid by the son. 
None, however, was furnished to them till within three or four days 
before the testator's death. Upon these facts, Abbott, C. J., was of 
opinion, that the possession of the colts never having been delivered 
to the plaintiff, the propertj' therein had not vested in him by the gift ; 
but that it continued in the testator at the time of his death, and con- 
sequently that it passed to his executrix under the will ; and the plaintiff 
was therefore nonsuited. 

Gurney now moved to set aside this nonsuit. By the gift, the prop- 
erty of the colts passed to the son without any actual delivery. In 
Wortes V. Clifton, Roll. Rep. 61, it is laid down by Coke, C. J., that, 
\)y the civil law, a gift of goods is not good without delivery ; but, in 
our law, it is otherwise ; and this is recognized in Shepherd's Touch- 
stone, tit. Gift, 226. Here, too, from the time of the contract hy the 
father to furnish hay for the colts at the son's expense, the father 
became a mere bailee, and his possession was the possession of the 
son ; and an action might now be maintained by the defendant, in her 
character of executrix, upon that contract, for the price of the haj- 
actually provided. 

Abbott, C. J. I am of opinion, that by the law of England, in 
order to transfer propertj' by gift there must either be a deed or instru- 
ment of gift, or there must be an actual deliverj' of the thing to the 
donee. Here the gift is merely verbal, and differs from a donatio mor- 
tis causa onl}' in this respect, that the latter is subject to a condition, 
that if the donor live the thing shall be restored to him. Now, it is 
a well-established rule of law, that a donatio mortis causa does not 
transfer the propertj' without an actual deliver}-. The possession must 
be transferred, in point of fact : and the late case of Sunn v. Mark- 
ham-, 2 Marsh. 532, where all the former authorities were considered, 
is a very strong authority upon that subject. There Sir G. Clifton had 
written upon the parcels containing the propertj' the names of the 
parties for whom they were intended, and had requested his natural 
son to see the property delivered to the donees. It was therefore 
manifestly his intention that the property should pass to the donees ; 
yet, as there was no actual delivery, the Court of Common Pleas held 
that it was not a valid gift. I cannot distinguish that case from the 
present, and therefore think that this propertj' in the colts did not pass 
to the son bj' the verbal gift ; and I cannot agree that the son can be 
charged with the hay which was provided for these colts three or four 
dajs before the father's death ; for I cannot think that that tardj' 
supplj' can be referred to the contract which was made so manj' months 

HoLROYD, J. I am also of the same opinion. In order to change 
the property by a gift of this description, there must be a change of 
possession : here there has been no change of possession. If, indeed, 


it could be made out that the son was chargeable for the hay provided 
for the colts, then the possession of the father might be considered as 
the possession of the son. Here, however, no hay is delivered during 
a long interval from the time of the contract, until within a few days 
of the father's death ; and I cannot think that the hay so delivered is to 
be considered as delivered in execution of that contract made so long 
before, and consequently the son is not chargeable for the price of it. 

Best, J. concurred. 

Abbott, C. J. The dictum of Lord Coke in the case cited must be 
understood to apply to a deed of gift ; for a party cannot avoid his own 
voluntary deed, although he may his own voluntary promise. 

Rule refused} 

1 "A gift of anything without a consideration, is good ; but it is revocable before 
the delivery to the donee of the thing given. Donatio perficetur possessione accipientis. 
This is one of the rules of law." Jenk. Cent. 109. 

" This reasoning I have gone upon is agreeable to Jeuk. Cent. 109, case 9, relating to 
delivery to effectuate gifts. How Jenkins apiilied that rule of law he mentions there, 
I know not ; but rather apprehend he applied it to a donation mortis causa ; for if to 
donation inter vivos, I doubt he went too far." Per Lord Hakdwicke, C, in Ward v. 
Turner, 2 Ves. Sen. 431, 442. 

" In M. 7 E. 4, fo. 20, pi. 21, it is however said, 'Nota, that it was held by Choke 
(Chief Justice of C. P. ), and others of the justices, that if a man make a deed of gift 
of his goods to me, that is good and effectual without delivering the deed to me, until 
1 disagree to the gift ; and that should be (covient estre) in a court of record,' &c. 
Qucere, whether the resolution of the judges may not have been confined to the firit 
proposition, the second, and more disputable, proposition, printed in italics, being 
added by the reporter. 

" With respect to gifts of chattels inter vivos, the rule appears to be this : Gifts by 
parol, i. e. gifts made verbally, or in writing without deed, (as to which, see 2 Roll. Abr. 
62. ; 14 Vin. Abr. 123), are incomplete, and are revocable by the donor, until accep- 
tance, that is, until the donee has made some statement, or done some act, testifying 
his acquiescence in the gift ; but gifts by deed are complete, and irrevocable by the 
donor, upon the execution of the deed, and vest the property in the donee until the 
latter disclaims, which he can do at any time before he has made any statement, or 
done any act, inconsistent with such disclaimer, (which disclaimer, notwithstanding 
the above case in M. 7 E. 4, may, by what appears to be the better opinion, be made 
171 pais, and that, by parol.) After acceptance of the gift by parol, and until dis- 
claimer of the gift by deed, the estate is in the donee without any actual delivery of 
the chattel which forms the subject of the gift ; see Perkins, Grant, 57 ; Cora. Dig. tit. 
Biens, (D 2. ) 

" By the Code Civil, No. 938, ' A donation inter vivos, duly accepted, shall be per- 
fect by the sole consent of the parties ; and the property in the articles so given shall 
be transferred to the donee, without any other delivery being necessary.' 

" But where a donatio inortis causa is made, the property does not vest without 
delivery ; Smith v. Smith, 2 Stra. 955 ; Bunn v. Markham, 2 Marshall, 532. Eeddel 
v. Dohree, 10 Simons, 244. In Irons v. Smallpiece, 2 B. & Aid. 551, it was ruled at 
Nisi Prius by Abbott, J. , that a delivery was necessary to complete a gift inter vivos ; 
and upon a motion by Gurney to set aside the nonsuit, the court refused to grant a 
rule, under an impression that the point had been decided in Bunn v. Markham, — 
the distinction between donationes inter vivos and donationes mortis causa, (which runs 
through the previous cases,) not being adverted to." Note by Sergeant Manning to 
Lmidon & Brighton Railway Co. v. Faircloiigh, 2 Man. & G. 691. 

" I have always thought Lord Tenterden's opinion in Irons v. Smallpiece very re- 


markable ; he speaks of a ' deed or instrument of gift,' leaving it to be inferred that 
the assignment might be otherwise than by deed." Per Maule, J., in Lunn v. Thorn,' 
ton, 1 C. B. 379, 381, 382. 

" In Irons v. Smallpiece it was held that the verbal gift of a chattel, without actual 
delivery, does not pass the property to the douee, Abbott, C. J., saying : ' By the law 
of England, in order to transfer property by gift, there must either be a deed or instru- 
ment of gift, or there must be an actual delivery of the thing to the donee. ' That is 
not correct." Per Parke, B., in Ward v. Audland, 16 M. & W. 862, 870, 871. 

"It has, indeed, been held that a gift is not binding unless it be by deed, or the sub- 
ject of the gift be actually delivered ; but if the point were res nova, it would perhaps 
be decided differently." Per Pakke, B. in OuldsY. Harrison, 10 Exch. 672, 575. 

"Actual delivery of the chattel is not necessary in a gift inter vivos. In the case 
of a donatio mortis causa, there is a reason for requiring some formal act. It is suf- 
ficient to complete a gift inier vivos that the conduct of the parties should show that 
the owjiership of the chattel has been changed. Although Irons v. Smallpiece and 
Shower v. Pilck have not been overruled, the subsequent cases, to .speak familiarly, 
have hit them hard." -Per Crompton, J., in Winter y. Winter, 4 L. T. N. S. 639, 6i0. 

"My brother Manning in o, learned note to the case of The London and Brighton 
Railway Company v. Faircloiigh, comments upon that decision [Irons v. Smallpiece] 
suggesting that sufficient weight was not given to the fact of acceptance by the donee 
of the gift. He certainly cites authorities of weight upon the subject." Per Williams, 
J., in Martin v. Reid, 31 L. J. N. S. C. P. 126, 127. 

"I do not think that we are called upon, at present, to say whether we should 
overrule the case of Irons v. Smallpiece, or whether a gift not made by deed, and unac- 
companied by transfer is invalid in law. Whenever that question shall come before 
me, I feel bound to say I shall require a much higher authority than the note of an 
editor, however learned or eminent, to induce me to overrule a decision of Lord Tenter- 
den and his brethren in the Court of Queen's Bench." Per Kelly, C. B. in Douglas 
V. Douglas, 22 L. T. N. S. 127, 129. 

" With respect to the two pictures by Canaletto and Sir Joshua Reynolds, it is ad- 
mitted that they were Danby property, and the only question which arises as to them 
is whether during her lifetime Mrs. Harcourt disposed of these pictures by way of gift 
to her sister Mrs. Holwell. It is argued that she could not have disposed of tliem 
without some evidence of a gift, and that the evidence adduced by the defendants is of 
no avail because there has been no actual delivery, and there is no evidence of a deed. 

" Now, if this case — with respect to the two pictures — depended upon the rule of 
law laid down in some of the older books, I could not certainly accede to the proposi- 
tion generally that the actual delivery of a chattel is necessaiy to create a good gift 
inter vivos. I should begin by saying that a very great many cases, not unnaturally, 
have turned upon the question what is a good donatio mortis causa. One of those cases 
is the case of Ward v. Turner, where Lord Hardwicke entered into the question very 
fully, and certainly, as was to be expected, his mind was not so much impressed by the 
common law authorities as by the authorities which had grown up through the civilians 
of this country by the application of what is known as the civil law. That has clearly 
no application to the present case. The civil law never was any part of the common 
law of England, although the common law yielded to it in that portion of the law of 
this country which was administered in the ecclesiastical courts. The civil law has 
also been recognized in other respects, and especially in cases connected with the mar- 
riage laws of this country, some of them decisions of the House of Lords. The question 
then is, What is the common law ? I have been consulting the older authorities, and 
although, no doubt, it is often said that actual delivery is necessary, yet there are other 
cases where, although there has been no deed, the contrary has been laid down. 

"The modern law on the subject is founded on Lord Tenterden's judgment in Irons 
V. Smallpiece. 1 can only say that that case has been before the courts on the com- 
mon law side of Westminster Hall for a great many years, and I cannot myself acquiesce 
in the view of the law there laid down. I am not bound by that decision, because 



StrPEEME Court op New York. ^ 1806. 

[Eeported 2 Johns, 62.] 

This was an action of trespass for breaking and entering the close 
of the plaintiff, cutting down, taking and carrj-ing away the wheat in 
the straw, which was there standing, and converting the same to his 
own use. 

The cause was tried at the Rensselaer circuit in Maj-, 1806, before 
Mr. Chief Justice Kent. The plaintiff proved that he was put into 
possession of the locus in quo in March, 1805, hy the sheriff of Rens- 
selaer count}-, bj- virtue of a writ of habere facias possessionem, issued 
on a judgment in ejectment against one Hallett, and that he continued 
in possession to the time of the trespass. At the time the sheriff put 
the plaintiff in possession, he did not remove the goods out of the 
house of Hallett. It was also proved that the defendants and their 
servants in July, 1805, broke and entered the same close, and there 
cut down and carried away, though forbidden by the plaintiff's over- 
seer, near two hundred bushels of wheat in the straw. A witness for 
the defendants proved that Hallett had lived on the farm as a tenant to 
John Hill, the principal of the plaintiff, above two years before the 
plaintiff was put into possession. That two of the defendants were 
step-sons of Hallett and lived in his family. That after Hallett was 

Baron Parke, afterwards Lord Wensleydale, in the case of Ward v. Audland, 16 M. & 
"W. 862, 871, not merely dissented from that proposition, but distinctly expressed his 
opinion that it was not law. That was so clearly also the opinion of so eminent a 
judge as Mr. Justice Maule in another case (Lunn v. Thornton, 1 0. B. 379) that I 
think I may take it now that the true view of the law is this. The question to be de- 
termined is not whether there has been an actual handing over of property manually, 
but whether, looking at all the surrounding circumstances of the case, and looking par- 
ticularly at the nature and character of the chattel which is proposed to be given, there 
has or has not been a clear intention expressed on the part of the donor to give, and a 
clear intention on the part of the recipient to receive and act upon such gift. When- 
ever such a case should arise again, I am confident that that would be the basis of the 
decision of a court of common law, and, of course, the same result would follow in a 
court of equity." Per Pollock, B. In Ke Harcourt, 31 W. R. 678, 579. 

" It is contended for the trustee that change of possession from the donor to the 
donee must be shewn, and that no property passes so long as the subject of the gift 
remains in the possession of the donor: Irons v. Smallpiece, 2 B. & A. 651, and Shower 
v. Pilek, i Ex. 478. On the other hand, it is said that the principle laid down in those 
two cases goes too far, and has been disapproved of by Parke, B., in Ward v. Audland, 
16 M. & "W. 871, by Crompton, J., in Winter v. Winter, i L. T. N. S. 639, and by 
Pollock, B., in In Ke Harcourt, 31 W. R. 578. I am of opinion that it is going too 
far to say that retention of possession by the donor is conclusive proof that there is no 
immediate present gift; although, undoubtedly, unless explained or its effect destroyed 
by other circumstances, it is strong evidence against the existence of such an inten- 
tion." Per Cave, J., In Re Bidgway, 15 Q. B. D. 447, 449. 


dispossessed he was sued and taken on execution for rent due to Hill. 
The witness applied to the plaintiff to let Mrs. Hallett have some of 
the wheat then growing on the premises, for seed ; and the plaintiff 
told the witness that " he would give the wheat growing to the defend- 
ants, the Smiths, for the support of themselves and Mrs. Hallett, and 
would procure a written surrender to be drawn up for Hallett to exe- 
cute." The Smiths afterwards requested the plaintiff to give them a 
writing for the wheat, which the plaintiff refused to do, sajing ' ' that 
he would reserve it for them if he should demise the premises to an}' 
other person." The Smiths were relations of Hill, who requested them 
to repair the fence in the autumn, round the field in which the wheat 
was growing. Another witness stated that the plaintiff, in October, 
1805, told him that he had given the wheat to the Smiths, but that he 
had revoked the gift on account of some offence thej- had given him. 
Something was said of a condition annexed to the gift, but what it was 
did not clearly appear. 

The judge charged the jury that there was suflBcient evidence of a 
valid gift of the wheat, and which was not revocable by the plaintiff. 
The plaintiff, therefore, submitted to a nonsuit. 

A motion was now made to set aside the nonsuit, and for a new trial 
for the misdirection of the judge. 

Henry, for the plaintiff. 

Wooclworth, Attorney-General, for the defendants. 

Van Vechten, in reply. 

Kent, Ch. J., delivered the opinion of the court. 

This case presents the following questions : 1 . Can property in corn 
growing be transferred bj' gift? 2. Is there here the requisite evi- 
dence of such a gift? 

After a consideration of this case I am satisfied that the opinion 
which I gave at the circuit upon the trial of tins cause was incorrect. 

Lord Coke is reported to have said in Wortes v. Clifton, 1 Rol. 
Eep. 61, that hy the civil law a gift of goods was not valid without 
deliver}', but that it was otherwise hj our law. This is a very inaccu- 
rate dictum, and the difference between the two systems, is directlj- the 
reverse. By the civil law, a gift inter vivos, was valid and binding 
without delivery ; (Inst. lib. 2, tit. 7, § 2. Code lib. 8, tit. 54, 1. 3, 
1. 35, § 5) but at common law it is very clear, from the general current 
of authorities, that delivery is essential to give effect to a gift. Brac- 
ton, de acq. rerum dom. lib. 2, fo. 15, b. 16, a. Noy, 67, Str. 955, Jen- 
kins, 109, 2 Black. Comm. 441. In the analogous case, also, of gifts, 
causa mortis, it was held by Lord Hardwicke in the case of Ward v. 
Turner, 2 Vesey, 431, where the subject underwent a very full discus- 
sion, that a delivery was necessary to make the gift valid ; and, accord- 
ingly, that a delivery of receipts for South Sea annuities, was not a 
sufficient deliver}- to pass these annuities by that species of gift. 

Delivery in both kinds of gift is equally requisite, on grounds of 
public policy and convenience, and to prevent mistake and imposition. 


If delivery be requisite, there was none in the present case. The 
land, at the time of the alleged gift, was in possession of one Hallett, 
and not of any of the defendants, to whom the gift is said to have been 
made ; and before the wheat was ripe the plaintiff recovered the pos- 
session of the land by due course of law. Here was not even au 
attempt at a symbolical delivery, and giving the testimony the strong- 
est possible construction in favor of the defendants, it amounted to 
nothing more than saying, T give, without any act to enforce it. A 
mere symbolical delivery would not, I apprehend, have been sufficient. 
The cases in which the deliverj- of a symbol has been held sufficient to 
perfect the gift, were those in which it was considered as equivalent to 
actual delivery, as the delivery of a ke}' of a trunk, of a room or ware- 
house, which was the true and effectual way of obtaining the use and 
command of the subject. 2 Vesey, 442-3 ; 4 Brown, 286 ; Toller's 
Law of Exc, 181-2. I do not know that corn, growing, is suscepti- 
ble of delivery in any other way than by putting the donee into posses- 
sion of the soil ; but it is not necessary to give an}- opinion at present 
to that extent ; nor do the court mean to do so. It is sufficient to say 
that there was no evidence of delivery in the present case, and, that to 
presume one we must go the whole length of the example given in the 
Eoman law where the buyer is supposed to take possession of a large 
immovable column by his eyes and his affections, oculis et affectu. 
Dig. 41, 2. 1. 21. The courts of equity seem to have adopted the 
true rule in their decisions on the donatio causa mortis, in which they 
hold that the delivery must be actual and real, or by some act clearly 

The opinion of the court therefore is, that the nonsuit be set aside 
and a new trial awarded with costs, to abide the event of the suit. 

New trial granted. 



Note. — As a general rule, choses in action afc not transferable at common law, 
though often made so by statute. Most of the law conoerniug the transfer of Legal 
Obligations and Privileges is best considered with other topics or in other courses; 
e. g.. Covenants running with the land (dealt with hereafter in connection with Ease- 
ments and the transfer of Heal Estate), Wills and Administration, Bills and Notes, 
Patents and Copyrights, Stock in Corporations, etc. 


Common Pleas. 1621. 

[Reported Eetl. 80.] 

An annuity was brought by Gerrard against the parson of B. And 
the plaintiff counts, That the said parson granted an annuity of 40?. 


pro bono consilio suo imposter. impenso, for term of life of the said 
parson. And for 30?. of arrearages this action was brought. Finch, 
thought the count not to be good. And first it is to be considered, if 
that annuity might be assigned and granted over or not. And as I 
think, it cannot. For an annuity is not but as a sum of mony, to be 
paid to the grantee by the grantor. And not at all to the realty, if 
the land be not charged by express words in the same deed. And to 
prove it, if a man grant an annuity to me and my heirs, without 
naming of mj' heirs, if the annuity be denied, it is gone ; because 
my person is only charged with the annuity, and not the land. So 
if a main grants to you the stewardship of his manner of D., and to 
your heirs, you cannot grant that over. And so of a bayliwick. But 
peradventure it maj'^ be said, that an annuity may be granted over in 
this case, because in the habendum it is said to the assignees of the 
grantee. But that is nothing to the purpose, as I think. For I take 
a difference when a thing comes in the habendum of a deed which de- 
clares the premises of the deed, for there it shall be taken effectual, 
but otherwise not. As if lands be given to a man and his heirs ha- 
bendum, sibi & hcBred. de corpore suo procreat ; that is a good tayl. 
But if a thing comes in the habend. which is repugnant to the premises 
of the deed, and to the matter of the thing which is given by the deed, 
then the habend. is void for that parcel. As in the case at bar, it is 
meerly contrary to the nature of the annuity to be assigned over to 
another. And there is no remedy given for it but an action ; and it is 
common learning that a thing in action cannot be assigned over unless 
it be by the grant of the King. Also by their declaration they have ac- 
knowledged it to be no more than a chose in action. Then a rent-seek 
for which he had not any other remed3' but an action after seisin. For 
he said that he was seised in his demesn as of franktenement of the 
rent aforesaid. Then it ought to be a rent-seek ; for of no other rent 
can a man be seised in his demesn, because they lye in prend. as of 
advowsons common for years, and of estovers. And I will not agree 
that difference put by Littleton in his book to this purpose. For of 
such things which lye in manual occupation or receipt, a man shall not 
say that he was seised in his demesn as of a rent, because it lyes in the 
prend. And in the 21 E. 4 the case is doubtful. And Crawley of the 
same opinion. Sitcham of the contrary. And at another daj-, Sut- 
ton [J.] said that the parties were agreed. Hitcham. We desire to 
have your opinion notwithstanding, for our learning. Hctton said : 
We are agreed that the annuity may be granted over, and it is not so 
much in the personalty as hath been argued by Finch. And in some 
books it is said that a release of personal actions is not a plea in 
a writ of annuity. 




Note. — Equitable Eights are in general freely assignable. The exceptions are con- 
sidered in this section, so far as those exceptions are based on grounds of public policy. 
How far the transfer of an equitable right can be restrained by the person creating it, 
will be considered hereafter. 

A. Public Officers. 


Common Pleas. 1791. 

[Reported 1 H. Bl. 627.] 

The defendant, who was a lieutenant of marines, assigned his full 
pa.y to the plaintiff, in trust, first of all to pay and satisfy himself (the 
plaintiff) an annuity of £20 per annum, and then to pay over the sur- 
plus to the defendant, and also gave a bond and warrant of attorney as 
a further security. In the last term a rule was granted to show cause 
why the deed of assignment, bond, and warrant should not be given up 
to be cancelled on several grounds, the most material of which was, 
that the full pay of a militarj' officer could not be legally assigned. 
When the motion was made, the court intimated a very clear opinion 
that such an assignment was illegal, it being contrary to the policy of 
the law that a stipend given to one man for future services, should be 
transferred to another who could not perform them. However the rule 
was enlarged till this term, when on the motion of Kerby, Serjt. it was 
made absolute, no cause being shown, but the court seeming to retain 
their former opinion. 


King's Bench. 1790. 

[Reported Z T. R. 681.] 

On a rule to show cause why the defendant, an insolvent debtor, 
should not be discharged out of custody', the only question was whether 
or not his half-paj^ as a lieutenant in a reduced regiment of foot should 
be included in his schedule delivered in under the Lords' Act. 

Marryat, who opposed the discharge, stated that several cases had 
been mentioned at Serjeant's Inn where this motion was first made. 


One was that of a life-guard-man some few years ago, whose discharge 
was opposed before Aston, J., on the ground that, as the place was 
assignable for his own benefit, he was compellable to assign it for the 
benefit of his creditors ; and the learned Judge refused to discharge 
him on that ground. Another instance was in the case of one Peake, a 
superannuated boatswain of the Eojal George in May 1789, who was 
brought up bj- a creditor under the compulsorj- clause, where it was 
held that he was compellable to assign his commission ; but before the 
expiration of the sixtj' days he made a compromise. There were two 
other cases, one in the Exchequer, where it was decided that a Captain 
Yates, of the navy, was not obliged to include his half-pay in the 
schedule, because it was not saleable by law ; the other in the Court of 
Common Pleas of a master in the navj', who was discharged without 
assigning his half-pay, for the same reason. Now, he observed, there 
is a wide distinction between the former and the latter cases ; for the 
statute 1 Geo. 2. st. 2 c. 14 s. 7, avoids all assignments of seamen's 
wages. But the commissions of offlcers in the army are assignable. 
In addition to the above cases he mentioned another, which happened 
about five j'ears ago in the Common Pleas, where on an application bj' 
a horse-guard-man to be discharged, he was compelled to assign his 
half-pa}'. And in 1 Atk. 210, where the question was whether the 
office of under-marshal of the Citj- was assignable under the bankrupt 
laws. Lord Hardwicke held that it was, and said (1 Atk. 214), "If an 
oflficer in the army should become a bankrupt, he should have no doubt 
but that he had a power to lay his hands upon his pay for the benefit 
of his creditors." The enacting clause of the Lord's Act, 32 Geo. 2 c. 28 
s. 13, directs that the prisoner, before he is discharged, shall deliver in 
a schedule of all his estates, &c., real and personal, or which he or any 
person in trust for him is interested in or entitled to ; which words are 
sufllcient to carrj- even an equitable estate to the creditors ; and indeed 
without this provision the sixteenth clause, which is the compulsory one, 
would be defeated. In Stuart v. Tucker, 2 Bl. Rep. 1140, it was held 
that the half-pay of an officer was assignable in equity. Now whatever 
interest passes by an assignment under a commission of bankrupt may 
be assigned under the Lord's Act to the creditors. 
Garroio, contra, was stopped by the Court. 

Lord Kenyon, Ch. J. I am clearly of opinion that this half-pay 
could not be legally assigned by the defendant. Vid. Lidderdale \. 
The Duke of Montrose and Lord Mulgrave, post. 4 vol. 248. s. p., 
and consequently that the creditors are not entitled to ah assignment 
of it for their benefits. Emoluments of this sort are granted for the 
dignity of the State, and for the decent support of those persons who 
are engaged in the service of it. It would therefore be highly impolitic 
to permit them to be assigned ; for persons, who are liable to be called 
out in the service of their country, ought not to be taken from a state 
of poverty. Besides an officer has no certain interest in his half-pay ; 
lor the king may at any time strike him off the list. Indeed assign- 


ments of half-pay have been frequently made in fact, but they cannot 
be supported In law. It might as well be contended that the salaries 
of the Judges, which are granted to support the dignity of the State and 
the administration of justice, may be assigned. 

AsHHURST, J. All voluntary donations of the Crown are for the 
honor and service of the State. This seems from the cases mentioned 
to have been vexata questio : but on considering the consequences of 
this application, it seems more proper that half-pay should not be 

Bdller, J. What the duty of the life-guardsmen was originally we 
do not know : but for some time past these places have been held regu- 
lar objects of sale ; and if an office may be sold by the party himself, it 
is assignable for the benefit of his creditors. But tliat is very different 
from the present case : for I know of no authority' bj' which an officer 
maj' sell his half-paj' ; and on principles of policj' he ought not to be 
permitted to do it. If the question had been whether or not the pay 
which was actually due might be assigned, I should have thought it, 
like any other existing debt, assignable ; but that does not extend to 
future accruing payments. 

Grose, J. The future half-paj^ could not have been sold by the 
defendant himself; and therefore his creditors cannot compel him to 
assign it for their benefit. 

The prisoner was ordered to be discharged accordingly. 

Chancery. Before Lord Langdale, M. R. 1840. 

[Reported 2 Beav. 544.] 

In April, 1829, the defendant, the Rev. R. A. Musgrave, was 
appointed by letters patent, one of the prebends or canons of the 
collegiate church or free chapel of St. George, within his Majesty's 
castle at Windsor, an appointment which produced an income of about 
£1200 a year. 

Being in want of money, Mr. Musgrave, in October, 1838, granted 
to the plaintiffs the said prebend or canonry, and all the annual income 
arising from renewal fines, rents, and other perquisites, emoluments, 
and advantages to which he was entitled as one of such prebends or 
canons, and he also assigned to them two several policies of insurance, 
for securing to the plaintiffs the repayment of the sum of £12,000. 

It appeared from the answer of Mr. Musgrave, that the income arose 
from estates possessed by the corporation, the rents and proceeds of 
which were usually divided half-yearlj' between the dean and twelve 
canons ; but it did not appear that there was anj' property vested in 
the dean and canons independently of the corporation. 


There did not appear to be any spiritual duties attached to the office, 
nor any cure of souls, but the answer represented, that the corporation 
was governed by certain statutes and ordinances, whereby certain 
duties were imposed upon the members of the said corporation to be 
by them performed, each member of the said corporation having the 
privilege of i-esiding in a house within the walls of the said castle of 
Windsor ; and that if any member of the corporation failed to perform 
his appropriated duties, he, by virtue of the said statutes and ordi- 
nances, forfeited his right to share in the division of the surplus in- 
come of the said corporation, and in lieu thereof was entitled to receive 
a small fixed stipend, of the amount, as the defendant believed, of 
£25 a year only ; and that the members of the corporation were in such 
cases entitled to the residue of his share of the surplus income of the 
corporation. That one of the duties, by the said statutes and ordi- 
nances imposed upon each of the said canons, was to reside in one of 
the said houses within the walls of the said castle of "Windsor, and to 
attend divine service in the said chapel of St. George, at Windsor, 
twenty-one daj's in each year. 

The defendant, Mr. Musgrave, having made default in paj'ment of 
the intei'est and in keeping np the policies, the plaintiffs filed this bill 
for the purpose of obtaining payment, und for an injunction and 
receiver ; on the 11th of January, 1840, an order was made on affidavit, 
before answer, restraining the dean and canons from paying, and the 
defendant from receiving, the income of the canonry and for the 
appointment of a receiver. 

The defendant, Mr. Musgrave, having put in his answer, it was now 
moved on his behalf, to discharge the order for an injunction and 

Mr. G. Richards, in support of the motion. 

Mr. Pemherton and Mr. W. T. S. Daniel, contra. 

The Master of the Rolls. The plaintifls, being under the neces- 
sitj' of filing this bill, in consequence of the neglect of the defendant 
to pay either principal or interest on the monej* advanced, have 
obtained an order for a receiver. I do not enter into the question 
whether the order was opposed at the time, for the defendant had 
clearly a right to pursue any course he pleased upon that occasion, and 
supposing him to have then thought, or to have been then advised, that 
this order was proper, still it was perfectlj' competent for him after- 
wards, upon a more careful inquiry-, to bring under the consideration 
of the court the question, whether the order ought to be sustained. It 
is now contended that the order should be discharged on two grounds : 
the first is, that it is an order which cannot be enforced for any useful 
or profitable purpose to the plaintifl!s without the assent and concur- 
rence of the defendant, Mr. Musgrave. Mr. Musgrave, being a canon 
of Windsor, has, it is said, a duty to perform, that is, he is to reside 
twenty-one days within the precmcts of the castle of Windsor, and 
during that time he is to attend divine service, and if he does not, the 


aliquot share or part of the general revenues of the corporation which 
he would otherwise be entitled to, is to be reduced to a certain small 
sum. He therefore says : "If I do not choose to attend during that 
time, the small sum only, and not the larger sum, will have to be 
received, and therefore the plaintiffs and the receiver will be unable to 
receive the income for the purpose of applying it in diminution or in 
exoneration of my debt." It cannot be supposed that Mr. Musgrave 
will be so unwise, as, rather than give the plaintiffs the benefit of that 
which they are clearly entitled to, wholly to neglect to perform the 
duty which entitles him to the receipt of this income, and thus leave 
the debt standing, and the interest accumulating upon it. I cannot 
presume that any such degree of absurdity will mark his future 

In the next place it is said that he has no right to assign this can- 
onry, because the share of the revenues was given to him in considera- 
tion of certain future duties to be performed. Now if it had been made 
out that the duty to be performed by him was a public duty, or in any 
way connected with the public service, I should have thought it right 
to attend very seriously to that argument, because there are various 
cases in which public duties are concerned, in which it may be against 
public polic}', that the income arising for the performance of those 
duties should be assigned ; and for this simple reason, because the pub- 
lic is interested, not only in the performance from time to time of the 
duties, but also in the fit state of preparation of the party having to 
perform them. Such is the reason in the cases of half-pay where there 
is a sort of retainer, and where the payments which are made to officers, 
from time to time, are the means by which the^', being liable to be 
called into public service, are enabled to keep themselves in a state of, 
preparation for performing their duties. If, therefore, thej* were per- 
mitted to deprive themselves of their half-pay, they might be rendered 
unable promptly to enter upon their duties when called upon, and the 
public service would be thereby greath' injured. So, also, where a 
pension or remuneration is given for a purpose which tends less directly 
to the public benefit, as for instance was the case in Davis v. The 
Duke of Marlborough ; there the pension was given to the Duke of 
jVIarlborough as a memento of the gratitude of the nation, and as a 
reward for his distinguished public services ; and it was there the in- 
tention of the legislature that it should be kept in mind that it was for 
those great services it was given. In that case the pension was held 
inalienable, because it was considered that one of the objects of giving 
the pension, namely, for having a perpetual memorial of national grati- 
tude for public services would be entirely lost ; and so in the course of 
that case Lord Eldon said, in the way of illustration, and in allusion 
to the pension of a great public officer, that it could not be aliened, 
because that public officer must not be allowed to fall into such a 
situation as to make it difficult for him, in consequence of any pecu- 
niary embarrassment, to maintain the dignity of his office. With 



respect to the case of Cooper and Beilly, some doubts have been ex- 
pressed as to the propriety of the decision on the motion for a receiver ; 
but the question was, whether the salary was assignable on grounds of 
public policy, and that depended on the nature of the duty and the 
interest of the public to secure the payment of the salary to the person 
by whom the duty was to be performed. If in this case the residence 
in Windsor Castle, and the attendance on divine service had been 
stated in the answer, or in any way shown to be for the benefit of the 
public, or for the maintenance of the dignity of the Sovereign for the 
benefit of the public, I should have thought the case worthy of a very 
different consideration. But from all which is stated in this answer 
that is not the case ; .it is a service to be performed for the benefit 
of the party himself; and, therefore, upon the case as it now stands 
upon this answer, and without saying there may not be other facts 
which may be material to be ultimately considered, it appears to me 
that the security of the plaintiffs is valid, and I must therefore refuse 
the motion with costs. 

Exchequer. 1841. 

[Reported 8 M. & W. Ii9.] 

Assumpsit for money had and received, and on an account stated. 
Plea, noil assumpsit. At the trial before Lord Abinger, C. B., at the 
Middlesex sittings after Hilary Term, it appeared that the defendant 
had held a situation as clerk in the Audit Office for upwards of twenty 
years, up to the j'ear 1835, when, the establishment being reduced, he 
w^as placed on a retired allowance of £130 a j'ear, granted to him, not 
for life, but as an allowance for maintenance until he should be called 
on to serve again, and with an express understanding that he was 
bound, whenever he should be called upon, to re-enter the Audit Office, 
or to take an}- other oflfice under the Crown of equal value. In 1837, 
the defendant, being in execution at the suit of the plaintiff, executed 
to him an assignment of this annuitj', and also gave a warrant of at- 
torney to secure the payment of the debt by instalments. The deed 
of assignment contained a covenant that the defendant had good title 
to assign the annuity. In consideration of the execution of this deed, 
the defendant was discharged from custody. After his discharge, the 
plaintiff's debt remaining unpaid, he obtained an injunction to restrain 
the defendant from securing or assigning over any part of his pension ; 
which was subsequently dissolved, upon the terms that the defendant's 
attorney should receive the pension and pay it into a banking-house, 
and that the plaintiff should be at libertj' to bring any action he might 
be advised, for the amount so paid in. The present action was brought 


accordingly. Upon these facts, the Lord Chief Baron directed a ver- 
dict for the plaintiff, damages £67. 10s., leave being reserved to the 
defendant to move to enter a nonsuit, if the court should be of opinion 
that the defendant's pension was not assignable in law. 

M-le having obtained a rule nisi accordingly, Hoggins now showed 

£Irle and W. J. Alexander^ contra. 

Lord Abinger, C. B. The court are of the opinion that this pen- 
sion was not assignable. It stands upon the same footing as the half- 
pa^- of an officer in the army. It is fit that the public servants should 
retain the means of a decent subsistence, without being exposed to the 
temptations of poverty. Besides, the defendant may be assigning 
what he has no right to receive ; for his pension subsists only during 
pleasure, and it depends on Parliament whether it shall be continued 
or not. The rule to enter a nonsuit must be absolute. 

Parke, B. I concur in the opinion that this action is not maintain- 
able, upon the ground that, on principles of public policy, the allowance 
granted to the defendant was not assignable bj' him. It is not neces- 
sary in this case to determine whether this is an allowance to which the 
defendant is entitled as a matter of indefeasible right, or whether it 
is payable only during pleasure ; although I have a strong impression 
that it subsists only during the joint pleasure of the Treasury and of 
Parliament, b}^ which tlie fund for its payment is provided. On the 
other hand, even if it be paj^able only during pleasure, it appears to 
me that it is not therefore, in point of law, the less assignable, how- 
ever little its value would be in consequence of its being liable to be 
withdrawn at any moment. But viewing the matter on the ground of 
public policy, we are to look, not so much at the tenure of this pen- 
sion, whether it is held for life or during pleasure, as whether it is, in 
either case, such a one as the law ought to allow to be assigned. The 
correct distinction made in the cases on this subject is, that a man may 
always assign a pension given to him entirely as a compensation for 
past services, whether granted to him for life, or merely during the 
pleasure of others. In such a case, the assignee acquires a title to it 
both in equity and at law, and may recover back any sums received in 
respect of it by the assignor, after the date of the assignment. But 
where the pension is granted not exclusively for past services, but as a 
consideration for some continuing duty or service, although the amount 
of it may be influenced by the length of the service which the party 
has already performed, it is against the policy of the law that it should 
be assignable. Under the terms of the stat. 4 & 5 Will. 4, c. 24, the 
party, if an inferior officer, is liable at anj' time to be called upon to 
serve the public again ; in the mean time a reduced allowance is 
awarded to him, in consideration of his holding himself in readiness 
for that purpose. This is the case of an officer who has received a 
compensation on account of a reduction in the number of the persons of 
his class employed in the office to which he belonged ; and by the terms 


of the 19th section, all such persons are bound to give their services 
again to the public if called upon, and in the event of their refusal to 
do so, are liable to forfeit their pension altogether. I cannot assent 
to the argument that this pension cannot be taken awaj', for it appears to 
me to be clear, from the 30th section of the act, that this gentleman, 
so far as the question of his retainer or discharge is concerned, is 
exactly in the same position as if he were in full emploj'ment or on full 
pay ; that he is equally liable to be dismissed at any moment, either for 
positive misconduct, or on any ground which would render him an unfit 
person to remain in the service of the Crown. I think the true view of 
this case is, that the defendant is still to be considered as in the public 
service, although not at present actually performing any duty in it ; and 
that the compensation allotted to him under this act is by wa}' of 
salar3-, the object of which is to enable him to maintain such a position 
in life as wiU save him from the necessity of risking his character by 
incurring those temptations which persons reduced to poverty are 
necessarily exposed to, and which would render him an unfit person to 
be again employed as a servant of the Crown. For this purpose, public 
policy requires that he should not be permitted to assign it away. 

Aldekson, B. I am also of opinion that, on grounds of public 
policj', this pension is not assignable, and that in this respect it stands 
on the same footing as an officer's half-pay. The observations of Lord 
Kenyon, in Flarty v. Odium, are very forcible, and applj' fully to the 
present case. It appears to me that the defendant is a supernumerary- 
officer in the pay of the Crown, although not at the present moment 
actual^ employed ; he may be called into active employment again 
whenever his services are required hj the Crown. I think he is within 
the 30th section of the act, and is now liable to dismissal for miscon- 
duct or unfitness for service. 

My Brother Rolfb requested me, before he left the court, to state 
that he is of the same opinion. Bule absolute. 



Judicial Committee of the Privy Council. 1846. 

[Beported 5 Moo. P. C. 219.] 

Appeal from the Supreme Court of Judicature at Madras.' 

Mr. ITindersley, Q. C. and Mr. H. Prendergast., for the appellants. 

Mr. Chilton., Q. C. and Mr. Jenkins, for the respondent. 

The Right Hon. Dr. Lushington. The question in this case arises 
between Messrs. Arbuthnot & Co., who are merchants and bankers 
carrying on business at Madras, and Mr. John Bruce Norton, who is 
the son and executor of the late Sir John David Norton, who was one 
of the Puisne Judges of the Supreme Court of Madras ; and it relates 
to a sum of £2,500, which is pa3'able \>y virtue of the Statute 6th of 
Geo. IV., cap. 85, and which is granted in the following manner (so 
far as relates to this question) : " that when and so often as it shall 
thereafter happen, that anj' Puisne Judge of the Supreme Court of 
Judicature at Madras shall depart this life, while in possession of the 
said office, and after the expiration of six calendar months from 
the time of his arrival in India, for the purpose of taking upon him the 
office of Puisne Judge, then, and in all and ever^' of such cases, the 
Court of Directors shall, and they are thereby required to pay or direct, 
and cause to be paid out of the territorial revenues, from which the 
salary of such Puisne Judge, so dj-ing, should be payable, to the legal 
personal representatives of such Puisne Judge, so dying, as aforesaid, 
over and above what may have been due to such Puisne Judge at the 
time of his death, a sum equal to the amount of six calendar months' 
salary of the office of Puisne Judge." 

The sum on the present occasion, that is equal to the amount of six 
months' salary, is £2,500, and the claim of the appellants is limited to 
that sum ; and the question is, whether, under the circumstances, they 
are entitled to it, within the provisions of this Act. 

Now, it appears that some time anterior to the death of the late Sir 
John Norton, he, for a good and valuable consideration, purported to 
make an equitable assignment of all his right and interest in this £2,500, 
to Messrs. Arbuthnot, in consideration of monies received from them ; 
and the first question is, whether Sir John Norton had the power of 
making such an assignment, or whether, bj' virtue of this Act of Par- 
liament, this fund was destined to go to some other persons, or in some 
other direction. 

With regard to this sum of £2,500, their Lordships are all of opinion, 
that the intention of the legislature was to provide against a contin- 
gency, which had arisen in two or three antecedent instances, and 

' The case 13 sufBciently given in the opinion. 


whicli contingency, in cases to come, is specifically provided for by 
this Act of Parliament, namely, that a person taking upon himself the 
ofl3.ce of a Judge in India, and d3-ing in the possession of the office, 
having been put to great expenses at the time of making his outfit from 
this country to India, might have some certain means, whereby his 
estate would be enabled to be reimbursed that loss, in case of his death 
whilst in oflBce. 

Their Lordships think, that anj- construction of this Statute, which 
would appropriate this fund in an}- other way, would be against the 
whole intention of the legislature. Without saying what might be the 
meaning of the words which I have read, especially the words "legal 
personal representatives," in any other case, and without reference to 
any other context or construction, the only question here is, what is the 
meaning of those words in this Act of Parliament ; and we are all of 
opinion that they mean the executor or administrator of the Judge 
deceased, and that the money is to be taken as part of his general 
assets, and to be administered as such. 

That being so, the second question is, whether it was in the power 
of Sir John Norton to assign this sum of money. 

No question has been raised at all, that if it was in his power, the 
letter, which forms part of these proceedings, is sufficient to constitute 
an equitable assignment. 

Now we consider the £2,600 to have been part of his estate, pre- 
cisely in the same light, and precisel}' of the same description, as if it 
had been a policy of assurance upon his life ; that is to say, a certain 
sum of money to which he would be entitled, upon the contingencj' of 
a certain event ; over which he had complete power of disposition by 
assignment in his hfetime, or by testamentary- disposition, if he thought 
fit to exercise tlie power in that way. 

With regard to the last question, which is a question certainlj- which 
their Lordships have thought deserving of greater attention and con- 
sideration than either of the preceding points that were discussed at 
the bar ; namelj-, whether this assignment is against public policj- or 
not, — we have come to the conclusion that it is not against public 

In giving this opinion, we do not in the slightest degree controvert 
any of the doctrines, whereupon the decisions have been founded, 
against the assignment of salaries by [>ersons filling public offices : on 
the contrary, we acknowledge the soundness of the principles which 
govern those cases, but we think that this case does not fall within any 
of these principles ; and we think so because this is not a sum of money 
which, at any time, during the lifetime of Sir John Norton, could possi- 
blj' have been appropriated to his use, or for his benefit, for the pur- 
pose of sustaining with decorum and propriety the high rank in life, in 
which he was placed in India. We do not see anj- of the evils, which 
are generally supposed would result from the assignment of salar}-, 
could in the slightest degi'ee have resulted from the assignment of this 


sum, inasmuch as during his hfetime his personal means would, in no 
respect whatever, have been diminished, but remain exactly in the same 
state as they were. It is for these reasons, that their Lordships are of 
opinion, that the judgment of the court below was erroneous, and that 
we are under the necessity of reversing that judgment ; but being all 
of opinion that this was a case which it was necessary for an executor 
to have the judgment of a court upon, we think under the special cir- 
cumstances, that the costs on both sides, both here and in India, should 
be paid out of the fund.^ 

1 " I am also of opinion, that there is nothing in the nature of the income which a 
Fellow of this College is entitled to, from which it can be inferred, that his income 
and emoluments are not assignable in equitj', by reason of the»uncertain amount or 
otherwise. The cases of assignment at law, which were cited in the argument are not 

"The question which remains is, whether there are any such duties annexed to the 
situation, or oifice as it was called, of a Fellow, as to make the assignment of the 
income contrary to public policy. The assignment may be contrary to the implied 
intention of the founder of the College, contrary to the spirit of the statutes, which 
are the exponents of the intention of the founder, and may, therefore, expose the 
assignor to consequences very unpleasant to himself, and yery injurious to those who 
have dealt with him on the faith of his assignment, it may be a violation of duty to 
the College, and very reprehensible, without being, for that reason, void as contrary to 
public policy. The advantages to the Fellow which are annexed to the fellowship are 
very great, and when well used by a studious and well conducted Fellow, may secure 
to himself the means of acquiring independence, and to the world some fruits of his 
useful pursuits and distinction in life. But the easy duties which are annexed to it, 
are duties intended for the purposes and benefit of the College, and not for the public, 
otherwise than in a secondary and remote sense, as it is for the benefit of society that 
all lawful contracts are duly executed. The Fellow of a College may be summoned to 
attend ; if he attends he may vote in the election of officers, assist in what the defen- 
dant is pleaseol to call, the due administration of justice between the Fellows, and in 
carrying into due effect the statutes. But the defendant admits, that the Ofiice, situa- 
tion, or post of a Senior Fellow now held by him is not an Office in any way connected 
with the administration of justice, or an ecclesiastical office of any nature or character, 
and that there is not any cure of souls attached thereto, and he not only denies that 
there is any provision in the statutes, rules, or regulations of the College which ren- 
ders it incumbent on him to be resident in the College, but admits that if there be 
any such rule, it has long ceased to be or be considered binding on the Fellows. 

"There is nothing in this case which appears to me, in any degree, to resemble any of 
the cases in which assignments of income have been held void on the ground of public 
policy. The College may deal as the law allows them with a Fellow who has assigned 
his fellowship ; but I am at a loss to conjecture, what special interest the public can 
have in the question whether Mr. Buller does or does not continue to be a Fellow : — 
does or does not hold himself in readiness to perform such slight duties as are annexed 
to the benefits he was intended to enjoy. 

" I do not think that the public is at all concerned in the question, whether Mr. 
Buller continues to be a Fellow or not, whether the fellowship now occupied by liim 
shall, at any time hereafter, be occupied by him or any other person ; and I do not 
propose to interfere in any way with the internal arrangements of the College, with 
their authority over individual Fellows, or with the dividends they may herealte 
apportion in respect of any fellowship. I have to consider only the dividends which 
they now have or hereafter may apportion to Mr. Buller. 

" It appears to me, that he has elTectnally assigned such divi.lends as may be iipiir,.;. 

184 DENT V. DEKT. 

CoxjET OF Probate and Divorce. 1867. 

[Reported L. B. 1 P. & D. 366.] 

The wife had obtained a decree of judicial separation in this case, 
and an order had been made for the payment of £180, being the amount 
of her taxed costs, by the husband. 

Dec. 18. Pritchard moved for a writ of sequestration, on affidavits 
that the costs ha^ not been paid. 

G. Browne, for the respondent, opposed the motion on two grounds : 
first, that a writ of sequestration could not be granted until after an 
attachment had issued ; and, secondly, that the only property of which 
the respondent was possessed was his half-pay as a retired officer of 
the Indian navy, and was not liable to sequestration. 

Pritchard, in reply. It has been the practice of the court to issue 
writs of sequestration without a previous attachment : Clinton v. Clin- 
ton, Law Rep. 1 P. & M. 215. The income of the respondent is a 
pension, and not half-pay. 

The Judge Ordinary. I think the court has power to grant a 
sequestration, although no attachment has been issued. The motion 
must stand over, in order that further affidavits may be filed informing 
the court of the nature of the respondent's income. 

Jan. 29. Pritchard renewed the motion, upon an affidavit setting 
out that information had been received from the Secretary of State for 
India to the effect that the respondent had formerly been a lieutenant 
in the Indian navy, which is now abolished, and that his pension was 
solely in respect of past services, and he was not liable to be called on 
to serve again. The distinction between half-paj' and a pension for 
past services is well understood, and has frequentlj' been acted on. 
Half-pay being partly- in I'espect of future service cannot be sequestered 
for reasons of public policy ; but a pension solely for past services is 
liable to sequestration. 

tioned to him, and that there is no sufficient reason to induce this court to abstain 
from giving effect to such assignment, and therefore I must order, that, for the purpose 
of paying what is due to the plaintiff, the sums of money which have already been or 
may hereafter be apportioned to Mr. BuUer in respect of his fellowship, shall be ap- 
plied In or towards satisfaction of the plaintiff's demand ; and the necessary accounts 
must be taken. 

" I do not mean to direct any account of the income and emoluments of the College 
but only an account of the sums of money which have now or hereafter may be by 
the College appropriated or apportioned to Mr. Buller ; and I will either appoint a 
receiver of such sums as may be hereafter appropriated, or adopt any other mode of 
securing the plaintiff's interest which may be more satisfactory to the College." Per 
Lord Langdale, M. E. in FeiaUl v. King's College, Cambridge, 10 Beav. 491, 506- 


G. Browne. The pension of a military or naval officer is given to 
him not onl^- in respect of past services, but also to enable him to 
maintain his rank and keep up his position in society. It is entitled 
to exemption from sequestration on the same grounds as half-paj-. 

The following authorities were cited ; Daniel's Chancery Practice, 
p. 948, 4th ed. ; Wells v. Foster, 8 M. & W. 149 ; 10 L. .T. (Ex.) 
216 ; McCarthy v. Goold, 1 Ball &, Beat. 387 ; Knight v. Bulkeley, 
4 Jur. N. S. 527, and 5 Jur. N. S. 817 ; Spooner v. Payne, 2 De G. & 
Sm. 439 ; 1 De G. M. & G. 383. Cur. ado. vult. 

The Judge ORDnsTAET. This case stood over that I might look into 
the authorities cited, with reference to the sequestration of a sum of 
money payable to the respondent, who was formerl}' an officer in the 
Indian navy, by way of pension for his past services. The authorities 
show that a distinction is drawn between monej- which is received as 
half-pay, and in respect to some extent of future services, and money 
which is received as a pension solely in respect of past services. The 
distinction appears alwaj's to have been preserved, and the line be- 
tween the two classes of income has been very definitely' drawn in the 
cases cited. The respondent's income is one of the latter class, and 
the sequestration must, therefore, issue.' 


Sdpeeme Court of Wisconsin. 1862. 

{Reported 15 Wis. 75.] 

By the Court, Cole, J.^ This is a motion to quash an alternative 
writ of mandamus. The substance of the relation is, that Judge 
M. M. Cothren, on the 3d day of August, 1861, executed and delivered 
to the Iowa County Bank the following instrument: " $625. Mineral 
Point, August 3, 1861. On the first day of October next, pay the 
Iowa County Bank or order, six hundred and twenty-five dollars, in 

1 In Ee Robinson, 27 Ch. D. 160, the Court of Appeal was inclined to think that 
alimony was not alienable. "We are familiar with instances of allowances which are 
not alienable in the case of men, siich as the half-pay of the officers in the army and 
navy, which are given them in order that they may maintain themselves in a sufficient 
position in life to enable them to be called out for future service if required. Although 
alimony is not the same thing, it is governed by the same principle. Alimony is an 
allowance which, having regard to the means of the husband and wife, the court 
thinks right to be paid for her maintenance from time to time, and the court may 
alter it or take it away whenever it pleases. It is not in the nature of property, but 
only money paid by the order of the court from time to time to provide for the main- 
tenance of the wife, therefore it is not assignable by the wife." Per Cotton, L. J. 
p. 164. 

'^ The case is sufficiently stated in the opinion. 


full for my quarter's salary commencing on that daj', and oblige M. M. 
Cothren. To S. D. Hastings, State Treasurer of Wisconsin : " and 
that the Iowa County Bank, for value, indorsed and delivered the same 
to the relator, The State Bank. The relation states that the quarter's 
salary of Judge Cothren became due on the 1st of October last, and 
was certified by the secretarj- of state to the respondent, the state 
treasurer ; that the same remains unpaid, and that the respondent has 
neglected and refused to paj' the amount thereof to the State Bank, 
though he has sufficient funds in his hands applicable to that purpose. 
The writ is issued to compel the state treasurer to pay to the State 
Bank the sum of six hundred and twent^'-five dollars. It is admitted 
that the state treasurer refused to pay the sum to the State Bank on 
the instrument above described, for the reason that Judge Cothren 
wrote him a letter previous to the first daj^ of October last, forbidding 
its payment. 

The single question arising upon the motion is : Does the relation 
state such facts as show that the State Bank is entitled to the amount 
of money, and to a writ of mandamus to compel the respondent to paj- 
it over on the order ? 

It is conceded on both sides that the order is not in the nature of 
a bill of exchange, and that the legal incidents of negotiable paper do 
not belong to it. The order is drawn upon a particular fund, and its 
paj-ment depended upon such contingencies as to deprive it of that 
character. What then is the nature and effect of the order ? 

In support of the motion it is argued that the instrument is merely 
a written authoritj' given to the Iowa County Bank to draw for Judge 
Cothren his quarter's salary falling due on the 1st of October, 1861, 
with the power of substitution, but that this authority was revocable 
at pleasure, and did not operate as an assignment to the holder, of the 
particular fund upon which it was drawn. We deem this an erroneous 
view of the nature and effect of the order. We think it was an assign- 
ment by Judge Cothren of the quarter's salar}' in question to the Iowa 
County Bank, and that the money became payable to such bank, or to 
its order, according to the terms of the instrument. This position is 
fully sustained by the cases to which we were referred on the argument 
by the counsel resisting the motion to quash, as well as the following 
additional authorities : Morton v. Naylor, 1 Hill, 583 ; Peyton v. 
Hallett, 1 Caines, 363; McLellan^. Walker, 26 Maine, 114; Legro 
V. Staples, 16 Maine, 252 ; Nesmith v. Drum, 8 W. & S. 9 ; Blin v. 
Pierce, 20 Vermont, 25 ; Brooks v. Hatch, 6 Leigh, 534 ; Mulhall v. 
Quinn, 1 Gray, 105 ; JTartley v. Tapley, 2 id. 565 ; Taylor v. Lynch, 
5 id. 49 ; Lannan v. Smith, 7 id. 150. The quarter's salary' of Judge 
Cothren which became due on the 1st of October, 1861, was a possi- 
bilitj' coupled with an interest, and as such capable of being assigned. 
Brackett v. Blake, 7 Met. 335. Chancellor Kent says, that it is 
sufficient that the thing contracted for has a potential existence, and 
that a single hope or expectation of means founded on a right in esse. 


maj' be the object of sale, as the next cast of the fisherman's net, or 
fruits or animals not yet in existence, or the good will of a trade. 2 
Kent, Lecture 39, page 602, 8th ed. The future earnings of a party 
to a contract may be assigned {Hartley w. Tapley ; Taylor v . Lynch ; 
Lannan v. Smithy supra) ; or rents to become due {Morton v. Naylor, 
supra) ; while in Brackett v. Blake, and Mulhall v. Quinn, the 
court say : " If a party is under an engagement for a term of time, to 
which a salary is affixed, payable quarterly, especially if he has entered 
upon the duties of his office, although at anj- time liable to be removed, 
he has an interest which maj' be assigned." 

We cannot see why this doctrine is not strictly applicable to the case 
at bar. It is true we were referred to some English cases, which 
held that the assignment of the pay of officers in the public service, 
judges' salaries, pensions, &c., was void, as being against public pol- 
icj' ; but it was not contended that the doctrine of those cases was 
applicable to the condition of soeietj', or to the principles of law or of 
public policj- in this country-. For certainly we can see no possible 
objection to permitting a judge to assign his salary before it becomes 
due, if he can find anj' person willing to take the risk of his living and 
being entitled to it when it becomes payable. 

Assuming that the instrument operated as an assignment of the 
salary to tlie Iowa County Bank or its assignee, still it is insisted the 
writ should be quashed on several grounds. 

First, it is said the order should be presented to the secretary of state, 
to be audited and allowed. This we deem unnecessary. The quarter's 
salarj^ due Judge Cothren on the 1st of October, 1861, was undoubtedly 
audited — if such a ceremony can be necessarj' — and certified to the 
treasurer as stated in the relation. This is the invariable practice of 
the state auditor. The order merelj- showed that this quarter's salary 
belonged to the State Bank. And this order was undoubtedly all the 
voucher or receipt which the treasurer might require, to show that he 
had paid the quarter's salary to the person to whom Judge Cothren had 
sold and assigned it, and who was authorized by Judge Cothren to 
receive the same. 

Again, it is said that the proceeding by mandamus is peculiar, and 
that the writ will not lie when the party applying for if has any other 
adequate remedy. This is undoubtedly a correct proposition of law. 
But what remedy has the State Bank against the respondent? It is 
his duty to pay over money on appropriations to the party entitled to 
the same. He would probably have paid over to the State Bank the 
quarter's salary on this order, had he not been forbidden by Judge 
Cothren to do so. Still we hold that Judge Cothren has no right to 
stop the payment of the salary, having sold and transferred his interest 
in the fund to another. It then becomes the duty of the treasurer to 
pay it to the State Bank. It would not be contended that the treas- 
urer would not be compelled by mandamus to pay the salary to Judge 
Cothren, had he not assigned it. Why then should he not be required 


by the same proceeding to pay the fund to the person whom Judge 
Cothren has clothed with his rights over it and authorized to receive 

The motion to quash the writ must be denied. 

If the respondent desires to put in an answer, he can do so by filing 
the same within twenty days.-* 

B. Champerty. 

ExCHEQTTEE. In Equitt. Before Lord Abinger, C. B. 1835. 

[Seported 1 Y. k C. Ex. 481.] 

The Lord Chief Baron. ^ The point which, in this case, presents 
the greatest difficult}', is that which relates to the interest which Robert 
Todd had in the annuity fund, and which he assigned to these plaintiffs. 
No complaint is made in the bill of the misapplication of that fund, but 
it is insisted that the plaintiffs have a right to have their interest recog- 
nized distinctly in the reversionary portion of that fund. I incline to 
think that that interest is sufficiently disclosed to make the demurrer to 
the whole bill bad. 

With respect to the question as to the validity of an assignment of a 
right to file a bill in equity, I must distinguish between this sort of case 
and the assignment of a chose in action or equity of redemption. It 

1 See Brackett v. Blake, 7 Met. 335, accordingly. The conclusion reached in the 
case of State v. Hastings, and Brackett v. Blake, is declared in Billings v. O'Brien, 45 
How. Pr. 392, 402, "erratic and unsatisfactory, and furnishes no substantial ground 
for rejecting the authority of the long line of decisions referred to, that establish the 
invalidity of the assignment of the accruing salary of a public officer, as against public 

" Any pledge, mortgage, sale, assignment, or transfer of any right, claim, or interest 
in any pension which has been, or may hereafter be, granted, shall be void and of no 
effect ; and any person acting as attorney to receive and receipt for money for and in 
behalf of any person entitled to a pension shall, before receiving such money, take and 
subscribe an oath, to be filed with the pension-agent, and by him to be transmitted, 
with the vouchers now required by law, to the proper accounting officer of the Treasury, 
that he has no interest in such money by any pledge, mortgage, sale, assignment, or 
transfer, and that he does not know or believe that the same has been so disposed of to 
any person. 

" No sum of money due, or to become due, to any pensioner, shall be liable to attach- 
ment, levy, or seizure by or under any legal or equitable process whatever, whether the 
same remains with the Pension-Office, or any officer or agent thereof, or is in course of 
transmission to the pensioner entitled thereto, but shall inure wholly to the benefit of 
such pensioner." — U. S. Rev. Sts., §§ 4745, 4747. , 

^ The case is sufficiently given in the opinion. 


may be said that the assignment of a mortgaged estate is nothing more 
than an assignment of a right to file a bill in equity. But the equitj' of 
redemption arises out of an interest, though only a partial interest. 
Courts of law and equity treat the mortgage as a mere security-, and 
there is an interest left in the mortgagor, which he may assign. But, 
in a case where a party assigns his whole estate, and afterwards makes 
an assignment generally of the same estate to another person, and the 
second assignee claims to set aside the first assignment as fraudulent 
and void, the assignor himself making no complaint of fraud whatever, 
it appears to me that the right of the second assignee to make such a 
claim would be a question deserving of great consideration. Mj- pres- 
ent impression is, that such a claim could not be sustained in equity, 
unless the party who made the assignment joined in the prayer to set it 
aside. In such a case a second assignment is merelj' that of a right to 
file a bill in equity for a fraud ; and I should say that some authority 
is necessary to show that a man can assign to another a right to file a 
bill for a fraud committed upon himself. I own, however, that in the 
present case there is considerable difficultj' arising from the reversionary 
interest which Robert Todd had to assign ; and the question is, whether 
the bill is so framed as to entitle tiie plaintiffs to any equity on that 

With respect to the other points which have been raised, I think 
that "William Todd, having assigned his interest to his brother, is not a 
necessary party to this suit. As to Jones, who was a party to the deed 
of assignment, there is some doubt. 

Upon the whole, if I were called upon to decide this case now, I 
should decide against the demurrer on the narrow ground that there 
was, at the time of the assignment to the plaintiffs, a subsisting inter- 
est in Robert Todd, which did not pass to Edmonds. But the case 
deserves further consideration. 

The Lord Chief Bakon. The testator, after bequeathing certain 
annuities to various persons, directed that his real and personal estate 
should be sold by his executors, Edmonds and Hughes, and divided 
into three parts. His daughter, the wife of Edmonds, was to have one 
part; and, from the remaining two parts, she was to take £10,000, 
and the residue was to be divided between his two sons, Robert and 
William Todd ; and he states, as his reason for giving his daughter a 
larger portion, that he had made advances to his two sons in his life- 
time. He then specifies certain real estates, of which he gives the 
right of pre-emption to William Todd, and other estates, of which he 
gives the right of pre-emption to Robert Todd ; and then he gives his 
daughter a right of pre-emption of any part of the residue; so that, 
•with the exception of the two parts specifically appropriated to William 
and Robert Todd, if they chose to purchase them, his daughter had a 
right, if she chose, to purchase the whole. 


The testator soon afterwards died. The two executors proceeded to 
administer his personal estate, and made sale of the real estate ; and 
Edmonds, in right of his wife, purchased part of the real estate : though 
what part in particular was purchased by him is not specified ; nor 
does it appear by the bill that he was the purchaser of anj' part of that 
of which the sons had a right of pre-emption. There was then a settle- 
ment of accounts, and there is a particular account annexed to the bill, 
and referred to ; and, upon an inspection of that account, and from the 
circumstances stated in the bill, it appears that Edmonds had made 
pa3-ments from time to time to Robert and William Todd. These mat- 
ters were then adjusted, and the balance due to the brothers was paid 
to them ; and, up to that time, thej- acknowledged that the accounts 
were fully settled. Afterwards, both brothers executed releases to 
Edmonds and Hughes, the executors. 

There are many conveyances and deeds set forth in the bill, but it is 
not necessary to particularize all of them, because those on which the 
question turns are few. The executors set apart a considerable sum of 
stock to answer the annuities bequeathed by the will, and the bill makes 
no complaint of that appropriation. They did no more than would be 
decreed to be done bj' this court, or any court of equity- having the 
disposal of the testator's estate. By the release of 1829, Robert Todd 
purchased all the interest of his brother, William Todd ; and, by other 
instruments, executed in 1830, his interest stood thus : that, with the 
exception of the reversionary interest which Robert Todd had in those 
sums which had been invested in the funds for payment of the an- 
nuities, he had, in consideration of a certain sum, and further sums 
which Edmonds had lent him, assigned to Edmonds the whole of his 
interest in his father's residuary estate, and also the whole interest of 
William Todd, which he had purchased. The whole of the accounts, 
therefore, had been settled, and the whole of the interest of Robert and 
William Todd vested in Edmonds in 1830. Matters remained so until 
the j-ear 1833. By an instrument executed in that year, Robert Todd, 
having borrowed a sum of money of Messrs. Williams, the bankers, for 
securing to them the repayment of that sum, assigned to them the 
reversionary interest in the one-third part of the annuity fund, to which 
he had a right. By another deed, executed soon afterwards, it appears 
that, conceiving he had still an interest in other parts of the property, 
he assigned to Williams & Co. all his interest in his father's residuai-y 
personal estate, upon trust, that what money they should receive 
should be held for his benefit. The next deed of importance is exe- 
cuted in 1834, to which those bankers and Robert Todd were parties, 
and also the executors. By this deed Williams & Co., at the request of 
Robert Todd, released to Edmonds and Hughes that claim in the resi- 
duary interest which he had assigned to them ; so that it appears that, 
for the second and last time, in May, 1834, the whole interest of 
Robert and William Todd was vested in the defendant Edmonds. 

The bill states misconduct in the executors in administering the tes- 


tator's estate. It charges imposition and misrepresentation as made to 
Todd, to induce him to sign the release and settle that account. It 
makes a case, which might be a case for Robert Todd to file a bill to 
call on the executors to acquit themselves by answer of the representa- 
tions of fraud and concealment practised upon him. But still he had 
nothing but a naked right to file a bill in equity — no legal right — no 
equitable interest, except a reversionary interest in those sums of 
mouej-, out of which the annuitants were paid. If he had a right to 
file a bill at all, it was a naked right not clothed with any possession. 

Under these circumstances, the plaintiffs come upon the stage. In 
September, 1834, a deed was executed by Robert Todd to the plaintiffs. 
[His Lordship then stated the deed.] The plaintiffs, under color of 
this convej-ance, have filed the present bill, in which they call on the 
executors to answer for their proceedings in the administration of 
the testator's estate — by which thej' seek of the court to set aside the 
deeds of conveyance from Todd to Edmonds — to annul the purchase 
by Edmonds of any portion of the real propertj' of the testator — and 
generally for an account ; and they ground themselves on representa- 
tions stated to have been falsely made to Robert Todd, to induce him 
to enter into these arrangements. All that is material to the question 
is raised by the bill, to which Robert Todd is made a defendant, who 
had no complaint to make, and who refused to be a plaintiff. 

The defendants, Edmonds and Hughes, have demurred to the bill on 
three grounds. One ground of demurrer is, that the scheduled credi- 
tors of Robert Todd are not parties ; and another is, that William 
Todd is not a partj'. I do not find anj' case from which it appears that 
the mere circumstance of a creditor being interested in the administra- 
tion of an estate, makes it necessary that he should be a party to a bill 
like the present. The mere engagement by a person to pay the credi- 
tors, if he gets in the fund, will not make them parties to any contract 
for their payment ; though, no doubt, where the creditors are parties to 
and interested in a contract of that nature, they must be made parties 
to a bill for carrying that contract into effect. Therefore, the demurrer 
would be well if confined to the fact that Jones is not a party ; for he 
was a partj' to the deed, and entered into an engagement under seal 
with the plaintiffs, by which it is plain that they are bound. The other 
creditors are named in the schedule, but there was no contract bj' 
which they are parties. 

The omission to make William Todd a party is not a ground for 
allowing the demurrer. He parted with his whole interest to Robert 
Todd, and there is no imputation of fraud as between those two per- 
sons, and no suggestion that William Todd had any ulterior interest 
whatever. It is not the object of the bill to bring before the court any 
question as to the money in the funds ; and, therefore, any interest 
which William Todd has in that is undisturbed. He has no interest in 
any question here. He is, therefore, not a necessary party. 

The remaining cause of demurrer, namely, that the plaintiffs have no 


right to equitable relief, raises an important and curious question, 
which is this — whether or not parties who either become purchasers 
for a valuable consideration, or who take an assignment in trust of a 
mere naked right to file a bill in equity, shall be entitled to become 
plaintiffs in equity in respect of the title so acquired. Now, in the 
course of the argument, it was urged that an equitable as well as a 
legal interest may be the subject of conveyance, and that the assignee 
of a chose in action may file a bill in equity to recover it, though he 
cannot proceed at law for that purpose. But where an equitable inter- 
est is assigned, it appears to me, that in order to give the assignee a 
locus standi in a court of equity, the party assigning that right must 
have some substantial possession, some capabilit}' of personal enjoy- 
ment, and not a mere naked right to overset a legal instrument. For 
instance, that a mortgagor who convej^s his estate in fee to a mort- 
gagee, has in himself an equitable right to compel a reconveyance, 
when the mortgage-money is paid, is true. But that is a right reserved 
to himself by the original security ; it is a right coupled with possession 
and receipt of rent ; and he is protected so long as the interest is paid ; 
and it does not follow that the assignee of the mortgage and the mort- 
gagee may not adjust their rights without the intervention of a court 
of equity. In the present case, it is impossible tliat the assignee can 
obtain any benefit from his security, except through the medium of the 
court. He purchases nothing but a hostile right to bring parties into 
a court of equity, as defendants to a bill filed for the purpose of 
obtaining the fruits of his purchase. 

So, where a person takes an assignment of a bond, he has the pos- 
session ; and, though a court of equitj' will permit him to file a bill on 
the bond, it does not follow that he is obliged to go into a court of 
equity' to enforce payment of it. So, other cases might be stated to 
show, that where equity recognizes the assignment of an equitable 
interest, it is such an interest as is recognized also by third persons, 
and not merely by the party insisting on them. 

What is this but the purchase of a mere right to recover? It is a 
rule — not of our law alone, but of that of all countries, Voet. Comm. 
ad Pandect, lib. 41, tit. 1, sect. 38, that the mere right of purchase 
shall not give a man a right to legal remedies. The contrary- doctrine 
is nowhere tolerated, and is against good policy. All our cases of 
maintenance and champerty are founded on the principle that no encour- 
agement should be given to litigation by the introduction of parties to 
enforce those rights which others are not disposed to enforce. There 
are msmj cases where the acts charged may not amount preciselj' to 
maintenance or champerty, yet of which upon general principles, and 
by analogy to such acts, a court of equity will discourage the practice. 
Mr. Girdlestone was so obliging as to furnish me with a case, that of 
Wood V. Doienes, 18 Ves. 120, in which it appears to me that the 
principle laid down by Lord Eldon goes the full length of supporting 
the judgment of allowing this demurrer. That was a bill filed to set 


aside certain convej^ances, whicli it was alleged were obtained by the 
defendant, in consequence of his situation of solicitor to the plaintiffs, 
the estate comprised in the convej-ance not being in their possession at 
the time, but subject to litigation. Lord Eldon, in decreeing relief, 
adopted not only the ground that the party was the solicitor of the 
plaintiffs, but that the transaction was contrary to good policy. He 
said — " The objection, therefore, is not merely that which flows out of 
the relation of attorney and client, but upon the fact that this was the 
purchase of a title in litigation, with reference to the law of mainte- 
nance and champerty ; " and he accordingly decreed the conveyance to 
be set aside, on the ground of litigated title. 

Here the proceeding is the converse of that in Wood v. Downes. It 
is not to set aside the conveyance in question, but to establish it. The 
principle is the same in both cases ; for if, under the present circum- 
stances, Robert Todd had filed his bill against the plaintiffs, I should 
have declared it to be a void deed, and should have ordered it to be set 
aside. Upon the same facts, therefore, I ought to refuse to establish 
the deed in their favor. 

But the case does not rest here. There is a short but useful statute, 
which it is proper to refer to, that of the 32 of Hen. 8, c. 9, which is a 
legislative rule on the subject, and consistent with general policy and 
the principles of courts of law and equity. Under that statute, if the 
person who parts with his title has not been in actual possession of the 
land within a year before the sale, he, as well as the buyer, is liable to 
the penal consequences of the act. I do not say that that is precisely 
the case here, because the conveyance purports to contain an ulterior 
trust for the party assigning, and, therefore, an action could not be 
br'ought against him on the statute. At the same time, it is to be 
observed, that, from many cases in Anderson and Coke, it appears 
that courts of common law were favorable to actions on the statute, 
considering them to be highly beneficial, and not without good cause to 
be restrained. 

It has been the opinion of some leai'ned persons, that the old rule of 
law that a chose in action is not assignable, was founded on the princi- 
ple of the law not permitting a sale of a right to litigate. That opinion 
is to be met with in Sir William Blackstone and the earlier reporters. 
Courts of equitj-, it is true, have relaxed that rule, but only in the 
cases which I have mentioned, where something more than a mere 
right to litigate has been assigned. Where a valuable consideration 
has passed, and the party is put in possession of that which he might 
acquire without litigation, there courts of equity will allow the assignee 
to stand in the right of assignor. This is not that case. Robert Todd, 
when he assigned, was in possession of nothing but a mere naked right. 
He could obtain nothing without filing a bill. No case can be found 
which decides that such a right can be the subject of assignment, either 
at law or in equity. 

The case itself is a strong illustration of the doctrine, that to encour- 


19 i HILL V. BOYLE. 

age such transactions as the present is contrary to good policy. I do 
not know who the plaintifTs are ; possibly they are attorneys. Suppose, 
then, that this party having an interest under this will, and having set- 
tled all his rights, assigns all his interest for a valuable consideration ; 
if he be at liberty afterwards, by another assignment, to create a new 
trustee for himself, and can give the trustee a right to bring the matter 
into litigation, if that trustee is an attorney, and the court of equity 
entertains the suit, what is the result? That all the funds must be 
brought into court ; and, as he stands in the situation of trustee, all 
the expense of litigation must be paid out of the fund ; so that he 
receives an advantage out of the litigation itself This is not the 
policy of the law, and yet if this assignment be good as regards the 
plaintiffs, so as to enable them to administer the fund over again, it is 
equally good if the trustee happens to be an attornej'. 

Upon these principles it appears to me, that this is a case of a pur- 
chase of a litigated title. Many cases are to be found to the effect, 
that where the title actually is in litigation, an agreement to divide the 
subject of dispute is not available in equit}'. But the policj' of the law 
is not confined to those cases onlj'. Demurrer allowed. 

Mr. Simpkinson and Mr. Koe, for the demurrer. 

Mr. S. Qirdlestone and Mr. Bethell, for the bill.i 


Chakcert. 1867. 

[Reported L. R. i Eq. 260.] 

Francis Hill (the uncle), by his will, dated the 28th of March, 
1835, having made a provision for his wife, devised to Thomas Bate 
and William Robins, their heirs and assigns, certain freehold lands at 
the Lye, upon trust, at their discretion, to sell the mines and minerals 
Ij-ing under the said land for the best prices that could be obtained, and 
he empowered his trustees to lease such parts of the surface of the said 
land as should be requisite for working the same ; and the testator de- 
clared that the said trustees, or other the trustees for the time being 
acting under his will, should stand and be possessed of all and singular 
the moneys to arise from the sale of the said mines and minerals and 
ores, upon trust to place out and invest the same in their names in some 
or one of the parliamentarj' or public stocks or funds of Great Britain, 
or in or upon government or real securities, and from time to time, at 
their discretion, to call in, sell, or dispose of, the stocks, funds, or se- 
curities, in or upon which the same trust monej's, or any part thereof, 
should for the time being be invested, and to place out and invest the 

1 See Dickinson v. Burrell, L. R. 1 Eq. 337. 


same again in, or upon, new or other stocks, funds, or securities of the 
lilie nature, until the same should become pa_yable or transferable pur- 
suant to the directions of his will ; and upon trust during the life of 
testator's nephew, Francis Hill (the plaintiff), to pay the interest, divi- 
dends, and annual proceeds of all and singular the said trust moneys, 
stocks, and securities, when and as the same should come in and be re- 
ceived, unto the said Francis Hill for his life. The testator then de- 
clared certain trusts, subsequent to the deatli of Francis Hill, in favor 
of his children. He died on the 4th of April, 1835, leaving his trustees. 
Bate and Robins, him surviving, and his will was proved by his execu- 
tors, T. Pergeter and W. B. CoUis. 

By an indenture, dated the 23d of March, 1837, the trustees sold the 
mines, by way of lease for fourteen years renewable for the same term, 
to Francis Eufford, for £7,000, Eufford paid £2,000 at once, and 
£1,000 a year for five years. In 1848, the plaintiff mortgaged, with 
power of sale, his life estate to James Fisher, who, by indenture dated 
the 4th of October, 18.58, sold the life estate to James Tree, and, by a 
deed dated the 8th of October, 1858, Tree mortgaged the life estate to, 
Johnson. Bate died on the 13th of October, 1846, and Robins in 
July, 1860. 

By an indenture, dated the 25th of March, 1861, between James Tree, 
of the city of Worcester, and James Fisher, of Cheltenham, of the one 
part, and Francis Hill (the plaintiff) of the other part, reciting that Hill 
became entitled, under his uncle's will, to a life estate in the interest 
and dividends of divers sums of money and securities, and in the inter- 
est of a sum of money to arise from the sale of minerals, and directed 
to be laid out in the names of the executors, and reciting that by virtue 
of several indentures the said life estate and interest in the said money 
became vested in the said James Fisher, and that the said James 
Fisher had since sold and assigned his interest to James Tree, but the 
whole of the purchase-money had not been paid ; and reciting that at 
the date of the assignment to Fisher from Hill, Hill considered and 
stated that there was a considerable arrear of interest due to him from 
the executors and trustees acting under his uncle's will, but which ar- 
rears neither Fisher nor Tree would attempt to recover ; and reciting 
that Hill had requested Tree and Fisher to release, assign, and give up 
to him, the said Hill, all arrears of interest due from the executors and 
trustees of the will of his uncle that accrued prior to the 1st of January, 
1861, and were still unpaid, which thej-, the said Fisher and Tree, had 
agreed to do : It was by the said indenture witnessed, that in pursuance 
of the said agreement, and in consideration of five shillings paid to Tree 
and Fisher on the execution of the now stating indenture, they, the 
said Tree and Fisher, and each of them, did thereby release, assign, 
and give up to the said Hill, his executors, administrators, and assigns, 
all the arrears of the interest, dividends, and annual produce, which, 
previous to the 1st of Januarj', 1861, arose from, or ought to have been 
paid upon, all or any part of the said real and personal estate of the 


said Francis Hill, the uncle, and to which the said Hill was entitled, 
subject to the mortgages thereon held by the said James Fisher, as 
owner of the life estate therein under the will of the said Francis Hill, 
the uncle. Then followed the general words, with a habendum for 
Hill's absolute use and benefit, and power to sue for and recover the 

The plaintiflf", on the 21st of April, 1865, filed this bill against the 
defendants, who were the representatives of the trustees, setting forth 
the will of the testator and the mortgage deeds, alleging that instead of 
investing the monej's from time to time, as thej- were received, in the 
manner directed b}- the will, the trustees used the moneys, or part of 
them, in their business of bankers, and lent such mone^ys at a high rate 
of interest to their customers and others, and made large gains there- 
with ; that they suppressed these facts from the plaintiff and his mort- 
gagees, and paid them only a small rate of interest, aud much less than 
the amount received by them ; and that some of the securities alleged 
to have been taken for parts of the fund were, in fact, taken for debts 
due to the said T. Bate and W. Robins. The bill alleged that the 
plaintiff made numerous applications to the trustees, and to the sur- 
viving trustee, for an account of the investments, but without effect, 
and from his inability to obtain -an account became embarrassed in 

The plaintiff charged that a considerable sum was due and owing in 
respect of the dividends and interest, gains and profits, upon and in re- 
spect of the said trust moneys, up to the 1st of January, 1861, and that 
so it would appear if the defendants set forth proper accounts. The 
plaintiff further charged that Bate and Robins made up their accounts 
with their customers with half-j^early rests, according to the custom of 
bankers, and that he was entitled to have the account taken in the 
same manner. He further charged that he had been unable to prosecute 
his claim earlier for want of pecuniary means. The bill prayed for 
an inquiry as to the securities on which tlie said sum of £7,000 was in- 
vested up to the 1st of January-, 1861, and of the dividends and interest, 
gains and profits, produced thereb3', and that it might be declared that 
the plaintiff was entitled to be paid the same, or, at his option, £5 per 
centum on the said last-mentioned trust moneys from time to time in 
the hands of the trustees, or the survivor, or of the executors, or of any 
banking firm of which they were members, after giving credit for all 
moneys paid on account, and that the defendants (other than the mort- 
gagee) might be decreed to pay the same out of the testator's assets. 

Mr. Dickinson, Q. C, and Mr. W. Morris, for the plaintiff, stated 
the case to the court. 

The Vioe-Chancellor. Have you any precedent for 'a bill of this 
description ? 

Mr. Dickinson. None is necessary. The plaintiff sues as assignee 
of a sum of money uncertain in amount at present, but ascertainable on 
an account taken, which is due from the defendants by the rules of this 


court. Suppose there had been no mortgage, it is quite clear the plain- 
tiff would be in a position to maintain the suit. Then go one step fur- 
ther, suppose the mortgagee were plaintiff, it was equally clear that the 
suit would be properly constructed, though, perhaps, in the result 
nothing might be found due. Then why cannot the assignee of these 
moneys from the mortgagee maintain the suit which his assignor could 
maintain as a matter of course. 

It is submitted, therefore, that the plaintiff is entitled to the decree 
asked by the bill. 

Mr. Bacon, Q.C., Mr. Speed, Mr. Greene, Q. C, and Mr. Hallett, 
for the representatives of the trustees, and Mr. Bagshawe for the mort- 
gagee, were not called on. 

Sir John Stuart, V. C. I can recollect no case like the present. 
The plaintiff does not sue as assignee of the trust estate, or of any part 
of it. He is assignee of nothing but of a right to sue the trustee for the 
chance of recovering from him interest or profits of part of the trust 
funds, which were, for a certain period, in his hands. In my opinion 
such an interest is not assignable, nor a suit in respect of it maintain- 
able in this court. The cestuis que trust, declining themselves to in- 
stitute proceedings for an alleged breach of trust, have, in consideration 
of five shillings, assigned the moneys recoverable in respect thereof to 
the plaintiff. 

The bill must be dismissed with costs. 


Supreme Court of New York. 1837. 

[Reported 19 TVend. 73.] 

A WRIT of alternative mandamus having issued, commanding the 
Tioga C. P. to vacate a rule between Jesse Thomas, plaintiff, and 
James Lounsberry, defendant, denying a motion made to vacate the 
entry of satisfaction acknowledged by Thomas and to grant the motion : 
the Common Pleas returned, that at the July term, 1836, of that court, 
I'homas recovered a verdict of $550 damages against Lounsberry in an 
action on the case for debauching the plaintiff's servant, and that judg- 
ment was duly satisfied of record on a satisfaction piece acknowledged 
by him ; that on a motion made to vacate the satisfaction, it appeared 
that on the 18th of February, 1836, the plaintiff executed a sealed 
power of attorney to the relator, reciting that the defendant had 
debauched the relator's step-daughter while she resided with the plain- 
tiff, and that she had returned home to the house of the relator, where 
she was likely to occasion him additional expense and trouble, and 
authorizing the relator to prosecute Lounsberry in the plaintiff's name 
— ha, the relator, to keep the plaintiff harmless from all damages, costs 


and charges. Of the contents of this paper, the defendant had full 
notice before the verdict, which was the fruit of the prosecution men- 
tioned in the power of attorney. Notwithstanding this, the Common 
Pleas denied the motion to vacate the satisfaction. A motion was now 
made for a peremptory' mandamus. 

M. T. Reynolds, for the relator. 

S. Stevens, contra. 

Sy the Court, Cowten, J. The questions are, 1. Whether, admitting 
this claim for the wrong done to Thomas to be assignable, the sealed 
instrument was operative as an assignment ; and 2. If so, whether 
such a claim be assignable. 

Looking at the facts recited in the power of attorney and the pro- 
visions to save Thomas harmless, no one can doubt that the -object and 
intent of the power of attorney was to assign all Thomas' interest to 
Stanton, the relator, to whom in conscience it belonged. He was the 
real sufferer, and the plaintiff did a just and generous act in giving such 
a power. No two persons can understand it in different waj's. It 
says, " because the defendant has probably brought disgrace upon the 
relator, with probable expense, I empower him to prosecute in my 
name, at his own expense. Witness my hand and seal." This is but 
another mode of saying, under seal, "You may receive to your own 
use the avails of the suit as an indemnity for your moral injury," &c. 
The words, "I do hereby authorize him to prosecute in mj' name," 
when viewed in connection with the reason and motives, and at whose 
expense, are equivalent to a covenant that the assignee might prosecute 
availablj- to himself. It is like an irrevocable power of attorney, 
which, in the case of an ordinary chose in action operates as an assign- 
ment, and a power of attorney for a consideration is irrevocable. Per 
Lord Eldon in Bromley v. Holland, 7 Vesej', 28. Per Kent, J., in 
Bergen v. Bennett, 1 Caines' Cas. in Err. 15, 16, 17. The costs, 
time and other charges of such a prosecution were, it seems, actually 
incurred by Stanton. The}^ are many times verj' great in this kind of 
action ; at anj- rate, they make a valuable in addition to the moral con- 
sideration : no matter what the amount. Suppose the paper had said, 
' ' in consideration of one dollar to be paid," which had been afterwards 
advanced. The slightest consideration is sufficient, either of benefit to 
the assignor or damage to the assignee. Surely, something more than 
the mere burthen of a suit for Thomas' benefit was intended. The con- 
trary would be a very absurd construction. Suppose Stanton had got 
the money, could Thomas have recovered it of him ? I should think 
not a cent of it. 

I regret to think, however, that the relator has mistaken his remedy, 
in moving to vacate the satisfaction entered upon the record. Gardner 
V. Adams, 12 Wendell, 297, 299, is cited and relied upon bj' the coun- 
sel for the defendants ; but the question is not whether this demand be 
transferable so as to pass the legal right. Matters in action are never 
so transferable, unless they arise on certain commercial instruments. 


As a general rule, however, a chose in action is said to be assignable in 
equitj' ; and when assigned with notice to the person from^hom it is 
due, courts of law protect the assignee against all prejudice from the 
acts of the assignor. 

Chose in action, taken in its broadest latitude, comprehends not 
only a demand arising on contract, but also on wrong or injury to the 
property or person. 2 Woodd. Lect. 387 ; Toml. Law Diet. Chose ; 
Lilly's Abr., Chose in Action. But for the purposes of any sort of 
assignment, legal or equitable, I can nowhere find that the term has 
ever been carried bej^ond a claim due either on contract, or such where- 
bj' some special damage has arisen to the estate of the assignor. Exec- 
utors at law take every thing belonging to their testator which can be 
considered as property-, or form the subject of dealing in any way. By 
the equitable construction of a statute, they shall take rights of suit for 
such injuries to the testator's personal property as render it less valu- 
able to the executor. 1 Williams' Ex. 507-513. Their right to all 
demands arising on contract, especially, is very comprehensive ; and 
yet, even thej' cannot sue for the breach of a marriage promise made 
to their testator, where no special damage is alleged, because the claim 
is in nature of a personal wrong. Chamberlain v. Williamson, 2 
Maule & Sel. 408, 415. Lord EUenborough there said, if such an 
action were maintainable by the executors, every action founded on an 
implied promise to the testator, where the damage subsists in his per- 
sonal suffering, would also be maintainable ; and among them, for all 
injuries affecting the life and health of the deceased, all such as arise 
out of the unskilfulness of medical practitioners, and the imprisonment 
of the partj' brought on by the negligence of his attorney, &c. 

The object and policj' of the law is, that executors and administra- 
tors should take as far as possible every thing wearing the semblance 
of personal property in the testator or intestate, as a part of the assets 
or fund to pay debts. The same object is aimed at by bankrupt and 
insolvent acts, which declare what shall pass to commissioners, trus- 
tees, and assignees. Such statutes are very broad in their terms. 
Estate or effects is used in the English statute, 1 Cooke's Bank Law, 
261 ; Property, real, personal, and mixed, in that of Penns3-lvania, 
Ingr. on Insolvency, 50, and AU the estate, real and personal, of every 
nature and description, in the bankrupt law of the United States, 
1 Peters, 218. Yet I have not been able to find any case in England 
which, in respect to personal estate, has given the assignees a greater 
right than would go to an executor : none which vests in them a right 
of action for a personal tort, or indeed an}' other mere tort, while there 
are several cases in Pennsylvania which deny that such a right will 
pass. In Somner v. Wilt, 4 Serg. & Rawle, 19, 28, the claim was for 
an abuse of legal process against the plaintifTs goods. Duncan, J., 
said the claim was neither estate, credit nor effects. The action is per- 
sonal, and would die with the person. In North v. Turner, 9 Serg. & 
Rawle, 244, a trespass de bonis asportatis was put by the court as an 


exception, because it affected the bankrupt's propertj', and was there- 
fore separable from the person. But not so says Gibson, J., as to 
slander, assault and batterj-, criminal conversation, &c. ; and this was 
afterwards held of a claim for a malicious and excessive distress. 
O'Domiell v. Seybert, 13 Serg. & Rawle, 54. In the two last cases the 
court appear to measure the assignable rights which pass to executors, 
and those which go to assignees of insolvents b_y the same rule. In 
the last case, Duncan, J., instances that of an action on a penal statute 
which does not survive. So of an action on the case for a deceit. 
Shoemaker v. Kelley, 2 Dall. 213. 

It has been denied under the bankrupt law of the United States that 
even a right to trespass de bonis asportatis will pass. Hempstead v. 
Bird, 2 Day, 293 ; 3 id. 272, s. c. Speaking on the same subject in 
Comegys v. Vhsse, 1 Pet. 213, Stor3', J., says : " In general, it may be 
affirmed that mere personal torts which die with the party, and do not 
survive to his personal representatives, are not capable of passing bj- 
assignment." Gardner v. Adams, before mentioned, merely declares 
that a tort is not assignable so as to warrant an action in the name of 
the assignee. But the cases in respect to executors and insolvent 
assignees, and the like, certainly go very far to direct what we are to 
consider matter of property or estate, so far that it can be touched by 
a contract and made a subject of transfer between parties in any way, 
at law or in equity. If the right be not so entirely personal, that a 
man cannot by anj- contract place it beyond bis control, it is assignable 
under the statutes of insolvencj', or will on his death pass to his exec- 
utors. The reason is because it maltes a part of his estate, it is matter 
of property, and as such it is in its nature assignable. On the coutrary, 
if it be strictly personal, it is bej'ond the reach of contract ; in the same 
sense we say of many rights, thej^ are inalienable. No one would pre- 
tend that a man's person could be specifically affected by contract : 
though he should bind himself hy indenture, equity could not enforce 
the agreement. Mary Clark's Case, 1 Blaekf. 122. So of a man's 
absolute personal rights in general ; as, his claim to safety from vio- 
lence, and his relative rights as a husband, a father, a master, a trus- 
tee, &c. These, though professedly aliened in the strongest terms, 
cannot be specifically bound. Neither law nor equity will recognize 
the transfer. A claim of damages for a violation of any of these or the 
like rights appears, upon the authorities, to come within the same rule 
as being correlatively of the same nature. Such, clearly, was the case 
at bar. The injury done to Thomas was a violation of his rights as a 
master. Even had his servant been bound bj' indenture, she could not 
have been assigned ; and had he died, the indenture would have been 
void, Baxter v. Burfield, 2 Strange, 1266 ; though a contract that she 
should serve another would doubtless have bound him personally. 
Looking at the cases and at legal analogies, it appears to me the same 
distinction must prevail here. In Caistre v. Modes, 1 Ld. Raym. 
683, it was held that though the assignment of an apprentice was void 

McKEE V. JUDD. 201 

as such, yet it opei-ated as a covenant hy the first master that the 
apprentice should serve the second, on which a suit would lie. This 
very distinction was taken in respect to a tort in Deering v. Farrtng- 
ton, 3 Keb. 304. The defendant sold to the plaintiffs £500, part of 
the loss by firing a ship, which should be recovered against any per- 
son, and held that though this could not operate bj' way of assignment, 
yet the defendant having got the money himself, he was liable to the 
plaintiff on an implied covenant. Hales, C. J., said the assignment 
did not transfer the dutj', but was a contract to transfer the benefit ; 
and the law makes a covenant wherever the partj' will contravene his 
agreement by deed. This was not exactly a personal injury. The 
courts at this daj- might, as it respected property, hold such a claim 
assignable in equity ; but the case shows the principle which is still 
applicable to personal wrongs. 

A right to reclaim money paid on an usurious consideration has been 
held assignable. Sreckenridge v. Churchill, 3 J. J. Marsh. 11, 13; 
and in North v. Turner, 9 Serg. & Eawle, 244, it was decided that a 
claim for a trespass committed by taking and converting personal 
propert}', as it would pass to an executor, might be assigned in equit3-, 
so as to be bound specifically ; though it was conceded that injuries 
strictly personal could not. This case, it appears to me, goes the 
utmost length which can be allowed in the doctrine of equitable assign- 
ability-. Assignments of personal injuries must still be regarded as 
mere covenants or promises, which we cannot directly protect against 
the interference of the immediate part}', though the defendant have full 
notice of the effort to assign. If the person professing to assign will 
do prejudice to the right, bj- extinguishing or impairing it, the party 
with whom he deals must be left to his action for damages, according 
to the nature of the undertaking. If it be under seal, then he must 
bring covenant, as was held in Deering v. Farrington ; if without 
seal, then assumpsit. Motion denied, but without costs. 

New York Court of Appeals. 1855. 

[Beported 12 N. Y. 622.] 

Action commenced in the Supreme Court the 28th of July, 1851. 
The complaint alleged that on the 7th of August, 1850, one Merltt 
was the owner of a horse and peddler's wagon, and a quantitj' of goods 
contained in boxes in the wagon ; and that on the day last named the 
defendant took the horse, wagon, and goods from the possession of 
Meritt, and sold, disposed of and converted the goods, to the value of 
eight}' dollars, to his own use ; and that he kept and detained the horse 
and wagon for several daj-s, to the damage of the plaintiff of twenty 

202 McKEE V. JUDD. 

dollars, and then returned them to him. The complaint further 
stated that on the 1st day of November, 1850, Meritt, " for a valuable 
consideration, by an instrument in writing under his hand and seal, 
sold, transferred and assigned his claim and demand against the de- 
fendant for said taking and detention of said horse and wagon, and the 
taking and converting of said goods to the plaintiff, who is now the 
owner of said demand." The complaint demanded judgment against 
the defendant on account of the premises for $100, and interest from 
the 7th of August, 1850. 

The defendant, by his answer, denied each and every allegation con- 
tained in the complaint. He further denied that Meritt had any as- 
signable claim or demand against the defendant, or that he did assign 
or transfer any cause of action against the defendant to the plaintiff; 
and insisted that the plaintiff was not entitled to maintain the action. 
The answer also alleged that the propertj' in question belonged to one 
Bai-nes, in whose possession it was ; that it was seized and taken b}' 
virtue of an attachment issued by a justice of the peace in favor of the 
defendant against Barnes, and that the goods, which were sold, were 
sold by virtue of an execution issued upon a judgment for about $70, 
recovered against Barnes in the suit commenced hy the attachment and 
to satisfy the same ; and that thereupon the residue of the property was 
returned to Barnes. There was a reply taking issue upon the allega- 
tions of new matter in the answer. 

The cause was tried in October, 1852, at the Broome Countj' Circuit 
before Mr. Justice Gray. The plaintiff gave evidence tending to prove 
that in August, 1850, the horse, wagon, and goods were owned \)y 
Meritt, and were in the possession of one Barnes on\y as his agent to 
sell the goods. It was further proved, that in the month last named a 
constable, by A'irtue of an attachment against Barnes and bj- tlie direc- 
tion of the defendant, seized the propert}' and detained it until he sold, 
a few daj's afterwards, sufficient of the goods to satisfy an execution 
issued against Barnes upon a judgment recovered in the suit com- 
menced by the attachment, when he restored the horse and wagon 
and the residue of the goods to 3arnes. The plaintiff read in evi- 
dence an instrument, dated the 1st daj' of November, 1850, executed 
by Meritt, whereby he assigned, conveyed, granted, sold, transferred 
and set over unto the plaintiff all his property and estate of every 
name, kind, nature, and description, in trust, to convert the same into 
monej' and apph* the same to the payment of his, Meritt's, debts in the 
order of preference specified therein. It was proved that the goods 
sold bj- the direction of the defendant were worth from $75 to $80. 

At the close of the evidence the counsel for the defendant insisted 
that the plaintiff was not entitled to recover, and requested the court 
to nonsuit him on the grounds : 1st. That the action was for a tort or 
wrong alleged and proved to have been committed before the assign- 
ment to the plaintiff, and that the cause of action therefor was not 
assignable ; 2d. That there had been no demand of the property- from 


the defendant bj- the plaintiff, and no refusal by the forineH»to deliver 
it to him. The court overruled said several objections and declined to 
nonsuit the plaintiff, and the counsel for the defendant excepted. The 
court further ruled and decided that if the jury found that the propertj' 
belonged to Meritt, at the time it was taken and sold by the direction 
of the defendant, the plaintiff was entitled to recover. To this the 
counsel for the defendant excepted. There were some other questions 
in the case arising on the exclusion and admission of evidence, but 
they are not of general interest. The jurj' rendered a verdict in favor 
of the plaintiff for $86 damages, upon which judgment was rendered. 
The judgment was affirmed at a general term of the Supreme Court in 
the 6th district. The defendant appealed to this court. 

D. S. DicMnson, for the appellant. 

G. W. Sbtchkiss, for the respondent. 

Gardiner, Ch. J. The action was not brought to reclaim the prop- 
ertj' taken hj the defendant, or its proceeds, but to enforce the claim 
and demand accruing originally to Meritt, for the unlawful detention 
and conversion of the goods in controvers3'. 

Whether this cause of action was assignable, so as to enable the 
plaintiff to sustain the suit in his own name, is the only important 
question now presented. The learned judge, who delivered the opinion 
of the Supreme Court was correct in saying that the terms of the deed 
were sufficientlj' comprehensive to embrace all the propert}' of the as- 
signor, and all the rights thereto appertaining. If a demand arising 
for a tortious conversion is assignable, I entertain no doubt that it 
passed by this conveyance. In The People v. Tioga Common Pleas^ 
19 Wend. 73, this subject was discussed by Judge Cowen with his usual 
learning and ability ; he observes, in speaking of chases in action : 
" That for the purposes of any sort of assignment, legal or equitable, 
I can nowhere find that the term has ever been carried beyond a claim 
due either on contract, or such whereby some special damage has 
arisen to the estate of the assignor." And his conclusion is, that de- 
mands arising from injuries, strictly personal, whether arising upon 
tort or contract, are not assignable, but that all others are. Upon the 
authority and reasoning of that case, and the decisions there referred 
to, the law may be considered as settled, that a claim to damage aris- 
ing from the wrongful conversion of personal property is a chose in 
action that is assignable ; and as such, was transferred by the trust 
deed to the plaintiff. In the present Supreme Court there is a conflict 
of opinion. Judge Harris and his associates concurring in the views of 
Judge Cowen, and Judge Brown holding that a demand of that nature 
is not the subject of assignment. 7 Howard, 492 ; 18 Barbour, 500. 
If the demand was assignable, the action was properly brought in the 
name of the plaintiff, who had the exclusive right to recover the 
damages for the purposes of the trust. Code, §§ 111, 113. No 
demand or refusal was necessary to maintain the action. By the 
assignment the plaintiff succeeded to all the rights of the assignor ; 

204 McKEE V. JDDD. 

this is a iftcessary consequence of the assignability of the claim, as 
distinguished from the property converted. 1 Selden, 344. 

The judgment of the Supreme Court should be affirmed. 

Denio, Johnson, Dean, and Crippen, JJ., concurred. Euggles, J., 
took no part in the decision. 

Hand, J. (Dissenting.) This action is for taking and converting 
the personal property of one Meritt. Admitting that the assignment 
by the latter was a valid transfer of his choses in action and other per- 
sonal effects that were assignable, the principal question in the case is ; 
Did the assignment in this case transfer a right of action for taking 
and converting personal propertj'? The goods were sold on an execu- 
tion in favor of defendant, and by his direction. But there was 
no proof that defendant himself took the goods before or after the 
sale, or converted them, except bj^ directing them to be sold upon the 
executions ; and the assignment was made nearly three months after- 
wards. The taking and conversion were therefore complete at the 
time the assignment was made, and the defendant then had no interest 
in or control over the propertj'. 

I had supposed that a mere right of action for a tort could not be 
assigned, either at law or in equity, except bj' means of some statutor}^ 
proceedings. Gardner v. Adams, 12 Wend. 297; People v. Tioga 
Common Pleas, 19 id. 76 ; Thurm,an v. Wells, 18 Barb. 500 ; 2 Story, 
Eq. §§ 1039, 1040, g. 1048 ; Hall v. Bohinson, 2 Comst. 293 ; 1 Font. 
213, n. g. ; Willard's Eq. 462. A cause of action arising from a torti- 
ous act will sometimes pass to the assignees of an insolvent, or Jo the 
assignees in bankruptcy. In those cases, there can be no objection on 
the ground of champerty and maintenance ; and the criterion is whether 
the action is to recover damages for an injury to the property' of the 
insolvent or bankrupt, or for a wrong personal to him. A solatium for 
an injury done to the person or personal feelings of the debtor cannot 
be assigned. But if the substantial cause of action arises from an 
act that diminishes or impairs his property', it passes to the assignees. 
Mosebootn v. Mosher, 2 Den. 67, Bronson, C. J. ; Beckham v. Brake, 
2 H. L. Ca. 577 ; s. c, 11 M. & W. 315 ; 8 id. 846 ; Bogers v. Spence, 
12 CI. & Fin. 700 ; s. c, 13 M. & W. 571 ; 11 id. 191 ; Wetherell v. 
Julius, 10 Com. B. 267 ; Stanton v. Collier, 3 Ell. & Bl. 274 ; Milnor 
V. Metz, 16 Pet. R. 221 ; and see Oillet v. Fairchild, 4 Den. 80. The 
transfer in such cases is in compliance with a statute, and is generally 
in invitum. But where the act is done on the mere motion of the 
parties, the assignment of a bare right to bring an action for a mere 
tort has been considered void on the ground of public policy. There is 
nothing in the Code which abrogates this salutarj' principle ; indeed the 
question is one of right or title and not of remedy. 

There are other questions in the case ; but on the objection already 
noticed, the judgment should be reversed. 

Maevin, J., concurred in the foregoing opinion delivered bj' Judge 
Hand. Judgment affirmed. 



Supreme Court of Pennsylvania. 1859. 

[Reported 34 Pa. 299.] 

Error to the Common Pleas of Allegheny County. 

This was an attachment execution issued bj' a justice of the peace on 
a judgment in favor of James Patten, for the use of John South, against 
Thomas M. "Wolf, which was served on William Wilson, as garnishee. 
The garnishee appealed from the judgment of the justice. 

On the 23d of March 1858, Thomas M. Wolf, the defendant, recov- 
ered a verdict in the District Court of Alleghenj' Count3', against 
William Wilson, the garnishee, for the sum of $100, in an action of tres- 
pass vi et armis, for false imprisonment. On the 26th March, Wolf's 
attorney assigned this verdict, without consideration, to John R. Large ; 
and on the 29th, judgment was entered on the verdict, and this attach- 
ment was laid. 

It appeared in evidence, on the trial, that S. H. Geyer was Wolfs 
attorney in the action against Wilson ; that Wolf had offered to pay 
Geyer $100, out of the verdict, if he would try the case ; to which offer 
Ge3-er acceded, and went on and recovered the verdict. 

The court below (McClure, P. J.) charged the jury, that the as- 
signment to Gej-er was valid, as against the plaintiff's attachment ; to 
which the plaintiff excepted ; and a verdict and judgment having been 
given for the garnishee, the plaintiff removed the cause to this court, 
and here assigned the same for error. 

Hitrffwin, for the plaintiff in error. 

Marshall and Brown., for the defendant in error. 

The opinion of the court was delivered by 

Woodward, J. Mr. Geyer had no lien on the fund attached, by 
virtue of the professional relation betwixt him and his client, but we 
think that, under the facts disclosed in his testimonj', he had an equita- 
ble assignment. He wanted more than $100 for his services, but Wolf 
would agree to give no more, but that sum he agreed to gi\'e '*out of 
the verdict," if Gej-er would try his cause. Geyer did trj- the cause, 
and as between himself and Wolf, he acquired thus an equitable right 
to receive the $100; Wolf would be estopped from demanding it in 
face of his agreement. 

Now, the Act of Assembly under which Patten attached this monej^ 
in the hands of Wilson, says, that debts attached in execution shall be 
" subject, nevertheless, to all lawful claims thereupon." See § 22 of 
Act of 16th June 1836, relating to executions. 

The effect of this provision is, what perhaps would have been decided 
without it, to place the attaching creditor, as regards the rights of third 


parties, exactly in the shoes of the debtor. If "Wolf could not claim 
this money, as against his counsel, Geyer, neither can Wolfs attach- 
ing creditor. All the equities which Geyer could set up against Wolf, 
are equally available to him as against Patten. 

And this decides the cause. We make no account of the assignment 
to Large. It was void as against Wolfs creditors. It is not that, but 
the equitable assignment to Geyer, which defeats the plaintiff. 

An observation of the learned counsel for plaintiff in error, is worthy 
of notice as applicable to both of these assignments. He argues that, 
as the claim was for unliquidated damages in an action sounding in 
tort, it was not capable of assignment before verdict. Strictly that is 
true. But it is true only in respect to the rights of third parties. As 
between Wolf and Geyer, an assignment or agreement to assign the 
whole or part of a future verdict, would be binding, and, being 
founded on sufficient consideration, would be enforced. Such agree- 
ments between counsel and client are common ; more frequent, indeed, 
than they ought to be. They have attracted the animadversion of this 
court, more than once ; but they bind the parties, and the attaching 
creditor of one of the parties succeeds to no higher rights than he 
possessed. The Judgment is affirmed. 

Supreme Judicial Couet of Massachusetts. 1861. 

[Reported 1 Allen, 566.] 

Bill in equity, filed March 26, 1860, alleging that the plaintiff is a 
creditor of the defendant Stone ; that Stone has not anj- property which 
can be come at to be attached ; that on the 24th of March, 1860, Stone 
recovered judgment against the other defendant, Noah Perrin, in the 
Superior Court in Boston, for two hundred dollars and costs, in an action 
of tort for injuries to the person, which sum he is about to collect for 
his own use, and does not intend to apply the same to the paj-ment of 
the plaintiffs demand ; and praying for an injunction to sta}- execution 
on the judgment, and for a decree that the demand of the plaintiff sliall 
be paid from the proceeds thereof. 

The answer of Stone admitted the debt to the plaintiff ; and averred 
that on the 16th of March, 1860, he obtained a verdict in his action 
against Perrin for two hundred dollars ; and that on the following day, 
for a valuable consideration, he assigned his interest in the same and 
in the judgment to be rendered thereon, by an instrument in writing 
duly executed, a copy of which was annexed, to Paul Adams, who 
thereupon held and still holds the same. 

Adams filed a petition in the case alleging the assignment to him, 
and claiming the amount of the verdict and judgment. 


At a hearing in this court, at April term, 1860, before Bigelow, J., 
It was fullj' proved that the assignment was duh' executed and delivered 
on the 17th of March to Adams, as security for a pre-existing debt then 
due from Stone to him, and of an amount exceeding the amount of the 
judgment, and was made in good faith and with no intention to hinder, 
dela_y, or defraud creditors. The question was raised whether the claim 
of Stone against Perrin having been ascertained by a verdict, was by 
law assignable after verdict and before judgment ; and this question 
only was reserved for the determination of the whole court. 

F. A. Brooks, for the plaintiff. 

G. H. Preston, for the defendants. 

Chapman, J. No case is cited where it has been held that an as- 
signment of a claim for damages for an injury to the person has been 
held good, when the assignment was made before judgment in an action 
for the tort. Such claims were not assignable at common law. On the 
contrary, a possibility, right of entrj', thing in action, cause of suit or 
title for condition broken, could not be granted or assigned over at 
common law. Bac. Ab. Assignment, A. Com. Dig. Assignment, A. 
Shep. Touchstone, 240. But this ancient doctrine has been greatlj' re- 
laxed. Commercial paper was first made assignable to meet the neces- 
sities of commerce and trade. Courts of equitj- also interfered to 
protect assignments of various chases in action, and after a while courts 
of law recognized the validity of such assignments, and protected them 
b}' allowing the assignee to use the name of the assignor for enforcing 
the claim assigned. And at the present day claims for property and 
for torts done to property are generally to be regarded as assignable, 
especially in bankruptcy and insolvency. There may be some excep- 
tions to this doctrine, but they need not be discussed here. But in re- 
spect to all claims for personal injuries, the questions put by Lord 
Abinger in Howard v. Crowther, 8 M. & W. 603, are applicable : " Has 
it ever been contended that the assignees of a bankrupt can recover for 
his wife's adulter}', or for an assault? How can they represent his ag- 
gravated feelings? " And we may add the broader inquiry, — has any 
court of law or equity ever sanctioned a claim by an assignee to com- 
pensation for wounded feelings, injured reputation, or bodily pain, suf- 
fered by an assignor? There were two principal reasons whj' the 
assignments above mentioned were held to be invalid at common law. 
One was to avoid maintenance. In earl}' times maintenance was re- 
garded as an evil principally because it would enable the rich and 
powerful to oppress the poor. This reason has in modern times lost 
much, but not the whole of its force. It would still be in the power of 
litigious persons, whether rich or poor, to harass and annoy others, if 
they were allowed to purchase claims for pain and suffering, and prose- 
cute them in courts as assignees. And as there are no counterbalan- 
cing reasons in favor of such purchases, growing out of the convenience 
of business, there is no good ground for a change of the law in respect 
to such claims. 


The other reason is, a principle of law, applicable to all assignments, 
that they are void, unless the assignor has either actually or potentiallj' 
the thing which he attempts to assign. A man cannot grant or charge 
that which he has not. Jones \. Hichardson, 10 Met. 481 ; Moody v. 
Wright, 13 Met. 17; Codman v. Freeman, 3 Cash. 309. In these 
cases the doctrine is applied to the mortgage of goods, which maj- be 
subsequently purchased by the mortgagor. But it applies equally to 
all sales of personal propertj' and rights of propert3-. In Lunn v. 
Thornton, 1 Man., G. & Scott, 379, it is applied to a sale of goods. 
This court has applied it to an assignment of wages where there is no 
contract for service. Mulhall v. Quinn, 1 Gra}-, 105. 

The application of the doctrine of estoppel to convej^ances of real 
estate with warrant^', modifies the effect of the general doctrine in such 
cases, but can hardly be called an exception to it. Assignments of 
claims for torts done to propert}' seem to be exceptions ; yet these 
claims differ essentiallj- from claims for personal torts. A claim for 
the tortious conversion or destruction of property, is based on a right 
to propertj' which has a certain value. A claim for an injury to the 
property which is less than a conversion or destruction of it, is of the 
same character. So also the claim to recover threefold the amount 
taken for usurious interest. In 6rai/ v. Bennett, 3 Met. 522, where 
it is decided that such a claim passes bj' assignment to the assignee of 
an insolvent debtor, it is distinguished from claims for injuries to the 
individual, such as assault and battery, false imprisonment, malicious 
prosecution, defamation, &c. The former is said to be a vested inter- 
est ; and the latter are called mere personal rights. 

It is there admitted that mere personal rights are not assignable. A 
claim to damages for a personal tort, before it is established by agree- 
ment or adjudication, has no value that can be so estimated as to form 
a proper consideration for a sale. Until it is thus established, it has no 
elements of propertj- sufficient to make it the subject of a grant or as- 
signment. The considerations which are urged to a jury in behalf of 
one whose reputation or domestic peace has been destro3-ed, whose 
feelings have been outraged, or who has suffered bodil}' pain and dan- 
ger, are of a nature so strictlj' personal that an assignee cannot urge 
them with an}' force. 

The character of this class of claims is not changed in this respect bj- 
a verdict before judgment. It must be made the subject of a definite 
judgment before it is assignable ; a judgment upon which a suit maj' be 
brought. Stone v. Boston S Maine Railroad, 7 Gray, 539. 

It is said in Langford v. Ellis, 14 East, 203, note, that the moment 
the verdict comes the damages are liquidated. This was an action of 
slander. But the principal case of Ex parte Charles, 14 East, 197, in 
which the other was cited, is regarded as overturning it. Buss v. Gil- 
bert, 2 M. & S. 70. And these cases hold that neither an action for 
breach of promise of marriage nor for seduction passes to an assignee 
in bankruptcy before judgment. In our practice, where the points in 


controversy are seldom raised by the pleadings, but are brought out in 
later stages of the case, the claim remains in great uncertainty till the 
judgment is rendered. And the 'case of /Stone v. Boston & Maine 
Mailroad, cited above, follows the ancient case of Benson v. Flower, 
Sir W. Jones, 215, where it was held that an action of the case is not 
assignable till after judgment, when it is reduced to a certainty. 

Most of the cases in which the right to assign this class of claims has 
been discussed, have been assignments under the statutes, of bankruptcy 
or insolvency. Much of the discussion has, therefore, related to the 
construction of these statutes ; but the nature of the claims has also 
been regarded as an objection to their being assignable. In some cases 
the question has been discussed without reference to such statutes. In 
Prosser v. Edmonds, 1 Younge '& Coll. 481, it was held that a bare 
right to file a bill in equity for a fraud was not assignable. Lord 
Chief Baron Lyndhurst remarked that courts of equity had relaxed the 
ancient rule as to the assignment of choses in action, " but only in the 
cases where something more than a mere right to litigate has been as- 
signed." This constitutes a very important limitation. 

In Worth V. Turner, 9 S. & R. 244, the claim was for trespass de 
bonis, and it was held to be assignable under the laws of Pennsylvania ; 
but Gibson, J., admits that some claims are not assignable. He says : 
" There are undoubtedly some injuries which so particularly adhere to 
the person of him who has suffered them, as to preclude an assignment 
of his claim to compensation for them so as to make him a witness ; 
such, for instance, as slander ; assault and batterj' ; criminal conversa- 
tion with the party's wife, and man}^ others that might be mentioned. 
The right to compensation for any of these would not pass bj- a statute 
of bankruptcy, or an assignment under the insolvent acts, nor could it 
be transmitted to executors or administrators." There cannot be the 
same objection to the transmission of such a claim to executors and ad- 
ministrators as to its assignment to strangers ; and by our recent legis- 
lation actions for damage to the person survive ; but we do not consider 
this as materially affecting the question whether such rights of action 
may be assigned to a stranger. 

Gardner v. Adams, 12 Wend. 297, directly decides that a right of 
action for a tort is not assignable ; but the question does not appear to 
have been much discussed, and the authoritj^ of the case is less valuable 
on that account. The People v. Tioga Common Pleas, 19 Wend. 73, 
was argued by able counsel, and appears to have been thoroughlj' dis- 
cussed. It was there held that a right of action for debauching a step- 
daughter was not assignable ; and the court refused to protect the 
assignee against a fraudulent discharge of the action by the assignor, 
on the ground that a chose in action for a personal tort is not assignable 
either in law or equity. 

In view of these, and many other authorities to which we have re- 
ferred, we are of opinion that the ancient doctrine of the common law 
on this subject is still in force, and that the reasons on which it was 



originally founded are still valid. As an assignment of a claim for a 
personal injury is void, though it is made after verdict in an action to 
recover damages for the injury, the claim of the defendant Perrin can- 
not prevail. 

The plaintiff's bill is authorized by Sts. 1851, c. 206, and 1858, 
c. 34, and he is entitled to a decree for the payment of his debt accord- 
ing to the praj'er of his bill, and for costs. ^ 

C. Life Insurance Policies. 


Chancekt, before Vice-Chancellor Shadwell. 1829. 

[Beporttd 3 Sim. 149.] 

In 1802 William Heath insured his life, in the Equitable Insurance 
Office, for £1,000. By a deed poll, dated the 10th of March 1810, 
Heath, in consideration of 5s. , and for divers other considerations him 
thereunto moving, assigned the policy to James HodsoU. In October 
1810 Hodsoll died. In Februarj- 1815 a decree was made in a suit 
instituted by Heath and others, against HodsoU's executors, under 
which the policy was sold to General Ashley for £320 : and, in 
August of the same year, the executors assigned the policj" to General 
Ashlej-. In August 1817 General Ashley died. In 1829 the policy 
was sold to Charles Farebrother, under the decree in a cause insti- 
tuted, by General Ashley's widow, against his executors. An order 
was afterwards made, on the application of Farebrother, for a reference 
to the master to inquire and state whether a good title could be made 
to the policy. The master reported in favor of the title. Farebrother 
excepted to the report ; and General Ashle3''s executors presented a 
petition praj-ing that the report might be confirmed ; and that Fare- 
brother might be ordered to pay his purchase- money into court, in 
trust in the cause. The exceptions and petition were heard at the 
same time. 

The Solicitor- General and Mr. Duckworth for G. Farebrother. 

Mr. Pepys and Mr. Parker for the petitioners. 

The Vice-Chancellor. Unless this transaction is affected bj' the 
Act of Parliament, no objection can be made to it. By the 14th Geo. 

1 See Zabrishk v. Smith, 13 N. Y. 322 ; Haight v. Hayt, 19 N. Y. 464 ; Johnston 
V. Bennett, 5 Abb. Pr. n. s. 331; Moore v. HTKinstry, 37 Hun, 194. 

' ' We apprehend that the doctrine has never been held, that a claim of no fixed 
amount, or time, or mode of payment, — a claim which has never received the assent 
of the person against whom it is asserted, and which remains to he settled by negotia- 
tion or suit at law, can be so assigned as to give the assignor an equitable right to pre- 
vent the original parties from compromising or adjusting the claim on any terms that 
may suit them." Per Milleb, J., in Kendall v. United States, 7 Wall. 113, 116, 117. 


3, c. 48, it is enacted, &c. [His Honor here read the first three sec- 
tions of 14 Gr. 3, c. 48.]^ Now there is not a word said here as to the 
assignment of policies. This policy was good at the time it was ef- 
fected. By an instrument of the 10th of March 1810, an assignment 
of it was made ; and, subsequently, the parties who had become en- 
titled to the policy, sold it, for a valuable consideration, under a 
decree of the court ; so that some person became entitled to bring an 
action, on the policy, in the name of the assured, JBrown v. Carter, 5 
Ves. 862 ; Prodgers v. Langham, 1 Sid. 133 ; and if such an action 
had been brought, there is not a word in the Act of Parliament to 
defeat it. The question is whether the dealing with the policy has 
been such as that a court of equity would compel the assured to per- 
mit the assignee to use his name, in bringing an action on the policy. 
It appears to me that a purchaser for valuable consideration is entitled 
to stand in the place of the original assignor, so as to bring an action, 
in his name, for the sum insured. 

The case cited is not applicable ; for there the action was brought 
by the assured ; and, at the time of the action brought, his interest 
had ceased ; and, therefore, it came within the third section of the 
Act of Parliament. 


Stjpbeme Judicial Court op Massachusetts. 1869. 

[Reported 101 Mass. 564.] 

Bill in equity filed by the administrator of the estate of George 
L. D. Barton, against the administratrix of the estate of Dewey K. 
Warren and the next of kin of said Barton, alleging that the plaintiff 
had in his hands the proceeds of a policy of insurance issued to his 
intestate on his life ; that the defendant Warren claimed them bj' virtue 
of an assignment of the policy made to her intestate hy Barton ; and 
that the next of kin of Barton claimed them as assets of his estate ; and 
praying that the defendants might interplead. 

1 By 14 Geo. 3, c. 48, it is enacted : that "no insurance shall he made on the life 
or lives of any person or persons, or on any other event or events whatsoever, wherein 
the person or persons for whose use, henefit, or on whose aftount such policy or poli- 
cies shall he made, shall have no interest, or hy way of gaming or wagering ; and that 
every assurance made, contrary to the true intent and meaning of the act, shall he 
null and void, to all intents and purposes whatsoever. 

" II. That it shall not be lawful to make any policy or policies on the life or lives 
of any person or persons, or other event or events, without inserting in such policy or 
policies, the person or persons name or names interested therein, or for whose use, 
benefit, or on whose account, such policy is so made. 

"III. That in all cases where the insured hath interest in such life or Uvea, event 
or events, no greater sum shall be recovered or received, from the insurer or insurers, 
than the amount or value of the interest of the insured in such life or lives, or other 
event or events." 


The defendants answered, and agreed that the court might, if it saw 
fit, take jurisdiction. The case is stated in the opinion. 

M. W. -Paine & R. D. Smith, for Warren's administratrix. 

G. W. Jialdwin, for the next of kin of Barton. 

Wells, J. The plaintiff, as administrator of Barton, holds the pro- 
ceeds of a policy of insurance upon the life of his intestate. The fund 
is assets in his hands for the benefit of one of the defendants as next 
of kin, after paj'ment of debts, unless the other defendant is entitled to 
receive it by virtue of an assignment of the policy' in the lifetime of the 

It is not properly a case for interpleader. But the plaintiff sustains 
a twofold relation to the fund. If the claim of the defendant Warren 
can be maintained, either at law or in equitj^ it is not like an ordinary 
demand against the estate which will be barred at the end of two years, 
if not sooner prosecuted. It would be against the plaintiff personally, 
and not as administrator. He is not only liable to be harassed by con- 
flicting claims ; but exposed to the risk of being required to settle his 
accounts, and distribute or paj- over the fund as administrator, before 
his liabilitj- to the other claimant is brought to a determination at law. 
The settlement of the estate is liable to be delayed b}' reason of a dis- 
pute affecting a considerable portion of the supposed assets. In such 
case the administrator may properly ask the direction and protection 
of the court. Dimmock v. Bixby, 20 Pick. 368 ; Treadwell v. Cordis, 
5 Gray, 341. 

The only question to be determined in regard to the rights of the 
parties is, whether an assignment of the policy, by the assured in his 
lifetime, without the assent of the insurance compan}', convej'ed any 
right, in law or in equity, to the proceeds when due. The court are all 
of opinion that it did not. 

In the first place, it is contrarj- to the express terms of the policy 
itself, bj' which it is provided and declared that any such assignment 
shall be void. 

In the second place, it is contrary to the general policy of the law 
respecting insurance ; in that it may lead to gambling or speculating 
contracts upon the chances of human life. 

The general rule recognized by the courts has been, that no one can 
have an insurance upon the life of another, unless he has an interest in 
the continuance of that life. Loomis v. Eagle Insurance Co., 6 Gray, 
396 ; Lord v. Dall, 12 Mass. 115. Dewey K. Warren had no such 
interest, and could not legally have procured insurance upon the life of 
Barton. We understand the answer to deny that the policy was held 
by Warren as creditor and for his security ; and to assert an absolute 
right by purchase. The rule of law against gambling-policies would be 
completely evaded, if the court were to give to such transfers the effect 
of equitable assignments, to be sustained and enforced against the 
representatives of the assured. 

When the contract between the assured and the insurer is "expressed 


to be for the benefit of" another, or is made paj'able to another than 
the representatives of the assured, it may be sustained accordinglj-. 
Gen. Sts. c. 58, § 62. Campbell y. New England Insurance Co., 
98 Mass. 381. The same would probably be held in case of an assign- 
ment with the assent of the insurers. But if the assignee has no inter- 
est in the life of the subject of insurance which would sustain a policy 
to himself, the assignment would take effect only as a designation by 
mutual agreement of the contracting parties of the person who should 
be entitled to receive the proceeds when due, instead of the personal 
representatives of the assured. And if it should appear that the 
arrangement was a cover for a speculating risk, contravening the gen- 
eral policj' of the law, it would not be sustained. 

The purpose of the clause in the policy, forbidding assignments 
without the assent of the company, is undoubtedly to guard against the 
increased risks of speculating insurance. The insurers are entitled to 
the full benefit of such a provision, as a matter of contract ; and, as the 
policy of the law accords with its purpose, the court will not regard 
with favor any rights sought to be acquired in contravention of the 

The administrator will therefore hold the proceeds of the policj' as 
assets of the estate of his intestate, discharged of anj' claim thereto 
under the assignment of the policy to Dewey K. Warren. 

Decree accordingly. 


Supreme Court of Indiana. 1872. 

[Reported 41 Ind. 116.] 

Appeal from the Franklin Circuit Court. 

WoRDEN, J. This was an action by the appellee against the appel- 
lant on a life insurance policy, issued by the appellant to one William 
S. Cone, and hy Cone assigned to the appellee. 

Issue, trial, finding and judgment for the plaintiff below, a motion 
for a new trial having been made by the defendant and overruled, and 
exception having been duly taken. 

The policy was issued September 2d, 1867, and stipulates for the 
paj'ment of the sum of three thousand dollars by the company to the 
assured, his executors, administrators, and assigns, within ninety days 
after due notice and proof of interest and of the death of said Cone, 
deducting therefrom all indebtedness of the party to the company. 
The premium paid down was sixty-two dollars and forty cents, and a 
like premium was to be paid by the assured annually on the 2d of Sep- 
tember, during the life of Cone. By the terms of the policy, if the 
first premium to become due after the issuing thereof should not be 


paid at the time specified, the policy was to be forfeited, and the policy 
was not to be assigned without the consent of the company. 

The material facts on which we place the decision of the cause, are 
these : On the 2d of September, 1868, the premium then falling due 
was not paid. Cone afterward said to the agent of the company that 
he liad concluded not to keep up the policj-, and he declined to pay the 
premium. Finally he sold the policy to the appellee, Hazzard, and on 
the 17th of September, 1868, duly assigned the same to him, and the 
assignment was assented to by the secretary of the company, subject 
to the conditions of the policy. Hazzard was not the creditor of Cone, 
nor had he otherwise any insurable interest in his life, but he simply 
purchased the policy, and paid therefor the sum of twentj' dollars. On 
the policy's being assigned to Hazzard, he arranged with the company 
for the premium due on the 2d of September, 1868, by paying a part 
thereof in money and giving a note ibr the residue, which, we infer, 
was afterward paid. Cone died in July, 1869. 

Can the appellee, on these facts, maintain the action? 

"We place no stress on the fact that the premium was not paid at the 
time it fell due, because the forfeiture of the policy seems to have been 
waived by the subsequent receipt, by the agents of the company, of 
the premium. 

But the question arises whether a person can purchase and hold for 
his own benefit, and ^s a matter of mere speculation, a policj' of in- 
surance on the life of one in whose life he has no sort of insurable 
interest. This question is one of first impression in Indiana, and the au- 
thorities elsewhere are somewhat in conflict upon the point. We there- 
fore feel at liberty to decide it in conformity with what seem to us to 
be the general principles of law applicable to the question. There can 
be no doubt that a policy issued to Hazzard upon the life of Cone, the 
former having, as in this case, no insurable interest in the life of the 
latter, would be absolutely void. We quote the following passage from 
the opinion of the court, as delivered by Judge Selden, in the case of 
Huse V. The Mutual Senefit Life Insurance Company, 23 N. Y. 616 : 
"Our inquiry, therefore, is, whether at common law, independent of 
any statute, it is essential to the validitj' of a policj', obtained by 
one person for his own benefit upon the life of another, that the party 
obtaining the policy should have an interest in the life insured. A 
policy, obtained b^' a partj' who has no interest in the subject of in- 
surance, is a mere wager policy. Wagers in general, that is, innocent 
wagers, are, at common law, valid ; but wagers involving any immo- 
ralit}' or crime, or in conflict with anj- principle of public policy, are 
void. To which of these classes, then, does a wagering policy of in- 
surance belong? Aside from authority, this question would seem to 
me of easy solution. Such policies, if valid, not only aflford facilities 
for a demoralizing system of gaming, but furnish strong temptations 
to the party interested to bring about, if possible, the event insured 


There are manj' authorities establishing that such policies are void, 
as contravening public policj', but it is unnecessary to make further 
reference to them. Now, if a man may not take a policy directly' from 
the insurance company, upon the life of another in whose life he has 
no insurable interest, upon what principle can he purchase such policy 
from another? If he purchase a policy as a mere speculation, on the 
life of another in whose life he has no insurable interest, the door is 
open to the same " demoralizing system of gaming," and the same 
temptation is held out to the purchaser of the polic3' to bring about 
the event insured against, equally as if the policj^ had been issued 
directh' to him by the underwriter. We are aware that the doctrine 
is held in New York, that if the policj' is valid in its inception, it may 
be assigned to any one, whether he have any interest in the life of the 
assured or not. St. John v. The Ainerican Mninal Life Insurance 
Company^ 13 N. Y. 31 ; Valton v. The National Loan Fund Life 
Assurance Company, 20 N. Y. 32. Such, also, seems to have been 
the view taken bj' the Vice-Chancellor in the case of Ashley v. Ashley, 
3 Sim. 149. But the contrary doctrine is maintained in Massachusetts. 
Stevens v. Warren, 101 Mass. 564. The following passages, from the 
opinion of the court in the latter case, will show the scope and effect 
of the decision. [Ihe court then quotes the greater part of the opin- 
ion in Stevens v. Warren, ante.] 

The decision in the above case is made to rest quite as much upon 
the second as the first ground stated, viz., that an assignment of a 
policy of life assurance to one having no interest in the life of the 
assured, where the assignment is a cover for a speculating risk, is void, 
as contrary to the general policy of the law respecting insurance. 

After pretty mature consideration, we have concluded that the doc- 
trine announced in the case cited from Massachusetts is the true 
doctrine on the subject. All the objections that exist against the 
issuing of a policy to one upon the life of another iu whose life the 
former has no insurable interest, seem to us to exist against his hold- 
ing such policj' by mere purchase and assignment from another. In 
either case, the holder of such policy is interested in the death, rather 
than the life, of the party assured. The law ought to be, and we 
think it clearly is, opposed to such speculations in human life. In 
oui opinion, no one should hold a policy upon the life of another in 
whose life he had no insurable interest at the time he acquired the 
policj', whether the policj' be issued to him directly from the insurer, 
or whether he acquired the policy by purchase and assignment from 
another. In either case he is subject, in the language of Judge Selden, 
above quoted, to strong temptations to bring about the event insured 

In this case there was but a simple purchase of the policy by Haz- 
zard. He had no interest whatever in the life of the assured. He 
■was a mere speculator upon the probabilities of human life. His con- 
tract of purchase was essentially a wager upon the life of Cone, and 


his interests lay in the payment of few or no intermediate annual pre- 
miums, and the early happening of the event which was to entitle him 
to the three thousand dollars. By his purchase he became interested 
in the early death of the assured. We are of opinion that the law will 
not uphold such purchase, and that the appellee acquired no right to 
the policy or to the sum secured therebj'. 

Life assurance policies are assignable, to be sure, but in our opinion 
they are not assignable to one who buj-s them merely as matter of 
speculation, without interest in the life of the assured. What is such 
an interest in the life of another as will authorize one to insure his life, 
or purchase a polic3'upon his life, is a question not involved in the case, 
and we express no opinion upon it. 

It has been suggested hy the counsel for the appellee that our statute 
providing for the assignment of contracts embraces contracts of this 
description as well as others. This may be, but we do not think the 
statute contemplates the valid assignment of a contract to a party 
who, under the circumstances, in view of the general principles of law, 
is incapable of being an assignee of the contract. 

In our opinion the plaintiff below was not, on the facts shown, enti- 
tled to recover, and the motion for a new trial should have prevailed. 

The judgment below is reversed, with costs, and the cause remanded, 
for further proceedings not inconsistent with this opinion. 

U. J. Hammond and J. M. Judah, for appellant. 

W. Morrow and N". Truster, for appellee. 

Supreme Couet of Rhode Island. 1877. 

[Reported 11 B. I. 439.] 

Assumpsit, tried by the court, jury trial being waived. The facts are 
stated in the opinion of the court. 

Charles Hart, for plaintiff. 

James Tillinghast, for defendant. 

DuRFEE, C. J. This is an action for money had and received, tried 
to the court, jury trial being waived. It appears that on the 26th of 
December, 1868, one Edward T. Ross got his life insured for $2,000, 
payable to his wife at his decease. His wife was a second wife. He 
had children by his former wife, but none by her. She died before him, 
August 21, 1871. He was then in infirm health and short of means. 
He did not pay one premium promptly. The companj^, however, ac- 
cepted payment afterwards, and issued the policy anew, pajable to his" 
legal representatives. On the 2d of January, 1872, he assigned Iho 
policy to the defendant, and received the defendant's note for $12'), 
which was paid April 10, 1872. The surrender value of the policy at 


the time of the assignment was $118. The defendant was Eoss's 
brother-in-law. After the assignment, which was assented to hy the 
insurers, the defendant paid five quarterlj- premiums of $25 each. Eoss 
died March 24, 1873. The defendant collected on the policy $2,121.20. 
The plaintiff, who is administrator on Eoss's estate, brings this action 
to recover that amount, less the amount of the note for $125 and the 
five quarterly premiums with interest. 

The plaintiflF claims that the assignment was made as security for a 
loan, and not as an absolute sale. Testimony was submitted on this 
point. We think the assignment was intended to be an absolute 

The plaintiff contends that, if the assignment was an absolute sale, 
it was void as against public policy-, and that he is therefore entitled to 
recover the money received on it, less the payments aforesaid, as money 
received to his use. The defendant claims that the assignment, though 
absolute, is valid, and that he is entitled to keep the money as his 

Upon the question thus raised there is a conflict of decision. In 
Massachusetts and Indiana it has been decided that a life policy is not 
transferable outright to a person who has no interest in the life insured. 
Stevens, Adm'r, v. Warren, 101 Mass. 564 ; Franklin Life Ins. Co. 
V. Hazzard, 41 Ind. 116. A similar decision (but in a case having pe- 
culiar circumstances) has been made hy the Supreme Court of the 
United States. Cammack v. Lewis, 15 Wall. 643. The reason given 
is, that it is unlawful for a person to procure insurance for himself on a 
life in which he has no interest, and that therefore it is unlawful for him 
to take an absolute assignment of a policy upon a life in which he has 
no interest ; for otherwise the law could always be easily circumvented 
by first having a person get his own life insured and then taking an as- 
signment of the policy. And it is also argued that the gambling or 
wagering element is the same, and the temptation to shorten the life 
insured is the same, in the one case as in the other. But, on the other 
hand, it has been decided in England that such an assignment is valid. 
Ashley v. Ashley, 3 Sim. 149, cited without disapproval by Chancellor 
Kent, in 3 Kent's Com. *369, note. The reason given is, that such an 
assignment is not within the prohibition of the English statute (14 
Geo. III. cap. 48) , and that the policy, being valid in its inception, is, 
like any other valid chose in action, assignable at the will of the holder, 
whether the assignee has an interest in the life insured or not. This 
view has been repeatedly affirmed in New York. St. John v. Am. 
Mut. Life Ins. Co., 2 Duer, 419 ; also in 13 N. Y. 31, on appeal; 
Yalton V. Nat. Fund Life Assurance Co., 20 N. Y. 32 ; and see 
Cunningham et al. v. Smith's Adm'r, 70 Pa. St. 450. We think the 
assignment was valid. A life policj' is a chose in action, a species of 
property, which the holder may have perfectly good and innocent rea- 
sons for wishing to dispose of. He should be allowed to do so unless 
the law clearly forbids it. It is said that such an assignment, if per- 


mitted, may be used to circumvent the law. That is true, if insurance 
■without interest is unlawful ; but it does not follow that such an assign- 
ment is not to be permitted at all, because if permitted it ma}' be 
abused. Let the abuse, not the bona fide use, be condemned and de- 
feated. See Shilling, Adm'r, v. Accidental Death Ins. Go., 2 H. & 
N. 42. It is not claimed that the parties to the assignment here in 
question had any design to circumvent or evade the law. Perhaps 
Cammack v. Lewis., 15 Wall. 643, supra, maj- be found to be a case 
of that kind. Again the assignment is said to be a gambling transac- 
tion, a mere bet or wager upon the chances of human life. But the 
wager was made when the policy was effected, and has the sanction of 
the law. The assignment simply transfers the policy, as any other legal 
chose in action may be transferred, from the holder to a bona fide pur- 
chaser. It is true there is an element of chance and uncertainty in the 
transaction ; but so there is when a man takes a transfer of an annuitj-, 
or buj-s a life estate, or an estate in remainder after a life estate. There 
is in all these cases a speculation upon the chances of human life. But 
the transaction has never been held to be void on that account. But 
finally it is urged that the purchaser or assignee subjects himself to the 
temptation to shorten the life insured, and that this the policj' of the 
law does not countenance. The law permits the purchase of an estate in 
remainder after a life estate, which exposes the purchaser to a similar 
temptation. It has been decided, too, that a policy effected by a cred- 
itor on the life of his debtor does not expire when the debt is paid, 
though the holder then ceases to be interested in the continuance of the 
life, and is thereafter exposed to the same temptation which is supposed 
to beset the assignee without interest, to bring it to an end. Dalby v. 
India <b London Life Assurance Co., 15 C. B. 365 ; Lawy. London 
Indisputable Life Policy Co., 1 Kay & J. 223 ; Hawlsy. Amer. Life 
Ins. Co., 36 Barb. S. C. 357 ; also in 27 N. Y. 282, on appeal ; Gamp- 
bell V. JV. E. Mut. Life Ins. Co., 98 Mass. 381 ; Provident Life Ins. 
& Invest. Go. V. Baum, 29 Ind. 236. 

If the danger is not sufficient to avoid the policy when the interest 
ceases, whj' should it be sufficient to avoid the assignment to an as- 
signee without interest? The truth is, it is one thing to say that a man 
may take insurance upon the life of another for no purpose except as a 
speculation or bet on his chance of life, and may repeat the act ad libi- 
tum, and quite another thing to say that he may purchase the policy, 
as a matter of business, after it has once been dulj' issued under the 
sanction of the law, and is therefore an existing chose in action or right 
of property, which its owner may have the best of reasons for wishing 
to dispose of. There is in such a purchase, in our opinion, no immo- 
rality and no imminent peril to human life. We should have strong 
reasons before we hold that a man shall not dispose of his own. Courts 
of justice, while they uphold the great and universally recognized inter- 
ests of society, ought nevertheless to be cautious about making their 
own notions of public policy the criterion of legality, lest, under the 


semblance of declaring the law, they in fact usurp the function of legis- 
lation. Hilton V. Eokersley, 6 El. & B. 47, 64. 

We therefore decide that whatever the law of this State may be in 
regard to procuring insurance upon the life of another without any in- 
terest in the life insured, it does not forbid the sale and assignment of 
a valid policj^ which is already in existence, to an assignee without 
interest in the life insured, when the assignment is permitted or not 
prohibited by the policy, and is made, not as a contrivance to circum- 
vent the law, but as an honest and bona fide business transaction. 

Judgment for defendant for his costs. 


Supreme Court of the United States. 1881. 

[Reported 104 U. S. 775.] 

Error to the Circuit Court of the United States for the Southern 
District of Ohio. 

Warnock, the plaintiff, is the administrator of the estate of Henrj' L. 
Crosser, deceased, and a resident of Kentucky. Davis and the other 
defendants are partners, under the name of the Scioto Trust Associ- 
ation, of Portsmouth, Ohio, and reside in that State. On the 27th of 
February, 1872, Crosser apphed to the Protection Life Insurance Com- 
pany, of Chicago, a corporation created under the laws of Illinois, for 
a policy on his life to the amount of $5,000 ; and, on the same day, 
entered into the following agreement with the Scioto Trust Associa- 
tion : — 

" This agreement, by and between Henry L. Crosser, of the first part, 27 years 
old, tanner by occupation, residing at town of Springville, county of Greenup, 
State of Kentucky, and the Scioto Trust Association, of Portsmouth, Ohio, of 
the second part, witnesses: Said party of the first part having this day made 
application to the Protection Life Insurance Company, of Chicago, Illinois, for 
policy on his life, limited to the amount of $5,000, hereby agrees to and with 
the Scioto Trust Association that nine tenths of the amount due and payable on 
said policy at the time of the death of the party of the first part shall be the 
absolute property of, and be paid by, said Protection Life Insurance Company 
to said Scioto Trust Association, and shall by said party of the first part be as- 
signed and transferred to said Scioto Trust Association, and the remaining one 
tenth part thereof shall be subject to whatever disposition said party of the first 
part shall make thereof in his said transfer and assignment of said policy; that 
the policy to be issued on said application shall be delivered to and forever 
held by said Scioto Trust Association, said party of the first part hereby 
waiving and releasing and transferring and assigning to said Scioto Trust 
Association all his right, title, and interest whatever in and to said policy, and 
the moneys due and payable thereon at the time of his death, save and except 


the one tenth part of such moneys being subject to his disposition as afore- 
said; also, to keep the Scioto Trust Association constantly informed concern- 
ing his residence, post-office address, and removals; and further, that said 
party of the first part shall pay to the said Scioto Trust Association a fee of 
$6.00 in hand on the execution and delivery of this agreement, and annual 
dues of $2.50, to be paid on the first of July of every year hereafter, and that 
iu default of such payments the amounts due by him for fees or dues shall 
be a lien on and be deducted from his said one-teuth part. 

" In consideration whereof the said Scioto Trust Association, of the second 
part, agrees to and with said party of the first part to keep up and maintain 
said life insurance at their exclusive expense, to pay all dues, fees, and assess- 
ments due and payable on said policy, and to keep said party of the first part 
harmless from the payment of such fees, dues, and assessments, and to procure 
the payment of one tenth part of the moneys due and payable on said policy 
after the death of said party of the first part, when obtained from and paid by 
said Protection Life Insurance Company, to the party or parties entitled 
thereto, according to the disposition made thereof by said party of the first 
part in his said transfer and assignment of said policy, subject to the aforesaid 
lien and deduction. 

" It is hereby expressly understood and agreed by and between the parties 
hereto, that said Scioto Trust Association do not in any manner obligate them- 
selves to said party of the first part for the performance by said Protection Life 
Insurance Company of its promises or obligations contained in the policy 
issued on the application of said party of the first part and herein referred to. 

'' Witness our hands, this 27th day of February, A. D. 1872. 

Henry L. Crossee, 
The Scioto Trust Association, 
By A. McFarland, President, 
George Davis, Treasurer." 

The policy, bearing even date with the agreement, was issued to 
Grosser, and on the following day he executed to the association the 
following assignment : — 

" In consideration of the terms and stipulations of a certain agreement 
concluded by and between the undersigned and the Scioto Trust Association, 
of Portsmouth, Ohio, and for value received, I hereby waive and release, 
transfer and assign, to said Scioto Trust Association all my right, title, and 
interest in and to the within life insurance policy No. 3247, issued to me by 
the Protection life Insurance Company, of Chicago, Illinois, and all sum or 
sums of money due, owing, and recoverable by virtue of said policy, save and 
except the one tenth part of the same ; which tenth part, after deducting there- 
from the amount, if any, which I may owe to said Scioto Trust Association for 
fees or dues, shall be paid to Kate Grosser, or, in case of her death, to such per- 
son or persons as the law may direct. And I hereby constitute, without power 
of revocation on my part, the said Scioto Trust Association my attorney, with 
full power in their own name to collect and receipt for the whole amount due 
and payable on said policy at the time of my death, to keep and retain that 
portion thereof which is the absolute and exclusive property of said Scioto 
Trust Association ; to wit, nine tenths thereof, and to pay the balance, one tenth 
part thereof, when thus obtained and received from the said Protection Life 
Insurance Company, to the party or parties entitled thereto, after first deduct- 


ing therefrom, as above directed and stipulated, the amount, if any, due from 
me at the time of my death to .said Scioto Trust Association for fees and 

" Witness my hand and seal, this 28th day of February, A. D. 1872. 

" Henry L. Crossbr." [seal.] 

Grosser died on the 11th of September, 1873, and on the 16th of 
May, 1874, the association collected from the company the amount of 
the policy ; namely, $5,000 ; one tenth of which, $500, less certain sums 
due under the agreement, was paid to the widow of the deceased. 

The present action is brought to recover the balance, which with 
interest exceeds $5,000. The defendants admit the collection of the 
money from the insurance company ; but, to defeat the action, rely 
upon the agreement mentioned, and the assignment of the policy stipu- 
lated in it. The agreement and assignment are specifically mentioned 
in the second and third of the three defences set up in their answer. 
The first defence consists in a general allegation that Grosser assigned, 
in good faith and for a valuable consideration, nine tenths of the policy 
to the defendants ; that a power of attorney was at the time executed 
to them to collect the remaining one tenth and pay the same over to his 
widow ; and that after the collection of the amount they had paid the 
one tenth to her and taken her receipt for it. 

The case was tried by the court without the intervention of a jury. 
On the trial, the plaintiff gave in evidence the deposition of the re- 
ceiver of the insurance company, who produced from the papers in his 
custody the policy of insurance, the agreement and assignment men- 
tioned, the proofs presented to the company of the death of the insured, 
and the receipt by the association of the insurance money. There was 
no other testimony oflfered. The court thereupon found for the defend- 
ants, to which finding the plaintiff excepted. Judgment being entered 
thereon in their favor, the case is brought to this court for review. 

Mr. J. B. Foraker, for the plaintiff in error. 

Mr. A. C. Thompson., for the defendants in error. 

Mr. Justice Field, after stating the facts, delivered the opinion of 
the court, as follows : — 

As seen from the statement of the case, the evidence before the court 
was not confiicting, and it was only necessary to meet the general 
allegations of the first defence. All the facts established by it are ad- 
mitted in the other defences. The court could not have ruled in favor 
of the defendants without holding that the agreement between the de- 
ceased and the Scioto Trust Association was valid, and that the assign- 
ment transferred to it the right to nine tenths of the money collected on 
the policy. For alleged error in these particulars the plaintiff asks a 
reversal of the judgment. 

The policy executed on the life of the deceased was a valid contract, 
and as such was assignable by the assured to the association as security 
for any sums lent to him, or advanced for the premiums and assess- 
ments upon it. But it was not assignable to the association for any 


other purpose. The association had no insurable interest in the life of 
the deceased, and could not have taken, out a policy in its own name. 
Such a policy would constitute what is termed a wager policj', or a 
mere speculative contract upon the life of the assured, with a direct 
interest in its earlj- termination. 

It is not easy to define with precision what will in all cases constitute 
an insurable interest, so as to take the contract out of the class of 
wager policies. It may be stated generally, however, to be such an in- 
terest, arising from the relations of the partj' obtaining the insurance, 
either as creditor of or suretj- for the assured, or from the ties of blood 
or marriage to him, as will justify' a reasonable expectation of advan- 
tage or benefit from the continuance of his life. It is not necessary 
that the expectation of advantage or benefit should be always capable 
of pecuniarj^ estimation ; for a parent has an insurable interest in the 
life of his child, and a child in the life of his parent, a husband in the 
life of his wife, and a wife in the life of her husband. The natural 
afiection in cases of this kind is considered as more powerful — as oper- 
ating more efiicaciouslj' — to protect the life of the insured than any 
other consideration. But in all cases there must be a reasonable 
ground, founded upon the relations of the parties to each other, either 
pecuniary or of blood or affinity, to expect some benefit or advantage 
from the continuance of the life of the assured. Otherwise the contract 
is a mere wager, by which the partj' taking the policy is directlj' inter- 
ested in the early death of the assured. Such policies have a tendencj' 
to create a desire for the event. The}' are, therefore, independently of 
any statute on the subject, condemned, as being against public policy. 

The assignment of a polic}' to a party not having an insurable inter- 
est is as objectionable as the taking out of a policy in his name. Nor 
is its character changed because it is for a portion merely of the in- 
surance monej'. To the extent in which the assignee stipulates for the 
proceeds of the policy bej-ond the sums advanced bj' him, he stands in 
the position of one holding a wager policy'. The law might be readily 
evaded, if the policy, or an interest in it, could, in consideration of 
paj-ing the premiums and assessments upon it, and the promise to pay 
upon the death of the assured a portion of its proceeds to his represent- 
atives, be transferred so as to entitle the assignee to retain the whole 
insurance mone}'. 

The question here presented has arisen, under somewhat different 
circumstances, in several of the State courts ; and there is a conflict in 
their decisions. In Franklin Life Insurance Company v. Hazzard, 
which arose in Indiana, the policy of insurance, which was for $3,000, 
contained the usual provision that if the premiums were not paid at the 
times specified the policy would be forfeited. The second premium was 
not paid, and the assured, declaring that he had concluded not to keep 
up the policy, sold it for twenty dollars to one having no insurable in- 
terest, who took an assignment of it with the consent of the secretary 
of the insurance company. The assignee subsequently settled with the 


company for the unpaid premium. In a suit upon the policj% the 
Supreme Court of the State held that the assignment was void, stating 
that all the objections against the issuing of a policy to one upon the 
life of another, in whose life he has no insurable interest, exist against 
holding such a policy by mere purchase and assignment. " In either 
case," said the court, ' ' the holder of such policy is interested in the 
death rather than the life of the party assured. The law ought to be, 
and we think it clearly is, opposed to such speculations in human life." 
41 Ind. 116. The court referred with approval to a decision of the 
same purport by the Supreme Court of Massachusetts, in Stevens v. 
Warren, 101 Mass. 564. There the question presented was whether 
the assignment of a policy by the assured in his lifetime, without the 
assent of the insurance company, conveyed any right in law or equity 
to the proceeds when due. The court was unanimously of opinion that 
it did not ; holding that it was contrary not only to the terms of the 
contract, but contrary to the general policy of the law respecting in- 
surance, in that it might lead to gambling or speculative contracts upon 
the chances of human life. The court also referred to provisions some- 
times inserted in a policy expressing that it is for the benefit of another, 
or is payable to another than the representatives of the assured, and, 
after remarking that the contract in such a case might be sustained, 
said " that the same would probably' be held in the case of an assign- 
ment with the assent of the assurers. But if the assignee has no in- 
terest in the life of the subject which would sustain a policy to himself, 
the assignment would take effect only as a designation, bj' mutual 
agreement of the parties, of the person who should be entitled to re- 
ceive the proceeds when due, instead of the personal representatives of 
the deceased. And if it should appear that the arrangement was a 
cover for a speculating risk, contravening the general policy of the law, 
it would not be sustained." 

Although the agreement between the Trust Association and the as- 
sured was invalid as far as it provided for an absolute transfer of nine 
tenths of the proceeds of the policy upon the conditions named, it was 
not of that fraudulent kind with respect to which the courts regard the 
parties as alike culpable and refuse to interfere with the results of their 
action. No fraud or deception upon any one was designed by the agree- 
ment, nor did its execution involve any moral turpitude. It is one which 
must be treated as creating no legal right to the proceeds of the policy 
beyond the sums advanced upon its security ; and the courts will, 
therefore, hold the recipient of the moneys beyond those sums to ac- 
count to the representatives of the deceased. It was lawful for the 
association to advance to the assured the sums payable to the insurance 
company on the policj' as thej' became due. It was, also, lawful for 
the assured to assign the policy as security for their payment. The 
assignment was only invalid as a transfer of the proceeds of the policy 
beyond what was required to refund those sums, with interest. To 
hold it valid for the whole proceeds would be to sanction speculative 


risks on human life, and encourage the evils for which wager policies 
are condemned. 

The decisions of the New York Court of Appeals are, we are aware, 
opposed to this view. They hold that a valid policy' of insurance effected 
by a person upon his own life, is assignable like an ordinary chose in 
action, and that the assignee is entitled, upon the death of the assured, 
to the full sum payable without regard to the consideration given by 
him for the assignment, or to his possession of any insurable interest in 
the life of the assured. St. John v. American Mutual Life Insurance 
Company, 13 N. Y. 31 ; Vulton v. National Loan Fund Life Assur- 
ance Company, 20 Id. 32. In the opinion in the first case the court 
cite Ashley v. Ashley, 3 Simons, 149, in support of its conclusions ; 
and it must be admitted that thej' are sustained by many other adjudi- 
cations. But if there be any sound reason for holding a policy invalid 
when taken out by a party who has no interest in the life of the assured, 
it is difficult to see whj' that reason is not as cogent and operative 
against a party taking an assignment of a policy upon the life of a per- 
son in which he has no interest. The same ground which invalidates 
the one should invalidate the other, — so far, at least, as to restrict the 
right of the assignee to the sums actually- advanced bj' him. In the 
conflict of decisions on this subject we are free to follow those which 
seem more fuUj' in accord with the general policy of the law against 
speculative contracts upon human life. 

In this conclusion we are supported bj* the "decision in Cammac'k v. 
Lewis, 15 Wall. 643. There a policy of life insurance for $3,000, pro- 
cured by a debtor at the suggestion of a creditor to whom he owed 
$70, was assigned to the latter to secure the debt, upon his promise to 
pay the premiums, and, in ease of the death of the assured, one third 
of the proceeds to his widow. On the death of the assured, the as- 
signee collected the money from the insurance company and paid to the 
widow $950 as her proportion after deducting certain payments made. 
The widow, as administratrix of the deceased's estate, subsequently 
sued for the balance of the money collected, and recovered judgment. 
The case being brought to this court, it was held that the transaction, 
so far as the creditor was concerned, for the excess beyond the debt 
owing to him, was a wagering policy, and that the creditor, in equity 
and good conscience, should hold it only as security for what the debtor 
owed him when it was assigned, and for such advances as he might 
have afterwards made on account of it ; and that the assignment was 
valid only to that extent. This decision is in harmony with the views 
expressed in this opinion. 

The judgment of the court below will, therefore, be reversed, and the 
cause remanded with direction to enter a judgment for the plaintiff for 
the amount collected from the insurance companj', with interest, after 
deducting the sum already paid to the widow, and the several sums 
advanced by the defendants ; and it is So ordered. 



Supreme Judicial Court of Massachusetts. 1884. 

[Reported 138 Mass. 24.] 

Bill of interpleader, filed October 22, 1881, by a corporation 
organized under the laws of the State of New York, against George 
Allen and Catherine Fellows, to determine which of the defendants was 
entitled to the proceeds of a policy of insurance, issued by the plaintiff 
on July 25, 1855, upon the life of Israel Fellows, in Ihe sum of $2,000. 
The bill alleged the following facts : 

By the terms of the policy it was issued " for the sole use of Cath- 
erine Fellows," and the plaintiff promised and agreed " to and with the 
said assured, her executors, administrators, and assigns, well and truly 
to pay, or cause to be paid, the said sum insured to the said assured, 
her executors, administrators, or assigns, for her sole use, within sixty 
days after due notice and jn-oof of the death of the said Israel Fellows. 
And, in case of the death of the said Catherine Fellows before the 
decease of the said I. FeUows, the amount of the said insurance 
shall be payable after her death to her children, for their use, or to their 
guardian, if under age, within sixty daj-s after due notice and proof of 
the death of the said I. Fellows, as aforesaid." The policy also con- 
tained this clause : " N. B. If assigned, notice to be given to this 

On Jan. 1, 1881, Israel Fellows, Catherine Fellows, and their two 
children, who were then of age, by two instruments in writing under 
their hands and seals, duly executed and delivered in this Common- 
wealth, assigned and transferred the policy of insurance to the defend- 
ant AUen, together with all their respective claims and demands under 
the same. 

On March 7, 1881, Israel Fellows died, leaving his widow, Cath- 
erine Fellows, surviving him. Proof of his death was duly made. His 
widow made a demand upon the plaintiff for the payment of the policy, 
and brought an action upon the policy in the Supreme Court in New 

In August, 1881, Allen also brought an action on the policy in this 
Commonwealth, in the name of Catherine Fellows, for his own benefit. 

The answer of Allen admitted the allegations of the bill ; and averred 
that Allen bought the policy for a good and valuable consideration. 

The answer of Mrs. Fellows admitted the allegations of the bill ; and 
averred that the assignment was invalid under the laws of the State of 
New York, and that Allen had no insurable interest in the life of Israel 

The case was heard by Holmes, J., who reported it for the consid- 
eration of the full court, in substance as follows : 



The plaintiff paid the money into court. The policy was delivered 
by the plaintiff in this Commonwealth. At that time, and when the 
assignment was made, the law of New York was as set forth in the 
Laws of 1840, c. 80, and in the cases of JEadie v. Slimmon, 26 N. Y. 1, 
and Barry v. Equitable Assur. Society, 59 N. Y. 587. 

"The amount of premium annually paid upon the policy did not 
exceed $300. There was some evidence that the defendant Fellows 
did not expect that her assignment, although absolute in form, was to 
be used, except as security for a loan of $1,000 to her husband; but 
there was no evidence which satisfied me that there was any restriction 
upon his power to deliver it as an absolute transfer ; and I found that 
the policy was assigned in Massachusetts to the defendant Allen by the 
defendant Fellows (both being then residents of Massachusetts), in 
consideration of $1,000 paid to her husband by said Allen, and the 
discharge of certain notes held by said Allen amounting to $470.79. If 
the transfer was valid in manner and form as agreed, Allen ceased 
from that moment to have an insurable interest in the life of said 
Fellows as a creditor, and he had no other." 

The judge ruled that, so far as the present question was concerned, 
the transfer was governed by the law of Massachusetts, and that, by 
the law of Massachusetts, it was not void for want of an insurable 
interest in the transferee ; and found for Allen. 

Such decree was to be entered as justice and equity requu-ed. 

J. F. Colby, for Allen. 

W. S. Slocum ( W. F. Slocum with him), for Mrs. Fellows. 

W. Allen, J. The contract of insurance was made and was to be 
performed in this State, and the monej' due upon it has been paid into 
court here ; and the contract of assignment was made in this State 
between parties domiciled here. The validity and effect of the assign- 
ment, and the capacity of the parties to it, must be governed by the 
laws of this State. The only question which requires discussion is, 
whether, by that law, the assignment is void for want of interest of the 
assignee in the life insured. 

The policy', in consideration of an annual premium to be paid by 
Mrs. Fellows, assured the life of her husband for her sole use, and for 
her children if she should not survive her husband. The promise was 
to the assured, her executors, administrators, and assigns. The policy 
contained no reference to an assignment except the following : " N. B. 
If assigned, notice to be given to this company." The policy was 
issued in 1855. In 1881, an assignment in the words following, signed 
by Mrs. Fellows, her husband, and children (who were all of age), was 
indorsed upon the policy: "I hereby assign, transfer, and set over 
unto George Allen, of Boston, all my right, title, and interest in and 
to the within policy of life insurance, and all right that may at any time 
be coming to me thereon." 

A more formal instrument of assignment, with a power of attorney to 
receive " all sums of money that may at any time hereafter be or become 


due and payable to us, or either of us, by the terms of said policy," was 
alfso executed by the same parties. The policy and assignments were 
delivered to the defendant Allen, and notice thereof given to the plain- 
tiff. The consideration of the assignment was the paj'ment of a sum 
of money b}' the assignee, and the discharge of certain notes held by 
him against Mr. Fellows. It is to be assumed, on the report, that the 
transaction was not, in the intention of the parties, a wagering contract, 
but an honest and bona fide sale of the equitable interest in the policy. 
The defendant Allen had no insurable interest in the life of Mr. Fellows 
except as his creditor, and that interest ceased when he ceased to be a 
creditor h^ accepting the assignment in satisfaction of his debt, so that 
he is in the position of a bona fide assignee of the policy for valuable con- 
sideration without interest in the life insured, and the question between 
him and the assignor is which has the equitable interest in the policy. 

The policy is a common form of what is called life insurance, and is 
a contract by which the insurer, in consideration of an annual paj'ment 
to be made by the assured, promises to pay to her a certain sum upon 
the death of the person whose life is insured. To pi-event this from 
being void, as a mere wager upon the continuance of a life in which 
the parties have no interest except that created by the wager itself, it 
is necessary that the assured should have some pecuniary interest in the 
continuance of the life insured. It is not a contract of indemnity for 
actual loss, but a promise to pay a certain sum on the happening of a 
future event from which loss or detriment may ensue, and if made in 
good faith for the purpose of providing against a possible loss, and not 
as a cloak for a wager, is sustained by any interest existing at the time 
the contract is made. See Loomis v. Eagle Ins. Co., 6 Gray, 396, 
and Forbes v. American Ins. Co., 15 Gray, 249. Mrs. Fellows had 
an insurable interest in the life of her husband, and the policy to her 
was a valid contract to pay the sum insured to her upon the event of 
his death. This contract was a chose in action assignable by her. 
Palmer v. Merrill, 6 Cush. 282. 

The policj' was not negotiable, and her assignment could not, in this 
State, pass the legal, but only the equitable, interest in the contract. 
The assignment was a contract between her and her assignee, to which 
the insurer was not a party. It purported to give to the assignee only 
the equitable interest of the assignor in the contract, — the right to 
recover in the name of the assignor the sum which should become due 
to her under the contract. 

The direction in the policy, that notice of an assignment of it should 
be given to the insurer, had no effect upon the character of the assign- 
ment, however its operation might have been limited had notice not 
been given. The assent of the insurer to the assignment would not 
make a new contract of insurance. Its only effect would be to enable 
the assignee to enforce in his own name, instead of the name of the 
assignor, the rights she held under the contract. McCluskey v. Provi- 
dence Washington Ins. Co., 126 Mass. 306. 


This distinction between the assignment of the interest of the insurecl 
in a polic}-, which is a contract between the assignor and the assignee 
onlj-, and the transfer or renewal to a third person of a policy, which 
is a contract to which the insurer is a party, is illustrated in the case of 
fire insurance. That is strictlj- a personal contract of indemnity to tlie 
assured, and he, or his assigns in his name, can recover only an indem- 
nity for actual loss to him. If he has no interest in the property in- 
sured at the time of the loss, he can recover nothing, and if he parts 
with his interest before a loss, he becomes incapacitated to recover 
upon the policj', and it ceases to insure anything and becomes void. 
Wilson V. JUll, 3 Met. 66. It follows that, where a purchaser of 
insured propertj' would have the benefit of an unexpired term of insur- 
ance, it must be by a new contract with the insurer, and not by assign- 
ment from the insured. This is usuallj- provided for in the policy, so 
that by its terms an assignment by the insured with the assent of the 
insurer will continue the policj' to the purchaser ; but in such a case 
there is a new contract of insurance with the purchaser upon his newlj' 
acquired interest, and he becomes the assured. But the assured in a 
fire policy can, while his insurance continues, assign his rights under 
the policy in the same manner as the insured in a life policj' can do. 
In Fogg v. Middlesex Ins. Co., 10 Cush. 337, Chief Justice Shaw 
says, after referring to the kind of transfer just mentioned: "But 
there is another species of assignment, or transfer it may be called, in 
the nature of an assignment of a chose in action, it is this : ' In case 
of loss, pay the amount to A. B.' It is a contingent order or assign- 
ment of the money, should the event happen upon which monej- will 
become due on the contract. If the insurer assents to it, and the event 
happens, such assignee may maintain an a,ction in his own name, be- 
cause, upon notice of the assignment, the insurer has agreed to paj' the 
assignee instead of the assignor. But the original contract remains ; 
the assignment and assent to it form a new and derivative contract out 
of tlie original. But the contract remains as a contract of guarantj' to 
the original assured ; he must have an insurable interest in the prop- 
ertj-, and the property must be his at the time of the loss. The 
assignee has no insurable interest, jonwia/acie, in the propertj^ burnt, 
and does not recover as the party insured, but as the assignee of a 
party who has an insurable interest and a right to recover, which right 
he has transferred to the assignee, with the consent of the insurers." 
See also PMllii?s v. Merrimack Ins. Co., 10 Cush. 350. 

If Mrs. Fellows had surrendered or forfeited her policy, and the con- 
tract between her and the insurer had become null, a new contract, by 
which the defendant Allen should have become the assured instead of 
Mrs. Fellows, might have required an insurable interest in him, though 
in the form of an assignment and a renewal or revival of the original 
policy. But the original policy has not been surrendered or forfeited, 
nor the contract in any waj' changed. Mrs. Fellows is still the assured, 
and the policy is supported by her interest in the life, and is in form 


payable to her. If the assignment is valid, it is paj'able to her in trust 
for the assignee; if void, for her own use. In no respect can the 
assignment affect the validity of the contract of insurance, or taint that 
as a wagering policy. The only question that can be raised is as to 
the assignment itself, — whether, as between the parties to it, it is void 
as a gaming contract. 

That a right to receive mone}' upon the death of another is assign- 
able at law or in equity will not be questioned. The right of Mrs. 
Fellows, under our law, to assign the equitable interest in the policj' 
in question is not denied ; but it is contended that she can assign it 
only to some one who has an insurable interest in the life of Mr. 
Fellows. We find no reason for this exceptional limitation of the right 
of assignment, which would allow Mrs. Fellows to assign her policy to 
Mr. Fellows, or his creditors or dependent relatives, but would forbid 
her to pledge it for her own debts, or sell it for her own advantage. 
If there is any such reason, it must be found in the contract of assign- 
ment itself, and irrespective of the rule that the original contract must 
be supported by an interest in the life insured. That rule was satisfied. 
Whether a similar rule affects the contract between the assignor and 
assignee must depend upon considerations applicable to that contract 

One objection urged is, that it gives to the assignee an interest in the 
death of the person whose life is insured, without a counterbalancing 
interest in his life. It is true that every person who is in expectation 
of property at the death of another has an interest in his death, but it 
does not follow, and is not true, that the law does not allow the posses- 
sion and assignment of such expectations, nor that an insurable inter- 
est is required in a life insurance for the purpose of protecting the life 
insured. The objection applies with equal force to the assignment of a 
provision made for one upon the death of another by deed or will as to 
the assignment of a like provision in the form of a life insurance. 

The other objection urged is, that such transactions maj' lead to 
gaming contracts. This does not meet the question, which is whether 
such an assignment is in itself illegal as a wagering contract. Most 
contracts have an element of gambling in them. There is uncertainty 
in the value of any contract to deliver property at a future day, and 
great uncertainty in the present value of an annuity for a particular 
life, or of a sum payable in the event of a particular death, and such 
contracts and rights are often used for gambling purposes. The ques- 
tion is whether the right to a sum of money, payable on the death of a 
person under a contract in the form of an insurance policy, has any 
special character or quality which renders it less assignable than the 
right to a sum payable at the death of the same person under any other 
contract or assurance, or than a remainder in real estate expectant on 
such death. We see nothing in the contract of life insurance which 
will prevent the assured from selling his right under the contract for 
his own advantage, and we are of opinion that an assignment of a 


policy made by the assured in good faith for the purpose of obtaining 
its present value, and not as a gaming risk between him and the 
assignee, or a cover for a contract of insurance between the insurer and 
the assignee, will pass the equitable interest of the assignor ; and that 
the fact that the assignee has no insurable interest in the life insured is 
neither conclusive nor prima facie evidence that the transaction is 

In England the question was raised whether the assignment of a life 
insurance without interest was prohibited by the St. of 14 Geo. III. 
c. 48, which forbids any insurance on the life of a person in which the 
person for whose benefit the insurance is made has no interest, or by 
way of gaming or wagering, and it was held that such an assignment 
was valid. Ashley v. Ashley, 3 Sim. 149. Shadwell, V. C, said, 
' ' It appears to me that a purchaser for valuable consideration is entitled 
to stand in the place of the original assignor, so as to bring an action, 
in his name, for the sum insured." The same has been held in New 
York, where a similar statute exists. /St. John v. American Ins. Co., 
3 Kern. 31 ; Valton v. National Fund Assur. Co., 20 N. Y. 32. It 
has been decided in New York that insurance on a life in which the 
assured has no interest is void at common law, and that the St. of 14 
Geo. III. c. 48, so far as it prohibits such insurance, is a declaratory 
act. Ruse v. Mutual Benefit Ins Co., 23 N. Y. 616. In Rhode 
Island in a well-considered case, decided in 1877, a sale and assign- 
ment of a policy of life insurance to one who had no interest in the 
life, made, not as a contrivance to circumvent the law, but as an honest 
and bona fide transaction, was held valid. Clark v. Allen, 11 R. I. 
439. In Cunningham v. Smith, 70 Penn. St. 450, a person took out 
an insurance on his own life, and paid for it with the money of the 
defendants, intending to assign the policy to the defendants, and did 
so assign it. The assignment was sustained. The court say that the 
defendants ma}' have had such an interest in the life insured as would 
have entitled them to insure his life in their own name, although this 
was doubtful ; but that the assured had an interest in his own life, " and 
if he was willing to insure himself with their money and then assign 
the policy to them, there is no principle of law which can prevent such 
a transaction." This transaction is obviously more open to objection 
than the assignment of the interest in a valid subsisting policy. In 
^tna Ins. Co. v. France, 94 U. S. 561, a brother procured an insur- 
ance on his life for the benefit of his married sister, who was in no way 
dependent upon him. It was held to be vaUd, and that it was imma- 
terial what arrangement was made between them for the payment of 
the premium. In delivering the opinion of the court, Mr. Justice 
Bradley, referring to the case of Connecticut Ins. Co. v. Schaefer, 94 
U. S. 457, in which he delivered the opinion, said : " An}- person has 
a right to procure an insurance on his life and to assign it to another, 
provided it be not done by way of cover for a wager policy ; and where 
the relationship between the parties, as in this case, is such as to con- 


stitute a good and valid consideration in law for any gift or grant, the 
transaction is entirely free from such imputation." 

Several cases have been cited as deciding that any assignment of a 
life policy to one who has no interest in the life is void. We will 
notice them briefly. Cammack v. Lewis, 15 Wall. 643, and Warnock 
V. Davis, 104 U. S. 775, were both cases in which the policies were 
taken out, by the procurement of the assignees, in order that they might 
be assigned to them, under such circumstances as that they might 
well be held to be in evasion of the law prohibiting gaming policies. 
The remark of Mr. Justice Field in the latter case, that "the assign- 
ment of a policy to a partj' not having an insurable interest is as 
objectionable as the taking out of a policy in his name," was not neces- 
sary to the decision. In Franklin Ins. Co. v. Hazzard, 41 Ind. 116, 
the assured had failed to pay the premiums, and had notified the 
insurers that he should not keep up the policj'. He afterwards assigned 
it for $20, the insurer assenting and receiving the premiums. The 
assignment was held void, the court saying that such policies are 
assignable, but not " to one who buj-s them merely as matter of specu- 
lation without interest in the life of the assured." Neither of these 
cases decides, whatever dicta may have accompanied the decision, that 
all assignments without interest are illegal. The case last cited is 
affirmed in the case of Franklin Ins. Co. v. Sefton, 53 Ind. 380, in 
which Chief Justice Worden, quoting from the opinion of the court in 
Mutson V. Merrifield, 51 Ind. 24, — that " the party holding and own- 
ing such a policy, whether on the life of another or on his own life, has 
a valuable interest in it, which he may assign, either absolutelj' or by 
way of security, and it is assignable like any other chose in action," — 
saj-s that it is not stated that it is assignable to a person incapable of 
receiving an assignment; and adds, " It may be added that where the 
policy holder dies before the death of the party whose life is insured, 
perhaps the administrator of the holder could, for the purpose of con- 
verting the assets into money and settling up the estate in due course 
of law, sell the policy to any one who might choose to become the 

Missouri Valley Ins. Co. v. Sturges, 18 Kan. 93, assumes and 
decides that the same objections lie to an assignment without interest 
as to an original insurance with no interest. The distinction between 
the two transactions is not considered. Basye v. Adams, 81 Ky. 368, 
seems to decide, on the authoritj' of Warnock v. Davis, Cammack v. 
lewis, Franklin Ins. Co. v. Sazzard, and Missouri Valley Ins. Co. 
V. Sturges, ubi supra, that an assignment without interest is void as 
against public policy. 

The case of Stevens v. Warren, 101 Mass. 564, decided in 1869, has 
been supposed to hold that an assignment of the right of the assured in 
a life policy to one who has no interest in the life, is void without 
regard to the circumstances and character of the particular transaction, 
and has been referred to in some of the cases just cited as an authority 


to that effect. We think that decision has been misunderstood, and 
that, in connection with other decisions of this court, it shows that the 
law in this Commonwealth accords with that laid down in Clark v. 
Allen, ubi supra. 

In Oampbellr. New England Ins. Co., 98 Mass. 381, decided in 1868, 
a policy was taken out by one Andrew Campbell on his own life, and 
payable to himself and his representatives for the benefit of the plaintiff, 
who had no insurable interest in the life. The question of the right 
of the plaintiff to sue in her own name was waived, and the question 
considered was whether the policy could be supported for her benefit. 
In delivering the opinion of the court Mr. Justice Wells saj's ; " It is 
the interest of Andrew Campbell in his own life that supports the 
policy. The plaintiff did not, by virtue of the clause declaring the 
policj' to be for her benefit, become the assured. She is merely 
the person designated by agreement of the parties to receive the pro- 
ceeds of the policj' upon the death of the assured. The contract (so 
long as it remains executory) , the interest by which it is supported and 
the relation of membership, all continue the same as if no such clause 
were inserted. It was not neeessarj', therefore, that the plaintiff 
should show that she had an interest in the life of Andrew Camp- 
bell, by which the policy could be supported as a policj- to herself as 
the assured." 

The question in /Stevens v. Warren, which was decided about a year 
later, and in which the opinion is given by the same justice, was 
between the representatives of the assured and of his assignee. The 
terms, consideration, and circumstances of the assignment are not 
stated ; it is only said that the defendant Warren claimed by virtue of 
an assignment of the policj', and that he was a purchaser of it, and had 
no interest in the life insured. The policy contained a provision that 
any assignment of it without the assent of the insurers should be void. 
The court held that the assignee acquired no rights under the assignment 
as against the representatives of the assignor, putting the decision upon 
both the grounds, that the assignment was prohibited by the contract 
of insurance, and that it was against the policy of the law against 
gambling poUcies. The court said : ' ' The insurers are entitled to the 
fuU benefit of such a provision, as a matter of contract ; and, as the 
policy of the law accords with its purpose, the court will not regard 
with fa^'or anj' rights sought to be acquired in contravention of the 
provision." In considering one branch of the case, the following lan- 
guage is used: "The rule of law against gambling policies would be 
completelj- evaded, if the court were to give to such transfers the effect 
of equitable assignments, to be sustained and enforced against the 
representatives of the assured." That this language was not intended 
to apply to all assignments in which the assignee had no interest in the 
life, but to such only as were found or appeared to be in fact gaming 
transactions, is evident from what immediately follows in the opinion, 
in which the doctrine of Campbell v. New England Ins. Co., is 


adopted, and applied to assignments: "When the contract between 
the assured and the insurer is ' expressed to be for the benefit of 
another, or is made payable to another than the representatives of the 
assured, it may be sustained accordingly. The same would probabl}' 
be held in case of an assignment with the assent of the insurers. But 
if the assignee has no interest in the life of the subject of insurance 
which would sustain a policy to himself, the assignment would take 
effect only as a designation, by mutual agreement of the contracting 
parties, of the person who should be entitled to receive the proceeds, 
when due, instead of the personal representatives of the assured. 
And if it should appear that the assignment was a cover for a speculat- 
ing risk, contravening the general policy of the law, it would not be 
sustained." The assent of the insurer, if not required in the policj', 
must be immaterial as regards the validity of the transaction between 
the assignor and the assignee. If given, it would only enable the 
assignee to assert in his own name, instead of that of the assignor, the 
rights acquired by the assignment. So far as the transaction itself, 
apart from the circumstances attending it is concerned, taking out a 
policy payable to a stranger would seem more open to objection, as a 
gambling transaction, than selling a policj' which had acquired an actual 
value. As the circumstances of the transaction are not disclosed in the 
report, they must be supposed to have been such as to call for the 
decision and the remarks which were applied to them in the application 
of the principle laid down. 

In Palmer v. Merrill, ubi supra, where the subject of assignments 
of the interest in a life insurance is elaborately considered by Chief 
Justice Shaw, there is no suggestion that any interest of the assignee 
in the life is necessary to support the assignment, but it is considered 
as an ordinary assignment of a chose in action. 

In Troy v. Sargent, 132 Mass. 408, it was held that the interest of 
a wife in a policy to her husband on his life, for her benefit, could 
be taken for a joint debt of herself and husband. Could it not be 
taken for her sole debt, although the creditor would have no interest 
in the life insured ? A policy of life insurance is assets which pass to 
an assignee in bankruptcy, and can be reached by creditors. Is it 
necessary, when sold by the assignee or creditor, that the purchaser 
should have an interest in the life insured ? 

The general rule laid down in Stevens v. Warren, ubi supra, " that 
no one can have an insurance upon the life of another, unless he has an 
interest in the continuance of that life," and from which the inference 
that an assignee of a party must have an insurable interest seems to 
have been drawn, we think, is not strictly accurate, or may be mislead- 
ing. An insurable interest in the^ assured at the time the policy is 
taken out is necessary to the validity of the policy, but it is not neces- 
sary to the continuance of the insurance that the interest should con- 
tinue ; if the interest should cease, the policy would continue, and the 
insured would then have an insurance without interest. Dolby v. 


India & London Assur. Co., 15 C. B. 365, and Law v. London Policy 
Co., 1 Kay & Johns. 223, cited in Loomis v. Eagle Ins. Co., 6 Graj-, 
896 ; Connecticut Ins. Co. v. Schaefer, ubi supra ; Rawls v. American 
Ins. Co., 27 N. Y. 282 ; Provident Ins. Co. v. Baum, 29 Ind. 236. 
The value and permanency of the interest is material only as bearing 
on the question whether the policy is taken out in good faith, and not 
as a gambling transaction. If valid in its inception, it will not be 
avoided by the cessation of the interest. The mere fact that the 
assured himself has no interest in the life does not avoid or annul the 

"We think that the second ruling was correct, and that the fact that 
the assignee had no insurable interest in the life does not avoid the 
assignment. It is one circumstance to be regarded in determining the 
character of the transaction, but is not conclusive of its illegality. 

Decree for the defendant Allen. 



Note. — In this chapter are collected cases illustrating the rights which may he 
had in personal property by persons other than the owners. The principal heads 
under which these rights may conveniently he classed are (1) Taking on Judicial 
Process; (2) Distraint ; (3) Vendor's Lien ; (4) Bailment ; (5) Finding. The law of 
Vendor's Lien is test dealt with in connection with Sales ; and the subject of Distress 
is omitted. 




Exchequer. 1610. 

[Reported 2 Eolle, 4i- 661, pi 4.] 

Per Curiam. If a searcher searches certain stuffs, and unpacks 
them and puts them in the dh-t, whereby they are damaged, although 
the search was legal, yet the abuse of this authority will make him a 
trespasser ab initio. 


King's Bench. 1670. 

[Seported 2 Saund. 47.] 

Trover, upon special verdict. The case was this ; the plaintiff, be- 
ing sheriff, seized goods in execution by virtue of the writ of fieri 
facias ; and afterwards, and before they were sold, the defendant took 
and earned them away, and converted them to his own use ; for which 
the plaintiff brought his action. And on the first argument it was ad- 
judged that the action well lies ; and that the plaintiff, being sheriff, 
has such a property in the goods, by seizing them in execution, that 
he may maintain an action of trespass or trover at his election ; and 
judgment was given for the plaintiff nisi, etc. , but it was not moved 

Sympson, for the plaintiff. 

Winnington, for the defendant. See 34 H. 6, 36 a., and the case 


of Ayre v. Aden in Moor. 737 ; Cro. Jac. 73 ; Dalt. Office of Sheriffs, 
case 2, fol. 19, which case was adjudged as reported in those books, 
against the report of Yelverton, 44, and the Eoll is in Easter 44 Eliz. 
EoU. 318. » 


King's Bekch. 1826. 

[Reported 5 B. & C. 485.] 

Trespass for breaking and entering the plaintiff's dwelling-house, and 
remaining there a long time, to wit, for six hours, and until the plaintiff, 
in order to obtain the quiet and peaceable possession of his house, paid 
to the defendant £119 10s. 9d. of lawful money. As to breaking and 
entering the house, and making a noise therein, and remaining there 
for the space of time in the declaration mentioned, pleas, first, not 
guilty ; second, actio non, because before the said time, when, to wit, 
on, &c.. Sir W. T., bart., sued out of the court of our lord the king, 
before the king himself at Westminster, a certain writ of _;?. fa. directed 
to the sheriff of Somersetshire, commanding him to cause to be levied 
of the goods and chattels in his bailiwick of J. H., E. S., and the plain- 
tiff, as well a certain debt of £200, which the said Sir W. T. had then 
lately recovered against them in his said Majest3''s said court ; as also 
£10 which in the same court were awarded to the said Sir W. T. for 
his damages, &c., which said writ was delivered to the said sheriff, 
who made his warrant to E. S.,and the defendant then and at the said 
time when, &c., being a bailiff of the said sheriff, and thereby by virtue 
of the said writ commanded them, &c., which said warrant afterwards 
and before the return of the said writ, and before the said time, when, 
&c., to wit, on, &c. was delivered to the defendant so being such bailiff, 
to be executed in due form of law, by virtue of which said writ and war- 
rant the defendant afterwards, and before the return of the writ, to wit, 
at the said time when, &c. , peaceably entered the said dwelling-house 
in order to levy the debt and damages aforesaid, according to the exi- 
geucj^ of the writ, and on that occasion, and for that purpose stayed and 
continued in the said dwelling-house for the said space of time in the 
declaration mentioned, being a reasonable time in that behalf. And 
this, &c. Third plea to the trespasses in the introductory part of the 
second plea mentioned, stated the issuing of a Ji. fa. indorsed to levy 
£110 15s. besides poundage, &c., and a warrant to defendant to levy; 
that defendant, in obedience to the warrant, peaceably entered in order 
to levy, and did levy the said last-mentioned sum, together with pound- 
age, &c. Eeplication to the second plea, that the writ and warrant, in 
that plea mentioned, were respectively indorsed to levj' a much less sum 
than the debt and damages in that plea mentioned, to wit, £110 15s., 
besides poundage, &c., and that shortly after the defendant entered into 


the dwelling-house, in which, &c., and whilst he stayed and continued 
therein as in the second plea mentioned, and before the said writ and 
■warrant were full}' executed, the defendant, under color and pretence 
of the said writ and warrant, extortionatel}- and unlawfully' demanded, 
exacted, and received of and from the plaintiff a much larger sum of 
money, to wit, £3 10s. more than he was entitled to levy upon the goods 
and chattels of the plaintiff, under and by virtue of the said writ and 
warrant, and according to the direction indorsed thereon as aforesaid ; 
which said sum of £3 10s., together with the further sum £116 Os. 9(f., 
amounting in the whole to a large sum, to wit, £119 10s. 9c?., being 
the amount then and there claimed by the defendant by virtue of the 
said writ and warrant, the said plaintiff was forced and obliged to paj' 
for the purpose in the declaration mentioned. And this, &c. Similar 
replication to the third plea. Demurrer and joinder. 

E. Lawes, in support of the demurrer. 

Manning, contra. 

Baylet, J. It seems to me that this replication is bad, and that the 
defendant cannot be deemed a trespasser ab initio. In the cases cited 
from Rolle's Abr. and Cro. Car., where it is said that a sheriff is made a 
trespasser ab initio, \)y the neglect to return a writ, the expression is 
inaccurate. There, for want of the return, no complete justification 
was ever shown. The distinction is this, where there are facts alleged 
on the record, making out a good defence, but something added in the 
replication destroj's that defence, the party is made a trespasser ab 
initio. But if the sheriff seizes goods under a writ where it is his dutj- 
to make a return, he never has a justification unless he discharges that 
duty ; he must, therefore, allege that return in his plea. A bailiff not 
having the return of process is not bound to make such allegation, as 
appears by Girling' s Case, which has been cited for the plaintiff. Here, 
then, the defendant had a good justification without showing a return. 
The answer given to it is, " that before the writ and warrant were fully 
executed, the defendant demanded, exacted, and received a larger sum 
than he was entitled to levj'." Does that make him a trespasser with 
reference to the acts alleged in the count ? Where the subsequent act 
is a trespass, the law assumes that the party did not enter for the pur- 
pose alleged in the plea, but for the purpose of committing the trespass. 
But here the subsequent act was not a trespass, nor can it be reason- 
ably supposed that the original entry was for the purpose of the extor- 
tion. For these reasons I think that the defendant cannot, in this case, 
be considered as a trespasser ab initio, and that our judgment must be 
in his favor. 

HoLROTD, J. If the allegations contained in this replication were 
sufficient to make the defendant a trespasser a5 initio, Vae. consequences 
to him would be very serious, for he would be liable to damages to the 
extent of the whole sum levied, and not merely the surplus exacted il- 
legally. He is still liable for the extortion, although not for the sum 
■which he was authorized to levy. The cases cited as to the necessity of 


a return hj a sheriff are not applicable. In them, but for the return, 
the act would have been unlawful ab initio; instead of saying that the 
want of the return made the sheriff a trespasser ab initio, it would be 
more correct to say that the presence of the return was necessary in 
order to make his act lawful ab initio. The onlj^ question here is, 
whether the first resolution in the Six Carpenters' Case was correct, viz. 
that the parties were not trespassers ab initio, because the subsequent 
act was not a trespass. This replication does not show that the defend- 
ant held the goods longer than he was entitled so to do ; but that he 
took £3 10s. more than he was authorized to levj'. The whole money 
was paid at once, and until a part was paid the bailiff had a right to 
keep possession. It is not averred that the smaller sum was tendered 
and refused ; and perhaps even that, according to the doctrine in 8 Co. 
146, might not have been sufficient. 

LiTTLEDALE, J. If the defendant were a trespasser ab initio there 
can be no doubt that the plaintiff would be entitled to recover the whole 
sum levied, just as if no justification at all had been pleaded. Consider- 
ing the numerous instances of extortion that occur, there would unques- 
tionabty have been manj' actions of this nature had they been thought 
maintainable. It is contended, however, that such is the law according 
to the Six Carpenters' Case. Whether there is much good sense in that 
case it is unnecessary to say ; for the decision of the present question 
it suffices to say, that in every instance put by Lord Coke there was a 
subsequent act of trespass, which made the party liable to be treated 
as a trespasser ab initio. Com. Dig. Trespass (C. 2), Di/e v. Leather- 
dale, 3 Wils. 20 ; and Taylor v. Cole, 3 T. R. 292, all confirm Lord 
Coke's view of the case. Here no act of trespass subsequent to the 
entry and levy is shown ; the replication alleges the extortion to have 
been before the writ was fullj' executed. There are many statutes 
against extortion, but in none of them is it said that the party guiltj' of 
it is a trespasser ; nor is he said to be so in any of the instances put in 
Com. Dig. tit. Extortion, or Trespass ab initio. I think, therefore, 
that this replication is bad. Judgment for the defendant. 


Supreme Judicial Couut of Massachusetts. 1818. 

{Report&d 15 Mass. 82.] 

The case was thus. There were two tenants in common of a chat- 
tel, and the sheriff, upon an execution against one of them, seized the 
chattel and sold the whole of it, and paid over the whole money to the 
judgment-creditor. The other part-owner of the chattel brought tres- 
pass against the sheriff; and it was holden that the action well lay. 

It was objected that, as the sheriff was authorized to seize the whole 


on the execution, he could not be a trespasser ; and that the plaintiflf 
ought to have brought trover, or assumpsit for the proceeds of the 
sale of his share. But it was answered and resolved by the whole 
court, that although the sheriff might seize the whole, j'et that he 
ought to have sold but the share of the judgment-debtor ; the subse- 
quent abuse of his authority made him a trespasser ab initio ; and the 
other part-owner, in such a case, might maintain either trover or tres- 
pass, at his election. 

The Solicitor- General, and Shaw, for the plaintiff. 
W. Sullivan, for the defendant. 


Supreme Court of New York. 1818. 

[Reported 15 Johns. 401.] 

This was an action of replevin, for taking certain goods and chattels 
of the plaintiff. The defendant pleaded to the declaration, which was 
in the ordinary form, — 

1. Non Cepit. 

2. An avowry, setting forth that the defendant, on the 31st of De- 
cember, 1817, was under-sheriff of the county of Cortlandt, on which 
day &fi.fa. directed to the sheriff of Cortlandt was isjued out of this 
court against the plaintiff, at the suit of Aaron Benedict, for a debt 
of $3,132, and $14.43 damages and costs ; that the writ was delivered 
to the defendant to be executed, who thereupon, and before the return 
day thereof, levied upon the goods in question, continued in posses- 
sion of them until the twelfth of January, 1818, and sold them on the 
tenth of January to satisfy the execution. 

3. An avowry, stating the execution and levy, and that the defendant 
continued in possession of the goods until the twelfth of January, 1818. 

4. A cognizance, as bailiff of the sheriff of Cortlandt, setting forth 
the execution, levy, and sale. 

The plaintiff pleaded, — 

1. To the first avowry, that before the taking of the goods and chat- 
tels mentioned in the declaration, and while the fi- fa. was in the de- 
fendant's hands, to wit, on the seventh of Januarj^, 1818, he settled 
with the defendant as to \}a& fi. fa., and found that there was due 
and owing thereon 1734.04, including sheriff's fees, which the plaintiff 
tendered to the defendant, and which the defendant accepted in satis- 
faction and discharge of the execution. 

2. A similar plea to the second avowry. 

3. To the first and second avowries, that on the seventh of January, 
1818, one Barney, at the request of the plaintiff, tendered and paid 
to the defendant, the sum of $734.04, being the amount then due 


and owing on the execution, including sheriff's fees, which sum the 
defendant accepted, and gave a discharge in full satisfaction of the 

4 and 5. To the cognizance, the plaintiff pleaded a settlement with, 
and payment to the defendant, by himself, and by Barney, at his re- 
quest, as in his first and third pleas. 

To the second plea the defendant replied, denying a settlement and 
payment of the amount due on the execution ; and as to the first, third, 
fourth, and fifth pleas, there was a demurrer and joinder. The cause 
was submitted to the court without argument. 

Spencee, J., delivered the opinion of the court. The first objection 
to the pleas is that they admit the original caption to be lawful, and 
that when that is the case, replevin does not lie. 

In the case of Hopkins v. Hopkins, 10 Johns. Rep. 372, this court 
adopted the well known and ancient principle, that when a person acts 
under an authority or license given by the law, and abuses it, he shall 
be deemed a trespasser ab initio ; but the action is grounded on a 
tortious taking ; and the Six Carpenters' Case, 8 Co. 146, recognizes 
a distinction between the actual and positive abuse of a thing taken 
originally by authoritj' of the law, and a mere nonfeasance, such as a 
refusal to deliver an article distrained. 

The conclusive objection to all the pleas is, that confessedly the de- 
fendant took the plaintiff's goods under and by virtue of an execution ; 
and thej' are, in the language of this court, in Thompson v. Button, 
14 Johns. Rep. 86, in the custodj* of the law, and it would be repug- 
nant to sound principles to permit them to be taken out of such cus- 
todj' when the officer has found them in the possession of the defendant 
in the execution, and taken them out of his possession. 

The pretence set up here is, that the execution was paid and satisfied. 
Whether it was or not, makes no difference in the principle. If the 
fact be true, the plaintiff is not without his redress ; he cannot be al- 
lowed to set up that fact to devest the sheriff's possession ; the goods 
were lawfully taken by the defendant, and replevin is not the appro- 
priate remedy. If it were allowed, the execution of the writ of fieri 
facias might, in all cases, be delayed or eluded. 

Judgment for the defendant. 




A. Nature and Acquisition of Lien. 

King's Bench. 1632. 

[Beported Cro. Car. 271.] 

Action of trover of five kine. Upon not guilty pleaded, a special 
verdict was found, that one Belgrave was possessed of those five kine, 
and put them to pasturage with the defendant, and agreed to paj- to 
him twelve pence for every cow weekly as long as they remained with 
him at pasture ; and that afterwards Belgrave sold them to the plain- 
tiff, and he required them of the defendant, who refused to deliver 
them to the plaintiff, unless he would paj- for the pasturage of them 
for the time that they had been with him, which amounted to ten 
pounds : afterwards one Foster paying him the said ten pounds bj- the 
appointment of Belgrave, he delivered the five beasts to Foster ; and if 
super totam. materiam he be guilty, they find for the plaintifl', and 
damages twenty-five pounds ; and if, &c. then for the defendant. 

Jones, Justice, and myself (absentibus cmteris justiciariorum) , con- 
ceived, that this denial upon demand, and delivery of them to Foster, 
was a conversion, and that he may not detain the cattle against him 
who bought them until the ten pounds be paid, but is inforced to have 
his action against him who put them to pasturage. And it is not like 
to the cases of an innkeeper or taylor ; they may retain the horse or 
garment delivered them until they be satisfied, 1 Com. Dig. 211, but 
not when one receives horses or kine or other cattle to pasturage, paj-- 
ing for them a weekly sum, unless there be such an agreement betwixt 
them. Whereupon rule was given, that judgment should be enterei? 
for the plaintiff. 


Nisi Prius. 1702. 

[Reported 2 Ld. Raym. 752.] 

The plaintiff brought an action of trover against the defendant, 
being a common carrier, for goods delivered to him to carry, &c. 
Upon not guilty pleaded, the defendant gave in evidence, that he 
offered to deliver the goods to the plaintiff, if he would pay him his 



hire ; but that the plaintiff refused, &c., and therefore he retained 
them. And it was ruled by Holt, Chief Justice, at Guildhall (the case 
being tried before him there) Maj- 12. 1 Ann. Reg. 1702, that a carrier 
may retain the goods for his hire ; and upon direction, the defendant 
had a verdict given for him. 

Chancery. 1755. 
[Reported Ambl. 252.] 

This cause coming on for further directions, the case was : — 

Mico was general agent in England for Watkins, who was a merchant 
abroad, and at different times had received considerable consignments 
of goods, and upon the balance of account was in disburse. After- 
wards Watkins consigned to him a pjircel of logwood, for which he 
paid the charges, &c. Watkins coming to England, Mico said, as he 
was here, he might dispose of the goods himself: Watkins accordingly 
employs a broker to sell them, and Mico tells the broker, that Watkins 
intends to sell them himself, to save commission ; and Mico gave orders 
to the warehouseman, to deliver the goods to that broker. The broker 
sells them, and makes out bills of parcels to Watkins ; and opens an 
account with Watkins, but takes no notice of Mico. 

After the goods were sold, Mico begins to suspect Watkins' circum- 
stances, and resorts to the broker, to know whether he has opened an 
account with Watkins. 

The great question in the cause was. Supposing Mico had a lien on 
these goods and produce, so as to be entitled to retain them for the 
balance of the account; whether he has not parted with that right? 

After argument at the bar, Lord Chancellor adjourned the cause 
to the 27th, and desired the four merchants, who were examined in the 
cause on the different sides, might attend in court, in order to be con- 
sulted by him upon the point. And aceordingl}- this day they attended, 
viz., Mr. Alderman Baker and Bethell, Mr. Willetts and Fonereau ; 
and after having asked them several questions, upon the custom and 
usage of merchants relating to the matter in doubt, his Lordship gave 
his opinion with great clearness, as follows : — 

Lord Hardwicke, Chancellor. This is a case of bankruptcy, in which 
this court alwaj's inclines to equality : yet if any person has a specific 
lien, or a special property in goods, which is clear and plaih, it shall 
be reserved to him, notwithstanding the bankruptcj'. 

Question is, whether in this case, Mico is intitled to a specific lien, 
and consequently a preference in point of satisfaction out of the money 
arising by sale of these goods ? 

Two things are to be considered : — 


1st. What lien a factor gains on goods consigned to liim by a mer- 
chant abroad ? and whether Mico gained such lien in this ease ? 

2d. If he did, whether he has done anything to part with it ? 

As to 1st. All the four merchants, both in their examination in the 
cause, and now in court, agree, that if there is a course of dealings and 
general account between the merchant and factor, and a balance is due 
to the factor, he may retain the ship and goods, or produce, for such 
balance of the general account, as well as for the charges, customs, &c., 
paid on the account of the particular cargo. Thej- consider it as an 
interest in the specific things, and make them articles in the general 
account. Whether this was ever allowed in trover at law, where the 
goods were turned into money, I cannot say ; nor can I find any such 
case. I have no doubt, it would be so in this court, if the goods 
remained in specie ; nor do I doubt of its being so, where they are 
turned into money. 

To the 2d question. I am of opinion Mico has parted with his right, 
and that it is for the benefit of trade to say he has. 

All the merchants agree, that although a factor may retain for the 
balance of an account, yet if the merchant comes over, and the factor 
delivers the goods up to him, by his parting with the possession he 
parts with the specific lien. Such is the law of the land as to retainers 
in other cases. 

Question. "Whether this case amounts to the delivery up of the log- 
wood to the principal? I think it does. Mico suflfers Watkins to 
employ a broker ; and tells the broker, that Watkins intends to sell 
them himself, to save commission. Mico gives orders to the ware- 
houseman to deliver the goods to the broker. The broker sells them, 
and makes out bills of parcels to Watkins, and takes no notice of 
Mico. It amounts to the same thing, as if Mico had delivered the 
goods in specie to Watkins. 

It is safer for trade to hold it in this manner, than otherwise ; for by 
that manner of acting, Mico gave Watkins a credit with other people 
(for the sale was public, and by that the goods appeared to be Wat- 
kins'), which would not have been the case if Mico had retained for the 
balance of his account. 

It is better to allow that which is the public notorious transaction, 
than that which is secret. Suppose an action had been brought by 
Watkins against the broker, for money had and received, the broker 
could not have defended himself by saying, So much is due to Mico. 

Tlie merchants have admitted, that the specific lien as to the customs, 
charges, &c., does continue; even the law would have allowed it, if 
the goods had remained in specie ; the goods being sold, makes the case 
stronger. But that is not now before me, being determined by his late 
Honor the Master of the Rolls, and acquiesced in by the parties.^ 

1 " It was certahily doubtful, before the case of Krutzer and Wileocks, ' whether a 
factor had a lien, and could retain for the balance of his general account.' " Per Lord 
Mansfield, C. J., in Green v. Farmer, i Burr. 2214, 2218. 


Nisi Pkius. 1794. 
[Reported 1 Esp. 109.] 

Assumpsit for money had and received. 

The plaintiff had purchased from one Boyne twenty-five hogsheads of 
sugars then lying in the defendant's warehouses, who was a wharfinger. 
Boyne was in debt to the defendant to the amount of £167, part of 
which only was for the charges of these twentj'-five hogsheads of sugar, 
the remainder was for the balance of a general account, for which the 
defendant claimed a lien, and refused to deliver them to the plaintiffs 
till the whole sum was paid. The plaintiffs paid him the whole monej-, 
and then brought this action to recover it back. 

The whole question turned upon the point whether a wharfinger had 
a lien for the balance of a general account upon the goods in bis 

The counsel for the defendant said that it bad been decided in three 
different cases that they had, and called witnesses to prove it, with 
which the jury seemed completely satisfied. 

Lord Kenyon said, liens were either by common law, usage, or agree- 
ment. Liens by common law were given where a party was obliged by 
law to receive goods, etc., in which case, as the law imposed the bur- 
den, it also gave him the power of retaining, for his indemnity. This 
was the case of innkeepers, who had by law such a lien. That a lien 
from usage was matter of evidence. The usage in the present case 
had been proved so often, he said it should be considered as a settled 
point that wharfingers had the lien contended for. 

Bearcroft, Shepherd, and JPark, for the plaintiff. 

Mrskine, for the defendant. 

King's Bench. 1805. 

{SeporUd 7 East, 224.] 

This was an action of trover to recover the value of a quantity of 
cloth which the bankrupts had sent by the defendants as common car- 
riers, who claimed a lien upon it for their general balance due to them 
as such carriers for other goods before carried by them for the bank- 
rupts. The plaintiffs had tendered the carriage price of the particular 
goods in dispute, and the sole question was, whether the defendants, 
as common carriers, had a lien for their general balance. On the first 


trial a verdict was found for the defendants, which this court thouglit 
was not sustained by the evidence, and therefore they granted a new 
trial. 6 East, 519. The cause was again tried at the last assizes at 
Yoi'k, before Chambre, J., when the defendants' book-keepers in Lon- 
don, at Stamford, and at Haddersfield, swore to their practice to retain 
goods for their general balance, and particularized one instance in De- 
cember, 1799, where an action was brought, which being referred, was 
decided on another point; a second in May, 1800, where there was no 
bankruptcy ; a third in May, 1803, where the bankrupt's assignee de- 
manded the goods but afterwards paid the balance ; a fourth and a fifth 
in the same year, when the individuals paid the balance, but no bank- 
ruptcj' intervened ; and a sixth instance, of the like sort as the last, in 
1804. In addition to these, Welch, a carrier from Manchester and 
Leeds, deposed to an instance of retention of goods for the general bal- 
ance three years back, where a bankruptcy intervened, and the assignees 
disputed the payment at first, but afterwards paid the balance; and to two 
other instances of goods sentto Glasgow ; one where the carriage of the 
particular goods was £3 and the general balance £20 ; another where the 
carriage was a few shillings and the general balance £8 ; in both instan- 
ces bankruptcies intervened, and the assignees paid the general balance. 
Hanley, a Northallerton carrier, spoke to two instances of retainer of 
goods, twelve and thirteen j'ears ago, till the individuals paid the gen- 
eral balance ; but neither were bankrupts. The book-keeper of Pick- 
ford, a carrier from London to Liverpool, prrticularized an instance of 
retaining for the general balance in 1792, where the vendee became 
bankrupt ; but there the vendor stopped in transitu, and he paid the 
general balance at the end of two months ; a second similar instance 
in the same year ; a third instance in 1795, where the senders became 
bankrupts, and their general balance was paid by the vendees ; a fourth 
in 1795, where the goods of an individual, not bankrupt, were de- 
tained several years, but no account how the matter was finally settled ; 
and two other like instances in 1794 and 1795. And Clark, a Leices- 
ter carrier, also mentioned two instances, one in 1775, the other after- 
wards, of retaining the goods of solvent individuals till they paid their 
general balance. All these carriers, who had followed their occupation 
from twenty to thirty years and upwards, deposed generally to their 
custom of retaining goods for their general balance in other instances 
as well as in those particularized. It was left to the jury to decide 
whether the usage were so general as to warrant them in .presuming 
that the bankrupts knew it, and understood that they were contracting 
with the defendants in conformity to it ; in which case they were to 
find for the defendants ; otherwise they were told that the general rule 
of law would entitle the plaintiffs to a verdict. On this direction the 
jury found for the plaintiffs ; which was moved to be set aside in last 
Michaelmas term, as a verdict against all the evidence. 

Cockell, Serjt., now showed cause against the rule. 

I'ark and Wood, contra. 


Lord Ellenboeough, C. J. It is too mucli to say that there has 
been a general acquiescence in this claim of the carriers since 1 775, 
merely because there was a particular instance of it at that time. 
Other instances were only about ten or twelve years back, and several 
of them of very recent date. The question, however, results to this, 
What was the particular contract of these parties ? And as the evi- 
dence is silent as to any express agreement between them, it must be 
collected either from the mode of dealing before practised between the 
same parties, or from the general dealings of other persons engaged in 
the same employment, of such notoriety as that they might fairly be 
presumed to be known to the bankrupt at the time of his dealing with 
the defendants, ffona whence the inference was to be drawn that these 
parties dealt upon the same footing as all others did, with reference to 
the known usage of the trade. But at least it «iust be admitted that 
the claim now set up by the carriers is against the -general law of the 
land, and the proof of it is therefore to be regarded with jealousy. In 
many cases it would happen that parties would be glad to pay small 
sums due for the carriage of former goods, rather than incur the risk 
of a great loss by the detention of goods of value. Much of the evi- 
dence is of that description. Other instances, again, were in the case 
of solvent persons, who were at all events liable to answer for their 
general balance. And little or no stress could be laid on some of the 
more recent instances not brought home to the knowledge of the bank- 
rupt at the time. Most of the evidence therefore is open to observa- 
tion. If indeed there had been evidence of prior dealings between 
these parties upon the footing of such an extended lien, that would 
have furnished good evidence for the jury to have found that they con- 
tinued to deal upon the same terms. But the question for the jury here 
was, whether the evidence of a usage for the carriers to retain for their 
balance were so general as that the bankrupt must be taken to have 
known and acted upon it? And they have in effect found either that 
the bankrupt knew of no such usage as that which was given in evi- 
dence, or knowing, did not adopt it. And growing liens are always 
to be looked at with jealousy, and require stronger proof They are 
encroachments upon the common law. If they are encouraged, the 
practice will be continually extending to other traders and other mat- 
ters. The farrier will be claiming a lien upon a horse sent to him to 
be shod. Carriages and other things which require frequent repair will 
be detained on the same claim ; and there is no saying where it is to 
stop. It is not for the convenience of the public that these liens should 
be extended further than they are already established by law. But if 
any particular inconvenience arise in the course of trade, the parties 
may, if they think proper, stipulate with their customers for the intro- 
duction of such a hen into their dealings. But in the absence of anj' 
evidence of that sort to affect the bankrupt, I think the jury have done 
right in negativing the lien claimed by the defendants on the score of 
general usage. 


Grose, J. This lien is attempted to be set up by the defendants, 
not upon the ground of any particular contract or previous transactions 
between them and the bankrupt, but on the ground of previous transac- 
tions between them and other parties, and between other carriers and 
their customers. And it is admitted that the question upon this evi- 
dence was properly left to the jury, that they might find a verdict for 
the defendants, if the usage for the carriers to retain for their balance 
of account were so general as that they must conclude that these par- 
ties contracted with the knowledge and adoption of such usage. The 
jury have found in the negative. And I take it to be sound law, that 
no such lien can exist except hy the contract of the parties expressed 
or implied. 

Lawrence, J. The most which can be said on the part of the de- 
fendants is, that there was evidence which might have warranted the 
jury to find the other wa}-, but it was for them to decide. This is a 
point which the carriers need not be so solicitous to establish. It is 
agreed that the}- have a lien at common law for the carriage price of 
each particular article. If then it be not convenient for the consignee 
to pay for the carriage of the specific goods at the time of deliver^-, it 
is very easj' for the carriers to stipulate that they shall have a lien for 
their balance upon any other goods which they may thereafter carry 
for him. It is not fit to encourage persons to set up liens contrary to 
law. The carriers' convenience certainly does not require any exten- 
sion of the law ; for they have already a lien for the carriage price of 
the particular goods, and if thej- choose voluntarily to part with that, 
without such a stipulation as I have mentioned, there is no reason for 
giving them a more extensive lien in the place of that which they were 
entitled to. I should not be sorr3-, therefore, if it were found generally 
that they have no such lien as that now claimed upon the ground of 
general usage. 

Le Blanc, J. This is a case where a jury might well be jealous of a 
general lien attempted to be set up against the policy of the common 
law, which has given to carriers orAy a lien for the carriage price of the 
particular goods. The party, therefore, who sets up such a claim ought 
to make out a very strong case. But upon weighing the evidence which 
was given at the trial, I do not think that this is a case in which the 
court are called upon to hold out any encouragement to the claim set 
up, by overturning what the jury have done, after having the whole 
matter properly submitted to them. Rule discharged. 


King's Bench. 1816. 

[Reported 5 M. ,1: S. 180.] 

Tkovek for a quantitj- of wheat-meal, fine pollard, coarse pollard, 
and bran, together with some sacks which were stated in the first count 
of the declaration to be the property of the bankrupts, and in the sec- 
ond count, of the plaintiffs as their assignees. On the trial before 
Gh-aham, B., at the Hants Spring Assizes, 1815, a verdict was found 
for the plaintiff for £1200, subject to the opinion of the court upon the 
following case : — 

The bankrupts were, before their bankruptcy, in partnership as meal- 
men, the defendants were partners as millers. One of the bankrupts, 
before the act of bankruptcy', applied to the defendants to grind a 
quantity of wheat, when it was agreed between them that the wheat 
should be sent by the bankrupts in their vessels, and that the defend- 
ants should grind it at 15s. per load, for which sum the defendants 
were to unload the wheat from the vessels, grind it, find sacks to manu- 
facture it in, and return the meal, &c., when ground, into the bank- 
rupts' vessels in the river near to which the mill was situated. About 
nineteen loads of the wheat were sent at first, afterwards other quanti- 
ties, making in the whole one hundred and forty-six loads. It was 
agreed that if any mixture was to take place, one of the bankrupts 
should correspond with the defendants on the subject, and, in fact, 
some of the grain was afterwards mixed at his request. At the time 
of the bankruptcy there remained in the defendants' possession seven 
loads of wheat unground, ten of meal produced by wheat which had 
been ground, sixt}' bushels of fine pollard, twenty bushels of coarse 
pollard, twentj' bushels of bran, also produced from the wheat ground, 
and eighty sacks which had been delivered by the bankrupts to the de- 
fendants, for the purpose of being filled with the meal ground from the 
corn. The defendants, on demand made on the part of the plaintiffs, 
after the bankruptcy, refused to deliver up this property. 

And two questions were argued in the last term bj' A. Moore for the 
plaintiffs, and by Gifford, for the defendants : First, whether the de- 
fendants had a right to detain this property for their general balance 
under the statute of 5 G. 2, c. 30, s. 28. Secondlj', whether they had a 
a lien on it, in whole or in part, that is to say, for the balance due to 
them for grinding all the wheat which had been ground by them, or for 
the grinding only of such part as had been and remained ground in 
their hands at the time of the bankruptcy. 

Lord JEllenborough, C. J., observed that the court did not think this 
case necessarilj- invohed the doctrine of mutual credit ; but on the 
other point, as it involved the consideration of several ancient authori- 
ties, the court would take time to consider. Cur. adv. vult. 


Lord Ellenborodgh, C. J., now delivered the judgment of the court. 

This case was argued before us last term, and stood over for our 
consideration, upon the single question, whether a workman, having 
bestowed his labor upon a chattel, in consideration of a price or reward 
fixed in amount bj- his agreement with the owner, at the time of its 
deliverj- to him, can, by law, detain the chattel until the price be paid, 
or must seek his remedy by action, no time or mode of payment having 
been appointed by the agreement. We were all of opinion, upon the 
argument, and still are, that if a right to detain exists in the general 
case that I have mentioned, the present defendants have a right to 
detain the goods in question, for the money due to them for grinding all 
the wheat ; because we consider the whole to have been done under 
one bargain, although the wheat was delivered in different parcels, and 
at different times. The general question is of very great and extensive 
importance. Several authorities were referred to (which I shall here- 
after notice) against the right to detain ; but if these authorities are 
not supported by law and reason, the convenience of mankind cer- 
tainly requires, that our decision should not be governed by them ; and 
we believe the practice of modern times has not proceeded upon any 
distinction between an agreement for a stipulated price, and the im- 
plied contract to pay a reasonable price or sum ; and that the right of 
detainer has been practicallj- acknowledged in both cases alike. In the 
case of Wblfy. Summers, 2 Campb. 631, Mr. J. Lawrence docs not ap- 
pear to have been aware of any such distinction. It is impossible, in- 
deed, to find any solid reason for saying that if I contract with a miller 
to grind my wheat, at 15s. a load, he shall be bound to deliver it to me, 
when ground, without receiving the price of his labor ; but that if I 
merely deliver it to him to grind, without fixing the price, he maj- detain 
it until I pay him, though probably he would demand, and the law would 
give him, the very same sum. Certainly if the right of detainer, con- 
sidered as a right at common law (and it must be so considered in this 
case) , exists only in those cases where there is no manner of contract 
between the parties, except such as the law implies, this court cannot 
extend the rule, and authorities were quoted to establish this 'proposi- 
tion ; but, upon consideration, we are of opinion that those authorities 
are contrary to reason, and to the principles of law, and ought not to 
govern our present decision. The earliest of them is to be found in 2 
Roll. Ab. 92, which, however, is only a dictum of Williams, J. ; and it 
does not appear on what occasion it was pronounced, or that it gov- 
erned the decision of any case. It is in these words : " If I put my 
clothes to a tailor to make, he may keep them until satisfaction for the 
making. . . . But if I contract with a tailor that he shall have so 
much for making m}' apparel, he cannot keep them until satisfaction, 
for the making. T. T. 3 Ja. K. B., by Williams, J." This distinction 
appears to have been acknowledged by Lord Holt, in a case of Collins 
v. Ongly, -Selw. N. P. 1280, 4th edit., as quoted by C. J. Ryder, in the 
case of JSrejtan v. Currint. But the point was not in judgment be- 


fore Lord Holt, and therefore the opinion then delivered by him, 
although entitled to great respect, has not the weight that would be- 
long to a judicial decision of that veiy learned judge. The latter case 
of JBrenan v. Currint is reported in Sayer, 224 ; and it is, as far as 
we can find, the only case wherein this distinction was made the founda- 
tion of the judgment of any court. It was there carried to the ex- 
tremest limit; for the contract was only to paj' a reasonable sum, 
which is no more than the law would have implied if the parties had 
not expressed it. The opinion of Popham, C. J., in the Case of the 
Hosteler, Yelv. 66, has sometimes been cited, as an authority for this 
distinction ; but the only distinction plainly expressed on that occasion 
applies to the sale of a horse for his keep, and not to a detainer of the 
animal. The Chief Justice there saj-s, " That an innkeeper cannot 
sell a horse for his keep, where the price of it has been agreed upon, 
though he may do so if there has been no agreement for the price ; " 
but the power of sale in the case there put has been since denied. See 
Jones V. Pearle, 1 Stra. 556. The case in Yelverton was an action for 
the keep of the horse ; and all that was said by the Chief Justice as to 
detainer and sale was extra-judicial. It was in the verj- same year, 
term, and court, in which the opinion of Williams, J., is said to have 
been delivered ; and if (as seems very probable) his opinion was de- 
livered on this occasion, it was extra-judicial also. The case of Chap- 
man V.Allen, Cro. Car. 271, has also been quoted on this subject; 
that case, however, does not appear to have been decided on the 
ground supposed ; but rather on the ground that a person taking in 
cattle to agist could not detain until the price be paid ; or if he could 
in general do so, yet that in the particular case the defendant was 
guiltj' of a conversion as against the plaintiff, who was a purchaser of 
the cattle, by having delivered them over to a third person, on receiv- 
ing from such third person the amount of his demand. In Cowell v. 
Simpson, 16 Ves. 275, the Lord Chancellor considers a lien as a right 
accompanying an implied contract ; and in one passage of his judgment 
he is reported to have said, " If the possession commences under an im- 
plied contract, and afterwards a special contract is made for paj-ment, 
in the nature of the thing the one contract destroys the other ; " but it is 
evident, from other parts of the report, that the Lord Chancellor was there 
speaking of a special contract for a particular mode of payment. Such 
a contract is apparently inconsistent with a right to detain the possession ; 
and, consequently, will defeat a claim to the exercise of such a right. 
And we agree that where the parties contract for a particular time or 
mode of payment the workman has not a right to set up a claim to the 
possession inconsistent with the terms of his contract. And if Williams, 
J., is to be understood to speak of a contract for the time, as well as 
the amount of paj'ment, his opinion will not be contrary- to our present 
judgment ; and the authorities built upon it will have been founded on 
a mistake. And we are inclined to think that he must have intended 
to express himself to that effect ; because the earliest authoritj' that we 


have met with mentions an agi'cement for the time of .payment, but 
makes no distinction between an implied contract and a contract for 
a determinate price. This authority is in the Year BooIj, Easter Term, 
5 Edw. 4, fol. 2, b. : "Note, also, by Haydon, that an hosteler may 
detain a horse if the master will not pay him for his eating. Tlie same 
law is, if a tailor make for me a gown, he maj- keep the gown until he is 
paid for his labor. And the same law is, if I buy of you a horse for 
20s., you may keep the horse until I pay you liie 20s. ; but if I am 
to pay j'ou at Michaelmas next ensuing, here you shall not keep the 
horse until you are paid." In this passage the law, as applied to 
the cases of the hosteler, the tailor, and the vendor, is said to be the 
same, and in the latter the sum is supposed to be fixed. The dis- 
tinction drawn is where a future time of paj-ment is fixed. If so ma- 
terial a distinction as that which depends upon fixing the amount of 
the price, had been supposed to exist at that time, we think it would 
have been noticed in this place ; and, not being noticed, we think it 
was not then supposed to exist. So, in the case of Cowper v. An- 
drews, Hobart's Rep. 41, Lord Hobart, speaking of the word '■'pro," 
" for," sa3-s that this word " works b}' condition precedent in all per- 
sonal contracts. As if I sell you my horse for ten pounds, you shall 
not take mj- horse, except j'ou pay me ten pounds (18 Ed. 4, 5, and 14 
H. 8. 22) , except I do expressh' give j-ou day ; and j-et, in this case you 
ma}' let your horse go, and have an action of debt for j'our monej' ; 
and so maj' the tailor retain the garment till he be paid for the making, 
by a condition in law." The reason in the case of sale is given in the 
14th Hen. 8, 20, a. : " The cause is for that each has not the same ad- 
vantage the one against the other ; for the one will have the thing in 
possession, the other but an action, which is not reason, nor the same 
advantage." Considering the operation of the word " for,'' as noticed 
by Lord Hobart, whose opinion is confirmed by the cases he refers to, 
and bj' others also, no reason can be assigned for saying that it shall 
not have the same eflfect in a contract to grind a load of wheat for 15s. 
as in a contract to sell a load of wheat for £15. The former, indeed, is 
in substance a sale of a certain portion of the time and labor of the 
miller, and of the use of his machinery. And as it is clear that the 
miller could not maintain an action upon the contract without averring 
that he had ground, and was ready to deliver, the wheat ; if the other 
party can by law recover the wheat without averring that he had paid 
or tendered the price of the grinding, he will have an advantage above 
the miller ; for he will have his goods and the miller will have only an 
action. If the distinction which has been contended for on the part of 
the plaintiff should be allowed, what must be said in those cases where 
a workman is not only to bestow a portion of his labor on a chattel 
delivered to him, but also to apply to it some materials or goods of his 
own, for a fixed price ? As in the case of a picture-frame sent to be 
gilded or varnished, and even in the old case of cloth sent to a tailor 
to be made into a garment, is the chattel to be retained bj' the work- 


man, on the ground of his having applied to it his paint or varnish, or 
thread, or other materials, or must he deliver these to his emploj-er 
without payment, because he has bestowed his own personal labor in 
addition to them? Upon the whole, we think this supposed distinction 
is contrar}' to reason, and to that principle in the law which requires 
the paj-ment of the price and the delivery of the chattel to be concur- 
rent acts, wh^ere no day of paj^ment is given ; and, therefore, we think 
the case of Brenan v. Currint^ and the dicta on which it appears to 
have been founded, are not law, and that the judgment in the present 
case must be for the defendants. Postea to the defendants. 


Nisi Peius. 1828. 
\Eeported Mood. & M. 235.] 

Assumpsit for goods sold and delivered, and woi'k and labor. 

The question in the cause was, whether the defendant was liable to 
the plaintiff for the training of a race-horse, which the defendant had 
bought of a third person, whilst in the plaintiffs possession, and which 
had been given up to the defendant under an agreement, as was con- 
tended, to paj- for the training, in consideration of the abandonment of 
the plaintiffs lien. The defendant contended that there was no lien, 
and the detention was altogether wrongful, under the authority of Wal- 
lace V. Woodgate, R. & M. N. P. C. 193. 

Wilde, Serjeant, and i? . "F^ Richards, for the plaintiff. 

Jones, Serjeant, for the defendant. 

Best, C. J. It was certainly held in that case, on the authority of 
Torke v. Grenaugh, 2 Ld. Raym. 866, that a livery-stable keeper has 
no lien ; but this case goes farther, and on the principle of the common 
law, that where the bailee expends labor and skill in the improve- 
ment of the subject delivered to him, he has a lien for his charge, I 
think the trainer has a lien for the expense and skill bestowed in bring- 
ing the liorse into condition to run at races. 

Verdict for the plaintiff ^ 


Exchequer. 1833. 

[RepoHed 1 Cr. & M. 743.] 

Detinue for a gelding. Plea : actio non, because he says that the 
said gelding, in the said declaration mentioned, was on the daj' and 
year aforesaid delivered by the plaintiff to the defendant to be stabled 
1 Part of the case lelating to another point is omitted. 


and taken care of, and fed and kept by the defendant for the plaintiff 
for remuneration and reward, to be paid by the plaintiff to the defendant 
in that behalf. And the defendant in fact further saith, that after- 
wards, and before and at the time of the commencement of this action, to 
wit, on the 16th day of March, 1833, in the county aforesaid, the plaintiff 
became and was indebted to the defendant in a large sum of money, to 
wit, the sum of £10, being a reasonable and fair remuneration and re- 
ward in that behalf, for and in respect of the defendant having before 
then stabled and taken care of, and fed and kept, the said gelding for 
the plaintiff, under and by virtue of the said delivery and bailment. 
And the said defendant in fact further saith, that the said sum of £10 
is still due and owing to the defendant. And for which reason he, the 
defendant, hath, from the time of the delivery of the said gelding, 
hitherto detained and still detains the same, as he lawfully may, for the 
cause aforesaid. General demurrer and joinder. 

Mansel, in support of the demurrer. 

Erie, contra. 

Lord Lyndhuest, C. B. The question is on the sufficiency of the 
plea. Now, the plea states that the horse was delivered by the plaintiff 
to the defendant, to be stabled and taken care of, and fed and kept 113- 
the defendant for the plaintiff, for remuneration and reward, to be paid 
hy the plaintiff to the defendant in that behalf ; it then states that the 
Ijlaintiff became indebted to the defendant in the sum of £10 — being a 
reasonable and fair remuneration and reward — for and in respect of 
the defendant having stabled and taken care of, and fed and kept the 
horse under and by virtue of the said delivery and bailment ; and so 
justifies the detention until that sum should be paid. Upon this plea 
the question is, whether, on the state of facts disclosed, the defendant 
has or has not a lien upon the horse ; I am of opinion that he has no 
lien. The present case is distinguishable from the cases of workmen 
and artificers, and persons carrying on a particular trade, who have 
been held to have a lien, by virtue of labor performed in the course of 
their trade, upon chattels bailed to them. The decisions on the subject 
seem to be all one waj'. In Chapman v. Allen, it was decided that 
a person receiving cattle to agist had no lien. In Yorke v. Grenaugh, 
it was held, not merely by Lord Chief Justice Holt, but b^- the whole 
court in their decision, that a livery-stable keeper had no lien. As to 
the case of Jacobs v. Latour, that, so far from establishing the right 
of lien, confirms the former decisions ; for Lord Chief Justice Best ex- 
pressly draws the distinction between a trainer, who bestows his skill 
and labor, and a livery-stable keeper ; between horses taken iu by a 
trainer and altered in their value bj' the application of his skill and 
labor, and horses standing at livery without such alteration. When 
the case came on before the Court of Common Pleas, that distinction 
seems to have been supported. It appears to me, therefore, that the 
present case is decided by the concurrence of all the authorities. 

Vauuhan, B. I am of opinion, that it is clear, from the authorities 


on this subject, that the present defendant had no right to detain the 
horse in question, and consequently that our judgment must be for the 

BoLLAND, B. In deciding against the right of lien in this case we 
break in upon no former decisions. Admitting that a trainer has a 
lien, it must be on the ground that he has done something for the bene- 
fit and improvement of the animal. The doctrine might, perhaps, be 
extended further so as to embrace the case of a breaker, into whose 
hands a j'oung horse is placed to be broken in. The breaker makes it a 
different animal. The chattel is improved by the application of his labor 
and skill. In the present case it does not appear that anj'thing was to 
be done to the animal, to improve it or render it a different animal by 
the application of the skill and labor of the bailee. 

GuBNET, B., concurred. Judgment for the plaintiff. 


Exchequer. 1839. 

[Beporied 5 M. i- W. 342.] 

Trespass for breaking and entering an outhouse and premises be- 
longing to the plaintiff, and seizing and driving away ten cows, the 
property of the plaintiff, and converting and disposing of the same to 
the defendants' own use, &c. 

The defendants pleaded, first, not guilty ; secondly, as to taking &c. 
two of the cows, that the said cows, for the space of eight months 
before the said time when &c., had been depastured, agisted, and fed 
by the defendant Charles Cummins for the plaintiff, in and upon certain 
lands of him the said Charles Cummins, at the request of the plaintiff, 
for a certain reward and remuneration to be paid the said Charles Cum- 
mins by the plaintiff, and there was and still is due and owing to the 
said C. Cummins from the plaintiff the sum of £16 6s., for and in 
respect of the said agistment of the said two cows ; and that it was 
agreed between the plaintiff and defendant Charles Cummins, that the 
said C. Cummins should retain, have, and take and keep the possession 
of the said two cows so long as the said sum of £16 5s., should remain 
unpaid ; that the said two cows then and at the time of the said agree- 
ment were in the possession of the said C. Cummins, and so remained 
until the plaintiff fraudulentlj^ unlawfully, and wrongfully took them 
out of the same as hereinafter mentioned ; that afterwards, and after 
the said agreement, and whilst the said two cows were in the posses- 
sion of the said C. Cummins under the same, and whilst the said C. 
Cummins had a lien upon the same b}- law and bj' the agreement afore- 
said, and just before the said time when &c., the plaintiff wrongfully, 
unlawfully, and surreptitiously, and contrary to the said agreement, 


with force and arms, broke and entered the said close of the said C. 
Cummins in which the said two cows were depasturing and agisting as 
aforesaid, and wrongfully, fraudulently, unjustly and unlawfully took, 
carried, and drove away the same out of the said close of the said C. 
Cummins, and put and placed the same in the said outhouse and prem- 
ises in the declaration mentioned, without paying the said sum so 
agreed to, and tlien due to the said C. Cummins. The plea concluded 
with a justification by the defendant Cummins in his own right, and bj' 
the other defendants as his servants, in peaceably entering the out- 
house and premises, in order to retake the cattle, and retaking them 

The plaintiff took issue on the first plea, and to the second replied de 

The cause was tried before Parke, B., at the last Assizes for Yorkshire, 
when it was proved that the cows had been depastured on land belong- 
ing to the defendant. The jur^- found that there was no such agree- 
ment as stated in the plea, that the defendant should retain and keep 
possession of the cows until the amount due for the pasturage was paid, 
and thereupon found a verdict for the plaintifi', the learned judge re- 
serving leave to the defendant to move to enter a nonsuit, in case tlie 
court should be of opinion that a lien existed at common law for the 
agistment of cattle. Alexander having, in Easter Term last, obtained 
a rule accordingly. 

Cresswell now showed cause. 

Alexander, in support of the rule. 

Paeke, B. I am of opinion that this rule ought to be discharged. 
The first question is, whether it was competent for the defendant, 
under this plea, which speaks of a lien by agreement, to set up a claim 
for a lien at common law ? If it were necessarj- to decide that question, 
I should say that I think it was competent for him to do so. The 
plaintiff, it is true, might have demurred specially to the plea for dupli- 
city, in setting up two distinct grounds of lien, viz. by force of an 
agreement, and by the general law ; but as it is, the averment of the 
agreement for a lien ma}' be rejected, and the claim of lien under the 
general law supported, should such really exist. I also think that, after 
the recent decision in Owen v. Knight, 4 Bing. N. C. 54 ; 5 Scott, 307, 
as to the effect of lien in actions of trover, the defendant would have 
done better to have pleaded that the plaintifi' was not possessed of these 
cows ; which plea would have been supported by proof of the lien, giv- 
ing to the defendant a special property* in them at the time of the tres- 
pass. It is not, however, necessary to decide either of these points, 
because I think that bj' the general law no lien exists in the case of 
agistment. The general rule, as laid down by Best, C. J., in Sevan v. 
Waters, and by this court in Scarfc v. Morgan, is, that by the general 
law, in the absence of any special agreement, whenever a party has ex- 
pended labor and skill in the improvement of a chattel bailed to him, he 
has a lien upon it. Now, the case of agistment does not fall within that 


principle, inasmuch as the agister does not confer any additional value 
on the article, either b}' the exertion of any skill of his own, or indirectly 
bj- means of any instrument in his possession, as was the case with the 
stallion in Scarf e v. Morgan ; he simply takes in the animal to feed it. 
In addition to which, we have the express authority of Chapman v. 
Allen, that an agister has no lien ; and although possibly that case 
may have been decided on the special ground that there had been an 
agreement between the parties, or a conversion of the animal had taken 
place, still it is also quite possible that it might have proceeded on the 
more general principle, that no lien can exist in the case of agistment ; 
and it was so understood by this court in Judson v. Etheridge. The 
analogy, also, of the case of the livery-stable keeper, who has no lien 
bj' law, furnishes an additional reason why none can exist here : for this 
is a case of an agistment of milch cows, and, from the very nature of 
the subject-matter, the owner is to have possession of them during the 
time of milking ; which establishes that it was not intended that the 
agister was to have the entire possession of the thing bailed ; and there 
is nothing to show that the owner might not, for that purpose, have 
taken the animals out of the field wherein thej- were grazing, if he had 
thought proper so to do. This claim of lien is therefore inconsistent 
■with the necessarj" enjoyment of the propertj- by the owner. As to the 
case of the training groom it is not necessarj' to say anj'thing, as it has 
not been formall}- decided ; for in Jacobs v. Latour, 5 Bing. 130 ; 2 M. 
& P. 201, the point was left undetermined. It is true, there is a Nisi 
Prius decision of Best, C. J., in Bevan v. Waters, that the trainer 
would have a lien, on the ground of his having expended labor and 
skill in bringing the animal into condition to run at races ; but it does 
not appear to have been present to the mind of the judge, nor was the 
usage of training to that eflect explained to him, that when horses are 
delivered for that purpose, the owner has always a right, during the 
continuance of the process, to take the animal away for the purpose of 
running races for plates elsewhere. The right of lien, therefore, must 
be subservient to this general right, which overrides it ; so that I doubt 
if that doctrine would apply where the animal delivered was a race- 
horse, as that case diff'ers much from the ordinary case of training. I 
do not say that the case of Sevan v. Waters was wrongly decided ; I 
only doubt if it extends to the case of a race-horse, unless perhaps he 
was delivered to the groom to be trained for the purpose of running a 
specified race, when of course these observations of mine would not 
apply. But, at all events, I am clear that this agister has no lien, as 
his case certainly does not come within the general principles which 
have been established ; in addition to which, such a claim would be 
inconsistent with the more general right exerciseable by the owner of 
the cattle. 

Alderson, B. I agree that the agister has no lien in this case. On 
the first point, however, I give no opinion. 

Matjle, B. I think the eff'ect of this plea is to set up a claim of lien 


under the agreeme.nt onlj^ ; for, if understood in the sense which would 
make it not demurrable, it sajs, during the continuance of such a state 
of circumstances, these cattle were taken away. On the other point, I 
agree with the rest of the court that no lien exists. 

Rule discharged} 

King's Bench. 1858. 
^ [Reported E. B. & E. 353.] 

Action for money had and received. = A case was stated substan- 
tially as follows : The plaintiffs were the owners of a ship called The 
British Empire. The defendants were shipwrights on a large scale. 
The plaintifls employed the defendants to repair the ship, and she was 
taken into the defendants' dock at Blackwall, September 1, 18.56. 
When the repairs were completed the defendants declined to let the 
ship go until their bill for repairs was paid, or security given for its 
pa3-ment ; and the plaintiffs not doing either, the defendants on Novem- 
ber 25, 1856, gave the plaintiffs written notice that they should charge 
them £21 a day for the hire of their dry dock from the time when their 
account was delivered, November 20. The plaintiffs disputed the right 
of the defendants to make this charge, but on December 22, 1856, paid, 
under protest, the whole amount claimed by the defendants, which 
included the sum of £567 as rent of the dock for twenty-seven days at 
£21 a day. The question for the court was whether the defendants 
were entitled to retain the £567. 

The case was argued in Easter Term, 1858. Before Lord Campbell, 
C. J., and Wightman, Erie and Crompton, JJ. 

BlacTchurn, for the plaintiffs. 

T. Jones, for the defendants. 

Lord Campbell, C. J., now delivered judgment. 

We are of opinion that, under the circumstances stated in the special 
case, the defendants are not entitled to retain the sum paid to them in 
respect of the item of £567, or any other sum, as a compensation for 
the use of their dock in detaining the plaintiffs' ship. As artificers who 
had expended their labor and materials in repairing the ship which the 
plaintiffs had delivered to them to be repaired, the defendants had a 
lien on the ship for the amount of the sum due to them for these repairs ; 
but we do not find any ground on which their claim can be supported 
to be paid for the use of their dock while they detained the ship under 
the lien against the will of the owners. There is no evidence of any 

1 Ooodrkh v. Willard, 7 Oray, 183, accord. 

2 The following short statement is siibstituted fo;- that in the report. 



special contract for such a payment. The defendants gave notice that 
they would demand £21 a day for the use of their dock during the 
detention : but the plaintiffs denied their liability to make any such 
payment, and insisted on their right to have their ship immediately 
delivered up to them. Nor does any custom or usage appear to au» 
thorize such a claim for compensation, even supposing that a whar- 
finger with whom goods had been deposited, he being entitled to 
warehouse-rent for them from the time of the deposit, might claim a 
continuation of the payment during the time he detains them in the 
exercise of right of lien till the arrears of warehouse-rent due for them 
is paid (see Hex v. JIumpheri/, M'Cl. & Y. 173) : there is no ground 
for a similar claim here, as there was to be no separate payment for the 
use of the dock while the ship was under repair, and the ^aim only 
commences from the refusal to deliver her up. The onus therefore is 
cast upon the defendants to show that, by the general law of England, 
an artificer who, exercising his right of lien, detains a chattel, in mak- 
ing or repairing which he has expended his labor and materials, has a 
claim against the owner for taking care of the chattel while it is so 
detained. But the claim appears to be quite novel; and, on principle, 
there is great difHcultj- in supporting it either ex contractu or ex delicto. 
The owner of the chattel can hardly be supposed to have promised to 
pay for the keeping of it while, against his will, he is deprived of the 
use of it ; and there seems no consideration for such a promise. Then 
the chattel can hardly be supposed to be wrongfully left in the posses- 
sion of the artificer, when the owner has been prevented by the artificer 
from taking possession of it himself. If such a claim can be supported, 
it must constitute a debt from the owner to the artificer, for which an 
action might be maintained : when does the debt arise, and when is the 
action maintainable ? It has been held that a coachmaker cannot claim 
any right of detainer for standage, unless there be an express contract 
to that effect, or the owner leaves his property on the premises beyond 
a reasonable time, and after notice has been given him to remove it. 
Hartley v. Hitchcock., 1 Stark. 408. 

The right of detaining goods on which there is a lien is a remedy to 
the party aggrieved which is to be enforced by his own act ; and, where 
such a remedj- is permitted, the common law does not seem generally 
to give him the costs of enforcing it. Although the lord of a manor be 
entitled to amends for the keep of a horse which he has seized as an 
estray (^Henley v. Walsh., 2 Salk. 686), the distrainor of goods which 
have been replevied cannot claim any lien upon them : BradyU v. JBall, 
1 Bro. C. C. 427. So, where a horse was distrained to compel an 
appearance in a hundred court, it was held that, after appearance, 
the plaintiff could not justify detaining the horse for his keep. Bui. 
N. P. 45. 

If cattle are distrained damage feasant, and impounded in a pound 
overt, the owner of the cattle must feed them ; if in a pound covert or 
close, " the cattle are to be sustained with meat and drink at the peril 


of him that distraineth, and he shall not have anj' satisfaction there- 
fore." Co. Litt; 47 b. 

For these reasons, on the question submitted to us, we give judgment 
for the plaintiffs. Judgment for the plaintiffs.^ 


Supreme Court op Pennsylvania. 1844. 

[RepoHed 7 W. & S. 466.] 

The plaintiff brought this action of trover against the defendant, who 
is a warehouseman in Clarion County, on the Allegheny River, for the 
supposed conversion of certain goods retained for the price of warehouse 
room, being part of a larger lot which was stored in his warehouse by 
Hamilton & Humes, of whom the plaintiff is the general assignee. The 
greater part had been delivered to Hamilton & Humes, and the residue 
having been demanded without tender of any charges, M'Calmont 
(President of the Common Pleas of Clarion County) directed the jury 
that though the defendant conld not retain for the general balance of his 
account, he might retain for all the charges on .all the goods forwarded 
to him at the same time. A bill of exceptions was sealed, and the 
point was argued on a writ of error to this court by — 

Gilmore, for plaintiff in error ; 

Howe, for defendant in error. 

The opinion of the court was delivered bj' — 

Gibson, C. J. Though a plurality of the barons in Rex v. Hum- 
phery, M'Cl. & Y. 194-5, dissented from the dictum of Baron 
Graham that a warehouseman has a lien for a general balance, like a 
wharfinger, I do not understand them to have intimated that he has no 
lien at all. They spoke of it as an entity, and seem to have admitted 
that he has a specific lien, though not a general one. There is a well- 
known distinction between a commercial lien, which is the creature of 
usage, and a common-law lien, which is the creature of policy. The 
first gives a right to retain for a balance of accounts ; the second, for 
services performed in relation to the particular property. Commercial 
or general liens, which have not been fastened on the law merchant by 
inveterate usage, are discountenanced bj' the courts as encroachments 
on the common law ; and for that reason it would be impossible to 
maintain the position of Baron Graham, for there is no evidence of 
usage as a foundation for it, and no text- writer has treated of warehouse 
room as a subject of lien in any shape. In Rex v. Humphery., it was 
involved in the discussion only incidentally ; and I have met with it in 
no other case. But there is doubtless a specific lien provided for it by 

1 The case was afiHrmerl in the Exchequer Chamber, E. B. & E, 367, and in the 
House of Lords, 8 H. L. C. 338. 


the justice of tbe common law. From the case of a chattel bailed to ac- 
quire additional value by the labor or skill of an artisan, the doctrine of 
specific lien has been extended to almost ever5' case in which the thing 
has been improved b}' the agency of the bailee. Yet in the recent case 
of Jackson v. Cummins, 5 Mces. & Welsh. 342, it was held to extend 
no further than to cases in which the bailee has directly conferred ad- 
ditional value by labor or skill, or indirectly by the instrumentality of 
an agent under his control ; in supposed accordance with which it was 
ruled that the agistment of cattle gives no lien. But it is difficult to 
find an argument for the position that a man who fits an ox for the 
shambles, by fatting it with his provender, does not increase its in- 
trinsic value bj- means exclusively within his control. There are cer- 
tainly cases of a different stamp, particularly Sevan v. Waters, Mood. 
& Malk. 235, in which a trainer was allowed to- retain for fitting a 
race-horse for the turf. In Jackson v. Cummins we see the expir- 
ing embers of the primitive notion that the basis of the lien is intrin- 
sic improvement of the thing by mechanical means ; but if we get 
away from it at all, what matters it how the additional value has been 
imparted, or whether it has been attended with an alteration in the 
condition of the thing ? It maj- be said that the condition of a fat ox 
is not a permanent one ; but neither is the increased value of a mare 
in foal permanent ; yet in Scarfe v. Morgan, 4 Mees. & Welsh. 270, 
the owner of a stallion was allowed to have a lien for the price of the 
leap. The truth is, the modern decisions evince a struggle of the ju- 
dicial mind to escape from the narrow confines of the earlier prece- 
dents, but without having as yet established iDrinciples adapted to the 
current transactions and convenience of the world. Before Chase v. 
Westmore, 5 Maule & Selw. 180, there was no lien even for work done 
under a special agreement ; now, it is indifferent whether the price 
has been fixed or not. In that case Lord Ellenborough, alluding to the 
old decisions, said that if they " are not supported hy law and reason, 
the convenience of mankind certainly requires that our decisions should 
not be governed by them ; " and Chief Justice Best declared in Jacobs 
V. Latour, 5 Bing. 132, that the doctrine of Hen is so just between 
debtor and creditor, that it cannot be too much favored. In ITirlcham 
V. Shawcross, 6 T. R. 17, Lord Kenyon said it had been the wish of 
the courts, in all cases and at all times, to carry the lien of the common 
law as far as possible ; and that Lord Mansfield also thought that jus- 
tice required it, though he submitted when rigid rules of law were against 
it. What rule forbids the lien of a warehouseman? Lord Ellenborough 
thought, in Chase v. Westmore, that every case of the sort was that of 
a sale of services performed in relation to a chattel, and to be paid for, 
as in the case of any other sale, when the article should be delivered. 
Now, a sale of warehouse room presents a case which is bound by no 
pre-established rule or analogy ; and, on the ground of principle, it is 
not easy to discover why the warehouseman should not have the same 
hen for the price of future delivery and intermediate care that a carrier 


has. The one delivers at a diflferent time, the other at a diflFerent place ; 
the one after custody in a warehouse, the other in a vehicle ; and that 
is all the difference. True, the measure of the carrier's responsibility is 
greater ; but that, though a consideration to influence the quantum of 
his compensation, is not a consideration to increase the number of his 
securities for it. His lien does not stand on _ that. He is bound iu 
England by the custom of the realm to carry for all employers at estab- 
lished prices ; but it is by no means certain that our ancestors brought 
the principle with them from the parent country as one suited to theii' 
condition in a wilderness. We have no trace of an action for refusing 
to carry ; and it is notorious that the wagoners, who were formerly the 
carriers between Philadelphia and Pittsburg, frequently refused to load 
at the current price. Now, neither the carrier nor the warehouseman 
adds a particle to the intrinsic value of the thing. The one delivers at 
the place, and the other at the time, that suits the interest or the con- 
venience of the owner of it, in whose estimation it receives an increase 
of its relative value from the services rendered in respect of it, else he 
would not have undertaken to pay for them. I take it, then, that, iu 
regard to lien, a warehouseman stands on a footing with a carrier, 
whom in this country he closely' resembles. 

Now, it is clear from Sodergren v. Flight S Jennings, cited 6 East, 
662, that where the ownership is entire in the consignee, or a purchaser 
from him, each parcel of the goods is bound, not only for its particular 
proportion, but for the whole, provided the whole has been carried under 
one contract ; it is otherwise where to charge a part for the whole would 
subject a purchaser to answer for the goods of another, delivered by the 
bailee with knowledge of the circumstances. In this instance, the en- 
tire interest was in Hamilton & Humes, in whose right the plaintiff 
sues ; and the principle laid down by the presiding judge was substan- 
tially right. On the other hand, the full benefit of it was not given to 
the defendant in charging that the demand and refusal was evidence of 
conversion. There was no evidence of tender to make the detention 
wrongful; and the defendant would have had cause to complain, had 
the verdict been against him, of the direction to deduct the entire price 
of the storage from the value of the articles returned, and to find for the 
plaintiff a sum equal to the difference. But there has been no error 
which the plaintiff can assign. 

Judgment affirmed.^ 

I 1 See Lmv v. Martin, 18 111. 286. 


B. Lien given hy wrongdoer^ when good against true owner. 


King's Bench. 1616. 

[Reported 3 Bulst. 269.] 

In an action upon tlie case for a trover and conversion brought by 
the plaintiff against the defendant, being an innkeeper, for a horse. 

The case, upon the defendant's plea in bar, was this : The defendant 
keeping a common inn, a stranger brings the plaintiff's horse into this 
common inn of the defendants, there sets him for some time, and 
afterwards goes his way, leaving the plaintiff's horse there as a pledge 
for his meat. 

The defendant, being the innkeeper, being not paid for the meat of 
the horse, retains the horse for his meat ; the plaintiff afterwards, being 
the true owner of the horse, and hearing that his horse was there, 
demanded his horse of the defendant, who refused to deliver him. Upon 
this he brings his action. The defendant b\' waj' of plea in bar, sets 
forth all this matter of his keeping a common inn, how that the horse 
was brought thither, and there left at meat, which was unpaid, and 
that he retained the horse for his meat, till he was satisfied for the 
same, and that if the plaintiff would pay him for his meat, he would 
then deliver the horse to him, but not otherwise ; upon this plea the 
plaintiff demurred in law. 

Upon the first opening of this case, the court inclined to be of opin- 
ion against the plaintiff; that the defendant's plea was good, and that 
he might well retain the horse, and that against the plaintiff, being the 
true owner of him, until he was satisfied by him for his meat, and not- 
withstanding his horse was left there by a stranger, unknown to the 
owner; and for this was remembered the books of 39 H. 6 fol. 18 b., 
and 5 H. 7 fol. 15 b., the ease of the leather converted. 

DoDDERiDGE, Justice. This is a common inn, and the defendant a 
common innkeeper, and this his retainer here is grounded upon the 
general custom of the land : he is to receive all guests and horses that 
come to his inn ; he is not bound to examine who is the true owner of 
the horse brought to his inn ; he is bound, as he is an innkeeper, to 
receive them, and therefore there is very great reason for him to retain 
him, until he be satisfied for his meat which he hath eaten ; and that 
the true owner of the horse cannot have him away, until he have satis- 
fled the innkeeper for his meat. 

The court agreed with him herein, but the court said, that this being 
a new and a good case, they held it fit to be argued by counsel on both 


sides, and so for this purpose, this case was adjourned to a further 

Afterwards, (S.) Termin. Trin. 15 Jac. B. R., this case was moved 
again, and argued on both sides. 

Divers authorities were cited, and reasons urged, and enforced for 
the defendant, that the plea was good. That the defendant being a 
common innkeeper, maj' retain a horse, brought into his inn, and there 
left, until he be paid for his meat, and for this purpose, Coke 8. pars, 
fol. 146, 147 a, the Six Carpenters' Case, was cited, and 6 E. 4 fol. 2 b. 
placito 16. That ap hostler may well detain a horse, if the master will 
not pay for his meat, and so of a tailor a garment b}' him made, till he 
be paid for it ; and so is 22 E. 4. fol. 49 b. Several reasons urged for 
this, as (S). 

1. In respectu loci, this being a common inn, where he is compellable 
to receive horses coming thither, and is not to examine whose they are, 
and this place hath a privilege, as to a distress, not to be there dis- 
trained by another, as a millstone not to be distrained, by 14 H. 8. fol. 
25 b ; nor a horse at the smith's shop, by 22 E. 4, fol. 49 b., 7 H. 7 fol. 2 a. 
A horse not to be there distrained for the prejudice of the common- 
weal, nor j'et in a market or fair ; so that an inn is there compared to 
a market. A second reason of this (S), 

2. Whj' he may detain a horse for his meat, nothing more reason- 
able, as it was urged. An infant shall be bound by his bond for his 

If one drives the cattle of another into the ground of I. S. he may, 
as it was urged, detain them, till he be satisfied for the hurt done by 

3. Because here was no default in the innkeeper, who did entertain 
him ; neither is he to demand whose horse this was, for that every man 
hath a license in law, to come with his horses into an inn, and the 
innkeeper cannot put him back ; and so is the Six Carpenters' Case 
before remembered ; but he may detain them for their meat. Mich. 6. 
Jac. B. R. between Harlow v. Wood, the same case was (as is here 
now in question) and resolved that an innkeeper may retain and keep a 
horse left in his inn for his meat, though it be the horse of a stranger. 

MouNTAGUE, Chief Justice. Where one is hired to serve, there he 
shall not wage his law, because compellable. Comynunia hospitia are 
compellable to receive guests and their horses ; and so he is to answer 
for them, which are brought thither; the custom of London is good 
and reasonable, how long to stay, not till he eats out more than his 
head ; the innholder may sell him presently, and this is justifiable. 
Here in this case, the innkeeper said to the plaintiff, Prove the horse to 
be yours, pay for his meat, and you shall have him. This is no denial, 
nor yet any conversion, he claims no property at all ; he only detains 
the horse, till he be satisfied for his meat, and so he may well do by 
the law ; he may keep him, till he be paid for his meat, because he is 
compellable at the first to receive him. 


DoDDEKiDGE, Justlce. One who hath no keeping for his horse, doth 
devise this waj' to send his man with him to an inn, and to let him 
stand there, and afterwards to come thither himself, and of the inn- 
keeper to demand his horse, and upon his refusal, to bring his action 
upon the case ; this is a fine trick for the plaintiff to have his horse 
kept, and to give the innkeeper nothing for the same ; but Instead of 
pa3'ing of him for his meat, to paj- him with an action, which he hath 
no cause so to do, as this case here is, the innkeeper maj' well justify 
the keeping of his horse, till he do pay him for his meat, which is all 
he desires to have. 

Haughton, Justice, differed in opinion. The party being the true 
owner of the horse, hath no other way to provide for himself, but this. 
The innkeeper hath his proper remedy against him, who brought and 
left the horse there for his meat, and for him thus to prejudice the 
owner of the horse, by the wrong of another, this will be very incon- 

Croke, Justice. If a stranger takes my cattle, and puts them into 
the ground of another, he may well keep them till I pay him for their 
meat, and hurt there done. If a man's horse be stolen, and brought 
unto an inn, or if a man lends his horse to one for a daj', and he keeps 
him three or four da3's,the innkeeper here was in no fault at all. If the 
horse was stolen and brought thither, he cannot charge the innkeeper 
with this, but he which brought him thither, and there left him. Here 
the innkeeper hath done no wrong at all, the owner is to satisfy him 
for his meat, because he was here compellable to receive him. 

MouNTAGUE. If a stranger takes the horse of another, and sets him 
up in an inn, if the horse was there stolen away, the party may have 
his remedj' against the innkeeper. 

If a man's servant carries his master's horse to an inn, and there 
leaves him, and he is stolen away ; an action lieth here for the master, 
as well as for the servant, against the innkeeper. 

DoDDERiDGE agreed this to be so, if he knew him to be his servant ; 
the owner is to paj' for his meat, and it would be a very mischievous 
thing if it should be otherwise ; for when a man hath lost his horse, he 
is to look for him, and when he hath found him in the inn, if he should 
not be enforced to pay for his meat, this would be a trick, to have his 
horse kept for nothing, and to have him brought by his servant to the 
inn. The owner hath a benefit, (S.) meat for his horse, and for the 
which he ought to pay. 

CuKiA. The pleading here is not good, therefore they did advise 
the party to plead to issue, and so to go to trial, and so judgment 
maj' then be given upon the event, but as the case here is ; Croke, 
DoDDERiDGE, and MouNTAGUB, clcar of opinion for the defendant 
against the plaintiff. 

Haughton differed from them in opinion for the plaintiff. 

And so upon this action here brought, and upon the demurrer to the 
defendant's plea, the opinion of the court was against the plaintiff, that 


the demurrer -was not good ; and so the rule of the court was, Quod 
querens nil capiat per billam. 

Nota. That the like case, as this principal case is, was in this court. 
Termin. Trin. 9 Jac. B. R., between 8Mpwith plaintiflf, against I. S. an 
iuuljeeper (in a trover, and conversion for his horse, brought to the 
inn, by a stranger, and there detained for his meat) argued bj- the four 
judges, and the court therein divided Williams & Croke Justices, That 
the innliceeper maj- keep the horse till he be paid for his meat. 

Yelveeton & Fennee, Justices, e contra, touching this matter, vide 
prima pars, fol. 170. 

Vide also, the custom of London, for an innkeeper to have a horse 
praised and sold for the meat he had eaten. Termino Trinit. 10 Jac. 
B. E. 1 pars, fol. 207. Mosse plaintiff, against Townsend defendant. 


King's Bench. 1617. 

[Reported 3 Bulst. 289.] 

In an action upon the case, for a trover, and conversion, the plaintiff 
declares, and shows that 20 Septembris 14 Jac. he was possessed of a 
horse, a saddle, a bridle, and a saddle-cloth, as of his own proper 
goods and chattels, and he being so thereof possessed, the same day 
and year, he casuallj' lost them, the which, the same day and j'ear, 
came to the hands of the defendant, and he sciens them to be the goods 
of the plaintiff, refused to deliver them, being requested so to do, but, 
afterwards, (S.) 1 Octobris 14 Jac, did convert them to his own proper 
use, ad damnum querentis, 30 1. unde actio. 

The defendant pleads, and sets forth, that before these goods came 
into his possession bj' trover, as in the declaration is expressed, and 
before the conversion, (S.) by the space of two 3'ears last past, he did 
keep a common inn, called the Sword and Buckler in Holburne, in the 
parish of St. Gyles in campis, the which was a common hostry. And 
that before the time of the conversion laid, one William Hadlane was 
possessed of the said horse, and came riding upon him into his said 
inn, with the saddle, and he did then request the defendant to keep the 
horse there at meat, and so he did for the time and space of seven 
weeks, which came unto 23s. and that afterwards, (S.) 6 Novembris 14 
Jac, the plaintiff came thither and demanded his horse, the defendant 
answered, that if he would pay him for his meat he had eaten, he would 
deliver him, which to do he refused, and for his satisfaction, he de- 
tained the horse, upon which plea, the plaintiff demurred in law. 

The whole court clear of opinion for the defendant, and that he might 
well keep the horse until satisfaction was made unto him for his meat. 
And so by the rule of the court, judgment was given for the defendant, 


that his plea was good, and the plaintiflF had no cause of demurrer, and 
therefore the judgment of the court was, Quod querens nil capiat per 

But some question was made whether he might retain the saddle, 
bridle, and cloth as well as the horse. 

Exchequer. 1854. 
[Reported 10 Exch. 417.] 

This was a case stated for the opinion of the court by consent of the 
plaintiffs and defendant, and by order of a judge. 

The declaration stated that the defendant converted to his own use 
the iDlaintiffs' goods, — that is to saj', a boudoir grand-pianoforte. The 
defendant pleaded, first, not guilty ; secondly, that the goods were not 
the plaintiffs'. Upon which issues were joined. 

The plaintiffs are, and at the time of the alleged conversion were, in 
partnership as manufacturers of pianofortes, in Great Pultenej' Street, 
London. The defendant was, and is, the proprietor of an inn or hotel, 
called the Hotel de I'Europe, in Leicester Place, Leicester Square. 

In March, 1853, a Monsieur Hababier, a foreigner and professional 
pianist, went to reside at the defendant's hotel, and remained there, oc- 
cupying apartments, and occasionally taking his meals in the house, for 
some months. On the 28th of March Monsieur Hababier, then re- 
siding at the hotel, as before mentioned, went to the manufactory of 
the plaintiffs in Great Pulteney Street, and requested the use or loan of 
a grand-pianoforte. It has been, and is, usual for the plaintiffs to lend 
pianofortes to musical artists without charge ; and in compliance with 
this request a grand-pianoforte was sent to the before-mentioned 
hotel for the use of Monsieur Hababier. This pianoforte remained at 
the hotel in possession of Monsieur Hababier, in his apartments, until 
the 9th of June following, when it was talien away and replaced by a 
boudoir grand-pianoforte, also supplied by the plaintiffs, without charge, 
to Monsieur Hababier. 

Monsieur Hababier remained at the hotel until the 27th of June, 
and during that time incurred a bill for the use of the apartments, and 
for board, hire of carriages, and other accommodation, to a consider- 
able amount. Some payments were made on account, but at the time 
of the demand and refusal hereinafter mentioned there was a balance due 
from him to the defendant of £46 3s. bd., consisting in part of use of 
apartments, &c., after the 9th of June. 

On the 27th of June the plaintiffs' clerk applied to the defendant for 
the last-mentioned pianoforte, and requested that it might be delivered 
to him for the plaintiffs. He, at the same time, handed to the defend- 


ant a written authority from Monsieur Hababier to deliver it to the 
plaintifl's. The defendant dedined to deliver up the pianoforte. On 
the following day the clerk again went to the house of the defendant, 
taking with him a van and two porters, and again demanded the piano- 
forte. On this occasion the defendant asked him if he had brought any 
money, and being answered in the negative, said, " Unless Messrs 
Broadwood pay my bill for the rent of the apartments I will not give up 
the piano." 

It is admitted, for the purposes of this case, that the hotel of the de- 
fendant was and is an inn ; and that the defendant was and is entitled 
to the rights of an Innkeeper. 

The defendant at all times knew the pianoforte in question was not 
the property of Monsieur Hababier, but that of the plaintiffs ; and the 
plaintiffs at all times knew that the said Monsieur Hababier was stop- 
ping at an hotel. The balance due to the defendant from Monsieur 
Hababier is still unpaid. 

The question for the opinion of the court is, whether, under the 
above circumstances, the plaintiffs are entitled to maintain the action. 
If the court shall be of opinion that the action is maintainable, the ver- 
dict is to be entered for the plaintiffs, with £100 damages. If the court 
shall be of opinion that the defendant had a right to detain the piano- 
forte, then the verdict is to be entered for the defendant. 
Watson, for the plaintiffs. 
Willes, for the defendant. 

Pollock, C. B. We are all of opinion that the lien claimed bj' the 
defendant cannot prevail. I need not go through the series of de- 
cisions referred to, or the propositions propounded at the bar, because 
the limited ground on which I think the plaintiffs entitled to judgment 
is this : that there is no case which decides that an innkeeper has a right 
of lien under such circumstances as these. This is the ease of goods, 
not brought to the inn by a traveller as his goods, either upon his 
coming to or whilst sta3ing at the inn, but they are goods furnished for 
his temporarj' use by a third person, and known by the innkeeper to 
belong to that person. I shall not inquire whether, if the pianoforte 
had belonged to the guest, the defendant would have had a lien on it. 
It is not necessary to decide that point, for the case finds that it was 
known to the defendant that the pianoforte was not the property of the 
guest, and that it was sent to him for a special purpose. Under these 
circumstances I am clearly of opinion that the defendant has no lien. 

Paeke, B. I am of the same opinion. It is not necessary to ad- 
vert to the decisions on the subject of an innkeeper's hen, because this 
is not the case of goods brought by a guest to an inn in that sense in 
which the innkeeper has a lien upon them ; but it is the case of goods 
sent to the guest for a particular purpose, and known by the inn- 
keeper to be the property of another person. It .therefore seems to 
me that there is no pretence for saying that the defendant has any 
lien. The principle on which an innkeeper's lien depends is, that he is 


bound to receive travellers and the goods whicli they bring with them 
to the inn. Then, inasmuch as the effect of such lien is to give him a 
right to keep the goods of one person for the debt of another, the lien 
cannot be claimed except in respect of goods which, in performance of 
his duty to the public, he is bound to receive. The obligation to re- 
ceive depends on his public profession. If he has only a stable for a 
horse he is not bound to receive a carriage. There was no ground 
whatever for saying that the defendant was under an obligation to 
receive this pianoforte. 

Alderson, B. I am of the same opinion. 

Platt, B. The case of Johnson v. Mill, 3 Stark. 172, shows the 
principle of law which is applicable to the present case. If a person 
brings the horse of another to an inn, the innkeeper ma3' detain it from 
the owner until its keep is paid. But if, as the javy found in Johnson 
V. Mill, the innkeeper knew that the person bringing the horse illegally 
got possession of it, and therefore had no right to pledge it for his 
debt, then the lien does not attach. Here the plaintiffs send a piano- 
forte to the room of the guest, and the innkeeper well knew that it was 
not the propert}' of the guest, and that it was not competent for him to 
pledge it for a debt of his own. Then how can it be said that any act 
of the plaintiffs gave the defendant a right to detain the pianoforte for 
his guest's debt? The plaintiffs might have taken it away the next 
minute. The case does not fall within the principles of law relating to 
the lien of innkeepers. Judgment for the plaintiffs. 

Qdeen's Bench. 1872. 

IRepmied L. R. 7 Q. B. 711.] 

Declaration for detaining a pianoforte of plaintiff. 

First plea, not guiltj' ; and, inter alia, third plea, that defendant 
was an innkeeper, and kept a common inn for the reception of trav- 
ellers and others. That defendant had a lien upon the piano for money 
payable bj' one Butcher to defendant for lodging and entertainment for 
himself and his wife and sister, and that Butcher, being then lawfully 
possessed of the piano, brought it to the inn with him, and defendant 
detained it in exercise of his lien as innkeeper. 

Issue joined ; and replication to the third plea, that the piano was 
let on hire to Butcher by plaintiff for a certain time which had elapsed 
before the detention by defendant, and the piano was not goods which 
a traveller ordinarily travels with, and defendant was not bound by law 
to take it in, and .plaintiff never authorized Butcher to pledge it or 
create anj- lien upon it. 

Issue joinrd. 


At the trial, at Lancaster Spring Assizes, 1872, before Zush, J., it 
appeared that the defendant kept the Ferry Hotel, on Lake Winder- 
mere, and that one Butcher came there with his wife and sister in 
April, 1871. In addition to board and lodging, Butcher had a private 
sitting-room, for which he paid 16s. a week. Butcher brought with 
him a pianoforte, which defendant thought was Butcher's own, but 
which he had in fact onlj- hired of the plaintiff. This was put in the 
private sitting-room. After several weeks. Butcher left the hotel in 
defendant's debt for board, &c., £45 ; and, on demand by the plaintiff, 
the defendant claimed to detain the piano in exercise of his lien as inn- 
keeper for the debt due by Butcher. 

A verdict passed for defendant, with leave to move to enter it for 
plaintiff for twenty-two guineas. 

A rule was obtained accordingly, on the ground that the defendant 
had no lien upon the plaintiff's piano. 

Sblker, Q. C, showed cause. 

John Edwards, in support of the rule. 

Melloe, J. The rule must be -discharged. It is not necessary to 
say anything as to tlie amendment of the pleadings, because we are all 
of opinion that the plaintiff's counsel has failed to show that the limits 
of the innkeeper's liability on the one hand, and of his privilege on the 
other, are such as he sought to establish. Whether or not the inn- 
keeper would have been liable, if an indictment Iiad been brought 
against him, for not receiving this guest and his goods, having accom- 
modation for them, it is unnecessary to consider ; when, having accom- 
modation, he has received the guest with his goods and thereby has 
become liable for their safe custody, it would be hard if he was not to 
have a lien upon them. And, under such circumstances, the lien must 
be held to extend to goods which he might possibly have refused to 
receive. In Turrill v. Crawley, 13 Q. B. 197 ; 18 L. J. (Q. B.) 155, 
the case which was most relied upon for the narrower view, Cole- 
ridge, J., says, we must give effect to the changing usages of society, 
and in noticing the distinction attempted between carriages and horses, 
he says the fact that most of the decisions are with respect to horses is 
" obviously explainable by reference to the mode of travelling in former 
times. New usages have grown up ; and, as carriages are commonly 
used in travelling, the innkeeper's duties and privileges are extended to 
them." That, therefore, is no authority against the defendant ; and 
the decision was that though the guest was not the true owner of the 
carriage, that made no difference if the innkeeper did not know it. 
In Broadwood v. Granara, 10 Ex. 417; 24 L. J. (Ex.) 1, the inn- 
keeper knew that the piano did not belong to the guest, and did not 
receive it as part of the guest's goods ; and on that ground alone the 
innkeeper was held not entitled to a lien ; although there are some 
dicta, not necessary to the decision, to the effect that the innkeeper was 
not bound to receive the piano. Possibly not, though the liability may 
well be extended according to the extended usages of society ; but, 


whether the defendant was bound to receive the piano or not, he did 
receive it as the goods of the guest, and so became liable for it, and 
therefore must be entitled to his lien. The rule must, therefore, be 

Lush, J. I am of the same opinion. The innkeeper's lien is not 
restricted to such things as a travelling guest brings with him in jour- 
neying ; the contrarj' has been laid down long ago. It extends to all 
goods which the guest brings with him, and the innkeeper receives as 
his. This is laid down in Galye's Case, 8 Rep. 32 a, at least as to the 
innkeeper's liability, and his lien must be co-extensive. If he has this 
lien as against the guest, the cases have established bej-ond all doubt 
that he has the same right as against the real owner of the article, if it 
has been brought to the inn by the guest as owner. 

QuAiN, J. I am of the same opinion. There is no authority for the 
proposition that the lien of the innkeeper onlj' extends to goods which 
a traveller may be ordinarily expected to bring with him. In the fifth 
resolution in C'alye's Case, 8 Eep. at f. 33 a, the expression in the writ 
of bona et catalla is shown to be extended by the subsequent words, 
ita quod hospitibus damnum non eveniat ; and although the words 
bona et catalla " do not of their proper nature extend to charters and 
evidences, &c., or obligations, or other deeds or specialities, being 
things in action, yet in this case it is expounded bj' the latter words to 
extend to them ; for hy them [that is, the loss of them] great dam- 
ages happen to the guest ; and therefore if one brings a bag or chest, 
&c., of evidences into the inn, or obligations, deeds, or other speciali- 
ties, and hy default of the innkeeper they are taken away, the inn^ 
keeper shall answer for them." A chest of deeds is certainly not 
ordinary traveller's luggage, and there is, therefore, no pretence for 
saying that there is any rule which confines the liabilitj' of the inn- 
keeper to such articles ; and certainlj^ we ought not to confine his 
correlative lien within narrower limits. The liabilitj', as shown bj- the 
old cases, extends to all things brought to the inn as the propertj- of 
the guest and so received, even a chest of charters, or obligations ; and 
whj' not a pianoforte? If, therefore, the innkeeper be liable for the 
loss, it seems to follow that he must also have a lien upon them. And 
if he has a lien upon them as against the guest, the two cases cited 
(and there are more) show that if the thing be brought by the guest as 
owner, and the landlord takes it in thinking it is the guest's own, he 
has the same rights against the stranger, the real owner, as against the 
guest. Rule discharged.'^ 

1 Affirmed, Cam. Scaco. L. E. 10 Q. B. 210. 



Supreme Court of Michigan. 1843. 
[Reported 1 Douglass {Mich.), 1.] 

This was an action of replevin for tiie taking and detention of sixty- 
five kegs of nails, one box of goods, and one barrel of apples, tried in 
the circuit court for the conntj' of Wayne, before Geo. Morell, Presid- 
ing Judge, at the November term, 1841. The taking and detention of 
the propertj' were admitted bj' the pleadings. The facts in issue were 
found by a special verdict, which was certified to this court for its opinion 
upon the questions of law arising therefrom. The facts found, out of 
which the question decided bj^ this court arises, are the following : — 

The goods and chattels described in the declaration were the property 
of the plaintiffs. The}' contracted with the New York &' Michigan 
Line for the transportation of the nails, to be delivered to Hutchinson, 
Campbell & Co., Detroit, for $1 per hundred pounds, payable in Michi- 
gan funds, and paid the freight in advance to the proprietors of the line 
at Detroit. The nails were shipped by the agents of the plaintiffs, at 
Port Kent, on Lake Champlain, July 18, 1838, by the New York & 
Michigan Line to Detroit, Mich., consigned to the plaintiffs at Marshall, 
Mich., care of Hutchinson, Campbell & Co., Detroit, and on such ship- 
ment the following bill of lading was given, signed by the master of 
the sloop Lafayette : — 

F. §• G. Marshall, Michigan. 

Care of Shipped, in good order and well condi- 

J. Movius §• Co., Ypsilanti, tioned, by Keeseville Mf. Co. on board 

H. Campbell^ Co., Detroit. the sloop called the Lafayette, whereof 

New York §• Michigan Line. C. P. Allen is master for this voyage, 

Care of now lying at the port of Port Kent, and 

Eddy §• Bascomb, Whitehall. bound for Whitehall, — ■ To say : 

Sixty-five kegs of nails of 100 lbs. each 6,500 lbs. 

Tare _390 " 

6,890 " 
At 16^^^ cts. per hund. delivered in Albany, is $11.60 

being marked and numbered as in the margin, and are to be delivered in the 
like good order and well conditioned, at the port of Albany (the danger of the 
seas only excepted), unto the agents of the New York & Michigan Line, or to 
their assigns ; freight for the said sixty-five kegs being paid to Albany, by 
Messrs. Eddy & Bascomb, $11.60. 

In witness whereof, the master, as purser of the said vessel, hath affirmed to 
three bills of lading, all of this tenor and date, one of which being accom- 
plished, the others to stand void. Dated at Port Kent, the 18th day of July, 

Charles P. Allen. 


The several kegs of nails were each marked "F. & G. Marshall, 
Michigan, care of Hutchinson, Campbell & Co., Detroit." Robert Hun- 
ter & Co., at Albany, and Hunter, Palmer & Co., at Buflalo, were part- 
ners in the business of transportation and forwarding between Albanj', 
N. Y., and Detroit, Mich., and they, together with the defendants, who 
were also forwarding and commission merchants at Detroit, were the 
owners, and each at their respective places of business, agents of the 
Merchants' Line. Hunter, Palmer & Co. received the nails at Buffalo 
from one of the canal boats of the Merchants' Line, accompanied by a 
bill of lading from Robert Hunter & Co. as consignors, and advanced 
the freight and charges upon them from Troy to Buffalo. They then 
shipped them to Detroit on board a steamboat belonging to the Mer- 
chants' Line, consigning them, by another bill of lading, to the care of 
the defendants, who received them Aug. 11, 1838, and paid the freight 
and charges on tliem from Troj' to Detroit, amounting to the sum of 
$85.63. The box of goods and barrel were shipped at a date subse- 
quent to the shipment of the nails, from Whitesboro', N. Y. , by the same 
line, upon the same terms, to the care of Hutchinson, Campbell & Co., 
marked " Fitch & Gilbert, Marshall, Michigan; care of Hutchinson, 
Campbell & Co., Detroit; New York & Michigan Line;" and the 
freight on them was also paid hy the plaintiffs in advance. They were 
received in the warehouse of the defendants at Detroit, Oct. 26, 1838, 
and, as appeared by their books, tliey paid the freight and charges upon 
them to Detroit, amounting to $3.83. Tlie defendants had no knowl- 
edge of the contract made by the plaintiffs with the New York & Mich- 
igan Line for the transportation of the goods, or of the payment of the 
freight to said line, until in the fall of 1838, after their receipt hy the 
defendants, when the plaintiffs demanded delivery of the goods, and in- 
formed them of such contract and payment. They refused to deliver the 
goods either to the plaintiffs or at the warehouse of Hutchinson, Camp- 
bell & Co. until the freight and charges of transportation thereon, 
advanced by them, amounting to $89.46 (and exceeding the cost of 
transportation under the contract between the plaintiffs and the New 
York & Michigan Line), and also their charges for wharfage and stor- 
age of the goods, amounting to $1 6.53, were paid, claiming a lien upon 
the goods for such advances and charges. Whereupon the plaintiffs 
sued out this writ of replevin. 

M. H. Emmons^ for the plaintiffs. 

Oeo. C. Bates, for the defendants. 

Ransom, J. Upon the facts found in the special verdict, several 
questions were raised, but the most important, and the onlj' one which 
we deem it necessary to consider, is, whether the defendants had ac- 
quired a lien upon the goods, which they could enforce, even against 
the owners, the plaintiffs in this case. 

On the part of the defendants, it is contended that a common carrier 
who receives goods for carriage and transports them, may detain them 
by virtue of his lien, for freight, even against the owner, in case the 


freight has been earned without fraud or collusion on his part ; that, if 
goods be stolen, or otherwise tortiouslj' obtained from the legal owner, 
at New York or elsewhere, and carried by a transportation line fi-om 
thence to Detroit, without a knowledge of the theft on the part of the 
carrier, he would be entitled to a lien for freight, even against the 
owner. This doctrine is sought to be maintained by the defendants' 
counsel, on several grounds : 1. He insists that a common carrier is 
bound to receive goods which are offered for transportation, and to 
carry them ; that it is not a matter of choice whether he will receive 
and carry them or not ; that he is liable to prosecution if he refuses. 

2. That a common carrier is not only bound to receive and transport 
goods that are offered, but he is liable for their loss, in all cases, except 
by the act of God and public enemies ; and the same rule, he insists, 
applies to warehousemen and forwarders. 3. That the duties and obli- 
gations of common carriers and innkeepers, are, in all respects, analo- 
gous ; and an innkeeper is bound to receive and entertain guests, and 
to account for a loss of their baggage while under his care. 4. That a 
common carrier, being bound by law to accept goods offered him for 
carrying, and being responsible for their safe deliverj- in all cases, ex- 
cept when prevented by the act of God or public enemies, is entitled to 
a lien for their freight, against all persons, including even the owner, 
when the goods were tortiousl^' obtained from him ; that he is not bound 
to inquire into the title of the person who delivers them : and such lien 
exists, although there be a special agreement for the price of carriage. 
6. That the master is not bound (nor his agent for him) to deliver any 
part of a cargo until the freight and other charges are paid. 

But for the plaintiffs it is contended : 1. That liens are only known 
or admitted in cases where the relation of debtor and creditor exists, 
so that a suit at law may be maintained for the debt which gives rise 
to the lien ; that a lien is a mere right to detain goods until some 
charge against the owner be satisfied. 2. That the defendants obtained 
possession of the goods without authority from the owners, either ex- 
press or implied ; that no legal privity exists between the parties, and 
therefore the relation of debtor and creditor does not exist between the 
defendants or their principals and the plaintiffs, and no action could be 
maintained by either against them for the freight, or any part of it. 

3. They contend further that, even if the defendants lawfully received 
the goods from the original carriers of the plaintiffs, the New York & 
Michigan Line, they did so as their agents and servants, and were bound 
by their agreement with the plaintiffs ; that their contract of affreight- 
ment is incomplete, and therefore no freight is due. 

That common carriers are bound to receive goods which are offered 
by the owners or their agents for transportation, and to carry them for 
a just compensation, upon the routes which they navigate, or over which 
they convey goods in the prosecution of their business, is too well set- 
tled to require discussion, although this general proposition is subject 
to some qualifications. 



Chancellor Kent says, 2 Kent's Com. 598 : " Common carriers under- 
take generally', and for all people indifferently, to convey goods and de- 
liver them at a place appointed, for hire, and with or without a special 
agreement as to price. They consist of inland carriers bj- land or water, 
and carriers by sea ; and as they hold themselves out 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 
emploj'ment, if they have the requisite conveniences to carry, and are 
offered a reasonable or customary price ; and if they refuse without 
some just ground, they are liable to an action." 

The books, English and American, are filled with strong cases affirming 
this doctrine. See 2 Show. R. 332 ; 5 T. R. 143 ; 4 B. & Aid. 32 ; 1 Pick. 
R. 50, and numerous other cases, and the elementary writers passim. 

That common carriers are responsible for the safe conveyance and 
deliver^' of the goods committed to them for carriage, is just as conclu- 
sively settled as that the3'^ are bound to receive and carry them. A 
common carrier is said to be in the nature of an insurer, and is answer- 
able for accidents and thefts, and even for a loss by robbery. He is 
answerable for all losses which do not fall within the excepted cases of 
the act of God, or inevitable accident without the intervention of man, 
and public enemies. 2 Kent's Com. 597 ; CoU v. McMechen, 6 Johns. 
R. 160. This doctrine is sustained by a series of decisions running 
back through a period of more than a century and a half Proprietors 
Trent Navigation v. Wood, 3 Esp. R. 127 ; Dale v. Sail, 1 Wils. 
288 ; Forward v. Pittard, 1 T. R. 33 ; Hyde v. Trent Navigation 
Company, 5 T. R. 389. 

Another position taken bj' the defendants' counsel, that the duties of 
common carriers and innkeepers are analogous, may be admitted. As 
a general proposition it cannot be denied. Upon the obligations and 
liabilities imposed on common carriers, for the transportation, safe cus- 
tody, and delivery of goods, the counsel for the defendants base a cor- 
responding right to compensation for such transportation and delivery, 
and a lien on the goods for its paj'ment. 

If, as contended for by the defendants, a carrier is bound to receive 
and carry all goods offered for transportation, without the right of in- 
quiring into the title or authority of the person offering them, then 
clearly he should be entitled to a lien, even against the owner, upon the 
goods, until he is paid for the labor he may bestow in their carriage. 

Let us now inquire whether such is the law. 

The doctrine is certainly opposed to all the analogies of the law, and 
it seems to me to every principle of common justice. 

The onlj' adjudged case I have been able to find, which favors it, is 
Yorhe v. Grenaugh, 2 Ld. Raj'm. 866. That was replevin for a geld- 
ing. The defendant, who was an innkeeper, received the horse from a 
stranger who had stolen him. On demand being made for the horse by 
the owner, the defendant, who was ignorant of the theft when he re- 
ceived him, refused to deliver him up until paid for his keeping, insist- 


ing on his right of Hen. The court held it reasonable that he should 
have a remedy for payment, which was by retainer ; and that he was 
not obliged to consider who was the owner of the horse, but whether he 
who brought him was his guest. And Holt, C. J., cited the case of the 
Exeter carrier, which he thus stated : Where A. stole goods and de- 
livered them to the Exeter carrier to be carried to Exeter, the owner 
finding the goods in the possession of the carrier, demanded them of 
him. The carrier refused to deliver them, without being first paid for 
the carriage. The owner brought trover for his goods, and it was ad- 
judged that the defendant might detain them for the carriage, on the 
ground that the carrier was obliged to receive and carry them. Powell, 
J., denied the authority of the Exeter case, but concurred with C. J. 
Holt in the decision of the case then under consideration. There is an 
obvious ground of distinction between the cases of carrjdng goods b^- a 
common carrier, and the furnishing keeping for a horse by an innkeeper. 
In the latter case, it is equally for the benefit of the owner to have his 
horse fed by the innkeeper, in whose custody he is placed, whether left 
bj- a thief or by himself or agent ; in either case, food is necessary for 
the preservation of his horse, and the innkeeper confers a benefit upon 
the owner b}- feeding him. But can it be said that a carrier confers a 
benefit on the owner of goods bj- carrj'ing them to a place where, per- 
haps, he never designed and does not wish them to go? Or, as in this 
case, is the owner of goods benefited by having them taken and trans- 
ported by one transportation line, at their own price, when he had al- 
ready hired and paid another to carry them at a less price? This 
distinction does not, however, at all effect the determination of the case 
before us ; we place it entirely upon other g^iounds. 

The case of Bevan v. Waters, 3 C. & P. 520, was cited to sliow that 
a carrier was not bound to inquire into the title of a person offering 
goods for carriage. In that case the plaintiff bought two horses of 
defendant, which had been previously placed in the possession of one 
Boast, a liverj'-stable keeper, for feeding and training. When the 
plaintiff, after the purchase, applied to Boast for the horses, he refused 
to deliver them till paid for keeping and training, which the plaintiff 
paid, amounting to £130, and then brought assumpsit against the de- 
fendant for the monej-. He was allowed to recover on the ground that 
Boast had a valid lien upon the horses, and that the sale by defendant 
to the plaintiff created such a privity between them, as authorized the 
plaintiff to discharge the lien and resort to the defendant for repayment. 

The decision of that case, it is seen, does not rest at all upon the 
ground contended for here bj- the defendants. 

Several elementary authorities are also cited bj* defendants' counsel, 
in support of the doctrine assumed, but thej'' are found, in every in- 
stance, to refer to the case of Ybrke v. Grenaugh, 2 Ld. Eaj'm., and 
of course do not go far to fortify the position taken in this case ; but 
leave it still resting upon the authority of that decision alone. 

All the other cases, in which the general proposition is laid down that 

276 fitch; v. newbeeey. 

common carriers are bound to receive goods offered for carriage, are 
evidently based upon the supposition that the goods are there offered 
by their owners or their authorized agents ; and that, if in any waj they 
acquire possession of property without consent of the owner, express or 
implied, they, like all other persons, may be compelled to restore it to 
such owner, or pay him for its value. And that the doctrine of caveat 
emptor applies, with the same force, to that class of persons as to others, 
is manifest, I think, from an examination of authorities. 

The obligation of a common carrier to receive and carry all goods 
offered, is qualified b}- several conditions, which he has a right to insist 
upon before receiving them. 1. That the person offering the goods has 
authority to do so. 2. That a just compensation, or the usual price, be 
tendered for the carriage. 3. That although the owner, or his agent, 
offer goods for carriage and tender payment for the freight in advance, 
still he is not bound to receive them, unless he have the requisite con- 
venience to carry them. 

In an action brought against a carrier for refusing to receive and 
carry goods, would it not constitute a valid defence that the plaintiff 
had stolen them, although, at the time of offering, the carrier may not 
have known thej' had been stolen ? 

In Story on Bail. § 582, it is laid down that a carrier is excused for 
non-delivery of goods to the consignee, when they are demanded, or 
taken from his possession, by some person having a superior title to the 
property. And, again, where the adverse title is made known to the 
carrier, if he is forbidden to deliver the goods to any other person, he 
acts at his peril ; and if the adverse title is well founded and he resists 
it, he is liable to an action for the recovery of the goods. 

If, then, the owner could reclaim the goods in the hands of the carrier, 
after their delivery to him, and that woOld excuse a non-deliverj' to 
the depositor, it is clear that he would be justified in refusing to receive 
them from one having a wrongful possession, although at the time of 
such refusal, he might not know the manner in which they had been 

So, a carrier is in all cases entitled to demand the price of carriage 
before he receives the goods, and, if not paid, he may refuse to take 
charge of them. Story on Bail. § 586 ; 5 Barn. & Aid. 353 ; 4 Id. 32 ; 
3 Bos. & Pull. 48 ; and Whit, on Liens. 92. 

If, then, a common carrier may demand payment for carriage in ad- 
vance, and if he may reject goods offered by a wrong doer, or by one 
having no authority' to do so, is he not bound to take care that the per- 
son from whom he receives them has authority to place them in his 
custody ? 

In Story on Bail. § 585, it is said : A carrier having once acquired the 
lawful possession of goods for the purpose of carriage, is not bound to 
restore them to the owner again, unless his due remuneration be paid ; 
evidently presupposing the goods to have been delivered to him by the 
owner ; and cites 9 Johns. 17 ; 3 Johns. Cases, 9. In Lempriery. Pasley., 


2 T. R. 485, it was held that goods wrongfullj- delivered to the person 
claiming them, who paid freight and otlier charges, could not be detained 
for those expenses against the rightful owner. In 2 Kent's Com. 638, it is 
laid down that possession is necessarj- to create the lien, but though there 
be possession of goods, a Hen cannot be acquired, when the party came 
to that possession wrongfully. So, if the party came to the possession of 
goods without due authorit}-, he cannot set up a lien against the owner. 
2 Kent's Com. C38 ; 5 T. R. 604 ; 4 Esp. R. 174 ; 7 East, 5. In Bushirh 
V, Purington, 2 Hall R. 561, property was sold upon a condition ; the 
buyer failed to compl3- with the condition, but shipped the goods on 
board the vessel of the defendants. The owner claimed the goods, de- 
manded them, and on defendants' refusal to deliver them, brought trover 
for their value. The defendants insisted on their right of lien for the 
freight, but the plaintiff was allowed to recover. 

In Salters v. JEoerett, 20 Wend. 275, the master of a vessel, with 
whom the defendant in error shipped goods from New Orleans to New 
York, during the vojage made a new bill of lading in his own name as 
owner. The goods at New York were sold to the plaintiff in error, who 
was ignorant of the shipmaster's fraud. The owner (the defendant in 
error) sued the purchaser for their value, or return. Senator Verplanck, 
in the opinion which he delivered in the Court of Errors, held this doc- 
trine : " The universal and fundamental principle of our law of personal 
propertj' is, that no man can be divested of his property without his own 
consent ; and, consequentlj', that even the honest purchaser, under a 
defective title, cannot liold against the true proprietor." And again, 
" there is no case to be found, or anj' reason or analogy an3-where sug- 
gested in the books which would go to show that the real owner could 
be concluded by a bill of lading not given by himself, but by some third 
person, erroneously or fraudulently." Id. 281. •' If the owner lose his 
property, or is robbed of it, or it is sold or pledged, without his consent, 
by one who has onl}' a temporary right to its use, by hiring or otherwise, 
or a qualified possession of it, for a specific purpose, as for transporta- 
tion, or for work to be performed upon it, the owner can follow and re- 
claim it in the hands of an}' person, however innocent." Id. 282. 

In The Anne, 1 Mason, C. C. R. 512, persons not authorized by the 
owner took command of a vessel, and carried her out of the regular 
course of the voyage, and emploj'ed a pilot to take her into port, and he 
sought to enforce his lien on the vessel for pilotage. In deciding that 
case the court saj- : "It cannot be maintained, upon anj' acknowl- 
edged principles of law, that mere wrong doers, or usurpers of the com- 
mand of the ship, not acknowledged or appointed by the owner, can 
create a lien on the ship, or personally bind the owner, by a contract 
which they may choose to make, whether it be beneficial to him or 

In Greenway v. Fisher, 1 C. c& P. 190, it was said, that if goods be 
placed in the hands of a common carrier without the consent of the 
owner, and while he has them in possession they be demanded, and he 


refuse to deliver them, trover lies at the suit of the owner. In Soff- 
man v. Carrow, 22 "Wend. 318, the court say: "The doctrine of our 
decision is, that the original and true owner of moveable property who 
has not, by his own act or assent, given a color of title or an apparent 
right of sale to another, ma.y recover its value from any one having it in 
possession, and refusing to deliver it up to him." 

If it be said for the defendants that Allen, the master of the vessel 
on which the goods were originallj- shipped, or Eddy & Bascomb, the 
wharfingers and forwarders to whose care at Whitehall they were con- 
signed, delivered them to the defendants, or to those from whom they 
received them, it may be replied, that if such were the fact it would not 
affect the rights of the plaintiffs, or the liabilities of the defendants, 
under the facts found b}' the special verdict in this case. 

The jury have found that the plaintiffs contracted with the New York 
& Michigan Line to transport their goods to Detroit, and paid them the 
stipulated price for the carriage, in advance. The only power over the 
goods which that line derived from their contract with the plaintiffs was 
to safel}' carry and deliver them at the place of consignment. They 
had no authorit}- to transfer them to any other line, and make the plain- 
tiffs chargeable for the freight. And the defendants, under such a trans- 
fer, could acquire no right to compensation for freight as against the 

Nor had Eddy & Bascomb, from any fact appearing in the case, anj' 
authority to forward the goods, from Whitehall, by anj' conveyance other 
than that which the plaintiffs had directed, and which appeared upon 
the bill of lading that accompanied the goods. A special authority- must 
be strictly pursued ; and whoever deals with an agent constituted for a 
special purpose, deals at his peril, when the agent passes the precise 
limits of his power. 2 Kent's Com. 631. No one can transfer to an- 
other a better title than he has himself, or a greater interest in personal 
property than he or the person for whom he acts possesses. Hoffman 
V. Carrow, before cited. 

To create a lien, it is necessary that the party vesting it should have 
the power to do so. A person can neither acquire a lien by his own 
wrongful act, nor can he retain one, when he obtains possession of 
goods without the consent of the owner, express or implied. 5 T. R. 
606 ; 1 Saund. PI. & Ev. 326 ; 2 Stark. Ev. 360 ; Andrew v. Dietrich, 
14 Wend. 31. 

It is quite clear that from no delivery made of the goods in question, 
bj' the original carriers, to the Merchants' Line, can anj' contract be 
implied that the plaintiffs would pay them for the freight, and thus lay 
the foundation for the lien claimed. 

But if it be admitted that the owners or agents of the New York & 
Michigan Line, delivered the plaintiffs' goods to the defendants, or to 
those for whom the}' acted, thej- must be presumed to have received 
them as the agents of that line, and to have transported them from 
Albanj' to Detroit, for and on account of that line ; and they, conse- 


quently, can resort to it alone for compensation. If the defendants are 
tlie agents of the New York & Michigan Line, they are bound by tlie 
contract of affreightment which that line made ; and to entitle them to 
freight (had it not been paid in advance), they should show that con- 
tract strictly and fully performed, by a delivery of the goods to the con- 
signees named in the contract. It is not suflflcient that the goods arrive 
at the port of destination, but there must be a delivery of them to per- 
fect the right to freight. Ab. on Sh. 273. It is a general and an ac- 
knowledged rule, that the voyage must be performed according to the 
contract, before the ship owner or master can demand his freight. 
Conveyance and deliver^' of the cargo are conditions precedent, and 
must be fulfilled. A partial performance is not sufficient, unless de- 
livery be dispensed with, or prevented by the owner. Palmer v. Lor- 
rillard, 16 Johns. R. 356. 

If the goods came to the hands of the defendants or their priucipals, 
without the agencj- of those who control the New York & Michigan 
Line, with or without fraud, as by finding them in a storehouse, or on a 
wharf at Whitehall, Albany, Buffalo, or elsewhere, it would not var^- the 

If goods came to the possession of a person by finding, and he has 
been at trouble and expense about them, he has a lien upon the goods 
for compensation, in one case onlj-, and that is the case of goods lost at 
sea ; then there is a lien for salvage. This lien is allowed upon princi- 
ples of commercial necessity, and is thought to stand upon peculiar 
grounds of maritime policy, and does not applj'-to cases of finding upon 
land. 2 Mason B. 88 ; 2 Kent's Com. 635, and numerous cases there 

But it is insisted by the plaintiffs that a lien can ontybe created when 
the relation of debtor and creditor exists between the parties. 

A lien is defined to be a tie, hold, or security upon goods or other 
things, which a man has in his custody, till he is paid what is due him. 
2 Pet. Dig. 692. 

In the case of the United States v. Sarney, it was held that a lien 
cannot exist against the government ; for liens are only known or ad- 
mitted in cases where the relation of debtor and creditor exists, so as to 
maintain a suit at law for the debt or duty which gives rise to the lien, 
in case the pledge be destroyed or the possession lost. An innkeeper 
cannot, therefore, upon the ground of a lien, justifj- the arrest and de- 
tention of the horses employed in the transportation of the pubhc mails. 

2 Pet. Dig. 693 ; 3 Hall's Law Jour. 128. In Oppenheim v. Russell, 

3 B. & P. 49, Justice Heath says : " There is a certain privitj' of con- 
tract between the consignor of goods and the carrier, and it is evident 
that there is this privity of contract from this consideration, that if the 
consignee cannot be found, or refuse to receive the goods, the carrier 
may come upon the consignor for the carriage of the goods, which he 
could not do, unless there was a privity of contract between them." Is 
not the principle decided in these cases perfectly conclusive of the rights 


of the parties to this suit? It seems to me to be a proposition too 
plain to be controverted. That one man cannot, by his own act, make 
another his debtor, without his consent, will not be questioned. Conse- 
quentlj', it is not sufficient to create the relation of debtor and creditor, 
that the plaintiff should have rendered services to the defendant, with- 
out also showing that the defendant assented to the services, and ex- 
pressly or impliedly agreed to remunerate the plaintiff for them. Bar- 
tholomew V. Jackson, 20 Johns. 28, is a strong case upon this point. 
The action was assumpsit, for removing a stack of wheat, without the 
knowledge of the defendant, to prevent its being burned. The court, 
in their decision of the case, adopt this language : " The plaintiff per- 
formed the service without the privity or request of the defendant, and 
there was, in fact, no promise, express or implied." Everts v. Adams, 
12 John. 352, where the plaintiff furnished medicines for a town pauper, 
and sought to charge the overseers of the poor, and Dunbar v. Wil- 
liams, JO Johns. 249, where the plaintiff provided medicines to defend- 
ant's slave, without the knowledge of the owner, and numerous kindred 
cases, are to the same effect. 

Schmaling v. Thomlinson, 6 Taunt. 147, bears directly upon the 
question involved in this case. The action was for commission, work 
and labor, and money paid for shipping and forwarding the goods of' 
the defendants from London to Amsterdam. The defendants employed 
Aldibert, Becker & Co. to perform the business, and they employed the 
plaintiffs, who had no communication with, or knowledge of the defend- 
ants. The plaintiffs forwarded the goods as directed. The court decided 
there was no privity between the plaintiffs and defendants ; that the 
defendants looked to Aldibert, Becker & Co. for the performance of 
their business, and Aldibert, Becker & Co., and thej- onlj-, had a right 
to look to the defendants for paj-ment. There the forwarder delivered 
the goods and sued for the carriage, &c. Here the defendants refused' 
to deliver the goods, and insisted on their right to a lien. The principle 
involved, however, is the same in both cases, if it be admitted that 
there must be a debt to sustain a lien. 

Finally, on a full and careful consideration of this case, we arrive at 
the following conclusions : — 

1. That a common carrier is bound to receive and carry goods only 
when offered for carriage by their owner or his authorized agent, and 
then only upon payment for the carriage in advance, if required. 

2. If a common carrier obtains the possession of goods wrongfully, or 
without the consent of the owner, express or implied, and, on demand, 
refuses to deUver them to the owner, such owner may bring replevin for 
the goods, or trover for their value. 

3. To justify a lien upon goods for their freight, the relation of 
debtor and creditor must exist between the owner and the carrier, so 
that an action at law might be maintained for the payment of the debt, 
sought to be enforced by the lien. 

The facts set forth in the special verdict found in this case do not 


bring it within the principles which justify the lien claimed by the de- 
fendants, and, therefore, judgment for the plaintiffs must be entered 
upon the verdict for their damages for the detention of the goods re- 
plevied, and for their costs. ^ 

C. Loss of Lien. 

King's Bench. 1723. 

[Eepm-ted 1 Stra. 557.] 

In trover for three horses, the defendant pleaded, that he kept a 
public inn at Glastenbury, and that the plaintiff was a carrier and used 
to set up his horses there, and £36 being due to him for the keeping 
the horses, which was more than they were worth, he detained and sold 
them, prout ei bene licuit : and on demurrer judgment was given for 
the plaintiff, an innkeeper having no power to sell horses, except 
within the city of London. 2 Roll. Abr. 85 ; 1 Vent. 71 ; Mo. 876 ; 
Yel. 67. And besides, when the horses had been once out, the power 
of detaining them for what was due before did not subsist at their com- 
ing in again. Wilkins v. Garmichael, Doug. 105 ; Co. Bank. Laws 
516, 3 ed. 

King's Bench. 1805. 

[Reported 7 East, 5.] 

This action of trover for tobacco having gone to a second trial. In 
consequence of the opinion of the court delivered in Trinity term last, 6 
East, 538, when it was considered that the defendant's taking an as- 
signment of the tobacco in the King's warehouse by way of pledge from 
one Coddan, a broker, who had purchased it there in his own name for 
his principal, the plaintiff (after which assignment the tobacco stood 
in the defendant's name in the warehouse, and could only be taken out 
by his authority), and the defendant's refusing to deliver it to the 
plaintiff after notice and demand by him, amounted to a conversion. 
The defence set up at the second trial was, that the plaintiff being in- 
debted to Coddan his broker in £30 on the balance of his account ; and 
he having a lien upon the tobacco to that amount while it continued in 
his name and possession, the defendant who claimed by assignment 

1 Robinson v. Baker, 6 Cush. 137; accord. Contra, semble, Waugh v. Venham, 
16 Ir. C. L. 405; and King v, Richards, 8 Whart. 418. 

282 m'combie v. davies. 

from Coddan for a valuable consideration stood in his place and was 
entitled to retain the tobacco for that sum ; and therefore that the 
plaintiff not having tendered this £30 ought to be nonsuited. Lord 
Ellenborough, C. J., however, being of opinion that the lien was per- 
sonal, and could not be transferred by the tortious act of the broker 
pledging the goods of his principal, the plaintiff recovered a verdict for 
the value of the tobacco. 

The Solicitor- General now moved to set aside the verdict, and 
either to enter a nonsuit or have a new trial ; upon the ground that the 
defendant who stood in the place of Coddan, and was entitled to avail 
himself of all the rights which Coddan had against his principal, could 
not have the goods taken out of his hands by the principal without 
receiving the amount of Coddan's claim upon them. And in answer to 
the case of Daubigny v. Duval, 5 Term Rep. 604 (which was sug- 
gested as establishing a contrary doctrine), he observed that Lord 
Kenyon was of^opinion at the trial, that the principal could not recover 
his goods from the pawnee, to whom they had been pledged by the 
factor, without tendering to the pawnee the sum advanced \>j him, 
which was within the amount of the factor's lien upon the goods for his 
general balance ; and that his Lordship seemed to retain that opinion 
when the case was moved in court, though the rest of the bench differed 
from him. But — 

Lord Ellenborough, C. J., .=iaid, that nothing could be clearer than 
that liens were personal, and could not be transferred to third persons 
by any tortious pledge of the principal's goods. That whether or not 
a lien might follow goods in the hands of a third person to whom it was 
delivered over by the party having the lien, purporting to transfer his 
right of lien to the other, as his servant, and in his name, and as a con- 
tinuance in effect of his own possession ; j-et it. was quite clear that a 
lien could not be transferred by the tortious act of a broker pledging 
the goods of his principal, which he had no authority to do. That in 
Daubigny v. Duval, though Lord Kenyon was at first of opinion that 
there ought to have been a tender to the pawnee of the sum for which 
the goods had been pledged by the factor, within the extent of his lien, 
in order to entitle the plaintiff to recover ; }-et after the rest of the 
court had expressed a different opinion, on which he at that time only 
stated his doubts, he appears in the subsequent case of Sweet and 
another. Assignees of Gardy. Pym, 1 East, 4, to have fully acceded 
to their opinion ; for he there states that " the right of lien has never 
been carried further than while the goods continue in the possession of 
the party claiming it." And afterwards he says, " In the case of Sin- 
loch V. Craig, 3 Term Rep. 119, afterwards in Dom. Proc. ib. 786, 
where I had the misfortune to differ from my brethren, it was stronglj- 
insisted that the right of lien extended beyond the time of actual pos- 
session ; but the contrary was ruled bj- this court, and afterwards in 
the House of Lords." 

His Lordship then, after consulting with the other judges, declared 


that thv ' the court coincided with him in opinion, that no lien 

was tran: ,rred by the pledge of the broker in this case ; and added, 
that he would have it fully understood that his observations were ap- 
plied to a tortious transfer of the goods of the principal by the broker 
undertaking to pledge them as his own ; and not to the case of one 
who, intending to give a security to another to the extent of his lien, 
delivers over the actual possession of goods, on which he has the lien, 
to that other, with notice of his lien, and appoints that other as his 
servant to keep possession of the goods for him ; in which case he 
might preserve the lien. 

Per Curiam, Buk refused.^ 


Nisi Prius. 1808. 

[Reported 1 Camp. 410, note.} 

Trover for some brandy, which laj^ in the defendant's cellars, and 
which, when demanded, he had refused to deliver up, saying it was his 
own property. At this time certain warehouse rent was due to the 
defendant on account of the brandy, of which no tender had been 
made to him. The Attorney- General contended that the defendant 
had a lien on the brandy for the warehouse rent, and that till this 
was tendered, trover would not lie. But Lord Ellenhorough con- 
sidered, that as the brandy had been detained on a different ground, 
and as no demand of warehouse rent had been made, the defendant 
must be taken to have waived his lien, if he had one, — -which would 
admit of some doubt. The plaintiff had a verdict. 

Common Pleas. 1824. 

{Reported 2 Bing. 2.3.] 

Trover for eight pieces of cloth. At the trial before Parh, J., 
Gloucester Lent Assizes, 1824, it appeared that on the 9th of July, 
1822, Symes, a clothier, hearing that a baiUff was in his house, went to 
sleep at the house of the defendant. Gainer (a dyer and miller of cloth), 
to whom he was considerably indebted for work done in the course of 
his business. The next day Symes, by way of securing Gainer, sold 
to him the pieces of cloth in question, together with several others, 
delivering a bill of parcels bearing date a few daj's before. On the 

1 See Story, Bailm. §§ 325, 326, 


first of August a commission was issued against Symes, who was de- 
clared a bankrupt on the 19th. 

In September, the plaintiffs demanded the cloths in question of the 
defendant, who refused to deliver them up, saj-ing, ' ' He might as well 
give up every transaction of his life," but making no demand. In a 
conversation in the March ensuing he said, '• The thing might have 
been settled long ago if the assignees would have allowed him his de- 
mand for milling and rowing the eight pieces of cloth." The value of 
the cloths in dispute was £98 3s., and the defendant's general balance 
against Symes for milling, dyeing, and rowing cloth, £188 lis. It was 
contended at the trial that the defendant's lien, as far as he had any, 
was merged in the purchase of the cloth ; and that at all events he had 
waived it by not making anj- claim in respect of it when the cloth was 
demanded. The learned judge directed the jury that the plaintiffs, pre- 
viously to their demand, ought to have tendered at least the amount of 
the lien for workmanship on the cloths in dispute ; but he reserved the 
point as to the merger of the lien for the consideration of this court. 
A verdict having been found for the defendant, on the issue as to these 
eight pieces of cloth, 

Taddy, Serjeant, now moved for a rule nisi to set aside this verdict 
and have a new trial, on the grounds urged at the assizes ; and he cited 
Boardman v. Sill^ 1 Camp. 410, to show that the defendant had 
waived his lien, by not specifying and insisting on it at the time the 
cloths were demanded of him. 

Best, C. J. I agree in the law as laid down in Boardman v. Sill, 
but not in the application of it now proposed. In that case it was 
lioldcn that if a party, when goods are demanded of him, rests his re- 
fusal upon grounds other than that of lien, he cannot afterwards resort 
to his lien as a justification for retaining them. Therefore if, even in 
this case, the defendant, when applied to to deliver the goods, had 
said, " I bought them, thej- are mj- propertj-," I should have holden 
there was a waiver of his lien ; but he said no such thing, but only, " If 
I deliver them, I maj- as well give up every transaction of m^- life." 
Now, his business was that of a miller of cloth, and if he had given 
up his lien in this instance, he might have been called on to do so 
always ; he therefore refused to deliver them, and it was then for the 
plaintiffs to consider what offer they should make. It has been urged 
that he bought them after the bankruptcy. If that were so, he stands 
in the same situation as every other purchaser under the same circum- 
stances ; the purchaser is liable to restore them to the assignees, but 
the assignees must take them subject to such rights as had accrued 
previously to their claim, and the bankruptcy of the bailor will not de- 
prive the defendant of the right to which he is entitled, — the right of 
lien. It might have been otherwise if the defendant, when called on to 
surrender the goods, had relied on the purchase ; but this was not the 
case, and the verdict must stand. 

Pake, J. If the defendant, on the first conversation, had said any- 


thing inconsistent with the claim of lien there might have been some 
ground for this application ; but the transactions of his life were milling 
and rowing cloth, and those were the transactions which he said he 
might as well give up, if he gave up this. The subsequent conversa- 
tion puts the matter out of doubt, when he declared the thing might 
have been settled, if his demand for milling and rowing the cloth had 
been allowed ; and this clearlj' shows he never intended to relinquish 
his lien. 

BuREODGH, J. If he had said he purchased the cloth, and that the 
lien formed part of the price, there might be some ground for the 
motion. But it is clear the fact was not so. Rule refused. 


CoMMONf Pleas. 1828. 
\_Reported 5 Bing. 130.] 

Tkovee for the conversion of certain race-horses. At the trial 
before JBurrough, J., last Hertford assizes, it appeared that these horses 
had been placed by Lawton with the defendant Messer, a trainer, and 
were by him kept and traiued for running. Lawton being indebted to 
Messer for his services in this respect, and for the keep of the horses, 
and being insolvent, Messer obtained a judgment against him on the 
5th of May, 1827, for £227, upon which he issued &fi.fa. on the 16th 
of the same month, returnable on the 23d. The levy was made on the 
16th, and under it the horses in question, which had never been out of 
his possession, were sold to Messer for £156. 

On the 22d of May, 1827, a commission of bankrupt having issued 
against Lawton, upon an act of bankruptcy committed in February, 
1825, the plaintiff, as his assignee, brought this action to recover the 
value of the before-mentioned horses. 

It was contended, on the part of the defendants, that if the execution 
would not avail against the commiaeion of bankrupt, at all events the 
defendant Messer had a lien for his services in training the horses, 
which entitled him to keep them till his account was settled ; a verdict, 
however, was found for the plaintiff, with leave for the defendants to 
move to set it aside on this ground, and enter a nonsuit instead. Ac- 
cordingly Wilde, Serjt. obtained a rule nisi to this effect, citing Chase 
V. Westmore, 5 M. & S. 180. 

Andrews., Serjt., for the plaintiff. 

Wilde, for the defendant. 

Best, C. J. This was an action of trover against a stable keeper 
and trainer, to recover the value of certain horses placed with him for 
the purpose of being trained. The first question in tfee cause is. 
Whether the defendant had any lien on the horses ; and the second, 


"Whether, if he had a lien, it was destroyed by his taking the horses in 

It is not necessary for us to enter on the first question, because we 
are of opinion that if he had any lien, it was destroyed by the execu- 
tion at his suit. 

A lien is destroyed if the party entitled to it gives up his right to the 
possession of the goods. If another person had sued out execution, the 
defendant might have insisted on his lien. But Messer himself called 
on the sheriff to sell ; he set up no lien against the sale ; on the con- 
trary, he thought his best title was bj' virtue of that sale. Now, in 
order to sell, the sheriff must have had possession ; but after he had 
possession from Messer, and with his assent, Messer's subsequent pos- 
session must have been acquired under the sale, and not by virtue of 
his lien. 

As between debtor and creditor the doctrine of lien is so equitable 
that it cannot be favored too much ; but as between one class of credi- 
tors and another there is not the same reason for favor. 

Mule discharged. 

Exchequer. 1838., 

, [Beporled i M. & VS^. 270.] 

Trover for a mare. Pleas, first, not guiltj' ; secondly, that the mare 
was not the property of the plaintiflf. At the trial before Parke, B., at 
the last Assizes for the county of Suffolk, it appeared that the mare in 
question had been sent on more than one occasion to the premises of 
the defendant, who was a farmer, to be covered by a stallion belonging 
to him, and the charge of lis. for the last occasion not having been 
paid, the defendant refused on demand to deliver up the mare, claim- 
ing a lien not only for the lis., but for a further sum amounting alto- 
gether to £9 7s. i:\d., for covering other mares belonging to the plaintiff, 
and including also a small sum for poor-rates ; on which demand and 
refusal, the plaintiff, without making any tender of the lis., brought 
the present action. It also appeared in evidence that the contract in 
question was made and executed on a Sunday. The learned judge, 
on these facts being proved, directed the jury to find a verdict for the 
plaintiff for £25, the value of the mare, giving liberty to the defendant 
to move to enter a nonsuit on the three following points, which were 
raised at the trial : — First, whether this was a case in which any lien 
would exist at all ; secondly, if it could, whether the defendant had 
waived his lien for this particular charge by insisting on payment of 
his whole demand ; and thirdly, whether this contract, being made and 
executed o» a Sunday, was void by the statute 29 Car. 2, c. 7. Byles 
having, in Easter Term, obtained a rule nisi accordingly, — 


-ffeZZy ^^^ Gunning showed cause. 

Byles and O'Malley, contra. 

Parke, B. With respect to the principal point in this case (which 
has been very well argued on both sides) as to the right of lien on a 
mare for the expense of covering, we will take time to consider or.r 
judgment ; but, assuming that there was a lien, the court have no diffi- 
culty as to the other two points. As to the first point argued by Mr. i 
Kelly, the court are unanimous in considering that if the defendant had 
a lien, he did not waive it under the circumstances of this case, by 
claiming to hold the mare not merely for the expense of covering her, 
but also for the expense of covering other mares belonging to the same 
plaintiff, and also for some payments made in respect of poor-rates 
which he had against him. The only way in which such a proposition 
could be established, would be to show that the defendant had agreed 
to waive the lien, or that he had agreed to waive the necessity of a 
tender of the minor sum claimed to be due. Looking at the mode in 
which he made the claim, and at the ground on which he considered it 
to be made, I think it is clear he has not waived the lien, or excused 
the necessitj' of making a tender ; for when the demand was made he 
said, " I have a general account with you, on which a balance is due to 
me of so much," and part of it was, particularly-, a charge of lis. for 
covering this mare. The cases referred to bj- Mr. Kelly seem to be 
distinguishable from the present. In the case of Boardman v. Sill, 
the defendant did not mention his lien at all, but claimed to hold the 
goods on the ground of a right of property in them, and did not set up 
any claim of lien at all. In Knight v. Harrison^ the ground of refusal 
was, that the right of property was in another person as to the goods in 
question, and that he had a general lien for expenses on those goods. 
Neither of those two cases appears to me to apply to the present. In 
this case it would be strange to say that the defendant meant to 
waivo his lien of the lis. when that was one of the things he said he 
would hold the mare for, and it would be equally- strange to say that he 
meant to excuse the tender of that sum, when no tender was made of 
any sum at all. I do not mean t6 saj' that such circumstances may 
not occur as would amount to the waiver of a Men, and of the tender, 
but that a great deal more must have passed than was proved to have 
passed on the present occasion. If he had said, " You need not trouble 
yourself to make a tender of the sum for which I have a lien, and I 
shall claim to hold the mare for it," the plaintiff would then be in the 
same situation as if a tender had been made ; but we think the defend- 
ant cannot be deprived of his right of holding the property on which he 
had a lien, by anything that has passed on the present occasion. Then, 
as to the other objection, that this was an illegal contract, on the 
ground of its having been made on a Sunday ; we are of opinion that 
this is not a case within the statute 20 Car. 2, c. 7, which onh' had in 
its contemplation the case of persons exercising trades, &c. on that 
day, and not one like the present, where the defendant, in the ordinary 


calling of a farmer, happens to be in possession of a stallion occasion- 
ally covering mares ; that does not appear to me to be exercising any 
trade, or to be the case of a person practising his ordinary calling. But 
independenth' of that consideration, this is not the case of an executory/ 
contract ; both parties were in pari delicto — it is one which has been 
executed, and the consideration given ; and although in the former case 
the law would not assist one to recover against the other, yet if the con- 
tract is executed, and a property either special or general has passed 
thereb}', the propertj- must remain ; and on that ground also, this lien 
would be supported, though it were or might have been illegal to have 
performed this operation on a Sunda)'. It seems to me, however, that 
it was not so ; there is nothing like a trade, and no direct dealing on a 
Sundaj'. The only point, therefore, now to be determined, is, whether 
the defendant had anj lien at all of this description ; and upon that we 
will talie time to consider. 

BoLLAKD, B. I am of the same opinion in this case as my Brother 
Parke, as to these two points ; and I confess I have a very strong 
opinion in favor of the defendant on the other. 

Alderson, B, Upon the two points on which the court has given 
judgment, I entirely concur. It seems to me a monstrous proposition, 
to sajr that a party who claims in respect of two sums to detain a mare, 
is to be supposed to have waived his right to detain her as to one. 
The more natural conclusion is, that the defendant intended to act upon 
both ; if so, and if the other party is informed of that, it then became 
his duty to consider whether he would tender one or the other ; and 
with respect to the observation that has been cited as having fallen 
from Lord Tentei'den, that if the defendant had given notice, the plain- 
tiff would have paid, an equallj- strong observation appears to arise 
the other way ; for probably had the plaintiff said, " I tender you this 
sum, which I admit I am bound to pay," it might cause the defendant 
to reflect whether he really had a right to detain the mare as to the 
other. It seems to me you cannot say, that because the party claims 
more than it maj' be ultimately found he had a rigiit to, he would not 
have a right to a tender of the sum'which the other ought to pay. 

GuENET, B., concurred. Cur. adv. melt. 

The judgment of the court on the principal point was delivered in 
this term by — 

Paeke, B. The court have already disposed of two questions argued 
in this case. The first, whether the defendant's lien on the plaintiff's 
mare, if it existed, was waived by a claim to retain her, not merely for 
the amount due on the particular occasion, but also on others, as well 
as for a debt of a different kind. The second, whether the circum- 
stance, that the transaction occurred on a Sunday, rendered the lien 
invalid. We expressed our opinion on the first point, that there was 
no waiver of the lien, nor any dispensation with the tender of the 
amount due on that occasion ; and on the second, that this was not a 


transaction in the course of the ordinarj' calling of the defendant ; and 
if it was, that still the lien would exist, because the contract was exe- 
cuted, and the special properlj- had passed by the delivery of the mare 
to the defendant, and the maxim would apply, in pari delicto potior 
est conditio possidentis. 

The only remaining question upon which the court reserved its 
opinion is, whether the defendant is entitled to a specific lien on the 
animal, the subject of the action. The jury have found that it was 
delivered into his possession for the purpose mentioned ; that the sum 
is still due ; and that the mare remained in the defendant's posses- 
sion after the claim had arisen and was due. 

The case is new in its circumstances, but must be governed by these 
general principles which are to be collected from the other cases in our 

The principle seems to be well laid down in Bevan v. Wuters, by 
Lord Chief Justice Best, that where a bailee has expended his labor and 
skill in the improvement of a chattel delivered to him, he has a lien for 
his charge in that respect. Thus, the artificer to whom the goods are 
delivered for the purpose of being worked up into form ; or the farrier 
by whose skill the animal is cured of a disease ; or the horse-breaker 
b)- whose skill he is rendered manageable, have liens on the chattels in 
respect of their charges. And all such specific liens, being consistent 
with the principles of natural equity, are favored by the law, which is 
construed liberallj' in such cases. 

This, then, being the principle, let us see whether this case falls 
within it ; and we think it does. The object is that the mare may be 
made more valuable bj' proving in foal. She is delivered to the defend- 
ant that she may by his skill and labor, and the use of his stallion for 
that object, be made so ; and we think, therefore, that it is a case 
which falls within the principle of those cited in argument. 

But there is another difficulty which, unless answered, would prevent 
the hen from taking effect. It is clear that, even in such cases, if the 
nature of the contract applicable to such skill or labor be inconsistent 
with the lien, that the latter, which is but a stipulation annexed im- 
pliedly to the contract, cannot exist. Prior to the case of Chase v. 
Westmore, the general opinion had been that there could be no lien 
where there was anj- express contract at all. That case, however, 
decided, that where there was an express contract, but containing no 
stipulation inconsistent with the lien, it might still exist. In the case 
of the livery-stable keeper there is such an inconsistency, because, by 
the nature of the contract itself, the possession is to be redelivered to 
the owner whenever he may require it. In fact, that falls within the 
principle of the time of payment being, by the contract itself, post- 
poned to a period after the redelivery of the chattel. The doubt 
as to the case of the trainer, in Jacobs v. Latour, turns on this. 
There the question is, whether in the contract for training, there is a 
stipulation for the redelivery of the horse trained for the purpose of 



racing. So, again, if a time be fixed for the payment ; for there the 
lien is inconsistent with the right of intermediate redelivery. 

This case, however, presents no such difficulty ; there does not 
appear here any such inconsistencj'. The mare is delivered for the 
purpose of being covered, and for a specific price to be paid for it. In 
this there is nothing inconsistent with the implied condition that the 
defendant shall detain her till payment. And on the contrar}', accord- 
ing to Cowper v. Andrews, Hob. 41, cited in Chase v. Westmore, the 
word " for" works by condition precedent in all personal contracts, as, 
if I sell you my horse for ten pounds, you shall not take my horse 
except you pay the ten pounds. 

So that, in this case, the lien is more consistent with this contract 
than the denial of it. 

It occurred to us in the course of the discussion which was very abl}' 
conducted on both sides, that there was a difficulty arising out of the 
circumstance that this being a living chattel, might become expensive 
to the detainer, and that the allowance of such a lien would raise ques- 
tions as to who was liable to feed it intermediately. But Mr. Byles 
answered this difficulty satisfactorilj', by referring us to the analogous 
case of a distress kept in a pound covert, where he who distrains is 
compellable to take reasonable care of the chattel distrained, whether 
living or inanimate, and to the case of a lien upon corn, which requires 
some labor and expense in the proper custody of it. 

Other cases were cited in the argument, but they were cases of gen- 
eral lien, which clearly turn upon contract or usage of trade, in which 
he who seeks to establish such contract or usage ultra the general law, 
is held to strict proof of the exception on which he relies. These are 
wholly distinguishable from this case. 

Upon the whole, we think this lien exists, and judgment must be for 
the defendant. Rule absolute to enter a nonsuit. 



[Reported 2 Exch. 479.] 

Trover for theatrical dresses and other property. Pleas : not guiltj'', 
and not possessed ; upon which issue was joined. At the trial of the 
cause, before Parke, B., at the Middlesex sittings in the present term, 
it appeared that the plaintiff and the defendants, in the year 1845, 
with a view to the exhibition of a dwarf of the name of Richard Garn- 
sey, entered into the following agreement: "Memorandum of agree- 
ment made the 29th of December, 1845, between W. Brj'ant, of the one 
part, and R. Wardell, N. Dormer, and T. R. Lewis, of the other part. 
For the considerations hereinafter mentioned, the said W. B. hereby 


agrees to permit and allow R. Garnsey, otherwise called ' the miniature 
John Bull,' to be publicly exhibited by the said R. W., N. D., and 
T. R. L., for twelve calendar months from the date hereof, either in 
London, or within eighty miles thereof ; and the said R. W., N. D., and 
T. R. L. shall have the exclusive control of such exhibition, and of the 
arrangement connected therewith ; and they hereby agree to bear and 
pay all the expenses whatever which may be in any way incurred in 
connection with such exhibition. That the said R. W., N. D., and 
T. R. L., shall retain, receive, and be paid three fourths of the clear 
profits arising from the said exhibition, and the said W. B. shall receive 
or be paid the remaining one fourth of such profits. That this agree- 
ment shall continue and remain in full force for twelve calendar months 
certain ; and in case the said R. Yf., N. D., and T. R. L., shall be desirous, 
at the expiration of such term, to continue the same for six calendar 
months longer, they shall be at liberty to do so ; and in that case, the 
said W. B. shall, during such six calendar months, receive and be paid 
one half of the profits arising from the said exhibition, instead of one 
fourth. That James Garnsey, the father of the said R. G., shall be 
employed by the said parties hereto, at a salarj' of 15s. per week for 
twelve calendar months certain, provided this agreement shall remain 
in full force, and for such further time as such exhibition shall be con- 
tinued, such salarj' to be considered as part of the expenses of the said 
exhibition. That the sum of 30«. per week shall be paid to tlie said 
J. G. and his wife, for twelve calendar months certain, or for such other 
or further time as such exhibition shall be continued ; such payments 
shall be considered and form part of the expenses thereof. That A. 
Whitwham shall be emploj'ed by the said parties hereto for the first six 
weeks of the said exhibition, and the said W. B. shall be employed for 
three months next after the expiration of the said six weeks ; and after- 
wards, the said A. W. and W. B. shall be emploj-ed alternately, so 
long as such exhibition shall be continued. That the said parties hereto 
are to be allowed to have the use of certain propertj^ and dresses dur- 
ing the said exhibition, and at the expiration of this agreement such 
property and dresses are to be given up to the said W. B. That the 
said W. B. or A. W. shall be at liberty to act as check-taker at such 
exhibition, or to appoint a person for such purpose at their own ex- 
pense. That the said N. D. having, on the 27th day of December 
instant, advanced and paid the said W. B. the sum of £40 for the use 
of the said propertj' and dresses, such sum of £40 is to be repaid to the 
said N. D. out of the first profits of the said exhibition. That the ex- 
penses of and connected with the said exhibition shall commence this 
day. That the accounts of and relating to such exhibition shall be set- 
tled, and the balance and the profits ascertained and divided between 
the parties hereto, every fortnight." After this agreement had been en- 
tered into, the property in question was disposed of in a different way, 
but the jury found a verdict for the stage and scenery only, which, at 
the end of the term, were not delivered, but during the term were taken 


to pieces and applied — and this the jurj' found to have been done by 
all the defendants — in constructing a different sort of stage at a differ- 
ent exhibition. It was objected b}- the defendants' counsel that the 
plaintiff and defendants were partners under the terms of the agree- 
ment ; and, secondl}-, that the plaintiff had not, at the time of the con- 
version, such a property in the goods as would maintain the action. 
The learned judge, however, was of a contrarj^ opinion, and the plaintiff 
had a verdict. 

Ogle now moved for a new trial on the ground of misdirection. 

Pollock, C. B. We are all of opinion that there ought to be no rule 
in this case. In the first place, we think that the construction which 
was put upon the contract at the trial is correct. It is clear from 
several parts of the agreement that the words " the said parties" mean 
parties other than Bryant. For in one part of it there is a statement 
that " Whitwham shall be emploj'ed by the said parties" for a certain 
time, and " the said W. Bryant shall be employed " for another period. 
Now, it is clear that Bi-yant was not to be employed by himself, but by 
the three defendants. And in the succeeding clause the same words — 
the said parties — must mean the three defendants. There was, there- 
fore, no partnership between the plaintiff and defendants in the prop- 
erty in question. As to the other point, we are clearly of opinion that 
trover is the proper form of action here, notwithstanding the continuance 
of the contract under which the goods had been bailed to the defend- 
ants. The case of Cooper v. Willomatt, 1 C. B. 672, is a decisive 
authority upon this point. It was there held that a bailee of goods for 
hire, by selling them, determines the bailment ; and the bailor may 
maintain trover against the purchaser, though the purchase was bona 
fide. The cases on the subject are referred to there. The rule is, that 
where there has been a misuser of the thing lent, as by its destruction, or 
otherwise, there is an end of the bailment, and the action for trover is 
maintainable for the conversion. Mule refused.'^ 

Pabke, B., Rolfb, B., Platt, B., concurred. 


Exchequer. 1859. 
[UeporUd 28 L. J. N. S. 303.] 

This was an action of trover, brought by the plaintiff to recover 
certain bags of sugar and cochineal. 

Pleas, not guilty and not possessed. 

The cause came on to be tried, at the Liverpool Spring Assizes, 
coram liyles, J., when a verdict was taken for the plaintiff, subject to a 
special case, which stated the following facts. 

1 See Farrant v. Thompson, 5 B. & Aid. 826 ; Fenn v. Bittleston, 7 Exch. 152. 


The defendant was the managing owner of the barque Maia, which, 
on the 11th of November 1857, he chartered to Mr. John Carmichael, 
of Liverpool, for a voj-age to Central America and back. By the char- 
ter the vessel was to receive a full cargo of merchandise, and therewith 
proceed to a port or ports in Central America, and there deliver the 
same, and receive and take on board from the freighter, or his agents, 
a full cargo of sugar and other lawful produce, and proceed to, &c., 
and make a true and faithful delivery thereof agreeable to bills of lad- 
ing. The said John Carmichael to pay as freight outwards at the rate 
of 55s. per ton of forty cubic feet, and for weight 40s. per ton of 20 
cwt., and homewards at the rate of 50s. per ton of 20 cwt., for freight, 
70s. per ton for sugar or coffee in bags, and anj' other produce shipped 
in full proportion thereto. The master might sign bills of lading as 
tendered without prejudice to the charter-party. And it was agreed 
that for the security and payment of all freight, dead freight, and other 
charges, the master or owner should have a lien on the said cargo or 
goods laden on board. The vessel sailed, and on her homeward vo3-age 
one Larraondo shipped the bags of sugar and cochineal sued for under 
separate bills of lading, making them deliverable to Mr. John Car- 
michael, " on payment of freight and carriage as agreed," and accord- 
ing to custom, they were to be taken as containing the word " assigns." 
The cochineal was £5,000, the sugar £2,667. These bills of lading 
were signed by the master of the Maia, in pursuance of the charter. 
The master was not aware of anj' agreement other than the charter- 
party. But there had been an agreement between Carmichael and 
Larraondo, dated the 23d of August 1857, of which the defendant was 
ignorant until the return of the ship. Bj- this agreement Carmichael 
was to provide Larraondo with room in ships up to 1,200 tons each, he 
to pay £4 10s. a ton of 2,220 lb. of sugar in bags, or other cargoes in 
the same proportion. The cargo shipped was not sufficient to fill the 
ship, and dead freight for the same still remained unpaid. The bills of 
lading for the cochineal and sugar were sent by Larraondo's agent. 
Larraondo inclosed a letter to Carmichael, who handed the inclosure to 
Larraondo, not knowing what it contained. Larraondo retained the 
bills of lading, and afterwards, on payment of drafts for £5,000 and 
£2,667, handed them to the plaintiff, who was his agent. Carmichael 
became bankrupt in September 1858, and on the 27th of October the 
plaintiff requested the assignee in bankruptcy to indorse the bills of 
lading for the cochineal, which he did, on the plaintiff paj-ing a bill for 
the £5,000 (not accepted by the bankrupt) for the benefit of the estate. 
And on the 29th of December the assignee indorsed the bills of lading 
for the sugar, on the plaintiff taking up a bill for £2,667. The Maia 
arrived at Liverpool on the 10th of Januai-y 1859. The defendant was 
to pay the expense of sending the cochineal to London. Next day the 
defendant claimed dead freight, and the assignees refused to adopt the 
charter. On the 18th of January the plaintiff sent to the defendant for 
his signature to dehvery orders for the cochineal and sugar. The 


defendant refused to sign, stating that he had called a meeting of the 
consignees of goods to decide the question about dead freight, and that 
he would communicate notice of the meeting to the plaintiff. The 
plaintiff's clerk had money, and told the defendant that he had it to pay 
the freight, but did not say how much. The plaintiff afterwards made 
out an account of what he considered due for the freight of the coch- 
ineal and sugar, — the sugar at £4 10s. per ton, the cochineal in pro- 
portion, total, deducting £2 Is. for a bag of sugar short, £650. To 
this account was attached a statement that by measurement the sugar 
was 48 cubic feet per ton and the cochineal 90 per cent (omitting 
fractions), and in this ratio deducting £5 per cent for stowage, about 
5 feet per ton, the freight for the cochineal would be about £8 6s. per 
ton, at which rate it was accordingly calculated. The plaintiff sent his 
clerk to the defendant with the account, showing £652 to be due, and 
offered to paj' that amount — which he had in his hand — but the de- 
fendant's cash-keeper said he could not take it. Nothing further took 
place, and this action was brought. 

On the trial of the cause, the defendant set up his lien for the freight 
on the goods and also for dead freight, and objected to the calculation 
of the amount of freight on the goods, on the ground that there was 
and could be no right to deduct a sum of £2 Is. in respect of the value 
of sugar short landed, and that the deduction of £5 per cent in respect 
to the cochineal was improper, and that he was entitled to a larger 
freight thereon than the amount which the plaintiff had calculated, 
even according to the terms of the agreement between Larraondo and 

The jury found that it was neither customary nor reasonable to 
deduct the said £5 per cent in respect of the freight on the cochineal. 

The court were to have power to draw inferences of fact, and the 
questions were, first, whether the plaintiff was entitled to recover in 
the action ; secondl3-, whether the defendant was entitled to a lien on 
the sugar and cochineal for the amount of his dead freight. 

JBrown (with him Brett') ^ for the plaintiff (June 23). The term 
" freight as agreed " in the bills of lading meant freight proper, or live 
freight, not dead freight. 

[The court intimated that they were of that opinion.] 

Besides, the sum tendered was reckoned at £4 10s. per ton, and £3 
10s. was all that was due for live freight, and the excess would more 
than cover the £2 Is. and the £5 per cent deducted for stowage of 

The court then called on — 

Milward (with him Atherton). Dead freight Is mentioned in the 
charter-part}', and "freight as agreed" meant agreed by the charter- 
part}'. Then the defendant had Carmichael's right to declare £4 10s. 
per ton. The deductions made hy the plaintiff in his accounts were 
both wrong, and the true sum due was never tendered, and there was 
no conversion hy the defendant ; he only refused a delivery order. 


[Bramwell, B. On tlie main point, the meaning of the term 
" freight and carriage as agreed," we are all clearly of opinion that it 
means live freight, not dead freight. Indeed, dead freight is not, 
properly speaking, freight at all, and the bills of lading are silent 
about it.] 

On the other points — 

-Brown, in reply. There was a virtual conversion of the goods ; 
they could only be got at bj' a delivery order, which the defendant 
refused, and thereby deprived the plaintiff of the goods. There was a 
waiver of an actual tender. Cur. adv. vult. 

Bramwell, B., now delivered the judgment of the court.' In this 
case the principal point was decided on the argument ; and then there 
remained what may be called a hye point to decide, which was this : 
whether the plaintiff had established that there was a conversion of 
these goods. In order to do so he contended that the defendant had 
refused to deliver them up, and without sufficient reason, which he 
alleged to be a conversion. The defendant denied that there was any 
refusal ; and he said, moreover, if there was a refusal, it was not an 
unwarrantable refusal. Now, we are clearly of opinion that there was 
a refusal. The case states that the defendant refused to deliver up the 
goods. It is true tliat he went on and said he had opened a credit about 
the dead freight ; but, after all, it was a refusal, simple and clear ; and 
although he gave that as a reason for refusing, it would not make it 
less a refusal. No doubt, if there had been suggested b}- the defend- 
ant's counsel anything like a request for an answer, it would not have 
been a refusal. But the case finds it was a plain, peremptory refusal. 
As to the case of Clark v. ChamherJain, 2 Mee. & W. 78, which was 
cited, we concur in the observations of Parke, B., cited from that case. 
But there is a great difference, because in that case the defendant was 
a public officer, and had a right to make inquiries as to what should be 
done with the goods. Here the defendant had no right to do what he 
said he would do. It stands, therefore, that there was a plain, simple, 
unqualified refusal. Then it was said it was a refusal which he, the 
defendant, was authorized to make. We are of opinion that it was not. 
There is no doubt he had a lien upon these goods for the true freight, 
and if he had thought fit to saj', " I detain them on that score," he 
would have had a right to do so. But the case of Scarfe v. Morgan 4 
Mee. & W. 270 ; s. c. 7 Law J. Rep. (N. S.) Exch. 324 lays down the 
law very clearly as to these matters ; and it establishes that the plain- 
tiff has a right to maintain this action. The marginal note of Scarfe v. 
Morgan is not quite accurate, because it does not mention that which 
is contained in the judgment of Baron Parke, that a man may so con- 
duct himself as either to waive the lien, or to dispense with the tender 
of the amount of that lien. That is not mentioned in the marginal note. 
Now, the effect of Baron Parke's judgment is this : that if a man has 

1 Martin, B., Bramwell, B., Clianiiell, B., and W.atson, B. 


two claims for goods, or claims a lien for two different causes on goods, 
as to one claim rightful and as to the other wrongful, and he does not 
in any waj' indicate that he dispenses with a tender, it seems really 
that in that case a simple refusal to deliver them up would not suffice. 
But the rest of that judgment is clear to show that if he goes on, and 
Fo conducts himself as to indicate that a tender of the one amount had 
been nugatorj-, he dispenses with the tender. The learned judge says 
so in so many words ; and to the same effect is the case of Evans v. 
Nichol, 4 Sc. N. S. 43 ; s. c. 11 Law J. Rep. (N. S.) C. P. 6 ; Harding- 
ham V. Alleii, 4 Com. B. Eep. 793 ; 17 Law J. Eep. (N. S.) C. P. 198. 
Then, as to the matter of fact in this case, we can draw a conclusion ; 
we are satisfied there is evidence of it ; and we conclude that the de- 
fendant here, in effect, said, " I claim these goods in respect of the lien 
for two different items ; you need not trouble yourself to tender one of 
them, because if j"ou do so I shall riot deliver them up : I shall keep 
them for the other." If that is so, it is a reasonable thing to show 
that he dispenses with what he owned would be a nugatory tender of 
the sum he was entitled to receive. We are of opinion, therefore, that 
there was a conversion of the goods of the plaintiff, and that he is 
entitled to maintain the action. 

Watson, B., added — I am entirely of the same opinion. The real 
question agitated between these parties is, whether there was a lien for 
dead freight under the circumstances. Now, in the original charter 
there was a lien for dead freight. But the master was to sign bills of 
lading for goods shipped on board the vessel, and the goods were 
shipped on board the vessel ; and in the bill of lading there is no lien 
for a dead freight at all, but merely' for freight {i. e. freight for car- 
riage) as agreed. It is perfectly clear that does not apply to dead 
freight. • The price is for the carriage of goods. It would be a mon- 
strous supposition that a man who shipped £100 worth of goods on 
board a vessel should be held responsible for £1,500 of dead freight. 


CouKT OF Appeal. 1878. 

IBeporkd 3 Q. B. Div. 484.] 

Action for the detention and conversion of horses, carriages, and 

At the trial at the Warwickshire Summer Assizes, 1877, before Pol- 
lock, B., the following facts were given in evidence. The defendant 
kept an inn at Coventry, and at the end of September, 1876, one Ben- 
nett came to the defendant's inn and stayed there as a guest until the 
middle of Januar}', 1877, when he quitted the inn. Bennett was re- 
ceived by the defendant as an ordinary guest, and at the time of his 


departure from the inn he owed the defendant £109 for lodging, food, 
and entertainment. In November, 1876, a pair of horses, wagonette, 
and harness came to the defendant's inn for Bennett ; he told the de- 
fendant that he had bought them from the plaintiff who lived at Leam- 
ington. The horses, wagonette, and harness were not taken in tit 
liverj-, but were received by the defendant as a part of the propertj- 
of his guest Bennett. At the time when the latter quitted the inn, he 
was in debt to the defendant for the keep of these horses, and the de- 
fendant claimed on this account from him £22 10s. Bennett left the 
horses, wagonette, and harness behind him at the defendant's inn. It 
was afterwards ascertained that Bennett was a swindler, and that he 
had bought the horses from the plaintiff upon the terms that if they 
should not be paid for thej' should be returned to him free of expense. 
Bennett did not pay the price for the horses. The plaintiff demanded 
from the defendant possession of the horses, wagonette, and harness, 
and tendered to him a sum of £20 for the keep of the horses ; but the 
defendant refused to give up the horses, wagonette, and harness. The 
defendant sold the horses bj' auction for £73, but he retained posses- 
sion of the wagonette and harness. Bennett was afterwards convicted 
of fraud, and sentenced to penal servitude. The defendant claimed to 
keep the proceeds of the sale, and also to retain the wagonette and 
harness, on account of the sums of £109 and £22 10s. 

Upon these facts the learned judge directed judgment to be entered 
for the defendant. 

Sir James Stephen, Q. C., and J. S. Dugdale, for the plaintiff. 

Mellor, Q. C, and Chahani, for the defendant. 

Beamwell, L. J. The first question for our decision is, what was the 
innkeeper's lien. Was it a lien on the horses for the charges in respect 
of the horses, and on the carriage in respect of the charges of the car- 
riage, and no lien on them for the guest's reasonable expenses, or was it 
a general lien on the horses and carriage and guest's goods eonjointlj' 
for the whole amount of the defendant's claim as innkeeper. I am of 
opinion that the latter was the true view as to his lien, and for this 
reason, that the debt in respect of which the lien was claimed was one 
debt, although that debt was made up of several items. An innkeeper 
may demand the expenses before he receives the guest, but if he does 
not, and takes him in and finds him in all things that the guest re- 
quires, it is one contract, and the lien that he has is a lien in respect of 
the whole contract to paj' for the things that are supplied to him while 
he is a guest. If this was not the case, a man might go to an hotel 
with his wife, and then it might be said that the innkeeper's lien was on 
the guest's luggage for what he had consumed, and on the wife's lug- 
gage for what she had had. The contract was, that the guest and his 
horses and carriage shall be received and provided for ; there was one 
contract, one debt, and one lien in respect of the whole of the charges. 
The cases cited on behalf of the plaintiff are really against him. In 
order to justify the argument for him, it ought to be shown that if fifty 


pieces of cloth are sent to a dyer under one contract, he would only 
have a lien on each piece for the work done in respect of it. It seems 
to me, therefore, in this case the lien is a general lien. So far our 
judgment is for the defendant. 

On the second question, namely, whether the sale was wrongful, I 
think the learned judge was wrong. The defendant, who had only a 
lien on the horses, was not justified in selling them, and he has there- 
fore been guilty of a conversion, and that enables the plaintiff to main- 
tain this action for the proceeds of the sale. The very notion of a lien 
is, that if the person who is entitled to the lien, for his own benefit 
parts with the chattel over which he claims to exercise it, he is guilty 
of a tortious act. He must not dispose of the chattel so as to give 
some one else a right of possession as against himself. The lien is the 
riglit of the creditor to retain the goods until the debt is paid. It is 
quite clear that the defendant could not use the horses, yet it is sug- 
gested that he can sell them and confer a title upon another person. 
Several cases were cited, but none of them are inconsistent with the 
present. Those mainh' relied on were Donald v. Suckling, Law Rep. 
1 Q. B. 585, and Johnson v. Siear, 15 C. B. (N. S.) 330 ; 33 L. J. 
(C. P.) 130. In the latter case it was no doubt held that the sale by 
the pledgee of an article pledged to him was tortious, and that the 
action could be maintained. But looking at the substance of the thing, 
and at the decision of Salliday v. Solgate, Law Rep. 3 Ex. 299, in 
all these cases the courts held that although the pledgee in repledging 
the article had exceeded what he had a right to do, yet inasmuch as 
there remained in the pledgee an interest, not put an end to by the 
the unauthorized pledge, he could transfer the pledge to another per- 
son. In Johnson v. Stear it certainh' was held to be a tortious con- 
version. In the other two cases it was held not to be so. What in 
substance those cases decided was, that as the interest under the orig- 
inal pledge was not determined, the immediate right to the possession 
of the chattels was not re-vested in the pledgor so as to give him a 
right of action. Those cases, however, were cases between the pledgor 
and the pledgee, and have nothing whatever to do with the present 
case. The interests of the pledgee there could be assigned, but here 
the parting with the chattels subject to the lien destroyed it. 

The third question argued was as to the amount of damages. The 
general rule is that where a person converts property to his own use by 
selling it and receives the price, he is liable for the value of the article, 
and he cannot set-ofl!". Now what were the authorities cited to the con- 
trary? Chinery v. Viall, 5 H. & N. 288 ; 29 L. J. (Ex.) 180, is dis- 
tinguishable on the ground that the case was decided on its special 
facts. The ground of the decision was that " as the vendor could not 
sue for goods bargained and sold, the result would be that he could 
not in anj' form of action recover the price ; and it would be singular 
if the same act which saved the vendee the price of the sheep should 
vest in him a right of action for the fuU value without deducting 


the price." I cast no doubt on that case ; the ground on which it is 
based is different. The next case was Brierley v. Kendall, 17 Q. B. 
937; 21 L. J. (Q. B.) 161. That was an action of trespass, and the 
plaintiff had mortgaged the goods wrongfulh- seized by the defendants 
as a securitj' for money advanced bj' them to him. Another case was 
Johnson v. Stear. I onlj- wish to add one word as to that case. The 
court there held that the action was maintainable, but I see that Black- 
burn, J., in his judgment in Donald v. Suckling, at p. 617, doubts 
whether that case was rightly decided, because he says, " This can be 
reconciled with the cases abn\'e cited, of which Fenn \. MUtleston, 7 
Ex. 152 ; 21 L. J. (Ex.) 41, is one, by the distinction that the sale, 
though wrongful, was not so inconsistent with the object of the con- 
tract or pledge as to amount to a repudiation of it, though I own that 
I do not find this distinction in the judgment of Johnson v. Stear." 
So that Blackburn, J., doubts whether the Court of Common Pleas 
were right in that case in giving the plaintiff even nominal damages. 
"Whether that decision is right or not, the plaintiff clearly was not en- 
titled to substantial damages. The reasoning in that case, however, is 
not applicable to the present. But thei-e is a remark of Williams, J., 
in his judgment, at p. 134, which I think is applicable ; it is this : " The 
true doctrine, as it seems to me, is that whenever the plaintiff could 
have resumed the property, if he could lay his hands on it, and could 
have rightfully held it when resumed as the full and absolute owner, he 
is entitled to recover the value of it as damages in the action of trover 
which stands in the place of such resumption." Now in this case if 
the plaintiff, after the sale of the horses, had thought fit to go to the 
vendee and saj' to him, " Those horses are mine," and the vendee had 
refused to give them up, he could have maintained an action against 
the vendee for the full value of the horses ; but instead of acting in 
this manner he has treated the sale by the defendant as a conversion. 
He is not to be worse off because he has brought his action against the 
defendant instead of against the vendee. It is said if the plaintiff suc- 
ceeds that the defendant's lien would be useless to him, and that the 
plaintiff would be better off than he was before the sale of the horses 
bj- the defendant. I do not think there is anything unreasonable in 
holding the defendant liable if the defendant was not bound to feed 
the horses. In a case of a distress damage feasant before the recent 
statute (12 & 13 Vict. c. 92) the distrainor was not bound to feed the 
animals distrained. 

It seems to me, therefore, that the learned judge was wrong. I 
think that we ought to reverse the judgment, and give the plaintiff 
judgment for £73, but as the defendant has a lien on the carriage and 
harness for the whole bill, and that amount was not tendered, the de- 
fendant is entitled to retain his judgment as to the wagonette and 
harness. Under these circumstances the judgment will be entered for 
the plaintiff for £73, and as to the rest of the case the judgment will 
stand for the defendant. 


Beett, L. J. This was an action against the defendant in respect of 
a wrongful sale of the plaintiffs horses, and in respect of a wrongful 
withholding from him of a carriage and harness. The defence set up 
is that the defendant held the horses and the carriage and harness 
under a lien, and that the plaintiff therefore could not maintain the 
action in respect of any of them. The lien claimed by the defendant 
was that of innkeeper. 

The first question is, "What is the extent of an innkeeper's lien, and 
to what goods did the lien attach ? I am of opinion the lien attached 
both on the horses and the carriage and harness for the full amount of 
the innkeeper's bill. Where the innkeeper in the course of his ordinary 
business receives not onlj' travellers but also their horses and carriages, 
he has an innkeeper's lien for his whole claim. He has one obligation, 
he is bound to receive the traveller and any horses or carriages he may 
bring with him ; and as there is but one business, one obligation, and 
one contract, according to the custom of England it gives him one lien, 
and the lien cannot be split up and a separate lien claimed in respect 
of separate chattels. Therefore here the defendant has a lien for the 
whole bill incurred bj- Bennett, and that lien is on the carriage and 
horses and harness. 

With regard to the horses, the defendant has sold the horses ; it was 
an unjustifial)lc sale ; he had no right to sell them, and as he had only 
a lien, the sale destroj'ed the lien. If he had parted with the posses- 
sion in the horses, he would have lost the lien, and so in the case of a 
wrongful sale the lien is destroyed. With regard to the carriage and 
harness, the defendant has a lien on them for his whole account. The 
plaintiff was willing to pay some portion of the bill, but he never was 
willing to pay the whole amount. Then it was said, although the de- 
fendant improperlj' sold the horses, yet the plaintiff is not entitled to 
maintain the action, because the defendant had a lien on them, and the 
plaintiff has not tendered the amount of the lien. But this argument 
is not tenable, for hy the sale the lien was destroyed, and there is no 
debt due from the plaintiff to the defendant. It does not seem to me 
to be necessarjr to decide whether the cases cited were rightly decided 
or not. Donald v. Suckling, Law Rep. 1 Q. B. 585, and Halliday v. 
-1. Holgate, Law Rep. 3 Ex. 299, were cases not of lien, but where the 
property had been pledged with a power of sale ; and the judgments in 
these cases were founded on the distinction which existed between the 
cases of pledge and lien, therefore those cases signify nothing, this not 
being a case of pledge. With regard to Johnson v. Stear, 15 C. B. 
(N. S.) 330 ; 33 L. J. (C. P.) 130, that also was the case of property 
pledged, and it is no authoritj- in the present instance. At all events, 
I should say that those cases were only authorities if the action had 
been brought by Bennett, but none whatever as against the plainciff 
who is seeking to recover his own propertv. 

With regard to the damages, even if Johnson v. Stear be an au- 
thority against an action bj' Bennett, it is no authority as against the 


plaintiff, who has an absohite right of propertj', and as there has been a 
wrongful sale he is entitled to recover full damages. However, Johnson 
V. Stear would require very great consideration before it was acted upon. 

As to the plaintiff's claim to the carriage and harness, the defendant 
had a lien on the carriage and harness, and the plain^ cannot recover 
as to them, but he is entitled to recover the sum of i73 in respect of 
the horses. 

In the result, the plaintiff will have judgment for £73, which will 
carrj- the general costs of the cause, the defendant's costs to be de- 
ducted ; and with respect to the appeal, as each party has substantially 
succeeded, no costs of the appeal will be allowed. 

Cotton, L. J. The question is, what is the defendant's lien as inn- 
keeper ? Is it a lien as to the whole bill in respect of all the things 
brought bv the guest to the inn, or is it a separate lien as regards the 
horses and also with respect to the harness and carriage. The inn- 
keeper has a general lien for the whole amount of his bi.l. As to the 
horses, harness, and carriage, there would be a lien for anj' special 
expenditure, and there is no reason for exempting the horses, harness, 
and carriage from the general lien an innkeeper has in the guest's 
goods bj' the general law. The innkeeper is bound to receive the 
horses, liarness, and carriage with the guest as much as he is bound 
to receive the guest himself — the liability of the innkeeper with re- 
spect to them is the same as his liabilitj' with respect to the other 
goods of the guest, and there is no reason for excluding the claim of 
the innkeeper although the horses, harness, and carriage are not re- 
ceived in the dwelling-house, but in adjoining buildings. There is no 
authoritj- for saying that the innkeeper's lien does not extend to the 
horses, harness, and carriage the guest brings with him as much as to 
■ the other things of the guest. 

With regard to the harness and carriage, although the plaintiff ten- 
dered the amount due in respect of the horses, the defendant had a lien 
on the harness and carriage, and as to them the defendant is entitled to 
our judgment. 

As to the horses, it was not contended that the sale was right, but 
the question was argued that as the plaintiff could not have taken them 
out of the hands of the defendant without satisfying his lien, he could 
not recover substantial damages. I do not accede to this argument. 
The defendant as an innkeeper has only a right to keep the horses 
until his bill is paid ; he has parted with his possession and put an end 
to his right. The plaintiff therefore has an absolute title to the horses, 
and is entitled to such damages as amount to the real value. Although 
the defendant received the horses at the inn, and the innkeeper's lien 
attached, yet the lien is lost by the act of the defendant, and the inn- 
keeper cannot claim anything i.s against the plaintiff as there is no debt 
owing from one to the other. Johnson v. Stear was decided on the 
principle that the person who sold the goods bad some interest in them, 
and that case is different from the present, where the person has only 


a right of detainer. Erie, C. J., says, "The deposit of the goods in 
question with tlie defendant to secure paj^ment of a loan by him to the 
depositor on a given day, with a power to the defendant to sell in case 
of default on that day, created an interest and a right of property in 
the goods which ^s more than a mere lien." What, therefore, Erie, 
C. J., says is, assuming that the sale was wrongful, the defendant bad 
an interest in the goods, and the owner can therefore only recover the 
real damage that he has actuallj' sustained. 

The judgment, therefore, will be entered for the plaintiff in £73, and 
for the defendant so far as relates to the harness and carriage. 

Judgment accordingly. 

Supreme Court of Judicature of Indiana. 1855. 

' [Reported 7 Ind. 21.] 

Appeal from the Wabash Circuit Court. 

Davison, J. Assumpsit. The complaint is that Phelps, the plaintiff 
below, on the first da3' of December, 1849, delivered to Hanna and 
Burr, who were then engaged in the business of rendering lard from 
hogs' heads by steam, and barreling the lard so rendered for hire at the 
town of Wabash, three thousand hogs' heads, which they agreed to ren- 
der into lard, and barrel the same for the plaintiff, within a reasonable 
time, &c., for which service he agreed to pay them a reasonable com- 
pensation, &c. It is averred that the defendants have failed to perform 
the agreement on their part, &c. 

Pleas: 1. The general issue ; 2. Performance; 3. That the plaintiff 
was indebted to the defendants $200 for rendering lard and barreling the 
same, &c., which sum exceeds in amount their indebtedness to him, &c. 

Issues being made on these pleas, the cause was tried by the court, 
who found for the plaintiff. New trial refused, and judgment. 

The court, upon the defendants' motion, gave a written statement of 
the facts on which its finding was based, and of the conclusions of law 
arising on the facts. That statement is as follows : — 

1. The plaintiff delivered to the defendants, as bailees, two thousand 
one hundred hogs' heads, out of which lard was to be rendered by them 
for him, which heads each produced four pounds of lard, making eight 
thousand four hundred pounds. 

2. The defendants delivered to the plaintiff, at Jackson's warehouse, 
in the town of Wabash, in twentj'-three barrels, 5,162 pounds of lard, 
leaving unaccounted for and undelivered 3,238 pounds. The lard was 
worth 5 cents per pound, making for the last-named quantity in money 
$161.90. As a compensation for rendering said lard the defendants 
were entitled to $84, leaving a balance due the plaintiff of $77.90. 


3. The plaintiff, after the delivery of the twenty-three barrels, and 
before the comraeneement of this suit, notified the defendants to deliver 
to him all the lard made from said heads ; but they declined to deliver 
any more lard. He did not at any time before the suit either pay or 
tender to them any sum for their services, nor was any demand made 
by them for such services. When the twentj'-three barrels were deliv- 
ered, the lard was subject to their claim for rendering the same, amount- 
ing to $51.63, which amount was never paid to them. The delivery at 
Jaclison's warehouse was with his consent. 

These were all the facts proved in the cause ; and upon them the 
court, as a conclusion of law, decided that no payment or tender for 
services in rendering the lard was necessary before suit. 

"Was this decision correct? Generally speaking, if a chattel delivered 
to a partj- receive from his labor and skill an increased value, he has a 
specific lien upon it for his remuneration, provided there is nothing in 
the contract inconsistent with the existence of the lien. And such lien 
exists equall}- whether there be an agreement to pay a stipulated price 
for *'the labor and skill," or an implied contract to paj' a reasonable 
price. The present is one of the cases in which liens usually exist in 
favor of the part}' who has bestowed services on propertj' delivered 
to him for the purpose. And unless the record discloses facts or cir- 
cumstances sufficient to produce the inference that the defendants 
waived their lien before the institution of this suit, they were not com- 
pelled to give up the propert}^ when the plaintiff demanded it without the 
payment or tender of a reasonable compensation for rendering and barrel- 
ing the lard. If the defendants, at the time of the demand, had refused, 
on the ground of their lien, to part with the property, the law of this 
case would be clearl3f in their favor; but here the plaintiff's demand 
was answered by an absolute refusal to deliver any more lard. We are 
therefore to inquire whether that refusal waived the lien. 

Upon this subject the authorities are not uniform. In England the 
rule seems to be that a person having a lien upon goods does not 
waive it by the mere fact of his omitting to state that he claims 
them in that right when they are demanded. But if a different ground 
of retention than that of the lien be assumed, the lien ceases to exist. 
White V. Gainer, 9 Moore, 41 ; 2 Bing. 23 ; 1 Carr. & P. 324 ; 1 
Camp. 410. It is, however, contended that the refusal of the defend- 
ants, to have shielded them, should have been qualified by their claim 
of a lien. There is authority in support of that position. Dow v. 
Morewood, 10 Barb. 183, was replevin for twenty-one cans of oil. In 
that case it was held "that the defendant having upon demand made, 
refused to deliver the oil to the plaintiff without setting up any lien 
thereon, waived his right to set up a lien afterwards for freight, &c. ; 
that he could not be allowed to deny the plaintiff's title before suit 
broiight. and afterwards defeat a recovery by setting up a lien." 

We are inclined to adopt this rule of decision. An unqualified re- 
fusal, npo-i a demand duly made, is evidence of a conversion ; because 


it involves a denial of any title whatever in the person who makes the 
demand. In the case before us the defendants "declined to deliver 
any more lard." This was, in effect, an assumption that they had in 
their possession no more belonging to the plaintiff. At least he had a 
right to infer from their answer to his demand that they would deliver 
to him no more lard unless compelled to do so by action at law. And 
having thus assumed a position relative to the propertj- inconsistent 
with his title, he had, further, the right to infer that a tender to the de- 
fendants for their services would be unavailing. We are of opinion that 
the facts proved are sufficient to sustain the judgment. 

There is a point made as to the jurisdiction of the court. This case 
was tried by the Hon. Thomas S. Stanfleld, judge of another circuit, at 
a special term held in June, 1853 ; and it is contended that all the 
steps required bj' law to authorize such special term have not been 
taken. 2 R. S., p. 5, s. 3. We have heretofore decided that the above 
special term was held in conformitj- with the statute just cited. Murphy 
V. Barlow, 5 Ind. E. 230. 

The judgment must be affirmed. 

Per Curiam. The judgment is affirmed, with five per cent damages 
and costs. 

S. P. Biddle, for the appellants. 

D. D. Pratt and D. M. Cox, for the appellee. 

Supreme Judicial Court of Massachusetts. 1859. 

[E^orted 12 Gray, 336.] 

AoTioK of tort for taking a quantitj' of calf skins. The declaration 
in one count alleged title in the plaintiff; and in another a lien for 
work done upon them by the plaintiff as a currier. Answer, that the 
goods belonged to William Jameson, and were taken possession of 
under a warrant issued in proceedings in insolvency against Jameson, 
directed to the defendant as messenger. 

At the trial in the superior court of Suffolk at September term 1857, 
the plaintiff offered evidence that the calf skins were left with him by 
Jameson to be curried ; and that when the work was partially done, 
Jameson sold them to him in payment of a debt due him, a part of 
which was for the work done on these skins, and gave a bill of sale 
thei-eof to the plaintiff, in whose possession they then were. 

It appeared that proceedings in insolvenc}' were duly commenced 
against Jameson soon after this sale ; and a warrant issued to the 
defendant as messenger, on which he took the skins. The defendant 
offered evidence that the sale to the plaintiff was fraudulent and void as 
against Jameson's creditors. 


The plaintiff claimed to recover the whole value of the skins, on the 
ground that the sale was not fraudulent ; and also to recover on the sec- 
ond count, the amount of work performed on the skins, on the ground 
that he had a subsisting lien on them therefor. 

Abbott, J. ruled, " that if the plaintiff bought the skins of Jameson, 
taking a bill of sale of them, together with the possession, and this 
purchase was good as between the parties, then if the jury were satis- 
fied that the sale was fraudulent as against the creditors of Jameson, 
and that when the defendant took them the plaintiff claimed under said 
bill of sale to him, and not on the ground of having a lien on them, 
and had so continued in his claim till the commencement of this action, 
never demanding the amount of his lien of the defendant, or notifying 
him that he claimed anj-, bnt persisting in his claim under the sale to 
him, the plaintiff would not be entitled to recover on the second count 
the amount of his lien." The jury returned a verdict for the defend- 
ant, and the plaintiff alleged exceptions. 

F. J". Butler, for the plaintiff. 

P. Willard, for the defendant. 

Merrick, J. By purchasing the calf skins, which had been put into 
his possession to be curried, and bj' taking a bill of sale thereof, and 
afterwards, to the time of the commencement of this action, claiming 
them solely under that title, without having given notice of any other 
to the defendant when he took them away in discharge of his duty as 
messenger under the proceedings in insolvency against the vendor, the 
plaintiff lost or waived the lien which he had previously acquired. A 
good and sufficient consideration was paid for the transfer of the prop- 
ertj', and as between the parties to the contract the sale was absolute 
and complete. The ownership thus obtained was entirely inconsistent 
with the existence of the previous lien. A lien is an incumbrance upon 
property, a claim upon it which may be maintained against the general 
owner. But there is no foundation upon which he who owns the whole 
can create a special right in his own favor to a part. The inferior or 
partial title to a chattel necessarily merges in that which is absolute 
and unconditional, when both are united and held by the same individ- 
ual. This is a general consequence. But in the present instance, it 
is obvious that the parties extinguished, and intended to extinguish, 
the lien which had been previously created upon the calf skins ; for the 
value of the work and labor which had previously been bestowed upon 
them by the vendor was by their express agreement made part of the 
consideration of the sale. After such a transaction the rights of the 
parties were wholly changed. The vendor could no longer assert any 
claim to the property, and the workman had none against his employer. 
His debt had been paid, the property had become his own, and a hen 
upon it in his own favor thereby rendered both needless and impossible. 

But the result is the same if the facts upon which the ruling excepted 
to in the superior court was made are considered in another aspect. 
The law will not allow a party to insist upon and enforce in his own 



behalf a secret lien upon personal propertj^ after he has claimed it 
unconditionally as his own, and has thereby induced another to act in 
relation to it, in some manner affecting his own interest, as he would, 
or might, not have done if he had been openly and fairly notified of the 
additional ground of claim. It would be fraudulent in him to practise 
such concealment to the injury of others ; and to prevent the possibility 
of attempts so unjust becoming successful, the law implies that an 
intended concealment of that kind is of itself a waiver of the lien. The 
authorities cited by the counsel for the defendant, not less than its 
intrinsic reasonableness, fully warrant the ruling to which the plaintiff 
objected. Exceptions overruled. 

D. Pledge. 


Common Pleas. 1863. 
[Reported 15 C. B. N. S. 330.] 

This was an action brought by the plaintiff as assignee of one Mathew 
Gumming, a bankrupt, for the alleged wrongful conversion by the 
defendant of 243 cases of brand}^ and a pipe of wine. 

The defendant pleaded not guilty and not possessed, whereupon issue 
was joined. 

Tlie cause was tried before Erie, C. J., at the sittings in London after 
last Easter Term. The facts as proved or admitted were as follows : 
On the 26th of January, 1862, the banki-upt. Gumming, applied to the 
defendant for an advance of £62 10s. upon the security of certain 
brandies then lying in the London Docks. The defendant consented 
to make the advance, and Gumming gave him his acceptance at one 
month for the amount, at the same time handing him the dock-warrant 
for the brandies and the following memorandum : — 

" I have this day deposited with you the undermentioned 243 cases 
of brandy, to be held by you as a security for the payment of my 
acceptance for £62 10s. discounted bj' you, which will become due 
Januarj' 29, 1863 ; and, in case the same be not paid at maturity, I 
authorize you at any time, and without further consent by or notice to 
me, to sell the goods above mentioned, either by public or private sale, 
at such price as you think fit, and to apply the proceeds, after all 
charges, to the payment of the bill ; and, if there should be anj' defi- 
ciencj", I engage to pay it. (Signed) M. Gumming.'' 

Then followed an enumeration of the marks and numbers on the 

On the 3d of Januar}', Gumming obtained from the defendant a 
further advance of £25 upon the security of a warrant for a pipe of port 


wine, with an T. O. U. and a post-dated check (7th January), but no 
distinct authority, as in the case of the brandies, to sell on default of 
payment on a given day. 

Gumming absconded on the 5th of January, and was declared a 
bankrupt on the 1 7th ; and the plaintiff was afterwards appointed 

On the 28th of January, the defendant contracted to sell the brandies 
to Messrs. Ruck & Co. On the 29th (the day on wliich Cumming's 
acceptance became due) the dock-warrant was delivered to them, and 
on the 30th they took actual possession of the brandies. The check 
given by dimming for the second advance being also dishonored, the 
defendant sold the wine for £40. The demand and refusal were on the 
27tli of February. 

On the part of the defendant it was submitted that there was no 
conversion, and that the transactions were protected, the adjudication 
being now the dividing line ; and that, at all events, the plaintiff was 
only entitled to nominal damages for the premature sale of the bran- 
dies, — it being assumed that the bankrupt had no intention to avail 
himself of his right of redemption. 

Under the direction of the learned judge, the jury returned a verdict 
for the plaintiff, assessing the value of the wine at £40, and that of the 
brandies at £62 10s. ; and leave was reserved to the defendant to move 
to enter a verdict for him if the court should be of opinion that the 
plaintiff was not entitled to recover. 

Powell, in Trinitj- Term, moved for a rule accordingly. 

Dennian, Q. C, and Howard, now showed cause. 

Eele, C. J., now delivered the judgment of the majority of the 

In trover by the assignee under the bankruptcy of one Gumming, 
the facts were that Gumming had deposited brandy lying in a dock 
with one Stear, by delivering to him the dock-warrant, and had agreed 
that Stear might sell, if the loan was not repaid on the 29th of Jan- 
uarv ; that, on the 28th of January, Stear sold the brandy, and on tlie 
29th handed over the dock-warrant to the ^-endees, who on the 30th 
took actual possession. 

Upon these facts, the questions are, — first, was there a conversion? 
and, if yes, — secondly, what is the measure of damages? 

To the first question our answer is in the aflHrmative. The wrongful 
sale on the 28th, followed on the 29th by the delivery of the dock- 
warrant in pursuance thereof, was, we think, a conversion. The 
defendant wrongfully assumed to be owner in seUing; and, although 
the sale alone might not be a conversion, yet, by dehvering over the 
dock-warrant to the vendees in pursuance of such sale, he interfered 
with the right which Gumming had of taking possession on the 29th if 
he repaid the loan ; for which purpose the dock-warrant would have 

1 Consisting of himself, Byles, J., and Keating, J, 


been an important instrument. "We decide for the plaintiff on this 
ground : and it is not necessary to consider the other grounds on which 
he relied to prove a conversion. Then the second question arises. 

The plaintiff contends that he is entitled to the full value of the 
goods sold by the defendant, without any deduction, on the ground 
that the interest of the defendant as bailee ceased when he made a 
wrongful sale, and that therefore he became liable to all the damages 
which a mere wrong-doer who had wilfuUj- appropriated to himself the 
property of another without any right ought to pay. But we are of 
opinion that the plaintiff is not entitled to the full value of the goods. 
The deposit of the goods in question with the defendant to secure 
repayment of a loan to him on a given day, with a power to sell in 
case of default on that daj', created an interest and a right of property in 
the goods which was more than a mere lien : and the wrongful act of 
the pawnee did not annihilate the contract between tlie parties nor the 
interest of the pawnee in the goods under that contract. 

It is clear that the actual damage was merely nominal. The defend- 
ant by mistake delivered over the dock-warrant a few hours onl3' before 
the sale and delivery by him would have been lawful ; and by such 
premature delivery the plaintiff did not lose anything, as the bankrupt 
had no intention to redeem the pledge by paying the loan. 

If the plaintiff's action had been for breach of contract in not keeping 
the pledge till the given day, he would have been entitled to be com- 
pensated for the loss he had really sustained, and no more : and that 
would be a nominal sum onlj'. The plaintiffs action here is in name 
for the wrongful conversion ; but, in substance, it is the same cause of 
action ; and the change of the form of pleading ought not in reason 
to affect the amount of compensation to be paid. 

There is authority for holding, that, in measuring the damages to be 
paid to the pawnor by the pawnee for a wrongful conversion of the 
pledge, the interest of the pawnee in the pledge ought to be taken into 
the account. On this principle the damages were measured in Chinery 
V. Viall, 5 Hurlst. & N. 288. There, the defendant had sold sheep to 
the plaintiff; and, because there was delay in the paj'ment of the price 
by the plaintiff, the defendant resold the sheep. For this wrong the 
court held that trover lay, and that the plaintiff was entitled to recover 
damages ; but that, in measuring the amount of those damages, al- 
though the plaintiff was entitled to be indemnified against any loss he 
had really sustained by the resale, yet the defendant as an unpaid 
vendor had an interest in the sheep against the vendee under the con- 
tract of sale, and might deduct the price due to himself from the plain- 
tiff from the value of the sheep at the time of the conversion. 

In Story on Bailments, § 315, it is said : "If the pawnor, in conse- 
quence of an}' default or conversion by the pawnee, has recovered back 
the pawn or its value, still the debt remains and is recoverable, unless 
in such prior action it has been deducted : and it seems that, bj' the 
common law, the ]Dawnee in such action for the value has a right to 


have the amount of his debt recouped in damages." For this he cites 
Jarvis v. Holers, 15 Mass. R. 389. The principle is also exempli- 
fied in Brierly v. Kendall, 17 Q. B. 937. There, althougli the form 
of the securitj^ was a mortgage, and not a pledge ; and although 
the action was trespass and not trover ; yet the substance of the 
transaction was in close analog}- with the present case. There was 
a loan by the defendant to the plaintiff, secured by a bill of sale of the 
plaintiffs goods, in which was a reservation to the plaintiff of a right to 
the possession of the goods till he should make default in some pay- 
ment. Before any default, the defendant took the goods from the 
plaintiff and sold them. For this wrong he was liable in trespass; 
but the measure of damages was held to be, not the value of the goods, 
but the loss which the plaintiff had really sustained by being deprived 
of the possession. The wrongful act of the defendant did not anni- 
hilate his interest in the goods under the bill of sale ; and such interest 
was to be considered in measuring the extent of the plaintiffs right to 

On these authorities we hold that the damages due to the plaintiff for 
the wrongful conversion of the pledge by the defendant, are to be 
measured by the loss he has really sustained ; and that, in measuring 
those damages, the interest of the defendant in the pledge at the time 
of the conversion is to be taken into the account. It follows that the 
amount is merely nominal, and therefore that the verdict for the plain- 
tiff should stand, with damages 40s. 

Williams, J. I agree with the rest of the court that there was suffi- 
cient proof of a conTersion ; for, although the mere sale of the goods 
(according to The Lancashire Waggon Company v. Fitzhugh, 6 Hurlst. 
& N. 502) would have been insufficient, yet I think the handing over 
of the dock-warrant to the vendees before the time had arrived at which 
the brandies could be properlj' sold, according to the terms on which 
thej' were pledged, constituted a conversion, inasmuch as it was tanta- 
mount to a deliver3^ Not that the warrant is to be consideied in the 
light of a symbol, according to the doctrine applied to cases of dona- 
tions mortis causa ; it is the means of coming at the possession of a 
thing which will not admit of corporal delivery. Ward v. Turner, 
2 Ves. sen. 431 ; Smith v. Smith, 2 Stra. 295. 

But I cannot agree with m}' Lord and raj learned Brothers as to the 
other point ; for, I think the damages ought to stand for the full value 
of the brandies. The general rule is indisputable, that the measure of 
damages in trover is the value of the property at the time of the con- 
version. To this rule there are admitted exceptions. There is the 
well-known case of a redeliver}- of the goods before action brought, 
which, though it cannot cure the conversion, j-et will go in mitigation 
of damages. Another exception is to be found in cases where the 
plaintiff has only a partial interest in the thing converted. Thus, if 
one of several joint-tenants or tenants in common alone brings an action 
against a stranger, he can recover only the value of his share. So, if 


the plaintiff, though solely entitled to the possession of the thing con- 
verted, is entitled to an interest limited in duration, he can onlj' recover 
damages proportionate to such limited interest, in an action against 
the person entitled to the residue of the property (though he may re- 
cover the full value in an action against a stranger) . The case of 
Jirierly v. Kendall, which mj' Lord has cited is an example of this 
exception. There, the goods had been assigned by the plaintiff to the 
defendant by a deed the terms of which operated as a re-demise, and, 
since the defendant's quasi estate in remainder was not destroyed or 
forfeited by his conversion of the quasi particular estate, the plaintiff, 
as owner of that estate, was only entitled to recover damages in pro- 
portion to the value of it. 

With respect, however, to liens, the rule, I apprehend, is well estab- 
lished, that, if a man having a lien on goods abuses it by wrongfully 
parting with them, the lien is annihilated, and the owner's right to 
possession revives, and he ma}' recover their value in damages in an 
action of trover. With reference to this doctrine, it ma}' be useful to 
refer to Story on Bailments. In § 325, that writer says: "The doc- 
trine of the common law now established in England, after some diver- 
sity of opinion, is, that a factor having a lien on goods for advances or 
for a general balance, has no right to pledge the goods, and that, if he 
does pledge them, he conveys no title to the pledgee. The effect of 
this doctrine is, in England, to deny to the pledgee any right in such 
a case to retain the goods even for the advances or balance due to the 
factor. In short, the transfer is deemed wholly tortious ; so that the 
principal may sue for and recover the pledge, without making an}^ 
allowance or deduction whatever for the debts due by him to the factor." 
After stating that the English legislature had at length interfered, the 
leai'ned author continues, in § 326, — " In America, the general doc- 
trine that a factor cannot pledge the goods of his principal, has been 
repeatedly recognized. But it does not appear as yet to have been 
carried to the extent of declaring the pledge altogether a tortious pro- 
ceeding, so that the title is not good in the pledgee even to the extent 
of the lien of the factor, or so that the principal may maintain an action 
against the pledgee without discharging the lien, or at least giving the 
pledgee a right to recover the amount of the lien in the damages." 
But, in the 6th edition, by Mr. Bennett, it is added, — "Later deci- 
sions have, however, fully settled tlie law, that a pledge by a factor of 
his principal's goods is wholly tortious, and the owner may recover the 
whole value of the pledgee, without any deduction or recoupmeiit for 
his claim against the factor." And I may mention that I have rea- 
son to believe this rule as to liens was acted upon a few days ago in 
the Court of Queen's Bench. Siebel v. Springfield, 9 Law T. N. S. 

But it is said that the maintenance of such a rule in respect of pledges 
is inconsistent with Chinery v. Viall, mentioned by my Lord. It 
seems to me, however, that the decision of that case does not interfere 


with the general rule as to damages in trover, but only establishes 
a further exception in the peculiar and somewhat anomalous case of an 
unpaid vendor, whose right in all cases has been deemed to exceed a 
lien : see Blackburn on Contracts, p. 320. I cannot, however, think that 
this exception can be properly extended to the case of a pledgee. An 
unpaid vendor has rights independent of and antecedent to his lien for 
the purchase-money. But the property of a pledgee is a mere creature 
of the transaction of bailment ; and, if the bailment is terminated, must 
surely perish with it. Accordingly, it is said in Story on Bailments, 
§ 327, — "It has been intimated that there is, or may be, a distinction 
favorable to the pledgee, which does not apply, or may not apply, to a 
factor, since the latter has but a lien, whereas the former has a special 
property in the goods. It is not very easy to point out any substantial 
distinction between the case of a pledgee and the case of a factor. The 
latter holds the goods of his principal as a securitj' and pledge for his 
advances and other dues. He has a special property in them, and may 
maintain an action for any violation of this possession, either by the 
principal or by a stranger. And he is generally treated, in judicial 
discussions, as in the condition of a pledgee." Again, i^ § 299, "As 
possession is necessar}- to complete the title by pledge, so, bj' the 
common law, the positive loss or the delivery back of the possession of 
the thing with the consent of the pledgee, terminates his title." And, 
further, in the same section, — "If the pledgee voluntaril}', by his own 
act, places the pledge beyond his own power, as by agreeing that 
it may be attached at the suit of a third person, that will amount 
to a waiver of his pledge." See Whitaker v. Sumner, 20 Pick. R. 

It should seem, then, that the bailment in the present case was ter- 
minated b3- the sale before the stipulated time ; and, consequenth", that 
the title of the plaintiflF to the goods became as free as if the bailment 
had never taken place. If he had brought an action against an innocent 
vendee, the passage I have alread}' cited from Storj', § 325, demon- 
strates that he might have recovered the absolute value of the goods 
as damages. Why should he be in a worse condition in respect 
of an action against the pledgee who has violated the contract of 
pledge ? 

The true doctrine, as it seems to me is, that, whenever the plaintiff 
could have resumed the propert}', if he could lav his hands on it, and 
could have rightfully held it when recovered as the full and absolute 
owner, he is entitled to recover the value of it as damages in the action 
of trover, which stands in the place of such resumption. 

In the present case, I think it plain that the bailment having been 
terminated by the wrongful sale, the plaintiff might have resumed pos- 
session of the goods freed from the bailment, and might have held them 
rightfully when so resumed, as the absolute owner, against all the 
world. And I therefore think he ought to recover the full value of 
them in this action. 


Nor can I see any injustice in the defendant's being thus remitted to 
his unsecured debt, because his lien has been forfeited by his own vio- 
lation of the conditions on which it was created. 

Rule absolute to reduce the damages to 40s. 


Queen's Bench. 1866. 

[Reported L. R. 1 Q. B. 585.] 

Declaeation. That the defendant detained from the plaintiff his 
securities for money, — that is to say, four debentures of the British 
Slate Companj-, Limited, for £200 each, — and the plaintiff claimed a 
return of the securities or their value, and £1,000 for their detention. 

Plea. That before the alleged detention, the plaintiff deposited the 
debentures with one J. A. Simpson, as security for the due payment at 
maturitj' of a bill of exchange, dated 25th August, 1864, paj-able six 
months after date, and drawn by the plaintiff, and accepted by T. 
Sanders, and endorsed bj' the plaintiff to and discounted by Simpson, 
and upon the agreement then come to between the plaintiff and Simp- 
son, that Simpson should have full power to sell or otherwise dispose 
of the debentures if the bill was not paid when it became due. That 
the bill had not been paid by the plaintiff nor by any other person, 
but was dishonored ; nor was it paid at the time of the said detention 
or at the commencement of this suit ; and that before the alleged de- 
tention and the commencement of this suit Simpson deposited the 
debentures with the defendant to be by him kept as a security for and 
until the repayment by Simpson to the defendant of certain sums of 
money advanced and lent by the defendant to Simpson upon the security 
of the debentures, and the defendant had and received the same for the 
purpose and on the terms aforesaid, which sums of money thence hitherto 
have been and remain wholly due and unpaid to the defendant ; where- 
fore the defendant detained and still detains the debentures, which is 
the alleged detention. 

Demurrer and joinder. 

Sarington, for the plaintiff. 

Gray, Q. C. ( Gadsden with him) , for the defendant. 

July 7. The following judgments were delivered : — 

Shee, J. [After stating the pleadings.] This plea sets up a right 
to detain the debentures, founded on a bailment of pawn by the plain- 
tiff to Simpson, under which Simpson, if the bill should not be paid, 
had a right to sell the debentures, paying the overplus above the 
amount of the bill and charges to the plaintiff, — that is, to sell on the 
plaintiff's account and for his and Simpson's benefit, — and a repawn 
of them by Simpson as a security for a loan to him by the defendant. 


It must be taken against the defendant that the debentures were 
pledged to Mm by Simpson before the plaintiff had made default ; it 
must be taken, too, that the advance for which the debentures were 
pledged to the defendant bj- Simpson was of a greater amount than the 
debt for which Simpson held them ; it is consistent with the facts 
pleaded, either that it was repaj-able before or repayable after the ma- 
turity of the plaintiff's bill, and that the debentures were pledged by 
Simpson, along with other securities, from which they could not at 
Simpson's pleasure, or on tender bj- the plaintiff of the sum for which 
the}- had been pledged to Simpson, be detached ; and therefore that 
Simpson had put it out of his power to applj'ithem by sale or otherwise 
to the only purpose for which possession of them had been given to 
him ; viz., to secure the payment of his debt and the release of the 
plaintiff, by the sale of them, from liability on the bill which Simpson 
had discounted for him. 

Whether this pledge to tlie defendant b}' Simpson was such a con- 
version b}' him of the debentures as destroj'ed his right of possession in 
them, and revested the plaintiff's right to the possession of them 
freed from the original bailment, is the question for our decision. 

The contention that a pawnee is entitled to exercise over the chattel 
pawned to him a power so extensive as the one which this plea sets up, 
was before the case of Johnson v. Stear, 15 C. B. N. S. 330 ; 33 L. 
J. C. P. 130, if it be not now, wholly unsupported by authority'. 

A pawn is defined by Sir William Jones (On Bailments, pp. 118, 36) 
to be "a bailment of goods by a debtor to his creditor, to be kept by 
him till his debt is discharged ; " and by Lord Holt ( Cogr/s v. Bernard, 
2 Ld. Raym. 913) , to be "a deliver}' to another of goods or chattels to 
be security to him for money borrowed of him by the bailor ;" and by 
Lord Stair (Institutions of the Law of Scotland, b. i. tit. 13, s. 11), " a 
kind of mandate whereby the debtor for his creditor's security gives 
him the pawn or thing impignorated, to detain or keep it for his own 
security, or in the case of not-payment of the debt, to sell the pledge 
and pay himself out of the price, and restore the rest, or restore the 
pledge itself on payment of the debt ; all which is of the nature of a 
mandate, and it hath not only a custody in it, but the power to dispone 
in the case of not-payment ; " and by Bell (Principles of the Law of 
Scotland, ss. 1362, 1363 ; 4th ed. p. 512), " a real right ov jus in re, 
inferior to property, which vests in the holder a power over the subject 
to retain it in security of the debt for which it is pledged, and qualifies 
so far and retains the right of property in the pledger or owner." 

In the Roman civil law, as in our own law (see Pigot v. Cubley, 15 
C. B. N. S. 701 ; 33 L. J. 134), the bailment of pawn implied what in 
this bailment is expressed, a mandate of sale on default of payment. 
Without it, or without, as in the Scotch and French law, a right to have 
a pledge sold judicially for payment on default made, the security by 
way of pledge would be of little value. The pawnee is said by Lord 
Coke, in his Commentaries on Littleton (Co. Litt. 89 a), to have a 


" property ;" and in Southcot^s Case, 4 Eep. 83 b, to have a " prop- 
erty in, and not a custody onlj'," of the chattel pawned ; by which Lord 
Holt (2 Ld. Raj'm. 916, 917) understands Lord Coke to mean a 
" special propert}-," consisting in this, " that the pawn is a security 
to the pawnee that he shall be repaid his debt, and to compel the 
pawnor to pay him ; " or, in the words of Fleming, C. J. in JRatcliff\. 
Davis, Cro. Jac. 245 : " a special property in the goods to detain 
them for his (the pawnee's) security ; " that is, not a property properly 
so called, but the jus in re, that is, in re aliena, of the Roman law- 
yers ; the opposite, as Mr. Austin says (Lectures on Jurisprudence : 
Tables and Notes, iii. 192), to property; but a right of possession 
against the true owner, and under a contract with him until his debt is 
paid, and a power of sale for the reciprocal benefit of the pawnee and 
pawnor on default of paj-ment at the time agreed upon. 

Mr. Justice Storj- saj's (On Bailments, s. 324), that " the pawnee 
may by the common law deliver the pawn into the hands of a stranger 
without consideration, for safe custodj-, or convej- the same interest con- 
ditionally by waj' of pawn to another person, without destroj-ing or in- 
validating his security, but that he cannot pledge it for a debt greater 
than his own ; that if he do so he will be guilty of a breach of trust, by 
which his creditor will acquire no title beyond that of the pawnee ; and 
that the only question which admits of controversy is, whether the cred- 
itor shall be entitled to retain the pledge until the original debt (that is, 
the debt due to the first pawnee) is discharged, or whether the owner 
mskj recover the pledge in the same manner as if the case was a naked 
tort without any qualified right in the first pawnee.'' So much of this 
passage as is stated to be clear law ; viz. that the pawnee maj' deliver 
the chattel pawned to a stranger for safe custody without consideration, 
or convey the same conditionally {i. e. , it ma}' be presumed, on the same 
conditions as those on which he holds it) by way of pawn to another 
person for a debt not greater than his own, without destroying or invali- 
dating his security, has no application to the case before us, inasmuch 
as the pawn by Simpson to the defendant was not for safe custody, nor 
without consideration, nor conditionally, nor for a debt not greater than 
the debt due bj' the plaintiff to Simpson, and because the power given 
to the pawnee by this bailment to dispose of the debentures by sale or 
otherwise, should his debt not be paid, might probably be considered, at 
least after default made, to enlarge the ordinary right of a pawnee over 
the chattel pawned. There is nothing in the passage which afifbrds any 
countenance, except by way of quer}-, to the position that a pawnee 
who, as in this case, has placed the chattel pawned out of the pawnor's 
power, and out of his own power, to redeem it by pa3-ment of the 
amount for which it was given to him as a security, and who has deprived 
himself of the power of selling it for the payment of the pawnor's debt, 
can by so doing shield the creditor to whom he repawns it from an ac- 
tion of detinue at the suit of the real owner. Mr Justice Story, indeed, 
says (On Bailments, s. 299), " that if the pledgee voluntarily and by his 


own act places the pledge bej'ond his power to restore it, — as by agree- 
ing that it may be attached at the suit of a third person, — that will 
amount to a waiver of the pledge." It would be difficult to reconcile 
any other rule in respect of the pledging by pledgees of the chattels 
pawned to them with the well-established doctrine of our courts and the 
courts of the United States of America in respect of the pledging by 
factors of the goods entrusted to them. Factors, like pledgees, have a 
mandate of sale, — sale irrespectively of default of any kind is the ob- 
ject of the bailment to them ; they have a special property and right of 
possession against all the world except their principal, and against him 
if they have made advances on the security of his goods entrusted to 
them ; to give effect to that security they may avail themselves of their 
mandate of sale ; but if they place the goods out of their own power by 
pledging them, although it be for a debt not exceeding their advances, 
the pawnee from them (except under the Factors Acts) is defenceless, in 
trover or in detinue, even to the extent of his loan, against the true owner. 

Why it should be otherwise between the true owner and the pawnee 
from a pawnee of the true owner's goods, no reason was adduced during 
the argument before us, nor indeed was it possible to adduce any rea- 
son, seeing that in all the decisions on pledges by factors the relation 
between a factor who has made advances on the goods entrusted to him 
and his principal has been held not distinguishable, or barelj- distin- 
guishable, in its legal incidents from the relation between pawnee and 
pawnor ; a factor being, as Mr. Justice Story saj's, " generally treated 
in juridical discussions as in the condition of a pledgee." (On Bail- 
ments, ss. 325, 327 ; citing JDaubigny v. Duval, 5 T. R. 604 ; M' Com- 
bie v. Davies, 7 East, 5.) 

The case of Johnson v. Stear, 15 C. B. N. S. 330 ; 33 L. J. C. P. 130, 
is a clear authority for holding that Simpson, in dealing with the de- 
bentures in the waj- which he must be taken on this plea to have done, 
was, as the defendant also was, guilty of a conversion of them ; and 
unless that case is also an authority binding upon us for the doctrine 
that the conversion by a pawnee of the thing pawned is not such an abuse 
of the bailment of pawn as annuls it, but that there remains in him, and 
in an assignee from him, and in an assignee from his assignee, and so 
on toties quoties, without limit as to the number of assignments or the 
consideration for them, an interest of propertj- in the pawn which de- 
feats the owner's right of possession, the plaintiff is entitled to our 

As I read the case of Johnson v. Stear, 15 C. B. N. S. 330; 33 L. 
J. C. P. 130, and the case of Chinery v. Viall, 5 H. & N. 288 ; 29 
L. J. Ex. 180, and Brierly v. Kendall, 17 Q. B. 937 ; 21 L. J. Q. B. 
161, on the authority of which it proceeded, the judgments of the 
majority of the learned judges of the Court of Common Pleas, in the 
first of them, and the judgments of the Court of Exchequer, and of 
the Court of Queen's Bench, in the second and the third, are based on 
the principle that, in an action to recover damages for a conversion, it is 


not an inflexible rule of law that the value of the goods converted is to 
be taken as the measure of damages ; that when a suitor's real cause of 
action is a breach of contract he cannot by suing in tort entitle himself 
to a larger compensation than he could have recovered in an action in 
form ex contractu/ and therefore that when a verdict is obtained 
against an unpaid vendor for the conversion of the thing sold b}' him, 
or against an unpaid pawnee for the conversion of the thing pledged to 
him, he is entitled to be credited, in the estimate bj' the jurj-, of the 
damages to be paid by him for the value of such interest or advantage 
as would have resulted to him from the contract of sale or the contract 
of pawn if it had been fulfilled by the vendee or pawnor. 

That this was the ratio decidendi in these cases seems to me clear 
from the facts of CMnery v. Yiall^ and Brierly v. Kendall, which 
raised no question between the litigant parties in any respect analogous 
to the question which we in this case have to decide. In CMnery v. 
ViaU, the plain tifl!", who was the vendee of fortj'-eight sheep, for five 
onlj' of which he h^d paid, under a bargain which entitled him to de- 
livery of the whole lot before payment, brought his action against the 
vendor for a conversion bj' parting with the sheep to another purchaser. 
If the defendant's interest in the unpaid balance of the agreed price of 
the sheep had not been credited to him in the amount of damages, the 
plaintiff, who had onlj' paid for five of them, would have pocketed the 
full value of the forty-three which had been converted. 

In JBrierly v. Ekndall, an action of trespass, there was a loan of 
the defendant to the plaintifl" secured by bill of sale of the plaintifl"s 
goods, in which was a reservation to the plaintiflT of aright to the posses- 
sion of the goods until he should make default in some payment. Before 
any default the defendant took the goods from the plaintifl' and sold 
them. For this wrong he was liable in trespass ; but the measure of 
damages was held to be, not the value of the goods, but the loss which 
the plaintiff had really sustained by being deprived of the possession. 
The wrongful act of the defendant did not annihilate his interest in the 
goods under the bill of sale ; and such interest was considered in meas- 
uring the extent of the plaintiff's right to damages. 

These cases are manifestly not in conflict with, if indeed thej' at all 
touch, the principle relied upon against the plea which is here demuired 
to, that if the pawnee converts the chattels pawned to him, the bailment 
is determined and the right of possession revested in the true owner of 

In Johnson v. Stear, the defendant, a pawnee of dock warrants, had 
anticipated by a few hours only the time at which, under his contract 
with the owner of them, he might have sold and delivered them ; he 
had applied before the time of action brought the proceeds of their 
sale to the discharge of the plaintiff's debt to him, or he held them 
specially' applicable to that purpose, and the plaintiff, had he sued the 
defendant in contract for not keeping the pledge until default made, 
could not have proved that he had sustained any damage. The Chief 


Justice, speaking for himself and two of his learned brothers, did indeed 
saj^, that ' ' the deposit of the goods in question with the defendant to 
secure repayment of a loan to him on a given day, with a power to sell 
in case of default on that day, created an interest and a right of prop- 
erty' in the goods which was more than a mere lien ; and the wrongful 
act of the pawnee did not annihilate the contract between the parties 
nor the interest of the pawnee in the goods under that contract" (15 C. 
B. N. S. 334, 335 ; 33 L. J. C. P. 131) ; but he cannot be understood 
to have meant by the words " interest and right of property in the 
goods," and by the words "more than a mere lien" other than "a 
special property," as defined by the authorities before referred to by 
me ; \iz., a real right or jiis in re, a right of possession until default 
made, a right of retention or sale after default made ; nor, as I think, 
to have intended more by the words " the wrongful act of the pawnee 
did not annihilate the contract between the parties," than that the con- 
ti'act, in the breach of whicli consisted the tort of which the plaintiff 
complained, must still be considered to subsist, at least for the purpose 
of being referred to for the measure of the damage sustained by the 
pawnor and the damages to be recovered hy him. 

The case before us differs, as I think, in essential particulars, as re- 
spects the principle upon which damages would have been measurable, 
had the action been in trover, from the case in the Common Pleas. 
The defendant, as assignee of the pawnee, could not surely have set 
up in mitigatioa of damages an interest derived bj- him from the 
pawnee before default made by the pawnor ; the pawnee, by the ex- 
press terms of the bailment to him, not having the right to dispose of 
the debentures b^' sale or otherwise until after default made. Besides, 
it is impossible to shut one's eyes to the broad distinction between the 
case of the sale a few hours too soon of a pawn which, as in the case of 
Johnson v. Stear, the pawnor ' ' had no intention to redeem," — the pro- 
ceeds of the sale being devoted before action brought to discharge of 
the debt for which the pawn had been given as a security, — and the 
abuse of a pawn by the pawnee in wrongfully, for his own purposes, 
placing out of his power, and out of the pawnor's power, to redeem the 
pawn should he have the means to do so. 

By the contract of bailment between the plaintiff and Simpson the 
proceeds of the sale of the debentures, which are the subject of this 
suit, had been specifically appropriated to the payment of the plaintiff's 
bill in tlie event of his not being able to meet it with other means. 
Simpson held the debentures in trust, should the bill not be paid, to 
sell them on the plaintiff's account, or allow the plaintiff to sell them or 
raise money on them to pay his bill. Instead of that, Simpson, before 
default made by the plaintiff, converted them to his own use, obtaining 
their agreed value in pledge from the defendant, and imposing upon the 
plaintiff the burthen of making other provision to meet his bill. By 
this act of Simpson the plaintiff, in my judgment, did in fact sustain 
damage, and at the maturity of the bill, if not before, to the full amount 


of the current salable value of the debentures. I am at a loss to see 
how the conduct of Simpson in thus dealing with the debentures, and 
how the title of the defendant, claiming under him, are to escape the 
operation of the rule that if the pawnee, except conditionally (an ex- 
ception for which the authority is but slender) , parts with the posses- 
sion of the pawn, he loses the benefit of his security {Ryall v. Holle, 1 
Atk. 165; Beeves V. Capper, 5 Bing. N. C. 136; Johnson v. Stear, 
15 C. B. N. S. 330 ; 33 L. J. C. P. 1.30, per Williams, J.) ; or the oper- 
ation of the maxim, nemo plus juris ad aliuni transferre potest quam 
ipse habet. 

For these reasons, as it seems to me, the case of Johnson v. Stear 
ought not to govern our decision. It could not be followed by us as an 
authority in favor of the defendant without inattention to its true prin- 
ciple ; viz., that between the parties to a contract the measure of dam- 
ages for a breach of the contract must be the same, whether the form 
of action be ex contractu or ex delicto ; and that in such a case, gen- 
eral rules applicable to the latter form, the only one competent for the 
redress of injuries purely tortious, are not to be strained to the doing 
of manifest injustice. It is open also, in a right estimate of it as an 
authority for the case in hand, to this observation : the interest of a 
plaintiff in the damages recoverable by him for a tort, which is in its 
true nature a breach of contract, is restricted by the implied stipulations 
of the contracting parties to the amount which, in the conscience of 
a jury, may suffice to give him an adequate compensation. The action 
of detinue for a chattel, of which the bailment has been abused, against 
a person not partj' to the contract of bailment, is not based upon a 
breach of contract, and not within the rules applicable to actions of 
tort which are based on breaches of contract. In detinue the plaintiff 
sues, not for the value tantamount of the thing detained from him, but 
for the return of the thing itself, which may to him have a value other 
and higher than its actual value ; and onlj' for its value if the thing can- 
not be delivered to him (Tidd's Forms, 8th ed. 339), and for damages 
for ?ts detention and his costs of suit. A judgment to recover the value 
onlj' has been reversed for error {Peters v. Heyward, Cro. Jac. 682) ; 
the integral undiminished thing itself, unaffected by countervailing lien 
or abatement of whatever kind, being the primary object of the suit. 
In an action of trover for the conversion bj' the pawnee of the subject 
of the bailment, the plaintiff, according to the judgment of the majority 
of the court in Johnson v. Stear, is entitled only to recover the amount, 
in money, of the damage which he proves himself to have sustained ; in 
an action of detinue for the recovery from the assignee of the pawnee 
of the chattel pawned, and of which the pawn has been abused and for- 
feited, the plaintiff is entitled to recover the chattel itself, because it 
was a term of the contract of pawn that if the pawn should be abused 
by the pawnee his right to the possession of it should cease ; and the 
defendant can have derived no right of possession from one whose own 
right of possession was determined by his attempt to transfer it. 


Unless, therefore, we were prepared to hold, in disregard of the 
clearly expressed opinion of Story and Mr. Justice Williams, that de- 
tinue can in no case lie for an unredeemed pawn, however much the 
bailment of it may have been abused, we are not at liberty to apply the 
ratio decidendi in Johnson v. Stear to the ease before us. 

It raises a strong presumption against the defence set up in this plea 
that nothing bearing the slightest resemblance to the right of possession 
which it claims for the assignee of a pawnee, is to be found in the 
copious title of the Digest (Dig. lib. xx. tit. 1), " De pignoribus et 
hypothecis ; et qualiter ea contrahantur, et de pactis eorum," or in the 
five following titles of the contract of pawn and hypothec and its inci- 
dents, or in the title, " De pigneratitia actione, vel contra" (Dig. lib. 
xiii. tit. 7), or in the works of any English, French, or Scotch jurist. 

The dictum of the majority of the court in the case of Mores v. Con- 
hatn, Owen, 123, 124, that the pawnee has such an interest in the pawn 
as he may assign over, was not the point decided in that case ; nor, as 
it seems to me, a point essential to its decision ; the point decided 
being, that the surrender b}' the plaintiff of a chattel pawned to him by 
a third person was a good consideration for a promise by the defendant 
to pay the debt for which it had been given as securitj'. It does not 
seem to follow from that decision that the surrenderee thereby acquired 
such an interest in the pawn as would enable him to defend an action of 
detinue at the suit of the true owner, the reunion of whose rights of 
property and possession was, unless they meant to rob him, the real 
object of the transaction. The inference drawn from this ver}' obscure 
and superficially reasoned case in favor of the defendant's plea is whoUy 
iireconcilable with the doctrine of Domat, the highest authority on all 
questions depending, as this question does, upon the rules and prin- 
ciples of the Roman civil law, that the baUments of " hypoth^que" and 
" gage " last only as long as the thing hypothecated is in the hands of 
the person charging it, or the thing pawned in the hands of him who 
takes it for his security (Domat, Lois Civiles, liv. iii. tit. 1, s. 1) ; and 
with the doctrine of Erskine, a jurist of nearly equal eminence, that " in 
a pledge of moveables the creditor who quits the possession of the sub- 
ject loses the real right he had upon it." Institute of the Laws of 
Scotland, b. iii. tit. 1, s. 33. 

I think that the bailment to Simpson was determined hy the pledge 
by him to the defendant under the circumstances stated in the plea ; 
that both of them have been guilty of a conversion ; that the plaintiff 
might (as Mr. Justice Williams said in the case of Johnson v. Stear, 
15 C. B. N. S. 341 ; 33 L. J. C. P. 134) lawfully, should the oppor- 
tunity offer, resume the possession of the debentures, an^ hold them 
freed from the bailment ; and may — the defendant being remitted to 
his remedy against Simpson, and Simpson to his remed3' upon the bill 
— recover them, or their full value, if they cannot be delivered to him, 
in this action of detinue. 

Mellor, J. [After stating the declaration and plea.J To this plea 


the plaintiff demurred, and upon demurrer I think that we must assume 
that the pledging of the debentures by Simpson to the defendant took 
place before default was made by the plaintiff in payment of the bill of 
exchange at maturity, and that we must also assume that the money 
for which the debentures were pledged by Simpson, as a security to the 
defendant, was of larger amount than the amount of the bill of ex- 
change discounted for the plaintiff hj Simpson. The question thus 
raised by this plea is, whether a pawnee of debentures deposited with 
him as a security for the due payment of monej- at a certain time does, 
by repledging such debentures and depositing them with a third person 
as a security for a larger amount, before any default in payment by the 
pawnor, make void the contract upon which they were deposited with 
the pawnee, so as to vest in the pawnor an immediate right to the pos- 
session thereof, notwithstanding that the debt due hj him to the orig- 
inal pawnee remains unpaid. If the affirmative of this proposition be 
maintained, the result seems prima facie to be disproportionate to any 
injury which the pawnor would be likelj' to sustain from the fact of his 
debentures having been repledged before default made. Still, if the 
principles of law, as laid down in decided cases, satisfactorily support 
the proposition above stated, this court must give effect to them. 
There is a well recognized distinction between a lien and a, pledge, as 
regards the powers of a person entitled to a lien and the powers of the 
person who holds goods upon an agreement of deposit by way of pawn 
or pledge for the due paj'ment of money. In the case of simple lien 
there can be no power of sale or disposition of the goods, which is in- 
consistent with the retention of the possession by the person entitled 
to the lien ; whereas, in the case of a pledge or pawn of goods to secure 
the payment of money at a certain day, on default by the pawnor, the 
pawnee may sell the goods deposited and realize the amount, and be- 
come a trustee for the overplus for the pawnor ; or, even if no day of 
payment be named, he may, upon waiting a reasonable time, and tak- 
ing the proper steps, realize his debt in like manner. It is said by Mr. 
Justice Story (On Bailments, tit. Pawns or Pledges, s. 311) that " the 
foundation of the distinction rests in this, that the contract of pledge 
carries an implication that the security shall be made effectual to dis- 
charge the obligation ; but, in the case of a lien, nothing is supposed 
to be given but a right of retention or detainer, unless under special 
circumstances." The question thus arises, is the right of retention in 
case of a lien, either by a custom or contract, otherwise different from 
a deposit, bj' waj- of pledge for securing 'the due payment of money, 
than in the incidental power of sale in the latter case on condition bro- 
ken? In «ther words, on a contract of pledge is it implied that the 
pledgee shall not part with the possession of the thing pledged until de- 
fault in payment ; and, if so, is that of the essence of the contract, so 
that the violation of it makes void the contract ? 

In the case oi Legg v. Evans, 6 M. (feW. 36, 41, an action of trover 
having been brought against the defendants, as sheriff of Middlesex, to 


recover the value of some pictures and picture-frames, the defendants 
justified under an execution against the goods and chattels of the plain- 
tiff, to which the plaintiff replied setting up a lien in respect of work 
done upon such goods and chattels, which had been delivered to him in 
the way of his trade by one Williams, and further set up an agreement 
between the plaintiff and Williams that the plaintiff should draw and 
endorse certain bills of exchange for the use of Williams, and should 
have a right to hold the said goods for securing the payment by Wil- 
liams of the amount of the said bills of exchange ; and he alleged that 
the said money and bills of exchange then remained wholly unpaid. 
The Court of Exchequer held, on demurrer to the replication, that it 
was a good answer to the plea; and Parke, B., is reported to have 
said : " If we consider the nature of a lien and the right which it con- 
fers, It will be evident that it cannot form the subject-matter of a sale. 
A lien is a personal right which cannot be parted with, and continues 
onlj' so long as the possessor holds the goods. It is clear, therefore, 
that the sheriff cannot sell an interest of this description which is a per- 
sonal interest in the goods ; " and farther on he said : ' ' Here the 
interest cannot be transferred to anj' other individual, it continues only 
as long as the holder keeps possession of the subject-matter of the lien 
either by himself or his servant." In that case there was superadded 
to the lien in respect of work done an agreement that the person en- 
titled to the lien should have a right to hold the said goods and 
chattels for securing the payment of the bills of exchange therein men- 
tioned, and which then remained wholly unpaid. That case was treated 
as a simple case of lien or right " to hold," to secure the payment, not 
only of the amount due for work done on the goods by Williams, but 
also of the bills drawn and endorsed by him. It is, therefore, an au- 
thority to the effect that in the case of lien, even to secure payment of 
money advanced, there is no implication of any power to sell or other- 
wise dispose of the subject-matter of the lien, because retention of 
possession by the party entitled to the lien is an essential ingredient 
in it. 

It appears, therefore, that there is a real distinction between a deposit 
by way of pledge for securing the payment of money and a right to 
hold by way of lien to secure the same object. In Pothonier v. Daw- 
son, Holt, N. P. 385, cited in argument in Legg v. Evans, 6 M. & W. 
40, Gibbs, C. J., said: " Undoubtedly, as a general proposition, aright 
of lien gives no right to sell the goods. But when goods are deposited 
by way of security to indemnify a party against a loan of monej', it is 
more than a pledge.* The lender's rights are more extensive than such 
as accrue under an ordinary lien in the way of trade." 

It appears to me that considerable confusion has been introduced 
into this subject by the somewhat indiscriminate use of the words 
" special property," as alike applicable to the right of personal reten- 

1 QiMsre, whether " pledge " should not he read " lien." 


tioa in case of a lien and the actual interest in the goods created by 
the contract of pledge to secure the payment of money. In Legg v. 
Moans, 6 M. & W. 42, the nature of a lien is defined to be a " per- 
sonal right which cannot be parted with;" but "the contract of 
pledge carries an implication that the securitj' shall be made effectual 
to discharge the obligation." Story on Bailments, s. 311. In each 
case the general property remains in the pawnor ; but the question is 
as to the nature and extent of the interest, or special propertj^, passing 
to the bailee, in the two cases. Mr. Justice Story, in his Treatise on 
Bailments, s. 324, thus describes the right and interest of the pawnee : 
" He may, by the common law, deliver over the pawn into the hands of 
a stranger for safe custody, without consideration, or he may sell or 
assign all his interest in the pawn, or he may convej- the same interest, 
conditionalh', by way of pawn to another person, without in either 
case destroying or invalidating his security ; but if the pawnee should 
undertake to pledge the propert3- (not being negotiable securities) for 
a debt beyond his own, or to make a transfer thereof to his own cred- 
itor as if he were the absolute owner, it is clear that in such a case he 
would be guilty of a breach of trust, and his creditor would acquire no 
title beyond that held by the pawnee. The only question is, whether 
the creditor should be entitled to retain the pledge until the original 
debt was discharged, or whether the owner might recover the pledge in 
the same manner as in the case of a naked tort, without any qualified 
right in the first pawnee." 

In M'- Combie v. Davies, 7 East, 5 (see pp. 6 and 7), it appeared 
that a broker had for a debt of his own pledged with the defendant cer- 
tain tobacco of his principal's, upon which he had a lien, and in an 
action brought by the principal against the defendant in trover for the. 
tobacco. Lord Ellenborough being of opinion " that the lien was per- 
sonal and could not be transferred by the tortious act of the broker 
pledging the goods of his principal ; " the plaintiff" obtained a verdict ; 
and upon motion for a new trial Lord Ellenborough said that " nothing 
could be clearer than that liens were personal, and could not be trans- 
ferred to third persons by any tortious pledge of the principal's goods ; " 
but he afterwards added " that he would have it fully understood that 
his observations were applied to a tortious transfer of the goods of the 
principal by the broker undertaking to pledge them as his own, and not 
to the case of one who, intending to give a security to another to the 
extent of his lien, delivers over the actual possession of the goods, 
on which he has the lien, to that other, with notice of his lien, and ap- 
points that other as his servant to keep possession of the goods for him." 

It would, therefore, seem that in the case of a broker or factor for 
sale, before the Factors Acts, although he had no power to pledge his 
principal's goods, except to the extent of his own lien, with notice of 
the extent of his interest, yet where he pledged the goods on which he 
had a lien tortiously, neither the factor nor his pawnee could retain 
them even for the payment of the amount of, the original lien. The 


case of JiT^ Combie V. Davies shows that the factor's or broker's lien, 
although simplj- a right to retain possession as between him and his 
principal, might be transferred and made a security to a third person, 
provided he professed to assign it only as a security to the like amount 
as that due to himself. Still, the character of the transaction is that of 
lien, and not of deposit by way of pledge ; and although the goods were 
entrusted to the broker for sale, and up to the time of sale remained in 
his hands upon a personal right to retain them for advances, j"et he 
could not pledge them, and if he did, the act was an essential violation 
of the relation betwixt him and his principal, and entitled the latter at 
once to the recovery of the value of the goods in trover. " But the 
relation of principal and factor, where money has been advanced on 
goods consigned for sale, is not that of pawnor and pawnee," as was 
said bj- the Court in Smart v. Sandars, 3 C. B. 400, 401 ; and see 
s. c, after amendment of pleadings, 5 C. B. 917. 

There would therefore appear to be some real difference in the inci- 
dents between a simple lien, like that in Legg v. Evans, 6 M. & W. 
36, and the lien of a broker or factor before the Factors Act, and the 
case of a deposit bj' way of pledge to secure the repayment of monej', 
which latter more nearlj' resembles an ordinary mortgage, except that 
the pawnor retains the general property in the goods pledged which the 
mortgagor does not in the case of an ordinary mortgage. Notes to 
Coggs V. Bernard, 1 Smith's L. C. 194, 5th ed. A lieu, as we have 
seen, gives onlj' a personal right to retain possession. A factor's or 
broker's lien was apparent!}' attended with the additional incident that 
to the extent of his lien he might transfer even the possession of the 
subject-matter of the lien to a third person, " appointing him as his 
servant to keep possession for him." In a contract of pledge for secur- 
ing the payment of monej', we have seen that the pawnee may sell and 
transfer the thing pledged on condition broken ; but what implied con- 
dition is there that the pledgee shall not in the meantime part with the 
possession thereof to the extent of his interest? It may be that upon a 
deposit by way of pledge the express contract between the parties may 
operate so as to make a parting with the possession, even to the extent 
of his interest, before condition broken, so essential a violation of it as 
to revest the right of possession in the pawnor ; but in the absence 
of such terms, why are they to be implied? There may possibly be 
cases in which the very nature of the thing deposited might induce a 
jury to believe and find that it was deposited on the understanding 
that the possession should not be parted with ; but in the case before 
us we have only to deal with the agreement which is stated in the 
plea. The object of the deposit is to secure the repayment of a 
loan, and the effect is to create an interest and a right of property 
in the pawnee., to the extent of the loan, in the goods deposited ; 
but what is the authority for saying that until condition broken the 
pawnee has only a personal right to retain the goods in his own 


In Johnson v. Stear, one Gumming, a bankrupt, had deposited with 
the defendant 243 cases of brand}-, to be held by him as a security for 
the payment of an acceptance of the bankrupt for £62 10s., discounted 
by the defendant, and which would become due January 29, 1863, and 
in case such acceptance was not paid at maturit}' the defendant was to 
be at liberty to sell the brandy and apply the proceeds in payment of 
the acceptance. On the 28th Januar}', before the acceptance became 
due, the defendant contracted to sell the brandy to a third person, and 
on the 29th delivered to him the dock-warrant, and on the 30th such 
third person obtained actual possession of the brandy. In an action of 
trover, brought by the assignee of the bankrupt, the Court of Common 
Pleas held that the plaintiff was entitled to recover, on the ground that 
the defendant wrongfully assumed to be owner in selling ; and al- 
though that alone might not be a conversion, yet, by delivering over 
the dock- warrant to the vendee in pursuance of such sale, he " inter- 
fered with the right which the bankrupt bad on the 29th if he repaid 
the loan ; " but the majority of the Court (Erie, C. J., Byles and Keat- 
ing, JJ.) held that tlie plaintiff was only entitled to nominal damages, 
on the express ground " that the deposit of the goods in question with 
the defendant to secure repaj'ment of a loan to him on a given day, with 
a power to sell in case of default on that da}', created ' an interest and a 
right of property in the goods which was more than a mere lien ; and the 
wrongful act of the pawnee did not annihilate the contract between the 
parties nor the interest of the pawnee in the goods under that con- 
tract.' " See 15 C. B. N. S. 334, 335 ; 33 L. J. C. P. 131. From that 
view of the law, as applied to the circumstances of that case, Mr. Jus- 
tice Williams dissented, on the ground "that the bailment was termi- 
nated by the sale before the stipulated time, and consequently that the 
title of the plaintiff to the goods became as free as if the bailment had 
never taken place." See 15 C. B. N. S. 340 ; 33 L. J. C. P. 134. Al- 
though the dissent of that most learned judge diminishes the author- 
ity of that case as a decision on the point; and although it maj- 
be open to doubt whether in an action of trover the defendant ought 
not to have succeeded on the plea of not possessed, and whether the 
plaintiff's only remed}- for damages was not by action on the contract, 
I am, nevertheless, of opinion that the substantial ground upon which 
the majority of the court proceeded, viz., that the " act of the pawnee 
did not annihilate the contract nor the interest of the pawnee in the 
goods," is the more consistent with the nature and incidents of a de- 
posit by way of pledge. I tliink that when the true distinction between 
the case of a deposit by way of pledge of goods for securing the pay- 
ment of monej', and all cases of lien correctly so described, is consid- 
ered, it will be seen that in the former there is no implication, in 
general, of a contract by the pledgee to retain the personal possession 
of the goods deposited ; and I think that, although he cannot confer 
upon any third person a better title or a greater interest than he pos- 
sesses, yet, if nevertheless he does pledge the goods to a third person 


for a greater interest than he possesses, such an act does not annihilate 
'the contract of pledge between himself and the pawnor ; but that the 
transaction is simply- inoperative as against the original pawnor, who, 
upon tender of the sum secured, immediately becomes entitled to the 
possession of the goods, and can recover in an action for any special 
damage which he may have sustained by reason of the act of the 
pawnee in repledging the goods ; and I think that such is the true effect 
of Lord Holt's definition of a " vadium or pawn" in Coggs v. Bernard, 
2 Ld. Raym. 916, 917; although he was of opinion that the pawnee 
could in no case use the pledge if it would thereby be damaged, and 
must use due diligence in the keeping of it, and saj-s that the creditor is 
bound to restore the pledge upon payment of the debt, because, by de- 
taining it after the tender of the money, he is a wrongdoer, his special 
property being determined ; yet he nowhere says that the misuse or 
abuse of the pledge before paj-ment or tender annihilates the contract 
upon which the deposit took place. 

If the true distinction between cases of lien and cases of deposit by 
waj' of pledge be kept in mind, it will, I think, suffice to determine this 
case in favor of the defendant, seeing that no tender of the sum secured 
by the original deposit is alleged to have been made by the plaintiff ; 
and considering the nature of the things deposited, I think that the 
plaintiff can have sustained no real damage by the repledging of them, 
and that he cannot successfully claim the immediate right to the posses- 
sion of the debentures in question. 

I am therefore of opinion that our judgment should be for the 

Blackbdrn, J. [After stating the pleadings.] The plea does not 
expressly state whether the deposit with the defendant hy Simpson was 
before or after the dishonor of the bill of exchange ; and as against the 
defendant, in whose knowledge this matter lies, it must be taken that it 
was before the bill was dishonored, and consequently at a time when 
Simpson was not j'et entitled by virtue of his agreement with the plaintiff 
to dispose of the debentures. We cannot construe the plea as stating 
that Simpson agreed to transfer to the defendant, as indorsee of the 
bill, the security which Simpson had over the debentures, and no more. 
We must, I think, as against the defendant, construe the plea as stat- 
ing that Simpson deposited the debentures, professing to give a security 
on them for repayment of a debt of his own, which may or may not 
have exceeded the amount of the bill of exchange, but was certainly 
different from it. And it is quite clear that Simpson could not give the 
defendant any right to detain the debentures after the bill of exchange 
was satisfied, so that a replication that the plaintiflT had paid, or was 
ready and willing to pay, the bill would have been good. The defend- 
ant could not in any view have a greater right than Simpson had. But 
there is no such replication ; and so the question which is raised on this 
record, and it is a very important one, is, whether the plaintiff is en- 
titled to recover in detinue the possession of the debentures, he neither 


having paid nor tendered the amount for which he had pledged them 
with Simpson. In detinue the plaintiff's claim is based on his right 
to have the chattel itself delivered to him ; and if there still remain 
in Simpson, or in the defendant as his assignee, any interest in the 
goods, or any right of detention inconsistent with this right in the plain- 
tiff, the plaintiff must fail in detinue, though he may be entitled to 
maintain an action of tort against Simpson or the defendant for the 
damage, if any, sustained by him in consequence of their unauthorized 
dealing with the debentures. 

Tlie question, therefore, raised on the present demurrer is, whether 
the deposit by Simpson of the debentures with the defendant, as stated 
in the plea, put an end to that interest and right of detention till the 
bill of exchange was honored which had been given to Simpson by the 
plaintiff's original contract of pledge with him. 

There is a great difference in this respect between a pledge and a 
lien. The authorities are clear that a right of lien, properly so called, 
is a mere personal right of detention ; and that an unauthorized trans- 
fer of the thing does not transfer that personal right. The cases which 
established that, before the Factors Acts, a pledge by a factor gave 
his pledgee no right to retain the goods, even to the extent to which the 
factor was in advance, proceed on this ground. In Daubigny v. Duval, 
5 T. R. 606, Buller, J., puts the case on the ground that " a lien is a 
personal right and cannot be transferred to another." In Jf' Gombie v. 
Davies, 7 East, 6, Lord EUenborough puts the decision of the court on 
the same ground, saj'ing that " nothing could be clearer than that liens 
were personal and could not be transferred to third persons by any 
tortious pledge of the principal's goods." Storj', in his Treatise on 
Bailments, ss. 325-327, is apparently dissatisfied with these decisions, 
thinking that a factor, who has made advances on the goods consigned 
to him, ought to be considered as having more than a mere personal 
right to detain the goods, and that a pledgee from him ought to have 
been considered entitled to detain the goods until the lien of the factor 
was discharged. This is a question which can never be raised in this 
country, for the legislature has intervened, and in all cases of pledges 
by agents, within the Factors Acts, the pledge is now available to the 
extent of the factor's interest. 

But on the facts stated on the plea, Simpson was not an agent within 
the meaning of the Factors Acts ; and we have to consider whether the 
agreement stated to have been made between the plaintiff and him did 
confer something beyond a mere lien properly so called, an interest in 
the property, or real right, as distinguished from a mere personal right 
of detention. I think that both in principle and on authoritj- a contract 
such as that stated in the plea — pledging goods as a security, and giv- 
ing the pledgee power in ease of default to dispose of the pledge (when 
accompanied b}' an actual delivery of the thing) — does give the pledgee 
something beyond a mere lien ; it creates in him a special property or 
interest in the thing. By the civil law such a contract did so, though 


there was no actual delivery of possession ; but the right of hj'pothec is 
not recognized by the common law. Till possession is given, the in- 
tended pledgee has only a right of action on the contract, and no 
interest in the thing itself. Howes v. Ball, 7 B. & C. 481. I mention 
this because in the argument several authorities, which only go to show 
that a delivery of possession is, according to the English law, necessary 
for the creation of the special property of the pawnee, were cited as if 
they determined that possession was necessarj- for the continuance of 
that property. 

The effect of the civil law is thus stated hj Story, in his Treatise on 
Bailments, s. 328 : "It enabled the pawnee to assign over, or to pledge 
the goods again, to the extent of his interest or lien on them ; and in 
either case the transferee was entitled to hold the pawn until the origi- 
nal owner discharged the debt for which it was pledged. But beyond 
this the (second) pledge was inoperative and conveyed no title, accord- 
ing to the known maxim, nemo plus juris ad alium transferre potest 
quam ipse haheret." 

In England there are strong authorities that the contract of pledge, 
when perfected by delivery of possession, creates an interest in the 
pledge, which interest may be assigned. This was the very point de- 
cided by the court in Mores v. Conham, Owen, 123, 124, where the 
court say that the pawnee is responsible "if he misuseth the pawn; 
also he hath such interest in the pawn as he may assi(/n over, and the 
assignee shall be subject to detinue if he detains it upon payment of 
the money by the owner." It is true that one judge, Foster, J., dis- 
sented on this very point. That maj' so far weaken the authorit}^ of 
the decision ; but it shows that there could be no mistake in the re- 
porter, and no oversight on the part of the majority, but that it was a 
deliberate decision. 

It is laid down by Lord Holt, in his celebrated judgment in Coggs v. 
Bernard, 2 Ld. Raym. 916, that a pawnee "has a special property, 
for the pawn is a securing to the pawnee that he shall be repaid his 
debt, and to compel the pawnor to pay him," language certainly seem- 
ing to indicate an opinion that he has an interest in the thing, or real 
right, as distinguished from a mere personal right of detention. And 
Story, in his Treatise on Bailments, s. 327, says: "But whatever 
doubt may be indulged as to the case of a factor, it has been decided " 
— that is, in America — " that in case of a strict pledge, if the pledgee 
transfers the same to his own creditor, the latter may hold the pledge 
until the debt of the original owner is discharged." 

In Whitaker on Lien, published in 1812, p. 140, the law is laid down 
to be, that the pawnee has a special property beyond a lien. I do not 
cite this as an authority of great weight, but as showing that this was 
an existing opinion in England before Story wrote his treatise. But 
there is a class of cases in which a person having a limited interest in 
chattels, either as hirer or lessee of them, dealing tortiously with them, 
has been held to determine his special interest in the things, so that the 


owner may maintain trover as if that interest had never been created. 
But I think in all these cases the act done bj' the party having the hmited 
interest was wholl}' inconsistent with the contract under which he had the 
limited interest ; so that it must be taken from his doing it that he had 
renounced the contract, which, as was said in Fenn v. Jiittleston, 7 Ex. 
160 ; 21 L. J. Ex. 43, operates as a disclaimer of a tenancy at common 
law ; or, as it is put by Williams, J., in Johnson v. Steqr, 15