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V.I C.2
Select cases and other authorities on th
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SELECT. CASES
AND
OTHER AUTHORITIES
ON THE
LAW OF PROPERTY.
SELECT CASES
AND
OTHER AUTHORITIES
ON THE
LAW OF PROPERTY.
BY
JOHN CHIPMAN GRAY,
BOTALL PROFESSOR OF LAW IN HARVARD UNIVERSITY.
VOLUME I.
CAMBRIDGE :
CHARLES W. SEVER AND COMPANY.
1888.
c-'-
Copyright, 1888,
By John Chipman Gkat.
University Press :
John WiI/Son and Son, Cambridge.
PREFACE.
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,
omitted.
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.
V] PEEPACE.
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.
TABLE OF CONTENTS.
TABLE OF CASES .
TABLE OF STATUTES .
Pag6
xi
BOOK I.
DISTINCTION BETWEEN REAL AND PERSONAL PROPERTY 1
BOOK 11.
NATURE AND ACQUISITION OF RIGHTS IN PERSONAL
PROPERTY . . ...
11
CHAPTER I.
Introductory. Suits for the Recovery of Personal Property 11
§ 1. Detinue and Replevin ... 11
2. Bill in Equity 18
CHAPTER II.
Acquisition of Rights not under Former Owner . . .
. 22
§1-
Chattels having no Former Ownei- . .
. 22
2.
Wreck . ... . .
. 29
3.
Waifs, Estrays, and Deodands . . ...
41
4.
Judgments . ..... . .
45
5.
Sale in Market-overt ... ...
. 50
6.
Statute of Limitations . .
. 50
7.
Accession . . . .
. 65
8.
Confusion . . .
. 105
A. Lawful or Accidental . . ....
105
B. Tortious . .
. 132
VIU TABLE OF CONTENTS.
CHAPTER III.
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
CHAPTER IV.
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
BOOK III.
INTRODUCTION TO THE LAW OF REAL PROPERTY ... 385
CHAPTER I.
Tenure
. 385
§ 1. Tenure in General
.... 385
2. Manors
. 387
3. Military Tenures and their Incidents
390
4. Socage Tenure . . ,
. . 398
5. Frankalmoign . . , ,
. 403
6. Abolition of Military Tenures
. . 404
Note on Tenancy in Capite .....
406
Note on Tenure in the United States . . .
... 407
TABLE OF CONTENTS. ix
CHAPTER II.
Page
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
CHAPTER III.
Seisin and Conveyance 433
§ 1 Seisin . . . . 433
2. Descent and Purchase ... 436
436
... 440
... 450
. . 451
.... 452
456
3. Livery of Seisin ....
4. Grant and Attornment
5. Release and Surrender
6. Devise
7. Disseisin and other Ouster
8. Remedies . . .
CHAPTER rV.
Copyholds 461
CHAPTER V.
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
TABLE OF CONTENTS.
BOOK IV.
Page
NATURE AND INCIDENTS OF OWNERSHIP IN REAL
CHAPTER I.
Gold and Silver Mines
CHAPTER II.
.... 539
Wild Animals .
CHAPTER III.
.... 541
Border Trees . . .
CHAPTER IV.
.... 543
Waste
CHAPTER V.
.... 556
Title-deeds . ...
.
.617
Note on Heirlooms .
.619
CHAPTER VI.
Emblements 620
CHAPTER VII.
Manure 641
CHAPTER VIII.
Fixtures 657
TABLE OF CASES.
Page
Page
Abbot of Shirbourne's Case
557
Broughton v. Langley
477
Althara v. Anglesey
477
Bryan v. Weems
53
Anon (Fitz. Ab. Formedon, 65)
412
Bryant v. Wardell
290
(Fitz. Ab. Formedon, 66)
412
Buckland v. Butterfield
670
(Fitz. Ab. "Wast, pi. 30)
557
Burton v. Hughes
350
(48 Edw. III. 20, pi. 8)
347
Buster v. Newkirk
25
(11 Hen. IV. 17, pi. 39)
848
(5 Hen. VII. 15, pi. 6)
66
Callard v. Callard
487
(21 Hen. VII. 26 pi. 4)
658
Campbell v. Stakes
336
(Bro. N. C. ty March 89)
465
Carpenter v. Walker
788
(14 Hen. VIII. 4 pi. 5)
463
Castlemain v. Craven
577
(Moore, 19, pi. 67)
67
Cave V. Care
661
(Moore, 248, pi. 392)
334
Chapin v. Freeland
56
(Cro. El. 46)
506
Chapman v. Allen
241
(Pop. 88, pi. 2)
132
Chase v. Washburn
112
(2 Roll. R. 255)
544
V. Westmore
248
Arbuthnot v. Norton
181
Chesley v. St. Clair
359 n.
Armory v. Delamirie
368
Clark V. Allen
216
Armstrong v. Wolsey
480
V. Maloney
377
Ashley v. Ashley
210
Clary v. Owen
746
Astbury, Ex parte
701
Clavering v. Clavering
676
Astry V. Ballard
B72
Clere's Case
602
Aubin V. Daly
2
Climie v. Wood
706
Constable's Case
32
Bakeer v. Bates
376
Cooper V. Franklin
614
V. Keete
491
V. Woolfitt
629
Barwick v. Reade
173
Bateman v. Hotchkin
575 n.
Davekpoet v. Shants
762
Bevan v. Waters
252
Dent V. Dent
184
Bewick v. Whitfield
574
Doe d. Lloyd v. Passingham
516
Binstead v. Buck
360
Doe d. Were v. Cole
443
Bligh V. Brent
7
Donald v. Suckling
312
Bloss V. Holman
335
Durfee v. Jones
380
Boardman v. Sill
283
Bostwick V. Leach
716
Egerton's Case
504
Bowles's Case
564
Elwes V. Maw
666
Brackett v. Goddard
636
Brennan v. Whitaker
751
Fat v. Muzzey
654
Brent v. Chapman
50
Ferguson v.
583
Bridges v. Hawkesworth
369
Fisher v. Deering
446
Brinsmead v. Harrison
161
V. Dixon
686
British Empire Shipping Co o. Somes 257
Fitch V. Newberry
271
Broadwood v. Granara
266
Flarty v. Odium
173
xu
TABLE OF CASES.
Ford V. Cobb
Fox's Case
Franklin Ins. Co.
Fuller V. Paige
Hazzard
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
sor
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
nd-
740
489
213
141
611
239
589
171
749
235
648
340
625
175
551
46
676
679
332
382
37
357
302
581
506
657
583
138
194
553
544
709
598
45
165
92
254
285
143
306
281
252
292
677
242
642
622
661
664
617
Lee V, Gaskell
715
Lewis V. McNatt
638
Lloyd, Doe d. v. Passingham
516
V. Spillett
535
London Loam Co. v. Drake
693
Lotan V. Cross
343
Ludden v. Leavitt
352
Lnshington v. Boldero
584
Lutwich V. Milton
491
Lyman v. Hale
546
M'AvoT V. Medina
378
M'Combie r. Davies
281
McKee v. Judd
201
McLaughlin u. Nash
756
Mackintosh v. Trotter
682
Market-overt, Case of
50
Masters v. PoUie
543
Melville v. Brown
238
Mennie v. Blake
12
Meredith v. Joans
515
Mexal V. Dearborn
304
Middlebrook v. Corwin
646
Mildmay's Case
498
Mines, Case of
539
Moore v. Bowman
144
V. Townshend
605
Morgan v. Powell
69
Mulgrave r. Ogden
360
MuUiner v. Florence
296
Mutual Ins. Co. v. Allen
225
Natlor v. Mangles
244
Needham v. Allison
649
Nelson !•. Brown
118
Nevil V. Saunders
535
Nicholson v. Chapman
361
Noble V. Bosworth
727
V. Smith
169
V. Sylvester
758
Obrten' V Obrien
580
Orme's Ciise
524
Patten v. Wilson
205
Peacock r. Eastland
520
V. Purvis
622
Peirce v. Goddard
728
People V. Tioga Common Pleas
197
Perrin v. Lepper
448
Perrot v. Perrot
579
Peters v. Hey ward
11
Poole's Case
660
Poole V. Symonds
353
Prosser v. Edmonds
188
Pulcifer v. Page
84
Pynchon v. Stearns
601
TABLE OP CASES.
XIU
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
Page
Page
yB
Sutton u. Moody
541
375
Swift V. Gifford
25
206
731
Taylok v. Vale
487
262
Terhune v. Elberson
634
494
Thorougligood's Case
437
733
Threfall v. Berwick
268
577
Thresher v. Water Works Co.
673
631
Turner v. Wright
593
349
Tyrrel's Case
510
244
134
Vane v. Barnard
572
Van Ness v. Pacard
717
475
Vaughen v. Haldeman
737
511
651
Walmsley v. Milne
695
286
Ward V. Ayre
133
120
V. Macauley
340
485
Warde v. Tuddingham
488
557
Warnock v. Davis
219
236
Waterman v. Soper
544
476
Watriss v. First Bank of Cambridge
780
568
Weeton v. Woodcock
684
72
Wells i: Foster
178
241
Wentworth v. Day
364
110
Were, Doe d. v. Cole
443
158
Wetherbee v. Green
85
635
White V. Arndt
723
344
V. Gainer
283
164
Whitehead v. Bennett
691
688
Whitfield V. Bewit
573
18
Wilbraham v. Snow
236
105
Wilby !'. Bower
339
621
Willard v. Rice
137
660
Williamson v. N. J. R. R. Co.
768
644
Wilson V. Guy ton
366
186
Winn V. Ingilby
672
259
Wood V. Morewood
68
211
V. Rowcliffe
19
785
266
Yearworth v. Pierce
641
17
Young V. Hichens
23
767
TABLE OF STATUTES.
Page
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
SELECT CASES
AND OTHEK
AUTHORITIES ON THE LAW OF PROPERTY.
BOOK I.
DISTINCTION BETWEEN REAL AND PERSONAL PROPERTY.
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.
1 AUBIN V. DALY.
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.
AUBIN y. DALY.
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).
AUBIN V. DALY. 3
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
4 ATJBIN V. DALY.
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.
AUBIN V. DALY. 5
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
6 AUBIN V. DALY.
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.
BLIGH V. BEENT,
BLIGH V. BRENT.
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.
o BLIGH V. BRENT.
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
corporation.
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-
BLIGH V. BRENT. 9
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.]
10 BLIGH V. BEENT.
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-
works.
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.
PETEKS V. HEYWAKD. 11
BOOK 11.
NATURE AND ACQUISITION OF RIGHTS IN PERSONAL
PROPERTY.
CHAPTEE I.
INTRODUCTORY.
SUITS FOR THE RECOVERY OF PERSONAL PROPERTY.
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.
SECTION I.
DETINUE AND REPLEVIN.
PETERS V. HETWARD.
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
12 MENNIE V. BLAKE.
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
MENNIE V. BLAKE.
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
(1505).
MENNIB V. BLAKE. 13
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
state.
"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-
ingly.
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-
14 MENNIE V. BLAKE.
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
MENNIE V. BLAKE. 15
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
16 MENNIE V. BLAKE.
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
distress.
STOUGHTON V. EAPPALO. 17
STOUGHTON v. RAPPALO.
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
2
18 SOMEESET V. COOKSON.
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
plaintiff.
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.
SECTION II.
BILL IN EQUITY.
SOMERSET V. COOKSON.
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.
WOOD V. EOWCLIPPE. 19
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.
WOOD V. ROWCLIFFE.
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
20 WOOD V. EOWCLIFPB.
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
furniture.
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-
WOOD V. EOWCLIFPE. 21
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.
CHAPTER II.
ACQUISITION OF EIGHTS NOT UNDER FORMER OWNER.
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.
SECTION I.
CHATTELS HAVING NO FOEMEE OWNER.
{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.
YOUNG V. HICHENS. 23
THE CASE OF SWANS.
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.
YOUNG V. HICHENS.
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.
24 YOUNG V. HICHENS.
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.
SWIFT V. GIFFOED. 25
BUSTER V. NEWKIRK.
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.
SWIFT V. GIFFORD.
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
26 SWIFT V. GIFFOED.
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
success.
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.
SWIFT V. GIPFOKD. 27
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
28 SWIFT V. GIPFOED.
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.
SECTION II.
WEECK.
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
excepted.^
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.
SIR HENRY 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 ; 0 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
Admiral.
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
HAMILTON V. DAVIS. 37
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.
HAMILTON V. DAVIS.
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."
38 HAMILTON V. DAVIS.
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
salvage.
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
possession.
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
HAMILTON V. DAVIS. 39
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-
action.
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
recover.
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-
40 HAMILTON v. DAVIS.
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
"WAIFS, ESTKAYS, AND DEODANDS. 41
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
Lordship.
All the judges present being clear and unanimous, the rule to shew
cause why there should not be a new trial was discharged.
SECTION III.
WAIFS, ESTEATS, AND DEODANDS.
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.
42 WAIFS, ESTBAYS, AND DEODANDS.
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-
"WAIFS, ESTEAYS, AHD DEODANDS. 43
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.
44 'WAIFS, ESTEAYS, AND DEODANDS.
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.
HUGHES V. CORNELIUS. 45
SECTION IV.
JUDGMENTS.
HUGHES V. CORNELIUS.
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.
46 GRIFFITH V. FOWLBB.
GRIFFITH V. FOWLER.
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.
GRIFFITH V. FOWLER. 47
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 ca.se, 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,
48 GRIFFITH V. FOWLER.
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
GEIFPITH V. FOWLER. 49
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
sale.
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.
50 BBENT V. CHAPMAN.
SECTION V.
SALE IN MARKET-OVERT.
THE CASE OF MARKET-OVERT.
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.^
SECTION VI.
STATUTE OP LIMITATIONS.
BRENT V. CHAPMAN.
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 V. CHAPMAN. 51
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.
52 BKENT V. CHAPMAN.
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
creditors."
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
possession.
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.
BBYAN V. WEEMS. 53
BRYAN V. WEEMS.
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
54 BKYAN V. WEEMS.
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-
BRYAN V. WEEMS. 55
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
56 CHAPIN V. FEEELAND.
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
years.
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.
CHAPIN V. FREELAND.
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
CHAPIN V. FREELAND. 57
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
58 CHAPIN V. PREELAND.
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
OHAPIN V. FREELAND. 59
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
60 CHAPDr V. FEEELAND.
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
CHAPIN V. FEEELAND. 61
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,
62 CHAPESr V. FEEBLAND.
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
CHAPIN V. FEEELAND. 63
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
64 CHAPIN V. FEEELAND.
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.
ACCESSION. 65
SECTION VII.
ACCESSION.
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.
5
66 ANONYMOUS.
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.
ANONYMOUS.
1489.
[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.
ANONYMOUS. 67
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.
ANONYMOUS.
1560.
{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.
68 WOOD V. MOEEWOOD.
WOOD V. MOREWOOD.
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.
MORGAN V. POWELL. 69
MORGAN V. POWELL.
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."
70 MOEGAN V. POWELL.
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
cause.
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.
MORGAN V. POWELL. 71
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.
72 SILSBUEY V. m'COON.
SILSBURY V. McCOON.
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
SILSBUBT V. m'COON. 73
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.
74 SILSBTJBY V. m'COOK.
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.
SILSBTJEY V. m'COON. 75
■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
receive.
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-
76 SILSB0KY V. M'COON.
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.
SILSBUBY V. m'cOON. 77
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.
78 SILSBTJEY V. m'COON.
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.
SILSBUEY V. m'COON. 79
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.
80 SILSBTJRY V. M'COON.
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.
SILSBUBY V. M'cOON. 8l
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
materials.
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.
6
02 SILSBUKY V. M COON.
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
occasion.
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
SILSBURY V. m'COON. 83
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.
84 PULCIFER V. PAGE.
PULCIFER V. PAGE.
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
excepted.
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-
■WETHEEBEE V. GEEBN. 85
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.
WETHEEBEE v. GREEN.
SUPREME COURT OE MICHIGAN. 1871.
[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-
86 WETHBEBEE V. GKEEN.
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
WETHEEBEE V. 6EEEN. 87
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
reasons.
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
88 "WETHEEBEE V. GREEN.
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
different.
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
WETHERBEE V. GEEEN. 89
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-
90 "WETHEEBEE V. GEEEK.
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
circumstances.
WETHEKBEB V. GKEEN. 91
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.
92 ISLE BOYALE MINING COMPANY V. HERTIN.
ISLE ROYALE MINING COMPANY v. HERTIN.
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
ISLE EOYALB MINING COMPANY V. HEBTIN. 93
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
94 ISLE KOYALE MINING COMPANY V. HEETIN.
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
established.
ISLE ROYALB MINING COMPANY V. HEETIN. 95
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
mistake.
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.
EAILWAY COMPANY V. HUTCHINS.
RAILWAY COMPANY v. HUTCHINS.
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
RAILWAY COMPANY V. HUTCHINS. 97
$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
7
98 BAIL-WAY COMPANY V. HUTCHINS.
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
KAILWAT COMPANY V. HUTCHIKS. 99
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.
100 EAILWAY COMPANY V. HT7TCHINS.
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
KAILWAY COMPANY V. HUTCHINS. 101
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-
102 EAILWAY COMPANY V. HUTCHINS.
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
RAILWAY COMPANY V. HUTCHTNS. 103
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
104 RAILWAY COMPANY V. HtJTCHINS.
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.
SPENCB V. UNION MAEINE INSUEANCE CO. 105
SECTION VIII.
CONFUSION.
A. Lawful or Accidental.
SPENCE V. UNION MARINE INSURANCE COMPANY.
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
106 SPENCE V. UNION MAEINE INSURANCE CO.
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
identified.
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
Court.
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
SPENCE V. UNION MAEINE INSURANCE 00. 107
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-
108 SPENCE V. TJNIOK MARINE INSURANCE CO.
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.
SPENCE V. UNION MAEINE INSURANCE CO. 109
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
ownership.
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
110 SMITH V. CLARK.
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.
SMITH V. CLAEK.
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,
SMITH V. CLARK. Ill
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
trial.
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
testimony.
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
112 CHASE V. TVASHBtTEN.
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.
CHASE V. WASHBURN.
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 V. WASHBURN. 113
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
brought.
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-
114 CHASE V. WASHBURN.
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-
CHASE V. ■WASHBURN. 115
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
transferred.
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.
116 CHASE V. WASHBURN".
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
CHASE V. -WASHBURN. 117
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
118 NELSON V. BEOWN, DOTY & CO.
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.
NELSON «. BEOWN, DOTY & CO.
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.
NELSOK V. BROWN, DOTY & CO. 119
"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
120 SEXTON & ABBOTT V. GRAHAM.
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.
SEXTON & ABBOTT v. GRAHAM.
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.
SEXTOK & ABBOTT V. GEAHAM. 121
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
them.
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
122 SEXTON & ABBOTT V. GEAHAM.
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
determined.
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.
SEXTON & ABBOTT V. GRAHAM. 123
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
appeals.
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
enem}-.
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
transpired.
124 SEXTON & ABBOTT V. GRAHAM.
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
Graham.
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'
SEXTON & ABBOTT V. GRAHAM. 125
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
126 SEXTON & ABBOTT V. GRAHAM.
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
SEXTON & ABBOTT V. GRAHAM. 127
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
128 SEXTON & ABBOTT V. GP.AHAM.
the subsequent deposit toward making good the previous wrongful
abstraction.
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-
SEXTON & ABBOTT V. GRAHAM. 129
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
referred.
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
9
130 SEXTON & ABBOTT V. GKAHAM,
to US that it is issued in conti-avention of the statute and cannot be
sustained.
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
SEXTON & ABBOTT V. GRAHAM 131
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
132 ANONYMOUS.
evidence upon this point, we do not think it would be proper for us to
interfere.
We think that the judgment of the Circuit Court must be Affirmed.
EoTHROCK, J., dissenting}
B. Tortious.
ANONYMOUS.
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.
WARD V. AYRE.
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.
134 KYDEE V. HATHA WAT.
RYDER V. HATHAWAY.
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
difficulties.
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.
RYDER V. HATHAWAY. 130
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-
136 EYDEE V. HATHAWAY.
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.
WILLARD V. EICB. 13T
WILLARD V. RICE.
- 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
138 HESSELTINB V. STOCK-WELL.
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.
HESSELTINE v. STOCKWELL.
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
HESSELTINE V. STOCKWBLL. 139
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
cutting.
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
140 HESSELTINE V. STOCKWELL.
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-
take.
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
FULLER V. PAIGE. 141
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
distinguished.
Exceptions sustained, verdict set aside, and new trial granted.
FULLER V. PAIGE.
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
defendant.
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
142 FTJLLEE V. PAIGE.
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
conduct.
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.
JENKINS V. STBANKA. 143
JENKINS V. STEANKA.
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
144 MOOKE V. BOWMAN.
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.
MOORE V. BOWMAN.
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.
MOOKE V. BOWMAN. 145
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-
10
146 MOORE V. BOWMAN.
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
MOORE V. BOWMAN. 147
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
148 MOOEE V. BOWMAN.
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
damages.
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
MOOKE V. BOWMAN. 149
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
150 MOOEE V. BOWMAN.
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-
MOOKE V. BOWMAK. 151
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
quantit}'.
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,
152 MOOEE V. BOWMAN.
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-
MOOBE V. BOWMAN. 153
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.
154 MOOEE V. BOWMAN.
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.
MOOEE V. BOWMAN. 155
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
together.
156 MOOEE V. BOWMAN.
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
owners.
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 ;
MOOEE V. BOWMAN. 157
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.
158 SMITH V. MOEKILL.
SMITH V. MOREILL.
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
Gardiner.
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
SMITH V. MOREILIi, 159
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.
160 SMITH V. MOEEILL.
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.
CHAPTER III.
TRANSFER OF RIGHTS IN PERSONAL PROPERTY.
SECTION I.
SATISFACTION OF JUDGMENT.
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.
BRINSMEAD v. HARRISON.
(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
opinion.
11
162 BEINSMEAD V. HAEEISON.
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
BRINSMEAD V. HARRISON. 163
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.
164 SMITH V. SMITH.
SMITH V. SMITH.
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
invoked.
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.
IRONS V. SMALLPIEOE. 166
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.'
SECTION n.
GIFTS OF CHATTELS.
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.
lEONS V. SMALLPIECE.
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.
166 IRONS V. SMALLPIECE.
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
before.
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,
IKONS V. SMALLPIECE. 167
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-
168 lEONS V. SMALLPIECE.
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
NOBLE V. SMITH. 169
NOBLE V. SMITH.
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.
170 NOBLE V. SMITH.
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.
GBRBABD V. BODEN. 171
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
equivalent.
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.
SECTION III.
ANNUITIES.
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.
GEREAED v. BODEN.
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?.
172 GEREAED V. BODEN.
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.
BABWICK V. EBADB. 173
SECTION IV.
TRANSFER OF EQUITABLE RIGHTS.
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.
BARWICK V. READE.
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.
FLARTY V. ODLUM.
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.
174 FLAETY V. ODLTJM.
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-
GEENFBLL V. DEAN AND CANONS OF "WINDSOE. 175
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
assigned.
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.
GRENFELL v. DEAN AND CANONS OF WINDSOR.
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.
176 GEENPELL V. DEAN AND CANONS OF -WINDSOE,
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
receiver.
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
GEENPELL V. DEAN AND CANONS OP WINDSOR. 177
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
conduct.
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
12
178 "WELLS V. FOSTER.
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.
WELLS V. FOSTER.
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
WELLS V. FOSTER. 179
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
cause.
£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
180 WELLS V. FOSTER.
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.
AKBUTHNOT V. NORTON. 181
ARBUTHNOT v. NORTON.
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.
182 AEBDTHNOT V. NOBTON.
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
policy.
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
AEBUTHNOT V. NORTON. 183
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
applicable.
"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.
DENT V. DENT.
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-
509.
STATE V. HASTINGS. 185
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.'
STATE, ex rel. STATE BANK, v. HASTINGS.
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.
186 STATE V. HASTINGS.
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.
STATE V. HASTINGS. 187
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
188 PEOSSEE V. EDMONDS.
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
it?
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.
PROSSER V. EDMONDS.
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
policy."
" 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.
PKOSSER V. EDMONDS. 189
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
subject.
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.
190 PROSSBR V. EDMONDS.
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-
PKOSSEE V. EDMONDS. 191
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
192 PBOSSEE V. EDMONDS.
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
PSOSSER V. EDMONDS. 193
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-
13
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
HILL V. BOYLE.
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.
HILL V. BOYLE. 195
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
196 HILL V. BOYLE.
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
same.
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
circumstances.
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
PEOPLE V. TIOGA COMMON PLEAS. 197
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.
PEOPLE V. TIOGA COMMON PLEAS.
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
198 PEOPLE V. TIOGA COMMON PLEAS.
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.
PEOPLE V. TIOGA COMMON PLEAS. 199
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
200 PEOPLE V. TIOGA COMMON PLEAS.
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.
McKEE V. JUDD.
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
MCKEE V. JUDD. 203
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.
PATTEN V. "WILSON. 205
PATTEN V. WILSON.
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
206 BICE V. STONE.
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.
RICE V. STONE.
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.
BICE V. STONE. 207
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.
208 EICE V. STONE.
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
RICE V. STONE. 209
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
U
210 ASHLEY V. ASHLEY.
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.
ASHLEY V. ASHLEY.
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.
STEVENS V. WAEEEN. 211
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.
STEVENS V. WARREN.
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."
212 STEVENS V. WAKKEN.
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
assured.
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
FRANKLIN INSURANCE COMPANY V. HAZZARD. 213
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
provision.
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.
FRANKLIN INSURANCE COMPANY y. HAZZARD.
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
214 FRANKLIN INSURANCE COMPANY V. HAZZARD.
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
against."
FRANKLIN INSURANCE COMPANY V. HAZZARD. 215
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
against.
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
216 CLAEK V. ALLEN.
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.
CLARK V. ALLEN.
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
CLAEK V. ALLEN'. 217
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
sale.
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
own.
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-
218 OLAKK V. ALLEX.
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
WAHNOCK V. DAVIS. 219
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.
WARNOCK V. DAVIS.
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
220 WAENOCK V. DAVIS.
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-
WARNOOK V. DAVIS. 221
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
dues.
" 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
222 -WARNOCK V. DAVIS.
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
WAKNOCK V. DAVIS. 223
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
224 WAKNOCK V. DAVIS.
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.
MUTUAL INSURANCE COMPANY V. ALLEN. 225
MUTUAL INSURANCE COMPANY u. ALLEN.
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
company."
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
Yorlj.
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
Fellows.
The case was heard by Holmes, J., who reported it for the consid-
eration of the full court, in substance as follows :
15
226 MUTUAL INSURANCE COMPANY V. ALLEN.
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
MTJTFAL INSUEANCE COMPANY V. ALLEN. 227
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.
228 MUTUAL INSURANCE COMPANY V. ALLEN.
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
MtTTUAL INSUBANCE COMPANY V. ALLEN. 229
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
alone.
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
230 MUTUAL INSURANCE COMPANY V. ALLEN.
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
illegal.
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-
MUTUAL INSURANCE COMPANY V. ALLEN. 231
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
purchaser."
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
232 MUTUAL INSUEANCB COMPANY V. ALLEN.'
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
MUTUAL INSUEANCE COMPANY V. ALLEN. 233
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.
234 MUTUAL INSUEANCE COMPANY V. ALLEN.
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
policy.
"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.
CHAPTER IV.
POSSESSION.
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.
SECTION I.
TAKING ON JUDICIAL PROCESS.
GIBSON'S CASE.
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.
WILBRAHAM v. SNOW.
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
afterwards.
Sympson, for the plaintiff.
Winnington, for the defendant. See 34 H. 6, 36 a., and the case
236 SHOELAND V. GOVETT.
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. »
SHOELAND v. GOVETT.
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
SHOKLAND V. GOVETT, '237
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
238 MELVILLE V. BEOWN.
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.
MELVILLE V. BROWN.
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
GARDNEE V. CAMPBELL. 239
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.
GARDNER v. CAMPBELL.
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
240 GAEDNEE V. CAMPBELL.
and owing on the execution, including sheriff's fees, which sum the
defendant accepted, and gave a discharge in full satisfaction of the
execution.
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.
CHAPMAN V. ALLEN. 241
SECTION II.
BAILMENT.
A. Nature and Acquisition of Lien.
CHAPMAN V. ALLEN.
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.
SKINNER V. UPSHAW.
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
16
i^42 KETJGER V. WILCOX.
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.
KRUGER V. WILCOX.
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 : —
KRUGER V. WILCOX. 243
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.
244 NAYLOE V. 3IANGLES.
NAYLOR V. MANGLES,
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
possession.
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.
EUSHFORTH v. HADFIELD,
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
KI7SHF0ETH V. HADFIELD. 245
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.
246 RUSHFOETH V. HADFIELD.
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.
EUSHFOETH V. HADFIELD. 247
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.
248 CHASE V. WESTMOEB.
CHASE V. WESTMORE.
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.
CHASE V. WESTMOEE. 249
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-
250 CHASE V. WESTMOEE.
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
CHASE V. -WEST-IORE. / 251
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-
252 BEVAN V. "WATERS.
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.
BEVAN V. WATERS.
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 ^
JUDSON «. ETHERIDGE.
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.
JUDSON V. ETHERIDGE. 253
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
254 JACKSON V. CUMMINS.
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
plaintiff.
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.
JACKSON V. CUMMINS.
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,
JACKSOK V. CUMMINS. 255
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
accordinglj-.
The plaintiff took issue on the first plea, and to the second replied de
injuria.
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
256 JACKSON V. CUMMINS.
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
BRITISH BMPIEE SHIPPING COMPANY V, SOMES. 257
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}
BRITISH EMPIRE SHIPPING COMPANY v. SOMES.
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.
17
258 BRITISH EMPIEE SHIPPING COMPANY V. SOMES.
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
STETNMAN V. WILKINS. 259
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.^
STEINMAN V. WILKINS.
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.
260 STEINMAN V. "WILKTNS.
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
STEINMAN V. "WILKINS. 261
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.
262 EOBINSON V. "WALTBK.
B. Lien given hy wrongdoer^ when good against true owner.
ROBINSON V. WALTEE.
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
ROBINSON V. -WALTER. 263
sides, and so for this purpose, this case was adjourned to a further
time.
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
meat.
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
them.
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.
264 ROBINSON V. WALTER.
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-
venient.
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
STIET V. DEUNGOLD. 265
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.
STIRT V. DRUNGOLD.
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,
266 BBOADWOOD V. GRANARA.
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
billam.
But some question was made whether he might retain the saddle,
bridle, and cloth as well as the horse.
BROADWOOD v. GEANARA.
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-
BEOADWOOD V. GBANAEA- 267
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
268 THEEPALL V. BOEWICK.
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.
THEEFALL v. BORWICK.
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.
THEEPALL V. BOEWICK. 269
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,
270 THBEPALL V. BOEWICK.
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
discharged.
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.
FITCH V. NEWBEKET. 271
FITCH V. NEWBERRY.
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,
1838.
Charles P. Allen.
272 PITCH V. NEWBEEEY.
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
PITCH V. NEWBEEEY. 273
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.
18
274 FITCH V. NBWBEKEY.
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-
FITCH V. NEWBEEKY. 275
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
obtained.
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.,
FITCH V. NE-WBEREY. 277
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
not."
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
278 FITCH V. NEWBERRY.
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
plaintiffs.
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-
PITCH V. NEWBERKT. 279
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
case.
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
cited.
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
280 PITCH V. NEWBEERY.
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
JONES V. PBAELE. 281
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.
JONES V. PEARLE.
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.
M'COMBIE V. DAVIES.
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
BOARDMAN V. SILL. 283
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.^
BOARDMAN v. SILL.
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.
WHITE V. GAINER.
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,
284 WHITE V. GAINER.
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-
JACOBS V. LATOTTR. 285
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.
JACOBS V. LATOUR.
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,
286 SCAEFE V. MORGAN.
"Whether, if he had a lien, it was destroyed by his taking the horses in
execution.
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.
SCARFE V. MORGAN.
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, —
SCAEFE V. MORGAK. 287
-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
288 SCAEFE V. MORGAN.
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
SCAKFE V. MOBGAN. 289
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
books.
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
19
290 BKYANT V. VARDELL.
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.
BRYANT V. WARDELL.
EXCHEQUEE. 1848.
[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
BRYANT V. WAEDELL. 291
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
292 KERPOED V. MONDEL.
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.
KERFORD V. MONDEL.
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.
KEBFOED V. MONDEL. 293
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
294 KEEFORD V. MONDEL.
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
Carmichael.
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
cochineal.
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.
KERFORD V. MONDEL. 295
[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.
296 MXJI^LINEE V. PLOEENCB.
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.
MULLINEE V. FLORENCE.
CouKT OF Appeal. 1878.
IBeporkd 3 Q. B. Div. 484.]
Action for the detention and conversion of horses, carriages, and
harness.
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
MULLINER V. FLORENCE. 297
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
298 MULLINEE V. FLOKENCE.
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
MULLINER V. FLORENCE. 299
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.
300 MULLINER V. FLOEENCB.
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
MTJLLINER V. FLOBENCE. 301
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
302 HANNA V. PHELPS.
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.
HANNA V. PHELPS.
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.
HANNA V. PHELPS. 303
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
304 MEXAL V. DEARBORN.
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.
MEXAL V. DEARBORN.
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.
MEXAL V. DEARBORN. 305
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
20
306 JOHNSON V. STEAK.
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.
JOHNSON V. STEAR.
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
cases.
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
JOHNSOK V. STEAK. 307
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
assignee.
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
court.^
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,
308 JOHNSON V. STEAK.
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
JOHNSON V. STEAR. 309
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
damages.
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
310 JOHNSON V. STEAE.
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.
325.
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
JOHNSON V. STEAE. 311
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.
399.
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.
312 DONALD V. SUCKLING.
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.
DONALD V. SUCKLING.
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.
DONALD V. SUCKLING. 313
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
314 DONALD V. SUCKLING.
" 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
DONALD V. SUCKLING. 315
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
judgment.
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
316 DONALD V. SrrCKLING.
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
them.
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
DONALD V. SUCKLING. 317
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
318 DONALD V. SUCKLING.
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.
DONALD V. SUCKLING. 319
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
320 DONALD V. SUCKLING.
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
DONALD V. StrCKLlNG. 321
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."
21
322 DONALD V. SUCKLING.
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
DONALD V. SUCKLING. 323
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
i)ossession?
324 DONALD V. SUCKLING.
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
DONALD V. SUCKLING. 325
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
defendant.
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
326 DONALD V. SUCKLING.
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
DONALD V. SUCKLING. 327
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
328 DONALD V. SUCKLING.
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 C. B. N. S.
330, 341 ; 33 L. J. C. P. 130, 134, he may be said to have violated an
implied condition of the bailment. Such is the case where a hirer of
goods, who is not to have more than the use of them, destroys them or
sells them ; that being so wholly at variance with the purpose for which
he holds them, that it may well be said that he has renounced the con-
tract b}- which he held them, and so waived and abandoned the limited
right which he had under that contract. It maj- be a question whether
it would not have been better if it had been originallj* determined that,
even in such cases, the owner should bring a special action on the
case and recover the damage which he actually sustained, which may in
such cases be very trifling, though it ma}- be large, instead of holding
that he might bring trover, and recover the whole value of the chattel
without anj' allowance for the special property. But I am not pre-
pared to dissent from these cases, where the act complained of is one
wholly repugnant to the holding, as I think it will be found to have
been in every one of the cases in which tliis doctrine has been acted
upon. But where the act, though unauthorized, is not so repugnant to
the contract as to show a disclaimer, the law is otherwise. Thus,
where the hirer of a horse for two daj-s to ride from Gravesend to Nettle-
sted deviated from the straight wa^' and rode elsewhere, it was held that
the hirer had a good special property for the two days, and although
he misbehaved by riding to another place than was intended, that was
to be punished by an action on the case, and not by seizing the geld-
ing. Ziee V. Atkinson, Yelv. 172. This certainly was a much more
equitable decision than if a rough rule had been laid down that every
deviation from the right line, however small, was to operate as a for-
feiture of the right to use the horse for which the hirer had paid ; and
it may be reconciled to the decisions already referred to, because the
wrongful use, though wrongful, was not such as to show a renunci-
ation of the contract with the owner of the horse. Now, I think that
the sub-pledging of goods held in security for monej', before the money
is due, is not in general so inconsistent with the contract as to amount
to a renunciation of that contract. There may be cases in which the
pledgor has a special personal confidence in the pawnee, and therefore,
stipulates that the pledge shall be kept by him alone, but no such terms
are stated here, and I do not think that any such term is implied by law.
In general, all that the pledgor requires is the personal contract of the
pledgee that on bringing the money the pawn shall be given up to him,
and that in the meantime the pledgee shall be responsible for due care
being taken for its safe custodj'. This may very well be done though
DONALD V. SUCKLING. 329
there has been a sub-pledge ; at least the plaintiff should try the exper-
iment whether, on bringing the money for which he pledged those
debentures to Simpson, he cannot get them. And the assignment of
the pawn for the purpose of raising money (so long at least as it pur-
ports to transfer no more than the pledgee's interest against the
pledgor) is so far from being found in practice to be inconsistent with,
or repugnant to, the contract, that it has been introduced into the Fac-
tors Acts, and is in the civil law (and according to Mores v. Conham,
Owen, 123, in our own law also) a regular incident in a pledge. If it
is done too soon, or to too great an extent, it is doubtless unlawful,
but not so repugnant to the contract as to be justly held equivalent to
a renunciation of it.
The cases of Bloxatn v. Sanders, 4 B. & C. 941, and Milgate v.
JKebble, 3 M. & G. 100, are cases of unpaid vendors, and therefore are
not authorities directly applicable to a case of pledge. But the position
of a partially unpaid vendor, who irregularlj- sells the goods which have
onlj' been partiall}' paid for, is very analogous to that of a pledgee ; and
in Milgate v. JKebble, Id. 103, Tindal, C. J., is reported to have used
language that seems to indicate that in his opinion a pledgor could
not have maintained trover an}' more than the vendee in that case.
But the latest case, and one which I thinli is binding on this court, is
that oi Johnson v. Stear, 15 C. B. N. S. 330 ; 33 L. J. C. P. 130 ; and I
think that the decision of the majoritj' of the Court of Common Pleas in
that case is an authorit}- that at all events there remains in the pawnee
an interest not put an end to by the unauthorized transfer, such as is in-
consistent with a right in the pawnor to recover in detinue. In that
case the goods had been pledged as a securitj' for a bill of exchange,
with a power of sale if the bill was not paid at maturity. The pledgee
sold the goods the day before he had a right to do so. The assignees
of the bankrupt pledgor brought trover, and sought to recover the full
value of the goods without any reduction. Williams, J., thought that
thej' were so entitled, giving as his reason " that the bailment having
been terminated by the wrongful sale, the plaintiff might have resumed
possession of the goods freed from the bailment, and might have held
them rightfully when so resumed, as the absolute owner against all the
world." 15 C. B. N. S. 341 ; 33 L. J. C. P. 134. And if this was cor-
rect, the present plaintiff is entitled to judgment. But the majority of
the court decided that " the deposit of the goods in question witli the
defendant, to secure repaj'ment of a loan to him on a given day, with
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
the parties, nor tJie interest of the pawnee in the goods under that con-
tract." 15 C. B. N. S. 334, 335 ; 33 L. J. C. P. 131. This can be rec-
onciled with the cases above cited, of which Fenn v. Bittleston, 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 contract of
330 DONALD V. SUCKLING.
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, 15 C. B. N. S.
330 ; 33 L. J. C. P. 130. It may be that the conclusion from these
premises ought to have been that the defendant was entitled to the
verdict, on the plea of not possessed in trover, unless the court thought
fit to let the plaintiff, on proper terms, amend by substituting a count
for the improper sale ; but this point as to the pleading does not seem
to have been presented to the Court of Common Pleas. The fact that
they differed from Williams, J., shows that after consideration they
meant to decide that the pledge gave a special property, which still
continued ; and though I have the highest respect for the authority of
Williams, J., I think we must, in a court of co-ordinate jurisdiction,
act upon the opinion of the majority, even if I did not think, as I do,
that it puts the law on a just and convenient ground. And as already
intimated, I think that unless the plaintiff is entitled to the uncontrolled
possession of the things, he cannot recover in detinue.
For these reasons, I think we should give judgment for the defendant.
Mellor, J., read the judgment of —
CocKBURN, C. J. The question in this case is, whether, when de-
bentures have been deposited as security for the payment of a bill of
exchange, with a right on the part of the depositee to sell or otherwise
dispose of the debentures in the event of nonpayment of the bill, — in
other words, as a pledge, — and the pawnee pledges the securities to a
third party on an advance of mone}', the original pawnor, the bill of ex-
change remaining unpaid, can treat the contract between himself and
the first pawnee as at an end, and, without either paying or tendering
the amount of the bill of exchange for the payment of which the security
had been pledged, bring an action of detinue to recover the thing
pledged from the holder to whom it has been transferred.
I think it unnecessary to the decision in the present case to deter-
mine whether a partj^, with whom an article has been pledged as a
security for the payment of money, has a right to transfer his interest
in the thing pledged (subject to the right of redemption in the pawnor)
to a third party. I should certainly hesitate to lay down the affirmative
of that proposition. Such a right in the pawnee seems quite inconsist-
ent with the undoubted right of the pledgor to have the thing pledged
returned to him immediatelj- on the tender of the amount for which the
pledge was given. In some instances it may be well inferred from the
nature of the thing pledged — as in the case of a valuable work of art
— that the pawnor, though perfectly willing that the article should be
intrusted to the custody of the pawnee, would not have parted with it
on the terms that it should be passed on to others and committed to
the custody of strangers. It is not, however, necessarj' to decide this
question in the present case. The question here is, whether the trans-
fer of the pledge is not only a breach of the contract on the part of the
pawnee, but operates to put an end to the contract altogether, so as to
entitle the pawnor to have back the thing pledged without payment of
DONALD V. SUCKLING. 331
the debt. I am of opinion that the transfer of the pledge does not put
an end to the contract, but amounts only to a breach of contract, upon
which the owner maj' bring an action, — for nominal damages if he has
sustained no substantial damage ; for substantial damages, if the thing
pledged is damaged in the hands of the third party, or the owner is
prejudiced by delay in not having the thing delivered to him on tender-
ing the amount for which it was pledged. We are not dealing with a
case of lien, which is merelj- the right to retain possession of the chat-
tel, and which right is immediately lost on the possession being parted
with, unless to a person who may be considered as the agent of the
party having the lien for the purpose of its custody. In the contract of
pledge the pawnor invests the pawnee with much more than the mere
right of possession. He invests him with a right to deal with the thing
pledged as his own, if the debt be not paid and the thing redeemed at
the appointed time.
It seems to me that the contract continues in force, and with it the
special property created by it, until the thing pledged is redeemed or
sold at the time specified. The pawnor cannot treat the contract as at an
end until he has done that which alone enables him to divest the pawnee
of the inchoate right of property in the thing pledged, which the con-
tract has conferred on him.
The view which I have taken of this ease, and which I should have
arrived at independently of authority, is fully borne out bj' the decision
of the majority of the Court of Common Pleas in the case of Johns on
v. Stear. There, goods which had been pledged as security for the
paj'ment of a bill of exchange, having been sold before the falling due of
the bill, the court held — on an action of trover being brought to recover
the goods — that, although the owner was entitled to maintain an action
against the pawnee for a breach of contract in parting with the goods,
jet that the contract itself was not put an end to by the tortious deal-
ing with the goods by the pawnee so as to entitle the owner to bring an
action to recover the goods as if the contract never had existed. This
decision appears to me to be a direct authoritj^ on the present case, and
to be binding upon us. It is true that Mr. Justice Williams dissented
from the other three judges constituting the court, holding that the
contract was put an end to, and the plaintiff remitted to his absolute
right of ownership bj' the conversion of the goods by the pawnee. But,
however I may regret to diflfer from that verj"^ learned judge, I concur,
for the reasons I have given, with the majority of the Court of Common
Pleas in holding that a pawnor cannot recover back goods (and the
same principle obviously would apply to debentures) pledged as secu-
rity for the payment of a debt or bill of exchange until he has paid or
tendered the amount of the debt.
I am therefore of opinion that our judgment should be in favor of the
defendant. Judgment for the defendant.
Keiffhley and Gething, for the plaintiff.
Edmands and Mayhew, for the defendant.
332 HALLIDAY V. HOLGATB.
HALLIDAY v. HOLGATE.
Exchequer. 1868.
[Reported L. R. 3 Ex. 299.]
Appeal from the judgment of the Court of Exchequer, discharging
a rule to enter a verdict for the plaintiff in an action of trover brought
by the creditors' assignee of one Bentley against the defendant to
recover the value of certain shares, the defendant pleading, amongst
other pleas, not possessed.
On the 30th of April, 1866, Bentley bought of one Scholefield fifteen
shares in the WhiteweU Mining Companjr, limited, which, by the ar-
ticles of association of the companj', were not transferable till the 2d of
January, 1867, and Scholefield at the same time, by a memorandum in
writing, agreed to execute a transfer of the shares to Bentley as soon
as he legally could. Bentlej' at the same time bought ten other shares
in the same companj-, and took a similar memorandum.
In June, 1866, Bentley borrowed of the defendant £350 on his own
promissory note payable on demand, and on the security of the twenty-
five shares above mentioned, and he at the same time handed to the
defendant the two agreements, promising to deliver to him the scrip as
soon as he received it. On the 16th of January, 1867, Bentley handed
to the defendant the fifteen scrip certificates for the first fifteen shares,
and received back the agreement relating to the ten shares, on paying
£100 on account of the debt.
On the same day Bentley's firm stopped paj'ment ; they were after-
wards adjudicated bankrupts, and the plaintiff was appointed creditors'
assignee, Bentley absconding before passing his final examination.
The defendant, after the bankruptcy, sold the scrip of ten of the fifteen
shares, but it did not appear that he had made any demand on, or
given notice to, either Bentley or the plaintiff, the assignee. The value
of the scrip for the ten shares was admitted to be £200.
The cause was tried before Mellor, J., at the Liverpool Spring
Assizes, 1867, and the learned judge nonsuited the plaintiff, reserving
leave to him to move to enter a verdict for him for £200, or such other
sum as the court should think fit. A rule was obtained accordinglj',
and was, after argument in the court below, in Hilary Term last, dis-
charged on the authority of Donald v. Suckling, Law Rep. 1 Q. B.
585. The plaintiff appealed.
Jordan, for the appellant.
Quain, Q. C. (Herschell with him), was not called upon.
The judgment of the court (Willes, Blackbukn, Keating, Monta-
gue Smith, and Lush, JJ.) was delivered by
Willes, J We are all of opinion that this judgment must be
HALLIDAY V. HOLGATB. 333
affirmed. The action is brouglit bj- an assignee in bankruptcy to re-
cover tiie value of certain scrip certificates of the bankrupt, alleged to
have been converted bj* the defendant. The defendant was under
advances to the bankrupt, in respect of which the bankrupt pledged to
the defendant the certificates in question. The bankrupt became in
default, and absconded, and the defendant thereupon sold a part of the
certificates sufficient to repaj^ the whole or part of the amount due to
him. The assignee seeks to recover either the whole value or nominal
damages in respect of the wrong done by the sale. As to the claim for
the whole value, it is certainly a strong contention. The scrip certifi-
cates were in the hands of the defendant as a securitj' for money due,
and the assignee has sustained no actual damage, for the debt could
have been paid no otherwise, yet the assignee seeks to recover the
whole value as if at tlie time the certificates were his own. It does not
require much argument to show that there is no principle for such a
rule, and we should not be disposed to act upon it unless we are com-
pelled bj^ some authoritj- to do so. But the authorities invite us to do
the reverse, for Johnson v. Stear, 15 C. B. (N. S.) 330 ; 33 L. J. (C. P.)
130 shows that if any action lies at all in such a case, the verdict can
only be for nominal damages, and that an allowance must be made for
the amount of the debt which has been thus satisfied, that being the
amount which the pledgor or his assignee would have had to pay
before he could have required the article to be delivered up. We are
quite satisfied to abide b}' that decision.
But it has been argued that the plaintiflT is at any rate entitled to
nominal damages, for that a conversion was committed by the sale of
the certificates. That sale, it is contended, had the eflfect of putting an
end to the bailment of pledge ; the property of the pledgee was thereby
determined, so as to enable the assignee to say that at the moment
when the sale took place he became entitled to the certificates by virtue
of the general property- which then revested in him. This reasoning pro-
ceeds upon a somewhat subtle and narrow ground, for it is admitted
that the assignee could onlj' claim nominal damages. But we cannot
arrive at the conclusion that he is so entitled without getting rid of the
case of Donald Y. Suckling, Law Rep. 1 Q. B. 585 ; and so far from
feeling disposed to overrule that case, we are satisfied of its good sense,
and think that it puts the whole matter on a plain and intelligible foot-
ing. There are three kinds of security : the first, a simple lien ; the
second, a mortgage, passing the property out and out; the third, a
security intermediate between a lien and a mortgage — viz., a pledge —
where by contract a deposit of goods is made a security for a debt, and
the right to the property vests in the pledgee so far as is necessary to
secure the debt. It is true the pledgor has such a property in the ar-
ticle pledged as he can convey to a third person, but he has no right to
the goods without paying off the debt, and until the debt is paid ofl' the
pledgee has the whole present interest. If he deals with it in a manner
other than is allowed by law for the payment of his debt, then, in so
334 ANONYMOUS.
far as bj' disposing of the reversionary interest of the pledgor he causes
to the pledgor any difficulty in obtaining possession of the pledge on
payment of the sum due, and thereby does him anj"^ real damage, he
commits a legal wrong against the pledgor. But it is a contradiction
in fact, and would be to call a thing that which it is not, to say that
the pledgee consents by his act to revest in the pledgor the immediate
interest or right in the pledge, which by the bargain is out of the
pledgor and in the pledgee. Therefore, for any such wrong an action
of trover or of detinue, each of which assumes an immediate right to
possession in the plaintiff, is not maintainable, for that right clearly is
not in the plaintiff. The judgment must, therefore, be affirmed.
Judgment affirmed.
E. Actions of Bailor against Bailee.
Lit. § 71. . . . If I lend to one my sheepe to tathe his land, or my
oxen to plow the land, and he killeth my cattell, I may well have an
action of trespass against him, notwithstanding the lending.
ANONYMOUS.
Common Pleas. 1587.
[Reported Moore, 248, pi. 392.]
A DHAPEE having a servant to sell cloths in his shop, the ser\'ant
took cloths and converted them to his own use, and it was adjudged that
trespass vi et armis lay, because he was onlj' a servant, and had the
possession of the cloths as servant, and so preserved the possession of his
master. And therefore if a shepherd or a butler stole sheep or plate,
that was felony at the common law. 3 Hen. VII., and 21 Hen. VII.
But if one delivers a chattel to his servant to deliver over, and he steals
it, that is no felonj', because he has a special propertj', on which he can
maintain trespass for a taking out of his possession. And Anderson
[C. J.], said that in all cases where the servant has neither special nor
general property, trespass lies, otherwise of a bailee. And accordingly
they adjudged also at this term, that if a lessee at will cuts trees, tres-
pass vi et armis lies, because the trees are not delivered to him.
BLOSS V. HOLMAN. 335
BLOSS V. HOLMAN.i
Common Pleas. 1587.
[Reported Owen, 52.]
John Bloss brought- an action of trespass, quare vi et armis, for
taking of his goods, against Holman, and the defendant pleaded not
guilty, and the jury gave a special verdict, namely, that the plaintiff at
the time of the trespass was of the Mystery of the, Mercers, and that at
that time the defendant was his servant, and put in trust to sell his goods
and merchandises in shopa sua, ibidem de tempore in tempus, and that
he took the goods of the plaintiff named in the declaration, and carried
them away, and prayed tlie advice of the court, if the defendant were
culpable or not ; and upon the postea returned, Shuttleworth prayed judg-
ment for the plaintiff. And the doubt was because the declaration was
quare vi et armis, because it appeared that the defendant had custody
of the goods ; but Shuttleworth doubted whether he had custody, and
cited the case of Littleton, namelj', if I give my sheep to compasture, &c.
and he kills them, an action of trespass lies ; and the justices held that
in this case the action did well lie ; and Periam said that the defendant
had only an authority, and not custody or possession ; and judgment
was given for the plaintiff. 3 H. 7, 12 ; 21 H. 7, 14. And Windham
said, that if he had embezzled his master's goods, without question it was
felonj'. Quod fuit concessum (Anderson absent), and the law will not
presume that the goods were out of the possession of the plaintiff; and
the next daj' came the Lord Anderson and rehearsed the case, and said,
that the defendant had neither general nor special property in the goods,
for it is plain he could have no general property, and special he had not,
for he could not have an action of trespass if thej- were taken away,
then if he had no propertj', a trespass lies against him, if he take them ;
so if a shepherd steal sheep, it is felony, for he hath no property in
them ; wherefore he gave judgment accordingly.^
1 s. c. sub nom. Glosse & Sayman's Case, 1 Leon. 87.
" Thus far nothing has been said with regard to the custody of servants. It is a well-
known doctrine of the criminal law, that a servant who criminally converts property of
his master intrusted to him and in his custody as servant is guilty of theft, because he
is deemed to have taken the property from his master's possession. This is equivalent
to saying that a servant, having the custody of his master's property as servant, has
not possession of that property, and it is so stated in the Year Books.
" The anomalous distinction according to which, if the servant receives the thing from
another person for his master, the servant has the possession, and so cannot commit theft,
is made more rational by the old cases. For the distinction taken in them is, that
while the servant is in the house or with his master, the latter retains possession ; but
if he delivers his horse to his servant to ride to market, or gives him a bag to carry to
London, then the thing is out of the master's possession and in the servant's. In this
more intelligible form, the rule would not now prevail. But one half of it, that a guest
336 CAMPBELL V. STAKES.
CAMPBELL V. STAKES.
New Yoke Court foe the Corkection of Eeeoes. 1828.
[Beported 2 IVend. 137.]
Eeeoe from the Supreme Court. Sarah Stakes, in July, 1821, com-
menced an action of trespass in the Common Pleas of New York, against
Samuel Campbell and Thomas Campbell, and declared against them,
for that on the fourth of July, 1820, thej' drove a certain mare belong-
ing to the plaintiff with such violence, and whipped and cruelly treated
her in such manner, that she died. Samuel Campbell alone was taken
on the process issued against the defendants. He appeared by guar-
dian, and pleaded 1. ]Vo7i cul. ; 2. That at the time when, &c., the
mare was in the possession of the defendants by virtue of a contract of
bailment, whereby the plaintiff had let the mare and a tilbury to the
at a tavern has not possession of the plate with which he is served, is no doubt still
law, for guests in general are likened to servants in their legal position.
" There are few English decisions, outside the criminal law, on the question whether
a servant has possession. But the Year Books do not suggest any difference between
civil and criminal cases, and there is an almost unbroken tradition of courts and approved
writers that he has not, in any case. A master has maintained trespass against a ser-
vant for converting cloth which he was employed to sell, and the American cases go
the full length of the old doctrine. It has often been remarked that a servant must be
distinguished from a bailee.
" But it may be asked how the denial of possession to servants can be made to agree
with the test proposed, and it will be said with truth that the servant has as much the
intent to exclude the world at large as a borrower. The law of servants is unquestion-
ably at variance with that test ; and there can be no doubt that those who have built
their theories upon the Roman law have been led by this fact, coupled with the Boman
doctrine as to bailees in general, to seek the formula of reconciliation where they have.
But, in truth, the exception with regard to servants stands on purely historical grounds.
A servant is denied possession, not from any peculiarity of intent with regard to the
things in his custody, either towards his master or other people, by which he is distin-
guished from a depositary, but simply as one of the incidents of his status. It is fa-
miliar that the status of a servant maintains many marks of the time when he was a
slave. The liability of the master for his torts is one instance. The present is another.
A slave s possession was his owner's possession on the practical ground of the owner's
power over him, and from the fact that the slave had no standing before the law. The
notion that his personality was merged in that of his family head survived the era of
emancipation." Holmes, Com. Law, 226-228.
" It is important to note exactly the difference between a mere servant and a bailee.
If A. gives goods to B., e. g. a carrier, A. retains the right to possess the goods, but he
passes the possession itself to B. If, on the other hand, B. is not a carrier, but a mere
servant, A. , though he may give the custody or detention of the goods to B. , does not
pass to him the possession of them. Hence B., the bailee, has, as against thii'd parties,
a right to possession, and can bring trover; but B. the servant having no possession,
has no right to possession, and cannot bring trover. It is conceived, that if B. should
be in any way acting, not only as a servant, but also as a bailee, he might bring an.
action for the conversion of the goods." Dicey, Parties, 358, note (c).
CAMPBELL V. STAKES. 337
defendants for hire, averring that at the time of the making of the con-
tract, and also at the time of the supposed trespasses, the defendants
were respectively infants within the age of twenty-one years. The
plaintiff demurred to the second plea, the defendant joined, and the
Common Pleas gave judgment for the defendant. The plaintiff removed
the record into the Supreme Court by writ of error, and in August, 1825,
the judgment of the Common Pleas was reversed, and judgment for
, costs taxed at $95.42, given in favor of the plaintiff in error in that
court, and a venire de novo awarded. At the ensuing term, Campbell
applied for and obtained leave to amend his plea. 5 Cowen, 21, when
he plead 1. Non cul. ; 2. That the mare, at the time when, &c., was
in the possession of the defendants by virtue of a contract of bail-
ment for hire ; and that the supposed beating, fatiguing by over-
driving, &c., occurred and took place through the unskilfulness, want of
knowledge, discretion, and judgment of the defendants ; and that, on
the termination of the contract of bailment, the defendants returned
and re-delivered to the plaintiff the mare in full life ; and averred that
at the time of the bailment, and of the committing of the supposed
trespasses, the defendants were respectively infants, &c., concluding
with a verification and prayer of judgment. The plaintiff replied pre-
cludi non, because the said S. Campbell, of his own wrong, and without
the cause b}' him in his plea alleged, and with force and arms, &c., did
commit the said several trespasses, &c. in niodo ei Jbrma, &c. ; and
further, that at the time when, &c., the defendant was of full age, con-
cluding to the country with similiter. In November, 1826, tlie cause
was tried at the New York Circuit, and the jury found the defendant
guilt3- of the premises laid to his charge in manner and form, &c. and
assessed the damages of the plaintiff at $200, but took no notice of the
issue on the plea of infancj'. On this verdict, a judgment was entered
in the Supreme Court.
In June, 1827, John Campbell, the administrator of Samuel Camp-
bell, who was deceased, brought a writ of error, removing the record
from the Supreme Court into this court. Besides the general assign-
ment of error that the declaration is insufficient, &c. the plaintiff spe-
cially assigned for error the reversal of the judgment of the Common
Pleas, alleging that the same ought to have been affirmed. The de-
fendant pleaded in nullo est erratum.
.T. Piatt., for the plaintiff in error.
J. Anthon, for the defendant in error.
The Chancellor. The first point made by the plaintiff is, that the
action should have been case, and not trespass. If the object of this
point is to support the first error assigned, to wit, that the declaration
is insufficient, it certainly cannot be sustained.
The declaration is in the ordinary form of a declaration in trespass,
and I can see no objection to it, either in form or substance. But I
presume this point was intended to apply to the case made b}' the
special plea of the defendant in the court below. I am satisfied an
22
338 CAMPBELL V. STAKES.
action on the case cannot be maintained against an infant under such
circumstances. If the infant was liable at all, trespass was the proper
form of action. An action on the case necessarilj' supposes the defend-
ant to have a right to the possession of the property under the con-
tract of hiring, at the time the injury is committed. Independent of
the contract of hiring, the defendant would have no right to the posses-
sion, and trespass would be the proper remedy. If the plaintiflF declares
in case, he affirms the contract of hiring, and the plea of infancy is a
good defence to such an action ; for he cannot affirm the contract, and
at the same time, b}' alleging a tortious breach thereof, deprive the
defendant of his plea of infancy. The cases of Jennings v. Randall,
8 Term Rep. 335, and Grreen v. Greenbank, 2 Marsh. Eep. 485, were
cases of that description.
The contract of an infant is not void, but is voidable at the election
of the infant. If a horse is let to him to go a journej-, there is an im-
plied promise that he will make use of ordinary care and diligence to
protect the animal from injury, and return him at the time agreed upon.
A bare neglect to do either, would not subject him or an adult to an
action of trespass, the contract remaining in full force. But if the
infant does any wilful and positive act, which amounts to an election on
his part to disaffirm the contract, the owner is entitled to the imme-
diate possession. If he wilfully and intentionally injures the animal, an
action of trespass lies against him for the tort. If he should sell the
horse, an action of trover would lie, and his infancy would not protect
him. The case of Vasse v. Smith, in the Supreme Court of the United
States (6 Cranch's Rep. 226), was decided upon this principle. The
special plea in the Court of Common Pleas was defective in not averring
the fact, which was afterwards inserted in the amended plea, that the
injury complained of, occurred in the act of driving the mare, through
the unskilfulness and want of knowledge, discretion and judgment
of the defendant. "With that averment, I think the plea of infancy,
with the contract of hiring, would have been a complete answer to the
action. But without such averment, I think the court were bound to
presume it was a wilful injurj', which would amount to an election by
the infant to disaffirm the contract. I therefore am of opinion that the
judgment of the Supreme Court on the pleadings as they stood was
correct.
I am also of opinion that the defendant in the court below, by elect-
ing to amend his pleadings, waived his right to bring a writ of error on
the judgment of the Supreme Court, founded on the original pleadings.
If the cause had been originally commenced in the Supreme Court, the
former pleadings would not have been found in the record. As the
venite de novo was awarded in the Supreme Court, and these proceed-
ings formed a part of the record of the Court of Common Pleas, which
was brought into the Supreme Court by writ of error, it was perhaps
necessar}' that the original pleadings should remain upon the record.
But the election of the defendant to waive them by amending his plea,
"WILBT V. BOWER. 339
also forms a part of the record ; and he cannot now take advantage
of any error in the judgment of the Supreme Court, founded on the
original pleadings.^
F. Actions of Bailor against Third Person,
WILBY V. BOWER.
NisiPrius. 1649.
[Meported Clayton, 135, pi. 243.]
The plaintiff did deliver his horse to be kept at grass, and the de-
fendant took him away from the pasture, &c., and the plaintiff brought
trespass, and the judge overruled it that the action would not lie in this
case, because the horse was in the possession of another, which was
against my opinion being of counsel with the plaintiff, because the ac-
tion is transitorj', and he is in the owner's possession everywhere, and
if I give my horse in London to I. S., I, being then at York, he may
have trespass without other possession. F. N. B. 140 ; Perkins, 30 ;
21 E. 4, 25 ; 21 H. 7, 39 ; 21 H. 6, 43.
^ Tlie rest of the opinion is omitted.
Of Camphell v. Stakes, Gibson, C. J. in WiU v. Welsh, 6 Watts, 9, 12, says : "I
know nothing, nor did I ever before hear, of a constructive election to disaffirm in
order to strip an infant of his privilege, and, by turning him from a contractor into a
trespasser, to put him in a worse condition than if the contract had been indefeasible.
Such a construction is not in keeping with the benign principles of the common law,
which, in other cases, holds him only to such acts as are beneficial to him, and declares
such as are positively detrimental to him to be positively void. Even were that other-
wi.se, yet to give to an injury done to the thing bailed the character of an independent
trespass, would require the bailment to have been first terminated ; for the very foun-
dation of the argument is, that the contract was out of the way at the time ; but by
the most attenuated construction, its cessation and the inception of the wrong, could
be but simultaneous. On what princi|ile, then, can it be a trespass ? The distinction
taken in the Six Carpenters' Case, 8 Co. 146, betwixt an authority given by the law,
whose abuse makes the oflfender a trespasser from the beginning, and a license by the
party, whose abuse does not, has never been questioned. The killing of a beast dis-
trained by the grantee of a rent charge makes not the distress a trespass, because it is
given by the grant and not by the law. 1 Inst. 141. The reason is that a party is
entitled to the best protection the law can give against the abuse of an authority dele-
gated not by himself but by the law, which, to that end, makes void everything im-
properly done under it ; while a party who gives an authority to an unsafe person has
only himself to blame for it. 6 Wils. Bac. 561. Now taking for granted that the act
annihilated the contract, it cannot be denied that there was a precedent license, for an
excessive use of which the infant is sought to be charged as for a trespass ; with what
pretence of reason, when an adult could not be so charged, it is unnecessary to say.
The theory on wliieh a breach of contract has been thus turned into a trespass, is as
incomprehensible to me as the theory on which a common recovery bars an entail ; and
why we should employ any juggle whatever to tear from an infant the defences with
which the law has covered his weakness, is equally incomprehensible."
340 WAED V. MACAULEY.
WARD V. MACAULEY.
King's Bench. 1791.
[Rerpm-ted i T. R. 489.]
The plaintiff was the landlord of a house, which he let to Lord Mont-
fort ready furnished ; and the lease contained a schedule of the furni-
ture. An execution was issued against Lord Montfort, under which
the defendants, sheriff of Middlesex, seized part of the furniture, not-
withstanding the officer had notice that it was the property of the plain-
tiff. For this the plaintiff brought an action of trespass against the
defendants. At the trial Lord Kenyan thought that trespass would not
lie, and that the plaintiff should have brought trover. A verdict, how-
ever, was taken for the plaintiff for value of the goods, with liberty to
the defendants to move to enter up a nonsuit if this court should be of
opinion that the plaintiff could not recover in this form of action.
Mingay obtained a rule for that purpose on a former day ; against
which
Mrshine now showed cause.
LoKD Kenyon, Ch. J. The distinction between the actions of tres-
pass and trover is well settled ; the former is founded on possession,
the latter on property. Here the plaintiff had no possession ; his remedy
was by an action of trover founded on his property in the goods taken.
In the case put of a carrier, there is a mixed possession : actual posses-
sion in the carrier, and an implied possession in the owner.
BiiLLEE, J. The carrier is considered in law as the servant of the
owner, and the possession of the servant is the possession of the
master.
Per Cdkiam, Rule absolute.
GORDON V. HARPER.
King's Bench. 1796.
\Re-porUd 7 T. R. 9.]
1h trover for certain goods, being household furniture, a verdict was
found for the plaintiff, subject to the opinion of this court on the follow-
ing case: On October 1st, 1795, and from thence until the seizing of
the goods by the defendant, as after mentioned, Mr. Biscoe was in
possession of a mansion-house at Shoreham and of the goods in ques-
tion, being the furniture of the said house, as tenant of the house and
furniture to the plaintiff, under an agreement made between the plaintiff
and Mr. Biscoe, for a term which at the trial of this action was not ex-
GOEDON V. HAEPEK. 841
pired. The goods in question were on the 24th of October taken in
execution by the defendant, then sheriff of the County of Kent, by vir-
tue of a writ of testatum fieri facias issued on a judgment at the suit of
J. Broomhead and others, executors of J. Broomhead deceased, against
one Borrett, to wlioni the goods in question had belonged? but which
goods, previous to the agreement between the plaintiff and Mr. Biscoe,
had been sold by Borrett to the plaintiff". The defendant after the seiz-
ure sold the goods. The question is, whether the plaintiff is entitled to
recover in an action of trover.
Surrough, for the plaintiff.
Sest, contra.
Lord Kenyon, Ch. J. The only point for the consideration of the
court in the ease of Ward v. Macauley was, whether in a case like
the present the landlord could maintain an action of trespass against
the sheriff for seizing goods, let with a honse, under an execution
against the tenant ; and it was properly decided that no such action
could be maintained. What was said further bj' me in that case, that
trover was the proper remedy, was an extrajudicial opinion, to which,
upon further consideration, I cannot subscribe. The true question
is, whether when a person has leased goods in a house to another for
a certain time, whereby he parts with the right of possession daring
the term to the tenant, and has onl}' a reversionary interest, he can,
notwithstanding, recover the value of the whole property pending
the existence of the term in an action of trover. The very statement
of the proposition affords an answer to it. If, instead of household
goods, the goods here taken had been machines used in manufacture
which had been leased to a tenant, no doubt could have been made but
that the sheriff might have seized them under an execution against the
tenant, and the creditor would have been entitled to the beneficial use
of the property during the term ; the difference of the goods then can-
not vary the law. The cases which have been put at the bar do not
apply ; the one on which the greatest stress was laid was that of a tenant
for years of land whereon timber is cut down, in which case it was trulj'
said, that the owner of the inheritance might maintain trover for such
timber, notwithstanding the lease. But it must be remembered that the
only right of the tenant is to the shade of the tree when growing, and
by the very act of felling it his right is absolutely determined ; and even
then the property does not vest in his immediate landlord ; for if he
has only an estate for life it will go over to the owner of the inheritance.
Here, however, the tenant's right of possession during the term cannot
be devested by any wrongful act, nor can it thereby be revested in the
landlord. I forbear to deliver any opinion as to what remedy the land-
lord has in this case, not being at present called upon so to do ; but it
is clear that he cannot maintain trover.
AsHHURST, J. I have always understood the rule of law to be, that
in order to maintain trover the plaintiff must have a right of property
in the thing, and a right of possession, and that unless both these rights
342 GORDON V. HAEPEE.
concur the action will not lie. Now here it is admitted that the tenant
had the right of possession during the continuance of his term, and
consequently one of the requisites is wanting to the landlord's right of
action. It is true that in the present case it is not very probable that
the furniture can be of any use to anj' other than the actual tenant of
the premises ; but supposing the things leased had been manufacturing
engines, there is no reason why a creditor, seizing them under an exe-
cution, should not avail himself of the beneficial use of them during the
term.
Grose, J. The only question is, whether trover will lie where the
plaintiff had neither the actual possession of the goods taken at the
time nor the right of possession. The common form of pleading in such
an action is decisive against him ; for he declares that being possessed,
&c. he lost the goods ; he is therefore bound to show either an actual or
virtual possession. If he had a right to the possession, it is implied by
law. Where goods are delivered to a carrier, the owner has still a right
of possession as against a tort-feasor, and the carrier is no more than
his servant. But here it is clear that the plaintiff had no right of pos-
session ; and he would be a trespasser if he took the goods from the
tenant. Then by what authority can he recover them from any other
person during the term ? It is laid down in some of the books (Vid. 1
Bac. Abr. 45, and 5 Bac. Abr. 257, 2 Com. Dig. tit. Detinue, letter D.)
that trover lies where detinue will lie, the former having in modern
times been substituted for the old action of detinue. I will not say that
it is universallj' true that the one action may be substituted for the other,
because the authorities referred to in support of that proposition do not
apply to that extent ; but certainly it may be said to be a good general
criterion. But it is clear in this case that detinue would not lie, because
the plaintiff had no right to the possession of the specific goods at the
time. And if not, it is a strong argument to show that trover, which was
substituted in lieu of it, cannot be maintained bj' the present plaintiff.
Much stress has been laid on what was said in Ward v. Macauley.
But the only question there was, whether trespass would lie under these
circumstances ; and it was not necessary to determine how far trover
might be maintained. It appears now ver3^ clearly upon examining that
point that trover will not lie in any case, unless the property converted
was in the actual or implied rightful possession of the plaintiff. In this
case the plaintiff had neither the one nor the other pending the demise,
and when that is determined perhaps he may have his goods restored to
him again in the same state in which they now are, when it will appear
that he has not sustained that damage which he now seeks to recover in
this action.
Lawkence, J. The observation which mj^ brother Grose has made
upon the form of the action of trover is very material ; the plaintiff
therein states that he was possessed of the goods mentioned, and
being so possessed he casuallj- lost them, and that they came to the
hands and possession of the defendant by finding. And the princi-
LOTAN V. CROSS. 343
pal diflSculty in most of the cases reported upon this head has been,
whether the plaintiff had such a possession whereon he could declare
in this action ; as in Latcli, 214, where the plaintiff, as executor, de-
clared upon the possession of his testator, and the court held that to
be sufficient, because the property was vested in the executor ; and no
other person having a right to the possession, the property drew after it
the possession in law. In Berry v. Heard, Palm. 327. and Cro. Car.
242, it was for a long time in great doubt, whether the landlord had
such a possession of timber cut down pending a lease on which he could
maintain trover ; but it was finally determined that he had, because the
interest of the lessee in it remained no longer than while it was growing
on the premises, and determined instantlj' when it was cut down. Now
here if the taking of the goods by the sheriff determined the interest of
the tenant in them, and revested it in the landlord, I admit that the
latter might maintain trover for them upon the authority of the other
case ; but it is clearly otherwise ; for here the tenant's property and in-
terest did not determine by the sheriffs trespass, and the tenant might
maintain trespass against the wrong-doer, and recover damages. He is
bound to restore the goods to the landlord at the end of his term, and
could not justify his not doing so because a stranger had committed a
trespass upon him in taking them away. Postea to the defendant.
LOTAN V. CROSS.
Nisi Peius. 1810.
{Reported 2 Gamp. 464.]
Trespass for running against the plaintiff's chaise.
It appeared that the plaintiff, a stable-keeper, was owner of the
chaise ; but that when the injury was done, it was in the possession of
one Brown, a friend of his, whom he had permitted to use it.
The objection being taken that trespass could not be maintained by
the plaintiff under these circumstances.
Lord Ellenborough said : The property is proved to be in the plain-
tiff, und prima facie the thing is to be considered in his legal posses-
sion, whoever may be the actual occupier. Show a letting for a certain
time to Brown, and the possession would be in him ; but a mere gratui-
tous permission to a third person to use a chattel does not, in contem-
plation of law, take it out of the possession of the owner, and he may
maintain trespass for any injury done to it while it is so used. Vide
Smith V. Milles, 1 T. R. 480 ; Ward v. Macauley, 4 T. R. 489 ; Gor-
don V. Harper, 7 T. R. 9.
The witnesses stated that the defendant seemed to have no intention
of running hia carriage against the plaintiff's chaise ; and that the
344 SMITH V. SHERIFF OF MIDDLESEX.
accident appeared to arise entirelj' from the negligent manner in which
the defendant was driving.
JPark thereupon objected that the action should have been case and
not trespass.
Lord Ellenborough. The injury to the plaintiff being immediate
from the act done bj- the defendant, it was settled in Leame v. Bray,
3 East, 393, that trespass is the proper remedj', and that the defend-
ant's intentions were immaterial. Verdict for the plaintiff .
Park, in the ensuing term moved for a new trial on the ground that
the action was misconceived ; and stated that Leame v. Sray had
been overruled bj' the court of C. P. in Huggett v. Montgomery, 2 N.
Rep. 446.
Curia. If we are desired to review the case of Leame v. Bray, the
matter should be brought before us in a different shkpe than a motion
for a new trial. We do not entertain so slight an opinion of our own
judgment as to allow it to be thus canvassed. We will wait for some
case where the question is raised upon the record, and may be carried
farther. Rule refused.
SMITH V. SHERIFF OF MIDDLESEX.
King's Bench. 1812.
{Riported 15 East, 607.]
This was an action of trespass and conversion against the sheriff, for
taking and carrying awaj' certain goods of the plaintiff, being different
articles of household furniture. At the trial before Lord Ellenborough,
C. J., at Westminster, it appeared that the plaintiff, a tradesman, had
supplied the goods in question to one Mary Anne East, who, according
to the entry in the plaintiff's books, was to pay him for the hire of them
at the rate of £20 per cent per annum upon the value ; but according
to the evidence of Mrs. East herself, the goods had been recently put
into her house by the plaintiff, for the hire of which she was to pay
him ; but at the time of the taking and conversion complained of, no
contract had been made between them either for any precise time or for
any certain sum. Mrs. East was a married woman living at that time
apart from her husband under a deed of separation ; which was known
to the plaintiff when he furnished her with the goods ; and the sheriff
entered and levied upon these goods by virtue of a writ of execution at
the suit of a creditor of the husband. Before the sale by the sheriff,
notice was given to him bj' the plaintiff, that the goods taken in execu-
tion were his property ; and he claimed to have them restored to him.
The plaintiff recovered a verdict for the value, with leave to the defend-
ant to move to set it aside and enter a nonsuit, if the action were not
SMITH V. SHERIFF OF MIDDLESEX. 345
maintainable : and in moving for the rule the case of Gordon v. Harper,
7 Term Rep. 9, was cited and relied upon, to show that the action did
not lie, inasmuch as the plaintiff had not the right of possession as well
as the property of the goods in him at the time of the taking and sup-
posed conversion, bj- reason that the right of possession was then in
Mrs. East under the general contract of hiring.
Park, and Marryat, showed cause against the rule.
Garrow, and Reader, contra.
Lord Ellenboeodgh, C. J. This case has been presented during
parts of the argument in different points of view from what it appeared
in at the trial. In order to maintain trover the plaintiff must have a
present right of property in the goods ; the first question therefore is
^\•hethe^ the plaintiff had put the right of property out of him by a valid
contract for the hire of the goods with Mrs. East? If the contract
were for a year, it would put the property out of him for that time ; or if,
according to Mrs. East's evidence, the hiring were onl}- general, with-
out determining either price or time, it would operate as a contract for
a reasonable price, so long as both parties pleased ; and still the prop-
erty would be out of him for the time if it were a valid contract. That
brings it to the question whether Mrs. East, being a married woman,
could make a valid contract for the hire of the plaintiffs goods. Now
a contract to be valid must bind both parties ; but she being married,
it could not bind her. It is said, however, that it would bind her
husband, being for necessaries for her use ; but I know of no case
where a husband has been held liable upon a contract of this sort made
bj- his wife living apart from him, as for necessaries ; and no such case
was made before the jur^'. Then has he confirmed the contract? There
is no such evidence. The case therefore stands upon her own contract
unconfirmed, which is liable to the infirmity of her being a married
woman. It was argued on the other hand, that supposing the contract
was good, the notice given by the plaintiff to the sheritTs officer would
have determined it : but to that I cannot accede ; for to determine a
contract, which is determinable upon notice, the notice should be
brought home to the other contracting party ; and it is not enough that
it should be given to one acting adversely under some supposed deriva-
tive title in the law from that party. The notice therefore which was
given to the sheriff's officer would not alter the case. The conclusion
is that this action lies, because the plaintiff had the present right of
propertj' in him at the time, inasmuch as the married woman to whom
he sent the goods was not capable of contracting with him for the hire,
so as to take the property out of him.
Geose J. I am of the same opinion. It is argued that the plaintiff
had not a vested property in the goods in him at the time ; but it is not
shown who had any property in them adverse to him. The property
was clearly once in him, and nothing is shown to devest it out of him.
Le Blanc J. This is a mere question of law. The plaintiff cannot
recover unless he can show a present right of property. But it is clear
346 SMITH V. SHERIFF OF MIDDLESEX.
that originally the property was in him ; and if he had parted with it,
somebody else must have it. It is contended that either Mrs. East or
her husband took it. But she being a married woman could make no
contract : and as to her husband, it is said that he was bound for nec-
essaries for her ; but these are not found to be necessaries. Then as
to his adoption of the contract, it does not appear that he was even
cognizant of it, and therefore had not adopted it. If then the property
had not passed to another, it must have remained in the plaintiff. This
distinguishes the present from the former case, where the property had
passed from the original owner to another, and was out of the plaintiff
who brought the action. Hule discharged}
' " The bailor also obtained a right of action against the wrong-doer at a pretty early
date. It is laid down by counsel in 48 Edward III., in an action of trespass by an
agister of cattle, that, ' in this case, he who has the property may have a writ of tres-
pass, and he who has the custody another writ of trespass. Persay : Sir, it is true.
But he who recovers first sliall oust the other of the action, and so it shall be in many
cases, as if tenant by elegit is ousted, each shall have the assize, and, if the one recover
first, the writ of the other is abated, and so here. '
"It would seem from other books that this was spoken of bailments generally, and
was not limited to those which are terminable at the pleasure of the bailor. Thus in
22 Edward IV., counsel say, ' If I bail to you my goods, and another takes them out
of your possession, 1 shall have good action of trespass quare vi et armis. ' And this
seems to have been Rolle's understanding in the passage usually relied on by modern
courts.
" It was to be expected that some action should be given to the bailor as soon as the
law had got machinery which could be worked without help from the fresh pursuit and
armed hands of the possessor and his friends. To allow the bailor to sue, and to give
him trespass, were pretty nearly the same thing before the action on the case was
heard of. Many early writs wUl be found which show that trespass had not always
the clear outline which it developed later. The point which seems to be insisted on in
the Year Books is, as Brooke sums it up in the margin of his Abridgment, that two
shall have an action for a single act, — not that both shall have trespass rather than
case. It should be added that the Year Books quoted do not go beyond the case of a
wrongful taking out of the custody of the bailee, the old case of the folk-laws. Even
thus limited, the right to maintain trespass is now denied where the bailee has the
exclusive right to the goods by lease or lien ; although the doctrine has been repeated
with reference to bailments terminable at the pleasure of the bailor. But the modified
rule does not concern the present discussion, any more than the earlier form, because
it still leaves open the possessory remedies to all bailees without exception. This ap-
pears from the relation of the modified rule to the ancient law ; from the fact that
Baron Parke, in the just cited case of Manders v. Williams, hints that he would have
been prepared to apply the old rule to its full extent but for Gordon v. Harper, and
still more obviously from the fact, that the bailee's right to trespass and trover is
asserted in the same breath with that of the bailor, as well as proved by express
decisions to be cited.
' ' It is true that in Lotan v. Cross, Lord EUenborough ruled at Nisi Prius that a lender
conld maintain trespass for damage done to a chattel in the hands of a borrower, and
that the case is often cited as authority without remai'k. Indeed, it is sometimes laid
down generally, in reputable text-books, that a gratuitous bailment does not change
the possession, but leaves it in the bailor ; that a gratuitous bailee is quad a servant of
tiie bailor, and the possession of one is the possession of the other ; and that it is for
1 liis reason that, although the bailee may sue on his possession, the bailor has the same
actions. A part of this confusion has already been explained, and the rest will be
ANONYMOUS. 347
G. Actions of Bailee against Third Person.
ANONYMOUS.
King's Bench. 1374.
[Reported Year Book, 48 Edw. III. 20 pi. 8.]
A MAN brought a writ of trespass in the King's Bench for certain
oxen and cows taken with force and arms in a certain vill.
Hasty. Wliere you bring this writ of trespass for 3^our beasts, ut
supra, we say that the said beasts, at the time of the taking, belonged
to Walter Wich', of W., and that "Walter W., whose the beasts were,
sued a replevin in the County ; and thereupon the delivery was made,
and then [the suit] was removed into the Common Bench, and we say
against you, that we took the said beasts for rent arrear, issuing from
the same place as to which he complains (and he showed for what
term), and we demand judgment if you can take such beasts as belong
to others than yourselves.
Ham. To this we say that Walter W. bailed to us the said beasts
to agist on our land, so they were in our keeping, and an action for
them given to us. Wherefore we demand judgment whether our writ is
not good.
Hasty. And since j'ou have confessed property of the beasts in
Walter W., and also that the said beasts were in j-our custody', j'ou may
have an action of trespass by another writ, making mention of the fact
that they were in your custodj-, and not by a general writ wherefore, &c.
Cavendish, [C. J.] There is no other writ in the Chancery in the
case. Sed vide., that for executors the writ will be in custodia sua
when I come to speak of servants, between whom and all bailees there is a broad and
well-known distinction. But on whatever ground Lotan v. Cross may stand, if on
any, it cannot for a moment be admitted that borrowers in general have not trespass
and trover. A gratuitous deposit for the sole benefit of the depositor is a much
stronger case for the denial of these remedies to the depositary ; yet we have a decision
by the full court, in which Lord EUenborough also took part, that a depositary has
case, the reasoning implying that a fortiori a borrower would have trespass. And this
has always been the law. It has been seen that a similar doctrine necessarily resulted
from the nature of the early German procedure ; and the cases cited in the note show
that, in this as in other respects, the English followed the traditions of their race.
" The meaning of the rule that all bailees have the possessory remedies is, that in the
theory of the common law every bailee has a true possession, and that a bailee recovers
on the strength of his possession, just as a finder does, and as even a wrongful posses-
sor may have full damages or a return of the specific thing from a stranger to the
title. On the other hand, so far as the possessory actions are still allowed to bailors,
it is not on the ground that they also have possession, biit is probably by a survival,
which has been explained, and which in the modem form of the rule is an anomaly.
The reason usually given is, that a light of immediate possession is sufficient, — a
reason which excludes the notion that the bailor is actually possessed." Holmes, Com.
Law, 171-175.
3-t8 ANONTMorrs.
existentia. And I say in this case, he who has the 'property can have
a writ of trespass, and he who has the custody, another writ of trespass.
Percy. Sir, it is true, but he who shall recover first will oust the
other of his action ; and so it will be in several cases, as if tenant by
elegit is ousted, both shall have an assize, and if one recovers first,
the writ of the other is abated, sic hie. And afterwards the issue was
taken whether they were agisted on the plaintiff's land or not. Et sic
adpatriam.
ANONYMOUS.
Common Pleas. 1409,
[ReporUd Tear Boole, 11 Hen. IV. 17, pi. 39.]
A MAN sued a general replevin for his cattle wrongfully taken.
Trem.' said that the cattle were another's, and not the plaintiflTs, and
he made an avowry for a return.
Skrene. He whom j-ou allege to have the property in the cattle lent
the cattle to us to manure and improve our land, by force whereof they
were in our custody, and we demand judgment, and we pray damages.
Trem.' And we demand judgment, because you knew the property
was in another, as we have alleged, and we praji^ for a return.
C'oLEPEPER [J]. He supports his action well enough on the special
matter which he has shown, why do you demur?
Trem.' He ought to have alleged in his writ de averiis in custodia
sua existentibus.
Skrene. It is at our election to do either the one or the other.
Thirning [C. J.] Plead no more about this matter, for against you
he has property, ifec.-^
1 "Hakkfoed [J.] If a stranger who has no right takes beasts in my custody, I
shall have a writ of trespass against him, and shall recover the value of the beasts, be-
cause I am charged with the beasts against him who has baUed them to me, and who
has the property; but here the case is wholly otherwise, quod Hill et Colbpepee [JJ.]
concesserunt. Et nota that Colepeper [J.] said in this case that a man shall have a
writ de averiis in custodia sua existentibus. Sed vide that those of Chancery will not
grant such a writ in custodia sua." Year Book, 11 Hen. IV. 24, pi. 46 (1409).
" On the evidence, 1 admit it is questionable whether the plaintiiT had a sufficient
right of property. But the error, if any, lay with the jury. They were instructed
that a mere servant, who, as such, has only the charge or custody of goods, has not a
special property in them, but that the property remains in the master, and the action
for their recovery must be brought in his name ; and that unless the goods in question
had been delivered by Weir to the plaintiff as a bailee, and under a paiticular respon-
sibility, this action could not be sustained. This was a direction as favorable to the
defendant as the law would warrant. The judge left the application of the rule to the
jury, whose business it was to apply it to the facts." Per Gibson, J., in Harris v.
Smith, 3 S. & R. 20, 23.
See Tuthill v. Wheeler, 6 Barb. 362.
KOOTH V. WILSON. 349
BOOTH V. WILSON.
King's Bench. 1817.
[Reported \ B. & Aid. 59.]
Case against the defendant for not repairing the fences of a close
adjoining that of the plaintiff, whereby a certain horse of plaintiff, feed-
ing in the plaintiff's close, through the defects and insnfHciencies of the
fences, fell into the defendant's close and was killed. Plea, not guilty.
At the trial before Richards, Baron, at the last Spring Assizes for the
count}- of Nottingham, it appeared that the horse was the property' of
the plaintiff's brother, who sent it to him on the night before the acci-
dent ; that the plaintiff put it into his stable for a short time, and then
turned it, after dark, into bis close, where his own cattle usually grazed,
and that on the following morning the horse was found dead in the
close of the defendant, having fallen from the one to the other. The
liability to repair was admitted. Defence, that the plaintiff had not
such a property in the horse as to entitle him to maintain this action.
The learned Judge, however, suffered the cause to proceed, and the
jury found a verdict for the plaintiff. In Easter Term last a rule was
obtained bj' Reader for setting aside this verdict and having a new
trial, against which cause was now shown by
Copley, Serjt.
Reader, contra.
Lord Ellenboeotjgh, C. J. The plaintiff certainly was a gratuitous
bailee, but as such he owes it to the owner of the horse not to put it
into a dangerous pasture ; and if he did not exercise a proper degree
of care he would be liable for any damage which the horse might sus-
tain. Perhaps the horse might have been safe during the daylight, but
here he turns it into a pasture to which it was unused after dark. That
is a degree of negligence sufficient to render him liable : such liability
is sufficient to enable the plaintiff to maintain this action ; he has an
interest in the integritj' and safety of the animal, and may sue for a
damage done to that interest.
BATLBr, J. I am entirely of the same opinion : the plaintiff by
receiving the horse becomes accountable. Case is a possessory action ;
the declaration merely states that it was the horse of the plaintiff; if
this had been an indictment, might it not have been described as the
horse of the plaintiff, as in the common case of goods stolen from a
washerwoman ?
Abbott, J. I think that the same possession which would enable
the plaintiff to maintain trespass, would enable him to maintain this
action.
HoLROYD, J. The plaintiff was entitled to the benefit of his field not
350 BUKTON V. HUGHES.
only for the use of his own cattle, but also for putting in the cattle of
others ; and b}' the negligence of the defendant in rendering the field
unsafe, he is deprived in some degree of the means of exercising his
right of using that field for either of those purposes. Whether, there-
fore, the damage accrues to his own cattle, or the cattle of others,
he still may maintain this action. Hule discharged.
BURTON V. HUGHES.
Common Pleas. 1824.
[Beported 2 Bing. VS.]
Trover for certain articles of furniture seized by the defendants
under a commission of bankrupt against Robert Cross. At the trial
before Bayley, J., York Lent Assizes, 1824, Kitchen, a dealer in fur-
niture, proved that he was owner of the furniture in question, which he
had lent to the plaintiff under the terms of a written agreement, and
that the plaintiff had placed it in a house occupied by the bankrupt's
wife.
The agreement between Kitchen and the plaintiflT was called for, but
could not be produced for want of a stamp.
On the part of the defendants it was then contended that the plain-
tiff must be nonsuited ; that at the time of the taking he had neither
the property nor the possession of these goods, but only an alleged
interest under an agreement ; of which interest as the agreement could
not be produced, there was no evidence whatever ; that in order to
support trover, the plaintiff must prove property', special interest, or
actual possession, even though that possession should be tortious as
against a third person. A verdict having been found for the plaintiff.
Cross, Serjt., in the last term, upon the grounds urged at the trial,
obtained a rule nisi to set aside the verdict and enter a nonsuit.
Bosanquet, Serjt., now showed cause.
Cross, for the defendant.
Best, C. J. If this had been a case between Kitchen and the plain-
tiff the agreement ought to have been produced, because that alone
could decide tlie respective rights of those two parties ; but it appears
that Kitchen was to supply the plaintiff with furniture, and the ques-
tion is, whether, after he had obtained it, he had a sufficient interest to
maintain this action. The case which has been referred to [^Sutton v.
Buck, 2 Taunt. 302] confirms what I had esteemed to be the law upon
the subject, namely, that a simple bailee has a sufficient interest to sue
in trover. In that case a party, whose title was not completed by
registry or any regular conveyance, sued in trover to recover a ship of
which he had been possessed ; registry was absolutely necessary to give
him a title, and yet it was holden he might recover against a wrong-
BURTON V. HUGHES. 361
doer. Mansfield, C. J. sa3's, " Suppose a man gives me a ship, with-
out a regular compliance with the register act, and I fit it out at £500
expence, see what a doctrine it is that another man may take it from
me and I have no remedy. The only doubt on the case, I think, arises
from the register act, lest, if we should decide that any property passed
by the transfer, it should militate against that act, and I have never
been able entirely to free my mind from that doubt ; but at present I
think that on the circumstances, the plaintiff might maintain trover."
Lawrence, J. says, " There is enough property in this plaintiff to enable
him to maintain trover against a wrong-doer ; and although it has been
urged that the contract is void, with respect to the rights of third per-
sons, as well as between the parties, yet, as far as regards the posses-
sion, it is good as against all, except the vendor himself." It is
impossible to distinguish that case from the present ; but it has been
contended here that the defendants were not wrong-doers ; — certainly
not, in taking the effects of the bankrupts, but the}' are wrong-doers in
taking the effects of a third person ; they had no right to take goods
belonging to the plaintiff which were clearly distinguishable from any
the bankrupt ever had.
Park, J. If this had been a question between Kitchen and the
bankrupt, it might have borne a totally different complexion ; but
whether Mrs. Cross was to live in the house, or Burton, was altogether
immaterial as against the defendants, and the case which has been
referred to is much stronger than the present. There it was holden
i that possession of a ship under a transfer, void for non-compliance
with the register act, is a sufficient title in trover against a stranger for
parts of the ship being wrecked. Admitting that the defendants were
not wrong-doers, at all events they were strangers, and possession is
sufficient to enable a party to maintain trover against a stranger.
What Chambre, J. says, is very material. " The plaintiff has posses-
sion under the rightful owner, and that is sufficient against a person
having no color." (Here the plaintiff was let into possession by
Kitchen, the rightful owner.) "An agister, &c., a carrier, a factor,
may bring trover ; even a general bailment wiU suffice without being
made for any special purpose, but only for the benefit of the rightful
owner." It was immaterial how the plaintiff came into possession, but
as there was no dispute between him and Kitchen the verdict must
stand.
BuRROUGH, J. concurring, the rule was Discharged.
352 LUDDEN V. LEAVITT.
LUDDEN V. LEAVITT.
Supreme Judiciai Court of Massachusetts. 1812.
[Reported 9 Mass. 104.]
Trover for a yoke of oxen and a horse. The case came before the
court upon an agreed statement of facts, from which it appears that the
chattels mentioned in the declaration were originally the property of
the defendant, and being attached by one Blake, a deputy of the sheriff
of the county of Oxford, in which county this action originated, on a
writ in favor of one Blossom against Leavitt, this latter requested Lud-
den, his next neighbor, to become responsible to the officer for the
chattels attached, which he did by giving the officer a written receipt
for them, with a promise to deliver them on demand. After receiving
the cattle, the plaintiff observed to the defendant that they were neigh-
bors ; desired him, in case the cattle should get into his enclosure, that
he would keep them well, and not hurt them ; and promised to take
them away, and pay him the damage. These transactions took place
in the highway, near' the defendant's house, where the plaintiff then left
the cattle, and they continued in the defendant's possession, with the
plaintiff's knowledge, for several months ; after which the defendant
sold and delivered them to one Soule, in whose possession they con-
tinued, until the plaintiff caused them to be attached in the present
action, as the property of the defendant, who received of Soule a note
of hand for the estimated value of them. Within thirty days after
Blossom recovered his judgment against Leavitt, he delivered his exe-
cution to Blake, who demanded the cattle of Ludden. He, being un-
able to deliver them, paid Blake a sum of money in discharge of his
engagement.
If, upon the facts stated, the court should be of opinion that the
plaintiff was entitled to recover, the defendant was to be defaulted ;
otherwise the plaintiff was to become nonsuit ; and in either case judg-
ment to be rendered accordingly.
Greenleaf, for the plaintiff.
Dana, for the defendant.
Curia. It is unnecessary to go into an inquiry wiiether the juggling
between the plaintiff and defendant in the present action gave any
equitable claims to one against the other ; since there is a general
principle, which will decide this action and all others similar to it, of
which there are many in various parts of the Commonwealth.
It appears, from the agreement of the parties, that the only right
acquired by the plaintiff over the property in contest was by delivery
of it by the deputy sheriff to him for safe keeping. This did not con-
stitute him a bailiff of the property, but a mere servant of the sheriff,
POOLE V. SYMOKDS. 353
without any legal interest in the cattle. The sheriff should have
brought the action, as the special property unquestionably remained in
him, notwithstanding the delivery to the plaintiff. The general prop-
erty was in the defendant. The plaintiff, therefore, having neither the
general nor special property, cannot maintain trover. Whether the
circumstances and facts agreed do not give him a right to satisfaction
in some other form of action, needs not now be determined.
Flaintiff nonsuit}
POOLE V. SYMONDS.
Superior Court of Judicature or New Hampshire. 1818.
[Reported 1 JV. H. 289.]
Trover for a mare. The cause was tried here at the last May Term
upon the general issue, when it appeared in evidence that the mare
once belonged to one Ezra Flanders ; that Ziba Huntington, a deputy
sheriff, having an execution in his hands in favor of P. Noyes against
Flanders for about $30 debt and costs, on the 26th of June 1817,
seized the mare upon the execution ; that Flanders, being desirous to
procure time to raise money and pay the execution, and thereby pre-
vent the sale of the mare, requested Huntington to delay the sale, to
which Huntington, who had been directed hy Noyes to grant Flanders
any indulgence not inconsistent with the safetj' of the debt, assented ;
Huntington took the mare into his possession, and delivered her for
safe keeping to the plaintiff, who gave Huntington his promise in writ-
ing to return her on demand. Poole kept the mare until the 8th of
August 1817, when she was attached as the propertj' of Flanders by
the defendant, another deputy sheriff, on mesne process in favor of A.
W. Morse against Flanders, and is now held by the defendant by virtue
of that attachment. It did not appear that the mare was ever in the
possession of Flanders after Huntington seized her, nor that Hunting-
ton had ever advertised her for sale upon the execution.
The jury returned a verdict for the plaintiff, and assessed the dam-
ages at $30.
William Smith, for the defendant.
Gilbert and J. Bell, for the plaintiff.
Tlie opinion of the court was delivered by
Richardson, C. J. On behalf of the defendant it is contended, that
Poole has not a sufficient interest in the chattel in question to enable
1 In Warren v. Zeland, 9 Mass. 265, it was held that a deputy sheriffs bailee had
no such property as to maintain replevin. The court say, "We have heretofore
decided, that where an officer attaches personal chattels, and delivers them to a third
person for safe keeping, such third person has no such property in the chattels as will
enable him to maintain replevin for them. Ludden v. Leaviit. The plaintifif fails on
this ground."
23
354 POOLE V. SYMONDS.
him to maintain this action, and several decisions in the Supreme Court
of Massachusetts are relied upon as directly- in point ; and it is not to
be doubted, that, if those decisions were correct, this objection must
prevail. But the decisions in this State have been different. In the
case of Eastman v. Eastman, in the count}' of Hillsborough, December
Term, 1814, where the case was precisely like the present one, except
that the article in question had been taken upon mesne process in
Massachusetts, and the plaintiff had become answerable for it to an
ofBcer there, the cases in the ninth volume of the Massachusetts
Reports were cited by counsel and considered bj' the court ; but the
court (Smith, C. J., Livermore, and Ellis, justices) were clearlj- of opin-
ion, that the plaintiff might maintain the action. No authoritj'' is cited
bj' the court in Massachusetts in support of their decision ; nor is it
recollected that the determination here was supported by authorities.
We have therefore felt it to be our dutj' to reconsider the question, and
endeavor bj' a careful examination of the adjudged cases which bear
upon the point to ascertain what the real law of the case is.
No man can maintain trespass, trover, or replevin for personal chat-
tels without either an absolute or special property in the goods, and
also possession. But this possession may be either actual or construc-
tive. Thus an executor is by construction of law possessed of the goods
of the testator, and may maintain trover for them, although he has
never been in the actual possession of them. So where one had wreck
by prescription or grant, and another took it away, trespass or trover
lay before seizure. And if A. in London gives J. S. his goods in
York, and another takes them awaj' before J. S. obtains actual posses-
sion, J. S. may maintain trespass or trover. So if the owner deliver
his goods to a carrier or other bailee, although in such case another has
the actual possession, still the owner has by construction of law a suf-
ficient possession to maintain trover or trespass. This constructive
possession is not founded on the mere right of property, but upon the
right of possession. For if he, who has the absolute propertj', has not
also the right of possession, he can have no constructive possession.
Thus where the owner of goods let them for a year and they were taken
away by a third person within the j'ear, it has been held that he could
maintain neither trespass nor trover. This constructive possession in
one is by no means inconsistent with an actual possession in another.
In many cases either he who has tlie actual, or he who has the con-
structive possession, may maintain trespass, trover, or replevin ; but a
judgment in favor of one will be a bar to an action in favor of the
other. In some cases he who has only a special property, maj"^ have a
constructive possession. Thus a factor, to whom goods have been con-
signed, but have never been received, has such a constructive posses-
sion, that he can maintain trover.
A special property in goods may in some cases be founded upon
mere possession. Thus he who finds goods which have been lost
has a, special property in them, because possession is evidence of title.
POOLE V. BYMONDS. 355
Thus too where goods were stolen from a stage coach, it was held, that
they were well alleged in the indictment to be of the goods or chattels
of the stage coachman , although he was the mere servant of the owner
of the coach, and not answerable for the goods.
A special property may also be founded upon a responsibility for, or
an interest in, the possession of chattels. Thus he, to whom goods are
delivered merely to keep and redeliver upon request, has a special prop-
erty in them. 21 H. 7, 14 pi. 23, where it is said the point had often
been decided. Jones on Bailment, 112.
That a sheriff, who has seized goods upon mesne process, or upon
execution, an agister of cattle, a carrier, factor, consignee, pawnee,
trustee, &c. _have a special property, admits of no donbt. 11 H. 4, 17
pi. 39 ; 48 E. 3, 20 pi. 8 ; 2 Saund. 47 ; 6 John. 195 ; 12 John. 403.
But a mere servant has not a special propertj- in goods. Thus where
a servant was employed in a shop merel}' to sell goods, he was held
not to have a special property' in them. Nor has a shepherd, who is
emploj'ed to tend sheep, any property in the sheep. The reason is,
because the law considers the goods and the sheep as much in the
actual possession of the owner, as if the servant were not with them,
and the servant is not responsible for them. If the goods or the sheep
are taken away bj' a stranger, it is no injury to the servant, because he
has no interest in the possession. But if a servant undertakes specially
to be accountable for goods committed to his custody, he at once
exchanges the character of a mere servant for that of a bailee, and has
a special propert}-.
Thus it seems that an}' person, who has an absolute or a special
property, in a personal chattel, and a right to reduce it to immediate
possession, has in law such a possession as will enable him to maintain
an action to vindicate his right of possession, and this is what the law
denominates a constructive possession. And any individual, who has
a particular interest in the possession of such chattel, whether such
interest be founded upon the evidence of title which possession affords,
as in the case of a finder of lost goods, or on a right to the use of the
chattel, as in the case of a hirer, &c., or on some responsibility for it,
as in the case of a sheriff, &c. , has what the law denominates a special
property, and may maintain an action, whenever that special property
is unlawfully invaded.
It now remains to compare the facts in the case before us with these
principles. Huntington having seized the mare upon execution, de-
livered her to Poole and took his promise in writing to redeliver her on
demand. Did this contract impose any responsibility upon Poole?
That it did is not to be doubted^ The extent of his responsibility is
immaterial. It is enough that he was responsible for the safe-keeping
and redeliverj' of the mare. This according to the principles to be
deduced from the books gave him a sufficient interest in the possession
to enable him to maintain this action. But it is said that Huntington
had a special property in the mare ; that two persons cannot have
356 POOLE V. SYMONDS.
severally a special property in a chattel, and that therefore, Poolo
would not have a special property in her. It is for those who hold tliis
doctrine to show why two may not have severally, a special interest in
a chattel, as well as two maj' have severally, one the general, and the
other a special property in it at the same time. The reason is certainly
not very obvious. It is true, that there are but two species of prop-
erty in a chattel, absolute and special ; but it by no means follows from
this, that two cannot have severally a special property in it. There
can be but one absolute owner of a chattel, but it seems to lis very
clear that several persons maj- have, severally, a special interest in it.
Thus in the present case, when Huntington had seized the mare he
immediately became responsible both to the debtor and creditor, and
thereby acquired a special property' in her, and when he delivered her to
Poole for safe-keeping he did not part with his special property ; but
the moment that Poole became responsible for the safe-keeping and re-
delivery of her, he also acquired a special property in her, perfectly
subordinate to and not at all inconsistent with, the special property of
Huntington. If then the mare was unlawfull}' taken bj' the defendant,
it was an injury both to Huntington and to Poole, and either may main-
tain an action : but a judgment in favor of one will be a good bar to an
action by the other. Flanders had the general property, but not the
right of possession ; he could therefore maintain no action. Hunting-
ton's right of action was founded upon his special property and right of
possession ; Poole's upon his special property and actual possession.
If Poole is to be considered as a mere servant, he must be held respon-
sible to Huntington onlj' as a servant. For it would be repugnant to
every principle of justice to hold him responsible as a bailee while we
allow him only the rights of a mere servant. But a mere servant is not
responsible for goods forcibly taken from him, and if Poole is to be
considered as employed in that character it would seem to be a good
defence to any action Huntington may bring against liim, that the mare
was taken by force from him by the debtor or any other person without
his fault. But this would undoubtedly be contrary to the understanding
of the parties and might defeat the ver}' object of the contract. It is
therefore the opinion of the court that the plaintiff had a sufficient in-
terest in the mare to enable him to maintain this action, and thus this
objection cannot prevail.
But the defendant further contends, that Huntington having kept the
mare more than five weeks without taking any step to complete the
levy, the attachment so far as respected other creditors of Flanders was
dissolved, and cites the case of Caldwell v. Eaton [5 Mass. 399] in
support of this objection. Our statute relative to the seizure and sale of
goods upon executions is precisely like that of Massachusetts, and we
see no reason to doubt that the construction of their court upon the
statute in the case just mentioned is correct. We are not however pre-
pared to say that the sheriff can in no case with the consent of the
debtor keep the goods more than four days before sale without dissolv-
HAMPTOK V. BROWN. 357
ing the attachment with respect to other creditors, provided he proceeds
■within the four days to fix and advertise the time and place of sale.
When the sheriff seizes goods upon execution he should immediately
within the four days proceed to advertise them for sale, and should
sell them as soon after the expiration of the four days as can be con-
veniently done. If he does not do this, other creditors have a right
to consider the attachment as dissolved, and to take the goods from
his possession. The verdict in this case must therefore be set aside and
a new trial be granted.'
HAMPTON V. BROWN.
Supreme Court of North Carolina. 1851.
[Reported 13 Ired. 18.]
Appeal from the Superior Court of Law of Davidson County, at the
Fall Term, 1851, his Honor Judge Ellis presiding.
This is an action of trover for a horse, and was tried on the general
issue. The plaintiff was deputy sheriff, and had a fieri facias on a
judgment in favor of one Hoffman against one Home, by virtue of which
he seized the horse. He did not, however, take the horse out of the
possession of Home, and the latter sold it to the defendant a few days
afterwards, and, upon demand bj^ the plaintiff, the defendant refused
to give the horse up. The counsel for the defendant insisted that the
action would not lie, because the plaintiff did not keep the possession
of the horse, but left it with Home, from whom the defendant purchased ;
and, also, because the defendant, if liable at all, was liable at the suit
of the sheriff, and not of the plaintiff. But the court instructed the jury
that upon these facts the plaintiff was entitled to recover ; and after a
verdict and judgment against him, the defendant appealed.
Gilmer and Miller, for the plaintiff.
No counsel for the defendant.
RuFFiN, C. J. Although a sheriff may have trover, or trespass for
goods seized in execution, which are taken by another, 3-et his deputy
cannot. The reason whj' the sherifl'has the action is, that the debtor
is discharged and the sheriff becomes liable to the value of tlie goods,
and therefore the law vests the property in him. Wilbraham v. Snow,
2 Saund. 47. But the law charges the deputy with no dutj' to the cred-
itor. If he make defaults in serving the execution, he cannot be sued
for it, hut his principal only. On the contrarj^, when he takes goods on
execution the sheriff becomes answerable for their value to the creditoi',
and hence the property' vests in the sheriff and not in the deputj-. It
was suggested that the deputy held as the bailee of the sheriff, and thus
1 Thayer v. Hutchinson, 13 Vt. 504 accord. So in a case of replevin. Miller v.
Adsit, 16 Wend. 335.
358 HAMPTON V. BEOWN.
had a special property. He, however, is not a bailee, in the sense of
having a possession of his own, but he is merely the servant of his su-
perior and holds for him. The plaintiff, therefore, has no property in
the horse, and cannot have this action.
Pee Ctjeiam. Judgment reversed, and venire de novo.^
1 "It has been supposed, to be sure, that a 'special property' was necessary in
order to maintain replevin or trover. But modern cases establish that possession is
sufficient, and an examination of the sources of our law proves that special property
did not mean anything more. It has been shown that the procedure for the recovery
of chattels lost against one's will, described by Bractou, like its predecessor on the
Continent, was based upon possession. Yet Braeton, in the very passage in which he
expressly makes that statement, uses a phrase which, but for the explanation, would
seem to import ownership, — Poterit rem simm petere. The writs of later days used th'e
same language, and when it was objected, as it frequently was, to a suit by a bailee for
a taking of bona et catalla sua, that it should have been for bona in custodia sua ex-
istentia, it was always answered that those in the Chancery would not frame a writ in
that form.
" The substance of the matter was, that goods in a man's possession were his (sua),
within the meaning of the writ. But it was very natural to attempt a formal recon-
ciliation between that formal word and the fact by saying that, although the plaintiff
had not the general property in the chattels, yet he had a proper4;y as against strangers,
or a special property. This took place, and, curiously enough, two of the earliest in-
stances in which I have found the latter phrase used are cases of a depositary, and a bor-
rower. Brooke says that a wrongful taker ' has title against all but the true owner.'
In this sense the special property was better described as a ' possessory property,' as it
was, in deciding that, in an indictmeut for larceny, the property could be laid in the
bailee who suffered the trespass.
" I have explained the inversion by which a bailee's right of action against third
persons was supposed to stand on his responsibility over, although in truth it was the
foundation of that responsibility, and arose simply from his possession. The step was
short, from saying that bailees could sue because they were answerable over-, to saying
that they had the property as against strangers, or a special property, because they were
answerable over, and next that they could sue because they had a special property and
were answerable over. And thus the notion that special property meant something
more than possession, and was a requisite to maintaining an action, got into the law.
" The error was made easier by a different use of the phrase in a different connection.
A bailee was in general answerable foi' goods stolen from his custody, whether he had a
lien or not. But the law was otherwise as to a pledgee, if he had kept the pledge with
his own goods, and the two were stolen together. This distinction was accounted for,
at least in Lord Coke's time, by saying that the pledge was, in a sense, the pledgee's
own, that he had a special property in it, and thus that the ordinary relation of bail-
ment did not exist, or that the undertaking was only to keep as his own goods. The
same expression was used in discnssing the pledgee's right to assign the pledge. In
this sense the term applied only to pledges, but its significance in a particular connec-
tion was easily carried over into the others in which it was used, with the result that
the special property which was requisite to maintain the possessory actions was sup-
posed to mean a qualified interest in the goods." Holmes, Com. Law, 242-244.
" The property in the goods is that which most usually draws to it the right of pos-
session; and the right to maintain an action of trover is therefore often said to depend
on the plaintiff's property in the good's ; the right of immediate possession is also some-
times called itself a special kind of property; Rogers v. Kennay, 9 Q. B. 592; but
these expressions should not mislead the student. The action of trover tries only the
right to the immediate possession, which, as we shall now see, may exist apart from the
property in the goods. . . . The action of trover tries the riglit of possession, and may
HAMPTON V. BEOWN. 359
or may not determine the property. For strange as it may appear, there is no action
in the law of England by which the property either in goods or lands is alone decided."
"Wms. Pers. Prop. (12th ed.) 31, 32.
See also Dicey on Parties, 346, 347, 352, 353, 358-360.
MEA.SURE OF Damages in Action by Bailor or Bailee. — " He who hath a,
special property of the goods at a certain time shall have a general action of trespass
against him who hath the general property, and upon the evidence damages shall be
mitigated ; but clearly, the bailee, or he who hath a special property, shall have a
general action of trespass against a stranger, and shall recover all in damages, because
that he is chargeable over. See 21 Hen. 7, 14 b. ace." Eeydon and Smith's Case,
13 Co. 67, 69.
CHESLEY V. ST. CLAIR.
Superior Court of Judicature of New Hampshire.
lEeportedlN. fil 189.]
This was an action of trover for a horse, saddle, and bridle. The cause was tried
here at the last term upon the general issue. The plaintiff, to maintain the issue on his
part, proved that one Benjamin Hodgdon had bailed the articles mentioned in the writ,
to him to ride to Dover. The defendant denied that Hodgdon had any interest in the
article, and introduced evidence to show that the property was his own. Upon this
the plaintiff called Hodgdon as a witness to prove that he, Hodgdon, was the lawful
owner of the property. The defendant objected to the admission of Hodgdon as a
witness on the ground that he, having bailed the property to the plaintiff, was inter-
ested in the event of the suit, but he was admitted, and the jury returned a verdict for
the plaintiff.
J. Mason, for the defendant.
Ichabod Bartlett and James BartUtt, for the plaintiff.
Eichardson, C. J. The question is, whether in an action of trover, brought by the
bailee of a chattel against a stranger, the bailor is a competent witness for the bailee
to prove the general property in himself ? There is such a privity between the bailor
and the bailee of chattels that a recovery by one in an action of trespass or trover against
a stranger for taking the goods is, in general, a bar to an action by the other. And
a recovery by the bailee in trespass or trover against a third person operates as a trans-
fer of the property or chattel to such third person. Solutio pretii emptionis loco habetur.
It seems to follow that whatever may be recovered in such a suit by a bailee must be
recovered to the use of the bailor, as much as if it were recovered upon a contract of
sale of the chattel by the bailee with the assent of the bailor. And it has been held
that a verdict in favor of the bailee may be used in evidence in an action by the bailor
against the bailee. If this be law, it is clear that Hodgdon was an incompetent
witness.
It is very clear that a recovery by the bailee betters the situation of the bailor be-
cause it settles the question of property, and this has been held sufficient to exclude a
witness.
There may be cases, however, in which the bailor will be a competent witness for the
bailee. Thus if tbe goods are wrongfully taken from the bailee, and he obtains posses-
sion of them again, or if the bailor releases the property to the trespasser, and the
bailee bring trespass to recover the damages he may have sustained by being deprived
of the possession, a,s it seems he may, in such case there seems to be no reason why the
bailor should not be a witness for the bailee, for it is clear that he can have no interest
in the recovery.
In the present case as the object of the suit is to recover the value of the property,
and as the only question between the parties is, whether the property belonged to Hodg-
don or the defendant, we are of opinion that Hodgdon was an incompetent witness for
the plaintiff and that the verdict must be set aside, and a new trial granted.
See lAttU v. Fussett, 34 Me. 545 ; WhUe v. Webb, 15 Conn. 302, 305 : SarTcer v.
Dement, 9 Gill, 7; LyU v. Barker, 5 Binn. 457.
860 MTJLGKAVB V. OGDEN.
SECTION III.
FINDING.
A. Mights of Finder against Owner.
MULGKAVE v. OGDEN.
Queen's Bench. 1591.
[Eepmied Cro. Eliz. 219.]
Action snr trover of twenty barrels of butter ; and counts that lie
tarn negligenter custodivit that they became of little value. Upon this
it was demurred, and held by all the justices, that no action upon the
case lieth in this case ; for no law compelleth him that finds a thing
to keep it safely ; as if a man finds a garment, and suffers it to be
moth-eaten ; or if one find a horse and giveth it no sustenance ; but if
a man find a thing and useth it, he is answerable, for it is conversion.
So if he of purpose misuseth it, as if one finds paper, and puts it into
the water, &c. ; but for negligent keeping no law punisheth him. Et
ac^ournatur.^
BINSTEAD V. BUCK.
Common Pleas. 1776.
[BepoHed 2 TV. Bl. 1117.]
Trover for a pointing dog. The plaintiff proved the dog to be his
property, and that it was found at the defendant's house twelve months
after it was lost. The defendant said the dog stra3'ed there casnallj',
and demanded 20s. for twenty weeks' keep, before he would deliver up
the dog. A verdict for the plaintiff, subject to the opinion of the court,
whether this refusal amounted to a conversion of the dog?
Foster, for the defendant, declined arguing the question, and so
Postea to the plaintiff .
1 " If a man Andes goods, an action upon the case lieth, for his ill and negligent
keeping of them, hut no trover and conversion, because this is but a nan fesans. Per
Coke, C. J., in Isaack v. Clark," 2 Bulst. 306, 312 (1615).
NICHOLSON V. CHAPMAN. 361
NICHOLSON V. CHAPMAN.
Common Pleas. 1793.
[Beported 2 S. Bl. 254.]
This was an action of trover brought under the following circum-
stances : A considerable quantity of timber, the propertj' of the plain-
titr, was placed in a dock on the banks of the Thames, but the ropes
with which it was fastened accidentally getting loose it floated, and was
carried by the tide as far as Putney, and there left at low water upon
a towing-path within the manor of Wimbledon. Being found in this
situation, the bailiff of the manor, one Fairchild, employed the defend-
ant Chapman to remove the timber with his wagon from the towing-
path, which it obstructed, to a place of safety at a little distance. This
Chapman accordingly did, and when the plaintiflT sent to demand the
timber to be restored to him, refused to deliver it up, unless £6 10s. Ad.
were paid, which he claimed partly by way of salvage, as a customary
right due to the lord of the manor, and partly as a recompense to him-
self for the trouble of drawing the timber from the water side to the
place where it then lay ; but this demand the plaintiff refused to com-
pl}' with, and did not tender any other sum. The bailiff acted under
the following order, made at a court leet of the lord of the manor in
May, 1792 : " Complaint having been made to this court of the great
detriment arising to the tenants, &c., within this manor from timber
having been left by the tide upon the towing-path within the same ; it
is ordered that Francis Fairchild, the bailiff of this manor, do under the
authority' of this court, remove the same to a proper place of safety until
the lord or his steward shall give proper directions for the benefit of the
particular owner or proprietor thereof." But no such customary right
as was set up in the lord, was established at the trial; the Lord Chief
Justice therefore directed the jur}' to ascertain what they thought a
proper compensation for the carriage of the timber by the defendant as
above stated. They answered that two guineas were a reasonable sum
for that purpose, upon which it was agreed that a verdict should be
found for the plaintiff for the value of the timber, subject to the opinion
of the court on the question. Whether there ought not to have been a
tender of two guineas before action brought ? if the court should be of
that opinion, the verdict to be entered for the defendant, he under-
taking to deliver up the timber on payment of two guineas ; but if they
should be of a contrary opinion, then the verdict to be entered for the
plaintiff for the value.
Adair and Runnington, Serjts., on part of the plaintiff.
Bond and Clayton, Serjts., argued on the other side.
Lord Chief Justice Eyre. The only difficulty that remained with
any of us, after we had heard this case argued, was upon the question.
Whether this transaction could be assimilated to salvage ? The taking
362 NICHOLSON V. CHAPMAN.
care of goods left by the tide upon the banks of a navigable river, com-
municating with the sea, may in a vulgar sense be said to be salvage ;
but it has none of the qualities of salvage, in respect of which the laws
of all civilized nations, the laws of Oleron, and our own laws in partic-
ular, have provided that a recompense is due for the saving, and that
our law has also provided that this recompense should be a lien upon
the goods which have been saved. Goods carried by sea are neces-
sarily and unavoidably exposed to the perils which storms, tempests,
and accidents (far bej'ond the reach of human foresight to prevent), are
hourlj' creating, and against which it too often happens that the great-
est diligence and the most strenuous exertions of the mariner cannot
protect them. When goods are thus in imminent danger of being lost,
it is most frequently at the hazard of the lives of those who save them,
that they are saved. Principles of public policy dictate to civilized
and commercial countries, not only the propriety, but even the abso-
lute necessit}' of establishing a liberal recompense for the encourage-
ment of those who engage in so dangerous a service.
Such are the grounds upon which salvage stands ; thej' are recog-
nized by Lord Chief Justice Holt in the case which has been cited from
Lord Raymond and Salkeld. 1 Ld. Raym. 393 ; Salk. 654, pi. 2. But
see how very unlike this salvage is to the case now under considera-
tion. In a navigable river within the flux and reflux of the tide, but at
a great distance from the sea, pieces of timber lie moored together in
convenient places ; carelessness, a slight accident, perhaps a mischiev-
ous boy, casts off the mooring rope, and the timber floats from the
place where it was deposited, till the tide falls, and leaves it again
somewhere upon the banks of the river. Such an event as this giVes
the owner the trouble of employing a man, sometimes for an hour, and
sometimes for a daj', in looking after it till he finds it, and brings it
back again to the place from whence it floated. If it happens to do
any damage, the owner must paj' for that damage ; it will be imput-
able to him as carelessness, that his timber in floating from its moor-
ings is found damage feasant, if that should happen to be the case.
But this is not a case of damage feasance ; the timber is found lying
upon the banks of the river, and is taken into the possession and under
the care of the defendant without any extraordinar}' exertions, without
the least personal risk, and in truth with verj' little trouble. It is
therefore a case of mere finding and taking care of the thing found (I
am willing to agree) for the owner. This is a good office, and meri-
torious, at least in the moral sense of the word, and certainly entitles
the party to some reasonable recompense from the bounty, if not from
the justice of the owner ; and of which, if it were refused, a court of
justice would go as far as it could go towards enforcing the payment.^
1 It seems probable that in such a case, if any action could he maintained, it would
be an action of assumpsit for work and labor, in which the court would imply a special
instance and request, as well as a promise. On a quantum, meruit, the reasonable ex-
tent of the recompense would come properly before a jury. Eep.
NICHOLSON V. CHAPMAN. 363
So it would if a horse had strayed, and was not taken as an estray by the
lord under his manorial rights, but was taken up by some good-natured
man and taken care of by him, till at some trouble, and perhaps at
some expense, he had found out the owner. So it would be in every
other case of finding that can be stated (the claim to the recompense
differing in degree, but not in principle) ; which therefore reduces the
merits of this case to this short question, Whether every man who finds
the property of another which happens to have been lost or mislaid,
and voluntarily puts himself to some trouble and expense to preserve
the thing and to find out the owner, has a lien upon it for the casual,
fluctuating, and uncertain amount of the recompense which he ma3-
reasonablj- deserve ? It is enough to saj' that there is no instance of
such a lien having been claimed and allowed ; the case of a pointer
dog, 2 Black. 1117, was a case in which it was claimed and disallowed,
and it was thought too clear a case to bear an argument. Principles
of public policy and commercial necessity support the lien in the case
of salvage. Not only public policy and commercial necessity do not
require that it should be established in this case, but very great incon-
venience maj' be apprehended from it if it were to be established. The
owners of this kind of property, and the owners of craft upon the river,
which lie in many places moored together in large numbers, would not
only have common accidents from the carelessness of their servants to
guard against, but also the wilful attempts of ill-designing people to
turn their floats and vessels adrift in order that they might be paid for
finding them. I mentioned in the course of the cause another great
inconvenience, namelj', the situation in which an owner, seeking to re-
cover his propertj' in an action of trover, will be placed, if he is at his
peril to make a tender of a suflJcient recompense before he brings his
action ; such an owner must always pay too much, because he has no
means of knowing exactly how much he ought to pay, and because he
must tender enough. I know there are cases in which the owner of
property must submit to this inconvenience ; but the number of them
ought not to be increased ; perhaps it is better for the public that these
voluntary acts of benevolence from one man to another, which are
charities and moral duties, but not legal duties, should depend alto-
gether for their reward upon the moral duty of gratitude. But at any
rate, it is fitting that he who claims the reward in such case should
take upon himself the burthen of proving the nature of the service
which he has performed, and the quantum of the recompense which he
demands, instead of throwing it upon the owner to estimate it for him,
at the hazard of being nonsuited in an action of trover.
Judgment for the plaintiff}
1 See Seeder v. Anderson, i Daua, 193 ; Preston v. Neale, 12 Gray, 222 ; Chase v.
Corcoran, 106 Mass. 286.
364 WENTWOETH V. DAY.
WENTWORTH v. DAY.
SuPEEME Judicial Coukt of Massachusetts. 1841.
[Reported 3 Met. 352.]
This action, which was trover for a watch, was submitted to the
court on the following statement of facts : —
The plaintiff lost the watch mentioned in his declaration, about the
middle of October, 1839, in Bradford, in the county of Essex, and put
the following advertisement into the " Essex Banner," a newspaper
published at Haverhill, in said county: "Twenty dollars reward.
Lost, upon the road from Haverhill to Brighton, about two miles from
Haverhill Bridge, a gold lever watch. Whoever will return it to this
office shall receive the above reward. Francis Wentworth. Oct. 12."
The watch was found, a few days afterwards, by a minor son of the
defendant, who delivered it to the defendant, and he took the custody
of it for his son, and very soon afterwards left it at the printing office
of the " Banner," in the care of the printer, with directions to deliver
it to the owner, on his paying the twenty dollars reward.
In the month of January, 1840, the plaintiff returned to Haverhill,
and on his refusing to pay the twenty dollars, the defendant resumed
the possession of the watch, and while it was thus in his possession, the
plaintiff demanded it of him, but lie refused to deliver it, unless the
plaintiff would pay him the twenty dollars for his son. The plaintiff re-
fused to do this, but said he would pay ten dollars. The defendant re-
fused to deliver the watch, and the plaintiff brought this action.
£J. Ames, for the plaintiff.
Homer, for the defendant.
Shaw, C. J. Although the finder of lost property on land has no
right of salvage, at common law, j^et if the loser of property*, in order
to stimulate the vigilance and industry of others to find and restore it,
will make an express promise of a reward, either to a particular person,
or in general terms to any one who will return it to him, and, in conse-
quence of such offer, one does return it to him, it is a valid contract.
Until something is done in pursuance of it, it is a mere offer, and may
be revoked. But if, before it is retracted, one so far complies with it
as to perform the labor for which the reward is stipulated, it is the ordi-
nary case of labor done on request, and becomes a contract to pay the
stipulated compensation. It is not a gratuitous service, because some-
thing is done which the party was not bound to do, and without such
offer might not have done. Symtnes v. Frazier, 6 Mass. 344.
But the more material question is, whether, under this offer of reward,
the finder of the defendant's watch, or the father, who acted in his be-
half and stood in his right, had a lien on the watch, so that he was not
bound to deliver it till the reward was paid.
WENTWOETH V. DAY. 365
A lien may be given by express contract, or it may be implied from
general custom, from the usage of particular trades, from the course of
dealing between the particular parties to the transaction, or from the
relations in which they stand, as principal and factor. Green v. Farmer,
4 Bur. 2221. In Kirkman v. Shawcross, 6 T. E. 14, it was held, that
where certain dyers gave general notice to their customers, that on all
goods received for dj-eing, after such notice, they would have a lien for
their general balance, a customer dealing with such dyers, after notice
of such terms, must be taken to have assented to them, and thereby
the goods became charged with such lien, by force of the mutual agree-
ment. But in many cases the law implies a lien, from the presumed in-
tention of the parties, arising from the relation in which they stand.
Take the ordinary case of the sale of goods, in a shop or other place,
where the parties are strangers to each other. Bj- the contract of sale
the property is considered as vesting in the vendee ; but the vendor has
a lien on the propertj' for the price, and is not bound to deliver it till
the price is paid. Nor is the purchaser bound to paj' till the goods
are delivered. They are acts to be done mutually and simultaneouslj'.
This is founded on the legal presumption that it was not the intention
of the vendor to part with his goods, till the price should be paid, nor
that of the purchaser to part with his money till he should receive the
goods. But this presumption may be controlled bj- evidence proving a
different intent, as that the buyer shall have credit, or the seller be paid
in something other than monej'.
In the present case, the duty of the plaintiff to pay the stipulated re-
ward arises from the promise contained in his advertisement. That
promise was, that whoever should return his watch to the printing office
should receive twenty dollars. No other time or place of payment was
fixed. The natural, if not the necessary implication, is that the acts of
performance were to be mutual and simultaneous, — the one to give
up the watch, on payment of the reward ; the other to pay the reward,
on receiving the watch. Such being, in our judgment, the nature and
legal effect of this contract, we are of opinion that the defendant, on
being ready to deliver up the watch, had a right to receive the reward,
in behalf of himself and his son, and was not bound to surrender the
actual possession of it, till the reward was paid ; and therefore a refusal
to deliver it, without such payment, was not a conversion.
It was competent for the loser of the watch to propose his own terms.
He might have promised to pay the reward at a given time after the
watch should have been restored, or in any other manner inconsistent
with a lien for the reward on the article restored ; in which case, no
such lien would exist. The person restoring the watch would look only
to the personal responsibility of the advertiser. It was for the latter to
consider whether such an ofi"er would be equally efficacious in bringing
back his lost property, as an offer of a reward secured by a pledge of
the property itself; or whether, on the contrary, it would not afford
to the finder a strong temptation to conceal it. "With these motives
366 WILSON V. GTJYTON.
before him, he made an offer to pay the reward on the restoration of the
watch ; and his subsequent attempt to get the watch, without perform-
ing his promise, is equally inconsistent with the rules of law and the
dictates of justice.
Tlie circumstance, in this case, that the watch was found by the de-
fendant's son, and by him delivered to his father, makes no difference.
Had the promise been to pay the finder, and the suit were brought to
recover the reward, it would present a different question. Here the son
delivered the watch to the father, and authorized the father to receive
the reward for him. If the son had a right to detain it, the father had
the same right, and his refusal to deliver it to the owner, without pay-
ment of the reward, was no conversion.
Judgment for the defendant?-
WILSON V. GUYTON.
Court op Appeals of Maryxand. 1849.
[Reported 8 Gill, 213.]
Appeal from Harford Count}' Court.
This was an action of replevin, instituted hj the appellee, for the
recovery of a horse which had strayed from the possession of the
plaintiff, and had been taken up by one WiUiam H. Pearce, and was
retained by the defendant as Pearce's agent. The plea was non cepit.
At the trial, the defendant proved that the plaintiff was the owner of
the horse in question, and that having lost said horse in the month of
Jul}^ 1847, the plaintiff offered a liberal reward, by advertisement, to
anjr one who would take up said horse, and deliver him to the plaintiff ;
and that said Pearce, after said advertisement, and in consequence
thereof, took up said horse, and offered to deliver him to the plaintiff,
upon said plaintiff's paying $3, as the reward for such taking up. He
also further proved, that plaintiff admitted that the sum of $3 was a
reasonable reward, and within the terms of the advertisement, and that
defendant held said horse at the time the writ was issued in this
case, as the agent of said Pearce. The defendant then prayed the
court to direct the jurj', " that unless the plaintiff proved, or offered
proof that he had, before the institution of this suit, paid the said $3,
the reward aforesaid, or tendered or offered to paj' the same, the said
plaintiff is not entitled to recover." Which direction the court {Archer,
C. J., and Purviance, A. J.) refused to give, but instructed the jury,
that the said William H. Pearce had no right to retain said horse till
the said reward was paid. The defendant excepted, and the verdict
and judgment being against him, appealed to this court.
1 Cuw,mings v. Gann, 52 Pa. 484, aceord.
■WILS«N V. GUYTON. 367
The cause was argued before Dorsey, C. J., Chambers, Spence,
Magruuer, Martin, and Frick, JJ.
By Otho Scott, for the appellant, and
By IT. TV. Archer, for the appellee.
DoRSEr, C. J. , delivered the opinion of this court. The doctrine of
lien is more favored now than formerly ; and it is now recognized as a
general principle, that wherever the party has, by his labor or skill, &c.,
improved the value of property placed in his possession, he has a lien
upon it until paid. And liens have been implied when, from the
nature of the transaction, the owner of the property is assumed as hav-
ing designed to create them, or when it can be fairly inferred, from
circumstances, that it was the understanding of the parties that they
should exist. The existence of liens has also been sustained where
they contributed to promote public policy and convenience. If any
article of personal property has been lost, or strayed away, or escaped
from its owner, and he offers a certain reward, payable to him who
shall recover and deliver it back to his possession, it is but a just
exposition of his offer, that he did not expect that he who had expended
his time and money in the pursuit and recover}' of the lost or escaped
propert}', would restore it to him, but upon the payment of the proffered
reward, and that as securitj^ for this, he was to remain in possession of
the same until its restoration to its owner, and then the payment of the
reward was to be a simultaneous act. It is no forced construction of
his act, to say that he designed to be so understood by him who should
become entitled to the reward. It is, consequently, a lien created by
contract. It is for the interest of propert}' holders so to regard it. It
doubles their prospect of a restoration to their property. To strangers
it is everj'thing ; for few, indeed, would spend their time and money,
and incur the risks incident to bailment, but from a belief in the exis-
tence of such a lien. Public convenience, sound policj', and all the
analogies of the law, lend their aid in support of such a principle. Nor
are we without an express authority upon this subject. In Wentieorth
V. Day, 3 Metcalf, 352, the Supreme Court of Massachusetts decided,
' ' that a finder of lost property', for the restoration of which the owner
has offered a reward, has a lien on the propert}', and may retain pos-
session of it, if, on his offer to restore it, the owner refuses to pay the
reward."
But, in the case before us, there is no ground for the implication of
such a lien from the compact of the parties. There was no fixed or
certain reward offered by the owner, to be paid on the delivery of his
property. His ofl'er was to pay a " liberal reward." Who was to be
the arbiter of the liberality of the oflfered reward ? It cannot be supposed
that the owner, by his ofifer, designed to constitute the recoverer of his
property the exclusive judge of the amount to be paid him as a reward.
And it is equally unreasonable and unjust, to say that the owner should
be such exclusive judge. In the event of a diflference between them,
upon the subject, the amount to be paid must be ascertained by the
368 ARMORY V. DELAMIRIE.
judgment of the appropriate judicial tribunal. This would involve the
delaj's incident to litigation, and it would be a gross perversion of the
intention of the owner to infer, from his offered reward, an agreement
on his pai't, that he was to be kept out of the possession of his propert}'
till all the delaj's of litigation were exhausted. To the bailee thus in
possession of property, such a lien would rarely be valuable, except as
a means of oppression and extortion ; and, therefore, the law will
never infer its existence either from the agreement of the parties, or in
furtherance of public convenience or policy.
Judgment affirmed.
B. nights of Finder against Third Persons.
ARMORY V. DELAMIRIE.
Nisi Peics, Before Peatt, C. J. 1722.
[Reported 1 Stra. 505.]
The plaintiff being a chimney sweeper's boy found a jewel and car-
ried it to the defendant's shop (who was a goldsmith) to know what it
was, and delivered it into the hands of the apprentice, who under pre-
tence of weighing it, took out the stones, and calling to the master to
let him know it came to three halfpence, the master offered the boy the
money, who refused to take it, and insisted to have the thing again ;
whereupon the apprentice delivered him back the socket without the
stones. And now in trover against the master these points were
ruled.
1. That the finder of a jewel, though he does not by such finding ac-
quire an absolute property or ownership, 3'et he has such a property as
will enable him to keep it against all but the rightful owner, and con-
sequently may maintain trover.
2. That the action well lay against the master who gives a credit to
his apprentice, and is answerable for his neglect. Jones v. Hart, Salk.
441 ; Cor. Holt, C. J. ; Mead v. JIamond, 1 Stra. 505 ; Grammar v.
Mxon, lb. 653.
3. As to the value of the jewel, several of the trade were examined to
prove what a jewel of the finest water that would fit the socket would
be worth ; and the Chief Justice directed the jury, that unless the de-
fendant did produce the jewel, and show it not to be of the finest water,
they should presume the strongest against him, and make the value of
the best jewels the measure of their damages ; which they accordingly
did.
BEIDGES V. HAWKES WORTH. 869
BRIDGES V. HAWKESWOETH.
Queen's Bench. 1851.
[Beptrted 15 Jur. 1079.]
This was an appeal against a decision of the judge of the County
Court of Westminster. The following facts appeared upon the case
stated and signed bj- the judge : In October, 1847, the plaintiff, who
was town traveller to Messrs. Rae & Co., called at Messrs. Byfleld &
Hawkesworth's on business, as he was in the habit of doing, and as he
was leaving the shop he picked up a small parcel which was lying upon
the floor. He immediately showed it to the shopman, and opened it in
his presence, when it was found to consist of a quantity of Bank of
England notes, to the amount of £65. The defendant, who was a part-
ner in the firm of Byfield & Hawkesworth, was then called, and the
plaintiff told him he had found the notes, and asked the defendant to
keep them until the owner appeared to claim them. The defendant
caused advertisements to be inserted in the Times newspaper, to the
effect that bank notes had been found, and the owner might have them
on giving a proper description and paj-ing the expenses. No person
having appeared to claim them, and three years liaving elapsed since
they were found, the plaintiff applied to the defendant to have the
notes returned to him, and offered to paj- the expenses of the advertise-
ments, and to give an indemnitj-. The defendant had refused to deliver
them up to the plaintiff, and an action had been brought in the County
Court of Westminster in consequence of that refusal. The case also
found that the plaintiff, at the time he delivered over the notes to the
defendant, did not intend to divest himself of anj- title that he might
have to them. The judge had, upon these facts, decided that the
defendant was entitled to the custody of the notes as against the plain-
tiff, and gave judgment in his favor aceordinglj'. It was to review
this decision that the present appeal had been brought.
Gray {Heath with him) for the appellant. The plaintiff, by finding
the notes in question, acquired a title to them against the whole world,
except the true owner. Armory v. Delamirie, 1 Str. 504 ; 1 Smith's
L. C. 151 (6th ed.) 315. Having found them, he delivered them to the
defendant for a special purpose only, and never intended to part with
his property therein. The judge appears to have decided the case upon
the ground that they were found in the house of another ; but that
makes no difference. If they had been found in the highway they
would have been the property of the finder, except as against the true
owner ; and yet the highway is the private property of some one, sub-
ject to the right of the public to pass over it. Suppose thej- had been
found in the yard of the defendant, then they could be lawfully retained
as against him ; he might have had an action of trespass for entering
24
870 BRIDGES V. HAWKESWOETH.
the 3'ard, but not anj' action founded on the possession of the goods.
How did the defendant acquire any property therein ? The mere fact
of the notes having been dropped on the floor of his shop did not give
it to him. [Patteson, J. If one enters a cab, and takes away a par-
cel left there by a former passenger, the property might be laid in the
cab-owner in an indictment for the felon^'. Wightman, J. If the notes
had been left on a chair, and the customer coming in had merel^^ lifted
them off, would they have become his property ? The^- were not lost
in the ordinary sense of the term, but were there in conspectu omnium.
You say that any one taking possession of them, although they were in
one sense in the possession of the shopkeeper, acquires a title to them,
except as against the true owner.] Yes. Perhaps an indictment
would lie for stealing the goods of a person unknown ; but here the
owner of the shop, not having taken possession, could not lay the prop-
erty in himself. [Patteson, J. Is there anj- instance of indicting a
person for stealing the goods of a person unknown ? If the owner be
unknown, could felony be committed in respect of the goods? There
might probablj' be an indictment for a robber3' of a person unknown.]
The man who first picked up the notes would be the finder, even
although the owner of the shop should first see them. Puffendorf, lib.
4, c. 6, § 8, shows that the bare seeing, or the knowing where lost
goods are, is not sufficient. [Wightman, J. You must go further,
and show that their being in the shop of the defendant makes no difi'er-
ence. Blackstone saj's, that whatever moveables are found on the face
of the earth belong to the first occupier. J That would be so where no
owner appears ; it would be the same, as between the finder and the
rest of the world, as if there were no owner. Blackstone (1 Com. 296),
speaking of treasure trove, says, "Such as is casually lost or unclaimed
still remains the right of the fortunate finder." That was an express
authority for the general rule ; and if the other side contended that the
notes being found in a man's house made anj' difference, it lay upon
them to establish that proposition. [Patteson, J. In Puffendorf,
lib. 4, c. 6, § 13, it is said, " He who hath hidden treasure in another's
ground, without acquainting the lord of the soil, is judged to have
slipped his opportunity ; . . . but if the ground belongs to another,
then the finder seems engaged bj' his conscience to inquire, at least
indirectl}', of him concerning the matter, because, witliout this, it cannot
certainly be known but that the money was laid there by the master of
the place only for the greater security, or by some person else with his
privity and consent." From which it would appear, that if it were laid
there without the consent or privit}' of the owner of the soil, he would
not be entitled to it. These notes were certainly not intrusted to the
defendant — they were lost.] By the law of nature, a finder acquires
property by taking possession of the goods found, and those cases in
which the propert}' is given to the State or to particular individuals are
exceptions upon the law of nature. In Reg. v. Kerr, 8 Car. & P. 176,
it was held, "that a servant who had found some bank notes in her
BRIDGES V. HAWKESWOETH. 371
master's house ought to have inquired of him whether thej- were his or
not." Those were her master's notes, which brought the facts within
the rule laid down bj-Puffendorf where the owner of property is known.
It therefore does not apply to this case. But if the other side were
right, the servant would be equally guilty of felony whether they were
her master's notes or not. Thej- must put it upon the ground of a
special propert}- in the owner of the house ; and if so, the servant
would be guilty of felony whether she made inquiry as to the true owner
or not : but a finder is not guilty of larceny where he has no reasonable
opportunity of knowing the owner, because the articles found belong
to him, whatever may be liis intention at the time of taking them.
[Patteson, J. If goods were found in an inn, it would be different.
There a special properly is vested in the innkeeper by reason of his
liability. In Merry v. Green, 7 M. & W. 623, it was held, that there
might be property in a person of goods, although he did not know of
its existence. There a bureau was bought at an auction, and a purse
of money was found in a secret drawer therein ; and it was held that it
belonged to the seller, although he knew nothing of it. That and
Cartwright v. Green, 8 Ves. 405, appear to be the nearest to tiie
present case.] In Merry v. Green, the money was not lost — it was
entirely inclosed in a chattel belonging to the seller ; here tlie loss and
the finding are stated in the case. The defendant, to have any right,
must have indicated his intention to take possession before the other
did. If the shopkeeper had placed it on one side until he found the
owner, it would have been different ; but here the plaintiff is the finder.
As to the notes being found in the shop, that reduces it merelj' to a
question of degree ; a shop is more private than a field, a field more
private than a highway ; but the fact of the articles found being upon
the soil of another does not prevent them from becoming the property
of the finder. The defendant had not made himself liable to the true
owner. Isaack v. Clark, 2 Bulst. 312, shows " that when a man doth
find goods, he is bound to answer him that hath the property." The
defendant received the notes onlj' for the purpose of advertising them,
and restoring them to the true owner, if he should appear. [He also
cited Sutton v. Moody, 1 Ld. Raym. 250].
Heath offered to address the court on the same side, but it was
decided that only one counsel could be heard on each side.
Sake, for the respondent. The plaintiff could not acquire property
in these notes by merely picking them up ; and if he could he had in
this case divested himself of that property by handing them over to the
defendant, therebj' making him the principal in the matter, and invest-
ing him with the responsibility of a finder. The notes, if the}- were in
truth the property of a customer, came into the shop by leave of the
owner of the shop. Dig. lib. 41, De Acq. Re. Dom., tit. 1. [Patte-
son, J. That assumes that they are deposited intentionally ; in which
case there can be no doubt whatever.] Savigny, in his celebrated
Treatise on the Law of Possession (translated by Sir Edward Perry),
372 BRIDGES V. HAWKESWOETH.
§ 18, states that the principle of the rule is easily to be discovered.
The maxim is, " Vacua est quam nemo detinet." Here the jus deten-
tionis was in the defendant, and there was no vacanc3' of possession.
If the goods had been of larger bulk, the owner of the house might have
distrained them damage feasant, and no one could Iiave taken them
from his custody. If a scintilla of dominion might be exercised bj- the
shopkeeper, they could not vest in the finder. [Patteson, J. Savigny
speaks of monej' buried in the land ; but how is it if it be in my house ?
The expression " If I know where it is, I possess it, without the act of
taking it from its place of concealment" (p. 163, note e), seems to
make the question of property turn upon a mere chance.] That doubt
i§ answered by the case of Merry v. Green. In many instances prop-
erty is held to belong to the owner of the soil, though he does not know
of it, as in the case in Lord Raymond. In Toplady v. Stalye, Sty.
165, Rolle, C. J., says, "If cattle be stolen, and put into vay ground,
I ma}- take them damage feasant." If the owner could not take them
away, how could a stranger do so? Anon., 1 Bulst. 96. In the Year
Book, 12 Hen. 8, 9, it is said, " that the owner of a forest is the owner
of the wild creatures therein ratione loci." In Reg. v. Kerr, Parke, B.,
asks, " What if I drop a ring, is my servant to take it away?" Sup-
pose my guest loses his ring, is the servant finding it at liberty to keep
it? Has not the owner of the house a right to take it from him?
[WiGHTMAN, J. In that case there would be no question about the
property.] If, in Armory v. Delamirie, the sweep had been employed
to sweep a chimne}^ and, having entered a house for that purpose, had
picked up a jewel therein, he could not have claimed it. In the case of
a wreck, the lord, before seizure, has a constructive possession. In
Smith V. Milles, 1 T. R. 480, Ashurst, J., says, " The right is in the
lord, and a constructive possession, in respect of the thing being within
the manor of which he is lord." [Patteson, J. That is a manorial right,
and does not apply to any other person. Wightman, J. In the pref-
ace to Savigny a diflScultj- is suggested in the passage quoted from Mr.
Bentham : " A street porter enters an inn, puts down his bundle upon
the table, and goes out ; one person puts his hand upon the bundle to
examine it, another puts his to carry it away, saying, ' It is mine.' The
innkeeper runs to claim it, in opposition to them both. The porter
returns, or does not return. Of these four men, who is in possession
of the bundle ? "] In that case the innkeeper has the propert}' ratione
loci et impotentice. The parcel cannot fly away. In Isaack v. Clark,
Lord Coke says the finder has it in his election to take the goods or
not into his custody. Did the plaintiff take to himself the charge of
these notes, or make himself liable for the advertisements? [Wight-
man, J. If the plaintiff had merelj' showed them to the defendant, and
said he would keep them, could the defendant have sued him for them ?]
Yes ; b}' reason of their being found in the house he had a constructive
possession, and also something less than a possession, — a jus deten-
tionis. Hum v. Morris, 4 T3T. 485, shows that the defendant was
BRIDGES V. HAWKESWOETH. 373
responsible to the true owner. In the Case of Swans ^ 7 Rep. 17 b.,
Lord Coke says that a possessory right is obtained in wijd animals
ratioiie loci et impoteiHice — that is, so long as thej' do not or cannot
fly awaj'. The reason of these decisions is given by Savignj' (p. 1G3),
— "A movable becomes connected with an immovable without, never-
theless, being incorporated with it." Semayne's Case, 5 Rep. 93,
shows that a house protects all goods lawfulh' there ; and it is to be
inferred that it displaces all right in a finder. The maxim of the civil
law is, Si in meam, potestatem pervenit, mens factus sit. Savigny
(p. 169) comments upon it — " Possession of a thing ma^- be acquired
simply by the fact of its having been delivered at one's own residence,
even though we are absent from the house at the time." [Wight-
man, J. There thej* were directed to the house : here, if the finder had
put the notes into his own pocket, the owner of the shop would not
have known of them. If you can put any case where the goods came
into the house without the knowledge of the owner of the house, it
would be in point. Patteson, J. If propertj' is intentionally in my
house, it is certainly in my possession. J There is a distinction between
property obvious on the surface of the soil and what is bnried. In the
former case it is supposed that it will be seen by the owner or his ser-
vants ; but if it is buried, the nest owner is as likelj- to find it as the
former one (Savignj', 169). The passages in Blackstone cited on the
other side put the question upon the intention of the true owner to come
back and claim the goods. By our old law goods found were to be
delivered to justices ; and in Deut. c. 22, we read, " Goods found should
be kept near where they are lost." In Reff. v. Thurborn, 2 Car. &
K. 831, it was held, that to prevent the taking of goods from being
larceny, it is essential that they should be taken in such a place and
under such circumstances as that the owner would be reasonably pre-
sumed to have abandoned them. In 5 Rep. 109 a., it is said, "If one
steal my goods and throw them into the house of another, they are not
waifs." So in Com. Dig., "Waif." This case is undistinguishable
from one where goods are left at an inn, and the relation of landlord
and guest has ceased ; if the goods are then stolen, the innkeeper is not
liable. The act of taking possession of the notes by the plaintiff did
not render him chargeable to the true owner, nor confer a property
upon him. Dig., lib. 41, tit. 1, De Acq. Re. Dom. ; May v. Harvey,
13 East, 197. If no engagement be exacted to redeliver, the party
delivering cannot sue while the trust remains open. The defendant may
set up a jus tertii ; he is liable to the true owner, and ought not to be
liable to two in respect of one interest. He advertised that the notes
could be had at his shop, and incurred liability for the advertisements.
[He also cited Ogle v. Atkinson, 5 Taunt. 759, and Templeman v.
Case, 10 Mod. 24.]
Gray, in reply, cited Savigny, 170 — "Every case of possession is
founded on the state of consciousness of unlimited physical power."
Cur. adv. vult.
374 BRIDGES V. HAWKESWORTH.
Patteson, J., now delivered the following jndgment: The notes
which are the subject of this action were incidentally dropped, bj- more
accident, in the shop of the defendant, by the owner of them. The
facts do not warrant the supposition that they had been deposited there
intentionally, nor has the ease been put at all upon that ground. The
plaintiff found them on the floor, they being manifestly lost by some
one. The general right of the finder to any article which has been lost,
as against all the world, except the true owner, was established in the
case of Armory \. Delamirie, which has never been disputed. This
right would clearly have accrued to the plaintiff had the notes been
picked up bj- him outside the shop of the defendant; and if he once
had the right, the ease finds that he did not intend, bj- delivering the
notes to the defendant, to waive the title (if anj') which he had to
them, but they were handed to the defendant merely for the purpose of
delivering them to the owner, should he appear. Nothing that was
done afterwards has altered the state of things ; the advertisements
inserted in the newspaper, referring to the defendant, had the same
object ; the plaintiff has tendered the expense of those advertisements
to the defendant, and offered him an indemnity against anj- claim to be
made by the real owner, and has demanded the notes. Tlie case,
therefore, resolves itself into the single point on which it appears that
the learned judge decided it, namelj-, whether the circumstance of the
notes being found inside the defendant's shop gives him, the defendant,
the right to have them as against the plaintiff, who found them. There
is no authority in our law to be found directly in point. Perhaps the
nearest case is that of Merry v. Greeoi, but it differs in manj- respects
from the present. We were referred, in the course of the argument, to
the learned works of Von Savigny, edited by Chief Justice Perry ; but
even this work, full as it is of subtle distinctions and nice reasonings,
does not afford a solution of tlie present question. Tt was well asked,
on the argument, if the defendant has the right, when did it accrue to
him? If at all, it must have been antecedent to the finding by the
plaintiff, for that finding could not give the defendant any right. If
the notes had been accidentally kicked into the street, and there found
hy some one passing by, could it be contended that the defendant was
entitled to them from the mere fact of their being originallj- dropped in
his shop? If the discovery had never been communicated to the de-
fendant, could the real owner have had any cause of action against him
because they were found in his house? Certainly not. The notes
never were in the eustodj' of the defendant, nor within the protection
of his house, before they were found, as they would have been had they
been intentionallj- deposited there ; and the defendant has come under
no responsibilit}-, except from the communication made to him by the
plaintiff, the finder, and the steps taken by waj' of advertisement.
These steps were really taken by the defendant as the agent of the
plaintiff, and he has been offered an indemnity, the suflBciency of which
is not disputed. We find, therefore, no circumstances in this case to
EEGINA V. KOWB. 375
take it out of the general rule of law, that the finder of a lost article is
entitled to it as against all persons except the real owner, and we think
that that rule must prevail, and that the learned judge was mistaken in
holding that the place in which thej- were found makes anj- legal differ-
ence. Our judgment, therefore, is, that the plaintiff is entitled to these
notes as against the defendant ; that the judgment of the court below
must be reversed, and judgment given for the plaintiff for £50. Plain-
tiff to have the costs of appeal. Judgment accordingly}
EEGINA V. EOWE.
Crown Case Reserved. 1859.
[Reported Bell, C. C. 93.]
The following case was reserved hy the Chairman of the Glamorgan-
shire Quarter Sessions.
At the Glamorganshire Midsummer Quarter Sessions, 1858, William
Eowe was indicted for stealing 16 cwt. of iron of the goods and chat-
tels of The Company of Proprietors of the Glamorganshire Canal
Navigation.
It appeared by the evidence that the iron had been taken from the
canal by the prisoner, who was not in the eraplo}' of the Canal Com-
pany, while it was in process of being cleaned. The manager of the
canal stated that, if the property found on such occasions in the canal
can be identified, it is returned to the owner. If it cannot, it is kept
by the Company.
It was objected that, as the Canal Compan}' are not carriers, but
only find a road for the convej'ance of goods hy private owners, the
property was not properlj' laid as that of the Canal Companj-. The
prisoner was convicted, and sentenced to two calendar months impris-
onment in the House of Correction at Cardiff, but was released on bail.
Armory v. Delamirie^ 1 Stra. 505 ; s. c. 1 Smith's L. C. 151.
This case was considered, on 22d November, 1858, by Pollock, C.
B., WiGHTMAN, J., Williams, J., Channell, B., Byles J. and Hill, J.
No counsel appeared. Cur. adv. vidt.
On 5th Februaiy, 1859, the judgment of the court was given by
Pollock, C. B. The judges who have considered this case are unani-
mouslj' of opinion that the conviction should be affirmed. The case
finds that some iron had been stolen by the prisoner from the canal
while the canal was in process of cleaning, and while the water was
out. The prisoner was not in the employ of the Canal Company, but a
1 See Bowen v. Sullivan, 62 Ind. 281, the head-note of which is inaccurate.
376 BAEKEE V. BATES.
stranger ; and the property- of the Company in the iron before it was
taken away by the prisoner was of the same nature as that which a
landlord has in goods left behind by a guest. Propert}- so left is in
"the possession of the landlord for the purpose of delivering it up to the
true owner ; and he has sufficient possession to maintain an indictment
for larceny. Conviction affirmed.
BAEKER V. BATES.
Supreme Judicial Court of Massachusetts. 1832.
[Reported 13 Pick. 255.]
Trespass. The plaintiff declared in his first count that the defend-
ants broke and entered his close, and that being so entered, they took
and carried away a sticli of timber there found. The second count was
for taking and carrying awaj' the stick of timber.
At the trial, before Shaw, C. J., it appeared that the plaintiff was the
owper of a farm in the town of Scituate, within the limits of the old
colony of Plj-mouth, bounded easterly b3- the sea, which farm included
two pieces of land conveyed to the United States as hereafter mentioned,
and that at the time of the commission of the supposed trespass, he re-
mained the owner of all of the farm, excepting the parts so convej-ed.
In 1811 an act was passed by tlie legislature of Massachusetts (St.
1810, c. 54), providing that the United States might purchase or take
any tracts of land, not exceeding six acres, which should be necessary
for the lighthouse authorized to be erected at the entrance of the harbor
of Scituate, reserving to this Commonwealth exclusive jurisdiction over
the land, except so far as miglit be necessary- to enable the United
States to carry their object into effect.
In pursuance of this act certain commissioners appraised and set off
to the United States the two parcels of land above mentioned. The
boundaries of the first parcel were described as beginning at a stake and
stones, and, after various courses, running northeasterly "to the cliff,
thence by the cliff to the first-mentioned stake and stones." Below the
cliff was a beach. A plan of the farm and of the two parcels set off to
the United States, was used in the case.
It appeared that the stick of timber in question was discovered by the
defendants on the rocks, at low-water mark, below the easterly side of
the parcel of land above described, that it was then marked by one of
the defendants with his name, and that the defendants subsequently
attempted to cany awaj- the stick from this place, but were prevented
by the roughness of the sea. The stick was afterwards thrown upon the
beach, below and adjoining the plaintiff's land, and on the easterly side
thereof, and the defendants took and carried it away from the place last
mentioned, and converted it to their own use.
CLARK V. MALONEY. 377
If upon the facts in the case the court should be of opinion that the
plaintiff was entitled to recover, the defendants were to be defaulted,
and judgment to be rendered against them for the sum of fifteen dollars
damages ; otherwise a new trial was to be granted.
TF. Baylies and Warren, for the defendants.
Eddy and JBeal, for the plaintiff.
Shaw, C. J., delivered the opinion of the court. The sole and single
question in the present case is, which of these parties has the preferable
claim, by mere naked possession, without other title, to a stick of tim-
ber, driven ashore under such circumstances as lead to a belief that it
was thrown overboard or washed out of some vessel in distress, and
never reclaimed by the owner. It does not involve any question of the
right of the original owner to regain his property- in the timber, with or
without salvage, or the right of the sovereign to claim title to property
as wreck, or of the power and jurisdiction of the governments, either of
the Commonwealth or of the United States, to pass such laws and adopt
such regulations on the subject of wreck, as justice and public policy
maj- require.
In considering this question of the relative right of possession, a pre-
liminary one has been discussed, which is, whether the phiitrtiff had
title to the land upon which the stick of timber was found, 'i This place
appears to have been on the seashore, between high and low water
mark, in the town of Scituate, a town within the limits of the old colony
of Plymouth. [The court then considered the question of the title to
the locus, and resolved that it was the freehold of the plaintiff. The
discussion of this question in the opinion is omitted. — Ed.]
Considering it as thus established, that the place upon which this
timber was thrown up and had lodged was the soil and freehold of the
plaintiff, that the defendants cannot justifj' their entrj', for the purpose
of taking away or marking the timber, we are of opinion that such
entry was a trespass, and that as between the plaintiff and the defend-
ants, neither of whom had or claimed any title except by mere posses-
sion, the plaintiff had, in virtue of his title to the soil, the prefei-able
right of possession, and therefore that the plaintiff has a right to recover
the agreed value of the timber in his claim of damages.
CLARK V. MALONEY.
Nisi Peius in Delaware. 1840.
{Reported 3 Harrington, 68.]
Action of trover to recover the value of ten white pine logs. The
logs in question were found by the plaintiff floating in the Delaware
Bay after a great freshet, were taken up and moored with ropes in the
mouth of Mispillion creek. They were afterwards in the possession of
378 M'AVOT v. MEDINA.
defendants, who refused to give them up, alleging that they had found
them adrift and floating up the creek.
Bayaed, Chief Justice, charged the jury. The plaintiff must show
first, that the logs were his property ; and secondly, that they were
converted by the defendants to their own use. In support of his right
of property, the plaintiff relies upon the fact of his possession of the
logs. They were taken up by him, adrift in the Delaware Bay, and
secured by a stake at the mouth of Mispillion creek. Possession is cev-
tainly prima facie evidence of propert}-. It is called prima facie evi-
dence because it may be reljutted by evidence of better title, but in the
absence of better title it is as effective a support of title as the most
conclusive evidence could be. It is for this reason, that the finder of a
chattel, though he does not acquire an absolute propertj- in it, yet has
such a property, as will enable him to keep it against all but the right-
ful owner. The defence consists, not in showing that the defendants
are the rightful owners, or claim under the rightful owner ; but that the
logs were found bj- them adrift in Mispillion creek, having been loosened
from their fastening either by accident or design, and thej- insist that
their title is as good as that of the plaintiff. But it is a well settled
rule of law that the loss of a chattel does not change the right of prop-
erty ; and for the same reason that the original loss of these logs by
the rightful owner, did not change his absolute property in them, but he
might have maintained trover against the plaintiff upon refusal to
deliver them, so the subsequent loss did not divest the special property
of the plaintiff. It follows, therefore, that as the plaintiff has shown a
special propertj' in these logs, which he never abandoned, and which
enabled him to keep them against all the world but the rightful owner,
he is entitled to a verdict. Verdict for the plaintiff.
Ridgely and Bates, for plaintiff.
Houston and Booth, for defendants.
M'AVOY V. MEDINA.
SUPKEME JUDICIAX CoURT OF MASSACHUSETTS. 1866.
[Reported 11 Allen, 548.]
Tort to recover a sum of money found by the plaintiff in the shop of
the defendant.
At the trial in the Superior Court, before Morton, J., it appeared
that the defendant was a barber, and the plaintiff, being a customer in
the defendant's shop, saw and took up a pocket-book which was lying
upon a table there, and said, " See what I have found." The defend-
ant came to the table and asked where he found it. The plaintiff laid
it hack in the same place and said, " I found it right there." The
defendant then took it and counted the money, and the plaintiff told
M'AVOY v. MEDINA. 379
him to keep it, and if the owner should come to give it to him ; and
otherwise to advertise it : which the defendant promised to do. Sub-
sequently the plaintiff made three demands for the money, and the de-
fendant never claimed to hold the same till the last demand. It was
agreed that the pocket-book was placed upon the table by a transient
customer of the defendant and accidentally left there, and was first seen
and taken up by the plaintiff, and that the owner had not been found.
The judge ruled that the plaintiff could not maintain his action, and
a verdict was accordinglj- returned for the defendant ; and the plaintiff
alleged exceptions.
jE". tT. /Sherman and J". C. Sanborn, for the plaintiff.
D. Saunders, Jr., for the defendant.
Dewey, J. It seems to be the settled law that the finder of lost
property has a valid claim to the same against all the world except the
true owner, and generallj' that the place in which it is found creates no
exception to this rule. 2 Parsons on Con. 97 ; Bridges v. Hawkesworth,
7 Eng. Law & Eq. R. 424.
But this propertj' is not, under the circumstances, to be treated as
lost property in that sense in which a finder has a valid claim to hold
the same until called for by the true owner. This property was volun-
tarily placed upon a table in the defendant's shop by a customer of his
who accidentally left the same there and has never called for it. The
plaintiff also came there as a customer, and first saw the same and took
it up from the table. The plaintiff did not by this acquire the right to
take the property from the shop, but it was rather the duty of the de-
fendant, when the fact became thus known to him, to use reasonable
care for the safe keeping of the same until the owner should call for it.
In the case of Bridges v. Hawkesworth the property, although found
in a shop, was found on the floor of the same, and had not been placed
there voluntarilj' by the owner, and the court held that the finder was
entitled to the possession of the same, except as to the owner. But
the present case more resembles that of Lawrence v. The State, 1
Humph. (Tenn.) 228, and is indeed very similar in its facts. The
court there make a distinction between the case of property thus placed
by the owner and neglected to be removed, and property lost. It was
there held that " t6 place a pocket-book upon a table and to forget to
take it away is not to lose it, in the sense in which the authorities
referred to speak of lost property."
We accept this as the better rule, and especially as one better
adapted to secure the rights of the true owner.
In view of the facts of this case, the plaintiff acquired no original
right to the property, and the defendant's subsequent acts in receiving
and holding the property in the manner he did does not create any.
Exceptions overruled^
1 See Kincaid v. Eaton, 98 Mass. 139, accord.
380 DTJEFEE V. JONB8.
DURFEE V. JONES.
Supreme Court of Rhode Island. 1877.
[Reported W R. I. 588.]
Assumpsit, heard by the court, jury trial being waived.
DuRFEE, C. J. The facts in this case are briefly these : In April,
1874, the plaintiff bought an old safe, and soon afterwards instructed
his agent to sell it again. The agent offered to sell it to the. defendant
for ten dollars, but the defendant refused to buy it. The agent then
left it with the defendant, who was a blacksmith, at his shop for sale for
ten dollars, authorizing him to keep his books in it until it was sold or
reclaimed. The safe was old-fashioned, of sheet-iron, about three feet
square, having a few pigeon-holes and a place for books, and back of
the place for books a large crack in the lining. The defendant shortlj"^
after the safe was left, upon examining it, found secreted between the
sheet-iron exterior and the wooden lining a roll of bills amounting to
$165, of the denomination of the national bank bills which have been
current for the last ten or twelve years. Neither the plaintiff nor the
defendant knew the money was there before it was found. The owner
of the money is still unknown. The defendant informed the plaintiff's
agent that he had found it, and offered it to him for the plaintiff; but
the agent declined it, stating that it did not belong to either himself or
the plaintiff, and advised the defendant to deposit it where it would be
drawing interest until the rightful owner appeared. The plaintiff was
then out of the city. Upon his return, being informed of the finding,
he immediately called on the defendant and asked for the money, but
the defendant refused to give it to him. He then, after taking advice,
demanded the return of the safe and its contents, precisely as they ex-
isted when placed in the defendant's hands. The defendant promptly
gave up the safe, but retained the money. The plaintiff brings this ac-
tion to recover it or its equivalent.
The plaintiff does not claim that he acquired, by purchasing the safe,
anj' right to the money in the safe as against the owner ; for he bought
the safe alone, not the safe and its contents. See Merry v. Green, 7
M. & W. 623. But he claims that as between himself and the defend-
ant his is the better right. The defendant, however, has the possession,
and therefore it is for the plaintiff, in order to succeed in his action, to
prove his better right.
The plaintiff claims that he is entitled to have the money by the right
of prior possession. But the plaintiff never had an^' possession of the
money, except, unwittingly, by having possession of the safe which con-
tained it. Such possession, if possession it can be called, does not of
itself confer a right. The case at bar is in this view like Bridges v.
Hawkesworth, 15 Jur. 1079 ; 21 L. J. Q. B. 75, a. d. 1851 ; 7 Eng.
DTJRrEB V. JONES. 881
L. & Eq. 424. In that case, the plaintiff, while in the defendant's shop
on business, picked up from the floor a parcel containing bank notes.
He gave them to the defendant for the owner if he could be found. The
owner could not be found, and it was held that the plaintiff as finder
was entitled to them, as against the defendant as owner of the shop in
, which thej' were found. " The notes," said the court, " never were in
the custody of the defendant nor within the protection of his house, be-
fore they were found, as they would have been if thej' had been inten-
tionallj' deposited there." The same in effect may be said of the notes
in the case at bar ; for though they were originally deposited in the
safe by design, they were not so deposited in the safe, after it became
the plaintiff's safe, so as to be in the protection of the safe as his safe,
or so as to affect him with any responsibilit}' for them. The case at
bar is also in this respect like Tatum v. Sharpless, 6 Phila. 18. There
it was held, that a conductor who had found money which had been lost
in a railroad car was entitled to it as against the railroad cpmpanj'.
The plaintiff also claims that the money was not lost, but designedly
left where it was found, and that therefore as owner of the safe he is
entitled to its custody. He refers to cases in which it has been held,
that monej' or other property voluntarily laid down and forgotten is not
in legal contemplation lost, and that of such money or property the
owner of the shop or place where it is left is the proper custodian rather
than the person who happens to discover it first. State v. McCann,
19 Mo. 249 ; Lawrence v. The State, 1 Humph. 228 ; McAvoy v. Me-
dina^ 11 Allen, 549. It may be questioned whether this distinction has
not been pushed to an extreme. See Kincaid v. Eaton, 98 Mass. 139.
But however that may be, we think the money here, though designedly
left in the safe, was probably not designedly put in the crevice or inter-
space where it was found, Ijut that, being left in the safe, it probably
slipped or was accidentally shoved into the place where it was found
without the knowledge of the owner, and so was lost, in the stricter
sense of the word. The money was not simply deposited and forgotten,
but deposited and lost b}' reason of a defect or insecurity in the place
of deposit.
The plaintiff claims that the finding was a wrongful act on the part
of the defendant, and that therefore he is entitled to recover the money
or to have it replaced. We do not so regard it. The safe was left with
the defendant for sale. As seller he would properly examine it under
an implied permission to do so, to qualify him the better to act as seller.
Also under the permission to use it for his books, he would have the
right to inspect it to see if it was a fit depository. And finally, as a
possible purchaser he might examine it, for though he had once declined
to purchase, he might on closer examination change his mind. And the
defendant, having found in the safe something which did not belong
there, might, we think, properly remove it. He certainly would not be
expected either to sell the safe to another, or to buy it himself without
first removing it. It is not pretended that he used any violence or did
382 HAMAKEE V. BLANCHARD.
any harm to the safe. And it is evident that the idea that an_y trespass
or tort had been committed did not even occur to the plaintiffs agent
when he was first informed of the finding.
The general rule undoubtedly is, that the finder of lost propertj- is
entitled to it as against all the world except the real owner, and that
ordinarily the place where it is found does not make any difference. ,
We cannot find anything in the circumstances of the case at bar to
take it out of this rule.
We give the defendant judgment for costs.
A. J. Gushing, for plaintiff.
Francis W. Minor, for defendant.^
HAMAKER v. BLANCHARD.
Supreme Court of Pennsylvania. 1879.
[Reported 90 Pa. 377.]
Before Sharswood, C. J., Mercuk, Gordon, Paxson, Woodward,
Trunket, and Sterrett, JJ.
Error to the Court of Common Pleas of Mifflin County : Of Ma}'
Term, 1879, No. 57.
Assumpsit by James Blanchard and Sophia, his wife, for the use of
the wife, against W. W. Hamaker.
This was an appeal from the judgment of a justice of the peace. The
material facts were these : Sophia Blanchard was a domestic servant in
a hotel in Lewistown, of which the defendant was the proprietor.
While thus employed, she found in the public parlor of the hotel, three
twenty-dollar bills. On finding the money, she went with it to Mr.
Hamaker, and informed him of the fact, and upon his remarking that he
thought it belonged to a whip-agent, a transient guest of the hotel, she
gave it to him, for the purpose of returning it to said agent. It was
afterwards ascertained that the money did not belong to the agent, and
no claim was made for it by any one. Sophia afterwards demanded
the money of defendant, who refused to deliver it to her. Defendant
admitted that he still had the custody of the money.
In the general charge the court (Bucher, P. J.), inter alia, said:
" If you find that this was lost mone}', Hamaker did not lose it, and
that it never belonged to him, but that it belonged to some one else
who has not appeared to claim it, then j'ou ought to find for the plain-
tiff, on the principle that the finder of a lost chattel is entitled to the
possession and use of it as against all the world except the true owner.
. . . The counsel for the defendant asks us to say that as the defend-
ant was the proprietor of a hotel and the monej' was found therein, the
1 See Elwes v. Brigg Gas Co., 33 Ch. D. 562.
HAMAKER V. BLANCHARD. 383
presumption of law is that it belonged to a guest, who had lost it, and
that the defendant has a right to retain it as against this woman, the
finder, to await the demand of the true owner. I decline to give you
such instructions ; but charge you that under the circumstances there
is no presumption of law that this money was lost by^ a guest at the
hotel, and that the defendant is entitled to keep it as against this
woman for the true owner.''
The verdict was for the plaintiffs for $60, with interest, and after
judgment thereon, defendant took this writ and assigned for error the
foregoing portions of the charge.
jS". J. Oulbertson, for plaintiff in error.
eZ". A. McKee, for defendants in error.
Mr. Justice Tbunkey delivered the opinion of thecourt.
It seems to be settled law that the finder of lost property has a valid
claim to the same against all the world, except the true owner, and
generally that the place in which it is found creates no exception to
this rule. But property is not lost, in the sense of the rule, if it was
intentionally laid on a table, counter or other place, by the owner, who
forgot to take it away, and in such case the proprietor of the premises
is entitled to retain the custody. Whenever the surroundings evidence
that the article was deposited in its place, the finder has no right of
possession against the owner of the building. McAvoy v. Medina, 11
Allen (Mass.), 548. An article casually dropped is within the rule.
Where one went into a shop, and as he was leaving picked up a parcel
of bank notes, which was lying on the floor, and immediately showed
them to the shopman, it was held that the facts did not warrant the
supposition that the notes had been deposited there intentionally, they
being manifestly lost by some one, and there was no circumstance in
the case to take it out of the general rule of law, that the finder of a
lost article is entitled to it as against all persons, except the real owner.
Bridges v. Hawkesworth.
The decision in Mathews v. Harsell, 1 E. D. Smith (N. Y.), 393,
is not in conflict with the principle, nor is it an exception. Mrs.
Mathews, a domestic in the house of JVlrs. Barmore, found some Texas
notes, which she handed to her mistress, to keep for her. Mrs. Bar-
more afterwards intrusted the notes to tjarsell, for the purpose of ascer-
taining their value, informing him that she was acting for her servant,
for whom she held the notes. Harsell sold them, and appropriated the
proceeds ; whereupon Mrs. Mathews sued him and recovered their
value, with interest from date of sale. Such is that case. True,
Woodruff, J., says: "I am by no means prepared to hold that a
house-servant who finds lost jewels, money or chattels, in the house of
his or her emploj'er, acquires any title even to retain possession against
the will of the emploj-er. It will tend much more to promote honesty
and justice to require servants in such cases to deliver the property so
found to the emploj'er, for the benefit of the true owner." To that
remark, foreign to the case as understood by himself, he added the
384 HAMAKEB V. BLANCHAED.
antidote: "And yet the court of Queen's Bench in England have
recently decided that the place in which a lost article is found, does not
form the ground of any exception to the general rule of law, that the
finder is entitled to it against all persons, except the owner.'' His
views of what will promote honestj- and justice are entitled to respect,
yet many may think Mrs. Barmore's method of treating servants far
superior.
The assignments of error are to so much of the charge as instructed
the jury that, if they found the monej' in question was lost, the defend-
ant had no right to retain it because found in his hotel, the circum-
stances raising no presumption that it was lost by a guest, and their
verdict ought to be for the plaintiff. That the money was not volun-
tarilj' placed where it was found, but accidentallj' lost, is settled by the
verdict. It is admitted that it was found in the parlor, a public place
open to all. There is nothing to indicate whether it was lost by a
guest, or a boarder, or one who had called with or without business.
The pretence that it was the property of a guest, to whom the de-
fendant would be liable, is not founded on an act or circumstance in
evidence.
Many authorities were cited, in argument, touching the rights, duties
and responsibilities of an inn-keeper in relation to his guests ; these are
so well settled as to be uncontroverted. In respect to other persons
than guests, an innkeeper is as another man. When monej- is found
in his house, on the floor of a room common to all classes of persons,
no presumption of ownership arises ; the case is like the finding upon
the floor of a shop. The research of counsel failed to discover author-
ity that an innkeeper shall have an article which another finds in a
public room of his house, where there is no circumstance pointing to its
loss by a guest. In such case the general rule should prevail. If the
finder be an honest woman, who immediately informs her employer, and
gives him the article on his false pretence that he knows the owner and
will restore it, she is entitled to have it back and hold it till the owner
comes. A rule of law ought to applj' to all alike. Persons employed
in inns will be encouraged to fidelity by protecting them in equality of
rights with others. The learned judge was right in his instructions to
the jury. Judgment affirmed.^
Meecue, J., dissents.
1 See Tatum v. Sharpless, accord. 6 PHI. 18 (1865).
BOOK III.
INTRODUCTION TO THE LAW OF REAL PROPERTY.
CHAPTER I.
TENURE.
SECTION L
TENURE IN GENERAX.
Co. Lit. 65 a. For the better understanding of that which shall be
said hereafter, it is to be knowne, that first, there is no land in England
in the hands of an}- subject (as it hath been said) but it is holden of
some lord bj- some kind of service, as partly hath been touched
before.^
2 Bl. Com. 59, 60. Thus all the land in the kingdom is supposed
to be holden, mediately or immediatelj', of the king, who is styled the
lord paramount, or above all. Such tenants as held under the king
immediatelj', when they granted out portions of their lands to inferior
persons, became also lords with respect to those inferior persons, as
they were still tenants with respect to the king ; and, thus partaking of
a middle nature, were called mesne, or middle, lords. So that if the
king granted a manor to A., and he granted a portion of the land to B.,
now B. was said to hold of A., and A. of the king; or, in other words,
B. held his lands immediately of A., but mediatelj- of the king. The
king therefore was styled lord paramount ; A. was both tenant and lord,
or was a mesne lord : and B. was called tenant paravail, or the lowest
tenant ; being lie who was supposed to make avail, or profit of the
land. 1 Inst. 296.
1 " According to this position, of which the truth is undeniable, all the lands in Eng-
land, except those in the king's hands, are feudal. This universality of tenures, if not
quite peculiar to England, certainly doth not prevail in several countries on the conti-
nent of Europe, where the feudal system has been established ; and it seems there
are some few portions of allodial land in the northern part of our own island."
— Hargrave's note ad loc.
See Digby, Law Eeal Prop. o. 1, sect. 2, § 1.
25
386 TENURE.
All tenures being thus derived, or supposed to be derived, from the
king, those that held immediately under him, in right of his crown and
dignity, were called his tenants m capite, or in chief ; which was the
most honorable species of tenure, but at the same time subjected the
tenants to greater and more burthensome services, than inferior tenures
did.i
St. 18 Edw. I. c. 1 ; St. of Westm. III. ; St. Quia Emptoees (1290).
Forasmuch as purchasers of lands and tenements of the fees of great
men and other lords have many times heretofore entered into their fees,
to the prejudice of the lords, to whom the freeholders of such great men
have sold their lands and tenements to be holden in fee of their feoffors
and not of the chief lords of the fees, whereby the same chief lords
have manj- times lost their escheats, marriages, and wardships of lands
and tenements belonging to their fees, which thing seems very hard
and extreme unto those lords and other great men, and moreover in
this case manifest disheritance, our lord the king in his parliament at
Westminster after Easter the eighteenth year of his reign, that is to wit
in the quinzine of Saint John Baptist, at the instance of the great men
of the realm granted, provided, and ordained, that from henceforth it
should be lawful to every freeman to sell at his own pleasure his lands
and tenements or part of them, so that the feoffee shall hold the same
lands or tenements of the chief lord of the same fee, by such service
and customs as his feoffor held before.
c. 2. And if he sell any part of such lands or tenements to any, the
feoffee shall immediately hold it of thcchief lord, and shall be forthwith
charged with the services for so much as pertaineth or ought to pertain
to the said chief lord, for the same parcel, according to the quantity of
the land or tenement so sold ; and so in this case the same part of the
service shall remain to the lord, to be taken bj- the hands of the feoffee,
for the which he ought to be attendant and answerable to the same chief
lord according to the quantity of the land or tenement sold for the par-
cel of the service so due.
0. 3. And it is to be understood that by the said sales or purchases
of lands or tenements, or any parcel of them, such lands or tenements
shall in no wise come into mortmain, either in part or in whole, neither
bj- policy ne craft, contrary to the form of the statute made thereupon
of late. And it is to wit that this statute extendeth but only to lands
holden in fee simple, and that it extendeth to the time coming. And
it shall begin to take effect at the Feast of Saint Andrew the Apostle
next coming.
MANOKS. 387
SECTION II.
MAKORS.
Co. Cop. § 31. — The efficient cause of a manor is expressed in these
words, of long continuance : for, indeed, time is the mother, or rather
the nurse, of manors ; time is the soul that giveth life unto every manor,
without which a manor decayeth and dieth : for 't is not the two ma-
terial causes of a manor, but the efficient cause (knitting and uniting
together those two material causes) that maketh a manor. Hence it is
that the king himself cannot create a perfect manor at this da}- ; for
such things as receive their perfection by the continuance of time come
not within the compass of a king's prerogative : and therefore the king
cannot grant freehold to hold by cop}-, neither can the king create any
new custom, nor do any thing that amonnteth to the creation of a new
custom.
Leake, Digest op Land Law, 19-22. — A grant of land from the
Crown under the feudal sj-stem usuall}- conferred rights of jurisdiction
and other sovereign rights or franchises within the territory, by virtue
of which it was constituted a manor. The larger manors, comprising
inferior manors and lordships held of them by sub-infeudation, were,
in early times, often called, with some slight distinctions of meaning,
honours and baronies.
In regard to territory, a manor comprised the portions of the fee
retained in possession by the lord himself, called the demesne lands, i
^ "Demesne, termed in latine demanium^ domanium, ov dominicum, is taken in a
double sense, proprii and improprU. Proprii, for that land which is in the king's
own hands ; and Chopimus saith, that domanium est illud quod consecratum, unitum,
et incorporatitm est regice coronce, — ' domain is that which is consecrated, united, and
incorporated with the royal crown.' Take domanium in this sense, and then you ex-
clude all common persons from being seised in dominico ; for admit the king pass
over the demesne lands, as soon as they come into a common person's hands de-
sinunt esse terrce dominicales, — 'they cease to be domain lands ;' for though the
king's patentee hath the land granted to him and to his heirs, yet coming from the
king, it must necessarily be holden of the king, but it is contrary to the nature of de-
mesne lands to be holden of any. Therefore though those lands, which commonly
are termed ancient demesne, viz., such lands as were' formerly in the hands of Edward
the Confessor, may properly be termed generally ancient demesne, because they were
in ancient time in the king's own possession ; yet to term them at this day the lord's
demesnes, or the tenant's demesnes, being severed from the Crown, is improper.
" Then, by this it appeareth that those lands are termed improperly demesne wliich
are in the hands of an inferior lord or tenant, nor can such a one in propriety of speech be
said to stand seised of any land whatsoever in dominico suo, — ' in his demesne ; ' but if
you observe narrowly the manner of pleadings, the words are used in a proper sense, for
you-shall never find that an inferior lord or tenant will plead that he is simply seised
in dominico, but still with this addition, in dominico suo ut de feodo, — ' as a fee ; '
388 MAKORS.
terrcB dominicales, and the portions granted in fee to tenants by sub-
infeudation to bold of the manor by services, terrce tenementales, of
which the lord retained the seignorj' and services. There might also
be waste land, not as 3-et in occupation, used in common by the tenants
of the manor for pasturage and like purposes ; but the title remained in
the lord, who might from time to time approve or appropriate the
waste, subject to the rights exercised over it bj^ his tenants.
In regard to jurisdiction, the manor comprised a court called the
Court Baron or Lord's Court, having two distinct branches or courts.
The superior or freehold branch of the court was constituted of the
tenants holding fees of the manor, who were bound by their tenure to
give suit or service at the court as judges ; and their jurisdiction ex-
tended to pleas concerning the lands thus held of the manor.
The aggregate of these rights and incidents constituted a manor in
the legal acceptation of the term ; and accordingly a manor is described
in law as consisting of demesne lands, and seignories and services an-
ciently united thereto, together with the jurisdiction of a court baron ;
all of which elements are necessarj' to constitute a perfect manor. ^
After the statute Quia emptores no new manor could be created.
The grant of a fee no longer created a seignory and tenure, for the
grantee held of the superior lord and not of the grantor. The lord,
therefore, could not create freehold tenants to hold a court baron, which
is an essential element in the constitution of a manor. Moreover,
manors are sanctioned only by prescription or ancient custom ; hence
and that very aptly, for this word fee implieth thus much, that his estate is not ab-
sohite, but depending upon some superior lord. Therefore I conclude, with the Feud-
ists, that a common person may aptly be said to stand seised m feodo, — ' in fee, ' — or
in dominico suo ut de feodo ; but improperly in dominico simply. The king, ^ converso,
may properly be said to stand seised in dominico simply ; but m feodo improperly, or
in dominico suo ut de feodo, — 'as in his demesne of fee." " Co. Cop. §§ 11, 12.
See A. G. v. Parsons, 2 C. & J. 279. — Ed.
i Perkins, s. 670 ; Co. Lit. 58 a, b ; Co. Cop. s. 31 ; Spelman Gloss. " Manerium.''
As to the distinction of the demesne lands and the lands in tenure, see Co. Lit. 17 a;
A. G. V. Parsons, 2 C. & J. 279, and the authorities cited in the judgment. As to the
right of the tenants over the waste and of the lord to approve the waste, with and with-
out the consent of the tenants, see Boulcot v. Winmill, 2 Camp. 261 ; Betts v. Thomp-
son, L. R. 6 Ch. 732 ; Warrick v. Queen's Coll. Ox. lb. 716.
Numerous conjectures haVe been made as to the derivation of the word manor. A
plausible one is from the French word mesner, to govern, which Coke notices as most
agreeing with the nature of a manor, — " for a manor in these days signifieth the juris-
diction and royalty incorporate, rather than the land or site." Co. Cop. s. 31 ; approved
by Watkins, Cop. p. 7. In this view of a manor it is included in the list of Fran-
chises, • — the definition of a franchise being " a royal privilege or branch of the king's
prerogative, subsisting in the hands of a subject." 2 Blackst. Com. 37. Manor has
also been derived a nianendo, as being the seat of the feudal lord. Co. Lit. 58a,-
Spelman ; 2 Blackst. Com. 90. Manors, together with most of the other elements of
feudality, are said to have had their commencement, historically, in England in Saxon
times. Co. Lit. 58 h ; and see 1 Spence Eq. Jur. p. 64, and authorities there referred
to. But they were consolidated into a system of general application at the Conquest.
1 Spence, 90.
MANOES. 389
the king himself, though he can create a new tenure, cannot create a
perfect manor at the present day. Co. Cop. s. 31 ; see Bradshaw v.
Lawson, 4 T. R. 443.
A manor maj' become extinguished as a perfect manor, by the sev-
erance of the demesne lands from the seignory and services of the lands
in tenure ; as, if the lord transfer to some stranger the services of all
his tenants and reserve unto himself the demesnes ; or, if he grant away
the demesnes and reserve the services. A manor may also be extin-
guished by the extinction of the services ; as If the lord purchase all
the land of the freeholders, or release unto his freeholders all their ser-
vices. Co. Cop. s. 31 ; Sir Moyle Finch's Case, 6 Co. Eep. 63 a.
A manor might also be extinguished by failure of the court baron.
Two freeholders of the manor, at least, were necessary to hold the
court baron ; consequent!}', if this number of tenants failed, the court
could no longer be constituted, and the manor, without a court baron,
ceased legally to exist.''
But in all the above cases of extinction, though the manor no longer
exists in its legal integrity, it may continue as a manor by repute, —
nomine tantum ; and it maj' still be attended with such of the rights and
incidents of the original manor as may remain unaffected by the legal
extinction.*
It maj' here be mentioned that besides the freehold tenants holding
fees of the manor, there is, in many manors, a class of tenants occupj--
ing parts of the demesne lands without acquiring fees or freehold estates.
They hold under a distinct tenure known as customarj- or copj-bold
tenure. Corresponding to which is the customarj- branch of the Court
Baron having jurisdiction over these customary tenancies of the de-
mesne lands. In this branch of the court the lord or his steward is the
judge ; and it may still be held though the freehold branch of the Court
Baron maj' have become extinct. Co. Lit. 58a; post, Parti, c. ii.
" Customary Tenure."
Another distinct court frequently existed as a franchise of a manor
called the Court Leet, exercising a general criminal and administrative
jurisdiction within the manor. This court was not a necessary incident
of a manor, but appertained to the lord only by special prescription or
special grant of the franchise from the Crown ; its jurisdiction has been
wholly superseded hy other courts and officers. Co. Cop. s. 31 ; 4 Inst.
c. 54 ; see Kitchen on Courts.*
1 Co. Lit. 58 a; Co. Cop. s. 31 ; see Cheiwode v. Crew, Willes, 614 ; Bradshaw
V. Lawson, i T. E. 443. The jurisdiction of the Court Baron in writs of right con-
cerning lands within the manor was expressly aholished by 3 & 4 "Will. IV. c. 27,
a. 36, and in all other matters the court has heen either superseded or fallen into dis-
use. See a provision for the surrender of manorial courts in which dehts or demands
may be recovered, 9 & 10 Vict. c. 95 (the County Courts Act), s. 14.
2 Co. Cop. s. 31 ; see 6 Co. 64 as, 66 i; Soane v. Ireland, 10 East, 259 ; Watkin's
Cop. by Coventry, p. 27, n. (1), lb. p. 48 ; as the right to manorial wastes, lb.
" See Co. Cop. § 31 ; Clutwode v. Crew, Willes, 614 ; Soane v. Ireland, 10 East,
259. — Ed.
390 MILITARY TENURES.
SECTION III.
MILITARY TENURES AND THEIK INCIDENTS.
Magna Carta, c. 2. If any of our earls or barons, or any other which
hold of us in chief by knight's service, die, and at the time of his death
his heir be of full age, and oweth to us relief, he shall have his inheri-
tance by the old relief ; that is to say, the heir or heirs of an earl, for a
whole earldom, hy one hundred pound ; the heir or heirs of a baron,
for a whole barony, by one hundred marks ; the heir or heirs of a knight
for one whole knight's fee, one hundred shillings at the most ; and he
that hath less shall give less, according to the old custom of the fees.
c. 3. But if the heir of any such be within age, his lord shall uot have
the ward of him, nor of his laud, before that he hath taken of him hom-
age ; and after that such an heir hath been in ward, when he is come to
full age, that is to saj-, to the age of one and twenty years, he shall
have his inheritance without relief and without fine ; so that if such an
heir, being within age, be made knight, yet nevertheless his land shall
remain in the keeping of his lord unto the term aforesaid.
c. 6. Heirs shall be married without disparagement.
c. 15 (Charter of King John) . AVe will not give leave to any one,
for the future, to take an aid of his own freemen, except for redeeming
his own body, and for making his eldest son a knight, and for marrying
once his eldest daughter ; and not that unless it be a reasonable aid.
c. 39 (Charter of 1217). No freeman from henceforth shall give
or sell any more of his land, but so that of the residue of the lands
the lord of the fee may have the service due to him which belongeth to
the fee.
St. 20 Hen. III. St. of Merton (1235), c. 6. Of heirs that be led
awa}-, and withholden, or married by their parents, or by other, with
force, against our peace, thus it is provided ; That whatsoever layman be
convict thereof that he hath so withholden any child, led away, or mar-
ried ; he shall yield to the loser the value of the marriage ; and for the
offence his body shall be taken and imprisoned until he hath recom-
pensed the loser, if the child be married ; and further until he hath
satisfied the king for the trespass ; and this must be done of an heir be-
ing within the age of fourteen years. And touching an heir being four-
teen years old or above, unto his full age, if he marry without licence of
his lord to defraud him of the marriage, and his lord offer him reason-
able and convenient marriage, without disparagement, then his lord
shall hold his land bej'ond the term of his age, that is to say, of one
and twent}' years, so long that he ma}^ receive the double value of the
marriage, after the estimation of lawful men, or after as it hath been
offered him for the said marriage before, without fraud or colkision, and
MILITARY TENURES. 391
after as it may be proved in the King's Court. And as touching lords
which marry those that they have in ward to villains, or other, as bur-
gesses, where thej- be disparaged, if any such an heir be within the age
of fourteen years, and of such age that he cannot consent to marriage,
then if his friends complain of the same lord, the lord shall lose tlie
wardship unto the age of the heir, and all the profit that thereof shall
be taken shall be converted to the use of the heir being within age, after
the disposition and provision of his friends, for the shame done to him ;
but if he be fourteen j^ears and above, so that he may consent, and do
consent to such marriage, no pain shall follow.
c. 7. If an heir, of what age soever he be, will not marry at the re-
quest of his lord, he shall not be compelled thereunto ; but when he
Cometh to full age, he shall give to his lord and pay him as much as
any would have given him for the marriage, before the receipt of his
land, and that whether he will marry himself, or not; for the marriage
of him that is within age of mere right pertaiueth to the lord of the
fee.i
St. 52 Hen. III. St. of Maelebridge (1267), c. 16. If any
heir after the death of his ancestor be within age, and his lord have
the ward of his lands and tenements, if the lord wiU not render unto the
heir his land (when he cometh to his full age) without plea, the heir
shall recover his land by assise of mortdauncestor, with the damages
that he hath sustained bj' such withholding, since the time that he was
of full age. And if an heir at the time of his ancestor's death be of full
age, and he is heir apparent, and known for heir, and be found in the
inheritance, the chief lord shall not put him out, nor take, nor remove
any thing there, but shall take only simple seisin therefore for the recog-
nition of his seignior}', that he may be known for lord. And if the chief
lord do put such an heir out of the possession maliciously, whereby he
is driven to purchase a writ of mortdauncestor, or of cousenage, then he
shall recover his damages as in assise of novel disseisin. Touching
heirs, which hold of our lord the king in chief, this order shall be ob-
served, that our lord the king shall have the first seisin of their lands,
like as he was wont to have before time : neither shall the heir, nor any
other, intrude into the same inheritance, before he hath received it out
of the king's hands, as the same inheritance was wont to be taken out of
his hands and his ancestors' in times past. And this must be under-
stood of lands and fees, the which were accustomed to be in the king's
hands by reason of knight's service, or sergeanty, or right of patronage.
St. 3 Edw. I. St. of Westm. I. (1275) o. 22. Of heirs married within
age, without the consent of their guardians, afore that they be past the
age of fourteen years, it shall be done according as it is contained in the
statute of Merton. And of them that shall be married without the con-
1 See Lit. §§ 107-109.
392 MILITARY TENTJEBS.
sent of their guardians, after they be past the age of fourteen years, the
guardian shall have the double value of their marriage, after the tenour
of the same act. Moreover, such as have withdrawn their marriage,
shall pay the full value thereof unto their guardian for the trespass, and
nevertheless the king shall have like amends, according to the same
act, of him that hath so withdrawn. And of heirs females, after they
have accomplished the age of fourteen years, and the lord (to whom the
marriage belongeth) will not marry them, but for covetise of the land
will keep them unmarried ; it is provided that the lord shall not have
nor keep, by reason of marriage, the lands of such heirs females, more
than two 3'ears after the term of the said fourteen years. And if the
lord within the said two j'ears do not marrj' them, then shall thej' have
an action to recover their inheritance quit, without giving anything for
their wardship or their marriage. And if thej^ of malice, or by evil
counsel, will not be married by their chief lords (where they shall not
be disparaged) then their lords may hold their land and inheritance
until they, have accomplished the age of an heir male, that is, to wit, of
one and twenty years, and further, until they have taken the value of
the marriage.
Id., c. 36. For as much as before this time, reasonable aid to make
one's son knight, or marr3^ his daughter was never put in certain, nor
how much should be taken, nor at what time, wherebj' some levied un-
reasonable aid, and more often than seemed necessary, whereby the
people were sore grieved : it is provided that from henceforth of an
whole knight's fee there be taken but 20s. And of 20 pound land holden
in socage 20s., and of more, more, and of less, less ; after the rate. And
that none shall levy such aid to make his son knight, until his son be
fifteen years of age ; nor to marry his daughter until she be of the age
of seven years. And of that there shall be made mention in the king's
writ, formed on the same, when any will demand it. And if it happen
that the father, after he hath levied such aid of his tenants, die before
he hath married his daughter, the executors of the father shall be bound
to the daughter, for so much as the father received for the aid. And if
the father's goods be not sufficient, his heir shall be charged therewith
unto the daughter.
1 Edw. III. St. 2 (1326), c. 12. "Whereas divers people of the realm
complain themselves to be grieved, because that lands and tenements
which be holden of the king in chief, and aliened without license, have
been seized heretofore into the king's lands, and holden as forfeit ; the
king shall not hold them as forfeit in such case, but will and grant from
henceforth, of such lands and tenements so aliened, there shall be reason-
able fine taken in the Chancer3', by due process.'
1 " The tenant originally could not alien his fee without the license of the lord, for
granting which a fine or payment was charged. The statute Quia emptores enabled
MILITARY TBNUKES. 393
25 Edw. III. St. or Purveyors (1351). Reasonable aid to make
the king's eldest son kniglit, and to many his eldest daughter, shall be
demanded and levied after the form of the statute thereof made and not
in other manner ; that is to saj-, of every fee holden of the king, without
mean, twentj' shillings and no more, and of every twenty pound of land
holden of the king without mean in socage, twenty shillings and no
Lit. §§ 85, 90-93, 95, 97. Homage is the most honorable service,
and most humble service of reverence that a franktenant may do to his
lord. For when the tenant shall make homage to his lord he shall be
ungirt and his head uncovered, and his lord shall sit, and the tenant
shall kneel before him on both his knees, and hold his hands jointlj' to-
gether between the hands of his lord, and shall say thus : I become
your man (Jeo deveigne vostre home) from this day forward of life and
limb, and of earthly worship, and unto j'ou shall be true and faithful,
and bear to j'ou faith for the tenements that I claim to hold of 3'ou,
saving the faith that I owe unto our sovereign lord the king ; and then
the lord so sitting shall kiss him.
Note, none shall do homage but such as have an estate in fee simple,
or fee tail, in his own right, or in the right of another, for it is a maxim
in law, that he which hath an estate but for term of life, shall neither do
homage or take homage. For if a woman hath lands or tenements in
fee simple, or in fee tail, which she holdeth of her lord by homage, and
taketh husband, and have issue, then the husband in the life of the wife
shall do homage, because he hath title to have the tenements bj- the
curtesy of England if he surviveth his wife, and also he holdeth in right
of his wife. But if the wife dies before homage done by the husband
in the life of his wife, and the husband holdeth himself in as tenant bj-
the curtes}', then he shall not do homage to his lord, because he then
hath an estate but for term of life.
More shall be said of homage in the tenure of homage ancestral.
Fealty is the same thai fidelitas is in Latin. And when a freeholder
doth fealty to his lord, he shall hold his right hand upon a book, and
shall say thus : Know ye this, mj' lord, that I shall be faithful and true
unto 3-ou, and faith to you shall bear for the lands which I claim to hold
of you, and that I shall lawfully do to you the customs and services
which I ought to do, at the terms assigned, so help me God and his
saints ; and he shall kiss the book. But he shall not kneel when he
maketh his fealtj-, nor shall make such humble reverence as is afore-
said in homage.
And there is great diversity between the doing of fealty and of hom-
tenants to alien without license ; but this statute did not extend to the tenants in
capite of the Crown. The claim of the Crown was afterwards settled by statute at a
reasonable fine, which was adjudged to be one third of the yearly value for license, and
one year's value upon alienation without license. 18 Edw. I. o. 1 ; 1 Edw. III. u. 12 ;
34 Edw. III. t. 15 ; Co. Lit. 43 a, 6; 2 Inst. 67." — Leake, Dig. Land Law, 28.
894 MILITARY TENUEES.
age : for homage cannot be done to anj' but to the lord himself; but the
steward of the lord's court, or bailiff, may take fealtj^ for the lord.
Also, tenant for term of life shall do fealt}-, and yet he shall not do
homage. And divers other diversities there be between homage and
fealty.
Escuage is called in Latin scutagium, that is, service of the shield ;
and that tenant which holdeth his land by escuage, holdeth by knight's
sei'vice. And also it is commonlj' said, that some hold by the ser\ice
of one knight's fee, and some by the half of a knight's fee. And it is
said that when the king makes a voyage ro3'al into Scotland to subdue
the Scots, then he which holdeth by the service of one knight's fee
ought to be with the king forty days, well and conveniently arrayed
for the war. And he which holdeth his land by the moiety of a
knight's fee ought to be with the king twentj' days ; and he which
holdeth his land by the fourth part of a knight's fee ought to be with
the king ten days ; and so he that hath more, more, and he that hath
less, less.
And after such a voj-age roj-al into Scotland, it is commonljr said,
that by authorit}^ of parliament the escuage shall be assessed and put
in certain ; scil. , a certain sum of monej', how much every one, which
holdeth by a whole knight's fee, who was neither hj himself, nor by
an}' other, with the king, shall pay to his lord of whom he holds his
land by escuage. As put the case that it was- ordained by the authority
of the parliament, that every one which holdeth by a whole knight's fee,
who was not with the king, shall pay to his lord forty shillings ; then
he which holdeth bj' the moiety of a knight's fee shall pay to his lord
but twenty shillings ; and he which holdeth by the fourth part of a
knight's fee shall pay but ten shillings ; and he which hath more, more,
and which less, less.
Co. Lit. 72 b. No escuage was assessed by parliament since the
reign of Edward II., and in the eighth year of his reign escuage was
assessed.
Lit. §§ 98, 100, 103, 110-112. And some hold by the custom, that
if escuage be assessed hy authoritj' of parliament at any sum of money,
that they shall pay but the moiety of that sum, and some but the fourth
part of that sum. But because the escuage that they should pay is
uncertain, for that it is not certain how the parliament will assess the
escuage, they hold bj- knight's service. But otherwise it is of escu-
age certain, of which shall be spoken in the tenure of socage.
And it is to be understood that when escuage is so assessed by au-
thority of parliament, everj' lord, of whom the land is holden by escu-
age, shall have the escuage so assessed by parliament ; because it is
intended by the law that at the beginning such tenements were given
by the lords to the tenants to hold by such services, to defend their
lords as well as the king, and to put in quiet their lords and the king
from the Scots aforesaid.
Tenure b}- homage, fealt}-, and escuage is to hold by knight's service
MILITARY TENURES. 395
(per service de chivaler), and it draweth to it ward {gard), marriage, and
relief. For when such tenant dieth, and his heir male be within the age
of twentj'-one j'ears, the lord shall have the land holden of him until
the age of the heir of twentj'-one years ; the which is called full age,
because such heir, b3' intendment of the law, is not able to do such
knight's service before his age of twent^'-one j-ears. And also if such
heir be not married at the time of the death of his ancestor, then the
lord shall have the wardship and marriage of him. But if such tenant
dieth, his heir female being of the age of fourteen years or more, then
the lord shall not have the wardship of the land, nor of the body ; be-
cause that a woman of such age may have a husband able to do knight's
service. But if such heir female be within the age of fourteen years, and
unmarried at the time of the death of her ancestor, the lord shall have
the wardship of the land holden of him until the age of such heir female
of sixteen j'ears ; for it is given by the statute of W[estm]. I. cap. 22,
that by the space of two years next ensuing the said fourteen j-ears, the
lord may tender covenable marriage without disparagement to such heir
female. And if the lord within the said two years do not tender such
marriage, &c., then she at the end of the said two years maj' enter, and
put out her lord. But if such heir female be married within the age of
fourteen years, in the life of her ancestor, and her ancestor dieth, she
being within the age of fourteen j'ears, the lord shall have only the ward-
ship of the land until the end of the fourteen jears of age of such heir
female, and then her husband and she ma}- enter into the land and oust
the lord. For this is out of tlie case of the said statute, insomuch as
the lord cannot tender marriage to her which is married, &c. For
before the said statute of W[estm]. I. such issue female, which was within
the age of fourteen years at the time of the death of her ancestor, and
after she had accomplished the age of fourteen j^ears, without any tender
of marriage by the lord unto her, such heir female might have entered
into the land and ousted the lord, as appeareth hy the rehearsal and
words of the said statute ; so as the said statute was made (as it seem-
eth) in such case altogether for the advantage of lords. But yet this is
alwa3's intended by the words of the same statute, that the lord shall
not have these two j'ears after the fourteen years, as is aforesaid, but
where such heir female is within the age of fourteen years, and unmar-
ried at the time of the death of her ancestor.
And of heirs males which be within the age of twenty-one years after
the decease of their ancestor, and not married, in this case the lord shall
have the marriage of such heir, and he shall have time and space to
tender to him covenable marriage without disparagement within the
said time of twent3--one years. And it is to be understood that the heir
in this case may choose whether he will be married or no ; but if the
lord, which is called guardian in chivalry, tenders to such heir covenable
marriage within the age of twenty-one years without disparagement,
and the heir refuseth this, and doth not marry himself within the said
age, then the guardian shall have the value of the marriage of such heir
396 MILITARY TENURES.
male. But if such heir marrieth himself within the age of twenty-one
j-ears, against the will of the guardian in ohivahy, then the guardian
shall have the double value of the marriage by force of the statute of
Merton aforesaid, as in the same statute is more fulh* at lai'ge comprised.^
Also divers tenants hold of their lords bj' knight's service, and yet
they hold not by escnage, neither shall they pay escuage ; as they
which hold of their lords by castle-ward, that is to say, to ward a
tower of the castle of their lord, or a door or some other place of
the castle, upon reasonable warning, when their lords hear that the
enemies will come, or are come in England. And in many other cases
a man maj' hold by knight's service, and yet he holdeth not by escuage,
nor shall pay escuage, as shall be said in the tenure by grand serjeanty.
But in all cases where a man holds by knight's service, this ser■^'ice
draweth to the lord ward and marriage.
And if a tenant which holdeth of his lord b}' the service of a whole
knight's fee dieth, his heir then being of full age, scil., of twenty-one
years, then the lord shall have 100s. for a relief, and of the heir of him
which holds by the moiety of a knight's fee, 50s., and of him which holds
by the fourth part of a knight's fee, 25s.', and so he which holds more,
more, and which less, less.
Co. Lit. 77 a. When an heir hath been in ward to the king by
reason of a tenure in capite, after his full age he must sue liverj', which
is half a j'ear's profit of his lands holden. But if he be of full age at the
time of the death of his ancestor, then he shall pay for lands in possession
a whole year's profit for prinier seisi7i ; but if it be of a reversion ex-
pectant upon an estate for life, as tenant in dower, tenant by the curtesy,
or tenant for life, then he shall pay but the moiety of one year's profit.
If the heir be in ward by reason of a tenure of an honor or manor
(except as before), he shall not sue livery, but an ouster le maine
cum exitibus, albeit he never made tender. And if he be of full age,
the king shall have no primer seisin, but relief. But where the tenui-e
is in capite, there the king shall have the mean profits until the tender
be made ; and if the tender be made, and not duly pursued, the king
shall also have all the mean profits.
Lit. §§ 143, 147, 153. Tenant by homage ancestral is, where a
tenant holdeth his land of his lord by homage, and the same tenant and
his ancestors, whose heir he is, have holden the same land of the same
lord and of his ancestors, whose heir the lord is, time out of memory' of
man, by homage, and have done to them homage. And this is called
homage ancestral, by reason of the continuance, which hath been, by
title of prescription, in the tenancy in the blood of the tenant, and
also in the seigniory in the blood of the lord. And such service of
homage ancestral draweth to it warranty, that is to say, that the lord
which is living and hath received the homage of such tenant, ought to
warrant his tenant, when he is impleaded of the land holden of him by
homage ancestral.
1 See Palmer's Case, 5 Co. 126 J. ; Dairy's Case, 6 Co. 70 b.
MILITARY TENURES. 397
Also, if a man which holds his land by homage ancestral alien to
another in fee, the alienee shall do homage to his lord ; but he holdeth
not of his lord by homage ancestral, because the tenancy was not con-
tinued in the blood of the ancestors of the alienee ; neither shall the
alienee have warranty of the land of his lord ; because the continuance
of the tenancy in the tenant and to his blood by the alienation is dis-
continued. And so see that if the tenant which holdeth his land of
his lord by homage ancestral alieneth in fee, though he taketh an estate
again of the alienee in fee, yet he holds the land bj- homage, but not
by homage ancestral.
Tenure by grand serjeanty is, where a man holds his lands or tene-
ments of our sovereign lord the king, by such services as he ought to
do in his proper person to the king, as to carry the banner of the king,
or his lance, or to lead his army, or to be his marshal, or to carrj- his
sword before him at his coronation, or to be his sewer at his coronation,
or his carver, or his butler, or to be one of his chamberlains of the re-
ceipt of his exchequer, or to do other like services, &c. And the cause
why this service is called grand serjeanty is, for that it is a greater and
more worthy service than the service in the tenure of escuage. For he,
which holdeth by escuage, is not limited bj- his tenure to do anj- more
especial service than any other which holdeth by escuage, ought to do.
But he, which holdeth by grand serjeanty, ought to do some special
service to the king, which he that holds by escuage ought not to do.
Co. Lit. 10,5 b. This tenure hath seven special properties, — 1. To
be holden of the king onlj-. 2. It must be done, when the tenant is
able, in proper person. 3. This service is certain and particular. 4. The
relief due in respect of this tenure differeth from knight's service. 5. It
is to be done within the realm. 6. It is subject to neither aid pur f aire
fits chivaler, ov file marier. And, 7, Ifpayeth no escuage.
Lit. §§ 154, 156. Also, if a tenant which holds by escuage dieth,
his heir being of full age, if he holdeth bj* one knight's fee, the heir
shall pay but 100«. for relief, as is ordained by the statute of Magna
Charta, c. 2. But if he which holdeth of the king bj- grand serjeantj'
dieth, his heir being of full age, the heir shall pay to the king for relief
one year's value of the lands or tenements which he holdeth of the king
bj- grand serjeanty over, and besides all charges and reprises. And it
is to be understood that serjeantia in Latin is the same quod servitium, ,
and so magna serjeantia is the same quod magnum servitium.
Also, it is said that in the marches of Scotland some hold of the king
by cornage, that is to saj', to wind a horn to give men of the country'
warning when they hear that the Scots or other enemies aie come or
will enter into England ; which service is grand serjeantj'. But if nwy
tenant hold of any other lord than of the king by such service of corn-
age, this is not grand serjeantj*, but it is knight's service, and it draweth
to it ward and marriage ; for none maj- hold bj' grand serjeanty but of
the king onlj-.
Co. Lit. 13 a. Escheate, eschceta, is a word of art, and derived from
398 SOCAGE TENUBB.
the French word escheat (id est) cadei-e, excidere, or accidere, and signi-
fieth properly when b}- accident the lands fall to the lord of whom they
are holden, in which case we saj- the fee is escheated. And therefore of
some, escheats are called excadentice oi- terrce excadentiales. Dominus
vero capitalis loco hceredis habetur, quoties per defectum vel delictum
extmgidtur sanguis sui tenentis. Loco hceredis et haberi poterit cni
per m,odum donationis Jit reversio cujusque tenementi. And Oekam
(who wrote in the reign of Henr}- II.), treating of tenures of the king,
saith, porro eschcBtm vulgo dicuntur, qucB decedentibus hiis qui de
rege tenent, <jbc. cum non existit ratione sanguinis hoeres, ad fiscum
relahuntur . So as an escheat doth happen two manner of waj-s, aut
per defectum sanguinis^ i. e. for default of heir, aut per delictum
tenentis, i. e. for felony, and that is bj^ judgment three manner of ways,
aut quia suspensus per collum,, aut quia abjuravit regnum, aut quia
utlegatus est. And, therefore, they which are hanged bj- martial law
in furore belli forfeit no lands ; and so in like cases escheats by the
civilians are called caduca.
The father is seised of lands in fee holden of I. S. ; the son is attainted
of high treason ; the father dieth ; the land shall escheat to I. S. propter
defectum, sanguinis, for that the father died without heir. And the
king cannot have the land, because the son never had anj^thing to for-
feit. But the king shall have the escheat of all the lands whereof the
person attainted of high treason was seised, of whomsoever they were
holden.
SECTION IV.
SOCAGE TENURE.
Lit. §§ 117, 118, 120, 121, 123, 126-129. Tenure in socage is
where the tenant holdeth of his lord the tenancy b}' certain service for
all manner of services, so that the service be not knight's service. As
where a man holdeth his land of his lord by fealty and certain rent, for
all manner of services ; or else where a man holdeth his land by homage,
fealty, and certain rent, for all manner of services ; or where a man
holdeth his land by homage and fealty for all manner of services ; for
homage by itself maketh not knight's service.
Also, a man may hold of his lord by fealty only, and such tenure is
tenure in socage ; for every tenure which is not tenure in chivalry, is a
tenure in socage.
Also, if a man holdeth of his lord by escuage certain, scil. in this
manner, when the escuage runneth and is assessed by parliament to a
greater or lesser sum, that the tenant shall pay to his lord but half a
mark for escuage, and no more nor less, to how great a sum, or to how
little the escuage runneth, &c., such tenure is tenure in socage, and not
SOCAGE TENURE. 399
knight's service. But where the sum which the tenant shall pay for es-
cuage is uncertain, soil, where it may be that the sum that the tenant
shall pay for escuage to his lord may be at one time more and at another
time less, according as it is assessed, &c., such tenure is tenure by
knight's service.
Also, if a man holdeth his land to pay a certain rent to his lord for
castle-guard, this tenure is tenure in socage. But where the tenant
ought bj' himself or by another to do castle-guard, such tenure is tenure
by knight's service.
Also, in such tenures in socage, if the tenant have issue and die, his
issue being within the age of fourteen years, then the next friend (le
prochein amy) of that heir, to whom the inheritance cannot descend
(a que le heritage ne poet descender) ^ shall have the wardship of the
land and of the heir until the age of fourteen years, and such guardian
is called guardian in socage. For if the land descend to the heir of the
part of the father, then the mother, or other next cousin of the part of
the mother, shall have the wardship. And if land descend to the heir
of the part of the mother, then the father, or next friend of the part of
the father, shall have the wardship of such lands or tenements. And
when the heir cometh to the age of fourteen years complete, he may
enter and oust the guardian in socage, and occupy the land himself if
he will. And such guardian in socage shall not take any issues or
profits of such lands or tenements to his own use, but only to the use
and profit of the heir ; and of this he shall render an account to the
heir when it pleasetli the heir, after he accomplisheth the age of four-
teen 3-ears. But such guardian upon his account shall have allowance of
all his reasonable costs and expenses in all things, &c. And if such
guardian marry the heij- within age of fourteen years, he shall account
to the heir or his executors of the value of the marriage, although that
he took nothing for the value of the marriage ; for it shall be accounted
his own folly that he would marry him without taking the value of the
marriage, unless that he marrieth him to such a marriage that is as
much worth in value as the marriage of the heir.
Also, the lord of whom the land is holden in socage, after the decease
of his tenant, shall have relief in this manner. If the tenant holdeth
by fealt}' and certain rent to pay yearl3-, &c., if the terms of payment be
to pay at two terms of the j'car, or at four terms in the 3'ear, the lord
shall have of the heir his tenant as much as the rent amounts unto, which
he pa^-eth yearlv. As if the tenant holds of his lord bj' fealty, and ten
shillings rent payable at certain terms of the year, then the heir shaN
pa}' to the lord ten shillings for relief, beside the ten shillings which he
payeth for the rent.
And in this case, after the death of the tenant, such relief is due to
the lord presently', of what age soever the heir be ; because such lord
cannot have the wardship of the body nor of the land of the heir. And
the lord in such case ought not to attend foi- the payment of his relief,
according to the terms and da^'s of paj'ment of the rent ; but he is to
400 SOCAGE TENURE.
have his relief presently, and therefore he may forthwith distrain after
the death of his tenant for relief.
In the same manner it is, where the tenant holdeth of his lord bj'
fealtj' and a pound of pepper or cummin, and the tenant dieth, the lord
shall have for relief a pound of cummin or a pound of pepper, besides
the common rent. In the same manner it is, where the tenant holdeth
to pa}' yearl}' a number of capons or hens, or a pair of gloves, or cer-
tain bushels of corn, or such like.
But in some case the lord ought to staj- to distrain for his relief until
a certain time. As if the tenant holds of his lord by a rose, or bj' a
bushel of roses, to paj- at the feast of St. John the Baptist, if such tenant
dieth in winter, then the lord cannot distrain for his relief until the
time that roses by the course of the j-ear may have their growth, &c.
And so of the like.
Co. Lrr. 77 a. He that holdeth of the king by socage in chief, and
dieth, his heir of full age, the king shall have liverj' and primer seisin
only of the lands so holden, and not of the lands holden of others. But
if the heir of such a tenant in socage in chief be within the age of four-
teen at the death of his ancestor, he shall neither sue liverj', nor pay
primer seisin, either then or axiy time after ; and the reason thereof is,
for that the custody of his body and lands in that case belong to the
prochein amy, as guardian in socage. Neither shall the king have
primer seisin of lands holden in burgage (as some have said), for that
it is no tenure in capite.
Lit. §§ 130-132, 159-165, 265. Also, if any will ask why a man
may hold of his lord b}' fealtj' only for all manner of services, inso-
much as when the tenant shall do his fealty, he shall swear to his lord
that he will do to his lord all manner of services due, and when he hath
done fealty, in this case no other service is due. To this it maj' be
said, that where a tenant holds his land of his lord, it behooveth that
he ought to do some service to his lord. For if the tenant nor his
heirs ought to do no manner of service to his lord nor his heirs, then
by long continuance of time it would grow out of memory, whether the
land were holden of the lord or of his heirs, or not, and then will men
more often and more readily say, that the land is not holden of the
lord, nor of his heirs, than otherwise ; and hereupon the lord shall lose
his escheat of the land, or perchance some other forfeiture or profit
whicli he might have of the land. So it is reason, that the lord and
his heirs have some service done unto them, to prove and testify that
the land is holden of them.
And for that fealty is incident to all manner of tenures, but to the
tenure in frankalmoign (as shall be said in the tenure of frankal-
moign), and for that the lord would not at the beginning of the tenure
have any other service but fealty, it is reason, that a man may hold of
his lord by fealtj' only ; and when he hath done his fealty, he hath done
all his services.
Also, if a man lotteth to another lands or tenements for term of life.
SOCAGE TENUKB. 401
without naming any rent to be reserved to the lessor, yet he shall do
fealty to the lessor, because he holdeth of him. Also if a lease be made
to a man for term of j-ears, it is said that the lessee siiall do fealty to
the lessor, because he holdeth of liim. And this is well proved by the
words of the writ of waste, when the lessor hath cause to bring a writ
of waste against him ; which writ shall say, that the lessee holds his
tenements of the lessor for term of years. So the writ proves a tenure
between them. But he which is tenant at will according to the course
of the common law, shall not do fealty, because he hath not any sure
estate. But otherwise it is of tenant at will according to the custom
of the manor ; for that he is bound to do fealtj' to his lord for two causes.
The one is by reason of the custom ; and the other is, for that he taketh
his estate in such form to do his lord fealty.
Tenure by petit serjeanty is, where a man holds his land of our
sovereign lord the king to yield to him j'early a bow, or a sword, or
a dagger, or a knife, or a lance, or a pair of gloves of mail, or a pair
of gilt spurs, or an arrow, or divers arrows, or to yield such other
small things belonging to war.
And such service is but socage in effect ; because that such tenant by
his tenure ought not to go, nor do anj-thing, in his proper person, touch-
ing the war, but to render and pay j'early certain things to the king, as
a man ought to pay a rent.
And note, that a man cannot hold by grand serjeanty, nor by petit
serjeanty, but of the king, &c.
Tenure in burgage is where an ancient borough is, of which the king is
lord, and they that have tenements within the borough hold of the king
their tenements ; that every tenant for his tenement ought to pay to the
king a certain rent by year, &c. And such tenure is but tenure in socage.
And the same manner is, where another lord, spiritual or temporal,
is lord of such a borough, and the tenants of the tenements in such a
borough hold of their lord to pa}' each of them yearly an annual rent.
And it is called tenure in burgage, for that the tenements within the
borough be liolden of the lord of the borough by certain rent, &c.
And it is to wit that the ancient towns called boroughs be the most
ancient towns that be within England ; for the towns that now be cities
or counties, in old time were boroughs, and called boroughs ; for of
such old towns called boroughs come the burgesses of the parliament to
the parliament, when the king hath summoned his parliament.
Also, for the greater part such boroughs have divers customs and
usages which be not had in other towns. For some boroughs have such
a custom that if a man have issue many sons and dieth, the youngest
son shall inherit all the tenements which were his father's within the
same borough, as heir unto his father by force of the custom ; the which
is called borough English.
Parceners by the custom are, where a man seised in fee simple or in
fee tail of lands or tenements which are of the tenure called gavelkind
within the county of Kent, and hath issue divers sons and die, such
26
402 SOCAGE TENUKE.
lands or tenements shall descend to all the sons by the custom, and they
shall equallj' inherit and make partition by the custom, as females shall
do, and a writ of partition lieth in this case as between females. But it
behooveth in the declaration to make mention of the custom. Also such
custom is in other places of England, and also such custom is in North
Wales, &e.
2 Bl. Com. 84. It is universally known what struggles the Kentish
men made to preserve their ancient liberties, and with how much suc-
cess those struggles were attended. And as it is principally here that
we meet with the custom of gavelkind (though it was and is to be found
in some other parts of the kingdom), we maj' fairly conclude that this
was a part of those liberties ; agreeably to Mr. Selden's opinion, that
gavelkind before the Norman Conquest was the general custom of the
realm. The distinguishing properties of this tenure are various ; some
of the principal are these : 1. The tenant is of age sufficient to alien his
estate b^- feoffment at the age of fifteen. 2. The estate does not escheat
in case of an attainder and execution for felony ; their maxim being,
" The father to the bough, the son to the plough." 3. In most places
he had a power of devising lands b}' will, before the statute for that
purpose was made. 4. The lands descend, not to the eldest, j'oungest,
or any one son only, but to all the sons together ; which was indeed an-
ciently the most usual course of descent all over England, though in
particular places particular customs prevailed. These, among other
properties, distinguished this tenure in a most remarkable manner :
and j'et it is said to be only a species of a socage tenure, modified by
the custom of the countr}- ; the lands being holden by suit of court and
fealty, which is a service in its nature certain.^
1 Anofent Demesne. "There is great confusion in the law books respecting this
tenure. All agree that it exists in those manors, and in those only, which belonged to
the Crown in the reign of Edward the Confessor and William the Conqueror, and in
Doomsday Book are denominated Terroe Regis. But the copyholders of these manors
are sometimes considered tenants in Ancient Demesne, and land held in ancient
demesne is said to pass by sun-ender and admittance. This appears to be inaccurate.
It is only the freeholders of the manor who are truly tenants in ancient demesne, and
land held in ancient demesne passes by common law conveyances without the instrumen-
tality of the lord. The copyholders in an ancient demesne manor, like other copy-
holders, are merely to be considered as occupying a part of the lord's demesne, and do
not hold of the manor. They form the Customary Court. The Court of Ancient De-
mesne, which is analogoiis to the Court Baron, is constituted by those who hold in
socage of the lord of the manor. . . . The tenants in ancient demesne, properly so
callpil, were made subject to certain restraints and entitled to certain immunities,
which produce serious inconveniences at the present day. They were forbidden to
bring or to defend any real action touching their tenements, except in the lord's court ;
and they were exempted from serving on juries elsewhere, and from paying toll in any
part of England." — Third Report of Commissioners on the Law of Real Property,
12, 13.
PEANKALMOIGN. 403
SECTION V.
FRANKALMOIGN.
Lit. §§ 133, 135, 137, 139, 140, 141. Tenant in frankalmoign is,
where an abbot, or prior, or another man of religion, or of holj' church,
holdeth of his lord in frankalmoign ; that is to say, in Latin, in liberam
eleemosinam, that is, in free alms. And such tenure began first in old
time. When a man in old time was seised of certain lands or tenements
in his demesne as of fee, and of the same land infeoffed an abbot and
his covent, or prior and his covent, to have and to hold to them and
their successors in pure and perpetual alms, or in frankalmoign ; (or by
such words to hold of the grantor, or of the lessor, and his heirs in free
alms : ) in such case the tenements were holden in frankalmoign.
And they, which hold in frankalmoign, are bound of right before
God to make orisons, pra3-ers, masses, and other divine services, for
the souls of their grantor or feoffor, and for the souls of their heirs
which are dead, and for the prosperity and good life and good health
of their heirs which are alive. And therefore Vaey shall do no fealty
to their lord ; because that this divine service is better for them before
God, than any doing of fealty ; and also because that these words
(frankalmoign) exclude the lord to have an}- earthly or temporal
service, but to have only divine and spiritual service to be done for
him, &c.
But if an abbot, or prior, holds of his lord bj' a certain divine ser-
vice, in certain to be done, as to sing a mass ever}- Friday in the week,
for the souls, ut supra, or every year at such a day to sing a. placebo et
dirige, &c., or to find a chaplain to sing a mass, &c., or to distribute
in alms to an hundred poor men an hundred pence at such a day ; in
this case, if such divine service be not done, the lord may distrain, &c.,
because the divine service is put in certain b}- their tenure, which the
abbot or prior ought to do. And in this case the lord shall have fealt}-,
&c., as it seemeth. And such tenure shall not be said to be tenure in
frankalmoign, but is called tenure b}- divine service. For in tenure in
frankalmoign no mention is made of an}' manner of service ; for none
can hold in frankalmoign, if there be expressed any manner of certain
service that he ought to do, &c.
And if an abbot holdeth of his lord in frankalmoign, and the abbot
and covent under their common seal alien the same tenements to a
secular man in fee simple, in this case the secular man shall do fealty
to the lord ; because he cannot hold of his lord in frankalmoign. For
if the lord should not have fealty of.him, he should have no manner
of service, which should be inconvenient, where he is lord, and the
tenements be holden of him.
\
404 STATUTE 12 CHAELES II.
Also, if a man grant at this day to an abbot or to a prior lands or
tenements in frankalmoign, these words (frankalmoign) are void ; for
it is ordained hy the statute which is called Quia emptores terrarum
(which was made anno 18 E. I.) that none maj- alien nor grant lands or
tenements in fee simple to hold of himself. So that if a man seised of
certain tenements, which he holdeth of his lord b}' knight's service, and
at this day he, &c., granteth bj' license the same tenements to an abbot,
&c., in frankalmoign, the abbot shall hold immediately' the tenements
by knight's service of the same lord of whom his grantor held, and shall
not hold of his grantor in frankalmoign, by reason of the same statute.
So that none can hold in frankalmoign, unless it be by title of pre-
scription, or by force of a grant made to any of his predecessors before
the same statute was made. But the king may give lands or tenements
in fee simple to hold in frankalmoign, or by other services ; for he is
out of the case of that statute.
And note, that none maj- hold lands or tenements in frankalmoign
but of the grantor, or of his heirs. And therefore it is said, that if
there be lord, mesne and tenant, and the tenant is an abbot, which
holdeth of his mesne in frankalmoign, if the mesne die without heir
the mesnaltie shall come bj' escheat to the said lord paramount, and the
abbot shall then hold immediately of him by fealty onh', and shall do to
him fealty ; because he cannot hold of him in frankalmoign, &c.
SECTION VI.
ABOLITION OF MILITARY TENURES.
St. 12 Car. II. (1660) c. 24.
An Act taking away the Court of Wards and Liveries and Tenures
in Capite, and by ICnight- Service, and Purveyance, and for settling
a Mevenue upon his Majesty in lieu thereof.
Whereas it hath been found by former experience that the Court of
Wards and Liveries and tenures by knight-service either of the king or
others, or bj' knight-service in capite, or socage in capite of the king,
and the consequents upon the same, have been much more burthen-
some, grievous and prejudicial to the kingdom than they have been
beneficial to the king ; and whereas since the intermission of the said
court, which hath been from the four and twentieth day of Februaiy,
which was in the year of our Lord one thousand six hundred forty and
five, many persons have by will and otherwise made disposal of their
lands held by knight-service, whereupon divers questions might possi-
blj' arise unless some seasonable remedy be taken to prevent the same ;
be it therefore enacted by the King our Sovereign Lord, with the assent
of the Lords and Commons in Parliament assembled, and bj' the au-
thority of the same, and it is herebj' enacted, That the Court of Wards
STATUTE 12 CHARLES II. 405
and Liveries, and all wardships, liveries, primer seisins and ousterle-
mains, values and forfeitures of marriages, by reason of any tenure of
the King's Majest}', or of any other by knight-service, and all mean
rates, and all other gifts, grants, and charges, incident or arising for
or by reason of wardships, liveries, primer seisins, or ousterlemains be
taken away and discharged, and are hereby enacted to be taken away
and discharged, from the said twenty-fourth day of February one thou-
sand six hundred forty-five ; any law, statute, custom, or usage to the
contrary hereof in any wise notwithstanding : And that all fines for
alienations, seizures, and pardons for alienations, tenure by homage,
and all charges incident or arising for or b}' reason of wardship, livery,
primer seisin, or ousterlemain, or tenure by knight- service, escuage,
and also aide pur file marrier, et pur faire fitz chivalier, and all other
charges incident thereunto, be likewise taken away and discharged
from the said twenty-fourth day of Februarj- one thousand six hundred
forty and five : any law, statute, custom, or usage to the contrary
hereof in any wise notwithstanding: And that all tenures b^- knigbt-
service of the king, or of an}- other person, and by knight-service in
capite, and by socage in capite of the king, and the fruits and conse-
quents thereof, happened or which shall or maj' hei-eafter happen or
arise thereupon or thereby, be taken away and discharged ; any law,
statute, custom or usage to the contrary hereof in anj' wise notwith-
standing : And all tenures of anj- honours, manors, lands, tenements,
or hereditaments, of any estate of inheritance at the common law, held
either of the king or of any other person or persons, bodies politick or
corporate, are herebj' enacted to be turned into free and common
socage, to all intents and purposes, from the said twentj'-fourth daj' of
February one thousand six hundred forty-five, and shall be so con-
strued, adjudged and deemed to be from the said twenty-fourth day of
February one thousand six hundred forty-five, and for ever hereafter,
turned into free and common socage ; any law, statute, custom, or
usage to the contrary hereof in anj' wise notwithstanding.
2. And that the same shall for ever hereafter stand and be discharged
of all tenure by homage, escuage, voyages roj-al, and charges for the
same, wardships incident to tenure by knight's-service, and values and
forfeitures of marriage, and all other charges incident to tenure by
knight-service, and of and from aide pur file marrier, and aide pur
faire fitz chivalier; any law, statute, usage, or custom to the contrary in
any wise notwithstanding. And that all conveyances and devises of
any manors, lands, tenements, and hereditaments, made since the said
twentj'-fourth day of Februarj', shall be expounded to be of such effect
as if the same manors, lands, tenements, and hereditaments had been
then held and continued to be holden in free and common socage only ;
any law, statute, custom, or usage to the contrary hereof in any wise
notwithstanding.
3. And be it further ordained and enacted by the authority of this
present Pailiament, That one Act made in the reign of King Henry the
406 TENANCY IN CAPITE.
Eighth, intituled An Act for the Establishment of the Court of the
King's Wards ; and also one Act of Parliament made in the thirtj--
third j'ear of the reign of the said King Henry the Eighth, concerning
the oflScers of the Courts of Wards and Liveries, and ever^- clause,
article, and matter in the said Acts contained, shall from henceforth be
repealed and utterly void.
4. And be it further enacted by the authority aforesaid, That all
tenures hereafter to be created b}- the King's Majesty, his heirs or suc-
cessors, upon any gifts or grants of any manors, lands, tenements or
hereditaments, of anj' estate of inheritance at the common law, shall be
in free and common socage, and shall be adjudged to be in free and
common socage onlj-, and not bj- knight-service, or in capite, and shall
be discharged of all wardship, value and forfeiture of marriage, livery,
primer seisin, ousterlemain, aide pur faire fitz chivalier and pur file
marrier ; any law, statute, or reservation to the contrarj' thereof in
any wise notwithstanding.
6. Provided nevertheless, and be it enacted. That this Act, or any-
thing herein contained, shall not take awa}', nor be construed to take
away, any rents certain, heriots, or suits of court, belonging or incident
to any former tenure now taken awaj^ or altered by virtue of this Act,
or other services incident or belonging to tenure in common socage due
or to grow due to the King's Majestj-, or mean lords, or other private
person, or the fealty and distresses incident thereunto ; and that such
relief shall be paid in respect of such rents as is paid in case of a death
of a tenant in common socage.
6. Provided always, and be it enacted. That anything herein con-
tained shall not take away, nor be construed to take awaj', anj' fines for
alienation due by particular customs of particular manors and places,
other than fines for alienations of lands or tenements holden imme-
diately of the king in capite.
7. Provided also, and be it further enacted, That this Act, or any-
thing herein contained, shall not take awaj', or be construed to take
away, tenures in frankalmoign, or to subject them to any greater or
other services than thej' now are ; nor to alter or change anj' tenure by
copy of court-roll, or anj' services incident thereunto ; nor to take
away the honorary services of grand serjeanty, other than of wardship,
marriage, and value of forfeiture of marriage, escuage, voyages royal,
and other charges incident to tenure by knight-service ; and other than
aide pur faire fitz chivalier, and aide pur file marrier.
Tenancy in Capite. " Tenure in capite, in its genuine sense, signifies a tenure of
another sine medio, that is, immediately and without the interposition of any mesne or
intermediate lord ; and therefore when an honor or other seigniory came into the
hands of the Crown by escheat or otherwise, its tenants were as much tenants in cJiief
to the king as those who were so by original grant from the Crown. In proof of this
Mr. Madox selects from ancient records a great variety of instances between the 8th of
Eichard I. and the 20th of Henry VI. in which tenures ut. de hnnore are expressly
styled tenures in capite ; and as Mr. Madox adds no instances of a later time than
TENURE IN THE UNITED STATES. 407
Henry tlie Eighth and Queen Elizabeth, in which the words ire capite are omitted, it
may be conjectured, that the error complained of by Mr. Madox originated soon after
the time of Henry the Sixth. Mad. Baron. Angl. 181. The design of excluding ten-
ures vi de honore from the description of tenures in capite was to distinguish those
estates which were held of the king by a tenure originally created by the king, from
those held of him by a tenure commencing by the subinfeudation of a subject;
between which there were many differences in point of incident very essential both to
the lord and tenant. Mad. Baron. Angl. 12. But it should have been recollected,
that the distinction aimed at was already marked, with equal sufficiency and more c(ir-
)-ectness, by denominating tenures of the first sort tenures iit de corona, and those of
the second tenures ut de honore. The influence of this mistaken notion of tenancy in
capite is very evident, as well throughout the statute of Charles the Second for taking
away the oppressive fruits of knight's service and tenure in capite, as in those grants
from the Crown, which in the tenendum are expressed to be ut de honore et nan in
capite. See Mad. Excheq. fol. ed. 432. But great as this error about tenure in capite
may be, Lord Coke is excusable or conforaiing in his, language to it ; because before
his time it had been adopted by the legislature. See 37 H. 8 c. 20 s. 2, 3, 4. 1 E. 6
c. 4 s. 1, 2, & 3, and Mad. Baron. Angl. 233." — Hargrave's note to Co. Lit. 108a.
Tenure in the United States. Land in the colony of Virginia was holden of
the king as of the " manor of East-Greenwich, in the county of Kent, in free and com-
mon socage only, and not in capite." Lucas, Chart. 8, 12, 22 ; so in Massachusetts,
Id. 36, 75 ; so in Connecticut, Id. 54 ; so in Rhode Island, Id. 65. Land in Mary-
laud was holden of the king as of the castle of Windsor, in the county of Berks,
"in free and common .socage, by fealty only, for all services, and not m capite, or by
knight's service;" yielding annually "two Indian arrows of those parts." Id. 90.
And the proprietary could grant land to be held of himself, the statute of Quia emp-
tores notwithstanding. Id. 95. So in Pennsylvania, yielding " two beaver skins."
Id. 101, 106. Land in Georgia was to be held of the king as of the manor of Hamp-
ton Court, in the county of Middlesex, in free and common socage, and not in capite, at
a money rent. Id. 117.
" Our ancestors, in emigrating to this country, brought with them such parts of the
common law and such of the English statutes as were of a general nature and applica-
ble to their situation (1 Kent, 473, and cases cited in note a to the 6th ed. ; Boqardus
V. Trinity Church, 4 Paige, 178 ; and when the first Constitution of this State came
to be framed, all such parts of the common law of England and of Great Britain and
of the acts of the Colonial Legislature as together formed the law of the Colony at the
breaking out of the Revolution, were declared to be the law of this State, subject, of
course, to alteration by the legislature. (Art. 35.) The law as to holding lands and of
transmitting the title thereto from one subject to another must have been a matter
of the first importance in our colonial state ; and there can be no doubt but that the
great body of the English law upon that subject, so far as it regarded the transactions
of private individuals, immediately became the law of the colony, subject to such
changes as were introduced by colonial legislation. The lands were holden under
grants from the Crown, and as the king was not within the statute Quia emptores, a
certain tenure, which, after the act of 12 Charles II. (ch. 24) abolishing military tenures,
must have been that of free and common socage, was created as between the king and
his grantee. I have elsewhere expressed the opinion that the king might, notwith-
standing the statute against subinfeudation, grant to his immediate tenant the right to
alien his land to be holden of himself, and thus create a manor, where the land was
not in tenure prior to the 18th Edward I. (The People v. fan Eensselaer, 5 Seld.
334.) But with the exception of the tenure arising upon royal grants, and such as
might be created by the king's immediate grantees under express license from the
Crown, I am of opinion that the law forbidding the creating of new tenants by means
of subinfeudation was always the law of the Colony, and that it was the law of this
State, as well before as after the passage of our act concerning tenures, in 1787. A
408 TENURE IN THE UNITED STATES.
contrary theory would lead to the most absurd conclusions. We should have to hold
that the feudal system, during the whole colonial period and for the first ten years of
the State government, existed here in a condition of vigor which had been unknown in
England for more than three centuries before the first settlement of this country. We
should be obliged to resolve questions arising upon early conveyances, under which
many titles are still held, by the law which prevailed in England during the first two
centuries after the Conquest, before the commencement of the Year Books, and long
before Littleton wrote his Treatis© upon Tenures." Per Denio, J., in Van Rensselaer
v. Hays, 5 N. Y. 68, 73.
See Gray, Perpetuities, §§ 22-28.
FEE-SIMPLE. 409
CHAPTI^ II.
ESTATES.!
SECTION I.
FEE-SIMPLE.
Lit. §§ 1, 2. Tenant in fee simple is he which hath lands or tene-
ments to hold to him and his heirs for ever. And it is called in Latin
feodum simplex, iov feodum is the same that inheritance is, and simplex
is as much as to say, lawful, or pure. And so feodum simplex signifies
a lawful or pure inheritance. Quia feodum idem, est quo hcet-editas, et
simplex idem, est quod legitimum, vel purum,. Et sic feodum simplex
idem, est quod hcereditas legitima, vel hoereditas pura. For if a man
would purchase lands or tenements in fee-simple, it behooveth him to
have these words in his purchase, To have and to hold to him and to his
heirs : for these words (his heirs) make tlie estate of inheritance. For
if a man purchase lands by these words, To have and to hold to him for
ever ; or by these words. To have and to hold to him and his assigns
for ever : in these two cases he hath but an estate for term of life, for
that there lack these words (his heirs), which words only make an
estate of inheritance in all feoffments and grants.
And if a man purchase land in fee simple and die without issue, he
which is his next cousin collateral of the whole blood, how far soever
he be from him in degree (de quel pluis lovg degree qu'il soit), may
inherit and have the land as heir to him.^
1 "It is to be known that a freehold is that which one holds to himself and his
heirs in fee and inheritance, or in fee only to himself and his heirs. So also it is a
freehold if one holds for life only or in the same way for an indeterminate time, without
any certain limit of time ; to wit, until something is done or not done, as if it is said,
I give to such a one until I shall provide for him. But that cannot be called a free-
hold which one holds for a certain number of years, months, or days, although for
a term of a hundred years which exceeds the lives of men. So that cannot be called
a freehold which one holds at the wijl of his lords, which can be seasonably and
unseasonably revoked, as from year to year, and from day to day." Bract, lib. 4, c. 28,
fol. 207.
2 "In the most ancient time [the fend] was so entirely in the power of the lords
that when they wished they could take away a thing given by tliem as a feud. But
afterwards they came to be good for a year only. Then it was determined that it should
be continued for the life of the vassal ; but since this by right of succession did not
belong to sons, it was so extended that it did pass to sons ; to whom [in quern], to wit.
410 FEE-SIMPLE. -
the lord was willing to give this benefice. Which to-day is so established, that it
comes equally to all. But when Conrad was starting for Rome, the vassals who were
in his service, prayed that by a law promulgated by him, he would deign to extend
tliis from son to grandsons, and that a brother might succeed to a brotlier who had
died without lawful heir in a benefice which was their fathers'. But if one of two
brothers has received a feud from his lord, upon his death without lawful heir Ins
brother does not succeed to the feud, because although they have received in common
[quod etsi covimunilcr nccepei'ini], one does not succeed the other, unless it has been
expressly so said, to wit, that upon the death of one without lawful heir, the other
shall succeed ; bnt if there is an heir, the other brother shall not take. . . . This also
shoulil be known that a benefice does not pass by succession to collateral relations be-
yond first cousins, according to the practice established by the ancient sages, although-
in modern times it has been carried to the seventh generation, which in male descend-
ants is extended by the new law indefinitely." Lib. Feud. lib. 1, tit. 1, §§ 1, 2, 4.
" When feuds first began to be hereditary, it was made a necessaiy qualification of
the heir who would succeed to a feud, that he should be of the blood of, that is, lineally
descended from, the first feudatory or purchaser. In consequence whereof, if a vassal
died seised of a feud of his own acquiring, ovfeudum novum, it could not descend to any
but his own offspring ; no, not even to his brother, because he was not descended, nor
derived his blood, from the first acquirer. But if it was feudum antiquum., that is, one
descended to the vassal from his ancestors, then his brother, or such other collateral
relation as was descended and derived his blood from the first feudatory, might succeed
to such inheritance. . . .
" However, in process of time, when the feodal rigor was in part abated, a method
was invented to let in the collateral relations of the grantee to the inheritance, by
granting him afeudivm novwm to hold utfcudnnn antiquum ; that is, with all the qual-
ities aimexed of a feud derived from his ancestors, and then the collateral relations
were admitted to succeed even in infinitum, because they might have been of the blood
of, that is, descended from, the first imaginary purchaser. For since it is not ascer-
tained in such general grants, whether this feud shall be held ut faidum patcmum, or
feudum avitum, but ?rf feudum, antiquum merely ; as a feud of indefinite antiquity :
that is, since it is not ascertained from which of the ancestors of the grantee this feud
shall be supposed to have descended ; the law will not ascertain it, but will suppose
any of his ancestors, pro re nata, to have been the first purchaser : and therefore it
admits a«2/ ofliis <^°ll^t^''*l •'^''''i''^'i (*^° have the other necessary requisites) to the
inheritance, because every collateral kinsman must be descended from some one of his
lineal ancestors.
"Of this nature are all the grants of fee-simple estates of this kingdom ; for there is
now in the law of England no such thing as a grant of a, feudum novum, to be held ut
novum : unless in the case of a fee-tail, and there we see that this rule is strictly ob-
served, and none but the lineal descendants of the first donee (or purchaser) are ad-
mitted ; but every grant of lands in fee-simple is with us a feudum novum to he held, lit
antiquum, as a feud whose antiquity is indefinite : and therefore the collateral kindred
of the grantee, or descendants from any of his lineal amcestors, by whom the lands
might have possibly been purchased, are capable of being called to the inheritance."
2 Bl. Com. 221, 222.
FEE-TAIL. 411
SECTION II.
FEE-TAIL.
Co. Lit. 19 a. Before which statute of Donis conditionalibus, if land
had been given to a man, and to the heirs males of his bod}', the hav-
ing of an issue female had been no performance of the condition ; but
if he had issue male, and died, and the issue male had inherited, j-et he
had not had a fee simple absolute ; for if he had died without issue male,
the donor should have entered as in his reverter. B}- having of issue, the
condition was performed for three purposes : First, to alien ; Secondlj',
to forfeit; Thirdh', to charge with rent, common, or the like. But the
course of descent was not altered by having issue : for if the donee had
issue and died, and the land had descended to his issue, yet if that issue
had died (without any alienation made) without issue, his collateral
heir should not have inherited, because he was not within the form of
the gift, viz., heir of the body of the donee. Lands were given before
the statute in frank-marriage, and the donees had issue and died, and
after the issue died without issue ; it was adjudged, that his collateral
issue shall not inherit, but the donor shall re-enter. So note, that the
heir in tail had no fee simple absolute at the common law, though
there were divers descents.
If lands had been given to a man and to his heirs males of his
body, and he had issue two sons, and the eldest had issue a daughter,
the daughter was not inheritable to the fee simple, but the younger
son per formam doni. And so if land had been given at the
common law to a man and the heirs females of his body, and he had
issue a son and a daughter, and died, the daughter should have in-
herited this fee simple at the common law ; for the statute of Donis
conditionalibus createth no estate tail, but of such an estate as was
fee simple at the common law, and is descendible in such form as it
was at the common law. If the donee in tail had issue before the
statute, and the issue had died without issue, the alienation of the
donee at the common law, having no issue at that time, had not barred
the donor.
If donee in tail at the common law had aliened before any issue had,
and after had issue, this alienation had barred the issue, because he
claimed a fee simple ; yet if that issue had died without issue, the
donor might re-enter, for that he aliened before any issue, at what time
he had no power to alien to bar the possibility of the donor. ^
1 See Barksdale v. Gamage, 3 Rich. Eq. 271.
412 ANONYMOUS.
ANONYMOUS.
Cornish Iter. 1302.
[Eeported Fltz. Ab. Formedon, 65.]
FoEMEDON in reverter because the donee died without issue. Assehy.
The donee alienated before the statute and had issue. Heyham. He
had no issue when he made the alienation. Asseby. It may be that he
had no issue when he aliened, but that he had issue afterwards, and
then is the alienation good. Heyham. No. Asseby. He had had
issue. The Justices. It is nothing to the point, if he bad had issue
alive when he aliened, for there might have been issue, and the issue
might have died before the alienation ; by that alienation will not the
plaintiff be barred. Asseby. He had issue alive when he made aliena-
tion : and the others contra.^
ANONYMOUS.
Cornish Iter. 1302.
[Reported Fltz. Ah. Formedon, 66.]
FoRMEDON in reverter, and he counted that he made the gift to one
C. with his daughter in frank marriage, and that they are dead without
issue. Hunt. The tenements were given before the Statute to the
said C. aud A., and after the death of C. the tenant that now is took the
said A. to wife and had issue, which is alive, and so he holds by the law
of England. Middleton. The said A. died after the Statute, wherefore
we praj' judgment if he can claim by the courtesy. Brumpton. It is
found that the tenements were given before the Statute to C. and A.,
and that the tenant that now is, is the second husband of A., and before
the Statute in such case, the second husband will hold by the law of
England ; and this appears hy the Statute which has restrained this and
saj'S nee secundus yi>, &c. ; wherefore this court adjudges that he shall
hold these tenements for his life, and after his death the demandant
shall have them.^
1 Barksdale v. Gamage, 3 Rich. Eq. 271, contra.
2 " And at the common law there was no estate of inheritance but what was fee sim-
ple. But these estates in fee simple were of two sorts, the one ahsolute, and the other
conditional, as hath been said. And the fee simple conditional was, where land was
given to a man to the heirs of his body begotten, and herein the abuse was after issue had
rather than before issue had. For before issue had if he had aliened, this should not have
bound the issues had afterwards, nor the donor if there had been no issue, for until
issue had the donee had no power to alien, thougli he had after issue. For when the
STATUTE DB DONIS. 413
St. 13 Edw. I. ; St. of Westm. II. (1285) c. 1 ; De Bonis Cokditio-
NALiBus. First, concerning lands that manj- times are given upon con-
dition, that is, to wit, where any giveth his land to anj- man and his
wife, and to the heirs begotten of the bodies of the same man and his
wife, with such condition expressed that if the same man and his wife
die without heir of their bodies between them begotten, the land so
given shall revert to the giver or his lieir ; in case also where oije giv
eth lands in free marriage, which gift hath a condition annexed, thougli
it be not expressed in the deed of gift, which is this, that if the hus-
band and wife die without heir of their bodies begotten, tlie land so
given shall revert to the giver or his heir ; in case also where one giveth
land to anotlier and the heirs of his body issuing, it seemed very hard
and 3-et seemeth to the givers and their heirs, that their will being ex-
pressed in the gift was not heretofore nor j-et is observed. In all the
cases aforesaid after issue begotten and born between them, to whom
the lands were given under such condition, heretofore such feoffees had
power to aliene the land so given, and to disinherit their issue of the
land, contrary to the minds of the givers, and contrary to the form ex-
pressed in the gift : and further, when the issue of such feoffee is fail-
ing, the land so given ought to return to the giver or his heir by form
of gift expressed in the deed, though the issue, if any were, had died ;
j'et by the deed and feoffment of them, to whom land was so given
upon condition, the donors 'have heretofore been barred of their rever-
sion of the same tenements which was directly repugnant to the form
of the gift : wherefore our lord the king, perceiving how necessary and
expedient it should be to provide remedy in the aforesaid cases, hath
ordained, that the will of the giver according to the form in the deed of
gift manifestly expressed shall be from henceforth observed, so that
the}- to whom the land was given under such condition shall have no
power to aliene the land so given, but that it shall remain unto the issue
of them to whom it was given after their death, or shall revert unto the
giver or his heirs if issue fail, either by reason that there is no issue at
all, or if any issue be, it fail b}- death, the heir of such issue failing.
gift was to one and to the heirs of his hody, they took it that he could not lawfully
alien until he had such heirs, and that if he did alien, the donor (although he could
not enter presently) after the death of the donee, if he had no issue, might have u
fr.rmcdon in reverter. For the gift being to one and to the heirs of his body, they
adjudged it not to be a full fee-simple until he had heirs of his body, for when it was
incertain whether he should have an heir of his body or not, they did not take him to
have a full inheritance. And therefore the law was taken in such case, that if the gift
was to husband and wife, and to the heirs of their two bodies begotten, and the hus-
band had died before issue had, and the wife had taken a second husband, and had
issue, there the second husband should not be tenant by the curtesy, nor should their
issue inherit, and if the wife had died, the second wife of the husband .should not be
endowed ; for until such heir as the donor had appointed was begotten, they took it
that the inheritance was not consummate in him." Per Brown, J., in WilUon v.
Berkley, Plowd. 223, 245, 2i6.
See Paine's Case, 8 Co., 34 a, 35 h ; Co. Lit. 19 a, Hargrave's note.
414 FEE-TAIL.
Neither shall the second husband of any such woman from henceforth
have anj'thing in the land so given upon condition after the death of his
wife, by the law of England, nor the issue of the second husband and
wife shall succeed in the inheritance, but immediately after the death of
the husband and wife, to whom the land was so given, it shall come to
their issue or return unto the giver or his heir as before is said. And
forasmuch as in a new case new remedy must be provided, this manner
of writ shall be granted to the party that will purchase it: " Com-
mand A. that Justly, <&c., he render to S. the manor of F. with its
appurtenances, which C. gave to such a man, and such a wom,an.,
and to the heirs of the said tnan and woman issuing ; " or, ' ' vihich
C. gave to such a man in free marriage with such a woman, and
which, after the death of the aforesaid man and woman, to the afore-
said B., son of the aforesaid man and vioman, ought to descend, by
the form of the gift aforesaid, as he saith ;" or, '■'■ which C. gave to
such a one and the heirs of his body issuing, and which after the
death of the said such a one, to the aforesaid B., son of the aforesaid
such a one, ought to descend, by the form, &c." The writ whereby the
giver shall recover when issue faileth is common enough in the Chan-
cery. And it is to wit that this statute shall hold place touching alien-
ation of land contrary to the form of gift hereafter to be made, and
shall not extend to gifts made before. And if a fine be levied here-
after upon such lands it shall be void in the law, neither shall the
heirs or such as the reversion belongeth unto, though thej- be of full
age, within England, and out of prison, need to make their claim.
Lit. §§ 13-19, 21-24. Tenant in fee tail is by force of the statute of
W[estm1. II. c. 1, for before the said statute all inheritances were fee
simple ; for all the gifts which be specified in that statute were fee
simple conditional at the common law, as appeareth by the rehearsal of
the same statute. And now by this statute tenant in tail is in two man-
ners, — that is to say, tenant in tail general, and tenant in tail special.
Tenant in tail general is, where lands or tenements are given to a
man and to his heirs of his bod3' begotten. In this case it is said gen-
eral tail, because whatsoever woman that such tenant taketh to wife (if
he hath man}- wives, and by every of them hath issue), j-et everj- one
of these issues bj' possibilit}' may inherit the tenements bj' force of the
gift ; because that every such issue is of his body engendered.
In the same manner it is where lands or tenements are given to a
woman and to the heirs of her bodj- ; albeit that she hath divers hus-
bands, j'et the issue which she may have by every husband maj' inherit
as issue in tail by force of this gift ; and therefore such gifts are called
general tails.
Tenant in tail special is, where lands or tenements are given to a man
and to his wife and to the heirs of their two bodies begotten. In this
case none shall inherit by force of this gift but those that be engen-
dered between them two. And it is called especial tail, because if the
wife die, and he taketii another wife and have issue, the issue of the
FEE-TAIL.
415
second wife shall not inherit bj- force of this gift, nor also the issue of
the second hnsband, if the first husband die.
In the same manner it is where tenements are given bj' one man to
another with a wife (which is the daughter or cousin to the giver) in
frankmarriage, the which gift hath an inheritance b}' these words
(frankmarriage) annexed unto it, although it be not expressly- said or
rehearsed in the gift, — that is to say, that the donees shall have the
tenements to them and to their heirs between them two begotten. And
this is called especial tail, because the issue of the second wife maj- not
inherit.
And note, that this word ( Talliare) is the same as to set to some cer-
taintj' or to limit to some certain inheritance. And for that it is limited
and put in certain what issue shall inherit bj' force of such gifts, and
how long the inheritance shall endure, it is called in Latin feodum tal-
liatum ; i. e., hmreditas in quandam certitudinem limitata. For if
tenant in general tail dieth without issue, the donor or his heirs may
enter as in their reversion.
In the same manner it is of the tenant in especial tail, &c. For in
everj- gift in tail without more saying the reversion of the fee simple is
in the donor. And the donees and their issue shall do to the donor
and to his heirs the like services as the donor doth to his lord next
paramount, except the donees in frankmarriage, who shall hold quietly
from all manner of service (unless it be for fealty) until the fourth de-
gree is past, and after the fourth degree is past, ttie issue in the fifth
degree, and so forth the other issues after him, shall hold of the donor
or of his heirs as thej- hold over, as before is said.
And all these entails aforesaid be specified in the said statute of
Wfestm]. II. Also there be divers other estate.s in tail, though thej- be
not by express words specified in the said statute, but thej' are taken
bj' the equity of the same statute. As if lands be given to a man and
to his heirs males of his body begotten ; in this case his issue male shall
inherit, and the issue female shall never inherit, and yet in the other
entails aforesaid it is otherwise.
In the same manner it is if lands or tenements be given to a man and
to his heirs females of his body begotten ; in this case his issue female
shall inherit bj- force and form of the said gift, and not his issue male.
For in such cases of gifts in tail the will of the donor ought to be
observed wlio ought to inherit and who not.
And in case where lands or tenements be given to a man and to the
heirs males of his bodj', and he hath issue two sons, and dieth, and the
eldest son enter as heir male, and hath issue a daughter, and dieth, his
brother shall have the land, and not the daughter, for that the brother
is heir male. But otherwi.se it is in the other entails which are specified
in the said statute.
Also, if lands be given to a man and to the heirs males of his bodj',
and he hath issue a daughter, who hath issue a son, and dieth, and
after the donee die ; in this case the son of the daughter shall not in-
416 WAEEANTY.
herit by force of the entail : because wliosoever shall inherit by force of
a gift in tail made to the heirs males ought to convey hi? descent whole
by the heirs males. Also in this case the donor may enter, for that the
donee is dead without issue male in the law, insomuch as the issue of
the daughter cannot convey to himself the descent by an heir male.
Note on Wareanty akd on Fines and Recoveries. Tlie olijeot of the St.
De Bonis was to prevent the alienation of entailed estates. The history of the mode in
which this object was defeated is curious. (1) It was held that if any one whose heir
a tenant in tail was had warranted the estate to a stranger, such tenant was barred if
assets had descended on him from the warrantor ; and where the warranty had been
given by one from whom the estate tail could not possibly have descended, as a younger
brother, the tenant in tail was barred without assets. Warranty of this latter sort was
called collateral warranty. The principal rules governing lineal and collateral war-
ranty are given in the sections quoted below from Littleton. (2) The courts allowed
i collusive suit to be brought by the one to whom a tenant in tail wished to convey the
land ; and a judgment in this suit, which was called a common recovery, barred not
only the issue in tail, but also all reversioners and remainder-men, except the Crown.
The validity of common recoveries to disentail land seems to have been first judicially
recognized in Tcdtarum's Case, Y. B. 12 YAvi. IV. 19 (1473). (3) The Sts. of 4 Hen.
VII. (1490) c. 24, and 32 Hen. VIII. (1540) c. 36, gave the same general effect to
fines, which were another and very ancient species of collusive suit, as had been given
to common recoveries. A fine levied with proclamations, in accordance with the
provisions of those statutes, bound immediately all persons claiming under the cog-
uizor, as the person levying the fine was called, and bound, unless claim was made
within five years, all other persons except the Crown.
Simpler methods of docking entails have been adopted in recent times. In most of
the United States, estates tail have been abolished. See Stirason, Am. Stat. Law,
§ 1313.
The fuller discussion of the barring of estates tail does not belong here; but for
convenience of reference are subjoined : (1) sections of Littleton on lineal and col-
lateral warranty ; (2) the Statutes of Fines, 4 Hen. VII. c. 24, and 32 Hen. VIII.
c. 36 ; (3) the forms of a fine and of a recovery.
Lit. §§ 143, 145. Tenant by homage ancestral is, where a tenant holdeth his land
of his lord by homage, and the same tenant and his ancestors, whose heir he is, have
holden the same laud of the same lord and of his ancestors, whose heir the lord is, time
out of memory of man, by homage, and have done to them homage. And this is called
homage ancestral, by reason of the continuance, which hath been, by title of prescrip-
tion, in the tenancy in the blood of the tenant, and also in the seigniory in the blood
of the lord. And such service of homage ancestral draweth to it waiTanty, that is to
say, that the lord, which is living and hath received the homage of such tenant, ought
to warrant his tenant when he is impleaded of the land holden of him by homage
ancesti-al.
And it is said, that if such tenant be impleaded by a, prcecipe quod reddat, &c., and
vouch to warranty his lord, who cometh in by process, and demands of the tenant
what he hath to bind him to warranty, and he showeth how he and his ancestors,
whose heir he is, have holden their land of the vouchee and of his ancestors time out
of mind of man ; and if the lord, which is vouched, hath not received homage of the
tenant nor of any of his ancestors, the lord (if he will) may disclaim in the seigniorj'',
and so oust the tenant of his warranty. But if the lord, who is vouched, hath re-
ceived homage of the tenant, or of any of his ancestors, then he shall not disclaim, but
he is bound by the law to warrant the tenant ; and then if the tenant loseth his land
in default of the vouchee, he shall recover in value against the vouchee of the lands
and tenements which the vouchee had at the time of the voucher, or any time after.
Co. Lit. 102 a. Here is a point worthy of observation, that in the case of homage
ancestral (which is a special warranty in law), by the authority of Littleton, the
WAEKANTY. 417
lands generally that the lord hath at the time of the voucher shall be liable to execu-
tion in value, whether he hath them by descent or purchase. But in the case of an
express warrautie, tlie heire shall be charged but only for such lands as he hath by
descent from the same ancestor which created the warranty.
St. 4 Edw. I. (St. Dk Bioamls), (1276) c. 6. lu deeds also where is contained dedi
ct conccssi tale tenementum without homage, or without a clause that containeth warranty,
and to be holdeu of the givers, and their heirs, by a certain service ; it is agreed that
the givers and their heirs shall be bounden to warranty. And where is contained dcdi ct
conccssi, &c. to be holden of the chief lords of the fee, or of other, and not of feoffors,
or of their heirs, reserving no service, without homage, or without the foresaid clause,
their heirs shall not be bounden to warranty, notwithstanding the feoffor during his
own life, by force of his own gift, shall be bound to warrant. All these constitutions
aforesaid were made at Westminster, in the parliament next after the feast of St.
Michael, the fourth year of the reign of King Edward, son of King Henry ; and from
that time forth they shall take effect.
St. 6 EDVif. I. (St. of Gloucester), (1278) c. 3. It is established also, that if a man
aliene a tenement that he holdeth by the law of England, his son shall not be barred by
the deed of his father (from whom no heritage to him descended) to demand and recover
by writ of mortdauncestor of the seisin of his mother, although the deed of his father
doth mention that he and his heirs be bound to warranty. And if any heritage de-
scend to him of his father's side, then he shall be barred for the value of the heritage
that is to him descended. And if in time after any heritage descend to him bj' the
same father, then shall the tenant recover against him of the seisin of his mother by a
judicial writ that shall issue out of the rolls of the justices before whom the plea
was pleaded, to resummon his warranty, as before hath been done in cases where the
warrantor cometh into the court, saying that nothing descended from him by whose
deed he is vouched. And in like manner the issue of the son shall recover by writ of
cosinage, aiel, and besaiel. Likewise in like manner the heir of the wife shall not be
barred of his action after the death of his father and mother by the deed of his father,
if he demand by action the inheritance of his mother by a writ of entry which his
father did aliene in the time of his mother, whereof no fine is levied in the king's
court.
2 Inst. 293. And by the equity of this statute the warranty of tenant in tail is no
bar nnless there be assets in fee simple descended.
Lit. §§ 703-712, 715, 718. Warranty lineal is, where a man seised of lands in fee
maketh a feoffment by his deed to another, and binds himself and his heirs to war-
ranty, and hath issue and die, and the warranty descend to his issue, that is a lineal
warranty. And the cause why this is called lineal warranty is not because the war-
ranty descendeth from the father to his heir, but the cause is, for that if no such deed
with warranty hath been made by the father, then the right of the tenements should
descend to the heir, and the heir should convey the descent from his father, &c.
For if there be father and son, and the son purchase lands in fee, and the father
of this disseiseth his son, and alieneth to another in fee by his deed, and by the same
deed bind him and his heirs to waiTant the same tenements, &o. and the father dieth ;
now is the son barred to have the said tenements ; for he cannot by any suit, nor by
other mean of law, have the same lands by cause of the said warranty. And this is a
collateral waiTanty ; and yet the warranty descendeth lineally from the father to the
son.
But because if no such deed with warranty had been made, the son in no manner
could convey the title which he hath to the tenements from his father unto him, inas-
much as his father had no estate in right in the lands ; wherefore such warranty is
called collateral warranty, inasmuch as he that maketh the warranty is collateral to
the title of the tenements ; and this is as much to say, as he to whom the warranty
descendeth, could not convey to him the title which he hath in the tenements by him
that made the warranty, in case that no such warranty were made.
Also, if there be grandfather, father, and son, and the grandfather is disseised, in
whose possession the father releaseth by his deed with waiTanty, &c. and dieth and after
27
418 WARRANTY.
the grandfather dieth ; now the son is barred to have the tenements by the warranty
of the father. And this is called a lineal warranty, because if no such warranty were,
the son could not convey the right of the tenements to him, nor show how he is heir
to the grandfather but by means of the father.
Also, if a man hath issue two sous and is disseised, and the eldest son release
to the disseisor by his deed with warranty, &c. and dies without issue, and afterwards
the father dieth, this is a lineal warranty to the younger son, because albeit the
eldest son died in the life of the father, yet by possibility it might have been, that
he might convey to him the title of the land by his elder brother, if no such warranty
had been. For it might be, that after the death of the father the elder brother entered
into the tenements and died without issue, and then the younger son shall convey to
him the title by the elder son. But in this case if the younger son releaseth with
warranty to the disseisor, and dieth without issue, this is a collateral warranty to the
elder son, because that of such land as was the father's, the elder by no possibility
can convey to him the title by means of the younger son.
Also, if tenant in tail hath issue three sons, and discontinue the tail in fee, and
the middle son release by his deed to the discoutinuee, and bind him and his heirs
to warranty, &a. and after the tenant in tail dieth, and the middle son dieth with-
out issue, now the eldest son is barred to have any recovery by writ o( formedon,
because the warranty of the middle brother is collateral to him, inasmuch as he can
by no means convey to him by force of the tail any descent by the middle, and
therefore this is a collateral warranty. But in this case if the eldest son die without
issue, now the youngest brother may well have a writ of fonyiedon in the discender^
and shall recover the same land, because the warranty of the middle is lineal to the
youngest son, for that it might be that by possibility the middle might be seised by
force of the tail after the death of his eldest brother, and then the youngest brother
might convey his title of descent by the middle brother.
Also if tenant in tail discontinue the tail, and hath issue and dieth, and the uncle
of the issue release to the discoutinuee with warranty, &c. and dieth without issue,
this is a collateral warranty to the issue in tail, because the warranty descendeth upon
the issue, that cannot convey himself to the entail by means of his uncle.
Also, if the tenant in tail hath issue two daughters and dieth, and the elder eutereth
into the whole, and thereof maketh a feoffment in fee with warranty, &c. and after the
elder daughter dieth without issue ; in this case the younger daughter is barred as to
the one moiety, and as to the other moiety she is not barred. For as to the moiety which
belongeth to the younger daughter, she is barred, because as to this part she cannot
convey the descent by means of her elder sister, and therefore as to this moiety, this is
a collateral warranty. But as to the other moiety, which belongeth to her elder sis-
ter, the warranty is no bar to the younger sister, because she may convey her descent
as to that moiety which belongeth to her elder sister by the same elder sister, so as to
this moiety which belongeth to the elder sister the wan'anty is lineal to the younger
sister.
And note, that as to him that demandeth fee simple by any of his ancestors, he
shall be barred by warranty lineal which descendeth upon him, unless he be restrained
by some .statute.
But he that demandeth fee tail by writ of formedon in discender shall not be
bari-ed by lineal warranty, unless he hath assets, by descent in fee simple by the same
ancestor that made the warranty. But collateral waiTanty is a bar to him that de-
mandeth fee, and also to him that demandeth fee tail without any other descent of fee
simple, except in cases which are restrained by the statutes, and in other cases for
certain causes, as shall be said hereafter.
And note, that in every case where a man demandeth lands in fee tail by writ of
forinedon, if any of the issue in tail that hath possession, or that hath not possession,
make a warranty &c. if he which sueth the writ of formedon might by any possibil-
ity, by matter which might be en fiat, convey to him, by him that made the warranty
■per forinnm doni, this is a lineal warranty, and not collateral.
Also, if a father giveth land to his eldest son, to have and lo hold to him and to Hie
STATUTES OF FINES. 419
iieirs males of his body begotten, the remainder to the second son, &c. if the eldest
sou alieneth in fee with warranty, &c. and hath issue female, and dieth without
issue male, this is no collateral warranty to the second son, for he shall not be baried
of his action of foi-medon in the remainder, because the warranty descended to the
daughter of the elder son, and not to the second son ; for every warranty which de-
scends, descendeth to him that is heir to him who made the warranty, by the common
law.
Co. Lit. 393 6. A lineal warranty and assets is a good plea in a fonnedon in
the discender ; wherein it is to be known that if tenant in tail alieneth with war-
ranty, and leave assets to descend ; if the issue in tail doth alien the assets, and die,
the issue of that issue shall recover the land, because the lineal warranty descendeth
only to him without assets ; for neither the pleading of the warranty without the
assets, nor the assets without the warranty, is any bar in the formedon in the discender.
But if the issue to whom the warranty and assets descended had brought di formedon,
and by judgment had been barred by reason of the warranty and assets ; in that case,
albeit he alieneth the assets, yet the estate tail is barred for e ver ; I or a bar in a for-
medon in the discender, which is a writ of the highest nature that an issue in tail can
have, is a good bar in any other formedon in the discender brought afterwards upon
the same gift.
" So as the doctrine of the binding of lineal and collateral warranties, or their not
binding, is an extraction out of men's brains, and speculations, many scores of years
after the Statute De donis.
" And if Littleton (whose memory I much honor) had taken that plain way in resolv-
ing his many excellent cases in his chapter of warranty, of saying the warranty of the
ancestor doth not bind in this case, because it is restrained by the Statute of Glocester or
the Statute De donis, and it doth bind in this case, as at the common law, because not
restrained by either statute (for when he wrote there were no other statutes restraining
warranties, there is now a third 11 H. 7), his doctrine of warranties had been more
clear and satisfactory than now it is, being intricated under the terms of lineal and
collateral ; for that in truth is the genuine resolution of most, if not of all, his cases:
for no man's warranty doth bind, or not, directly, and d priori, because it is lineal or
collateral ; for no statute restrains any warranty under those terms from binding, nor no
law institutes any warranty in those terms ; but those are restraints by consequent only
from the restraints of warranties made by statutes." Per Vaughan, C. J., in Bole v.
Horton, Vaugh. 860, 375.
St. 4 Ken. VII. (1490) c. 24. Item, where it was ordained in the time of King
Edward the First, by the statute De finibus, that notes and fines to be levied in the
King's court afore his justices should be openly and solemnly read, and that pleas in
the mean time should cease, and this to be done by two days in the week, after the
discretion of the justices, as in the said statute more plainly appeareth : The King our
Sovereign Lord cousidereth. That fines ought to be of the greatest strength to avoid
strifes and debates, and to be a final end and conclusion ; and of such effect were taken
afore a statute made of non-claim, and now is used to the contrary, to the universal
trouble of the King's subjects, will therefore it be ordained, by the advice of the Lords
Spiritual and Temporal, and the Commons, in the said Parliament assembled, and by
the authority of the same, That after the ingrossing of every fine to be levied after
the feast of Ea.ster, that shall be in the year of our Lord 1490, in the King's court,
afore his justices of the Common Place, of any lands, tenements, or any other heredita-
ments, the same fine be openly and solemnly read and proclaimed in the same court the
same term, and in three terms then next following the same ingrossing in the same
court, at four several days in every term ; and in the same time that it is so read and
proclaimed, all pleas to cease. And the said proclamations so had and ,made, the said
fine to be a final end, and conclude as well privies as strangers to the same, except
women covert (other than been parties to the said line) and every person then being
within age of twenty-one years, in prison, or out of this realm, or not of whole mind at the
time of the said fine levied, not parties to such fine ; and saving to every person or per-
420 STATUTES OF FINES.
sons, and to their heirs, other than the parties in the said fine, such right, title, claim,
and interest, as they have to or in the said lands, tenements, or other hereditaments, the
time of such iine ingrossed ; so that they pursue their title, claim, or interest by way
of action, or lawful entry, within five years next after the said proclamations had and
made : And also saving to all other persons such action, right, title, claini, and in-
terest in or to the said lands, tenements, or other hereditaments, as first shall grow,
remain, or descend, or come to them after the said fine ingrossed and proclamation
made, by force of any gift in the tail, or by any other cause or matter had and made
before the said fine levied ; so that they take their action, or pursue their said right and
title, according to the law, within five years next after such action, right, title, claim,
or interest to them accrued, descended, remained, fallen, or come : And that the said
persons and their heirs, may have their said action against the pernor of the profits of
the said lands and tenements, and other hereditaments, at the time of the said action
to be taken. And if the same persons, at the time of such action, right, and title ac-
crued, descended, remained, or come unto them, be covert de baron, or within age, in
prison, or out of this land, or not of whole mind, then it is ordained by the said
authority. That their action, right, and title, be reserved and saved to them and their
heirs, unto the time they come and be at their full age of twenty-one years, out of prison,
within this land, uncovert, and of whole mind, so that they, or their heirs, take their
said actions, or their lawful entry, according to their right and title, within five years
next after that they come and be at their full age, out of prison, within this land,
uncovert, and of whole mind, and the same actions pursue, or other lawful entry take,
according to the law. And also it is ordained by the authority aforesaid. That all
such persons as be covert de baron, not party to the fine, and every person being within
age of twenty-one years, in prison, or out of this land, or not of whole mind, at the time of
the said fines levied and ingrossed, and by this said act afore except, having any right
or title, or cause of action, to any of the said lands and other hereditaments, that they,
or their heirs, inheritable to the same, take their said actions or lawful entry according to
their right and title, within five years next after they come and be of age of twenty-one
years, out of prison, uncovert, within this land, and of whole mind, and the same ac-
tions sue, or their lawful entry take and pursue, according to the law. And if they do
not take their actions and entry as is aforesaid. That they and every of them, and
their heirs and the heirs of every of them, be concluded by the said fines for ever, in
like form as they be that be parties or privies to the said fines : Saving to every per-
son or persons, not party nor privy to the said fine, their exception to avoid the same
fine, by that, that those which were parties to the fine, nor any of them, nor no person
or persons to their use ne to the use of any of them, had nothing in the lands and,
tenements comprised in the said fine at the time of the said fine levied. And it is '
ordained by the said authority. That every fine that hereafter shall be levied in any of
the King's courts, of any manors, lands, tenements, and other possessions, after the
manner, use and form, that fines have been levied afore the making of this act, be of
like force, effect, and authority, as fines so levied be or were afore the making of this
act ; this act, or any other act in this present parliament made or to be made, not-
withstanding. And every person shall be at liberty to levy any fine hereafter at his
pleasure, whether he will after the form contained and ordained in and by this act, or
after the manner and form aforetime used.
St. 32 Hen. VIII. (1540) c. 36. Forasmuch as in the fourth year of the reign of
the late King of famous memory, King Henry the Seventh, father of our most dread
sovereign lord the King that now is, it was, among many good and sundry statutes and
ordinances then made for the common wealth, enacted, ordained, and established the
fonn and manner how fines should be levied with proclamations in the King's court be-
fore his justices of his Common Place, and that such fines, with proclamations so had
and made, to the intent to void all strife and debates, should be a final end, and con-
clude as well privies as strangers to the same, certain persons excepted and saved, as in
the same statute more plainly appeareth ; sithen which time, b}' diversity of inter-
STATUTES OP FINES. 421
pretations, and expounding of the same statute, it hath been, and is yet, by some
manner of persons doubted and called in question, whether tines with proclamations
levied or to be levied before the said justices, by any person or persons having, or
claiming to have in any manors, lands, tenements or hereditaments comprised in the
same tine, in possession, reversion, remainder, or in use, any manner of estate-tail,
should immediately after the said fine levied, engrossed, and proclamation made, bind
the right heir and heirs of such tenant in tail, and every other person and persons
seised or claiming to their use or uses ; by occasion whereof divers debates, controver-
sies, suits and troubles have been begun, moved, and had within this realm, and mo
be like to ensue, if remedy for the same be not provided ; for the establishment and
reformation whereof, and for the sure and sincere interpretation of the said statute, in
avoiding all dangers, contentions, controversies, ambiguities and doubts that hereafter
may ensuige, grow or happen, our said Sovereign Lord the King, with the assent of the
Lords Spiritual and Temporal, and the Commons, in this present Parliament assenjbled,
and by authority of the same, hath enacted and ordained. That all and singular tines,
as well heretofore levied, as hereafter to be levied before the said justices with procla-
mations, according to the said statute, by any person or persons of full age of one and
iwenty years, of any manors, lands, tenements or hereditaments, before the time of the
said tine levied in any wise entailed to the person or persons so levying the same tine,
or to any the ancestor or ancestors of the same person or persons in possession, rever-
sion, remainder or in use, shall be, immediately after the same fine levied, engrossed,
and proclamations made, adjudged, accepted, deemed and taken, to all intents and
purposes, a sufBoient bar and discharge for ever against the said person and persons,
and their heirs claiming the same lands, tenements and hereditaments, or any parcel
thereof, only by force of any such entail, and against all other persons claiming the same,
or any parcel thereof, only to their use, or to the use of any manner of heir of the
bodies of them ; any ambiguity, doubt or contrariosity of opinion, risen or grown upon
the said estatute to the contrary notwithstanding.
II. Provided alway. That this Act, nor any thing therein contained, shall extend to
bar or exclude the lawful entry, title or interest of any heir or heirs, person or persons,
heretofore given or hereafter to be given, grown or accrued to them or any of them, in
or to any manors, lands, tenements and hereditaments, by reason of any fine or fines
heretofore levied, or hereafter to be levied, by any woman after the death of her hus-
band, contrary to the form, intent, and effect of the statute made in the said eleventh
year of the said King Henry the Seventh, of any manors, lands, tenements and here-
ditaments, of the inheritance or purchase of the said husband or of any his ancestors,
given or assigned to any such woman in dower, for term of life or in tail, in use or in
possession, but that the same Act made in the said eleventh year of the said late King
Henry the Seventh shall stand, remain and be in full strength and virtue in every
article, sentence and clause therein contained, in like manner and form as though this
present Act had never been had ne made.
III. Provided also, That this Act, ne any thing therein contained, do extend to any
fine or fines at any time heretofore levied, or hereafter to be levied, of any lordships,
manors, lands, tenements or other hereditaments whatsoever they be, the possession-
ers and owners whereof, by reason of any express words contained in any .special
Act or Acts of Parliament made or ordained since the saith fourth year of the reign of
the said late King Henry the Seventh, stand, be bounden or restrained from making
any alienations, discontinuances, or other alterations of any of the same lordships,
manors, lands, tenements or other hereditaments, contained in the said fine or fines ;
but that all and every such fine and fines at any time heretofore levied, or hereafter
to be levied, by any such person or persons or their heirs, of any such lordships, man-
ors, lands, tenements or other hereditaments, shall be of snch like force and strength
in the law, and of none other effect than the same fine so levied, or to be levied, should
have been if this present .\ct had never been had nor made ; any thing therein contained
to the contrary thereof in any wise notwithstanding.
IV. Provided also. That this Act, nor any thing therein contained, shall extend to
any fine or fines heretofore levied of any manors, lands, tenements or hereditaments
422 FINES.
now in suit, demand or variance, in any of the King's courts, or whereof any charters,
evidences or muniments concerning the same, he now in demand in the King's high
court of chancery ; nor to any fine or fines lieretofore levied of any manors, lands, tene-
ments or hereditaments, which before the first day of this present Parliament have
been recovered, gotten or obtained by reason of any judgment, entry, decree, arbitra-
ment, or other lawful means, contrary to the purport, intent or effect of any such fine
or fines thereof, heretofore levied ; nor to any fine or fines heretofore levied, or here-
after to be levied, by any person or persons, of any manors, lands, tenements or here-
ditaments, before the time of the levying of the same fine, given, granted or assigned
to the said person or persons so levying the same fine, or to any of his or their ancestors
in tail, by virtue of any letters patents of our said sovereign lord, or any of his progen-
itors, or by virtue of any Act or Acts of parliament, the reversion whereof, at the time
of the same fine or fines, so levied, being in our said sovereign lord, his heirs or succes-
sors ; but that every such fine and fines shall be of like force, strength and eifect, as
they were or should have been, if this act had never been had nor made.
The following forms of a fine and a recovery have been taken from the appendix to the
second volume of Blaokstone's Commentaries : —
A Fine of Lands Sur Cognizance De Droit, Come Ceo, etc.
Sect. 1. Writ of Covenant; or Prcecipe.
George the Second, by the grace of God, of Great Britain, France, and Ireland, king,
defender of the faith, and so forth, to the sheriff' of Norfolk, greeting. Command
Abraham Barker, esqirire, and Cecilia his wife, and John Barker, esquire, that justly
and without delay they perform to David Edwards, esquire, the covenant made between
them of two messuages, two gardens, three hundred acres of land, one hundred acres of
meadow, two hundred acres of pasture, and fifty acres of wood, with the appurtenances,
in Dale ; and unless they shall so do, and if the said David shall give you security of
prosecuting his claim, then summon by good summoners the said Abraham, Cecilia,
and John, that they appear before our justices at Westminster, from the day of St.
Jlichael in one month, to shew wherefore they have not done it : and have you there
the summoners and this writ. Witness ourself at Westminster the ninth day of
October, in the twenty-first year of our reign.
Pledges of prosecution, { Sar^^Eoe.
Summoners of the within-named ( John Den.
Abraham, Cecilia, and John, I Richard Fen.
Sect. 2. The License to Agree.
Norfolk, ) David Edwards, esquire, gives to the lord the king ten marks for
to wit, ) license to agree with Abraham Barker, esquire, of a plea of covenant
of two messuages, two gardens, three hundred acres of land, one hundred acres of
meadow, two hundred acres of pasture, and fifty acres of wood, with the appurte-
nances, in Dale.
Sect. 3. The Concord.
And the agreement is such, to wit, that the aforesaid Abraham, Cecilia, and John
have acknowledged the aforesaid tenements, with the appurtenances, to be the right of
him the said David as those which the said David hath of the gift of the aforesaid
.\braham, Cecilia, and John ; and those they have remised and quitted claim, from
them and their heirs, to the aforesaid David and his heirs, for ever. And, further, the
same Abraham, Cecilia, and John have granted, for themselves and their heirs, that
they will wan-ant to the aforesaid David and his heirs the aforesaid tenements, with
the appurtenances, against all men, for ever. And for this recognition, remise, quit-
claim, warranty, fine, and agreement, the said David hath given to the said Abraham,
Cecilia, and John two hundred pounds sterling.
EECOVBEIES. 423
Sect. 4. The Note or Abstract.
Norfolk, ) Between David Edwards, esquire, complainant, and Abraham Barker,
to wit. ) esquire, and Cecilia his wife, and John Barker, esquire, deforciants of two
messuages, two gardmis, three hundred acres of land, one hundred acres of meadow,
two hundred acres of pasture, and lifty acres of wood, with the appurtenances, in Dale,
whereupon a plea of covenant was summoned between them : to wit, that the said
Abraham, Cecilia, and John have acknowledged the aforesaid tenements, with the ap-
purtenances, to be the right of him the said David, as those which the said David hath
of the gift of the aforesaid Abraham, Cecilia, and John ; and those they have remised
and quitted claim, from them and their heirs, to the aforesaid David and his heirs for
ever. And, further, the same Abraham, Cecilia, and John have granted for themselves
and their heirs, that they will warrant to the aforesaid David and his heirs the afore-
said tenements, with the appurtenances, against all men, for ever. And for this recog-
nition, remise, quitclaim, warranty, fine, and agreement, the said David hath given to
the said Abraham, Cecilia, and John two hundred pounds sterling.
Sect. 5. The Foot, Chirograph, or Indentures of tlie Fine.
Norfolk, ] This is the final agreement, made in the court of the lord the king at
to wit. S Westminster, from the day of Saint Michael in one month, in the twenty-
first year of the reign of the lord George the Second, by the grace of God, of Great Brit-
ain, Fmnce, and Ireland, king, defender of the faith, and so forth, before John Willes,
Thomas Abney, Thomas Burnet, and Thomas Birch, justices, and other faithful sub-
jects of the lord the king then there present, between David Edwards, esquire, com-
plainant, and Abraham Barker, esquire, and Cecilia his wife, and John Barker, esquire,
deforciants, of two messuages, two gardens, three hundred acres of land, one hundred
acres of meadow, two hundred acres of pasture, and fifty acres of wood, with the appur-
tenances, in Dale, whereupon a plea of covenant was summoned between them in the
said court ; to wit, that the aforesaid Abraham, Cecilia, and John, have acknowledged
the aforesaid tenements, with the appurtenances, to be the right of him the said David,
as those which the said David hath of the gift of the aforesaid Abraham, Cecilia, and
John; and those they have remised and quitted claim, from them and their heirs, to
the aforesaid David and his heirs, for ever. And, further, the same Abraham, Cecilia,
and John have granted for themselves and their heirs that they will warrant to the
aforesaid David and his heirs the aforesaid tenements, with the appurtenances, against
all men, for ever. And for this recognition, remise, quitclaim, warranty, fine, and
agreement, the said David hath given to the said Abraham, Cecilia, and John two hun-
dred pounds sterling.
Sect. 6. Proclamations, endorsed upon the Fiiu, according to the Statutes.
The first proclamation was made the sixteenth day of November, in the term of
Saint Michael, in the twenty-first year of the king within-written.
The second proclamation was made the fourth day of February, in the term of Saint
Hilary, in the twenty-first year of the king within -written.
The third proclamation was made the thirteenth day of May, in the term of Easter,
in the twenty-first year of the king within-written.
The fourth proclamation was made the twenty-eighth day of June, in the term of the
Holy Trinity, in the twenty-second year of the king within-written.
A Common Recovery of Lands with ^ Double Voucher.
Sect. 1. Writ of Entry sur Disseisin in the Post ; or Prcecipe.
George the Second, by the grace of God, of Great Britain, France, and Ireland,
king, defender of the faith, and so forth, to the sheriff of Norfolk, greeting. Command
1 Note, that if the recovery be had with single voiicher, the parts marked " thus " in sect.
2 are omitted.
424 RECOVERIES.
David Edwards, esquire, that, justly and wittout delay, he render to Francis Golding,
clerk two messuages, two gardens, three hundred acres of land, one hundred acres of
meadow, two hundred acres of pasture, and fifty acres of wood, with the appurtenances,
in Dale, which he claims to be his right and inheritance, and into which the said
David hath not entry, unless after the disseisin, which Hugh Hunt thereof unjustly and
without judgment hath made to the aforesaid Francis, within thirty years now last
])ast, as he saith, and whereupon he complains that the aforesaid David deforceth him.
And unless he shall so do, and if the said Francis shall give you security of prosecuting
liis claim, then summon by good summoners the said David, that he appear before our
justices at Westminster on the octave of Saint Martin, to show wherefore he hath not
done it : and have you there ths summoners and this writ. Witness ourself at West-
minster, the twenty-ninth day of October, in the twenty-first year of our reign.
Pledges of prosecution, ^ „. , '
( Richard Koe.
Summoners of the within-named David, } „ . , , '
' t Richard Fen.
Sect. 2. Exemplification of the Becovery Boll.
George the Second, by the grace of God, of Great Biltain, France, and Ireland, king,
defender of the faith, and so forth, to all to whom these our present letters shall come,
gi'eeting. Know ye that among the pleas of land enrolled at Westminster, before Sir
John Willes, knight, and his fellows, our justices of the bench, of the term of Saint
Michael, in the twenty-first year of our reign, upon the fifty-second roll it is thus con-
tained: Entry returnable on the octave of Saint Martin. Norfolk, to wit: Francis
Golding, clerk, in his proper person demandeth against David Edwards, esquire, two
hiessuages, two gardens, three hundred acres of land, one hundred acres of meadow, two
hundred acres of pasture, and fifty acres of wood, with the appurtenances, in Dale,
as his right and inheritance, and into which the said David hath not entry, unless
after the disseisin which Hugh Hunt thereof unjustly, and without judgment, hath
made to the aforesaid Francis, within thirty years now la.st past. And whereupon he
saith that he himself was seised of thetenements aforesaid, with the appurtenances, in
his demesne as of fee and right in time of peace, in the time of the lord the king that
now is, by taking the profits thereof to the value [ ^ of six shillings and eight pence,
and more, in rents, corn, and grass] : and into which [the saith David hath not entry,
unless as aforesaid] : and thereupon he bringeth suit [and good proof]. And the said
David in his proper person comes and defendeth his right, when [and where it shall be-
hove him], and thereupon voucheth to warranty " John Barker, esquire; who is present
here in court in his proper person, and the tenements aforesaid, with the appurtenances
to him freely warranteth [and prays that the said Francis may count against him].
And hereupon the said Francis demandeth against the said John, tenant by his own
warranty, the tenements aforesaid, with the appurtenances, in form aforesaid, &c. And
whereupon he saith, that he himself was seised of the tenements aforesaid, with the
appurtenances, in his demesne as of fee and right, in time of peace, in the time of
the lord the king that now is, by taking the profits thereof to the value, &e. And
into which, &c. And thereupon he bringeth suit, &c. And the aforesaid John,
tenant by his own warranty, defends his right, when, &c. and thereupon he further
voucheth to warranty" Jacob Morland; who is present herein court in his pro]ier per-
son, and the tenements aforesaid, with the appurtenances, to him freely warranteth, &c.
And hereupon the said Francis demandeth against the said Jacob, tenant by his own
warranty, the tenements aforesaid, with the appurtenances, in form aforesaid, &c. And
whereupon he saith that he himself was seised of the tenements aforesaid, with the ap-
purtenances, in his demesne as of fee and right, in time of peace, in the time of the lord
the king that now is, by taking the profits thereof to the value, &c. And into which,
&c. And thereupon he bringeth suit, &c. And the aforesaid Jacob, tenant by his
1 The clauses between hooks are no otherwise expressed in the record than by an &c.
DETERMINABLE FEES. 425
own warranty, defends Ms right, when, &c. And saith that the aforesaid Hugh did
not disseise the aforesaid Francis of the tenements aforesaid, as the aforesaid Fiancis by
his writ and count aforesaid above doth suppose : and of this he puts himself upon the
country. And the aforesaid Francis thereupon craveth leave to imparl ; and he hath it.
And afterwards the aforesaid Francis cometh again here into court, in this same terra in
his proper person, and the aforesaid Jacob, though solemnly called, cometh not again,
but hath departed in contempt of the court, and maketh default. Therefore it is
considered that the aforesaid Francis do recover his seisin against the aforesaid David
of the tenements aforesaid, with the appurtenances : and that the said David have of
the land of the aforesaid "John, to the value [of the tenements aforesaid] ; and, fur-
ther, that the said John have of the land of the said " Jacob to the value [of the ten-
ements aforesaid]. And the said Jacob in mercy. And hereupon the said Francis prays
a writ of the lord the king, to be directed to the sheriff of the county aforesaid, to cause
him to have full seisin of the tenements aforesaid, with the appurtenances : and it is
granted unto him, returnable here without delay. Afterwards, that is to say, the
twenty-eighth day of November in this same term, here cometh the said Francis in his
proper person ; and the sherifl', namely. Sir Charles Thompson, knight, now sendeth,
that he by virtue of the writ aforesaid to him directed, on the twenty-fourth day of the
same month, did cause the said Francis to have full seisin of the tenements aforesaid,
with the appurtenances, as he was commanded. All and singular which premises, at
the request of the said Francis, by the tenor of these presents, we have held good to be
exemplified. In testimony whereof we have caused our seal appointed for sealing
writs in the Bench aforesaid to be affixed to these presents. Witness, Sir John Willes,
knight, at Westminster, the twenty-eighth day of November, in the twenty-first year
of our reign.
Determinable and Base Fees. " Intendments should be guided by the rules of
the law, and not by idle conceits, and to prove this further, 13 Hen. VII., 11 Hen. VII.,
21 Hen. VI. fo. 37, it is held, and the law seems plain, that if land be given to one and
his heirs so long as J. S. has heirs of his body, the donee has a fee and may alien it not-
withstanding there be a condition that he shall not alien ; and 11 lib. Assize, p. 8, a like
case is put and held as above : and there if land be given to one and his heirs so long
as J. S. or his heirs may enjoy the Manor of D., those words (so long) are utterly vain
and idle, and do not abridge the estate . . . and j'et it is to be admitted that one may
have an estate in fee determinable, but never by the act and consent of the parties with-
out any entry for condition broken or title defeasible ; and to show briefly how this
will be is now convenient, and it will he if the lord of a villein being tenant in tail
enters on the land, &o., he and his heirs will enjoy the land so long as the villein has
issue, and then his estate determines ; so he who recovers rent against a tenant in tail,
' que ill teign in tail ' [out of what he holds in tail ?] ; or [suppose] that tenant in tail of
land be attainted of treason, the king will have a fee of the land entailed determinable
on death without issue, and has no greater estate ; but these estates last mentioned are
not made by the first creation of the estates but by matter coming afterwards by
othermeans." Per Anderson, C.J., in Christopher Corbet's Cane, 2And. 134, 138,139.
" Before the statute of Quia emptores (18 Edw. 1) an estate might have been granted
to A. B. and his heirs, so long as C. D. and his issue should live, or so long as C. D.
and his heirs should be tenants of the manor of Dale; and upon C. D.'s ceasing to have
issue, or to be tenant of the manor of Dale, the estate reverted to the donor, not as a
condition broken, of which the donor, or his heir, might take advantage by entry, but
as a ]irinciple of tenure, in the nature of an escheat upon the death of a tenant in fee-
simple without heirs general. But the statute of Quia emptores destroys the immediate
tenure between the donor and donee, in eases where the fee is granted; and conse-
quently there can now be no reverter, or any estate or possibility of a reversion remain-
ing in the donor after an estate in fee granted by him. This conclusion dii'ectly follows
from the doctrine of tenures, and the effect of the statute of Quia emptores upon that
doctrine. The proposition does not require the aid of decided cases; but the passage
426 ESTATES FOK LIFE.
SECTION III.
ESTATES FOE LIFE.
Lit. §§ 32-36, 56, 57. Tenant in fee tail after possibility of issue
extinct is, where tenements are given to a man and to bis wife in es-
pecial tail, if one of them die without issue, the survivor is tenant in
tail after possibility of issue extinct. And if they have issue, and the
one die, albeit that during the life of the issue, the survivor shall not be
said tenant in tail after possibility of issue extinct ; yet if the issue die
without issue, so as there be not any issue alive which may inherit by
force of the tail, then the surviving party of the donees is tenant in
tail after possibilitj' of issue extinct.
Also, if tenements be given to a man and to his heirs which he shall
beget on the body of his wife, in this case the wife hath nothing in the
tenements, and the husband is seised as donee in especial tail. And in
this case, if the wife die without issue of her body begotten by her
husband, then the husband is tenant in tail after possibilitj" of issue
extinct.
And note, that none can be tenant in tail after possibility^ of issue
extinct, but one of the donees, or the donee in especial tail. For the
donee in general tail cannot be said to be tenant in tail after possi-
bility of issue extinct; because always during his life, he may bj- pos-
sibility have issue which may inherit bj- force of the same entail. And
so in the same manner the issue, which is heir to the donees in especial
tail, cannot be tenant in tail after possibility of issue extinct, for the
reason abovesaid.
And note, that tenant in tail after possibility of issue extinct shall not
in 2 And. 138, contains an accurate exposition of the law upon this subject: ' If laud
be given to A. and his heirs, sn long as J. S. has heirs of his body, the donee has fee,
and maj' alien it. 13 Hen. 7; 11 Hen. 7; 21 Hen. 6, fol. 37; and says the law seems
to be plain in it; and cites 11 Ass. 8, where the s. o. is put and held as before; and
that there if the land be given to one and his heirs, so long as J. S. and his heirs shall
enjoy the manor of D., those words {so long) are entirely void and idle, and do not
abridge the estate.'
"The references in this passage (with the exception of the 11 Ass. 8) are not in the
report correctly stated; but they are discovered in 13 Hen. 7, Easter Term, fol. 24;
11 Hen. 7, pi. 25; 21 Hen. 6, Hill, pi. 21. It will be proper to refer to the case first
mentioned; premising, that, by the common law, where an absolute estate in fee simple
\va.5 granted, no restraint could be placed on the alienation of it; inasmuch as such re-
straint would be repugnant to the grant itself Upon a question in the case referred
to, whether a condition restraining alienation upon the grant of an estate tail since the
statute De donis was valid, Vavisour thought it valid; but added, that he agreed that
such condition im])0spd on a feoffee in fee simple, so long as J. S. has issiie, was void."
1 Sand. Uses (5th ed.) 20S-210. See Gray, Perpetuities, §§ 31-41.
ESTATES FOR LIFE. 427
be punished of waste, for the inheritance that once was in him, 10 H. 6.
1. But he in the reversion may enter if he ahen in fee, 45 E. 3. 22.
Tenant by the curtesy of England is, where a man taljeth a wife
seised in fee simple or in fee tail general, or seised as heir in tail es-
pecial, and hath issue bj' the same wife male or female born alive,
albeit the issue after dieth or liveth, j-et if the wife dies, the husband
shall hold the laud during his life by the law of England. And he is
called tenant by the curtesy of England, because this is used in no
_other realm but in England onl^'.
And some have said, that he shall not be tenant by the curtesy, un-
less the child, which he hath by his wife, be heard cry ; for b}- the cry
it is proved, that the child was born alive. Therefore Quaere.
Tenant in dower is, where a man is seised of certain lands or tenet
ments in fee simple, fee tail general, or as heir in special tail, and
taketh a wife, and dieth, the wife after the decease of her husband shall
be endowed of the third part of such lands and tenements as were her
husband's at any time during the coverture, to have and to hold to the
same wife in severalty hy metes and bounds for term of her life,
whether she hath issue bj' her husband or no, and of what age soever
the wife be, so as she be past the age of nine years at the time of the
death of her husband [for she must be above nine years old at the time
of the decease of her husband], otherwise she shall not be endowed.
Tenant for term of life is, where a man letteth lands or tenements to
another for term of the life of the lessee, or for term of the life of
another man. In this case the lessee is tenant for term of life. But
bj' common speech he which holdeth for term of his own life, is called
tenant for term of his life, and he which holdeth for term of another's
life, is called tenant for term of another man's life {tenant pur terme
(fauter vie).
And it is to be understood, that there is feoffor and feoffee, donor and
donee, lessor and lessee. Feoffor is properly where a man enfeoffs
another in any lands or tenements in fee simple, he which maketh the
feoffment is called the feoffor, and he to whom the feoffment is made is
called the feoffee. And the donor is properly- where a man giveth cer-
tain lands or tenements to another in tail, he which maketh the gift is
called the donor, and he to whom the gift is made is called the donee.
And the lessor is properly where a man letteth to another lands or tene-
ments for term of life, or for term of years, or to hold at will, he
which maketh the lease is called lessor, and he to whom the lease is
made is called lessee. And every one which hath an estate in any
lands or tenements for term of his own or another man's life, is called
tenant of freehold, and none other of a lesser estate can have a freehold :
but they of a greater estate have a freehold ; for he in fee simple hath
a freehold, and tenant in tail hath a freehold, &c.
428 ESTATES LESS THAN FREEHOLD.
SECTION IV.
ESTATES LESS THAN FREEHOLD.
Lit. § 58. Tenant for term of years is where a man letteth lands
or tenements to another for term of certain j-ears, after the number of
years that is accorded between the lessor and the lessee. And when
the lessee entereth b}- force of the lease, then is he tenant for term
of j-ears ; and if the lessor in such case reserve to him a yearlj- rent
upon such lease, he raaj choose for to distrain for the rent in the
tenements letten, or else he maj- have an action of debt for the arrear-
ages against the lessee.
Co. Lit. 46 b. The lessee before entrj- hath an interest, interesse ter-
mini, grantable to another.
Lit. § 68. Tenant at will is, where lands or tenements are let by one
man to another, to have and to hold to him at the will of the lessor, by
force of which lease the lessee is in possession. In this case the lessee
is called tenant at will, because he hath no certain nor sure estate, for
the lessor ma}' put him out at what time it pleaseth him.
Co. Lit. 57 b. There is a great diversity between a tenant at will and
a tenant at sufferance ; for tenant at will is always by right, and tenant
at sufferance entereth by a lawful lease, and holdeth over by wrong.
A tenant at sufferance is he that at the first came in by lawful demise,
and after his estate ended continueth in possession and wrongfully
holdeth over. As tenant pur terme d'auter vie continueth in possession
after the decease of Ce' que vie, or tenant for years holdeth over his
term ; the lessor cannot have an action of trespass before entry.
SECTION V.
EE VERSIONS AND EEMAINDEES.
Lit. § 19. In the same manner it is of the tenant in especial tail,
&c. For in every gift in tail without more saying, the reversion of
the fee simple is in the donor. And the donees and their issue shall
do to the donor, and to his heirs the like services, as the donor doth
to his lord next paramount, except the donees in frankmarriage, who
shall hold quietly from all manner of service (unlesse it be for fealtj-)
until the fourth degree is past, and after the fourth degree is past the
issue in the fifth degree, and so forth the other issues after him, shall
hold of the donor or of his heirs as they hold over, as before is said.
Co. Lit. 22 b. A reversion is where the residue of the estate always
JOINT OWNERSHIP. 429
dotb continue in him that made the particular estate, or where the par-
ticular estate is derived out of his estate, as here in the case of lAtt.
Tenant in fee simple maketh gift in tail, so it is of a lease for life, or
for years.
Co. Lit. 23 a. " The donees and their issue shall do to the donor,
and to his heirs the like services, as the donor doth to Ms lord next
paramount." The reason of this is, that when by construction of the
said statute there was a reversion settled in the donor, for that the
donee had an estate of inheritance, the judges resolved that he should
hold of his donor, as his donor held over : as if the tenant had made
a feoffment in fee at the common law, the feoffee should have holden
of the feoffor as he held over, and before the statute of TFfesiw]. 2,
the donee had holden of the donor as of his person, and now of him as
of his reversion : but if a man msike a lease for life, or years, and
reserve nothing, he shall have fealty only and no rent, though the
lessor hold over by rent, &c.
Co. Lit. 143 a. " Remainder" in legal Latin, is remanere, com-
ing of the Latin word remaneo ; for that it is a remainder or remnant
of an estate in lands or tenements, expectant upon a particular estate
created together with the same at one time.
Co. Lit. 18 a. And j'et in several persons by act in law, a rever-
sion may be in fee simple in one, and a fee simple determinable in an-
other by matter ex post facto ; as if a gift in tail be made to a villein,
and the lord enter, the lord hath a fee simple qualified, and the donor
a reversion in fee. But if the lord infeoffe the donor, now both fee
simples are united, and he hath but one fee simple in him. But one
fee simple cannot depend upon another by the grant of the party ; as
if lands be given to A., so long as B. hath heirs of his body, the
remainder over in fee, the remainder is void.
2 Inst. 505. But j'et tenant for life, and tenant in tail are not
wholly' excluded by force of these words [in fee simple] out of this
Statute [Quia emptores, c. 3], for where the whole fee simple passeth
out of the feoffor, there this Act extendeth to estates for life and in tail ;
as if an estate for life or in tail be made of land, the remainder in fee,
there then tenant for life or in tail shall hold de capitali domino by
force of this act, but otherwise it is when a reversion remaineth in the
donor or lessor.
SECTION VI.
joint ownership.
Lit. §§ 241, 242, 265, 277, 280-282, 287, 292, 294, 309, 319, 321.
Parceners are of two sorts, to wit ; parceners according to the course of
the common law, and parceners according to the custom. Parceners
430 JOINT OWNERSHIP.
after the course of the common law are, where a man, or woman, seised
of certain lands or tenements in fee simple or in tail, hath no issue but
daughters, and dieth, and the tenements descend to the issues, and the
daughters enter into the lands or tenements so descended to them, then
they are called parceners, and be but one heir to their ancestor. Ai"!
thej' are called parceners ; because bj- the writ, which is called breve ue
participatione facienda, the law will constrain them, that partition
shall be made among them. And if there be two daughters to whom
the land descendeth, then they be called two parceners : and if there
be three daughters, the}- be called three parceners ; and four daughters,
four parceners ; and so forth.
Also, if a man seised of tenements in fee simple or in fee tail dieth
without issue of his body begotten, and the tenements descend to his
sisters, they are parceners, as is aforesaid. And in the same manner,
where he hath no sisters, but the lands descend to his aunts, they are
parceners, &c. But if a man hath but one daughter, she shall not be
called parcener, but she is called daughter and heir, &c.
Parceners by the custom are, where a man seised in fee simple, or in
fee tail of lands or tenements which are of the tenure called gavel-
kind within the county of Kent, and hath issue divers sons and die,
such lands or tenements shall descend to all the sons bj- the custom,
and they shall equally' inherit and make partition by the custom, as
females shall do, and a writ of partition lieth in this case as between
females. But it behooveth in the declaration to make mention of the
custom. Also such custom is in other places of England, and also
such custom is in North Wales, &c.
Jointenants are, as if a man be seised of certain lands or tenements,
&c. and infeoffeth two, three, four, or more, to have and to hold to
them for term of their lives, or for term of another's life, by force of
which feoffment or lease they are seised, these are jointenants.
And it is to be understood, that the nature of jointenanc\- is, that
he which surviveth shall have only the entire tenancy, according to such
estate as he hath, if the jointure be continued, &c. As if three join-
tenants be in fee simple, and the one hath issue and dieth, yet they which
survive shall have the whole tenements, and the issue shall have noth-
ing. And if the second jointenant hath issue and die, yet the third
which surviveth shall have the whole tenements to him and to his heirs
for ever. But otherwise it is of parceners ; for if three parceners be,
and before any partition made the one hath issue and dieth, that which
to him belongeth shall descend to his issue. And if such parcener die
without issue, that which belongs to her shall descend to her co-heirs,
so as the}' shall have this by descent, and not b}- survivor, as join-
tenants shall have, &c.
And as the survivor holds place between jointenants in the same
manner it holdeth place between them which have joint estate or posses-
sion with another of a chattel, real or personal. As if a lease of lands
or tenements be made to manj- for term of years, he, which survives of
JOINT OWNERSHIP. 431
the lessees, shall have the tenements to him only during the term by
force of the same lease. And if a horse, or any other chattel personal
be given to many, he which snrviveth shall liave the horse only.
In the same manner it is of debts and duties, &c. for if an obliga-
tion be made to many for one debt, he which surviveth shall have the
whole debt or dutj'. And so is it of other covenants and contracts, &c.
Also, if there be two jointenants of land in fee simple within a
borough where lands and tenements are devisable by testament, and if
the one of the said two jointenants deviseth that which to liim belongeth
by his testament, &c. and dieth, this devise is void./ And the cause is,
for that no devise can take effect till after the death of the devisor, and
b^- his death all the land presently cometh by the law to his companion,
which surviveth, by the survivor ; the which he doth not claim, nor hath
any thing in the land by the devisor, but in his own right by the sur-
vivor according to the course of law, &c. and for tbis cause such devise
is void. But otherwise it is of parceners seised of tenements devisable
in like case of devise, &c. causa qua supra.
Tenants in common are they, which have lands or tenements in fee
simple, fee tail, or for term of life, &c. and they have such lands or
tenements by several titles, and not b^' a joint title, and none of them
know of this his several, but they ought by the law to occupy these
lands or tenements in common, and pro indiviso to take the profits in
common. And because they come to such lands or tenements by sev-
eral titles, and not by one joint title, and their occupation and pos^s-
sion shall be by law between them in common, they are called tenants
in commoUi As if a man infeoff two jointenants in fee, and the one
of them alien that which to him belongeth to another in fee, now the
alienee and the other jointenant are tenants in common ; because they
are in such tenements hy several titles, for the alienee cometh to the
moiety by the feoffment of one of the jointenants, and the other join-
tenant l>ath the other moiety b}- force of the first feoffment made to him
and to his companion, &c. And so they are in by several titles, that is
to saj', by several feoffments, &c.
Also, if three jointenants be, and one of them alien that which to him
belongeth to another man in fee, in this case the alienee is tenant in
common with the other two jointenants : but yet the other two join-
tenants are seised of the two parts which remain jointly, and of these
two parts the survivor between them two holdeth place, &c.
Also, if two parceners be, and the one alieneth that to her belongeth
to another, then the other parcener and the aUenee are tenants in
common.
Also, as there be tenants in common of lands and tenements, &c. as
aforesaid, in the same manner there be of chattels reals and personals.
As if a lease be made of certain lands to two men for term of 20
yeares, and when they be of this possessed, the one of the lessees grant
that which to him belongeth to another during the term, then he to whom
the grant is made and the other shall hold and occupy in common.
432 JOINT OWNERSHIP.
In the same manner it is of chattels personals. As if two have
jointly b}' gift or by buying a horse or an ox, &c. and the one grant
tiiat to him belongs of the same horse or ox to another, the grantee,
and the other which did not grant, shall have and possess such chattels
personals in common. And in such cases, where divers persons have
chattels real or personal in common, and by divers titles, if the one of
them dieth, the others which survive shall not have this as survivor, but
the executors of him which dieth shall hold and occupy this with them
which survive, as their testator did or ought to have done in his life-
time, &c. because that their titles and rights in this were several, &c.
Note. — For statutory changes in the United States, see Stimson, Am. Stat. Law,
§§ 1371, 1375.
SEISIN. 433
CHAPTER III.
SEISIN AND CONVEYANCE.
SECTION I.
SEISIN.
Lit. § 448. Freehold in law is, if a man disseiseth another, and dieth
seised, wherehy the tenements descend to his son, albeit that his son
doth not enter into the tenements, j"et he hath a freehold in law, which
b}- force of the descent is cast upon him, and therefore a release made
to him, so being seised of a freehold in law, is good enough ; and if he
taketh wife being so seised in law, although he never enter in deed, and
dieth, his wife shall be endowed.
Co. Lit. 266 b. Here Littleton describeth what a freehold in law is,
for he had spoke before in many places of freeholds in deed.''
Leake, Digest of Land Law, 46-48. A feoffment might be made
with an e.xpress appropriation of the seisin to a series of estates in the
form of particular estate and remainders, and the livery to the immedi-
ate tenant was then effectual to transfer the seisin to or on behalf of all
the tenants in remainder, according to the estates limited. But future
estates could only be limited in the form of remainders, and anj- limita-
tions operating to shift the seisin otherwise than as 'remainders expect-
1 "It may not, perhaps, be improper in this place to attempt a short explanation of
some words familiar both in the ancient and modern law.
" Seisin is a technical terra denoting the completion of that investiture by which the
tenant was admitted into the tenure, and without which no freehold could be consti-
tuted or pass. It is a word common as well to the French as to the English law. It
is either in deed, which is, when the person has the actual seisin or possession ; or in
law, when after a discent the person, on whom the lands descend, has not actually
entered, and the possession continues vacant, not being usurped by another. Wlien
lands of inheritance are carved into different estates, the tenant of the freehold in pos-
session, and the persons in remainder or reversion, are equally in the seisin of the fee.
But, in opposition to what may be termed the expectant nature of the seisin of those in
remainder or reversion, the tenant in possession is said to have the actual seisin of the
hinds. The fee is intrusted to him. By any act which amounts to a disaffirmance by
him of the title of those in the reversion, he forfeits his estate, and any act of a
stranger which disturbs his estate is a disturbance of the whole fee." Hargrave's note,
217.
28
434 SEISIN.
ant upon the determination of the preceding estate were void at common
law. Thus, upon a feoffment, with liverj' of seisin, to A for life or in
tail, and upon the determination of his estate to B, the future limita-
tion takes effect as a remainder immediatel}- expectant upon A's estate.'
But upon a feoffment to A in fee or for life, and after one 3-ear to B in
fee ; — or to A in fee, and upon his marriage to B in fee ; — or to A in
fee or for life, and upon B paj-ing A a sum of monej' to B in fee, — the
limitations shifting the seisin from A to B at the times and in the events
specified, as the^' could not take effect as remainders, were wholly void
at common law. Plowden, 29 ; 1 Hayes Conv. 19-21. Such limita-
tions became possible in dealing with uses and in dispositions by will,
as will appear hereafter.
The exigencies of tenure required that the seisin or immediate free-
hold should never be in abej'ance, but that there should at all times be
a tenant invested with the seisin readj-, on the one hand, to meet the
claims of the lord for the duties and services of the tenure, and, on the
other hand, to meet adverse claims to the seisin, and to preserve it for
the successors in the title. Co. Lit. 342 b ; Butler's note, lb ; see
1 Hayes Conv. (5th ed.) 12, 14.
This rule had important effects upon the creation of freehold estates ;
for it followed as an immediate consequence of the rule, as also from
the nature of the essential act of conveyance by liverj' of seisin, that
a grant of the freehold could not be made to commence at a future time,
leaving the tenancy vacant during the interval. "Livery of seisin
must pass a present freehold to some person and cannot give a free-
hold in futuro." — "If a man makes a lease for life to begin at
Michaelmas it is void, for he cannot make present liverj' to a future
estate, and therefore in such case nothing passes." Co. Lit. 217 a;
5 Co. 94 b, Harwick's Case.
As a consequence of the same rule if a feoffment were made to A for
life and after his death and one daj- after to B for life or in fee, the
limitation to B was void, because it would leave the freehold without a
tenant or in abej'ance for a daj' after the death of A.''
The seisin or freehold in remainder might be in abeyance during the
continuance of the particular estate ; for the present seisin of the ten-
ant of that estate was sufficient to satisfy all the requirements of ten-
ure, and it represented and supported all the future estates and interests
in the fee.
Accordinglj' a remainder might be limited to take effect upon a condi-
tion, or in a person not ascertained, as an unborn child, so as to be in
1 "The remainder is good and passeth out, of the donor by the livery of seisin ; for
the particular estate and remainder, to many intents and purposes, make but one estate
in judgment of law." Co. Lit. 143 a. See 1 Hayes Conv. 21.
2 Plowden, 25; Feame C. R. 307. "Since the tenancy was not allowed to be
vacant or in suspense for an instant, it was essential to the validity of every convey-
ance of the freehold that it should be made to take immediate effect. On the same
principle, it was essential that all substitutions should be so strictly consecutive as not
to leave the feud unprovided with a tenant even for an iustant." 1 Hayes Conv. 16.
SEISIN. 435
abeyance or uncertainty until the condition happened or the person
became ascertained. Such a limitation was good and might remain in
uncertaintj- so long as the particular estate continued, as it was sup-
ported by the seisin of that estate. But it was essential that it should
have become certain and absolute at the time when the particular estate
determined ; and if not then ascertained, so as to be capable of taking
up the seisin, it failed altogether, and the next estate in remainder
took immediate effect.^
A remainder limited to an uncertain person or upon an uncer-
tain condition, and so long as the uncertainty lasted, became known
as a contingent remainder. A remainder limited absolutely and to
a determinate person, or which had become absolute and certain
in ownership by subsequent events was a vested remainder ; the
remainderman was presentlj* invested with a portion of the seisin
or freehold.
Lit. § 324. Also, when a man will show a feoffment made to him,
or a gift in tail, or a lease for life of any lands or tenements, there he
shall say, by force of which feoffment gift, or lease, he was seised,
&c. but where one will plead a lease or grant made to him of a chattel
real or personal, then he shall saj-, bj- force of which he was possessed,
&c.
Co. Lit. 200 b, 201 a. " He was seised, die." Seisin is a word of
art, and in pleading is onlj- applied to a freehold at least, as possessed
for distinction sake is to a chattel real or personal. As if B. plead a
feoffment in fee, he concludeth, virtute cujus prwdict' . B.fuit seisitus,
&c. But if he plead a lease for yeares, he pleadeth, virtute cujus
prcedictus J3. intravii, etfuit inde possessionatus ; and so of chattels
personals, virtute cujus fuit inde possessionatus.
And this holdeth not onlj- in case of lands or tenements which lie in
livery, but also of rents, advowsons, commons, &c. and other things
that lie in grant, whereof a man hath an estate for life or inheritance.
Also when a man pleads a lease for life, or any higher estate which
passeth by liverj', he is not to plead an}' entry, for he is in actual
seisin by the livery itself. Otherwise it is of a lease for j'ears, because
there he is not actually possessed until an entrj-.
Lit. § 647. Also, if a parson of a church dieth, now the freehold of
the glebe of the parsonage is in none during the time that the parson-
age is void, but in abeyance, viz. in consideration and in the under-
1 Co. Lit. 342 b ; 378 a ; Perkins, §§ 52, 87. "If a man seised of land, lease it to
a stranger for life, and grants the remainder over to the right heir of J. S., which J. S,
is then alive ; in that case the fee is in abeyance, viz., in the consideration of the law,
and is in no certain person." lb. § 708. Fearne C. E. 3, 281, 307 ; "It is a general
rule, that every remainder must vest, either during the particular estate, or else at the
very instant of its determination." lb. 307. A contingent remainder, as putting the
freehold in abeyance, seems to have been originally regarded as an infringement of feu-
dal principles, and is saiil not to have been fully recognized until the reign of Henry
VI. See Williams, Eeal Prop. 243, 7th ed.
436 DESCENT AND PDECHASE.
standing of the law, until another be made parson of the same church ;
and immediatel}' when another is made parson, the freehold in deed is
in him as successor.
SECTION II.
DESCENT AND PURCHASE.
Lit. § 12. Also, purchase is called the possession of lands or tene-
ments that a man hath by his deed or agreement, unto which possession
he cometh not bj* title of descent from anj' of his ancestors, or of his
cousins, but by his own deed.
Co. Lit. 18 b. A purchase is alwaj's intended by title, and most
properly by some kind of convej-ance, either for money or some other
consideration, or freel}- of gift ; for that is in law also a purchase. But
a descent, because it cometh merely bj- act of law, is not said to be
a purchase ; and accordingly the makers of the Act of Parliament in
1 H. 5, ca. 5, speak of them that have lands or tenements by pur-
chase or descent of inheritance. And so it is of an escheat or the
like, because the inheritance is cast upon, or a title vested in the lord b}'
act in law, and not by his own deed or agreement, as our author here
saith. Like law of the state of tenant bj- the curtesy, tenant in dower,
or the like. But such as attain to lands by mere injury or wrong, as
by disseisin, intrusion, abatement, usurpation, &c. cannot be said to
come in by purchase, no more than robberj', burglary, piracy, or the
like, can justly be termed purchase.
SECTION III.
LIVERY OF SEISIN.
Lit. § 59. And it is to be understood, that in a lease for years, by
deed or without deed, there needs no livery of seisin to be made to the
lessee, but he may enter when he will by force of the same lease. But
of feoffments made in the countr}-, or gifts in tail, or lease for term
of life ; in such cases where a freehold shall pass, if it be by deed or
without deed, it behooveth to have livery of seisin.
Co. Lit. 48 a, b. And there be two kinds of livery of seisin, viz.
a livery in deed, and a livery in law. A livery in deed is when the
feoffor taketh the ring of the door, or turf or twig of the land, and
delivereth the same upon the land to the feoffee in name of seisin of
the land, &c. per hostium et per haspam et annulum vel per fusteni vel
baculum, <&c.
thokoughgood's case. 437
A lively in law is, when the feoffor saith to the feoffee, being in the
view of the house or land, "I give you yonder land to you and j-our
heirs, and go, enter into the same, and take possession thereof
accordingly," and the feoffee doth accordingl}- in the life of the feoffor
enter, this is a good feoffment, for signatio pro traditione habetur.
And herewith agreeth Braoton : Item, did poterit et assignari, quando
res vendita vel donata sit in conspectu, quam venditor et donator dicit
se tradere : and in another place he saith, in seisina per effectum et per
aspectum. But if either feoffor or the feoffee die before entry the
livery is void. And liverj- within the view is good where there is no
deed of feoffment. And such a livery is good albeit the land lie in
another count}-. A man may have an inheritance in an upper cham-
ber, though the lower buildings and soil be in another, and seeing it is
an inheritance corporeal it shall pass by livery.
Lit. § 60. But if a man letteth lands or tenements by deed or with-
out deed for term of years, the remainder over to another for life, or
in tail, or in fee ; in this case it behooveth, that the lessor maketh
liver}' of seisin to the lessee for years, otherwise nothing passeth to
them in the remainder, although that the lessee enter into tlie tenements.
And if the termor in this case entereth before any livery of seisin
made to him, then is the freehold and also the reversion in the lessor.
But if he maketh liverj' of seisin to the lessee, then is the freehold
together with the fee to them in the remainder, according to the form
of the grant and the will of the lessor.
THOROUGHGOOD'S CASE.
King's Bench. 1612.
[Reported 9 Co. 136.]
It was found by office in the county of Cambridge, 21 Jan. anno 36
Eliz. by force of a writ of Diem clausit extremum after the death of
Robert Thoroughgood, that he was seised in fee of an house, &c. and
divers lands and tenements in Tadlowe in the count}' aforesaid, and
that the said house, &c. was held of the King in chief by knight's ser-
vice ; and he being thereof so seised /ecti c6 sigillavit in dicto messva-
gio quoddam scriptum indentatum, in hcBC verba : To all Christian
people, &e. Robert Thoroughgood sendeth greeting, &c. Know ye,
that I the said Robert for divers good causes, &c. have given, granted,
and enfeoffed, and by these presents do give, grant, enfeoff, and con-
firm to Henry Hutton and Edward Eliot all that my capital messuage,
&c. lands and tenements, <&c. habendum unto the said Henry Hutton,
and Edward Eliot, and their heirs, <&c. d'at' 18 Julii anno 35 Eliz. Et
tdterius dicunt, quod pi-ced' Robert' jacens in extremis deliberavit in
prced' messiiagio prced' 18 Julii scriptum prmd' indentatum prwfut'.s
438 thoeoughgood's case.
Henrico Hutton <& Edwardo Eliot pro et in nomine seisince frmd!
messuagii <& omnium residuorum terrarum & tenementorum, indicia
scripto indentato contentorum : and further found the other points of
the writ. And upon this case two questions were moved; 1. If in
this case the jury have found a sufficient deliver}' of the indenture to
make it a deed in law. 2. If this delivery of the indenture in the
house, in the name of seisin of the house, and of the residue of the
lands and tenements aforesaid, was a sufficient livery of seisin in law,
or not. As to the first, it was resolved, that the actual delivery of
a writing sealed to the part}-, without an}- words, is a good deliver}' ;
for in traditionibus scriptorvm non quod dictum, est, sed quod ges-
tum, est inspicitur : but here he saith, " I deliver this writing to you,"
which clearly is sufficient, although he doth not say, as his deed or
as his act. And therefore if A. makes a writing to B. and seals it,
and delivers it to B. as an escrow, to take effect as his deed when
certain conditions are performed, it has been adjudged to be imme-
diately his deed, for the law respects the delivery to the party himself,
and rejects the words which will make the express deliver}- to the party,
upon the matter no delivery. And therefore in Mich. 12 IT. 8. Hot.
751. in Jianco, Anne Quilter, late wife of John Quilter, and others,
executors of the will of the said John Quilter, brought ah action of debt
against Edward Cobham on a bond, &c. the defendant pleaded that he
delivered the bond to the testator as a schedule, upon condition if the
plaintiff made indentures between the defendant ex una parte, <& proe-
fat' testator' ex altera parte, de certis conditionib' , convent' & agrea-
menf inter easd' partes adtunc concord', <&c. pro adnullatione proed'
script' ohligat , &c. ante festum Mich' Archang' deliberand' quod
extunc proed' script' obligator' in omni suo robore staret, sin aliter,
vacua foret : et id' defendens dicit quod proed' testat' non fecit ali-
quant indent' etc. <b sic id' defendens dicit quod script' prced' in forma,
prced' deliberat' dictis indent' inter easd' partes niinime confectis non
est factum suum, et hoc, <&c. Judgment if action? And thereupon
the plaintiff demurred in law, and it was resolved, that the said delivery
was good in law, although the condition was not performed, and the
plaintiffs had judgment to recover. And Tr. 13 H. 8. Jtot. 405 in
Banco, between T. Bodenham, Esq. plaintiff and Ed. Mermion Clerk,
defendant in debt on a bond the like plea pleaded, and a demurrer
upon it, and judgment given for the plaintiff which judgments (upon
search which I commanded to be made) I have seen. And therewith
agrees the report of 19 H. 8. 8. a. and takes the difference when it is so
delivered to the party himself, and when to a stranger, as it was there
agreed, 35 Ass. p. 6. a writing may take effect by actual delivery to the
party himself without any words : and as a writing may take effect by
actual delivery without words, so it may take effect by words without
actual delivery ; as if a writing is sealed and it lies in a window, or
upon a table, and the obligor saith to the obligee, "see there's the
writing, take it as my deed " and he takes it accordingly it is a good
thoeoughgood's case. 439
delivery in law : in the same manner as if one makes a charter of feoff-
ment, and within the view of his land saith to another, " see you the
land, enter into it and enjoy it according to the form and effect of this
charter,'' and the feoffee enters, it amounts to a good livery of seisin of
tlie land : and if words in such case shall amount to a livery of seisin,
by which a freehold shall pass, a fortiori words shall amount to a
delivery of a deed ; wherefore it was concluded a fortiori in the case
atbar, when Robert Thoroughgood delivered the writing to the parties,
saying, " here I deliver you this writing," it is a good delivery thereof
to take effect as a deed : vide 33 Ass. 2. 33 E. 3. Assise 367. 43 E. 3.
28. 13 E. 4. 8. 8 H. 6. 26. 9 H. 6. 37 & 59. vide 4 H. 6. 5. If the
obligor delivers the bond to the obligee to re-deliver to him, the obligee
may detain the bond for ever, and these words to re-deliver to him are
void. Vide 29 H. 8. 34 & 35 Dyer, & Trin. 43 El. between Hawkston
and Catcher in B. R. where some opinions ex improviso were con-
ceived, that the obligor might deliver a bond as an escrow to the obli-
gee ; but beMeve you the said judgments given upon demurrer in law
in the point : wherefore as to the first point it was clearl3' resolved,
that the said writing sealed took effect as a deed by the delivery
aforesaid.
As to the second point, first it was clearl}' resolved, that the delivery
of the deed upon the land, doth not amount to a livery, for it has an-
other effect, sc. to take effect as a deed, as it is resolved in Sharp's
Case, anno 42 El. in Com' Banco, reported by me in the sixth part
of my reports, f. 26. and there it is well agreed, that to ever^- livery of
seisin there is requisite, either an act, which the law adjudges livery,
or apt words which amount to it, and there the case of 43 E. 3. Feoff-
ments & Faits 51 is cited, which is to this effect : in assise the recogni-
tors found a special verdict, sc. that the plaintiff was seised of land in
fee, and the tenant drew and engrossed a charter of feoffment of the
land in view, &c. in the name of the plaintiff to the tenant himself
and his heirs, and the tenant delivered the charter to the plaintiff, and
prayed him to deliver seisin in the same land, and the plaintiff would
not deliver seisin, but he delivered back the charter to the tenant upon
the land, and the tenant kept himself in, and if the delivery of the
charter upon the land was a sufficient livery of seisin, was the question,
and there Kirton, Justice, said, if the plaintiff had spoke in this man-
ner, when he delivered the charter to the tenant, " Sir, I deliver to you
this charter in the name of seisin of all the lands and tenements con-
tained in the charter," it had been a good delivery of seisin, but so he
doth not do in this case, wherefore the court awarded that the plaintiff
should recover seisin. And it was resolved, that although most prop-
erly livery of seisin is made by delivery of a twig or turf of the land
itself, whereof livery of seisin is to be given ; and so it is good to be
observed ; yet a delivery of a turf or twig growing upon other laud ; of
a piece of gold or silver, or other thing upon the land in the name of
seisin is sufficient, for the turf or twig which grows upon the land, when
440 GRANT AND ATTORNMENT.
it is severed is not parcel of the land, and when the feoffor is upon the
land, his words without any act are sufHcient to make livery of seisin ;
as if he saith, " I deliver seisin of this land to you in the name of all
the land contained in this deed ; " or, " Enter j-ou into this land, and
take seisin of it in the name of all the land contained in this deed," or
such other words, without any ceremony or act done ; and that is the
reason that the delivery of any thing upon the land in the name of
seisin is sufficient, because his words alone without anything were suffi-
cient ; for if words alone out of the land which is within the view are
sufficient in law, a fortiori when they are spoke upon the land itself;
and j-et it is not wisely done to omit usua. ceremonies and acts in
such cases, for they imprint a better remembrance of the thing which
is done, because they are subject to sight, than words alone, which are
onl\- heard, and which easilj' and usually slip out of memory : where-
fore it was resolved, that the delivery of the deed upon the land in the
name of seisin was sufficient in law. And the said case of Sharp was
affirmed for good law in this case. 3. It was resolved, that this
delivery of the writing amounted to two several acts at one and the
same instant, viz. to deliver the writing as a deed, and to deliver seisin
of the land according to the deed.
SECTION IV.
GEAIJT AND ATTOKNMENT.
Co. Lit. 172 a. '■'■Grant" Concessio, is in the common law a con-
veyance of a thing that lies in grant and not in livery, which cannot
pass without deed ; as advowsons, services, rents, commons, rever-
sions, and such like.i
1 " The division of hereditaments into corporeal and ineoi-poreal, though deeply rooted
in our legal phraseology, is most unfortunate and misleading. The confusion is in-
herited from the Roman lawyers (see Justinian, Inst. ii. tit. 2), but has been made
worse confounded by our own authorities. The Romans, misled by the double sense of
res, unhappily distinguished res corporales and res iticorporales, the former being things
qucB tangi possunt, veluti aurum, vestis, the latter mere rights, qu(B in jure coii-
s^istunt. It is obvious that this is mere confusion, the two ideas not being in pari
materia, or capable of being brought under one class, or of forming opposite members
of a division. Following the Romans, our lawyers distinguished between hereditaments
as meaning the actual corporeal land itself, and another kind of hereditaments as not
being the laud itself, but 'the rights annexed to or issuing out of the land.' A mo-
ment's reflection is sufficient to show that the distinction is untenable. The lawyer
has nothing whatever to do with the material corporeal land, except so far as it is the
subject of rights. It is the distinction between different classes of rights, and not be-
tween land on the one side and rights on the other, that he is concerned with. In such
phrases as ' the land descends to the heir,' what is meant is, not that something hap-
pens to the land itself, but that a particular class of the ancestor's rights in relation to
the land descends to the heir. The names ' corporeal and incorporeal ' are most un-
ATTORNMENT. 441
Lit. § 551. Attornment is, as if there be lord and tenant, and
the lord will grant bj- his deed the services of his tenant to another for
term of j-ears, or for term of life, or in tail, or in fee, the tenant
must attorn to the grantee in the life of the grantor, by force and virtue
of the grant, or otherwise the grant is void. And attornment is no
other in effect, but when the tenant hath heard of the grant made bj' his
lord, that the same tenant do agree by word to the said grant, as to say
to the grantee, I agree to the grant made to you, &c. or I am well con-
tent with the grant made to you ; but the most common attornment is,
to saj'. Sir, I attorn to you by force of the said grant, or I become
j'our tenant, &c. or to deliver to the grantee a penny, or a halfpenny,
or a farthing, bj' way of attornment.
Co. Lit. 309 a, b. Attornment is an agreement of the tenant to the
grant of the seigniory, or of a rent, or of the donee in tail, or tenant
for life or years, to a grant of a reversion or remainder made to an-
other. It is an ancient word of art, and in the common law signifieth a
torning or attorning from one to anotlier. We use also attornamentum
as a Latin word, and attornare to attorn. And so Bracton useth it :
Item videndum est si dominus attornare possit alicui homagium et
servitium tenentis sui contra voluntatem ipsius tenentis, et videtur
quod non.
And the reason why an attornment is requisite, is yielded in old
books to be. Si dominus attornare possit servitium tenentis contra
voluntatem, tenentis, tale sequeretur inconveniens, quod possit eum
subjugare capitali inimico suo, et per quod teneretur sacramentum
fidelitatis facere ei qui eum damnijicare intenderet.
" The tenant must attorn to the grantee in the life of the grantor,
&c." And so must he also in the life of the grantee : and this is under-
stood of a grant by deed. And the reason hereof is, for that every
grant must take effect as to the substance thereof in the life both of the
grantor and the grantee. And in this case if the grantor dieth before
attornment, the seigniory, rent, reversion, or remainder descend to
his heir ; and therefore after his decease the attornment cometh too
late : so likewise if the grantee dieth before attornment, an attorn-
ment to the heir is void, for nothing descended to him : and if he
should take, he should take it as a purchaser, where the heirs were
added but as words of limitation of the estate, and not to take as
purchasers.
But if the grant were bj' fine, then albeit the conusor or conusee
dieth, yet the grant is good. For by fine levied the state doth pass to
fortunate, because if by ' corporeal ' is meaut 'relating to land,' then a large class of
incorporeal hereditaments are also entitled to the name ; if by ' incorporeal ' is meant
that they are mere rights, then all hereditaments are incorporeal, because the lawyer
is only concerned with different classes of rights. In reality, however, it appears
that the names point to different classes of rights ; and in fact, Stephen in his edition
of Blackstone, 5th ed., vol. i. p. 656, almost confines incorporeal hereditaments \.o jura
in alieno solo. See Austin, vol. ii. pp. 707, 708." Digby, Hist. Eeal Prop., Ajip. to
Part I. (11) note.
442 ATTORNMENT.
tlie conusee and his heirs ; and the attornment to the conusee or his
heirs at anj- time to make privity to distrain is sufficient. But all this
is to be taken as Littleton understood it, viz. of such grants as have
their operation bj' the common law. For since Littleton wrote, if a
fine be levied of a seignior}-, &c. to another to the use of a ihird per-
son and his heirs, he and his heirs shall distrain without anj' attorn-
ment, because he is in bj' the Statute of 27 H. 8, cap. 10, b^' transferring
of the state to the use, and so he is in b}- act in law.
And so it is, and for the same cause, if a man at this da}- b}- deed
indented and enrolled according to the Statute, bargaineth and selleth a
seigniorjr, &c. to another, the seigniory shall pass to him without an}-
attornment; and so it is of a rent, a reversion, and a remainder. So
as the law is much changed, and the ancient privilege of tenants, donees,
and lessees much altered concerning attornments since Littleton wrote.
But if the conusee of a fine before anj- attornment by deed indented
and enrolled, bargaineth and selleth the seignior}- to another, the bar-
gainee shall not distrain, because the bargainor could not distrain.
Et sic de similihuB ; for nemo potest plus juris ad aliuni transferre
quam ipse habet. Vide Sect. 149, where upon a recovery, the recov-
eror shall distrain and avow without attornment.
A grant to the king, or by the king to another, is good without at-
tornment, by his prerogative.
Lit. §§ 567-569. Also, if a man letteth tenements for term of
years, by force of which lease the lessee is seised, and after the lessor
by his deed grant the reversion to another for term of life, or in tail,
or in fee ; it behooveth in such case that the tenant for years attorn,
or otherwise nothing shall pass to such grantee by such deed. And if
in this case the tenant for years attorn to the grantee, then the free-
hold shall presently pass to the grantee by such attornment without
any livery of seisin, &c. because if any livery of seisin, &c. should be
or were needful to be made, then the tenant for years should be at
the time of the livery of seisin ousted of his possession, which should
be against reason, &c.
Also, if tenements be letten to a man for term of life, or given in
tail, saving the reversion, &c. if he in the reversion in such case grant
the reversion to another by his deed, it behooveth that the tenant of the
land attorn to the grantee in the life of the grantor, or otherwise the
grant is void.
In the same manner is it, if land bfi granted in tail, or let to a man
for term of life, the remainder to another in fee, if he in the remainder
will grant this remainder to another, &c. if the tenant of the land at-
torn in the life of the grantor, then the grant of such a remainder is
good or otherwise not.^
1 See Lit. §§ 579 et seq. " Sir Will. Cordall, Mr. of the Eols [1537-1581], denied
to compell one to attorn here that was at liberty by the common law, in the Case of
Sir John Windham.
" Chancellor Bromely likewise denied such compulsion generally, but where the party
DOE d. WERE V. COLE. 443
St. 4 Anne (1705), c. 16, § 9. And be it further enacted by the
authority aforesaid, That from and after the said first day of Trinity
term [1706], all grants or convej'ances thereafter to be made, by fine
or otherwise, of any manors or rents, or of the reversion or remainder
of any messuages or lands, shall be good and effectual, to all intents
and purposes, without any attornment of the tenants of any such manors,
or of the land out of which such rent shall be issuing, or of the par-
ticular tenants upon whose particular estates any such reversions or
remainders shall and may be expectant or depending, as if their attorn-
ment had been had and made.^
DOE d. WERE v. COLE.
King's Bench. 1827.
[Reported 7 B. ct C. 243.]
Ejectment for the recovery of the moiety of certain lands and prem-
ises, situate in the parishes of Loddiswell and Churstow, in the county
of Devon. At the trial before Gaselee, J., at the last assizes for the
county of Devon, the plaintiff had a verdict, subject to the opinion of
this court on the following case : —
The lessors of the plaintiff made title under a deed of conve3'ance
from one Walter Prideaux, which recited, that he was indebted to them
in a sum of £3000, and that he had agreed to secure the same by de-
mising and assigning the premises thereinafter mentioned ; that in pur-
suance of an agreement recited in the deed, and in consideration of 5s.,
he Prideaux did demise, lease, grant, assign, transfer, and set over,
direct, limit, and appoint unto R. Were, W. Were, and S. Were, as
trustees, their executors, administrators, and assigns, all that moiety
or half part of and in all that messuage, &c. l3'ing and being in the
town of Kingsbridge, and therein particularly described, which said
premises were then in the tenure or occupation of the said Prideaux,
and the reversion, remainder, rents, issues, and profits thereof, and of
quarrelled with the particular tenant's estate or entereth into some part of the lands in
demise, or hath covenanted for recompense for non-attomment, there he utterly denieth
to enforce the attornment. Pasch, 21 Eliz. [1579] in Case of Philips and Doctor
Sandford." Gary, 5.
1 For similar statutes in the United States, see Stimson, Am. Stat. Law, § 2009.
' ' Formerly, in order to constitute a privity of estate between the purchaser of the
reversion and the lessee, so as to enable the former to maintain an action of debt for
rent, attornment was necessary. But by St. 4 Anne, c. 16, § 9, a grant of the rever-
sion is good and effectual without attornment. Moss v. GaUimore, 1 Doug. 279.
That statute having been passed long before the Devolution, and this provision being a
rule in amendment of the common law, we may probably consider it in force here.
Commonwealth v. Leach, 1 Mass. 61. Butif otherwise, the rule itself is well established
on the authority of long usage, and its adaptation to the more simple tenures, which
were in use under our former government. Farley v. Thompson, 15 Mass. 25, 26." Per
Shaw, C. J., in Bxirden v. Thayer, 3 Met. 76, 78.
444 DOE d. WERE V. COLE.
every part thereof; and also all that the moiety of and in all that ca-
pital messuage Barton Farm, and demesne lands called or commonlj-
known bj' the name of Hatch Arundel, situate, lying, and being in the
parishes of Loddiswell and Churstow, in the' count}- of Devon ; and
wliich said last-mentioned premises were heretofore in the possession
of one A. Rendell, and of the said W. Prideaux, and do contain in the
whole b}' estimation 150 acres or thereabouts (be the same more oi-
less), and are now in the possession of the said W. Prideaux and of
Samuel Cole. The indenture then, after describing two other moieties
or half parts undivided of a messuage and tenement, and of a barn
situate in the parish of Loddiswell, in the possession of Joanna Saun-
ders, proceeded as follows: "and all houses, outhouses, &c. profits,
&c. hereditaments and appurtenances whatsoever to the said moieties
belonging, and the reversion and reversions, remainder and remainders,
rents, suits, and services thereof, and of every part thereof, and all the
estate, right, title, interest, term and terms of years, use, trust, prop-
ertj', claim, and demand whatsoever of him, W. Prideaux, his heirs or
assigns, either in law or equit}', of, into, or out of the same or anj- part
thereof, to have and to hold the said moietj-, or half part of the said
messuage, tenement, or dwelling-house in Kingsbridge, with the appur-
tenances, unto the said R. Were, W. Were, and S. Were, their execu-
tors, administrators, and assigns, from the date of the indenture, for
and during, and unto the full end and term of 2000 j-ears thence next
ensuing, and fully to be complete and ended, yielding and paj'ing,
therefore, yearl}' and everj' j'ear during the said term, unto him, W.
Prideaux, his heirs or assigns, tlie rent of one pepper corn if the same
should be lawfullj' demanded ; and to have and to hold all and singular
the several moieties or half parts hereby demised and assigned, or men-
tioned, or intended so to be, situate, lying and being in the several
parishes of Loddiswell and Churstow, with their, and each and everj' of
their several and respective rights, members, and appurtenances unto
the said R. W., W. W., and S. W., their executors, from the day of
the date thereof, for and during all the natural life of the said W.
Prideaux without impeachment of waste."
The trusts as to all the premises were declared to be for sale, when
R. W., W. W., and S. W. should think proper. There were covenants
by W. Prideaux, that he had full power to convej- the same, and a
right of entrj- given to R. W., W. W., and S. W. This indenture was
duly executed by W. Prideaux at the time of its date, no liverj- of seisin
was indorsed on it, and no evidence was offered that an}- had in fact
been made. The defendant, Samuel Cole, before and at the time of the
execution of this indenture, was tenant from j'ear to j'ear to W. Prid-
eaux of part of the lands and premises comprised in th^ deed, and
therein described as being situate in the parishes of Loddiswell and
Churstow.
After the execution of this indenture, viz. in October 1825, W. Prid-
eaux became a bankrupt, and the defendant, S. Cole, having disclaimed
D015 d. WERE V. COLE. 445
to hold under the lessors of the plaintiff, defended this action of eject-
ment under an indemnity from the assignees of W. Prideaux.
Follett for the lessors of the plaintiff. Jhe question in this case is,
whether the deed was sufficient, without livery of seisin, to pass the
estate in the lands in the parish of Loddiswell to the lessors of the
plaintiff for the life of the grantor. The lessor of the plaintiff had a
reversion expectant on the determination of Cole's tenancy, and that
will pass by the word grant without livery. It is true, that in order to
pass a freehold interest in possession, liv»ry of seisin is essential, unless
the conveyance takes effect under the statute of uses ; but a reversion
expectant on an estate of freehold, or for 3'ears, passed \>y grant with
the attornment of the tenant before the statute of the 4 Anne, c. 16,
§ 9. Co. Lit. 49 a ; 2 Bl. Com. 317 ; Shepherd's Touchstone, 210,
288 ; 1 Saund. 232, n. 3 ; Bacon's Abridgment, Lease N. And if it
so passed then, it will, since the statute, pass by grant without the
attornment of the tenant. It may, perhaps, be said, that although a
reversion expectant on the determination of a freehold term would pass
b}' the deed, yet that this being a reversion expectant on the determina-
tion of a term for years, it will not pass; but Littleton, §§ 567, 568,
and Lord Coke's Comment on the latter section, and Littleton, § 572
shew, that there is no distinction in this respect between a reversion
expectant on the determination of a freehold term, and one expectant
on the determination of a term for 3'ears. A tenancy from year to j'ear
is a terra for 3'ears. Hotting v. Martin, 1 Campb. 317. Assuming
that the deed was not intended to pass the reversion, it was clearly
intended to pass the land ; and if the words in the deed are sufficient
for that purpose, the court will give effect to the intent. Hoe v. Tran-
mer, 2 Wils. 75 ; Saggerston v. Hanbury, 5 B. & C. 101.
Coleridge, contra. It must be conceded, that a person seised of a
freehold, of which a lessee for 3'ears is in possession, may transfer his
reversionar3' interest b3' deed without livery of seisin. But here,
Walter Prideaux waS" in possession of some part of the premises in-
tended to be conveyed, and those will not pass by this deed. This
action is brought to recover those premises, of which Cole, at the
time when the deed was executed, was in possession. The deed does
not profess to grant the reversion of any premises ; it describes the
premises sought to be recovered, as being in the possession of Walter
Prideaux and of Samuel Cole. It is clear, therefore, that it was the
intention of the parties that an immediate possession of the lands, and
not the mere reversion of them, should pass. It is a presumption of
law, resulting from the deed, that Prideaux and Cole were joint-tenants
of the estate ; and then the possession of one would be the possession
of both. Now if a grantor and his tenant are in possession of an estate,
and the deed of grant does not point out what part was in his own pos-
session, and what in that of the tenant, but professes to pass an im-
mediate freehold, the one will not pass without liver3' of seisin, and the
other will not pass, because it was not the intention of the grantor.
446 FISHER V. DEEEING.
Baylet, J. It is laid down distinctly, in Co. Lit. 49 a, " that if a
man be seised of two acres in fee, and letteth one of them for j'ears,
and intending to pass them both bj- feoffment, maketh a charter of
feoffment, and maketh livery in the acre in possession in name of both,
only the acre in possession passeth by the liverj-. Yet if the lessee at-
torn, the reversion of that acre shall pass b^- the deed and attornment."
And Lord Coke afterwards sa3's, " So it is if am- man make a lease, and
by deed grant the reversion in fee, here the freehold with attornment of
the lessee by the deed doth pass, which is in lieu of liverj-." Now tliat
is an authority to shew, that where lands are in possession of a tenant,
the reversioner maj' convey his interest bj* deed. All lands lie in livery
or in grant : and they do not lie in liverj- where the party intending to
conve}- cannot give immediate possession. Here Prideaux had the
freehold in him, but the right of possession was in his tenant. He,
therefore, had a reversion expectant on the determination of the term.
Now a reversion, which is a vested right, lies in grant. There can be
no doubt that this instrument has words fully sufBcient to operate by
way of grant. On the short ground, that where the right of possession
is in a tenant for j-ears, the right of the landlord is a reversion expec-
tant on the determination of the tenancj', and lies in grant, and not in
liverj-, I am of opinion that the reversion of the lands sought to be
recovered passed by the deed.
HoLROTD, J. The passage cited from Co. Lit. 49 a is decisive
to show that the reversion passed by this deed to the lessors of the
plaintiff.
LiTTi-EDALE, J. If Pridcaux had been in actual possession of these
premises, and intended to have conveyed his interest to a stranger, he
ought to have delivered seisin. Bnt possession being in a tenant from
j'ear to j'ear, Prideaux had onlj' a reversion, and in order to convej'
that reversion to the tenant in possession, must have released his right ;
but the proper mode of passing a reversion to a stranger not in posses-
sion is by grant. Here Prideaux has granted the Teversion by the deed
in question to the lessors of the plaintiff, who are entitled to recover.
Judgment for the plaintiff .
FISHER V. DEERING.
Supreme Court of Illinois.
[Reported 60 III. 114.]
Appeal from the Superior Court of Cook county ; the JTon. Joseph
E. Gary, Judge, presiding.
Mr. Consider H. Willett, for the appellant.
Mr. J. A. Gram, for the appellee.
Mk. Justice Walker delivered the opinion of the court. It appears,
FISHEE V. PEERING. 447
from an examination of the authorities, that at the ancient common law
a lease was not assignable so as to invest the assignee with the legal
title to the rent. Such instruments were, in that respect, on a footing
with other agreements and choses in action. But the 32 Hen. 8, chap-
ter 34, section 1, declared that the assignee of the reversion should
become invested with the rents. But notwithstanding this enactment,
the courts held that the assignee of the reversion could not sue for and
recover the rent unless the tenant should attorn, when the holder of the
reversion might recover subsequently accruing rent in an action of debt.
Marie v. Fake, 3 Salk. 118 ; Robins v. Cox, 1 Levinz, 22 ; Ards v.
Walkins, 2 Croke's Eliz. 637 ; ICnowles' Case, 1 Dj-er, 5 b ; 5 Barn.
& Cress. 512, and the note.
In Williams v. Hayward, 1 Ellis & Ellis, 1040, after reviewing the
old decisions on this question, it was, in substance, held that, under
the 32 Hen. 8, an assignee of the rent, without the reversion, could
recover when there was an attornment, and that such an assignee could,
under the 4 of Anne, recover without an attornment.
The courts seem to have proceeded upon the ground that there could
be no privitj- of contract unless the tenant should attorn to the assignee
of the reversion ; that whilst the assignment of the reversion created a
privity of estate between the assignee and the tenant, privity of con-
tract could only arise by an agreement between them. Some confusion
seems to have got into the books from calling the purchaser of the
reversion an assignee of the lease, \>y its passing bj- the conveyance as
appurtenant to the estate. But where the tenant attorned to the assig-
nee of the reversion the assignment became complete, and then there
existed both privitj' of estate and of contract between the assignee and
the tenant, and by reason of the privity of contract the assignee might
sue in debt, and recover subsequentlj- accruing, but not rent in arrear
at the time he acquired the reversion.
To give the assignee of the reversion a more complete remedy, the 4
and 5 Anne, chapter 16, section 9, was adopted, dispensing with the
necessity of an attornment which the courts had held to be necessarj'
under the 32 Hen. 8, to create a privity of contract. But this latter
[former] Act has never been in force in this State, and hence the deci-
sions of the British courts, made under it, are not applicable. In many
States of the Union this latter [former] Act has been adopted, and the
decisions of their courts conform, of course, to its provisions. But we
having adopted the common law of England, so far as the same is appli-
cable and of a general nature, and all Statutes or Acts of the British
Parliament made in aid of, and to supply defects of the common law,
prior to the fourth j'ear of James the First, except certain enumerated
Statutes, and which are of a general nature and not local to that king-
dom, they are declared to be the rule of decision, and shall be consid-
ered of full force until repealed by legislative authority. Gross' Corap.
1869, 416. It then follows that the 32 Hen. 8, chapter 34, section 1,
is in force in this State, as it is applicable to our condition, and is unre-
448 PEEEIN V. LBPPEE.
pealed. And we must hold, that the construction given to that Act
by the British courts was intended also to be adopted.
The facts in this case show such a privity of contract as brings it
fully within the rule announced in the above cases. Appellee paid to
appellant several instalments of rent falling due under the lease after it
was assigned to him. Bj- paj-ing the rent, the lessee fullj- recognized
the appellant as his landlord, and created the necessar3' privitj' of con-
tract to maintain the action.
The case of Chapman v. McGrew, 20 111. 101, announces a contrarj'
doctrine. In that ease this question was presented, and notwithstand-
ing the lessee had fully recognized the assignee of the lease as his land-
lord, it was held that the lessor of the premises miglit maintain an action
to recover the rent. In that case, the fact that the lessee liad attorned
to the assignee, was given no weight, and the fact that such privit}- was
therebj' created as authorized the assignee of the lease to sue for, and
recover the rent, was overlooked. In that, the decision was wrong.
The right of action could not be in both the lessor and his assignee, and
the privitj' thus created gave it to the latter.
The subsequent case of Dixon v. Jiuell, 21 111. 203, only holds that
such an assignee, whether he holds the legal or equitable title to the
lease, may have a claim for rent growing out of the lease, probated and
allowed against the estate of the lessee. That case has no bearing on
the case at bar.
The judgment of the court below is reversed and tlie cause remanded.
Judgment reversed.
PERRIN V. LEPPER.
SuPKEME Court of Michigan.
[Reported 34 Mich. 292.]
Error to Calhoun Circuit.
T. G. Pray, for plaintiffs in error.
JBrown and Patterson., for defendants in error.
Marston, J. Brown and Van Arman, being the owners, as tenants
in common, of certain propertj- in Marshall, on the 6th of September,
1859, leased the same to defendants for a term of five j-ears from
and after that date, for which defendants agreed to paj^ them two hun-
dred and seventy-five dollars per year, paj-able quarterlj'. On the r2th
day of April, 1862, Van Arman bj- warranty deed convej-ed his interest
in said premises, together with the rents, issues and profits thereof, to
plaintiffs, who, about the 14th of April, 1862, gave defendants notice
of such purchase, and that they, the plaintiffs, would require one-half
the rent from and after that time. This request not having been com-
plied with, plaintiffs, December 29, 1863, commenced this action to
recover the amount of rent claimed hj- them. In their declaration they
PEERIN V. LEPPER. 449
declared specially upon the lease, setting forth the conveyance by Van
Arman to them, and also inserted a count for use and occupation.
The court charged the jury that in order for plaintiffs to recover upon
either count, it was incumbent on them to prove that before the action
was commenced the Leppers had recognized and acknowledged the
relation of landlord and tenant as existing between them ; in other
words, that there had been an attornment. There being no such evi-
dence, plaintiffs failed. To this ruling tliey excepted, and the question
lipre raised is really' the only one in the case. It is true that counsel
for defendants in error insists that the plaintiffs, even if entitled to
recover, could not sue alone, but mast have joined their co-tenant of
the reversion in bringing this action. It may be doubtful whether such
a question properly arises under the ruling of the court, but as a new
trial must be ordered, and this question ma}- again come up, we may as
well dispose of it at the present time, by saj-ing that the non-joinder
could only be set up in abatement, which was not done in this case, and
if not so pleaded, it would merely go to apportion the damages. Achey
V. Hull, 7 Mich. 430.
It has come to be the generally accepted doctrine in this state, that
a person who is owner of real estate, personal property or choses in
action, or who has an interest therein, may grant, convey or assign his
right or interest, without the assent or acquiescence of any third person,
and that the grantee or assignee will take, hold and enjoy the property
so acquired in the same manner and with the like rights that his grantor
or assignor had. The law has always been very liberal in this state in
permitting assignments of choses in action, and now permits the assig-
nee to sue and recover thereon in his own name. The lessor of real
estate may convey his reversion, and his grantee will be entitled to the
rents accruing thereafter, or he may assign the reversion, reserving the
rents, or assign the rents due and to become due. In either case when
the rents are assigned, the assignee maj' sue and collect them in his
own name under our statute. The conveyance from Van Arman to
plaintiffs was of his entire interest in the demised premises, " and the
reversion and reversions, remainder and remainders, rents, issues and
profits thereof." The effect of this convej-ance was not to release
defendants from the payment of rent ; they could no more thereafter
than before retain the beneficial use and enjoyment of the demised
premises and at the same time be exempt from the paj-raent of rent
under their lease. Van Arman, however, after his conveyance was no
longer entitled to collect this rent. That right he had transferred and
assigned to the plaintiffs. If defendants, by refusing to attorn to tlie
plaintiffs, can prevent their collecting, the only effect would be to com-
plicate matters and place obstructions in the way of the sale of demised
premises. The doctrine of attornment grew out of the peculiar rela-
tions existing between the landlord and his tenant under the feudal law.
The landlord could not alienate the estate without the consent of his
tenant. This consent was called an attornment. It was founded upon
29
450 RELEASE.
a state of society which certainly never had any existence in Michigan.
The peculiar reasons and relations out of which this doctrine sprung
never having had anj' existence here, why should the rule itself?
Where the reasons from whence a rule arose cease to exist, the rule
should cease also. In a eountrj' where thej- never existed, the rule
should not be adopted. Of course there may be exceptions to this.
Other reasons for continuing a rule may arise while those from whence
tlie rule grew have passed away, but we discover none such in tliis
instance. The doctrine of attornment is inconsistent with our laws,
customs and institutions. It may serve a useful purpose in estopping
a tenant from denying the title of a landlord to whom he has attorned,
but beyond this it can be of but little if any use. " The common law
of England is not to be taken, in all respects, to be that of America.
Our ancestors brought with them its general principles, and claimed it
as their birthright ; but they brought with them and adopted only that
portion which was applicable to their situation." Story, J., in Va7i
JVess V. Pacard, 2 Pet. 144 ; or as was said in Lorman v. Benson, 8
Mich. 25 : " Questions of property', not clearly excepted from it,
must be detennined by the common law, modified only by such circum-
stances as render it inapplicable to our local affairs." Cooley's Const.
Lim. 23 and note.
I am of opinion that the court erred in charging the jury that an
attornment was necessary to entitle the plaintiffs to recover. The
judgment must be reversed, with costs, and a new trial ordered.
The other Justices concurred.
SECTION V.
KELEASE AND SUEEENDER.
Lit. §§ 444, 445, 459, 460. Releases are in divers manners, viz.
releases of all the right which a man hath in lands or tenements, and
releases of actions personals and reals, and other things. Eeleases of
all the right which men have in lands and tenements, &c. are commonly
made in this form, or of this effect.
Enow all men by these presents, that I, A. of B. have remised, re-
leased, and altogether from me and my heirs quiet claimed: (me A.
de B. remisisse, relaxasse, et omnino de me et hseredibus meis quietum
clamasse) : or thus, for me and my heirs quiet claimed to C of D. all
the right, title, and claim, (totum jus, titulum, et clameum) which I
have, or by any means may have, of and in one messuage with the
appurtenances in F. <bc. And it is to be understood, that these words,
remisisse, et quietum, clamasse, are of the same effect as these words,
relaxasse.
Also, if a man letteth to another his land for term of years, if the
DEVISE. 451
lessor release to the lessee all his right, &c. before that the lessee had
entered into the same land by force of the same lease, such release is
void, for that the lessee had not possession in the land at the time of
the release made, but only a right to have the same land by force of the
lease. But if the lessee enter into the land, and hath possession of it
by force of the said lease, then such release made to him by the feoffor,
or by his heir, is sufficient to him by reason of the privity which by
force of the lease is between them, &e.
In the same manner it is, as it seemeth, where a lease is made to a
man to hold of the lessor at his will, by force of which lease the lessee
hath possession : if the lessor in this case make a release to the lessee
of all his right, &c. this release is good enough for the privity which is
between them ; for it shall be in vain to make an estate bj' a livery of
seisin to another, whei-e he hath possession of the same land by the
lease of the same man before, &c.
[But the contrary is holden, Pasch. 2 E. 4, by all the justices.]
Co. Lit. 337 b. " Surrender^'' sursum redditio, properly is a yield-
ing up an estate for life or j-ears to him that hatJi an immediate estate
in reversion or remainder, wherein the estate for life or years may
drown by mutual agreement between them.
SECTION VI.
DEVISE.
Lit. §§ 167, 586. Also, in some boroughs, by the custom, a man
may devise b}- his testament his lands and tenements, which he hath in
fee simple within the same borough at the time of his death ; and by
force of such devise, he to whom such devise is made, after the death
of the devisor, maj' enter into the tenements so to him devised, to have
and to hold to him, after the form and effect of the devise, without
any livery of seisin thereof to be made to him, &c.
In the same manner is it, where a man letteth such tenements devis-
able to another for life, or for j-ears, and deviseth the reversion by his
testament to another in fee, or in fee tail, and dieth, and after the
tenant commits waste, he to whom the devise was made shall have a
writ of waste, although the tenant doth never attorn. And the reason
is, for that the will of the devisor made b}' his testament shall be per-
formed according to the intent of the devisor ; and if the effect of this
should lie upon the attornment of the tenant, then perchance the ten-
ant would never attorn, and then the will of the devisor should never
be performed, &c. and for this the devisee shall distrain, &e. or he
shall have an action of waste, &c. without attornment. For if a man
deviseth such tenements to another by his testament, habendum sibi in
perpetuwn, and dieth, and the devisee enter, he hath a fee simple.
452 DISSEISIN AKD OTHEE OUSTER.
causa qua supra ; j'et if a deed of feoffment had been made to him
by the devisor of the same tenements, habendum sibi in perpetuura,
and livery of seisin were made upon this, he should have an estate but
for term of his life.*
SECTION VII.
DISSEISIN AND OTHER OUSTER.
Lit. §§ 279, 385. And note that disseisin is properly, whei-e a man
entereth into any lands or tenements where his entrj- is not congeable,
and ousteth him which hath the freehold, &c.
Descents which toll entries are in two manners, to wit, where the
descent is in fee, or in fee tail. Descents in fee which toll entries are,
as if a man seised* of certain lands or tenements is by another
disseised, and the disseisor hath issue, and dieth of such estate
seised, now the lands descend to the issue of the disseisor by course
of law, as heir unto him. And because the law cast the lands or
tenements upon the issue by force of the descent, so as the issue
Cometh to the lands bj- course of law, and not by his own act, the
entrj- of the disseisee is taken awaj-, and he is put to sue a writ of
entre sur disseisin against the heir of the disseisor, to recover the
land.
Lit. §§ 414, 415, 422, 423, 592, 595-600, 611, ^98. Continual
claim is where a man hath right and title to enter into anj' lands or
tenements whereof another is seised in fee or in fee tail, if he which
hath title to enter makes continual claim to the lands or tenements
before the d3-ing seised of him which holdeth the tenements, then albeit
that such tenant dieth thereof seised, and the lands or tenements descend
to his heir, yet maj- he who hath made such continual claim, or his
heir, enter into the lands or tenements so descended, by reason of
the continual claim made, notwithstanding the descent. As in case
that a man be disseised, and the disseisee makes continual claim to
the tenements in the life of the disseisor, although that the disseisor
dieth seised in fee, and the land descend to his heir, j'et maj' the
disseisee enter upon the possession of the heir, notwithstanding the
descent.
In the same manner it is, if tenant for life alien in fee, he in the
1 All socage land and two thirds of the land held by knight service were made
devisable by will in writing by the Sts. of 32 Hen. VIII. (1540) c. 1, and 34 &
35 Hen. Vlll. (1543) t. 5. Land held by knight-service having been turned into
socage land by the St. of 12 Car. II. (1660) c. 24, all land has since that time been
devisable.
DISSEISiy AND OTHEK OUSTER. 453
reversion or he in tlie remainder may enter upon the alienee. And if
such alienee dieth seised of such estate without continual claim made
to the tenements, before the dying seised of the alienee, and the lands
by reason of the dying seised of the alienee descend to his heir, then
cannot he in the reversion nor he in tlie remainder enter. But if he
in the reversion or in the remainder, who hath cause to enter upon the
alienee, make continual claim to the land before the dying seised of
the alienee, then such a man may enter after the death of the alienee,
as well as he might in his life-time.
And if his adversary who occupieth the land, dieth seised in fee, or
in fee tail, within the j-ear and a day after such claim, wherebj' the
lands descend to his son as heir to Iiiin, yet may he which makes the
claim enter upon the possession of the heir, &c.
But in this case after the year and the day that such claim was
made, if the father then died seised the morrow next after the year
and the daj', or any other day after, &c. then cannot he which made
the claim enter : and therefore if he which made the claim will be
sure at all times that his entry shall not be taken awaj' by such
descent, &c. it behooveth him that within the j-ear and the day after
the first claim made, to make another claim in form aforesaid, and
within the year and the daj' after the second claim made, to make
the third claim in the same manner, and within the year and the
day after the third claim to make another claim, and so over, that
is to saj', to make a claim within every j^ear and daj' next after
every claim made during the life of his adversary, and then at what
time soever his adversary dieth seised, his entry shall not be taken
away by an}'^ descent. And such claim in such manner made is most
commonly taken and named continual claim of him which maketh the
claim, &c.
Discontinuance is an ancient word in the law, and hath divers signi-
fications, &c. But as to one intent it hath this signification, viz. where
a man hath aliened to another certain lands or tenements and dieth,
and another hath right to have the same lands or tenements, but he
may not enter into them because of such an alienation, &c.
Also, if tenant in tail of certain land thereof enfeoff another, &c.
and hath issue and dieth, his issue may not enter into the land, albeit
he hath' title and right to this, but is put to his action, which is called
a./ormedon in le discender, &e.
Also, if there be tenant in tail, the reversion being to the donor and
his heirs, if the tenant make a feoffment, &e. and die without issue,
he in the reversion cannot enter, but is put to his action of formedon
in le reverter.
In the same manner is it, where tenant in tail is seised of certain
land whereof the remainder is to another in tail, or to another in fee.
If the tenant in tail alien in fee, or in fee-tail, and after die without
issue, they in the remainder may not enter, but are put to their writ of
formedon in the remainder, &c. and for that that by force of such
454 DISSEISIN AND OTHER OUSTER.
feoffments and alienations in the cases aforesaid, and the like cases
thej- that have title and right after the death of such a feoffor or
alienor may not enter, but are put to their actions, ut supra ; and
for this cause such feoffments and alienations are called discon-
tinuances.
Also if tenant in tail be disseised, and he release \>y his deed to the
disseisor and to his heirs all the right which he hath in the same
tenements, this is no discontinuance, for that nothing of the right pass-
elh to the disseisor, but for term of the life of tenant in tail which
made the release, &c.
But by the feoffment of tenant in tail, fee simple passeth by the same
feoffment by force of the liverj- of seisin, &c.
But by force of a release nothing shall pass but the right which he
maj- lawfully and rightfully release, without hurt or damage to other
persons who shall have right therein after his decease, &c. So there
is great diversity between a feoffment of tenant in tail, and a release
made by tenant in tail.
But otherwise it is when tenant for life maketh a feoffment in fee, for
by such a feoffment the fee simple passeth. For tenant for years may
make a feoffment in fee, and by his feoffment the fee simple shall pass,
and .yet he had at the time of the feoffment made but an estate for
term of years, &c.
Warranty that commences by disseisin is in this manner : as where
there is father and son, and the son purchaseth land, &c. and letteth
the same land to his father for term of years, and the father by his
deed thereof enfeoffeth another in fee, and binds him and his heirs to
warranty, and the father dies, wherebj' the warranty descendeth to
the son, this warranty shall not bai' the son ; for notwithstanding
this warrant}- the son may well enter into the land, or have an assise
against the alienee if he will, because the warranty commenced by
disseisin : for when the father which had but an estate for term of
years, made a feoffment in fee, this was a disseisin to the son of the
freehold which then was in the son. In the same manner it is, if the
son letteth to the father the land to hold at will, and after the father
make a feoffment with warrant^-, &c. And aa it is said of the father,
so it may be said of every other ancestor, &e. In the same manner is
it, if tenant b^- elegit, tenant by statute merchant, or tenant b}' statute
staple, make a feoffment in fee with warranty, this shall not bar the
heir which ought to have the land, because such warranties commence
by disseisin.*
Co. Lit. 277 a, b. " Abate" is both an English and French word,
and signifieth in his proper sense to diminish or take away, as here
b}' his entry he diminisheth and taketh away the freehold in law
1 St. 8 & 9 Vict. V. 106 (1845), v. 4, provides "that a feoffment made after" Octo-
ber 1, 1845, " shall not have any tortious operation." Foi- like Statutes in the United
States, see Stimson, Am. Stat. Law, § 1402.
DISSEISIN AND OTHER OUSTER. 455
descended to the heir : and so it is said to abate an account, signify-
ing subtraction or withdrawing, &c. and to abate the courage of a man.
In another sense it signifieth to prostrate, beat down, or overthrow,
as to abate castles, houses, and the like, and to abate a writ ; and
hereof coraeth a word of art, abatamentum, which is an eutr}- by
interposition. Now the difference inter disseisinam, abatamentum,
intrusionem, deforciamentum, et usurpationem, et purpresturam,
is this :
A disseisin is a wrongful putting out of him that is actually seised of
a freehold. And abatement is when a man died seised of an estate of
an inheritance, and between the death and the entry of the heir, a
stranger doth interpose himself, and abate.
Intrusion first properfy is, when the ancestor died seised of any estate
of inheritance expectant upon an estate for life, and then tenant for
life dieth, and between the death and the entry of the heir a stranger
doth interpose himself and intrude.
Secondly, he that entereth upon any of the king's demesnes, and tak-
eth the profits, is said to intrude upon the king's possession.
Thirdly, when the heir in ward entereth at his full age without satis-
faction for his marriage, the writ saith, quod intrusit.
Deforciamentum, comprehendeth not only these aforenamed, but any
man that holdeth land whereunto another man huth right, be it by de-
scent or purchase, is said to be a deforceor.
Usurpation hath two significations in the common law : one, when a
stranger that no right hath presenteth to a church, and his clerk is
admitted and instituted, he is said to be an usurper, and the wrongful
act that he hath done is called an usurpation.
Secondly, when any subject doth use, without lawful warrant, roj'al
franchises, he is said to usurp upon the king those franchises.
Purprestura, or pourprestura, a purpresture. Purprestura est, <&c.,
generaliter quoties aliquid Jit ad nocumentum regii tenementi, vel
regies vim (vel aliquarum puUicarum) vel cioitatis, &o. And because
it is properly when there is a house builded, or an enclosure made of
any part of the king's demesnes, or of an highway, or a common street
or public water, or such like public things, it is derived of the French
word pourpris, which signifieth an inclosure, but specially applied, as
is aforesaid, by^the common law.
456 KEMEDIES.
SECTION VIII.
KEMEDIES.
5 BiCH. n. St. 1 (1381), c. 7. And also the King defendeth, That
none from henceforth make any entr}' into anj' lands and tenements,
but in case where entrj- is given by the law ; and in such case not with
strong hand, nor with multitude of people, but onlj- in peaceable and
easy manner. And if any man from henceforth do to the contrary,
and thereof be duly convict, he shall be punished b3' imprisonment of
his body and thereof ransomed at the King's will.^
3 Bl. Com. 117, 118. Personal actions are such wherebj- a man
claims a debt, or personal duty, or damages in lieu thereof: and, like-
wise, wherebj' a man claims a satisfaction in damages for some injury
done to his person or propertj'. The former are said to be founded on
contracts, the latter upon torts or wrongs : and thej' are the same
which the civil law calls •' actiones in personam quce adversus eum in-
tencluntur, qui ex contractu vel delicto obligatus est aliquid dare vel
concedere." Of the former nature are all actions upon debt or prom-
ises ; of the latter .ill actions for trespasses, nuisances, assaults, defam-
atory words, and the like.
Real actions (or, as the}' are called in the Mirror, feodal actions) ,
which concern real property onl}-, are such whereby the plaintiff, here
called the demandant, claims title to have any lands or tenements, rents,
commons, or other hereditaments, in fee-simple, fee-tail, or for term of
life. By these actions formerly all disputes concerning real estates
were decided ; but they are now pretty generally' laid aside in practice,
upon account of the great nicetj' required in their management, and the
inconvenient length of their process : a much more expeditious method
of trying titles being since introduced, by other actions personal and
mixed.
Mixed actions are suits partaking of the nature of the other two,
wherein some real propertj- is demanded, and also personal damages
for a wrong sustained. As for instance an action of waste : which is
brought bj- him who hath the inheritance, in remainder or revej'sion,
against the tenant for life, who hath committed waste therein, to re-
cover not only the land wasted, which would make it merely a real
action ; but also treble damages, in pursuance of the Statute of
Gloucester, which is a personal recompense ; and so both, being
joined together, denominate it a mixed action.
•
1 See St. 8 Hen. VI. c. 9.
REAL ACTIONS.
457
1 RoscoE, Real Actions, 3. The following table exhibits a view of the
various species of real actions : —
o
I— I
O
■<
1. Right patent.
2. Kiglit quia dominus remmt curiam.
3. Right in capite.
4. Right in London.
5. Right close.
6. Right de rationabiii parte.
7. Right of advowson.
8. Right of dower.
Right upon disclaimer.
De rationabiUbus divisis.
Right of ward.
De consuetudinibus et servitiis.
Cessavit.
Escheat.
Nativo kabendo.
Quo jure.
Seita ad molendinum,
Ne injuste vexes.
Writ of mesne.
Dower unde nihil habet.
Quod permittat.
14. Formedon.
fin
In
Un
In descender,
remainder,
reverte-
1. Novel disseisin.
2. Nuisance.
3. Darrein pi^esentmentt
4. Juris utrum.
5. Mortd' ancestor.
>>
u
!^
■*->
§
fl
CO
•4H
CO
O
Ed
CO
ca
*J
CO
o
"Ih
Ph
^
1. Sur disseisin.
2. Sar mirasion.
( 1. Dumfuit non compos mi
1. By person incapable. -j 2. Dum fait infra tetatem.
^3. Dumfuit in prisoJia.
S. Sur alienation, .
2. By particular tenant
fl. Ad
1 2. By
Ad communem leyem.
1. In casu proviso.
2. In consimili casu.
Stat.
3. By husband seised Jure uxoris.
4. By ecclesiastic. Sine assensu
capituli.
1. Cuiinvita.
2. Sur cuiin vita.
3. Cms ante divortium.
4. Sur cui ante divortium.
fi to
■^ CO
CO
CO o
^s
4. Sar aJaJemenJ.
5. Qware ejecit infra terminum.
6. ^d terminum qui prceteriit.
. 7. CoMsa matrimonii prailocuti.
1. ^se?.
2. Beaaiel.
3. Tresaiel.
4. Cosinage.
5. Nuper obiit.
Quare impedit.
Waste.
458 REAL ACTIONS.
St. 52 Hen. III., St. of Maelebridge (1267), c. 29. It is provided
also, That if those alienations (whereupon a writ of entry was wont
to be granted) hap to be made in so many degrees, that by reason
thereof the same writ cannot be made in the form beforetime used, the
plaintiffs shall have a writ to recover their seisin, without making men-
tion of the degrees, into whose hands so ever the same thing shall hap-
pen to come by such alienations, and that by an original writ to be
provided therefor bj- the Council of our Lord the King.
Co. Lit. 238 b. " Writ of entry sur disseisin." Breve de ingressu
super disseisinam. This writ lieth only upon a disseisin made to the
demandant or to some of his ancestors, and of this writ there be four
kinds. The first is a writ that lieth for the disseisee against the dis-
seisor upon a disseisin done b3' himself, and this is called a writ of
entry in the nature of an assise. The second is a writ of entrie sur
disseisin en le per., whereof Littleton here speaketh, for the heir by
descent is in the per by his ancestor : so it is if the disseisor make a
feoffment in fee, a gift in tail, or a lease for life, for they are in the
per by the disseisor. The third is a writ of entrie sur disseisin en le
per <& cui ; as where A. being the feoffee of D. the disseisor maketh a
feoffment over to B. there the disseisee shall have a writ of entry sicr
disseisin of lands, &c. in which B. had no entry but by A. to whom
D. demised the same, who unjustly and without judgment disseised the
demandant. These are called gradus, degrees, which are to be ob-
served, or else the writ is abatable ; for sicut natura non facit saltuvi,
ita ?iec lex.
The fourth is a writ of entrie sur disseisin in le post, which lieth
when after a disseisin the land is removed from hand to hand beyond
the degrees ; and it is called in le post, because the words of the writ
be, post disseisinam quam D, injuste, t&c. fecit, Sc.^
Proceedings on an Action of Trespass in Ejectment, hy Original, in
the King's Bench.
Sect. 1. The Original Writ.
George the Second, by the grace of God, of Great Britain, France,
and Ireland King, Defender of the Faith, and so forth, to the Sheriff of
Berkshire, greeting. If Richard Smith shall give you securitj- of prose-
cuting his claim, then put by gage and safe pledges William Stiles, late
of Newbury, gentleman, so that he be before us on the morrow of All-
Souls, wheresoever we shall then be in England, to show wherefore
with force and arms he entered into one messuage, with the appurte-
nances, in Sutton, which John Eogers, Esquire, hath demised to the
^ By St. 3 & 4 Wm. 4, c. 27, § 36, no real or mixed action, " except a writ of
right of dower, or writ of dower unde nihil habet, or a quare impedit or an eject-
ment," is to be brought after the year 1834.
EJECTMENT. 459
aforesai'd Richard, for a term which is not j'et expired, and ejected him
from his said farm, and other enormities to him did, to the great dam-
age of the said Richard, and against our peace. And have you there
the names of the pledges and this writ. Witness ourself at Westmin-
ster, the twelfth daj- of October, in the twenty-ninth year of our reign.
Pledges of prosecution, | i°^" ^°!;
( Richard Roe.
The within-named William Stiles f John Den.
f Johi
I Rich
is attached by pledges, ( Richard Fen.
Sect. 2. Copy of the Declaration against the casual Ejector, who gives Notice
thereupon to the Tenant in Possession.
Michaelmas, the 29th of King George the Second.
Berks, ] William Stiles, late of Newbury in the said county, gen-
to wit. j tleman, was attached to answer Richard Smith, of a
plea, wherefore with force and arms he entered into one messuage, with
the appurtenances, in Sutton in the count}- aforesaid, which John Rogers,
Esquire, demised to the said Richard Smith for a term which is not j'et
expired, and ejected him from his said farm, and other wrongs to him
did, to the great damage of the said Richard, and against the peace of
the Lord the King, &c. And whereupon the said Richard by Robert
Martin his attorney complains, that whereas the said John Rogers, on
the first day of October, in the twentj'-uinth 3-ear of the reign of the
Lord the King that now is, at Sutton aforesaid, had demised to the
same Richard the tenement aforesaid, with the appurtenances, to have
and to hold the said tenement, with the appurtenances, to the said
Richard and his assigns, from the Feast of Saint Michael the Arch-
angel then last past, to the end and term of Sve j-ears from thence next
following and fully to be complete and ended, by virtue of which demise
the said Richard entered into the said tenement, with the appurte-
nances, and was thereof possessed ; and the said Richard being so
possessed thereof, the said William afterwards, that is to say, on the
said first day of October in the said twenty-ninth jear, with force and
arms, that is to say, with swords, staves, and knives, entered into the
said tenement, with the appurtenances, which the said John Rogers
demised to the said Richard in form aforesaid for the term aforesaid,
which is not yet expired, and ejected the said Richard out of his said
farm, and other wrongs to him did, to the great damage of the said
Richard, and against the peace of the said Lord the King ; whereby
the said Richard saith, that he is injured and damaged to the value of
twenty pounds. And thereupon he brings suit, &c.
Martin, for the plaintiff. )
Peters, for the defendant. )
Pledges of Prosecution, ■] „. , , '
^ 1 Richard Roe.
Mr. George Saunders, —
I am informed that jou are in possession of, or claim title to, the
460 EJECTMENT.
premises mentioned in this declaration of ejectrbent, or to some part
thereof; and I, being sued in this action as a casual ejector, and hav-
ing no claim or title to the same, do advise j'ou to appear next Hilary
Term in his Majesty's Court of King's Bench at Westminster, bj- some
attorney of that court, and then and there, by a rule to be made of the
same court, to cause yourself to be made defendant in my stead ;
otherwise I shall suffer judgment to be entered against me, and you will
be turned out of possession.
Your loving friend,
William Stiles.
5th January, 1756.
Sect. 3. The Rule of Court.
Hilary Term, in the twenty-ninth Year of King George the Second.
Berks, 1 It is ordered by the court, by the assent of both parties,
to wit, J and their attornies, that George Saunders, Gentleman,
may be made defendant, in the place of the now defendant, William
Stiles, and shall immediately appear to the plaintiff's action, and shall
receive a declaration in a plea of trespass and ejectment of the tene-
ments in question, and shall immediately plead thereto Not Guiltj-;
and, upon the trial of the issue, shall confess lease, entry, and ouster,
and insist upon his title onlj-. And if upon the trial of the issue, the
said George do not confess lease, entrj', and ouster, and by reason
thereof the plaintiff cannot prosecute his writ, then the taxation of costs
upon such non pros, shall cease, and the said George shall pay such
costs to the plaintiff, as bj' the Court of our Lord the King here shall
be taxed and adjudged, for such his default in non-performance of this
rule ; and judgment shall be entered against the said William Stiles,
now the casual ejector, by default. And it is further ordered, that if
upon the trial of the said issue a verdict shall be given for the defend-
ant, or if the plaintiff shall not prosecute his writ upon any other cause
than for the not confessing lease, entry, and ouster as aforesaid, then
the lessor of the plaintiff shall pay costs, if the plaintiff himself doth
not paj- them. By the Court.
Martin, for the plaintiff,
Newman, for the defendant.
Note. — The above form of heginning an action of ejectment is taken from the
Appendix to the Third Volume of Blackstone's Commentaries. The later proceedings
are omitted.
COPYHOLDS. 461
CHAPTER IV.
COPYHOLDS.
Lit. §§ 73, 74, 78. Tenant by copy of court roll is, as if a man be
seised of a manor within which manor there is a custom, which hath
been used time out of mind of man, that certain tenants within the
same manor have used to have lands and tenements, to hold to them
and their heirs in fee simple, or fee tail, or for term of life, &c. at the
will of the lord according to the custom of the same manor.
And such a tenant may not alien his land by deed, for then the lord
ma}' enter as into a thing forfeited unto him. But if he will alien his
land to another, it behooveth him after the custom to surrender the
tenements in court, &c. into the hands of the lord, to the use of him
that shall have the estate, in this form, or to this ett'ect. ,
A. of B. Cometh into this court, and surrendereth in the samp court a mease,
&c. iuto the hands of the lord {in manus domlni), to the use of C. of D. and his
heirs, or the heirs issuing of his body, or for term of life, &c. And upon that
Cometh the aforesaid C. of D. and taketh of the lord in the same court the
aforesaid mease, &c. To have and to hold to him and to his heirs, or to him
and to his heirs issuins; of his body, or to him for term of life, at the lord's
will, after the custom of the manor, to do and yield therefor the rents, services
and customs thereof before due and accustomed, &c. and giveth the lord for a
fine, &c. and maketh unto the lord his fealty, &c.
Tenants bj' the verge are in the same nature as tenants by copy of
court roll. But the reason why they be called tenants by the verge, is,
for that when thej' will surrender their tenements into the hands of their
lord to the use of another, thej- shall have a little rod (bj^ the custom)
in their hand, the which thej' shall deliver to the steward or to the
bailiff according to the custom of the manor, and he which shall
have the land shall take up the same land in court, and his taking
shall be entered upon the roll, and the steward or bailiff according to
the custom shall deliver to him that taketh the land the same rod, or
another rod, in the name of seisin ; and for this cause they are called
tenants by the verge, but they have no other evidence but by copy of
court roll.
462 USES AND TRUSTS.
CHAPTER V.
USES AND TRUSTS.i
SECTION I.
USES BEFORE ST. 27 HEN. VIII. C. 10.'^
Keilw. 42, PL. 7 (1502). Vavasour, J., said that the subpoena
commenced in the time of Edward III. ; but this was always against
the feoffee upon confidence himself, for against his heir the subpoena
was never allowed until the time of Henr}- VI., and in this point the
law was changed bj- Fortescue, C. J.^
St. 1 Rich. III. (1483), c. 1. Forasmuch as by privy and unknown
feoffments, great unsurety, trouble, costs, and grievous vexations daily
grow among the King's subjef'ts, insomuch that no man that buj-eth any
lands, tenempnts, rents, services, or other hereditaments, nor women
that have jointures or dowers in anj' lands, tenements, or other heredit-
aments, nor men's last wills to be performed, nor leases for term of
life, or of j-ears, nor annuities granted to anj- person pr persons for
their services for term of their lives or otherwise be in perfect surety,
nor without great trouble and doubt of the same, because of the said
privy and unknown feoffments : (2) For remedy whereof, be it ordained,
established, and enacted, by the advice of the Lords Spiritual and Tem-
poral, and bj' the Commons in this present Parliament assembled, and
by authority of the same, that everj- estate feoffment, gift, release, grant,
leases and confirmations of lands, tenements, rents, services, or heredit-
aments, made or had, or hereafter to be made or had by any person
1 On EqTiity Jurisdiction in general, see Langdell, Eq. PI. §§ 36-45 ; Digby, Real
Prop. (1st ed.) 244-247 ; (2d ed.) 285-287 ; (3d ed.) 276-279 ; Haynes, Outlines of
Eq. 6-20.
2 On Uses before the Statute, see also Digby, Eeal Prop. v. 6 ; Leake, Digest Land
Law, 99-102.
^ " The experience and pi-actice of uses were not ancient, and my reasons why 1 think
so, are these four: First, I cannot find in any evidence before King R. II. his time,
the clause ad opus et usum, and the very Latin of it savoureth of that time ; for in
ancient time, about Edw. 1. and before, when lawyers were part civilians, the Latin
phrase was much purer, as you may see partly by Bracton's writing, and by ancient
patents and deeds, and chiefly by the register of writs, which is good Latin, whereas
this phrase ad opus et usum, and the words ad opus, is a barbarous )>hrase, and like
enough to be the penning of some chaplain that was not much past his grammar,
where he had found opus and usus coupled together, and that they did govern an
ablative case ; as they do indeed since this Statute, for they take away tlie land and
put them into a conveyance." Bacon, Uses, 22.
ANONYMOUS. 463
or persons being of full age, of whole mind, at large, and not in duress,
to anj' person or persons ; and all recoveries and executions iiad
or made, shall be good and effectual to him to whom it is so made, had or
given, and to all other to his use, (3) against the seller, feoffor, donor, or
grantor thereof, (4) and against the sellers, feoffors, donors, or grantors,
his or their heirs, claiming the same onl_y as heir or heirs to the same
sailers, feoffors, donors, or grantors, and everv of them, (5) and against
all other having or claiming anj' title or interest in the same, onl}' to
the use of the same seller, feoffor, donor or grantor, sellers, feoffors,
donors or grantors, or his or their said heirs at the time of the bargain,
sale, covenant, gift or grant made, (6) saving to every person or persons
such right, title, action or interest, by reason of gift in tail thereof
made, as they ought to have had, if this Act had not been made.
ANONYMOUS.
Common Pleas. 1522.
[MepoHed Year Book 14 Hen. Fill., 4, pL 5.]
One J. S. sued a replevin for his cattle tortiouslj' taken.
The defendant avowed for that J. D. and J. B. were seised of a
ploughland of land in their demesne as of fee to the use of R. N. by the
feoffment F. R., &c., and being so seised granted an annual rent out of
the said ploughland to A. by the name of Alice, wife of R. to hold dur-
ing the term of her life with a clause of distress, and afterwards Alice
married the defendant, before the taking, and for so much in arrear he
avowed the taking, &c.
To which the plaintiff said that J. D. and J. B. were seised to the
use of W. N. and being so seised granted the said rent to the said A.
as alleged, she then having notice of the use, that the said J. D. and
J. B. enfeoffed one Halpenny in fee whereby he was seised, and being
so seised, and Alice also being seised of the rent, the said W. N. b}' his
deed released all his right to the said Halpenny to him and his heirs
forever absque hoc that J. D. and J. B. were seised to the use of R. N.
as the avowant has alleged, &c., and prays judgment if this avowr3-, &c.
I'itz-Herbert, J. First it is to be seen to wliose use the grantee
shall be seised.'' I think he shall be seised to the first use, notwithstand-
ing he had no notice, for uses are at common law and not by the stat-
utes of Richard, and a use is but a trust and confidence which feoffor
puts in his feoffee according to the estate which was at common law,
for if a woman seised of land at common law will upon a communica-
tion of marriage enfeoff one, if he does not perform the trust, the law
1 Only so much of the opinion of the court as relates to this point is given. The
translation is taken from Professor Ames's pamphlet on Uses and Trusts before the St,
of 27 Hen. VIII.
464 ANONYMOUS.
gives her a remedy to recover her land back by a writ of entry causa
matrimonii praelocuti. And so if I will that my executor sell my land
which is devisable, if he will not, but takes the profits to his own use,
the heir may enter upon him for the non-performance of his trust as was
adjudged in 38 Lib. Ass. p. 3. And then the trust is a necessity, for a
dead man cannot perform his own will. But, Sir, in this present case
this feoffment in trust was only a pleasure and not a necessity, but still
he is as much bound in conscience to perform his will as the executor
since he took the estate to do it, and if he deceives him no one will say
that he does well. At the common law the feoffor had no remedy
except by subpoena, but now by the statute he maj' enter and make a
feoffment according to his will, if his feoffee will not do his will. But
how a use shall be changed depends upon the common law and upon
the estate of the feoffee, for if I enfeoff B. to hold to him his heirs and
assigns, my trust and confidence is in him, his heirs, and assigns ; and
this is easily- shown, for the heirs will he bound to perform the feoffor's
will as much as the father, and the second feoffee as much as the
first, if there is no consideration, and so it is if the feoffee suffer a re-
covery without a consideration. For it shall be intended since he
parted with the land without consideration that he parted with it in
the most proper way, i. e. to hold it as he held. For when an act rests
in intendment and is indifferent, the law makes the most favorable pre-
sumption, for if I see a priest and a woman together suspieiousl3', still
as long as there is doubt whether he is doing good or evil the former
is to be presumed, and so here. And. Sir, the rent is, in a manner, part
of the land, and here the trust was in the land out of which the rent
was granted, and this grant is without consideration, and it maj- be
granted to the first use, wherefore it shall be so intended. And al-
though the rent was not in esse and he had no use in it before, still he
may have the use. For I take it clearly if one is seised of a seigniory in
gross and grants it to his use, if the land escheats, that the feoffee shall
nevertheless be seised to the first use for it comes in lieu of the seigniory :
and yet he had no use in the land before ; and so one maj' grant for
term of hfe and express the use.
Broke, J. to the same intent. Sir, as the feoffor puts confidence and
trust, so shall be his use, and the use is in the feoffor in conscience, al-
though the feoffee has the land bj- the common law. And so it is not
like an estate upon condition at common law, for the whole inheritance
is in the feoffee, and if he dies without heir, the feoffor cannot enter;
but if he gives the land in tail and the donee dies without heir, he may
enter, and every dealing with the land should be according to the wish
of the feoffor. For if the feoffee acts otherwise, he is chargeable in
conscience, and so is the heir of the feoffee ; and the feoffee of the
feoffee if there is no consideration ; and so is he who comes in bj- fine and
false recover}'. Scilicet, those recoveries in a writ of entry in the post.
For in all these cases it is the act of the feoffee and being without con-
sideration the law intends that it was according to the first use ; and,
ANONYMOUS. 465
Sir, conscience does not make the use, but common reason which is
common law, which is indifferent to all laws spiritual and temporal ;
and, Sir, although common reason saj's that if I enfeoff one without con-
sideration, this shall be to my use, still this land shall be in the feoffee
like any other land and take the same course : for if he has a wife and
dies, his wife shall have dower to her own use, for here there is no act
of the feoffee and she does not claim by the feoffee, but the law makes
her estate ; and so if he is bound in a statute merchant ; and so in case
of a lord taking by escheat, for in these cases there was no act by the
feoffee, to deceive or defraud the feoffor, but it was done bj' order of the
law. And, Sir, the notice as here is the important matter, for if there
was no notice there would be no use, but if he has notice, he is par-
ticeps criminis.
Pollard, J. to the same intent. As has been said uses were at the
common law and are nothing more than confidence and trust, and the
feoffee is bound to act according to the trust, otherwise he would de-
ceive his feoffor, which would not be reason. And there is a diversity
when there is a default in the feoffee in deceiving the feoffor, and when
not, for if the feoffee die his wife shall have dower, and so in case of a
statute merchant or escheat, for there is no default in feoffee, but the
operation of law. But the default is in me, and although my feoffee is
bound in a statute merchant, still I can enter and make a feoffment and
the execution is discharged. And so if my feoffee endowed his wife ad
ostium ecclesioB and I re-enter, it is void, for the feoffee took the es-
tate by rax feoffment, and not by law. And if the feoffees enfeoff one
without consideration, it is the first use unless it be without notice ;
but if upon consideration without notice the use is changed, and if with
notice, though upon consideration, the first use remains ; and this is the
divei'sity.
Bkudenell, J. to the contrary.*
ANONYMOUS.
Common Pleas. 1522.
[Heported Bro. N. 0. by March, 89.]
A MAN makes a feoffment in fee, to four, to his use, and the feoffees
make a gift in tail without consideration, to a stranger, who had not
conusance of the first use, habend. in tail, to the use of cestui que
use, and his heirs ; the tenant in tail shall not be seised to the first
use, but to his own use, for the Stat, of Westm. 2, cap. 1, wills, quod
voluntas donatoris in omnibus observetur; that a man ought to refer
his will to the law, and not the law to his will : Also none can be
1 The opinion of Brudenell, J. is omitted.
30
466 ANONYMOUS.
seised to the use of another, but he which may execute an estate to
cestui que use, which shall be perfect in law, which tenant in tail
cannot do ; for if he executes an estate, his issue shall have a for-
medon ; and the best opinion [is] that an abbot, mayor and commonalty,
nor other corporations shall not be seised to a use, for their capacity
is onU' to take to their own use : and also if the abbot execute an
estate, the successor shall have a writ of entry sine assensu capituli :
and those that are in the post, as by escheat, mortmain, perquisite
of villein, recovery, dower', curtesy, and the like, are seised to
their own use and not to another use : and also the Stat, of 1 R. 3,
is, That all gifts, feoffments & grants of cestui que use shall be
good against all, &c. saving to all persons their rights and interests
in tail, as if this Stat, had not been made ; and therefore tenant in
tail shall not be seised to a use. And 't was agreed by the court.
That the words in the end of the Stat, of 1 R. 3, saving such right
and interest to the tenant in tail, &c. is taken tenant in tail in
possession ; and not tenant in tail in use : for cestui que use in tail
hath no right nor interest. And also here there is a tenure betwixt
the donors and the donees, which is a consideration that the tenant
in tail shall be seised to his own use : and the same law of tenant
for term of years, and tenant for life, their fealtj' is due ; and where
a rent is reserved, there, though a use be expressed to the use of the
donor, or lessor, yet this is a consideration that the donee or les-
see shall have it to his own use : and the same law where a man
sells his land for £20 by indenture, and executes an estate to his
own use ; this is a void limitation of the use : for the law hy the con-
sideration of money, makes the land to be in the vendee. Et opinio
fuit, That a use was at common law before the Stat, of Quia emp-
tores terrarum, but uses were not common before the same Stat. For
upon every feoffment before this Stat, there was a tenure betwixt the
feoffors and the feoffee ; which was consideration, that the feoffee
shall be seised to his own use ; but after this Stat, the feoffee shall
hold de capitali domino, and there is no consideration betwixt the
feoffor and the feoffee without money paid, or other especial matter
declared, for which the feoffee shall be seised to his own use : for where
the Stat, of Marlebr. is, that a feoffment by the father, tenant in
ehivalrj-, made to his son by covin, shall not toll the lords ward, &c.
In these cases the feoffor after such feoffment takes the profits of the
land all his life. And the same law by Shelley [J.] of a feoffment
made by a woman to a man to marry her, the woman takes the profits
after the espousals : Qucere inde ; for this is an express considera-
tion in itself And by Norwich, [J.] If a man deliver monej' to J. S.
to buy land for him, and he buys it for himself, & to his own use, this
is to the use of the bujer, and not to the use of him who delivered
the money ; and there is no other remedj^ but an action of deceit.^
^ " But one of the most important circumstances, in the history of the decline of the
feud, is, the introduction of uses. By these the legal estate of the land was in the
USES. 467
feoffee. In fact, therefoi-e, there never was a vacancy in the tenure. But the ownership
and benelicial property of the land being absolutely vested in the cestui que use, there
was no point of connection, between him and the lord. Besides, when a feoffment was
made to uses, it seldom happened, that, the feoffment was made to a single person. The
feoffees were numerous, and when their number was reduced to that of one or two per-
sons, a new feoffment was made to other feoffees, to the subsisting uses. In the mean-
time, the ownership of the land was transmitted and aliened, at the will of the cestui
que use. It is evident that, while the fief was held in this manner, there was a wide
separation between the lord and the tenant. It must also be observed, that, where
there was a feoffment to uses, the fruits of tenure incident to purchase, became seldom
due, and those incident to descent almost never accrued to the lord. Now, where a
pel-son took by purchase, the lord was only entitled to the trifling acfcnowledgraent of
relief: when he came in by descent, the lord was entitled to the grand fruits of military
tenure, wardshij), and maiTiage. From these observations, it is clear, how great a fraud
was practised upon the lord, by the introduction of uses. A fief thus circumstanced,
presented an apparent tenant to the lonl, but it was almost barren of every fruit and
advantage of tenure, and the land itself was entirely subtracted from the feud. Hence
we find, that, among the mischiefs recited in the preamble to the Statute of Uses, the
loss to the lord, of the fruits of tenure, is particularly insisted on. It does not fall
within the nature of tliese observations, to mention the steps which were taken to ex-
tirpate uses. One of them was the Statute of the 1 Richard the 2d. cap. 9, which gave
an action to the disseisee, both against the feoffee, and the cestui que use. It is observa-
ble, that the senatus consultum Trebonianum gave the same right of action against the
hasresfidei commissarius. Unquestionably the object of the Statute of the 27 of Heni'y 8
■H'as to effect a total extirpation of uses." Co. Lit. 191 a. Butler's note, VI. 11.
" The introduction of Uses produced a great revolution in the transfer and modification
of landed property. Without entering into a minute discussion of the difference be-
tween uses at common law, and uses since the Statute of 27 H. 8, — a point, particularly
well explained in Mr. Sanders's Essay on Uses and Trusts, it is sufficient to state the
following circumstances. Uses at the common law were, in most respects, what trusts
are now. When a feoffment was made to uses, the legal estate was in the feoffee.
Re filled the possession, did the feudal duties, and was, in the eye of the law, the
tenant of the fee. The person to whose use he was seised, called by the law-writers the
cestuy que use, had the beneficial property of the lands, had a right to the profits, and
a right to call upon the feoffee to convey the estate to him, and to defend it against
strangers. This right at first depended on the conscience of the feoffee: if he withheld
the profits from the cestuy que use, or refused to convey the estate as he directed, the
cestuy que use was without remedy. To redress this grievance, the writ of subpoena
was devised, or rather adopted from the common-law courts, by the Court of Chancery,
to oblige the feoffee to attend in court, and disclose his trust, and then the court com-
pelled him to execute it. Thus uses were established. — They were not considered as
issuing out of, or annexed to the land, as a rent, a condition, or a right of common ;
but as a trust reposed in the feoffee, that he should dispose of the lands, at the discre-
tion of the cestuy que use, permit him to receive the rents, and, in all other respects, to
have the beneficial property of the lands. Yet an use, though considered to be neither
issuing out of, or annexed to the land, was considered to be collateral to itj or rather as
collateral to the possession of the feoffees in it, and of those claiming that possession
under them. Hence the disseisor, abator, or intruder of the feoffee, or the tenant in
dower, or by the courtesy of a feoffee, or the lord entering upon the possession by es-
cheat, were not seised to an use, though the estates in their hands were subject to rents,
commons and conditions. They were considered aa coming in by a paramount and
extraneous title ; or, as it is called in the law, in the post, in contradistinction from
those who, claiming under the feoffee, were said to be in the per. Thus, between the
feoffee and cestui que use, there was a confidence in the person and privity in estate.
(See Chudleigh' s Ca,se, 1 Rep. 120, and Burgess and Wheate, 1 Bla. 123.) But this
was only between the feoffee and cestui que use. To all other persons the feoffee was as
468 STATUTE OF USES.
SECTION 11.
STATUTE OF USES.
St. 27 Hen. VIII. (1536) c. 10. Where by the common laws of
this realm, lands tenements and hereditaments be not devisable by tes-
tament, (2) nor ought to be transferred from one to another, but by
solemn livery- and seisin, matter of record, writing sufficient made bona
fide, without covin or fraud ; (3) yet nevertheless divers and sundry
imaginations, subtle inventions and practices have been used, whereby
the hereditaments of this realm have been conveyed from one to another
much the real owner of the fee, as if he did not hold it to the use of another. He per-
formed the feudal duties ; his wife was entitled to dower ; hu infant heir was in ward-
ship to the lord ; and, upon his attainder, the estate vyas forfeited. To remedy these
iuconveniencies, the Statute of 27 H. 8 was passed, by which the possession was di-
vested, out of the persons seised to the use, and transferred to the cesiuis que use. For,
hy that Statute, 'it is enacted, that, ' when any person shall be seised of any lands to
the use, confidence, or trust of any other person or persons, by reason of any bargain,
sale, feoffment, fine, recovery, contract, agreement, will, or otherwise : then, and in
every such case, the persons having the use, confidence, or trust, should from thence-
forth be deemed and adjudged in lawful seisin, estate, and possession of and in the
lauds, in the same quality, manner, and form, as they had before in the use.' " Co. Lit.
271 b, Butler's note, II.
" Down to the time of Hen. VI., the cestui que trust, could only proceed in the Court
of Chancery against the feoifee in trust himself ; indeed it was insisted by the common
law judges in the reign of Edw. IV., that a subpoena did not lie against the heir of
the trustee; afterwards, by universal consent, it was extended to his heir, and then to
alienees with express notice of the trust, or without valuable consideration, in which
case notice was implied. But a purchaser of the legal estate for valuable consideration
hona fide, without notice, might then, as now, hold the land discharged of any trust
or confidence : the only remedy was against the feoffee, or his executor if the feoffee
were dead.
" If the feoffee to uses died without heir, or committed a forfeiture, or married, neither
the lord who entered for the escheat or forfeiture, nor the husband who retained the
possession as tenant by the curtesy, nor the wife to whom dower was assigned, was liable
to perform the trust, because they were not parties to the transaction, but came in by
act of law, or in the post, and not in the per, as it was said, though doubtless their title
in reason was no better than that of the heir against whom the remedy was extended.
It was the same as regards any other person who obtained possession, not claiming by
any contract or agreement with the feoffee, between whom and the cestui que use, there-
fore, there was no privity. ' Where there was no trust, there could be no breach
of trust.' The remedy against a disseisor, therefore, was not in chancery at the instance
of the cestui que trust, but at law at the instance of the feoffee ; and it was part of his
duty to pursue his legal remedies at the desire of the cestui que trust.
"As regards i}x& cestui que trust ^^o, privity was in some sense essential to his obtain-
ing relief ; thus, on the death of the original cestui que trust, in the case of a simple
tmst or use, the right to sue a subpoena was held to descend to the heir as representing
his ancestor : but neither a wife, a husband, nor judgment creditor was entitled to this
privilege." 1 Spence Eq. Jur. 445.
STATUTE OF USES. 469
by fraudulent feoffments, fines, recoveries, and other assurances craffc-
ilj- made to secret uses, intents and trusts ; (4) and also by wills and
testaments, sometime made by nude parolx and words, sometime by
signs and tokens, and sometime by writing, and for ttie most part made
hy such persons as be visited with sickness, in their extreme agonies
and pains, or at such time as thej- have scantly had any good memory
or remembrance ; (5) at which times they being provoked by greedy
and covetous persons l3'ing in wait about them, do many times dispose
indiscreetly and unadvisedly iheir lands and inheritances ; (6) by reason
whereof, and by occasion of which fraudulent feoffments, fines, recov-
eries, and other like assurances to uses, confidences and trusts, divers
and manj' heirs have been unjustly at sundry times disinherited, the
lords have lost their wards, marriages, reliefs, harriots, escheats, aids
pur fair fils chiualier S pur file marier, (7) and scantly any person
can be certainly assured of any lands by them purchased, nor know
surely against whom they shall use their actions or executions for their
rights, titles and duties ; (8) also men married have lost their tenancies
by the curtesy, (9) women their dowers, (10) manifest perjuries by
trial of such secret wills and uses have been committed ; (11) the
King's Highness hath lost the profits and advantages of the lands of
persons attainted, (12) and of the lands craftily put in feoffments to
the uses of aliens born, (13) and also the profits of waste for a year
and a day of lands of felons attainted, (14) and the lords their escheats
thereof; (15) and many other inconveniencies have happened and daily
do increase among the King's subjects, to their great trouble and in-
quietness, and to the utter subversion of the ancient common laws of
this realm ; (16) for the extirping and extinguishment of all such
subtle practiced feoffments, fines, recoveries, abuses and errors here-
tofore used and accustomed in this realm, to the subversion of the good
and ancient laws of the same, and to the intent that the King's High-
ness, or any other his subjects of this realm, shall not in any wise
hereafter by anj' means or inventions be deceived, damaged or hurt, by
reason of such trusts, uses or confidences: (17) it ma}' please the
King's most royal majesty, That it maj- be enacted bj' his Highness, by
the assent of the Lords Spiritual and Temporal, and the Commons, in
this present Parliament assembled, and by the authority of the same,
in manner and form following ; that is to saj-. That whei'e anj' person
or persons stand or be seised, or at anj- time hereafter shall happen to
be seised, of and in any honours, castles, manors, lands, tenements,
rents, services, reversions, remainders or other hereditaments, to the
use, confidence or trust of any other person or persons, or of anj- body
politick, by reason of any bargain, sale, feoffment, fine, recover}', cove-
nant, contract, agreement, will or otherwise, by any manner means
whatsoever it be ; that in everj' such case, all and every such person
and persons, and bodies politick, that have or hereafter shall have anj'
such use, confidence or trust, in fee; simple, fee tail, for term of life or
for years, or otherwise, or any use, confidence or trust, in remainder or
470 STATUTE OF USES.
reverter, shall from henceforth stand and be seised, deemed and ad-
judged in lawful seisin, estate and possession of and in the same hon-
ours, castles, manors, lands, tenements, rents, services, reversions,
remainders and hereditaments, with their appurtenances, to all intents,
constructions and purposes in the law, of and in such like estates as
they had or shall have in use, trust or confidence of or in the same ;
(19) and that the estate, title, right and possession that was in such
person or persons that were, or hereafter shall be seised of an}' lands,
tenements or hereditaments, to the use, confidence or trust of anj' such
person or persons, or of any bodj- politic, be from henceforth clearly
deemed and adjudged to be in him or them that have, or hereafter shall
have, such use, confidence or trust, after such quality, manner, form and
condition as they had before, in or to the use, confidence or trust that
was in them.
II. And be it further enacted bj' the authority aforesaid. That where
divers and many persons be, or hereafter shall happen to be, jointly
seised of and in any lands, tenements, rents, reversions, remainders or
other hereditaments, to the use, confidence or trust of an}- of them that
be so jointl}' seised, that in every such case that those person oi' per-
sons which have or hereafter shall have any such use, confidence or
trust in any such lands, tenements, rents, reversions, remainders or
hereditaments, shall from henceforth have, and be deemed and ad-
judged to have only to him or them that have, or hereafter shall have any
such use, confidence or trust, such estate, possession and seisin, of and
in the same lands, tenements, rents, reversions, remainders and other
hereditaments, in like nature, manner, form, condition and course, as
he or they had before in the use, confidence or trust of the same lands,
tenements or hereditaments ; (2) saving and reserving to all and sin-
gular persons and bodies politic, their heirs and successors, other than
those person or persons which be seised, or hereafter shall be seised, of
any lands, tenements or hereditaments, to any use, confidence or trust,
all such right, title, entry, interest, possession, rents and action, as
they or anj- of them had, or might have had before the making of this
Act.
III. And also saving to all and singular those persons, and to their
heirs, which be, or hereafter shall be seised to anj- use, all such former
right, title, entrj', interest, possession, rents, customs, services and
action, as they or any of them might have had to his or their own
proper use, in or to anj- manors, lands, tenements, rents or heredita-
ments, whereof thej' be, or hereafter shall be seised to any other use, as
if this present Act had never been had nor made ; any thing contained
in this Act to the contrary notwithstanding.
IV. And where also divers persons stand and be seised of and in
any lands, tenements or hereditaments, in fee-simple or otherwise, to
the use and intent that some other person or persons shall have and
perceive yearly to them, and to his or their heirs, one annual rent of
X. li. or more or less, out of the same lands and tenements, and some
STATUTE OP USES. 471
other person one other annual rent, to him and his assigns for term of
life or j-ears, or for some other special time, according to such intent
and use as hath been heretofore declared, limited and made thereof:
V. Be it therefore enacted by the authority aforesaid, That in every
such case the same persons, their heirs and assigns, that have such use
and interest, to have and perceive any such annual rents out of any
lands, tenements or hereditaments, that they and every of them, their
heirs and assigns, be adjudged and deemed to be in possession and
seisin of the same rent, of and in such like estate as they had in the
title, interest or use of the said rent or profit, and as if a sufficient grant,
or other lawful conve3-ance had been made and executed to them, by
such as were or shall be seised to the use or intent of any such rent to
be had, made or paid, according to the very trust and intent thereof,
(2) and that all and every such person and persons as have, or here-
after shall have, anj' title, use and interest in or to any such rent or
profit, shall lawfully distrain for non-payment of the said rent, and in
their own names make avowries, or by their bailiffs or servants make
conisances and justifications, (3) and have all other suits, entries and
remedies for such rents, as if the same rents had been actually and
reallj' granted to them, with sufficient clauses of distress, re-entry, or
otherwise, according to such conditions, pains, or other things limited
and appointed, upon the trust and intent for payment or suretj' of such
rent.
VI. And be it further enacted by the authority aforesaid. That
whereas divers persons have purchased, or have estate made and con-
ve3-ed of and in divers lands, tenements and hereditaments unto them
and to their wives, and to the heirs of the husband, or to the husband
and to the wife, and to the heirs of their two bodies begotten, or to the
heirs of one of their bodies begotten, or to the husband and to the wife
for term of their lives, or for term of life of the said wife ; (2) or
where any such estate or purchase of any lands, tenements, or here-
ditaments, hath been or hereafter shall be made to any husband and to
his wife, in manner and form expressed, or to anj' other person or per-
sons, and to their heirs and assigns, to the use and behoof of the said
husband and wife, or to the use of the wife, as is before rehearsed, for
the jointer of the wife ; (3) that then in everj' such case, every woman
married, having such jointer made or hereafter to be made, shall not claim,
nor have title to have any dower of the residue of the lands, tenements
or hereditaments, that at any time were her said husband's, b}' whom
she hath anj' such jointer, nor shall demand nor claim her dower of and
against them that have the lands and inheritances of her said husband ;
(4) but if she have no such jointer, then she shall be admitted and
enabled to pursue, have and demand her dower by writ of dower, after
the due course and order of the common laws of this realm ; this Act, or
an}- law or provision made to the contrarj' thereof notwithstanding.
VII. Provided alway. That if any such woman be lawfully expulsed
or evicted from her said jointer, or from anj' part thereof, without any
472 STATUTE OP USES.
fraud or covin, by lawful entry, action, or bj^ discontinuance of her
husband, then ever}' such woman shall be endowed of as much of the
residue of her husband's tenements or hereditaments, whereof she was
before dowable, as the same lands and tenements so evicted and
expulsed shall amount or extend unto.
VIII. Provided also. That this Act, nor anj- thing therein contained
or expressed, extend or be in any wise hurtful or prejudicial to any
woman or women heretofore being married, of, for or concerning such
right, title, use, interest or possession, as they or any of them have,
claim or pretend to have for her or their jointer or dower, of, in or to any
manors, lands, tenements, or other hereditaments of any of their late
husbands, being now dead or deceased ; any thing contained in this Act
to the conti'ary notwithstanding.
IX. Provided also. That if any wife have, or hereafter shall have any
manors, lands, tenements or hereditaments unto her given and assured
after marriage, for term of her life, or otherwise in jointer, except the
same assurance be to her made bj' act of parliament, and the said wife
after that fortune to overlive her said husband, in whose time the said
jointer was made or assured unto her, that then the same wife so over-
living shall and may at her liberty, after the death of her said husband,
refuse to have and take the lands and tenements so to her given, ap-
pointed or assured during the coverture, for term of her life, or other-
wise in jointer, except the same assurance be to her made b^' act of
parliament, as is aforesaid, (2) and thereupon to have, ask, demand
and take her dower by writ of dower or otherwise, according to the
common law, of and in all such lands, tenements and hereditaments as
her liusband was and stood seised of an}' state of inheritance at any
time during the coverture, anything contained in this Act to the contrary
thereof notwithstanding.
X. Provided also, That tliis present Act, or anything herein con-
tained, extend nor be at any time hereafter interpreted, expounded or
talcen, to extinct, release, discharge or suspend any Statute, recogni-
zances or other bond, bj' the execution of anj' estate, of or in anj' lands,
tenements or hereditaments, bj' the authority of this Act, to any person
or persons, or bodies politic ; an}' thing contained in this Act to the
contrary thereof notwitlistanding.
XI. And forasmuch as great ambiguities and doubts may arise of the
validity and invalidity of wills heretofore made of any lands, tenements
and hereditaments, to the great trouble of the King's subjects ; (2) the
King's most royal Majesty minding the tranquillity and rest of his lov-
ing subjects, of his most excellent and accustomed goodness is pleased
and contented that it be enacted by the authority of this present Par-
liament, That all manner true and just wills and testaments heretofore
made by any person or persons deceased, or that shall decease before
the first day of May, that shall be in the year of our Lord God 1536, of
any lands, tenements or other hereditaments, shall be taken and ac-
cepted good and effectual in the law, after such fashion, manner and
STATUTE OF USES. 473
form as they were commonly taken and used at any time within forty
years next afore the making of this Act ; anj- thing contained in this
Act, or in the preamble thereof, or any opinion of the common law to
the contrary thereof notwithstanding.
XII. Provided always. That the King's Highness shall not have, de-
mand or take any advantage or profit, for, or by occasion of the exe-
cuting of anj- estate, only bj- authority of this Act, to any person or
persons, or bodies politic, which now have, or on this side the said first
day of May, which shall be in the year of our Lord God 1536, shall
have anj' use or uses, trusts or confidences in any manors, lands,
tenements or hereditaments liolden of the King's Highness, by reason of
primer seisin, livery, ouster le main, fine for alienation, reliefer harriot ;
(2) but that fines for alienations, reliefs and harriots, shall be paid to
the King's Highness, and also liveries and ouster le mains shall be
used for uses, trusts and confidences to be made and executed in pos-
session by authority of this Act, after and from the said first day of
Maj-, of lands and tenements, and other hereditaments holden of the
King, in such like manner and form, to all intents, constructions and
purposes, as hath heretofore been used or accustomed by the order of
the laws of this realm.
XIII. Provided also. That no other person or persons, or bodies
politick, of whom anj- lands, tenements or hereditaments be or hereafter
shall be holden mediate or immediate, shall in any wise demand or
take any fine, relief or harriot, for or by occasion of the executing of
any estate by the authority' of this Act, to anj- person or persons, or
bodies politic, before the said first day of Maj', which shall be in the
year of our Lord God 1536.
XIV. And be it enacted bj- authorit}- aforesaid. That all and singular
person and persons, and bodies politic, which at any time on this side
the said first day of May, which shall be in the year of our Lord God
1536, shall have anj- estate unto them executed of and in any lands,
tenements or hereditaments, by the authority of this Act, shall and may
have and take the same or like advantage, benefit, voucher, aid prayer,
remedy, commodity and profit by action, entry, condition or otherwise,
to all intents, constructions and purposes, as the person or persons
seised to their use of or in wny such lands, tenements or hereditaments
so executed, had, should, might or ought to have had at the time of the
execution of the estate tliereof, by the authoritj- of this Act, against any
other person or persons, or for any waste, disseisin, trespass, con-
dition broken, or any other offence, cause or thing concerning or
touching the said lands or tenements so executed by the authoritj^ of
this Act.
XV. Provided also, and be it enacted by the authority aforesaid. That
actions now depending against any person or persons seised of or in
any lands, tenements or hereditaments, to any use, trust or confidence,
shall not abate ne be discharged for or by reason of executing of any
estate thereof by authority of this Act, before the said first day of May,
474 USES.
which shall be in the j'ear of our Lord God 1536, any thing contained
in this Act to the contrary notwithstanding.
XVI. Provided also, That this Act, nor any thing therein contained,
shall not be prejudicial to the King's Highness for wardships of heirs
now being within age, nor for liveries, or for ouster le mains, to be sued
by any person or persons now being within age, or of full age, of any
lands or tenements unto the same heir or heirs now already descended ;
any thing in this Act contained to contrar\- notwithstanding.
XVII. Provided also, and be it enacted by the authoritj^ aforesaid.
That all and singular recognizances heretofore knowledged, taken or
made to the King's use, for or concerning any recoveries of anj- lands,
tenements or hereditaments heretofore sued or had, by writ or writs of
entrj- upon disseisin in le post, shall from henceforth be utterly void
and of none effect, to all intents, constructions and purposes.
XVIII. Provided also, That this Act, nor anj- thing therein con-
tained, be in an3' wise prejudicial or hurtful to anj- person or persons
born in Wales or the marches of the same, which shall have anj- estate
to them executed by authority of this Act, in any lands, tenements
or other hereditaments within this realm, whereof any otRer person
or persons now stand or be seised to the use of any such person or per-
sons born in Wales or the marches of the same ; but that the same
person or persons born in Wales, or the marches of the same, shall or
maj' lawfully have, retain and keep the same lands, tenements or other
hereditaments, whereof estate shall be so unto them executed bj- the
authority of this Act, according to the tenor of the same ; anj' thing in
this Act contained, or arvx other Act or provision heretofore had or made
to the contrarj- notwithstanding.
SECTION III.
USES RAISED ON TRANSMUTATION OF POSSESSION.
Co. Lit. 271 b. Note, uses are raised either by transmutation of
the estate, as by fine, feoffment, common recovery, &c. or out of the
state of the owner of tlie land, bj' bargain and sale by deed indented
and enrolled, or by covenant upon lawful consideration.
Dyer 111 b. in marg. Noy, of Lincoln's Inn, Mich. 19. Jac. at
Moot in the Hall put this difference, that if a man make a feoffment in
fee to the use of himself for life, the fee-simple remains in the feoffees,
for otherwise he will not have an estate for life according to his inten-
tion ; but if the use be limited to himself in tail, it is otherwise, for both
estates may be in him.
M. 84 & 35. Eliz. in the Court of Wards, in the argument of the
same's case. 475
Earl of Bedford's Case \_% And. 197 ; Moor. 718] it was holden by
PoPHAM and Anderson, that if A. make a feoffment to tlie use of him-
self for forty years, and does not limit any other estate, the fee is in
the feoffees.^
SAME'S CASE.
Exchequer. 1609.
[Beported 2 Soil. Ab. 791.]
If a. in consideration of £100 by B. makes a feoffment in fee to B.
to the use of B. and C. the son of B., that will raise a use to C. well
enough, though the whole consideration was given by B.
St. 29 Car. II. (1676), c. 3, § 7. And be it further enacted by the
authoritj' aforesaid, That from and after the said four and twentieth day
of June [1677] all declarations or creations of trusts or confidences of
anj' lands, tenements, or hereditaments, shall be manifested and proved
by some writing signed bj- the partj' who is by law enabled to declare
such trust, or by his last will in writing, or else they shall be utterly
void and of none effect.
§ 8. Provided always. That where anj' conveyance shall be made of
anj- lands or tenements by which a trust or confidence shall or may
arise or result by the implication or construction of law, or be trans-
ferred or extinguished by an act or operation of law, then and in every
such case such trust or confidence shall be of the like force and effect
as the same would have been if this statute had not been made ; any-
thing hereinbefore contained to the contrary notwithstanding.
1 "It was said, if a man at this day seised of the land on the part of the mother,
makes a feoffment in fee, without consideration, he shall be seised, as he was before,
on the part of the mother. And if there be two joint-tenants, one for life, and the
other in fee, and they levy a fine without declaration of any use, the use shall be
to them of the same estate as they had before in the land. So if A. tenant for life,
and B. in reversion or remainder, levy a fine generally, the use shall be to A. for lile,
the reversion or remainder to B. in fee ; for each grants that which he may lawfully
grant, and each shall have the use which the law vests in them, according to the
estate which they convey over. If A. is seised in fee of an acre of land, and he and B.
levy a fine of it to another, without consideration, the use implied shall be to A. only
and his heirs ; for an use which is but a trust and confidence, and a thing in equity
and conscience, shall be, by operation of law, to him who, in truth, was owner of the
land, without having regard to estoppels or conclusions, which are averse to truth and
equity. So it was adjudged in the principal case, when husband and wife levy a fine
without declaration of any use (which was sufficient in law), the law shall revest the
use in the wife only ; because the estate in the land ]]a3ses only from her, and the
husband joins with her but for conformity." Beckwith's Case, 2 Co. 56 b, 58 a
(1589).
476 SHOETRIDGE V. LAMPLUGH.
SHORTRIDGE v. LAMPLUGH.
King's Bench. 1702.
[Reported 2 Salk. 678.1]
H. BROUGHT covenant as assignee of a reversion, and showed, that
the lessor, in consideration of £5, bargained and sold to him for a j'ear,
and afterwards released to him and his heirs, virtute quarundam in-
dentur. bargainee venditionis <& relaxationis necnon vigore statuti de
usibus, &c. he was seised in fee. And it was objected, that the use
must be intended to be to the releasor and his heirs, because no con-
sideration of the release nor express use appeared by the pleading :
so that without considering the operation of the convej'ance, the ques-
tion was upon the pleading, "Whether the use shall be intended to the
releasor, unless it be averred to be to the releasee ? £Jt per Holt, C. J.
to which the rest agreed : —
This way of pleading was certainly good before the Statute 27 H. 8,
so is Plowd. 478, and manj" precedents in Co. Ent. of feoffments averred
in the same manner ; for the use was a matter that was extrinsical to
the deed, and depended upon collateral agreements at common law,
and then the use might, as since the Statute of ^Frauds by writing, be
averred by parol, and therefore in pleading the conveyance was taken
to the use of him to whom the convej-ance was made, till the contrary
appeared ; if it were otherwise, it ought to come on the other side ; and
27 H. 8, has not altered the course of pleading, which is rather con-
firmed by the Statute ; because, if now the use be construed to be to
the releasor or feoffor, the convej-ance will be to no manner of purpose,
it being stiU the old estate to which the old warranty and other qualities
remain annexed ; whereas before the Statute there might be some end in
making the feoffment, viz. to put the freeliold out of him and prevent
wardship ; and Co. Lit. goes no farther, than where is a feoffment to
particular uses and estates, the residue of the use shall be to the feoffor,
which is reasonable ; for the raising those particular estates appears a
sufflcient reason for the convej-ance. And Povtel, J. doubted, whether
there could be a resulting use on a lease and release, unless where
particular uses are limited ; for this way of conveyance is grounded on
the ancient way of releasing at common law, wherein there was a mer-
ger of estate, which is a good consideration, as where the lessor con-
firms to the lessee and his heirs. In error of a judgment of C. B.
which was affirmed.
1 s. 0. 2 Ld. Kaym. 798 ; 7 Mod. 71.
BROUGHTON V. LANGLEY. 477
BROUGHTON v. LANGLEY.
King's Bench. 1703.
[Eeported 2 Salk. 679.1]
One seised of lands in fee, devised them to trustees and their heirs,
to the uses, intents, and purposes hereinafter mentioned, viz. to the
intent and purpose to permit A to receive the rents and profits for his
life, and after that the trustees should stand seised of the premises to
the use of the heirs of the body of A. with a proviso, that A. with the
consent of his trustees, might make a jointure for his wife ; and the
question was, Whether A. had an estate-tail executed, or not? And
it was adjudged he had. Holt, C. J. pronounced the judgment of the
court, and gave these reasons : 1st, That this would have been a plain
trust at common law, and what at common law was a trust of a free-
hold or inheritance is executed by the Statute, which mentions the word
trust as well as use ; and the case in 2 Vent. 312, JBurchet and Dur-
dant, is not law ; and that the change of expression in the principal
case by using the word permit in the first clause, which are words of
trust, and afterwards making mention of a use, is immaterial, in
regard trusts at common law and uses are equally executed by the
statute.
2dly, It was held. That a power to make a Jointure, does not neces-
sarily exclude an estate in tail, or an intent to give it ; because tenant
in tail, without discontinuing or barring the tail, cannot make a jointure ;
and so this power has its use.
LORD ALTHAM v. EARL OF ANGLESEY.
King's Bench. 1709.
[Beporled Gill. 16.]
Tenant in tail, remainder in tail, with remainders over. Tenant in
tail, having a mind to dock the intail, and but the remainders, levies
a fine with proclamation sur conusance de droit come ceo, &c. to J. S,
and his heirs, in order to make him tenant to the precipe; but no
use of this fine was declared Seven years afterwards, a precipe was
brought against J. S. who came in and vouched the conusor of the fine,
who vouched over the common vouchee, and the question here was, if
J. S. were a good tenant to tla.Q precipe, and the common recovery well
suffered.
' See s. c. reported at greater length, 2 Ld. Raym. 873.
478 ALTHAM V. ANGLESEY.
As to the first' question, it was resolved bj- Holt, Powel, Powis,
and Gold, that the said J. S. was a good tenant to the precipe, and
that the recover}' was well suffered, and all the remainders barred.
This question doth arise principally upon the Statute of Frauds and
Perjuries, 29 Car. 2, c. 3. Wherebj' 't is enacted, that all declarations
or creations of trusts, or confidences of anj- lands, tenements, or
hereditaments, shall be manifested, and proved bj^some writing signed
by the party, who is by law enabled to declare such trust, or else by
his last will in writing, or else they shall be utterlj^ void, provided al-
waj-s, that where any conveyance shall be made of anj- lands, or tene-
ments, by which a trust or confidence shall or may arise, or result by
implication or construction of law, or be transferred or extinguished,
by an act or operation of law, then, and in ever}' such case, such
trust or confidence shall be of the like force and effect, as the same
would have been, if this Statute had not been made.
It was unanimously agreed, that this Statute did not extend to this
case, viz. where there is only cognizor and cognizee, and that it ex-
tended only to third persons ; though it was objected, that in this case,
when, by the fine, the legal estate was conveyed to J. S. and his
heirs, and no use declared of it, that the use did result to conusor
and his heirs, and then before the precipe was brought, the legal es-
tate was out of the conusee, by virtue of the Statute, for transferring
uses into possession. But Holt, C. J. and Powel held in this ease,
that when a fine is levied, or a feoffment made to a man and his heirs,
the estate is in the conusee and feoffee, not as an use, but by the
common law, and ma}- be averred to be so ; and for the form of plead-
ing the averment, you may see Co. Ent. 219, 220. Where a fine was
levied, and the conusee in pleading averred, Cvjus quidetn finis pre-
textu predict' , J. S.fuit seisitus de, d;c. cum pertinent' in dominico suo
ut defeodo, and in Plowd. 477, 478. A feoffment was pleaded haben-
dum to A. and his heirs for ever, Virtute cvjus feoffment idem A.
fuit seisitus de, tfcc. cum pertinent' in dominico suo ut defeodo ; and
in this case it plainly appears, that the intent of the fine, was to make
the said J. S. a tenant to the precipe, for the common recovery, and
when the common recovery is effected, a use shall arise by operation
of law from the conusor and his heirs,^ from whom the estate first
moved.
Holt, C. J. held, that uses were not within this Statute, but that the
Statute did restrain only the operation of trusts and confidences in
' [A second point was on the admissibility of certain depositions. The part of the
case relating to this is omitted. — Ed.]
2 See the case of Long and Buckridge, Trin. 4 Georgii, adjudged, that the averment
of Cujus quidem finis pretextu, &a. is only expressio eorum quae, tadte in sunt, & nihil
operatur, and that prima fade, the fine shall pass the estate to the conusee; and to
bring the use back to the conusor, the conusor must show, that the intent was not to
give it to the conusee ; for else the conusee shall be deemed to take the estate by the
common law. And this case of Lord Anglesey and AUham was there held to be
good law.
ALTHAM V, ANGLESEY. 479
chancery ; but all the other justices held the contrary, and that uses
were within it; for the common law makes no distinction between
trusts and confidences, and uses ; and there was no foundation to
make a difference between trusts and uses, since the Statute 27 H. 8,
though they have done it in chancery. And now, since the Statute of
Frauds, 29 Car. 2, c. 3, no stranger can take a use by any parol
averment.
If a fine be levied to a man and his heirs, to the use of him and
his heirs, in this case, he shall take by the common law, and not by
way of use ; and in this case, there may be a parol averment, to pre-
vent a resulting use to the conusor in fee ; for when the flue is levied,
an use doth immediately arise, either to the conusor and his heirs, or
to the conusee and his heirs ; and when there is a subsequent deed, it
only shows what the intent of the parties was, at the time of the fine
levied, 9 Co. Dowman's Case ; so that when a fine is levied, an use
doth arise by implication of law, to the conusee and his heirs, and
consequently this case is excepted out of the Statute. The fine and
recovei'y here make but one conve3-ance ; and if the use should result
to the conusor and his heirs, it would destroy the middle part of the
conveyance, and defeat the plain intention of the parties, which was
to put the use in the conusee ; and this is evident, because the conusor,
by suffering himself to be vouched, has owned it. And how could tenant
in tail make himself tenant in fee, if so be this must be construed a
resulting use ?
As to an objection that was made, that there might be a long time
between the fine and recovery ; admitting that there had been a long
time between the fine and recoverj^ yet there it may be made good
by a parol averment, before the Statute of Frauds, and by writing
since, upon the reason of Dowman's Case, if nothing were done in-
termediate to the contrary. Dyer, 136.
Gold said, that if a fine sur' conusans de droit come ceo, &c.
were levied, a use did result to the conusor ; but if the conusee did
grant and render the lands to the conusor in tail, the conusee was
seised of the reversion to his own use. Moor. 156, Dyer, 311. So if
a feoffment be made to A. and his heirs, upon condition to enfeoff B.
and his heirs, without limiting or declaring any use. In this case,
when A. has enfeoffed B. and his heirs, an use shall arise to B. and hie
heirs ; and in all cases of common recoveries, a tenant to the pre-
cipe shall be presumed, and that as well in a new recovery as in an
old one.
480 AEMSTEONG V. "WOLSET.
ARMSTRONG v. WOLSEY.
Common Bench. 1756.
[Reported 2 JVils. 19.]
Ejectment, tried at Norwich before Parker, Ch. Baron, who reserved
this short case for the opinion of the court. A. B. being in possession
of the lands in question levied a fine sur conusans de droit come ceo,
<tc. with proclamations to the conusee and his heirs, in the 6th j'ear of
the present king, without anj' consideration expressed, and without de-
claring anj- use thereof; nor was it proved that the conusee was ever in
possession.
So that the single question is, whether the fine shall enure to the use
of the conusor or the conusee ; and after two arguments the court was
unanimous, and gave judgment for the plaintiff, who claimed as heir of
the conusor.
Curia : In the case of a fine come ceo, tkc. where no uses are de-
clared, whether the conusor be in possession, or the fine he of a rever-
sion, it shall enure to the old uses, and the conusor shall be in of the
old use, and although it passes nothing, j-et after five years and non-
claim it will operate as a bar.
And in the case of a recover}- suffered, the same shall enure to the
use of him who suffers it (who is commoulj- the vouchee) if no uses be
declared ; but he gains a new estate to him and his heirs genei-al ; and
although before the recover}' he was seised ex parte materna, j'et after-
wards the estate will descend to his heirs ex parte paterna, as was
determined in Martin v. Strachan, 1 Wils. 2, 66. Sed vide that case
2 Stra. 1179.
In the case at bar, the ancient use was in the conusor at the time of
levying the fine ; and it seems to have been long settled before this
case, that a fine without any consideration, or uses thereof declared,
shall enure to the ancient use in whomsoever it was at the time of lev}--
ing the fine ; and as it was here in the conusor at that time, the judg-
ment must be for the plaintiff.-'
1 Sand. Uses (5th ed.) 96-98. As the Statute did not expressly abol-
ish all future limitations of, and estates created b}', uses, there was
actually no avoiding the execution of uses, limited or occasioned by
conve3ances made subsequently' to the Act. When a feoffment was
made without consideration and declaration of the use, what construc-
tion was to be adopted ? We have seen, that, before the Act, the Chan-
cery, which judged according to the intention of the parties, would have
construed the possession to be in the feoffee, and the use in the feoffor.
Does the Statute destroy this construction ? On the contrar}', the case
appears to come directlj' within the meaning of it ; the words being,
> See Moe v. Popham, 1 Doug. 23.
TJSES. 481
that where any person, &c. stands seised to the use of another, by rea-
son of any feoffment, &c. or by any manner of means whatsoever,
then, &c. In this case, the feoffee stands seised to the use of another,
viz. the feoffor, by an admitted construction before the Act. The Act
certainly did not intend to alter the manner of raising uses ; nor did it
mean to make any thing pass by a convej-ance, which did not pass
before ; that is to say, it did not mean, that the land and use should
now pass in a case, in which the land onl^' passed before the Statute.
Vide 2 Raym. 800 ; Co. Lit. 22 b ; Jenk. Cent. 253. It may there-
fore be considered as a general rule, that if a feoffment be made, a fine
levied, or recovery suffered without consideration and declaration of the
use, the use will result to the feoffor, &c. and be executed in him by the
Statute. Armstrong v. Wblsey, 2 Wils. 19 ; Doug. 26 ; JBeckwith's
Case, 2 Co. 56, 58 b ; Dyer, 146 b ; 1 Roll. Ab. 781 ; Bead v. Erring-
ton, Cro. Eliz. 321 ; 22 Vin. 214, pi. 1, and notes.
Indeed it is said, Shortridge v. Lamplugh, 2 Salk. 678 ; 7 Mod. 71 ;
1 Stra. 107, that if a feoffment be pleaded, the use need not be averred
to the feoffee ; because if nothing appear to the contrary, the use must
be intended to be in him ; and that such was the form of pleading before
the Statute. If this be the course of pleading, it may be asked. What
utility can arise from the doctrine of resulting uses? To which it may
be answered, that although the rules of pleading do not require an aver-
ment of the use in favor of the feoffee, j-et it may be averred to be in
the feoffor ; and that the want of a consideration and declaration of the
use is a suflScient circumstance to prove, that it was intended for him.'
I must here observe, that uses generally result according to the estate
and interest of the persofi or persons making the conveyance ; Roe v.
Popham, Doug. 24, and 22 Vin. 215, pi. 2, and notes, and pi. 6, 7;
and he or the}', in that case, claim under the old use. However, when
a tenant in tail suffers a recovery without consideration or declaration of
the use, the use (notwithstanding the aspect of some of the cases ; see
Argol V. Cheney, Latch. 82 ; WaJcer v. Snow, Palm. 359) will result to
the recoveree in fee: '9 Co. 8 b; Gilb. Uses, 61 ; Nightingale v. Fer-
rers, 3 P. W. 206 ; for as the recoveror or demandant acquires a seisin
in fee, the use, if it result at aU, must result according to the extent of
that seisin ; the words of the Act being, that the estate, title, right, and
1 AngUsea v. AUham, Holt Rep. 737 ; 1 Stra. 107. In the margin of Salkeld's
Reports, which belonged to the late Serjeant Hill, opposite to the case of Shortridge v.
Lamplugh, is the following MS. note, which, although not in the handwriting of, is
evidently dictated by, the learned Serjeant.
" Contra, Vin. Uses (Y. a.) pi. 1, and the notes, pi. 24 ; but most of the cases there
cited before the Statute ; and, therefore, Q. if since the Statute it is not necessary, in
pleading a feoffment or release, for the feoffor or releasor to make an averment, that it
was to his use ? and it seems, that the want of a consideration would be evidence of
the truth of such averment, if traversed ; but if the deed purports a valuable considera-
tion, the feoffor or releasor cannot be admitted to take such averment. Dyer, 169, pi.
21, S. P. 9 ; Co. 11 b, accordingly as to a recovery, and Salk. 676, pi. 2, as to a flne
and feoffment."
SI
482 USES.
possession of the person seised to the use shall be transferred to the
cestui que use ; and in the very distinguished argument of the Chief
Justice Lee, in delivering the opinion of the court in the ease of Martin
V. Strahan^ 5 Term Eep. 107, 110, in note, is the following passage:
" It is the use of the fee-simple that passes to the recoveror from tenant
in tail, and which results to him (i. e. tenant in tail) and his heirs, if
no use is declared."
2 Hates Conv. (5th ed.) 464, 465. The limitations in a deed oper-
ating under the Statute of Uses must, in their creation, be either —
1. Vested, — conferring, therefore, legal estates (aSj, where the land-
is limited to A. for life, remainder to B. for life or in tail, remainder to
C. in fee, or to A. for life, remainder to B. for life or in tail), in which
ease the whole use of the fee-simple (in the first example), or such por-
tion of the use as the limitations embrace (in the second example), is
immediatelj- drawn out of the grantor, covenantor, &c., and executed
in the cestui que use by the statute, and the undisposed of residue of
the use (in the second example), results to, or remains in, the grantor,
&c., as a reversion expectant on the particular estates created 'by the
limitations ; — or,
2. Not vested, and not, therefore, conferring legal estates (as to the
heirs of the body of B., a person now living, or to A. for life, if he shall
return from Rome, remainder to the heirs of the body of B., a person
now living, or from and after Christmas-day next to A. in fee), in which
case the whole use of the fee-simple results to, or remains in, the grantor,
&c., subject to be drawn out of him, to the extent of the estates to be
conferred by the limitations, on their becoming vested, either as re-
mainders, if eventually capable of effect as such (for, in the second ex-
ample, the limitation to the heirs of the body of B. would, if A. should
return from Rome in B.'s lifetime, be good as a contingent remainder),
or if not so capable, and if confined within the bounds prescribed by the
rule against perpetuities, then as springing or future uses ; — or,
3. Partlj- vested, and partly not vested (as, to <A. for life, remainder
to the heirs of the body of B., a person now living, remainder to C. in
fee ; or to A. for life, and, at the end of one 3'ear or one day after his
death, to the heirs of the body of B., a person now living), in which
case such portion of the use as the vested limitations embrace, is im-
mediatelj' drawn out of the grantor, &c., and executed in the cestuis
que use by the statute ; and the undisposed of residue of the use results
to, or remains in, the grantor, &c., as a reversion expectant on the par-
ticular estates created by such vested limitations, subject to be drawn
out of him, to the extent of the estates to be conferred by the remaining
limitations, on their becoming vested, either as remainders, or as spring-
ing or future uses.
The foregoing propositions, of course, assume that, in deeds taking
effect hj transmutation of possession, there is nothing to rebut the sup-
posed resulting use, and fix it in the feoffees, releasees, &c. ; and it
USES. 483
should be observed that the legal use will not result to the grantor, re-
leasor, &e., where it would defeat the intent of the convej-ance by merg-
ing a particular estate expressly' limited to the grantor, releasor, &c.^
Assuming these positions to be accurate, it would seem to flow from
them, as a necessary consequence, that by no possibilitj- can a particu-
lar estate of freehold, in a.ay case, result to, or remain in, the grantor,
covenantor, &c. ; — for,
1. Where no limitation is vested, less than the whole use of the fee-
simple cannot result or remain ; — and,
2. Where all or some of the hmitations are vested, and absorb the
whole use of the fee-simple, nothing can result or remain ; — and,
3. Where all or some of the limitations are vested, but do not absorb
the whole use of the fee simple, the residue of the use (being the ulti-
mate remnant of the ancient use) will result or remain, as a reversion
expectant on such portion of the use as passes in the particular vested
estates.
On principle,'^ it is conceived that the grantor, &c., cannot be in of a
particular estate of freehold, as part of his old use, whereof he hath not
disposed, because if he make a. partial disposition of the use, it must be
in some particular vested estate or estates ; and, such particular estate
or estates being deducted, the residue will be the use of the ulterior fee-
simple.
Leake, Digest Land Law, 107, 108. Upon the same principle, if
upon a feoffment or conveyance in fee the use be declared for a particular
estate only, and no consideration appear to carry the residue, so much of
the use as is undisposed of bj' the declaration remains in the grantor as
a resulting use.' Thus, if the use be declared to the grantee or another
for life, or in tail, or for j'ears only, the reversion of the use being un-
disposed of results to the grantor. And a consideration paid in such
case will be presumptively attributed to the estate limited, and will
afford no inference as to the use undisposed of
But if the use be declared to the grantor for an estate for life or years,
the reversion, though not expressly' disposed of, does not result to him
but vests in the grantee ; for by the opposite construction the particular
estate would merge in the reversion and the grantor would resume the
entire fee, against the express terms of the declaration of uses, which
restricts his interest to the particular estate. If, however, the use be
declared to the grantor for an estate tail, he may also take the reversion
1 " But it is said, that if a man be seised of land in fee, and graut a rent issuing out
of the land to a stranger, without any consideration, &c., the grantee shall be seised
of this rent to his own use ; for the law cannot intend such a grant to be made to the
use of the grantor." Perk. § 531.
2 But see Pibus v. Mit/ord, 1 Vent. 372 ; Fearne, C. R. 42.
3 Co. Lit. 23 a, 271 b; 1 Sanders Uses, 61, 103.
* 1 Sand. Uses, 104 ; Co. Lit. 22 b, 271 b.
484 STATUTE OF ENROLMENTS.
by resulting use ; for an estate tail and the reversion in fee may subsist
together in the same person. -"^
If the feoffment or conveyance of the legal possession be made for a
particular estate onlj-,,as a gift in tail, or a lease for life or for j'ears,
the tenure alone thereby created, with its attendant services and obli-
gations, supplied a consideration sufficient to prevent the use from re-
sulting, and to carrj- it to the donee or lessee ; and this doctrine applies
at the present day. But an express use declared in favor of another
would rebut the use implied from the tenure in such cases. ^ The Stat-
ute Quia emptores prevented the creation of anj' tenure which might
carry the use upon a conveyance of the fee simple.^
SECTION IV.
USES RAISED VriTHOUT TEANSMCTATION OF POSSESSION.
St. 27 Hen. VIIL, c. 16. St. of Enrolments (1535). Be it enacted
by the authoritj- of this present Parliament, That from the last day of
Jul}-, which shall be in the 3-ear of our Lord God 1536, no manors,
lands, tenements or other hereditaments, shall pass, alter or change
from one to another, wherebj' anj- estate of inlieritance or freehold shall
be made or take effect in anj' person or persons, or anj' use thereof to
be made, by reason onh^ of any bargain and sale thereof, except the
same bargain and sale be made by writing indented sealed, and inrolled
in one of the King's courts of record at Westminster, (2) or else within
the same county or counties where the same manors, lands or tene-
ments, so bargained and sold, lie or be, before the Custos Rotulorum
and two justices of the peace, and the clerk of the peace of the same
county or counties, or two of them at the least, whereof the clerk of
the peace to be one ; (3) and the same enrolment to be had and made
within six months next after the date of the same writings indented ;
(4) the same Custos Rotulorum, or justices of the peace and clerk,
taking for the enrolment of every such writing indented before them,
where the land comprised in the same writing exceeds not the j-earh'
value of forty shillings, ii. s. that is to sa}-, xij. d. to the justices, and
1 Bacon on Uses, Rowe's ed. notes, p. 223; 1 Sanders on Uses, 103; see Adams v.
Savage, 2 Salk. 679 ; L. Eaym. 854. " Generally speaking, when two estates nnite in
the same person in the same right, the smaller one is merged in the other, except in
the case of an estate tail and a reversion in fee, which may exist together ; in such case
by the operation of the Statute Be donis, the estate tail is kept alive, not merged by the
reversion in fee." Per Kenyon, C. J., 5 T. R. 110, in Roe v. Baldwere.
2 Perkins, §§ 534-537 ; 2 Leon. 16, Brent's Case; Dyer, 312a. The relation of
landlord and tenant is a consideration in law, hence in a contract for a lease no other
consideration is necessary. King's Leaseholds, L. E. 16 Eq. 621. [See particularly 1
Sand. Uses (5th ed.) 86-88. — Ed.]
3 Perkins, §§ 528, 529.
SHAKINGTON V. STEOTTON. 485
xij. d. to the clerk; (5) and for the enrolment of every such writing
indented before them, wherein the land comprised exceeds the sum
of xl. s. in the yearlj- value, v. s. that is to saj', ii. s. vi. d. to the
said justices, and ii. s. vi. d. to the said clerk for the enrolling of the
same : (6) and that the clerk of the peace for the time being, witliin everj'
such county, shall sufficiently enroll and ingross in parchment the same
deeds or writings indented as is aforesaid ; (7) and the rolls thereof at the
end of every year shall deliver unto the said Custos Rotulorum of the
same county for the time being, there to remain in the custody' of
the said Custos Rotulorum for the time being, amongst other records
of every of the same counties where an}- such enrolment shall be so
made, to the intent that every party that hath to do therewith, ma^-
resort and see the effect and tenor of every such writing so enrolled.
II. Provided always. That this Act, nor any thing therein contained,
extend to any manner lands, tenements, or hereditaments, lying or
being within any city, borough or town corporate within this realm,
wherein the mayors, recorders, chamberlains, bailiffs or other officer or
officers have authoritj', or have lawfully used to enroll any evidences,
deeds, or other writings within their precinct or limits ; any thing in
this act contained to the contrary' notwithstanding.
SHARINGTON v. STROTTON.
Qceen's Bench. 1565.
[Reported Plowd. 298.]
Trespass quare clausum,^ on March 20, 1564. The defendants
pleaded that the locus was, and from time immemorial had been, parcel
of the Manor of Bremble ; whereof Andrew Ba3-nton being seised in
fee, by an indenture made in 1560 between said Andrew, of the one
part, and Edward Baynton, his brother, of the other part, it was cove-
nanted, granted, and agreed between the parties in manner and form
following ; that is to say, whereas Andrew, at the date of the inden-
ture, had no issue male of his body, said Andrew, then being fully de-
termined and resolved how, in what manner, quality, and degree said
manor should continue, remain, and be, as well in his lifetime as after his
death, and then being desirous that the said manor might come, remain,
and descend to the heirs male of his bod}', in manner and form after-
wards expressed, and to the intent that it might continue and remain
to such of the blood and name of Baynton as in the same indenture
should be named, mentioned, and contained, did, as well for the said
causes as for the good-will, fraternal love, and favor which he bore, as
well to Edward Baynton his brother, as to such others of his brothers
as should be in the indenture named, covenant and grant, for himself
1 This short statement of the case is suhstituted for that in the report.
486 SHARINGTON V. STROTTON.
and his heirs, that he, his heirs and assigns, and all and every other per-
son or persons and their heirs, who then were seised or should after-
wards stand or be seised of said manor, should from thence stand and
be thereof seised, to the use of Andrew for life, and after his death to
the use of Edward Baynton and Agnes his wife, and their assigns for
their lives, and after their death to the use of the heirs male of Andrew
lawfully begotten or to be begotten on the body of Frances Lee, and
for default thereof to the use of the heirs male of the body of Edward
Baynton, and for default thereof to the use of Henry Baj'nton, another
brother, and the heirs male of his body, and for default thereof to the
use of another Henry Baynton, a half-brother, and the heirs male of his
body, by force of which covenant, grant, and agreement, and of the
Statute made the foui'th dsiy of February in the twenty -seventh 3-ear of
the reign of King Henry VIII., concerning the transferring of Uses
into Possession, said Andrew was seised of said manor, the remainder
over to Edward and Agnes for their lives, remainder to the heirs male
of Andrew lawfulh' begotten on the bodj' of Frances Lee, with remain-
ders over; that Andrew died February 6, 1564, without heirs male of
his body ; that thereafter, but before the trespass, Edward and Agnes
Baynton entered into the manor and were seised ; that the plaintiffs
then entered ; and that the defendants, as servants of Edward and
Agnes Baj-nton, and bj- their command, re-entered and did the trespass,
&c. The plaintiffs demurred.
The case was argued at Michaelmas Term, 1565.
And after these arguments the court took time to deliberate until
Hilary Term, and from thence until Easter Term, and from thence
until this present Trinity' Term, in the eighth j'ear of the reign of the
present Queen, and the defendants now praj'ed judgment. And Cor-
bet, Justice, said, that he and all his companions had resolved that
judgment should be given against tlie plaintiffs. For it seemed to them
that the considerations of the continuance of the land in the name and
blood, and of brotherly love, were sufficient to raise the uses limited.
But, he said, as mj- Lord Chief Justice is not now present, you must
move it again when he is present, and you shall have judgment. And
afterwards, at another daj', Catline, Chief Justice, being present, the
apprentice praj-ed judgment. And Catline and the court were agreed
that judgment should be entered against the plaintiffs, and he ordered
Haywood, the Prothonotary, to enter it. And the apprentice said, Maj'
it please your lordship to show us, for our learning, the causes of your
judgment. And Catline said^ It seems to us that the affection of the
said Andrew for the provision of the heirs males which he should beget,
and his desire that the land should continue in the blood and name of
Baj-nton, and the brotherly love which he bore to his bi'others, are suffi-
cient considerations to raise the uses in the land. And where you said
in 50ur argument NaturoB vis maxima, I say Natura his m,axim,a, and
it is the greatest consideration that can be to raise a use. But as to
the other consideration moved in the argument, viz. of the maiTiage
TAYLOE V. VALE. 487
had between Edward Baynton and Agnes, the record does not prove
this, nor is it so averred, and it shall not be so intended, and therefore
I don't regard it, but the other causes and considerations are effectual,
and those which moved us to our judgment. Wherefore judgment was
given as follows.^
TAYLOR V. VALE.
Queen's Bench. 1589.
[Reported Cro. El. 166.]
Replevin. The case was upon demurrer. Vale having a rent
charge in fee by indenture, which was enrolled within six months, giv-
eth and granteth it to Hall in fee, and there was no attornment.
NoTA. In truth the case was, that he for a certain sum of money
giveth, granteth, and selleth the rent, &c. But it was pleaded only,
that he by indenture dedit et concessit.
And it was ruled without any argument, that the rent without attorn-
ment passeth not, being only by way of grant, and not of bargain or
sale ; although the deed was enrolled. But Wray [C. J.] said, that if
bv indenture, in consideration of a certain sum of monej^, dedit et con-
cessit and the deed is enrolled, this shall pass the rent without attorn-
ment, though there be no words of bargain and sale. And the plaintiff
had judgment.
CALLARD V. CALLARD.
Queen's Bench and Exchequer Chambee. 1593.
[Beported Moore, 687.]
In ejectione firmoB, on a demise by Eustace Callard. And on not
guilty pleaded it was found by special verdict that Thomas Callard was
seised in fee, and in consideration of the marriage of Eustace, his son
and heir apparent, being on the land, spoke these words to the said
Eustace, viz. " Eustace, stand forth. I do here, reserving an estate for
mine own and m}' wife's life, give unto thee and to thine heirs for ever
those my lands and \_sic'] Barton of Southcot." And afterwards Thomas
enfeoffed Richard, who was the defendant, being his younger son in fee,
with warranty and died. Eustace entered and demised it to the plain-
tiff, who entered, and the defendant ejected him. On which special ver-
dict, on long debate in the Queen's Bench, judgment was given for the
plaintiff, on which the defendant brought a writ of error in the Exchequer
Chamber, and here the judgment was reversed at Hilary Term, 39 Eliz.
' [Then follows the record of the entry of the judgment sustaining the demurrer.]
488 ■WAKDE V. TUDDINGHAM.
[1597]. Note that in the Queen's Bench Popham [C. J.] held strongly
that the consideration of blood raised a use to Eustace without writing,
and so he had the possession by St. 27 Hen. VIII. But Gawdy,
Fbnner, and Clench [JJ.], contra to this opinion; yet on the final
judgment they agreed, because they took the words to amount to a
feoffment with livery, being on the land, and the use to be to the feoffor
and his wife for life, and then to Eustace and his heirs. But note that
in the Exchequer Chamber Ewkns [B.] took the law in the same man-
ner as the puisne judges in the Queen's Bench, and that the judgment
ought to be affirmed for this cause ; but he held, contra to Popham
[C. J.J, that the use could not arise without writing. Beaumont [J.]
took it as a feoffment to Eustace in fee, and the reservation to the father
and his wife void for repugnancy ; and therefore he wished to have the
iudgment affirmed ; and he also was against Popham [C. J.]. But all
the other justices, viz. Anderson [C. J.], Peryam and Clarke [BB.],
and Walmsley and Owen [JJ.], all agreed, that there was no feoff-
ment executed, because the intent was repugnant to the law, to wit to
pass an estate to Eustace, reserving a particular estate to himself and
his wife. And a use it could not be, because the purpose was not to
raise a use without an estate executed, but bj' an estate executed, which
did not take effect, and they all agreed that if it was a use, yet it could
not arise on natural affection without deed. Note that the witnesses
who proved the words to the jurj- were attainted of perjury in the Star
Chamber at Easter Term 40 Eliz. [1598].
WARDE V. TUDDINGHAM.
King's Bench. 1605.
[Reported 2 Roll. Ab. 783, pi. 5.]
Consideration of ancient acquaintance, or of being chamber-fellows
or entire friends, will not raise any use. Agreed by the court.
Bacon, Uses, 13, 14. I would have one case showed by men learned
in the law, where there is a deed, and yet there needs a consideration ;
as for parol, the law adjudgeth it too light to give action without con-
sideration ; but a deed ever in law imports a consideration, because of
the deliberation and ceremony in' the confection of it ; and therefore in
8 Reginse it is solemnly argued, that a deed should raise an use without
an^- other consideration. In the Queen's case a false consideration, if
it be of record, will hurt the patent, but want of consideration doth
never hurt it ; and yet they say that an use is but a nimble and light
thing ; and now, contrariwise, it seemeth to be weightier than any
thing else : for j'ou cannot weigh it up to raise it, neither by deed, nor
deed enrolled, without the weight of a consideration ; but you shall
EDWARD fox's CASE. 489
never find a reason of this to the world's end, in the law : But it is a
reason of chancer3-, and it is this :
That no court of conscience will enforce donum gratuitum though
the intent appear never so clearly, where it is not executed, or suffi-
ciently passed by law ; but if money had been paid, and so a person
damnified, or that it was for the establishment of his house, then it is a
good matter in the chancer}'.
EDWARD FOX'S CASE.
Common Pleas. 1610.
[Reported 8 Co. 93*.]
In a writ of second deliverance by Eliz. Smalman widow, and Thomas
Powys defendant which began in Communi Banco, 7 Jac. Rot. 1546,
the defendant demurred on the bar to the avowry ; and on the record
the case was such : Edward Fox seised of four acres of meadow, fifty
acres of pasture, and ten acres of underwood, in Snitton in the county
of Salop, anno 31 Eliz. demised them to Gilb. Smalman, and to the said
Elizabeth his then wife, and to Thomas Smalman, habendum to Gilbert
and Elizabeth for their lives, the remainder to the said Thomas for his
life, yielding during their lives the yearly rent of four marks, at the
feasts of the Annunciation of our Lady, and St. Michael the Archangel,
by equal portions ; and afterwards the said Gilbert Smalman died ; after
whose death, scilicet 20 Sept. anno 3 Hegis Jacobi, the said Edward
Fox by indenture, for the consideration of £50 prced' by the said
Thomas Powj's to the said Edward Fox paid, demised, granted, set,
and to farm let to the said Thomas Powys the said tenements aforesaid ;
to have and to hold to the said Thomas Powys from the day of the date
of the said indenture, for the term of ninety-nine j-ears, yielding and
paying therefore during the said term, to the said Edward Fox and his
heirs, the yearly rent of 40s. at the feasts of the Annunciation of our
Lady, and St. Michael the Archangel, or within twentj'-eight days after
every of the said feasts, and that the said Eliz. did never attorn. And
the onl}' point in this case was, whether the said demise and grant to
T. Powys should amount to a bargain and sale, so that the reversion
with the rent should pas» to T. Powys by the Statute of Uses without
any attornment. And it was adjudged that this demise and grant upon
consideration of ,£50 amounts to a bargain and sale for the said years ;
for in case when a freehold or inheritance shall pass by deed indented
and enrolled, it need not have the precise words of bargain and sale, but
words equipollent, or which do tantamount, are sufficient ; as if a man
covenants in consideration of money to stand seised to the use of his son
in fee ; if the deed be enrolled, it is a good bargain and sale, and yet
there are not any words of bargain and sale, but thej' amount to so
490 EDWARD fox's CASE.
much, as it is held in BedeVs Case, in the Seventh Part of my Reports,
40 b. So if a man for money aliens and grants land to one and his
heirs, or in tail, or for life, by deed indented and enrolled, it amounts
to a bargain and sale, and the land shall pass without any livery and
seisin. And at the common law before the Statute of 27 H. 8 of Uses,
if a man for monej' had aliened and granted lands to one and his heirs,
&c. by that the use of the land should pass, for it is a full bargain,
and all this was unanimously agreed ; but forasmuch as the intention of
the parties is the creation of uses, if by any clause in the deed it appears
that the intent of the parties was to pass it in possession by the common
law, there no use shall be raised ; and therefore if anj' letter of attornej*
be in the deed or covenant to make liverj' of the lands, according to the
form and effect of the deed, or other such like, there it shall not pass by
way of use ; quia, verba mtenlioni nan e contra debent inservire ; et
verba debent intelligi, ut aliquid operentur} But in the case at bar,
the intent of the grantor maj' be well collected, that he did intend
that the grant should take effect presentlj', and should not depend upon
any subsequent attornment ; for the rent reserved thereupon was payable
presently ; and therefore it will be reasonable, that Tho. Powj's the lessee
should have the rent reserved on the first lease for lives presentlj- ; and
that he cannot have before attornment (which peradventure will never
be made) and eo potties because the said Thomas Powj'S has no means
to compel the first lessees to attorn ; but if it shall pass as a bargain and
sale, it shall be presently executed by the Statute of 27 H. 8, for there
needs no enrolment in this case, because but a term for j'ears passes, and
no estate of freehold, and there needs no attornment, because it is exe-
cuted by the Statute. And bj' this construction every one will have
remedj' for that which he ought to have. Vide Sir Howland JSey-
ward's Vase in the Second Part of my Reports, fol. 35 b.
1 " In Anon. 3 Leon. 16, it was determined to the contrary. In that case, A. by deed
indented, conveyed in the following words : ' I the said A. have given, granted, and
confirmed, for a certain piece of money, &c.,' the habendum was to the feoffee with
warranty against A. and his heirs ; and there was a letter of attorney to make livery and
seisin. The deed was enrolled within one month after the making of it; and the attor-
ney after four months from the delivery made livery of seisin. It was the opinion of
the whole court, that the conveyance should operate as a bargain and sale. Vid. 4
Cruise Dig. 107 (3d ed.); Sanders on Uses, vol. ii. p. 48." Note by Fraser.
LUTWICH V. MITTOll'. 491
LUTWICH V. MITTON.
CoDRT OF "Wakds. 1620.
[Reported Cro. Jac. 604.]
It was resolved by the two Chief Justices, Montague and Hobakt,
and by Tanfield, Chief Baron, that upon a deed of bargain and sale for
j-ears of lands whereof he himself is in possession, and the bargainee
never entered ; if afterwards the bargainors make a grant of the re-
version (reciting this lease) expectant upon it to divers uses, that it is
a good conveyance of the reversion ; and the estate was executed and
vested in the lessee for years by the statute ; and was divided from the
reversion, and not like to a lease for j-ears at the common law ; for in
that case there is not any apparent lessee until he enters r but here, by
operation of the Statute, it absolutelj' and actually vests the estate in
him, as the use, but not to have trespass without entr}- and actual pos-
session : wherefore they would not permit this point to be farther
argued.
BARKER V. KEETE.
Common Bench. 1678.
[Reported Freem. 249.]
The case was : Edward Hudson being tenant in tail, remainder to
William, his brother, to make a tenant to a prop.cipe to suffer a recov-
ery, makes a lease to one Pepes for six months, and upon that a re-
lease, and then suffers a recovery. The plaintiff claimed under the
remainder-man.
The question was only upon the lease for six months, the words
being, that he did "demise, grant, and to farm let, the lands in ques-
tion to Pepes, habend' for six months, rendering a pepper-corn, if
demanded."
The question was, whether this pepper-corn rent was a sufficient con-
sideration to make the lease operate by virtue of the statute, so that the
lessee should be said to be in possession, so as to be capable to take a
release before entry?
For it was agreed by all, if it did operate only as a lease at common
law, that the partj- was not capable of taking an enlargement of his
estate by a release until actual entry, according to 1 Inst. 46.
1 . And it was argued by Stroud, that this is only a lease at common
law ; for the words " demise, grant, and to farm let," are words used
492 BARKEK V. KEETE.
at the common law ; and there is no word of consideration, nor of bar-
gain and sale, In the deed, so that it cannot be intended that the parties
meant that it should operate by way of use.
2. This is an executory cousideration, and it is also contingent ; for
this rent of a pepper-corn is not to be paid, unless it be demanded,
which is uncertain whether it will or not; besides, it is not payable
presently, and a future consideration shall never raise a present use ;
and that is the reason of the Lord Paget' s Case, Moor. 194 ; 1 Co. 154 ;
1 Leon. 194 ; no use did rise there, because the consideration of pay-
ment of his debts was executory, and was no present consideration.
Vide Cro. Eliz. 378 ; 6 Co. 15.
3. The consideration of a pepper-corn is of no value to raise an use ;
and therefore if an infant make a lease, rendering a pepper-corn, it is a
void lease. 43 Ed. 3 ; Fitz. Entr. 26.
But as to this point all the court, except North, C. J., did incline,
that this lease did operate b^' the Statute.
For, as to the first objection, thej- said, it had been often adjudged,
that, though there were not the words "bargain and sell," j-et it
would operate 'by way of use, there being a sufiScient consideration.
8 Co. 93.
2. As to the second objection, they held, that though this rent was
to be paid futurely, yet it was a present duty ; and the obligation to pay
it was present, for "yielding and paying" makes a covenant. And
North said, that where things are done in the same instant, thej- would
transpose them, and suppose a precedency, it being to support common
assurances ; and so they might suppose the covenant to pay the rent to
precede the raising of the use, and then the consideration would be
executed.
And North said, he had known it ruled several times, that a lease
and release in the same deed was a good conveyance, for priorit}- should
be supposed.
3. As to the third they all held, that the value of the consideration
was not material ; for it is usual, if an estate be of the value of £1,000
per annum, to make 5s. the consideration in a bargain and sale for a
j-ear ; and by Porter's Case, 1 Co. 24, a penny is sufficient to alter the
use of a feoffment, and to cause the feoffee to be seised to his own use ;
and so in the case of Sutton's Hospital, 10 Co. 34.
And as to the lease of an infant, reserving a pepper-corn, that shall
be a void lease, because it appears to the court, that there is no pro-
portionable consideration.
And North said, that if there had appeared anj' intent of the parties,
that it should operate by way of use, he should not have doubted of the
case, but the intent ought to appear ; and he said, in the case of Gar-
nish V. Wetitworth, tried before the Lord Chief Justice Bridgman, a
convej-ance was endeavoured to be set up hy a covenant to stand
seised, by reason that the party was related to him that made it, though
it were nine degrees off; and Bridgman said in that case, it were wor-
BARKER V. KBETE. 493
thy of <!onsideration, whether the use should rise, because the party
that made it did not know of the relation, and so could not intend
it. But that point was not determined, because upon examination it
appeared, that there was no relation in the case.
And in the case of Bigby and Smith, Cro. Car. 529, though the ex-
press consideration be natural love to his children, yet the party being
his brother, to whom the conveyance was made, and part of the consider-
ation being to settle his lands in his blood, though that particular
relation was not named, it was well enough, because it seemed to be
pointed at. Vide 7 Co. 39.
And they said, that the very tenure was sufficient to change an use,
or at least to keep it from resulting ; and therefore, if a lease be made
without consideration, or reservation of rent, the use shall not result, as
it shall in case of a feoffment, because there is no tenure.
And Wtndham said, that although it might not be a consideration
to raise an use of a freehold, where the deed is to be enrolled, because
\)\ the Statute it is to be a valuable consideration, yet it might serve in
case of a lease for years.
And whereas it was objected, that it ought to be money for the con-
sideration, it was said, though it should not pass by bargain and sale,
}-et the use might rise by a covenant to stand seised well enough.
And North said, that if the truth of this case had been found, there
would have been no question in it ; for this recoverj* was to support a
mortgage, though it was not so found, and that would have been a
sufficient consideration.
And North said, that this conveyance bj- lease and release was first
invented b}' Sir Francis More, for formerly they used to make a lease,
and the lessee used to go and enter, and the same daj- thej^ made the
release.
Another point was stirred, viz., that in case there were no good
tenant to the jorcecijoe, yet he in remainder being heir to the tenant in
tail, should be estopped, according to the opinion of Plow. Manxell's
Case; but that opinion of Plow, was denied by the court, according to
3 Co. 6 ; for if that were law, then there need never be any lawful tenant
to the prcecipe, which the law requires ; because hy the judgment the
tenant is to be turned out of possession ; and though all are estopped
that claim under the parties to the recovery, j'et the issue in tail and
the remainder are not, because thej- claim paramount from the donor.
Another point was, here being a special conclusion made, whether
the judges should be bound by this special conclusion of the verdict ;
for it was held in the case of Lane v. Cooper, Moore's Reports, that the}'
should not ; but it is said, and so held, that since that the law had been
lield contrary. 5 Co. 95 ; 2 Roll. 701. ^
1 s. c. 2 Mod. 249.
494 KOE V. TRANMER.
ROE V. TRANMER,
Common Pleas. 1757.
[Reported 2 Wils. 75.]
Ejectment for lands in Yorkshire. Upon the trial of this cause it
appeared in evidence, that Thomas Kirby being seised in fee of the
lands in question made and executed certain deeds of lease and release.
The lease dated November 9, 1733, made between the said Thomas
K.irb}' of the one part, and Chr. Kirb}' his brother of the other part,
whereby it is witnessed that the said Thomas Kirbj', in consideration
of 5s. did grant, bargain and sell to the said Chr. Kirbj', his executors,
administrators and assigns, the lands in question ; to have and to hold
the same unto the said Chr. Kirby, his executors, administrators and
assigns, from the day before the date thereof for the term of one year
under a pepper corn rent, to the intent that by virtue of these presents,
and by force of the Statute for transferring uses into possession, he the
said Christopher may be in the actual possession of all the premises,
and be enabled to take and accept of a grant and release of the rever-
sion and inheritance thereof to them and their heirs, to, for and upon
such uses, intents and purposes, as in and bj' the said grant and re-
lease shall be directed or declared. In witness, &c. executed by
Thomas Kirby.
The release dated November 10, 1733, made between Thomas Kirby
of the one part, and Chr. Kirby his brother of the other part, witness-
eth that for the natural love he beareth towards his said brother, and
for and in consideration of £100 to the said Thomas Kirbj- paid bj- the
said Chr. Kirby, he the said Thomas Kirbj- hath granted, released and
confirmed, and by these presents doth grant, release and confirm unto
the said Chr. Kirb}- in his actual possession thereof now being, \>y virtue
of a bargain and sale for one whole year to him thereof made \>y the
said Thomas Kirby, hy indenture dated the day next before the daj- of
the date hereof, and by- force of the Statute made for transferring of
uses into possession, after the death of the said Thomas Kirby, all that
one close, &c. (the premises without any words of limitation to the re-
leasee ;) To have and to hold the said premises unto the said Chr. Kirby
and the heirs of his body lawfuUj' begotten, and after their decease to
John Wilkinson, eldest son of m}^ well-beloved uncle John Wilkinson
of North Dalton in the county of York, gentleuian, to him and his heirs
and assigns, and to the only proper use and behoof of him the said John
Wilkinson the younger, his executors, administrators or assigns for ever,
he the said John Wilkinson the j'ounger paying or causing to be paid
to the child or children of my well-beloved brother Stephen Kirby the
sum of £200 and for want of such child or children, then to the child or
KOE V. TRANMEE. 495
children of my well-beloved sister Jane Kirb}', and for want of such
issue, then to the younger children of my well-beloved uncle John Wil-
kinson of North Dalton aforesaid, and for want of such younger chil-
dren, then the said estate above-mentioned to be free from the payment of
the above-named sum of £200. Then the releasor covenants that he is
lawfully seised in fee, and that he hath good right and full power to con-
vey the premises to the said Chr. Kirhy, and also that it may and shall
be lawful to and for the said Chr. Kirby, or the said John Wilkinson
the younger, from and after the death of him the said Thomas Kirby,
peaceably and quietly to have, hold, use, occupy, possess and enjoy the
said messuage, lands and premises, with the appurtenances, not only
without the lawful let, suit, &c. of him the said Thomas, but all others
claiming under him, &c. free from all incumbrances. Then it is cove-
nanted bj' all the parties, that all fines and recoveries and deeds of the
premises levied, suffered or executed by the parties, or any of them, or
b}' any other persons, shall be and enure to the use of the said Chr.
Kirby and his heirs of his body lawfully begotten, and for want of such
issue, then to the use of the said John Wilkinson junior, his heirs and
assigns forever, according to the true intent of these presents. In wit-
ness, &c. executed by Thomas Kirby.
It further appeared in evidence, that Chr. Kirby on the 10th of
November, 1733, paid to the said Thomas Kirby £20 in money, and
gave him his note for £80 payable to the said Thomas Kirb}-, who
signed a receipt on the backside of the said deed of release in these
words, viz. Received the day and year within written of the within
named Chr. Kirby the sum of one hundred pounds, being the full con-
sideration-money within mentioned to be paid to me. I say received by
me Thomas Kirbj'. Witness, M. J. S. T.
It further appeared in evidence that Chr. Kirby died without issue in
1740, and that John Wilkinson the lessor of the plaintiff is tlie same
John Wilkinson named in the deed of release, but it did not appear
that the said John Wilkinson had notice of the said deeds of lease and
release until a short time before this ejectment was brought.
This being the case for the consideration of the court, the general
question is, whether the lessor of the plaintiff has a title to recover
upon the lease and release.
It has been argued at the bar three times, the first time by Serjeant
Willes for the lessor of the plaintiff, and Serjeant Poole for the defend-
ant, and the second and third times (because of a new judge) by Ser-
jeant Hewit for the plaintiff, and Sir Samuel Prime, the king's first
Serjeant, for the defendant.
After time taken to consider, the court were all of opinion that the
release was void as a common law conve3'ance, it being to convej- a
freehold to commence in futuro, but that it should have the effect and
operation of a covenant to stand seised to uses ; and in Hilary term 31
Geo. 2, Lord Chief Justice Willes gave the judgment of the whole
court for the plaintiff.
496 EOE V. TEANMEE.
WiiXES, C. Justice. It is admitted and agreed on all hands that this
deed is void as a release, because it is a grant of a freehold to com-
mence in futuro ; and therefore the only question is, whether it shall
take effect as a covenant to stand seised to uses ; and we are all of
opinion that it shall (ray brother Bathurst, not being here, authorized
me to say he is of the same opinion).
Manj- cases have been cited on both sides, some of which are ver}-
inconsistent with one another, and to mention them all, would rather
tend to puzzle and confound, than to illustrate the matter in question ;
and therefore I shall only take notice of those things we think most
material, and of some few cases nearest in point for our judgment.
It appears from the cases upon this head, in general, that the judges
have been astuti to carry the intent of the parties into execution, and
to give the most liberal and benign construction to deeds ut res magis
valeat quam pereat. I rely much upon Sheppard's Touchstone of Com-
mon Assurances, 82, 83 (which is a most excellent book) , where he says,
when the intent is apparent to pass the land one waj- or another, there
it may be good either way.
Bj' the word intent, is not meant the intent of the parties to pass the
land by this or that particular kind of deed, or bj' anj- particular mode
or form of conveyance, but an intent that the land shall pass at all
events one way or other.
Lord Hobart (who was a verj- great man) in his Reports, fo. 277, sa3's :
" I exceedingly commend the judges that are curious and almost subtil
{astuti) to invent reason and means to make acts according to the just
intent of the parties, and to avoid wrong and injurj-, which bj- rigid
rules might be wrought out of the Act ; " and my Lord Hale in the case
of Crossing and Scudamore, 1 Vent. 141, cites and approves of this
passage in Hobart.
Although formerly, according to some of the old cases, the mode or
form of a conveyance was held material, j-et in later times, where the
intent appears that the land shall pass, it has been ruled otherwise ;
and certainly it is more considerable to make the intent good in passing
the estate, if bj- any legal means it may be done, than bj- considering
the manner of passing it, to disappoint the intent and principal thing,
which, was to pass the land. Osman and Sheafe, 3 Lev. 371. Upon
this ground we go.
We are all of opinion that in this case there is every thing necessar}'
to make a good and effectual covenant to stand seised to uses. First,
here is a deed. Secondly, here are apt words, the word grant alone
would have been sufficient, but there are other words besides, which are
material, viz. A covenant that the grantor has power to grant, and a
covenant that all fines, recoveries, &c. of these lands shall enure to
the uses in the deed. Thirdly, the covenantor was seised in fee.
Fourthly-, here appears a most plain intent that Wilkinson the lessor of
the plaintiff should have the lands in case Chr. Kirbj- died without issue.
And lastly, here is a proper consideration to raise an use to the lessor
LEASE AND RELEASE. 497
of the plaintiff, for the covenantor in the deed names him to be the
eldest son of his well-beloved uncle ; these are all the circumstances
necessary to make a good deed of covenant to stand seised to uses.
In support of their opinion the Ch. Justice only cited and observed
upon these cases, viz. Crossing and Scudamore, 1 Mod. 175 ; 2 Lev. 9 ;
1 Vent. 137 ; Walker and Hall, 2 Lev. 213 ; GouUman and Senhouse,
Tho. Jones, 105 ; Carth. 38, 39 ; Baker versus Hil, 2 W. & M.
B. R. ; Osman and Sheafe, 3 Lev. 370.
The C. Justice lastly cited two of the strongest cases mentioned for
the defendants, as Hore and Dix, 1 Sid. 25 ; Samon and Jones, 2
Vent. 318, and said he did not (for his own part) understand them, and
that if he had sat in judgment in those cases, he should have been of a
different opinion in both ; however, he said the present case differed
from these two cases. Lastly, he said the whole court were clear of
opinion that a man seised, might covenant to stand seised to the use of
another person after the covenantor's death. Postea delivered to the
plaintiff.
Lease and Release. "It was not long, however, before a loophole was discovered
in this latter Statute [St. of Enrolment], through which, after a few had ventured to
pass, all the world soon followed. It was perceived that the Act spoke only of estates
of inheritance of freehold, and was silent as to bargains and sales for a mere term of
years, which is not a freehold. A bargain and sale of lands for a year only, was not
therefore affected by the Act, but remained still capable of being accomplished by word
of mouth and payment of money. The entry on the part of the tenant, required by
the law, was supplied by the Statute of Uses ; which, by its own force, placed him in
legal intendment in possession for the same estate as he had in the use, that is, for the
term bargained and sold to him. And as any pecuniary payment, however small, was
considered sufficient to raise a use, it followed that if A., a person seised in fee simple,
bargained and sold his lands to B. for one year in consideration of ten shillingg paid
by B. to A., B. became, in law, at once possessed of an estate in the lands for the terra
of one year, in the same manner as if he had actually entered on the premises under a
regular lease. Here then was an opportunity of making a conveyance of the whole fee
simple, without livery of seisin, entry or enrolment. "When the bargain and sale for a
year was made, A. had simply to release by deed to B. and his heirs his (A.'s) estate
and intei-est in the premises, and B. became at once seised of the lands for an estate in
fee simple. This bargain and sale for a year, followed by a release, is the modern con-
veyance by lease and release, — a method which was first practised by Sir Francis
Moore, Serjeant at law, at the request, it is said, of Lord Norris, in order that some of
his relations might not know what conveyance or settlement he should make of his
estate ; and although the efficiency of this method was at first doubted, it was, for
more than two centuries, the common means of conveying lands in this country. It
will be observed that the bargain and sale (or lease, as it is called) for a year derived its
effect from the Statute of Uses; the release was quite independent of that Statute, hav-
ing existed long before, and being as ancient as the common law itself. The Statute
of Uses was employed in the conveyance by lease and release only for the purpose of
giving to the intended releasee, without his actually entering on the lands, such an
estate as would enable him to receive the release. When this estate for one year was
obtained by the lease, the Statute of Uses had performed its part, and the fee simple
was conveyed to the releasee, by the release alone. The release would, before the Stat-
ute of Uses, have conveyed the fee simple to the releasee, supposing him to have
obtained that possession for one year, which, after the Statute, was given him by the
lease. After the passing of the Statute of Frauds, it became necessary that every bar-
32
498 mildmay's case.
SECTION V.
LIMITATION OF USES.
MILDMAY'S CASE.
Court of Wakds. 1582.
[Reported 1 Co. 175.]
The case in an information exhibited in the Court ofWards by Eichard
Kingsmill, Esq. attornej- of the same court, against the Lad}' Anne Shar-
ington, late wife of Sir Hen. Sharington, Knt. and John Talbot, Esq. and
OlifT his wife, one of the daughters and heirs of the said Sir Henry
Sharington, which was resolved Hil. 24 Eliz. and afterwards Hll. 26
Eliz. adjudged in the Court of Common Pleas, rot. 745, between Anthony
MUdmay, Esq. plaintiff, and Roger Standish, Gent, defendant, in an
action upon the case for slandering his title, &c. which judgment was
M. 26 & 27 Eliz. rot. 35, affirmed in the King's Bench, in a writ of
error, and was in effect thus : The said Sir Henrj- Sharington having a
wife the said Dame Anne, and three daughters, Grace married to the
said Anthony Mildmay, Ursula married to Thomas Sadler, Esq. and
Oliff married to the said John Talbot, by indenture bearing date 20
Augusti 15 Eliz. made between the said Sir Henry Sharington of the
one part, and. Edmund Pirton and James Paget, Esqrs. of the other
part, in consideration of a jointure for his wife, for the advancement of
his issue male of his body, if he should have anj-, and for the advance-
ment of his said three daughters and the heirs of their bodies, if he
should have no heir male of his body, and for the continuance of his
land in his blood, and for other good and just considerations did cove-
nant to stand seised of six hundred acres of land (exempli gratia) to
the uses, intents, and purposes, and under the proviso following, scil.
of all to the use of himself for his life, and after for 300 acres of land,
in certain, to the use of his wife for her life for her jointure ; and of the
other 300 acres after his death, and of the said 300 acres limited for
the jointure of the wife after their deaths to the use of the heirs males
of his body begotten ; and for default of such issue, then for the 300
acres not being limited for jointure, &c. to the use of his three daugh-
gain and sale of lands for a year should be put into writing, as no pecuniary rent was
ever reserved, the consideration heing usually five shillings, the receipt of which was
acknowledged, though in fact it was never paid. And the bargain and sale, or lease
for a year, was usually made by deed, though this was not absolutely necessary. It
was generally dated the day before the date of the release, though executed on the
same day as the release, immediately before the execution of the latter." Wms. Real
Prop. (13th ed.) 187-189.
mildmay's case. 499
tei-s severally by themselves, and to the heirs of their bodies ; and for
default of such issue, to the use of the right heirs of the said Sir Henry,
with like limitation of the other 300 acres to them of the like estate,
with the reversion to his right heirs. And if any of his said three
daughters should die without issue, then her portion should be by moie-
ties to the survivors of the like estate, ut supra, with remainder ut
supra ; with proviso for the three several husbands of the said three
daughters to have several portions for their lives, if they should survive
their wives, and should not be entitled to be tenants by the curtesy,
with this proviso in these words following, scil. Provided always, and
it is covenanted and agreed between all the said parties, that it shall
be lawful for the said Sir Henry by his will in writing to limit any part
of the said lands to any person or persons for any life, lives, or years,
for the payment of his debts, performing of bis legacies, preferment of
his servants, or any other reasonable considerations as to him shall be
thought good, and all persons thereof seised, to stand seised thereof to
the use of such persons and for such interests as shall be so limited by
his will. After which the said Ursula died without issue, Grace and
OHff surviving, whereby her portion by moieties came to them : and
afterwards the said Sir Henr3' by his will in writing for the advance-
ment of his daughter Oliff, and of her husband, and of the heirs of the
body of the said Oliff, limited a great part, limited bj- the indenture for
the portion of Grace, after the death of his wife, and another great part
of land which remained to her by the death of the said Ursula, to the
said Oliff and her husband, and to the heirs of the body of Oliff for
1000 j'ears without reservation of any rent ; and afterwards the said
Sir Henry died without issue male, and whether this limitation for 1000
years being made for the advancement of his daughter Oliff and her
husband, and the heirs of the body of the said Oliff, be good in law bj'
force of the said proviso, was the question. And it was resolved and
adjudged by Sir Christopher Wrat, Ch. Just, of England, Sir Edm.
Anderson, Ch. Just, of the Court of Common Pleas, and all the judges
of England, that the limitation for 1000 years was void, and not war-
ranted by the said proviso ; and in this case five points were resolved.
First, that an use cannot be raised by any covenant or proviso, or
by bargain and sale upon a general consideration : and therefore, if a
man by deed indented and enrolled according to the Stat, for divers
good considerations bargains and sells his lands to another and his
heirs, nihil operatur inde ; for no use shall be raised upon such gen-
eral consideration, for it doth not appear to the court that the bargainor
hath quid pro quo, and the court ought to judge whether the considera-
tion be sufficient or not ; and that cannot be when it is alleged in such
generality. But note reader, the bargainee in such case may aver that
money or other valuable consideration was paid or given, and if the
truth be such, the bargain and sale shall be good. So if I by deed
covenant with J. S. for divers good considerations, that I and my heirs
will stand seised to the use of him and his heirs, no use without a spe-
500 mildmay's case.
cial averment shall be raised bj' it ; but if J. S. be of my Lloorl, and in
truth the covenant was made for the advancement of his blood, he mn}'
aver that the covenant was in consideration thereof ; for in both these
cases the person who shall take the use is certain ; and that such aver-
ment may be taken which stands with the deed, although it be not es-
presslj- comprised in the deed, is proved by a case adjudged in an assize
between Villers and JBeamont, term. Pasch. 3 & 4 Ph. & M. reported
bj' Bendloes, Serjeant at law ; which case you will find also Pasch. 3 &
4 Ph. & M. D}-. fo. 146, where the ease in effect was, that George Bea-
mont and Jane his wife, as in the right of his wife, were seised of the
manor of Northall, &c. and had issue Will. Beamont, who had issue
Rich. Beamont, and he and his wife, bj- indenture 12 H. 8, between
them of the one part, and Rich. Clark of the other part, in considera-
tion of £70 given by Rd. Clark, did bargain and sell the land to the
said Rich. Clark for 30 jears, the remainder to themselves for their
lives, the remainder to Will. Beamont for life, the remainder to Rich.
Beamont and to one Collet the daughter of Rd. Clark in tail, &c. and
afterwards a recover3' was had to the same uses ; Rd. Beamont and
Collet did intermarry ; and it was found and averred, that the said in-
denture was made, and the said recovery had tarn in consideratione
maritagii prced' inter RicK Beamont S Colletam, habend' S cele-
brand' (to make it a jointure within the Statute of 11 Hen. 7) quam of
the said sum of £70, and it was adjudged, that although there was a
particular consideration mentioned in the deed, j-et an averment in the
same case might be made of another consideration which stood with the
indenture, and which was not contrary- to it ; a fortiori m the said cases,
for in the deed there is no certain consideration, but the deed is general
for divers good considerat. then the averment that the bargainee gave
monej', &c. or that the covenantee was of his blood, is but an explana-
tion and particularizing of the general words of the deed, which include
ever}' manner of consideration, and in all the said cases the matter so
averred is traversable and issuable.
Secondlj-, it was resolved, that when uses are raised bj' covenant in
consideration of paternal love, &c. to his sons and daughters, or for the
advancement of any of his blood ; and after in the same indenture a
proviso is added, that the covenantor for divers good considerat. may
make leases for years, &c. that the covenantor in such case cannot make
a lease for years to his son or daughter, or to any other of his blood
(much less to any other person) because the power to make leases for
years was void when the indenture was sealed and delivered ; for the
covenant upon such general consideration cannot raise the use for the
causes afores. and no particular averment can be taken because his
intent was as general as the consideration was, and his intent was not
at the time of the delivery of the deed to demise to any person in cer-
tain,, to one more than another, but to demise generally to whom he
pleased ; and therefore his power to make leases (the uses being created
and raised by covenant upon the considerations aforesaid) was void ab
mildmay's case. 501
initio. But if the uses had been limited upon a recovery, fine or feoff-
ment, in that case there needs not any consideration to raise any of the
uses, and so a manifest difference. And the case at bar is stronger,
because the proviso which gave power to malce leases will defeat or at
least incumber the estates vested and settled upon good considerations
in strangei's by the covenants of the same indenture. So note a differ-
ence when the consideration is general, and the covenant or bargain
made with a person certain, there an averment according to the truth
of the case may be taken as aforesaid ; but when the consideration is
general, and the person uncertain, there no averment can help: and
therefore if I for divers good considerations covenant with you, that I
will stand seised to the use of such a one as you shall name, now al-
though }'ou name my son, or my cousin, j'et no use shall be raised
therebj^, because, for the generality and incertaint}', it was void in ini-
tio, and never could be made good to any purpose after ; and no aver-
ment can make it good, or reduce it to any certainty', for the intent of
the covenantor was as general as his words were. But if I covenant
with 3-ou that in consideration of fatherly' love, or for the advancem. of
my blood, I will stand seised to the use of such of my sons, or to the
use of such of my cousins as you shall name, upon the nomination made
the use shall be raised, for there the consideration is particular and cer-
tain, and the person b}- matter ex post facto may be made certain.
3. Upon these words in the proviso (other considerations) it was held,
that this word (other) could not comprehend any consideration men-
tioned or expressed in the indentures before the proviso ; for (other)
ought to be other in nature, qualitj^, and person, and the advancement
of his daughter is the consideration mentioned before. 4. It was re-
solved, that the said limitation of 1000 years was as well against the
intent of the parties, as against the words of the proviso, for the intent
and scope of the indentures was to make distribution of his lands
amongst his three daughters, and the heirs of their bodies ; and every
of them, upon good consideration and by agreement between their
parents, had her portion by herself; but if this limitation for 1000 years
should be good, it would rather frustrate the estate of the other sister,
and defraud the intent of the parties grounded upon a consideration of
marriage, than perform and pursue the intent and meaning of the pro-
viso, for the intent of the proviso was never to give any power to make
void the estates of the other sisters ; but it appears by all the parts of
the indenture, that each daughter should be advanced equally ; and so
this limitation for 1000 years without any rent reserved was against the
intent and meaning of the parties ; it seems also to be against the words
of the proviso, for that cannot be called a reasonable consideration which
tends to the subversion of the estates vested and settled by the said in-
dentures upon so good and just considerations against the meaning of
the parties. After the said resolution of the justices certified into the
Court of Wards, it was adjudged in the Common Pleas, and also affirmed
upon a writ of error in the King's Bench in an action upon the ease
502 SIR EDWARD CLEEE's CASE.
brought bj' the said Anthon_y Mildmaj- against Roger Standish, because
the said Roger had said, and openly published that the said land was
lawfully assured to the said John Talbot and Oliffe his wife for 1000
j'ears, and that thej- were lawfullj' possessed of the interest of the said
term, whereas, in truth the said land was not lawfully assured for the
term afores. nor were the said John Talbot and Oliflfe lawfullj' possessed
of the interest thereof, and so for slandering of the estate and title which
was conveyed to his wife by the said indentures, and showed all in cer-
taintj-, and how he was prejudiced by the said words, he brought the
said action. And Standish pleaded the said proviso in the same inden-
tures, and the said limitation for 1000 3'ears by the said will, &c. accord-
ing to the said proviso (as he pretended) by virtue whereof he said the
said Oliffe had an interest for 1000 j-ears, and justified the words upon
which the plaintiff demurred. And it was adjudged, that the action upon
the case was maintainable : and in this case two points were resolved in
both the courts : first, that the said lease for the causes afores. was void
in law. Secondly, although de facto the said John Talbot and Oliflfe
had a limitation of the land by the said will of Sir Henry Sharington in
writing for 1000 years, which was the occasion that Standish, being a
man not learned in the law, did affirm and publish that Oliffe had a term
for 1000 3'ears ; yet forasmuch as he hath taken upon him the knowledge
of the law, and meddling with a matter which did not concern him, had
published and declared, that Oliffe had a good estate for 1000 years, in
slander of the title of Mildmay, and therebj- had prejudiced the plaintiff,
as appears by the plaintiff's declaration ; for this reason the judgment
given for the plaintiff was aflSrmed in the writ of error ; eb ignorantia
juris non excusat.
SIR EDWARD CLERE'S CASE.
Nisi Peius. 1599.
[Reported S Co. 17 b.]
In an assise by Parker against Sir Edward Clere, Knight, of lands in
the count}' of Norfolk, the case in effect was such, Clement Harwood,
seised of three acres of land, each of equal value, held in capite, made
a feoffment in fee of two of them to the use of his wife for her life, for
her jointure, and afterwards made a feoffment by deed of the third acre,
to the use of such person and persons, and of such estate and estates as
he should limit and appoint bj- his last will in writing, and afterwards
hj his last will in writing, he devised the said third acre to one in fee
(under whom the plaintiff claimed) . And whether this devise was good
for all the said third acre, or not, or for two parts of it, or void for the
whole, was the question. And in those cases four points were resolved
by PopHAM, Chief Justice, and Baron Clark, justices of assise of the
SIR EDWARD CLERE'S CASE. 503
said conutj-, upon conference had with the other justices : 1. If a man
seised of lands in fee, makes a feoffment to the use of such person and
persons, and of such estate and estates as he shall appoint by his will,
that by operation of law the use doth vest in the feoffor, and he is seised
of a qualified fee, that is to say, till declaration and limitation be made
according to his power. Vide Lit. fol. 109 a. When a man makes a
feoffment to the use of his last will, he has the use in the mean time.
2. If in such case the feoffor by his will limits estates according to his
power reserved to him on the feoffment, there the estates shall take ef-
fect by force of the feoffment, and the use is directed b\- the will ; so that
in such case the will is but declaratory : but if in such case the feoffor
bj- his will in writing devises the land itself, as owner of the land, with-
out anj' reference to his authority, there it shall pass by the will, for the
testator had an estate deviseable in him, and power also to limit an use,
and he had election to pursue which of thAn he would ; and when he de-
vised the land itself without any reference to his authoritj' or power, he
declared his intent, to devise an estate as owner of the land, bj' his will,
and not to limit an use according to his authority ; and in such case,
the land being held in capite, the devise is good for two parts, and void
for the third part. For as ttie owner of the land he cannot dispose of
more ; and in such case the devise cannot take effect by the will for two
parts, and by the feoffment for the third part ; for he made his devise as
owner, and not according to his authorit)-, and his devise shall be of
as much validitj' as the will of ever^- other other owner having any land
held in capite. 3. If a man makes a feoffment in fee of lands held in
capite, to the uso-of his last will, although he devises the land with refer-
ence to the feoffment, j-et the will is void for a third part : for a feoff-
ment to the use of his will, and to the use of him and his heirs is all
one. 4. In the case at bar, when Clement Harwood had conveyed two
parts to the use of his wife b}- act executed, he could not as owner of
the land devise any part of the residue b}- his will, so that he had no
power to devise any part thereof as owner of the land, and because he
had not elected as in the case put before, either to limit it according to
his power, or to devise it as owner of the land (for in the case at bar,
having, as owner of the land, conveyed two parts to the use of his wife
ut supra) he could not make any devise (thereof) therefore the devise
ought of necessity to enure as a limitation of an use, or otherwise the
devise shall be utterly void ; and judgment was given accordingly for
the plaintiff for the whole land so devised. And afterwards on the said
judgment Sir Edward Clere brought a writ of error in the King's Bench,
sed non proBvaluit, but the judgment was affirmed.^
1 " The Chief Justice [Holt] held that a, feoffment to the use of A. and his heirs,
to commence four years from thence, was good as a springing use, and that the whole
estate remained to the feoffor in the mean time ; so it is if it were to commence after the
death of A. without issue, if he die without issue within twenty years." Davies v.
Speed, 2 Salk. 675 (1692).
504 egeeton's case.
EGERTON'S CASE.
King's Bench. 1619.
[Eeported Oro. JaC: 525.]
Ekror upon a judgment in the Common Pleas in a writ of covenant.
Two errors were assigned. First. For that a fine being levied by in-
denture, declared the use to be to tlie wife of J. S., and the Court of
Common Pleas adjudged it to be an estate for life, whereas it is not so
expressed. And as to that point the iudgment was affirmed, for Dodek-
lUGE said, although the fine be but as a grant, j'et an estate for life may
pass. Vide 1 Co. 106, Shdly's Case}
Leake, Digest of Land Law, 112, 113. The Imiitation of uses is not
restricted by the doctrines of common law concerning the seisin ; and,
therefore, a use for a freehold estate may be limited to arise in futuro
or upon a contingencj' without any prior limitation to support it as a
remainder. Thus a convej'ance of the immediate legal possession may
be made to the use of a person and his heirs, after four years, or after
the death of the grantor, or to such uses as the grantor shall appoint by
will. 1 Sanders on Uses, 136 ; Gilbert on Uses, by Sugden, 153, 161 ;
Clerks Case, 6 Co. 18 a ; Davies v. Speedy 2 Salk. 675. per Holt, C. J.
So, a bargain and sale might be made to the use of another after four
years ; so, a covenant to stand seised to the use of another after the
covenantor's death. Moe v. IVanmer, 2 Wils. 75 ; Doe v. Prince,
20 L. J. C. P. 223.
In all such cases of uses to arise in futuro, the use, being undisposed
of except at the time or in the event specified, results or remains in the
grantor or covenantor in fee simple as before, antil the future use arises
to displace it ; the use does not result or remain for a particular estate
onh', so as to convert such limitations into remainders. Bacon on Uses,
Eowe's ed., note (137) ; Gilbert on Uses, by Sugden, 161, 162 ; 1 Hayes
Conv. 464, App. ii. 2, on Resulting Uses.
A future estate in the use maj- also be limited to take eflfect in substi-
tution or defeasance of a previoush' limited estate, and even of an estate
in fee simple ; for the rules of common law, not admitting of any future
limitations shifting the freehold except by way of remainder, nor of any
^ The decision on the other error assigned is omitted.
' ' And he [ Walmbslby, J. ] said that if a man before the Statute of 27 Hen. 8 had bar-
gained his land for money generally, withoiat these words, 'his heirs,' the Chancellor
would oblige him, according to conscience and the intent of the parties, in regard of the
value, to have executed an estate in fee, and that was so long as uses were things merely
in trust and confidence; but the uses since the Statute are transferred and made into an
estate in the land : and therefore he said that if after the Statute he bargain and sells
the land to one generally for money, he hath but an estate for life." Corbet's Case,
\ Co, 83 b, 87 b. (1600).
LIMITATION OP USES. 505
limitations after an estate in fee simple, had no application to the use.
A marriage settlement is a well-known instance of such limitations ;
where the use is first limited to the settlor in fee, and, upon the marriage
taking place, then to the uses of the settlement. 1 Sanders Uses, 143 ;
Gilbert on Uses, by Sugden, 153.
Future nses of the above kinds, including all such as are not limited
by way of remainder, are called springing or shifting uses, the former
term more especially denoting those that arise or spring up without any
prior limitation ; the latter denoting those that shift the use in substitu-
tion of a prior estate. Sugden's note to Gilbert on Uses, 152. Being
executed by the Statute, they made a great advance upon the common
law in the limitation of future estates.
Note. — " At common law a man could not limit a remainder to himself, nor could he
limit it to his heii-s, for filius est pars patris ; see Champemon' s Case, 4 H. 6, 19 b,
pi. 6 ; Earl of Bedfm-d's Case, Mo. 718. Therefore, if a lease were made to A. for life,
remainder to the right heirs male of the body of the lessor, remainder to the right heirs
of the lessor for ever, the limitations to the heirs would be void, because the donor
could not make his right heir a purchaser without departing with the whole fee-simple
out of his person. Greswold's Case, Dy. 156 a, pi. 24. So if a man make a lease for
life, the remainder to himself in tail or in fee, the remainder is void. But as Lord
C. J. Hale observed, in all cases touching uses there is great difference between a feoff-
ment to uses, a covenant to stand seised, and a conveyance at the common law. If a
man by feoffment to uses conveys lauds to the use of J. S. for life, he may remit the use
to himself and the heirs male of his body by the same deed, and so alter that which veas
before a fee-simple, and turn it into another estate ; but if A. gives land to B. for life,
remainder to A. and the heirs male of his body, because a man cannot give to himself,
the remainder is void, for a man cannot convey to himself by a conveyance at the com-
mon law. 1 Ventr. 377, 378. And in Southcot and Stowel, 2 Mod. 207, the court held,
that though at the common law a man cannot be donor and donee without he part with
the whole estate, yet it is otherwise upon a conveyance to uses; and see Co. Lit. 22 b.
"The student must cautiously observe, that in these cases the rules of law still
remain in full force, as applicable to common law conveyances, by which the estates
are created at once, and not served out of the seisin of the feoffee. The Statute has
given one conveyance the same operation which two formerly had, and therefore con-
sidering a conveyance to uses as having a double operation, the strict rules of law
remain, even in regard to them. This, however, at first sight does not appear to be
the case on a covenant to stand seised, for a man may covenant to stand seised to
the use of himself in tail, and the use will be served out of his own seisin, and trans-
feri-ed into a possession by the Statute. But there is no solid distinction between
this case and the others ; for immediately after the execution of the covenant, equity
supplies a common law conveyance by holding the covenantor himself to be a trus-
tee, and to stand seised to the use: on this seisin the Statute attaches, and thus the
use takes etfei-'t as a legal estate, although the owner did not actually depart with any
portion of the estate, much less the fee out of himself It should be remembered, that
tlie omission of a few words in a conveyance will call this important distinction into
action. If a man make a feoffment at once to A. for life, remainder to himself in tail,
the deed would operate purely at common law, and the remainder would be void ; but
if the feoffment were made to A. and his heirs, to the use of A. for life, remainder to
the feoffor in tail, the remainder would be good, — at law the entire fee-simple would
vest in A., in equity A. would be seised to the uses, and the Statute operating on this
seisin would clothe the uses with the legal estate." Gilb. Uses (Sugden's eil.), 150-
152, note.
506 ANONYMOUS
SECTION VI.
OPERATION OF THE STATUTE OF USES.
ANONYMOUS.
Common Pleas. 1582.
[Reported Cro. El. 46.]
NoTA that cestui que use, at this daj*, is immediately and actually
seised and in possession of the land ; so as he may have an assise or
trespass before entr^- against an}' stranger who enters without title, and
this bj' the words of the 27 Hen. 8, c. 10, viz., " that cestui que use
shall stand and be seised," &c. ; and this was the opinion of divers
justices.
HEELIS V. BLAIN.
Common Pleas. 1864.
[RepoHed 18 C. 5. A'. S. 90.]
Appeal^ from the decision of a revising barrister disallowing the
claim of the appellant, Arthur Heelis, to have his name retained on the
list of voters for the township of Pendleton. In 1839, by indentures of
lease and release, land was conve3-ed to Spencer in fee to the use, in-
tent, and purpose that John Robinson, his heirs and assigns, should and
might have, receive, and take from said land a jearly rent of £50, by
half-yearly payments, on June 24 and December 25, and to further
uses. Robinson, in 1862, granted the rent-charge to Stephen Heelis and
his heirs ; and on January 27, 1864, Stephen Heelis granted it to John
Heelis and his heirs, to the use of the said John Heelis and five other
persons and their respective heirs, as tenants in common. Of these
persons the appellant was one.
The half-year's rent which became due June 24, 1864, being the first
which became due after the execution of the indenture of January 27,
1864, was, on July 8, paid to the said John Heelis, for himself and the
said five other persons, and he paid their shares over to the others
at various times between Julj" 8 and July 30. No part of the rent-
charge was paid after Januarj* 27, 1864, until the rent-charge due June
24 was paid.
It was objected to the claim of the appellant that he had not been in
the actual possession or in the receipt of the rent for his own use for
1 Tliis short statement is substituted for that in the report.
HEELIS V. BLAIN. 507
six months nest previous to the last day of July, as required by St. 2
Wm. IV. c. 45, § 26 ; and on this ground the revising barrister dis-
allowed the claim.
Joshua Williams, for the appellant.
JTeane, Q. C, for the respondent.
Erle, C. J. I am of opinion that the revising barrister is wrong,
and that the claimant is entitled to be registered. He claimed to have
been in the actual possession of a share of a rent-charge for six calen-
dar months before the 31st of July ; and it appears that more than six.
months before that day a rent-charge of £50 which had been created by
the owners in fee simple of certain land in Pendleton in 1839, was con-
veyed by Stephen Heelis, to whom it had come by various mesne
assignments, to John Heelis and his heirs, to the use of the claimant
and five other persons as tenants in common. No payment on account
of the rent-charge was due or paid to the claimant and the other five
persons until after the 24th of June, 1864 . and, if it had been the case
of a conveyance at common law, without the aid of the Statute of
Uses, it is clear from JTayden, app.. The Overseers of Twerton, resp.,
4 C. B. 1 ; 1 Lutw. Reg. Cas. 510, that there would have been no
actual receipt of the rent-charge so as to entitle the claimant to be
registered. But the conveyance under which the partj- claims here
is a convej-ance operating b}- the Statute of Uses ; and the 1st sec-
tion of that Statute enacts, that, where anj' person shall be seised of
(amongst other things) anj- rent, &c., in trust for anj' other person, &c.,
the cestui que trust shall have lawful seisin and possession of the same.
The Statute 2 W. 4, c. 45, § 20, enacts that no person shall be regis-
tered in any j'ear in respect of his estate or interest in any lands or
tenements, &c., unless he shall have been in the actual possession
thereof, or in the receipt of the rents and profits thereof, for his own
use, for six calendar months, &c. The 27 H. 8, c. 10, § 1, says, that,
where any person is seised of a rent to the use of any other person, the
person who has the use shall stand seised in possession of such rent to
all intents and purposes in the law. I am of opinion that the word
" possession" has a technical meaning, and that the Legislature in the
time of Henry 8 and the Legislature in the time of William 4 attached
the same meaning to the words " actual possession," and that a con-
veyance under the 27 H. 8, c. 10, gives the cestui que use the actual
possession which is required to constitute a qualification under the 2
W. 4, c. 45, § 26. It is said that the merely interposing an use is an
evasion of the Statute. But I attach no weight to that argument, be-
cause the two cases which have held that actual receipt of the rent is
essential to perfect the right to be registered, show that the handing
over anything in the name of the rent would afford less facilit}- of proof
than the production of a deed operating by virtue of the Statute of
Uses, which has been put in practice thousands of times since the time
of Henry 8. So far, therefore, as regards the Statute. Then, as to the
authorities, Mr. Williams has invited our attention to some which are
508
HEELTS V. ELAIK.
entitled to the verj- highest respect. In Anonymous, Cro. Eliz. 46, is
a resolution of clivers justices that cestui que use at this day is immedi-
atelj- and actuality seised and in possession of the land, so as he maj'
have an assise or trespass before entrj- against a stranger who enters
without title ; and this by the words of the 27 H. 8, c. 10, viz., " that
cestui que use shall stand and be seised," &c. And, though tiie report
is short, it is not the less valuable, for, often in the reports of that day
tlie most important propositions are laid down in four or five lines, and
certainly lose no force by reason of their conciseness. Then, again, wc
have Bacon's Readings upon the Statute of Uses, which is also entitled
to very great respect. So, Chief Baron Comyns, whose great work
stands high in the estimation of every one in the profession, and who
is the universal referee for almost every proposition, lays it down, —
title Uses (I.), — that, " by the Statute 27 H. 8, c. 10, cestui que use is
immediately seised and in actual possession, and therefore shall have
assise or trespass against a stranger before entrj- : " adopting the dic-
tum in Cro. Eliz. 46. Then we have the authority of Co. Lit. 315 a,
and Butler's note, which seems to me to involve the whole of the learn-
ing contained in the judgment of Tindal, C. J., in Murray, app.,
Thorniley, resp., 2 C. B. 217 ; 1 Lutw. Reg. Cas. 496. Butler's note
points out the distinction between the conve3-ance of a rent at common
law and the limitation of a rent as an use under the Statute. Then, I
take notice of that which is not strictlj^ authority, viz.. Cruise's Digest,
vol. 3, p. 274, § 15, and Burton's Compendium of the Law of Real
Property-, § 1116 ; and I think I am warranted in so doing, since it is a
main ground of Lord Eldon's judgment in the Uritton Ferry Case that
the practice of convej-ancers is to be taken notice of by those who ad-
minister the law, — a veiy wise and salutary principle ; for, according
to my experience, the persons intrusted with that branch of the law
have ever been remarkable for abilitj- and learning : and the argument
which we have heard this day satisfies me that the mantle of those
great men has not descended upon unworthy shoulders.
Keating, J. I also am of opinion that the decision of the revising
barrister in this case was wrong ; but T feel bound to add, that, if I
had been called upon to decide the point, unaided bj- the hght of the
able argument we have heard this daj-. I should have come to the same
conclusion. Mr. Williams has satisfied me that there is a clear dis-
tinction between the grant of a rent-charge at common law and a grant
operating by virtue of the Statute of Uses. The 26th section of the
Reform Act enacts that no person shall be registered in any year in
respect of his estate or interest in any lands or tenements, as a free-
holder, &c., unless he shall have been in the actual possession thereof,
or in the receipt of the rents and profits thereof, for his own use,
for six calendar months at least next previous to the last day of July
in such year. In Murray, app., Thorniley, resp., 2 C. B. 217 ; 1 Lutw.
Reg. Cas. 496, it was held that a grant of a rent-charge at common law
did not give the grantee a right to be registered under that provision
HEELIS V. BLAIN. 509
unless lie had been in actual receipt of the rent for the prescribed period.
The Chief Justice founds his judgment in that case upon the very au-
thorities which have been brought before us to-day. He cites the 235th
section of Littleton : " And so it is, if a man grant b}' his deed a yearly
rent issuing out of his land to another, &c., if the grantor thereafter pay
to the grantee a pennj- or a halfpenny in name of seisin of the rent,
then, if after the next day of payment the rent be denied, the grantee
maj' have an assise, or else not, &c." Lord Coke, exemplifying his
own doctrine that there is often virtue in an etcetera, explains what
that means, thus : "By this &c. is implied that the grant and delivery
of the deed is no seisin of the rent ; and that a seisin in law, which the
grantee hath by the grant, is not sufficient to maintain an assise or any
other real action, but there must be an actual seisin." Mr. Williams
admits that the actual possession spoken of in the Reform Act must be
such an actual possession as would have entitled the party to maintain
an assise. Then we find from the Anonymous Case in Cro. Eliz. 46,
— which certainl}' derives additional authority from being cited by
Chief Baron Comyns, — that, " by the Statute 27 H. 8, c. 10, cestui
que use is immediately seised and in actual possession, and therefore
shall have assise or trespass against a stranger before entr^'." That
therefore brings this case precisely within the ground upon which Mur-
ray, app., Thorniley, resp., was decided, and establishes the distinc-
tion between the grant of a rent-charge at common law, and a grant
under the Statute of Uses. Upon these grounds I am of opinion that
the revising barrister took an erroneous view of this case, and conse-
quentl}- that his decision must be reversed.
Williams asked for costs.
Erle, C. J. Where the decision is in favour of the appellant, no
costs are allowed. But, where the decision is in favour of the respon-
dent, the general rule is to give him his costs, — the court reserving to
itself the right to modify the rule as the circumstances of each case may
seem to them to render it expedient.^ Decision reversed.
1 See HadfidSs Case, L. R. 8 C. P. 306.
Note. — Scintilla Juris. " The mode of operation of the Statute with future uses,
when limited bj-- way of contingent remainders or as springing or shifting uses, for-
merly caused much perplexity and diiference of opinion. The Statute seemed to ex-
haust the seisin in serving the prior vested uses, so as to leave none to serve such
future uses as and when they should arise. To meet this difficulty it was conceived
that there remained in the grantees to uses a possibility of seisin, becoming an actual
seisin when the executory uses required it. This was the celebrated doctrine of the sci7i-
tilla juris, as this possibility of seisin was called. The only practical bearing of this
doctrine lay in the suggestion that the scintilla juris might be dealt with in a manner
to risk the safety of the dependent uses.
" After much abstruse speculation concerning the nature of the statutory process, the
result generally accepted seems to have been that it immediately converted uses of all
admissible kinds into legal limitations in a manner quite beyond the power or control
of the grantees to uses, and that the latter were merely formal instruments for carrying
the legal title to the uses." Leake, Dig. Land Law, 116.
See Sugd. Pow. (7th ed.) c. 1, § 3.
510 ttreeLiL's case.
SECTION VH.
USES NOT EXECUTED BY THE STATUTE.
NOTE. 1544.
[Reported Bro. Ah. Feoff, al Uses, 52.]
A MAN makes a feoffment in fee to his own use for tiie term of his
life, and that after his decease J. N. shall take the profits ; this makes
a use in J. N. Otherwise if he says that after his death, the feoffees
shall take the profits and deliver them to J. N., this does not make a
use in J. N., for he never has them unless by the hands of the feoffees.
TYKREL'S CASE.
Court of Wards. 1557.
[Reported Dyer, 155.]
Jane Tyerel, widow, for the sum of four hundred pounds paid bj'
G. Tyrrel her son and heir apparent, by indenture enrolled in chancery
in the 4th jear of E. 6, bargained, sold, gave, granted, covenanted,
and concluded to the said G. Tyrrel all her manors, lands, tenements,
&c. to have and to hold the said &c. to the said G. T. and his heirs
for ever, to the use of the said Jane during her life, without impeach-
ment of waste ; and immediately after her decease to the use of the
said G. T. and the heirs of his body lawfully begotten, and in default
of such issue, to the use of the heirs of the said Jane for ever. Qumre
well whether the limitation of those uses upon the habendum are not
void and impertinent, because an use cannot be springing, drawn, or
reserved out of an use, as appears prima facie? And here it ought to
be first an use transferred to the vendee before that an}' freehold or
inheritance in the land can be vested in him by the enrolment, &c.
And this case has been doubted in the Common Pleas before now :
ideo quoBre legem. But all the judges of C. B. and Saunders, Chief
Justice, thought that the limitation of uses above is void, &c. for sup-
pose the Statute of Enrolments [cap. 16] had never been made, but
only the Statute of Uses, [cap. 10] in 27 H. 8, then the case above
could not be, because an use cannot be engendered of an use, &c. See
M. 10 & 11 Eliz. t fol.
SAMMES'S CASE. 611
Bacon, Uses, 42. The second word material is the word seised: this
excludes chattels. The reason is, that the Statute meant to remit the
common law, Chattels might ever pass by testament or by parol;
therefore the use did not pervert them.
SAMMES'S CASE.
CouKT OF Wakds. 1609.
[Reported 13 Co. 54.]
John Sammes being seised of Grany Mead by copy of court roll of
the manor of Tollesham the Great, of which Sir Thomas Beckingham
was lord, and held the same of the king by knight's service in capite;
Sir Thomas by his deed indented, dated the 22d of December, in the
first year of King James, made between him of the one part, and the
said John Sammes and George Sammes son and heir apparent of
the said John of the other part, did bargain, sell, grant, enfeoff, re-
lease, and confirm unto the said John Sammes the said mead called
Grany Mead, to have and to hold the said mead uuto the said John
Sammes and George Sammes, and their heirs and assigns, to the only
use and behoof of the said John Sammes and George Sammes, their
heirs and assigns forever : and by the same indenture Sir Thomas did
covenant with John and George, to make further assurance to John
and George, and their heirs, to the use of them and their heirs, and
liverj' and seisin was made and delivered, according to the true intent
of the said indentures, of the within mentioned premises to the uses
within mentioned.
John Sammes the father dieth, George Sammes his son and heir
being within age, the question was, "Whether George Sammes should
be in ward to the king or no? And in this case three points were
resolved : —
1. Forasmuch as George was not named in the premises, he cannot
take bj' the habendum; and the liverj- made according to the intent
of the indenture, doth not give any thing to George, because the inden-
ture as to him is void : but although the feoffment be good only to John
and his heirs, yet the use limited to the use of John and George, and
their heirs, is good.
2. If the estate had been conveyed to John and his heirs bj' the
release and confirmation, as it well maj' be to a tenant bj- copy of court-
roll, the use limited to them is good : for upon a release which creates
an estate, a use may be limited, or a rent reserved without question ;
but upon a release or confirmation, which enures by way of mitter le
droit, an use cannot be limited, or a rent reserved.
But the third was of greater doubt, if in this case the father and son
were joint-tenants, or tenants in common? For it was objected, when
the father is only enfeoffed to the onl^- use of him and his son, and their
512 SAMMES'S CASE.
heirs in the ^er, that in this case, they shall be tenants in common.
Hy the feoffment the father is in by the common law in the per, and
then the limitation of the use to him and his son, and to their heirs,
cannot divest the estate, which was vested in him b}- the common law,
out of him, and vest the estate in him in the post by force of the Stat-
ute, according to the limitation of the use ; and therefore as to one
moiety, the father shall be in hy force of the feoffment in the per, and
the son, as to the other moietj-, shall be in bj' force of the Statute,
according to the limitation of the use in ihe post, and bj- consequence
the}- shall be tenants in common. But it was answered and resolved,
that they were joint-tenants, and that the son in the case at bar should
have the said grange by the survivor : for if at the common law A. had
been enfeoffed to the use of him and B. and their heirs, although that
he was onlj- seised of the land, the use was jointlj- to A. and B. For
a use shall not be suspended or extinct bj- a sole seisin, or joint seisin
of the land : and therefore if A. and B. be enfeoffed to the use of A.
and his heirs, and A. dieth, the entire use shall descend to his heir :
as it appears in 13 H. 7, 6, in Stoner's Case: and hy the Statute of 27
H. 8, cap. 10, of Uses, it appeareth, that when several persons are
seised to the use of any of them, that the estate shall be executed
according to the use.
And as to that which was said, that the estate of the land which the
father hath in the land, as to the moiety of the use which he himself
hath, shall not be divested out of him : to that it was answered and
resolved, that that shall well be ; for if a man maketh a feoffment in fee
to one, to the use of him and the heirs of his body ; in this case, for the
benefit of the issue, the Statute according to the limitation of the uses,
divests the estate vested in him by the common law, and executes the
same in himself by force of the Statute ; and j'et the same is out of the
words of the Statute of 27 H. 8, which are, where any person, &c. stand
or be seised, &c. to the use of anj- other person ; and here he Is seised
to the use of himself: and the other clause is, where divers and many
persons, &c. be jointly seised, &c. to the use of anj'of them, &c. and in
this case A. is sole seised : but the Statute of 27 H. 8, hath been always
beneficially expounded, to satisfy the intention of the parties, which is
the direction of the use according to the rule of the law. So if a man,
seised of lands in fee-simple, by deed covenants with another, that he
and his heirs will stand seised of the same land, to the use of himself
and the heirs of his body, or unto the use of himself for life, the re-
mainder over in fee ; in that case, by the opei-ation of the Statute, the
estate which he hath at the common law is divested, and a new estate
vested in himself, according to the limitation of the use. And it is to
be known, that an use of land (which is but a pernancy of the profits)
is no new thing, but part of that which the owner of the land had ; and
therefore, if tenant in borough English, or a man seised of the part of
his mother, maketh a feoffment to another without consideration, the
younger son in the one case, and the heir on the part of the mother on
SAMMES'S CASE. 513
the other, shall have the use, as thej' should have the land itself, if no
feoffment had been made : as it is holden in 5 E. 4, 7 ; see 4 & 5 Phil.
& Mar., Byev, 163. So if a man maketh a feoffment unto the use of
another' in tail, and afterwards to the use of his right heirs, the feoffor
hath the reversion of the land in him ; for if the donee dieth without
issue, the law giveth the use, which was part of the land to him ; and
so it was resolved, Trinity, 31 Eliz. between Fenwick and Milford in
the King's Bench. So in 28 H. 8, Dyer 11, the Lord Basse's Case: a
man seised of one acre by priority, and of another acre by posteriority,
and make a feoffment in fee of both to his use : and it was adjudged,
that although both pass at one instant, yet the law shall make a priorit}'
of the uses, as if it were of the laud itself : which proves, that the use
is not any new thing, for then there should be no priority in the case.
See 13 h' 7, b, by Butler.
So in the case at bar, the use limited to the feoffee and another, is not
any new thing, but the pernancy of the old profits of the land, which
well may be limited to the feoffee and another jointly : but if the use
had been onh- limited to the feoffee and his heirs, there, because there
is not any limitation to another person, nee in presently nee in future,
he shall be in hy force of the feoffment.
And it was resolved, that joint-tenants might be seised to an use,
although that thej' come to it at several times : as, if a man maketh a
feoffment in fee to the use of himself, and to such a woman, which he
shall after marry, for term of their lives, or in tail, or in fee ; in this
case, if after he marrieth a wife, she shall take jointly with him, although
that they take the use at several times, for they derive the use out of the
same fountain and freehold, sc. the first feoffment. See 1 7 EL, Dj-er, 340.
So if a disseisin be had to the use of two, and one of them agreeth at one
time, and the other at another time, they shall be joint-tenants ; but
otherwise it is of estates which pass by the common law : and therefore,
if a grant be made by deed to one man for term for life, the remainder
to the right heirs of A. and B. in fee, and A. hath issue and dieth, and
afterwards B. hath issue and dieth, and then the tenant for life dieth ;
in that case the heirs of A. and B. are not joint-tenants, nor shall join
in a Soire facias to execute the fine, 24 E. 3, Joinder in Action 10,
because that although the remainder be limited by one fine, and by
joint words, yet because that by the death of A. the remainder as to
the moiety, vested in his heir, and by the death of B. the other moiety
vested in his heir at several times, they cannot be joint-tenants : but in
the case of a use, the husband taketh all the use in the mean time ; and
when he marrieth, the wife takes it by force of the feoffment and the
limitation of the use jointly with him, for there is not &x\y fraction and
several vesting by parcels, as in the other case, and such is the differ-
ence. See 18 E. 3, 28. And upon the whole matter it was resolved,
that because in the principal case the father and son were joint-tenants
by the original purchase, that the son having the land by survivor,
should not be in ward : and accordingly it was so decreed.
33
514 COOPER V. FKANKLIN.
COOPER V. FRANKLIN,
King's Bench. 1616.
[Eeported Cro. Jac. 400.]
Ejectment. Upon a special verdict, for lands in Phelpham, the case
was, John Walter was seised of those lands in fee, and made a feoff-
ment of them to Thomas Walter, habendum to liim and his heirs of his'
body, to the use of him and his heirs and assigns for ever. The ques-
tion was. Whether Thomas Walter had an estate in fee tail only, or in
fee determinable upon the estate tail?
First, Whether a use may be limited upon an estate tail at the com-
mon law, or at this day after the Statute of 27 Hen. 8, c. 10, of
Uses.
Secondly, Whether this limitation of uses to him and his heirs shall
not be intended the same uses, being to the feoffee himself, and to the
same heirs, as it is in the habendum ? Qucere, quia non adjudicatur.
But the opinion of the court upon the argument inclined, that he
was tenant in tail ; and the limitation of the use out of the tail is void
as well after the statute as before ; for the Statute never intended to
execute any use, but that which ma}- be lawfull}' compelled to be exe-
cuted before the Statute ; but this cannot be of an estate tail ; for the
Chancer}- could not compel him at the common law to execute the
estate ; and so the Statute doth not execute it at this daj'. Vide
27 Hen. 8, pi. 2 ; 24 Hen. 8, pi. 62 ; " Feoffments al Uses," 41. M
adjournatur}
Co. Lit. 22 b. If a man make a feoffment in fee to the use of him-
self in tail, and after to the use of the feoffee in fee, the feoflfee hath no
reversion, but in nature of a remainder, albeit the feoffor have the
estate tail executed in him by the Statute, and the feoffee is in by the
common law, which is worthy of observation.''
1 s. c. 3 Bulst. 184. See 1 Sand. Uses (5th ed.) 87, 88.
2 " This has been taken for an assertion that the feoffee is ultimately in by the
common law fsee 5 Bac. Ab. 728) ; but it may bear a very different meaning. The
point to which Lord Coke directs the reader's observation is, that though the feoffee is
in the first instance in by the common law (as he must be bj' force of the livery
made to him), and the Statute afterwards comes and takes out of him a particular es-
tate which it gives to the feoffor, yet the feoffee has not a reversion, but a remainder.
Now it is cert.ain that if the same person who is here described as feoffee (and whom
we may call A.) had been seised in fee, and had given an estate tail to B. by bargain
and sale, though that estate tail would have received its legal essence from a similar
operation of the Statute, yet A. would have had a reversion, and not a remainder. It
is therefore necessary to account for the difference ; and this, it is submitted, cannot
■be better effected than by the interpretation, that though A. is in the first place in of
MEREDITH V. JOANS. 615
MEREDITH v. JOANS.
King's Bench. 1630.
[Reported Cro. Car. 244.]
Error of a judgment in Flintshire. The error was assigned in point
of law, viz. : That judgment was given there upon a special verdict for
the plaintiff, where it ought to haye been for the defendant. The case
was, land was given to husband and wife, habendum to husband and
wife to the use of them and the heirs of their bodies. The question
there was, "Whether it were an estate for life onlj-, or an estate tail ?
And it was adjudged to be an estate tail.
Littleton., Recorder of London, now argued for the plaintiff in the
writ of error, and Calthrop for the defendant.
And all the Court, absente Richardson, held, that the judgment
ought to be affirmed ; for thej' conceived, that this limitation in the
habendum, "to the use of the grantees and the heirs of their bodies,"
is as a limitation of the land itself, being all to one person, and is as
if it had been said, '■'■habendum, to them and to the heirs of their
bodies ; '' and not like to the case 2 & 3 Eliz., Dj-er, 186 ; for true it is,
when the estate is limited to one or two, to the use of others and their
heirs, the first estate is not enlarged bj- this implication, and the use
cannot pass a greater estate. But here when the grant and habendum,
convej' the estate, and the limitation of the use is to the same person,
that shows the intent of the parties, and is a good limitation of the
estate ; for it is not an use divided from the estate, as where it is lim-
ited to a stranger, but the use and estate go together ; wherefore it is
all one as if the limitation had been ''to them and the heirs of their
bodies." And Jones said, that he knew many conveyances had been
made in this manner, and twice brought in question, and adjudged to
be an estate tail. "Whereupon judgment was affirmed.
the whole fee simple by the common law, he is immediately afterwards in of a re-
mainder hy the Statute. And this interpretation agrees with the language of the ease
in Dyer, 362 b, cited by Lord Coke in the margin, where the objection suggested is not
that- the feoffee 'is in by the common law,' but that 'the fee simple first passed to
him.'" Burt. Keal Prop. (6th ed.) § 160, note.
516 DOE d. LLOYD V. PASSINGHAM.
DOE d. LLOYD v. PASSINGHAM.
King's Bench. 1827.
[Reported 6 £. <Si 0. 305.]
Ejectment for lands in the county of Merioneth. Plea, the general
issue. At the trial before Burroughs J., at the last summer assizes for ,
Salop, it appeared that the lessor of the plaintiff claimed as devisee in
tail under the will of Catherine Llo3d, who was co-heiress, with her
sister Marj-, of Giwn Lloyd, who died in 1774. In 1746, l\v indenture
made between himself, G. Lloyd, of the first part, Sarah Hill of the
second part. Sir Rowland Hill and John Wynne of the third part, and
Sir Watkin Williams Wj'nne and Edward Lloyd of the fourth part ; in
consideration of an intended marriage with the said Sarah Hill, and of
a sum of £8,000, being the marriage portion of the said Sarah Hill,
paid or secyred to be paid to him Giwn Lloj'd, he, Giwn Lloyd, did
grant, release, and confirm unto the said Sir Watkin WiUiams Wynne
and Edward Lloyd in their actual possession then being, by virtue of
an indenture of bargain and sale, &c., and to their heirs and assigns,
certain premises therein particularly described, and, amongst others,
the premises in question ; to have and to hold the said premises with
their appurtenances, unto the said Sir Watkin Williams Wj-nne and
Edward Lloyd, their heirs and assigns ; to the only proper use and
behoof of them the said Sir Watkin Williams Wynne and Edward
Lloyd, their heirs and assigns for ever, upon trust, nevertheless, and
subject to the several uses, intents, and purposes thereinafter men-
tioned, that is to say, to the use of the said Giwn Lloyd and his heirs
until the said intended marriage should take effect, and from and after
the solemnization of the said intended marriage, then to the use and
behoof of Giwn Lloyd and Sarah his intended wife, and their assigns,
for and during the term of their natural lives, and the longer liver of
them, as and for her jointure and in lieu and full satisfaction of dower ;
and from and after the decease of such survivor to the use of Sir
Eowland Hill and John Wynne, their executors, administrators, and
assigns, for the term of one thousand 3-ears, to and for the several
intents and purposes thereinafter mentioned ; and from and after the
expiration or other sooner determination of that estate, to the use and
behoof of the first son of the body of the said Giwn Llo^'d on the body
of the said Sarah Hill, his intended wife, lawfully to be begotten, and
the heirs male of the body of such first son lawfully issuing ; and for
default of such issue, to the use and behoof of the second son in like
manner, and then to the daughters ; and for default of such issue, to
the use and behoof of the said Giwn Lloyd, his heirs and assigns for
ever. And it was thereby declared and agreed by and between all and
DOE d. LLOYD V. PASSINGHAM. 517
every the said parties to the said indenture, that the term of one thou-
sand jears thereinbefore limited to Sir Rowland Hill and John Wynne,
was upon trust that they did and should immediately after the decease
of Giwn Lloyd, by sale or mortgage of the whole or anj- part thereof,
raise the sum of £3,000 to be paid and applied in manner thereinafter
mentioned. And it was thereby declared and agreed by and between
the parties to the said indenture that a sum of £4,000 of the said sum
of £8,000 should immediately after the solemnization of the said
intended marriage be paid into the hands of them the said Sir Rowland
Hill and John Wynne, upon trust that the same should be paid, laid
out, and applied by them with all convenient speed in the purchase of
freehold lands, tenements, or hereditaments in fee simple, in the county
of Merioneth aforesaid or elsewhere in the principalit}' of Wales, or in
that part of Great Britain called England, with the approbation of
them the said Giwn Llo3-d and Sarah Hill, his intended wife, or the
survivor of them, testified by any deed or writing under the hands and
seals of them the said Giwn Lloyd and Sarah Hill, and the survivor of
them, duly executed in the presence of two or more credible wit-
nesses ; and that the said lands, tenements, and hereditaments, when so
purchased, and every part and parcel thereof, with their appurtenances,
should be conveyed to them the said Sir Watkin Williams Wynne and
Edward Lloyd, and their heirs, and to the survivor of them and his
heirs, to and for the use and behoof of the several persons, and for
such estate and estates as the premises thereinbefore mentioned, and
thereby granted and .released by the said Giwn Lloyd, were conveyed,
settled, limited, and appointed. And it was thereby also further
declared and agreed that in case there should be no issue of the said
intended marriage, and that the said Sarah Hill should be minded by
her last will and testament to give or devise any sum not exceeding
£4,000, or the estate thereby intended to be purchased therewith, or
anj- part thereof as aforesaid, to any person or persons whatsoever, it
should be lawful to and for her the said Sarah Hill, notwithstanding her
coverture, to give and devise the same, or any part thereof, to such per-
son or persons, and to and for such estate and estates, and such uses,
intents, and purposes, as she should limit, direct and appoint ; and in
such case they the said Sir Watkin Williams Wynne and Edward
Lloyd should stand seised of all and every the lands, tenements, and
hereditaments so to be purchased as aforesaid, to them and their heirs,
to and for such uses, intents, and purposes, as she the said Sarah Hill
should, by such her last will, limit, direct, and appoint ; and then and
from thenceforth all and every the uses and limitations to the said
Giwn Lloyd and his heirs, of and concerning the said lands, tenements,
and hereditaments to be purchased as aforesaid, should cease, deter-
mine, and be absolutely void, to all intents and purposes whatsoever.
Giwn Lloyd died in 1774, and Sarah his wife in 1782, intestate, and
without having had any issue. Catherine Lloyd, the testatrix, continued
in possession of the estate from the death of Sarah Lloyd until the time
518 DOE d. LLOYD V. PASSINGHAM.
of her own death, in 1787. For the defendants, it was contended, that
the legal estate was vested in Sir W. W. Wynne and Edward Lloj-d,
bj- the deed of 1746, and, consequently, that neither Giwn Llojd nor
the testatrix had any legal estate ; and, therefore, the lessor of the
plaintiff could not derive any such estate from her. The learned judge
reserved the point, and the plaintiff having obtained a verdict, a rule
nisi for entering a nonsuit was granted in Michaelmas term.
Taunton, Campbell, and Richards now showed cause.
Shadwell, Oldnall Russell, and E. V. Williams contra.
Baylet, J. I am of opinion that we ought not to make the rule
absolute for entering a nonsuit, but that there should be a new trial in
this case. Considering the length of time that has elapsed since the
purposes of the settlement made by Giwn Lloyd were at an end, I
think the question as to presuming a reconvej-ance of the legal estate
ought to be submitted to a jurj-. The first point for our consideration
is upon the construction of the settlement ; for if it vested the legal
estate in the trustees, then the lessor of the plaintiff had not the legal
estate unless there had been a reconvej-ance. The limitation is to Sir
W. W. Wj-nne and E. Lloj'd, and to their heirs and assigns, habendum
to them their heirs and assigns, to the only proper use and behoof of
them their heirs and assigns upon certain trusts. I felt upon first read-
ing it, that this was in a very singular form, and it appeared to me that
the words " to the use and behoof of them their heirs and assigns," had
been introduced bj' an accidental mistake, but I now think that they
were introduced by design, but through ignorance. It is certainly' sin-
gular that Giwn Lloyd should part with the legal estate immediately' on
the execution of the settlement, and that he and his wife should only
be equitable tenants for life. It is also singular that the term created
for the purpose of raising portions should be a mere equitable term,
and that the lands to be purchased with the £4,000 should be limited in
such a manner as to leave it doubtful whether or no the cestui que trust
would take the legal estate. That would not necessarily be the case,
for the direction, that the estate purchased should be limited " for such
estate and estates " as the other premises, might mean for equitable
estates ; and, therefore, this is not absolutelj' inconsistent with the idea
that the trustees were to take the legal estate. And on the other hand,
the power which Giwn Lloj'd and his wife would have had to defeat all
the contingent limitations, if the trustees did not take the legal estate,
shows so strong a purpose to be answered by construing the deed
according to the strict legal operation of the language used that I think
we are not at libertj' to put an}' other construction upon the words than
that which they usual!}' bear. Now, ever since I have belonged to the
profession of the law, I have invariably understood that an use cannot
be limited upon an use. That is admitted to be so in general, but a
distinction has been taken where the limitation is to A., to the use of
A. in trust for B., and it is said that then A. is in by the common law.
That is true ; but he is in of the estate clothed with the use, which is
DOE d. LLOYD V. PASSINGHAM. 519
not extinguished, but remains in him. In the case of Meredith v.
Joans, cited in argument to show that where an estate is limited to A.,
to the use of A., he is in hy the common law, it is said, " for it is not
an use divided from the estate, as where it is limited to a stranger, but
the use and the estate go together." That ease therefore shows, that
although the trustees in this case might be in by the common law, yet
the}- were in both of the estate and the use. There are two cases
expressly in point. Lady Whetstone v. Bury [2 P. Wms. 146] is
a very clear case, and the words used were precisely the same as those
found in the deed in question, and it was there decided, and also in
The Attorney General v. Scott [Cas. temp. Talb. 138], which came
before Lord Talbot, one of the greatest real property lawyers that ever
filled the office of Lord Chancellor, that the legal estate vests in him to
whom by the words of the instrument the use is limited. Upon the
authority of these two cases, I am of opinion that the use of the estate
in question was executed in the trustees. Then, upon the other ques-
tion, there is certainly some ground for presuming a reconveyance ; but,
on the one hand, I think the court would be going a great deal too far
were they to make such a presumption, and, on the other, I think the
lessor of the plaintiff ought to have an opportunity ofi submitting that
point to a jury. The rule should, therefore, be made absolute for a
new trial.
HoLROTD, J. I agree with my Brother Bayley, that in this case
there ought to be a new trial. Upon the first perusal of the deed in
question I had no doubt that the legal estate was vested in the trus-
tees, having always understood that an use cannot be limited upon an
use ; and although I was struck by the ingenuity of the distinction
pointed out bj- Mr. Taunton, yet upon further consideration it appears
to me that his argument does not warrant it. The argument is, that as
the trustees did not in the first instance take to the use of another, but
of themselves, they were in by the common law, and not the Statute ;
that the first use was, therefore, of no effect, and the case was to be
considered as if the deed had merely contained the second limitation
to uses. But that is not so ; for although it be true that the trustees
take the seisin by the common law, and not bj' the Statute yet tliej'
take that seisin to the use of themselves, and not to the use of another,
in which case alone the use is executed by the Statute. They are,
therefore, seised in trust for another, and the legal estate remains in
them. As to the question of intention, even if it were intended that
the deed should operate in a different mode from that pointed out
by the law, when the legal estate is given to trustees that intention
cannot countervail the law. But the intention appears to me altogether
doubtful ; the absence of trustees to preserve contingent remainders
affording a strong reason for supposing that the parties meant to give
the legal estate to the trustees.
LiTTLEDALE, J. I am entirely of the same opinion. It is said that
by the construction now put upon the deed the intent of the parties will
520 PEACOCK V. EASTLAKD.
be defeated. If we were not construing a deed, I should feel disposed
to give a liberal effect to the intention, but if all matters of convenience
and inconvenience which raise a presumption of intention are to be
taken into consideration, as affording rules for the construction of
deeds, and are to have the effect of overruling the plain words of sucli
instruments, the law will very soon be thrown into utter confusion.
Here, however, there is a balance of inconveniences, and therefore we
may come at once to the legal construction of the settlement. I never
entertained a doubt that a second series of uses could not be executed.
It is true that certain cases show these trustees to have talien the
estate by the common law, but they took it coupled with the use. The
cases cited upon this point are perfectly clear, and they are well
collected in a note, by Serjeant Williams, to Jefferson v. Morton, 2
Saund. 11, n. 17. However, for the reasons given, I think that ihere
ought not to be a nonsuit, but a new trial.
Hule absolute for a 7iew trial.
PEACOCK V. EASTLAND.
Chancery. 1870.
[Reported L. R. 10 Eq. 17.]
This was a suit by vendors for specific performance, the question of
title which was raised on the face of the bill being whether, in the cir-
cumstances of the case, an estate tail vested in their testator had been
barred.
By an indenture dated the 15th day of November, 1866, M. P. Moore,
who was tenant in tail in possession of a share in certain real estates,
granted to E. Moore and J. H. Marsden and their heirs the share in
question, to hold the same to them and their heirs, freed and discharged
from all estates tail of M. P. Moore, and all remainders, &c., to take
effect after the determmation or in defeasance of such estates tail or
anj- of them, to the use of E. Moore and J. H. Marsden, their heirs
and assigns, upon trust to sell the same in manner therein mentioned,
and stand possessed of the proceeds in trust for M. P. Moore the
grantor, his executors, administrators, and assigns.
This deed was duly enrolled as a disentailing assurance, but was not
executed by either of the grantees.
M. P. Moore died on the 25th of November, 1866, having previously
made his will, dated 18th of August, 1866, by which he gave all his
real and personal estate (except estates vested in him as a trustee or
mortgagee) to the plaintiff, Sophia Peacock, absolutely, and appointed
her and the plaintiff H. Peake his executors, and devised to them all
estates vested in him as trustee or mortgagee
By a deed-poll dated the 9th of April, 1867, under the hands and
seals of E. Moore and J. H. Marsden, reciting the indenture of the 15th
PEACOCK V. EASTLAND. 521
of November, 1866, and reciting that E. Moore and J. H. Marsden
never executed the same indenture, nor had the}-, or either of them,
ever accepted or acted in the trusts reposed in them by the same inden-
ture, but, on the contrary, they had wholly declined to act therein, and
were desirous to make and execute the disclaimer in the now stating
deed-poll contained, it was witnessed that they, E. Moore and J. H.
Marsden, had renounced and disclaimed all the messuages, &c., by the
said indenture granted or otherwise assured or expressed or intended
so to be, with their and ever}- of their appurtenances, and all the estate,
right, title, interest, inheritance, uses, trusts, powers, and authorities
whatsoever bj- the said indenture expressed to be given or declared to
or concerning the said E. Moore and J. H. Marsden or either of them.
The defendants who had agreed to purchase from the plaintiffs, S.
Peacock and H. Peake, the testator's share in part of the propertj-, his
one fourth of which was comprised in the deed of the 15th of Novem-
ber, 1866, took the objection that this deed was wholly defeated by the
disclaimer, and was inoperative as a disentailing assurance, in which
case it was admitted that the plaintiffs could not make a title.
Mr. Jessel, Q. C, and Mr. H. C adman Jones, for the plaintiffs.
E. Moore and Marsden were parties to the deed of November, 1866,
in two capacities : as grantees to uses, and as cestuis que use. They
could disclaim the use, but we saj- that thej" could not disclaim the in-
stantaneous seisin which they took as releasees to uses : Hanbury Jones
on Uses, p. 99 ; Cruise, Dig., 4th ed., vol. iv. p. 131 ; Gorton's Case,
2 Roll. Abr. 787 ; Sug. Gilb. on Uses, p. 224, n. 2 ; Sugden on Powers,
8th ed., preface, and p. 11 ; Sanders' Uses and Trusts, 5th ed., p. 85,
n. 2 ; Bacon, Law Tracts, p. 348. This is in accordance not only with
convenience, but with technical rules ; for the legal estate passed at
once to the grantees to uses without their assenting: Thompson v.
Leach, 2 Vent. 198 ; Sheppard's Touchstone, p. 285. It has passed
through them, and served the use, which if defeated by the disclaimer
must be defeated by relation ; but the doctrine of relation, which is only
applied ' ' of necessitj'," ut res magis valeat quam pereat, or "to ad-
vance a right " (Sutler and Baker's Case, 3 Rep. 28 b, MenviVs Case,
13 Rep. 19), cannot be applied in such a case. The use, therefore, on
the disclaimer, resulted to the settlor in fee.
Then, further, we contend that, on the construction of the disclaimer,
there was no intention to disclaim the seisin, but only the use. If the
court be against us on both points, we say that still this was a good
disentailing assurance within the terms of 3 & 4 Will. 4, c. 74, § 40,
as being an assurance by which the tenant in tail '' could have made
the dispositions." It is, moreover, a disposition in equity by reason of
the declaration of trust.
Mr. Charles Hall, for the defendants.
The question whether a releasee to uses can disclaim a momentary
seisin does not arise in the present case ; for though the plaintiff's case
has been argued as if it depended upon the Statute of Uses, the deed
522 PEACOCK V. EASTLAND.
of the 15th of Maj-, 1866, was in realitj- a simple common law grant, the
grantees being the same persons as those who are to have the use ; so
that it is to be construed in the same way as it would have been before
the Statute of Uses : Cases and Opinions, vol. ii. p. 281 ; Jenlcins v.
Young, Cro. Car. 230 ; Hayes' Convej-ancing, vol. 1. p. 460 ; Doe v.
Passingham, 6 B. & C. 305 ; and Gorman v. Syrne, 8 Ir. C. L. Eep.
394. On these authorities I contend that the deed would operate as
a common law grant : and the estate of tlie grantees cannot be affected
bj'the trust for sale, for that creates an equity to which this court could
give effect, but it cannot alter the legal estate.
This being so, the question arises as to the effect of the disclaimer
by the grantees. It has been contended that a disclaimer cannot relate
back.
, In Butler and Baker's Case, if it is an authority at all for the pres-
ent purpose, the dicta are in favor of the defendant's contention ; and
the same may be said of JHfenvU's Case, 13 Rep. 19, 21. Thompson
V. Leach, 2 Vent. 198, only decided that the presumption is in favor of
an estate being in the grantee until the contrary is shown.,
The effect of disclaimer is clearly stated in Sheppard's Touchstone,
p. 285, where it is said : " The law presumes that every grant is for the
benefit of the grantee, and therefore, till the contrarj- is shown, sup-
poses an agreement to the grant. From the moment there is evidence
of disagreement, then, in construction of law, the gi-ant is void ab
initio, as if no grant had been made."
The disclaimer, therefore, by E. Moore and J. H. Marsden was of a
common law estate, and its effect was to make the grant to them void
ah initio : Townson v. Tickell, 3 B. & A. 31. This being so, the deed
is inoperative as a disentailing assurance.
Mr. Jessel, in reply.
LoED RoMiLLY, M. R., after stating the facts, continued: I am of
opinion that the disentailing deed of the 15th of November, 1866,
had no operation. It does not appear to me to be a question aris-
ing on the Statute of Uses, or that the doctrine of scintilla juris, as
was first argued before me, arises. That question, which was so much
and so eagerly discussed by Lord St. Leonards, I had always supposed
to be settled by the Statute passed at the instance of his lordship for
that purpose (23 & 24 Vict. c. 38, § 7). I think the objection made
by Mr. Charles Hall is a just one, that the deed on which this question
arises, if it is correctly set forth in the bill, is a common law deed,
operating by grant, and not by the Statute of Uses, under which alone
could the question arise of whether a releasee to uses can disclaim the
momentary seisin which vests before disclaimer.
The real question seems to me to be this : Whether, by grant at com-
mon law, any man can confer upon another, against his will and with-
out his consent, any estate whatever in any property ? Consequentl}',
in my opinion, all the cases which refer to the releasee to uses being a
mere conduit-pipe, have no application to this case. The releasee to
PEACOCK V. EASTLAND. 523
uses is a mere conduit-pipe, because the essence of a conveyance
under the Statute of Uses is to give the property to one for the use
of another.
In the case of Thompson v. Zeach, 2 Vent. 198, it was expressly
held that the estate surrendered did not pass to the surrenderee unless
he accepted it. The only difference that existed between the judges
was this : that Mr. Justice Ventris, admitting that principle, thought
that in the absence of evidence acceptance must be implied, because it
must be supposed to be for the benefit of the surrenderee to accept, and
that, therefore, his assent must be implied. But in this instance no
question arises from the absence of evidence ; it is a grant of the prop-
erty to E. Moore and J. H. Marsden. their heirs and assigns, and they
have both disclaimed and renounced all interest ; consequently the case
of I'ownson v. Tickell, 3 B. & A. 31, which is conclusive against any
estate being vested in a man against his consent, applies.
Lord Tenterden, in Townson v. Tickell, 3 B. & A. 36, said: "The
law certainl3- is not so absurd as to force a man to take an estate
against his will. Prima facie, every estate, whether given by will or
otherwise, is supposed to be beneficial to the party to whom it is so
given. Of that, however, he is the best judge ; and if it turn out that
the party to whom the gift is made does not consider it beneficial, the
law will certainly-, by some mode or other, allow him to renounce or
refuse the gift."
All the cases to which I have been referred relate to conveyances
under the Statute of Uses, which, as I have already stated, appear to
me to have no application to this case. The question then resolves
itself into this : Does the deed, which gave no estate or interest to any
one, bar the estate tail of M. P. Moore under the Statute of Fines and
Recoveries for this purpose? I Qave examined the Act for the aboli-
tion of fines and recoveries very carefully, and I cannot find any clause
or provision which enables any one to bar an estate tail by a deed which
conveys no estate to any one, and is in fact merelj' the expression of a
desire on the part of the tenant in tail to make another a trustee for the
sale of the estate, if he would consent, which he has not done. I am
of opinion, therefore, that a good title cannot be shown to the undivided
one fourth part, which belongs to M. P. Moore.
524 okme's case.
OKME'S CASE.
Common Pleas. 1872.
[Beported L. R. 8 C P. 281.]
Appeal from the revising barrister for the Southeastern Division
of the County of Lancaster.
Kobert Byron Orme, on the list of claimants, was objected to.
The claim was in respect of " one-third share of rent-charge issuing
from freehold land and buildings ; " and in the fourth column " William
Orrae " was named as " owner."
By an indenture dated the 13th of October, 1871, and made between
William Orme of the one part, and Robert Byron Orme, Enoch Law-
ton, and James Kerfoot of the other part, W. Orme, being seised in
fee simple in possession of certain lands, messuages, and hereditaments
in Ashton-under-Lyne, granted unto R. B. Orme, Lawton, and Ker-
foot, and their heirs, one perpetual yearly rent-charge of £9, to be
payable, clear of all deductions (except property- or income-tax), by
equal half-yearly payments, on the 6th of April and 5th of October in
each year, and the first pa3-ment to be due on the 5th of April then
next, and to be issuing from and out of and charged and chargeable upon
the said lands, messuages, and hereditaments. To hold the said rent-
charge unto the said R. B. Orme, Lawton, and Kerfoot, their heirs and
assigns, to the use of the said R. B. Orme, Lawton, and Kerfoot, their
heirs and assigns for ever, as tenants in common, and in equal shares.
There was a covenant by William Orme with R. B. Orme, Lawton,
and Kerfoot, to pay the rent-charge at the times and in manner ap-
pointed for payment thereof, and a power of distress over the lands,
&c., in case of non-payment.
The moiety of the rent-charge of £9 due on the 6th of April, 1872,
was paid by William Orme to and equally divided between the said
R. B. Orme, Lawton, and Kerfoot.
It was contended by the objector that R. B. Orme had not been in
the actual possession of the rent-charge for six calendar months pre-
vious to the last day of July^ 1872, as required by the 2 Wm. 4, c. 45,
§ 26
It was contended by the party objected to, upon the authority of
Seelis v. Blain, IS C. B. (N. S.) 90; 34 L. J. (C. P.) 88, that the
Statute of Uses, 27 Hen. 8, c. 10, operated to give to the grantees the
actual possession of the rent-charge on the execution of the indenture.
The revising barrister, upon the authority of that case, held that the
claim was good.
Herschell, Q. C, for the appellant.
John W. Mellor {Kenelm Dighy with him), for the respondents.
orme's case. 525
BoviLL, C. J. In this case, Robert Byron Orme claimed to be put
on the list of voters for the southeastern division of the count}' of Lan-
caster in respect of his right and interest in a " freehold rent-charge "
Objection was taken to the claim on the ground that the claimant had
not been in the actual possession of the rent-charge for six months,
within the terms of § 26 of the Reform Act, 2 Wm. 4, c. 45. Upon the
facts stated bj- the revising barrister, it is clear that he had not been
during the prescribed period in the actual perception or receipt of the
rent. In two cases before this court it has been decided that, to
entitle a person to be registered in respect of a rent-charge, he must
have been in actual possession, in the sense in which those words
" actual possession " are ordinarily understood. The first of these was
Murray v. Thorniley, 2 C. B. 217 ; 15 L. J. (C. P.) 155, where, after
much consideration, the court unanimously came to the decision that
that was the proper construction of the Statute as applied to rent-
charges. The same point arose again in Hayden v. Twerton, 4 C. B. 1 ;
16 L. J. (C. P.) 88. In that case the pai-ty claiming to be registered
was the, assignee of a rent-charge. The matter was again carefully
considered, and the court held that the case was governed bj- the
decision in Murray v. Thorniley. It is true that Maule, J., in giving
judgment there, did refer to some of the grounds upon which the previ-
ous decision was founded, an4 stated that he was not prepared to say
that he should have come to the same conclusion as the court came to
in that case ; but he concurred with the rest of the court in confirming
the principle on which it was decided.
Now, after those two decisions, I think it is hopeless for the respond-
ents in this case to contend that we are not bound by what has been
treated as the law ever since the year 1846 ; viz., that the possession
of a rent-charge, to satisfy the Reform Act, must be a possession in
fact.
The question afterwards arose in a different form. In Heelis v.
Blain, 18 C. B. (N. S.) 90; 34 L.J. (C. P.) 88, a new view of the
matter was suggested, viz., that when the grant of the rent-charge did
not take etfect at common law, but by the Statute of Uses, 27 Hen. 8,
c. 10, the Statute executed the use in possession; and so the grantee
became at once in actual possession. The case was argued entirely
upon that footing. The rent-charge there undoubtedly came within
the Statute, and it was held that the person to whose use the grantee
was seised was by the effect of the Statute of Uses to be deemed to be
in possession of the rent-charge so as to satisfy the words "actual
possession " in § 26 of the Reform Act. So far from dissenting from
the previous cases of Murray y. Thorniley, and Hayden v. Tioerton,
the court expressl}' adopt them, and hold that the possession to satisfy
§ 26 must be an actual possession ; but they came to the conclusion
that the claimant in the case then before them was to be deemed to
have been in such actual possession by the operation of the Statute
of Uses.
526 okme's case.
Assuming these cases to have been correcth' decided, there are, then,
two classes of cases, — one, where the grant of the rent-charge takes
effect at common law, in which case the grantee or assignee must have
been in the actual possession by receipt of the rent in order to be enti-
tled to be registered ; the other, where the grant of the rent-charge
operates by virtue of the Statute of Uses, in which case it has been held
ibat the cestui que use is at once to be deemed in actual possession,
within the meaning of the Reform Act. That brings us to the question
whether the grant of the rent-charge in the case now before us operates
at couunon law or under the Statute of Uses. The subject is one of
interest to conveyancers, and one which maj' have a material effect on
titles, and therefore we thought it right to adjourn the argument in
order to give counsel an opportunity to look more fullj' into the author-
ities. The matter has now been very aXAy argued, and the points have
been verj' clearlj- put.
Our first duty is to ascertain what is the true legal effect of the limi-
tations in the deed granting this rent-charge. It commences by grant-
ing to Orme, LSwton, and Kerfoot a perpetual yearly rent-charge of
£9. If it had stopped there, that would have been a grant to the three
as joint-tenants. The deed, liowever, proceeds, in the habendum, " to
hold the said rent-charge unto Orme, Lawton, and Kerfoot, their heirs
and assigns, to the use of the said Orme, Lawton, and Kerfoot, their
heirs and assigns for ever, as tenants in common, and in equal shares."
If the terms of the habendum be divided, there would be a grant to the
three peisons as joint-tenants, and a limitation of the use to them as
tenants in common. Now, is the deed to be so read? or is the whole
to be read together for the purpose of ascertaining what is the true
limitat.ion? The office of the habendum, according to 1 Sheppard's
Touchstone, p. 101, is to determine the effect of the deed, and it should
" be construed as near the intent of the parties as may be." In order
to ascertain the intention of the parties, it is necessarj' that the whole
deed should be looked at ; and, if that be done in the pi-esent case,
there can be no doubt that the intention of the parties was that the
grant of the rent-chai'ge should be to the three as tenants in common.
That the rule is as I have stated, there are many instances in the books
to prove. In Co. Lit. 183 b, it is said : " If a lease be made to two,
habendum to the one for life, the remainder to the other for life, this
doth alter the general intendment of the premises ; and so hath it been
oftentimes resolved. And so it is if a lease be made to two, habendum
the one moiety to the one, and the other moiety to the other, the
habendum doth make them tenants in common ; and so one part of
the deed doth explain the other, and no repugnancj- between them,
et sem/per expressum, facit cessare taciturn,." Many other instances,
which it is unnecessarj' to go through in detail, are to be found in
Viner's Abridgment, Grant (I. a.), pi. 3, and Sheppard's Touchstone,
pp. 101-6.
Now, in order to show what is the true effect of a deed of this
orme's case. 527
description, several anttiorities have been referred to; and, amongst
those cited on the part of the respondents, was the case of Jenkins v.
Young, Cro. Car. 230, more fuUj- reported under the name of Mere-
dith V. Joans, Cro. Car. 244. That case is thus stated in Sanders on
Uses, p. 91 : " M. gave his land to E. E. and his wife, habendum to
the said baron and feme, to the use of them and the heirs of their two
bodies, and, for want of such issue, remainder to E. M. and his heirs :
the question was whether the baron and feme had an estate-tail or an
estate for their lives only. It was argued that the estate out of which
the use should arise was an estate for their lives, and tlie use could not
make tbe estate larger than the limitation of the seisin ; but the judges
conceived that there was a difference where an estate was limited to
one and the use to a stranger, for there the use should not be more
than the estate out of which it was derived ; but not when the limita-
tion was to two, habendum to them, to the use of them and the heirs
of their bodies, for this was no limitation of the use, nor was it exe-
cuted hy the Statute, but it was a limitation of the estate to them and
the heirs of their bodies by the course of the common law." That case
is also important as showing that we must look at the whole of the
liabendum, to see what was the intention of the parties. So construing
it, it was held to be not a limitation of the use, but a limitation of the
estate which took effect bj' the common law. It is extremely difficult,
if this be the right view of that case, to distinguish it in principle from
the present. In that sense it is that the case is adopted by Mr. Booth
in the Collection of Cases and Opinions, vol. 2, p. 291, edit, by Sug-
den. That learned author very clearly explains that the use must be
derived out of the seisin of some third person. The case is referred to
by Sanders without disapprobation ; as also by Mr. Butler in his Xotos
to Co. Lit. 271 b, and in Watkins on Conveyancing, p. 245 ; and it
has been acted upon as law by conveyancers for a long series of years.
Is there, then, any reason why we should not adopt the same view in
construing the limitation of the rent-charge in the present case? If we
were to do otherwise, the result would be a repugnancy between one
part of the deed and another part, because then, in the one part the
limitation would be to the three persons as joint tenants, and in the
other part it would be to them as tenants in common, which clearly
would not be carrj-ing out the intention of the parties. The rule was,
shortly after the passing of the Statute, thus laid down by Bacon, in his
Reading upon the Statute of Uses, p. 65, edit, of 1806: " Tlie whole
scope of the Statute was to remit the common law, and never to inter-
meddle where the common law executed an estate ; therefore, the Stat-
ute ought to be expounded that, where the party seised to the use and
the cestui que tise is one person, he never taketh by tbe Statute, except
there be a direct impossibility or impertinency for the use tc> take effect
bj- the common law."
Suppose the question had arisen here, without reference to the Stat-
ute of Uses, as to what was the true construction of the limitation.
628 oeme's case.
could an}- one have doubted that the object and effect of the deed were
that the three persons named should take the rent-charge as tenants in
common ? If so, the Statute of Uses cannot alter the common law con-
struction of the deed. The case of Doe v. Prestwidge, 4 M. & S. 178,
has also an important bearing upon this question, as showing that the
whole limitation in the habendum is to be taken together, and a rational
interpretation to be put upon it. There, the limitation was to Thomas
and Henry and their heirs, habendum to them, their heirs and assigns,
as tenants in common, and not as joint-tenants, to the onlj- proper and
absolute use and behoof of them, their heirs and assigns for ever.
There was, therefore, a difference between the two parts of the
habendum, the limitation of the use being such as to create a joint-
tenancy. The matter was argued, and further time was given to
Reader, the counsel for the plaintiff, to consider it ; and upon a subse-
quent day, "he admitted that Thomas and Henry took as tenants in
common," "although, if it had been an use executed bj- the Statute,
the consequence would be that they were joint-tenants." That case is
cited b}- various text-writers ; and I do not find that it is questioned by
an}' of them, except that in 3 Bythewood and Jarman's Convejaneing,
p. 324, the learned editor (Sweet) savs : "This was eertainlj- admitting
the principle to a great extent, and it seems that there was ample
room for argument." That room has been afforded here, and the
result shows that there is no authority to contradict it. There is also
an important passage in the 7th edition of Sheppard's Touchstone, by
Preston, at p. 106, where that very great conveyancer says : '/ But if a
grant be made to a man and his heirs, habendum to him and his heirs,
to the use of him and his heirs for lives, this habendum, and declara-
tion of use are one entire limitation at the common law, and the grantee
hath merely an estate for the lives," which passage is verj- applicable to
the present case. It is, indeed, only acting upon the general rule of
construction of a deed, which is, that, in order to ascertain the intention
of the grantor, regard must be had to the whole of the instrument, and
especially of the habendum,. So dealing with the deed in the present
case, the effect of it seems to me to be that the three persons named
take the rent-charge as tenants in common. Each takes a legal estate
in an undivided third part of the rent ; and, no third partj- intervening,
there is nothing for the Statute of Uses to operate upon. The part}'
claiming, therefore, taking by force of the common law, the case is
entirely out of the operation of the Statute of Uses. Consequenth', it
cannot come within the decision in Heelis v. Blain, but is governed
b^' the two previous cases of Murray v. Thorniley, and Hayden v.
Ttoerton.
The decision of the revising barrister, therefore, must be reversed,
on the ground that the claimant had not been in actual possession
of the rent-charge for the period required by § 26 of the Reform Act
of 1832.
Brett, .J. In this case Orme claimed to be registered as a voter in
OEME'S CASE. 529
respect of a rent-charge ; and, in order to substantiate his claim, it was
necessary for him to bring himself within § 26 of 2 Wm. 4, c. 45 ; that is,
to show that he had been in " actual possession" of the rent-charge for
six months previously to the last day of July. In point of fact he had
not been in actual receipt of the rent for the required period, the flrst
payment having only become due on the 5th of April preceding ; and
the question is, whether, notwithstanding this, the claimant has brought
himself within § 26.
It seems to me that there are two canons or rules of conduct which
the court in dealing with these revising appeals ought to observe. Tlie
first is, to construe the words of these Statutes according to their ordi-
nary meaning ; and the second is, to adhere loyally to former decisions,
unless clearU- satisfied that the^' are wrong. Now, the first case which
is applicable to the present is that o^ Murray v. Thorniley^ 2 C. B.
217; 15 L.J. (C. P.) 155. It was there held that "actual posses-
sion " in § 26 of the Reform Act meant a possession in fact as contra-
distinguished from a possession in law. The next case was Heelis v.
Blain, 18 C. B. (N. S.) 90 ; 34 L. J. (C. P.) 88, where it was held
that, though the grantee of a rent-charge under a grant at common law
is not entitled to be registered until he has been in the actual receipt of
the rent for six months prior to the last daj- of Jul}-, since until such
receipt he had only a possession in law, and not the actual possession
required b}- 2 Wm. 4, c. 45, § 26, it is otherwise where he acquires the
rent-charge bj' a convej'ance operating under the Statute of Uses, for
then the person to whose use the rent-charge is limited is bj- virtue of
the Statute of Uses to be deemed to be in actual possession. It follows,
therefore, if we observe the rule of conduct I have referred to, that, if
the deed conveying the rent-charge in the present case operates at
common law, the case is governed by Murray v. Thorniley ; and
that, if it operates under the Statute of Uses, then the case is gov-
erned by Hedis v. JBlain, and we are bound to hold, whatever be
our opinion of that case, that the possession given by the Statute of
Uses is the possession required by the Reform Act. The result is,
that the question for our determination is whether the deed conveying
the rent-charge in respect of which Orme claimed in this case was
one which operated at common law or by virtue of the Statute of
Uses.
The result of the authorities cited is this : You must flrst look at the
whole deed of conveyance ; and wherever the grant in the habendum
and the declaration of uses is to the same person, if the description is
general in the one part and specific in the other part, the latter is to
override the former ; and, so reading it, it is a common-law conveyance,
and the Statute of Uses has no application at all. In Jenkins v. Yotmg,
Cro. Car. 230, the limitation was to PI R. and his wife, in the form of
a declaration of uses ; but, inasmuch as the habendum was general in
its terms, and not inconsistent with the declaration of the use, it was
held that it was "a limitation of the estate to them and the heirs of
34
530 oeme's case.
their bodies hy the course of the common law." The case put in
Sanders on Uses, p. 91, is open to the same observation. The limita-
tion was to A., B., and C, and their heirs, to the use of A., B., and
C, for their lives and the life of the survivor. There again the
habendum was general, and the supposed declaration of use specific ;
but there was no inconsistency, and therefore the habendum was read
as specific, and the conve3ance was held to be a common law convey-
ance. In Doe V. Prestwidge, 4 M. & S. 178, the habendum was to
two persons, their heirs and assigns, as tenants in common, and not as
joint-tenants ; that which was called the declaration of uses was gen-
eral, " to the use of them, their heirs and assigns ; " but, inasmuch as
the habendum was specific, it was held that the whole must be read as
if the declaration of uses had been as specific as the limitation, and so
the deed took effect as a common-law convej'ance. This seems to me
to be the result of the opinions of Lord Bacon, Mr. Booth, Mr. Butler,
and Lord St. Leonards.
Applj' that to the present case. The grant is to Orme, Lawton, and
Kerfoot and their heirs, — habendum " to Orme, Lawton, and Kerfoot,
their heirs and assigns, to the use of the said Orme, Lawton, and Ker-
foot, their heirs and assigns for ever, as tenants in common, and in
equal shares." The habendum is general, and the declaration of uses
specific ; therefore the habendum is to be read as if it were as specific
as the declaration of the use. Consequently the conveyance is a
common-law conveyance of the rent-charge to the three as tenants in
common.
I should have been prepared to go the length of Mr. Herschell's
argument and to saj"^ that the Statute of Uses does not appl}', unless
there be some person named in the declaration of the use who is not
named in the grant. It is not necessarj-, however, to go that length
in the present case : it is enough to say that, one part of the ha-
bendum being general, and the other part specific, the whole is to
be read together, and the intention collected from that part which is
specific.
The result is that this must be taken to be a common law convey-
ance, and not a conveyance operating by force of the Statute of Uses.
The case is, therefore, within Murray v. Thorniley , and is not within
Heelis v. Blain. I therefore think the decision of the revising bar-
rister was wrong, and that the appeal must be allowed.
Grove, J. I am of the same opinion. The question turns upon
§ 26 of the Reform Act, 2 Wm. 4, c. 25, which enacts that no person
shall be registered as a county voter in any year In respect of his
estate or interest in an}- lands or tenements, as a freeholder, unless he
shall have been " in the actual possession thereof, or in the receipt of
the rents and profits thereof," for bis own use, for six calendar months
at least next previous to the last day of July in such year. Prima
facie^ the meaning of those words is clear and simple : " actual posses-
sion " would seem to mean an actual and not a constructive possession
orme's case. 531
or receipt of the rent. The proviso which is engrafted upon that sec-
tion would seem to show that that is its true meaning, — "provided
always, that, where any lands or tenements, which would otherwise
entitle the owner, holder, or occupier thereof to vote in any such elecr
tion, shall come to any person at any time within such respective
periods of six or twelve calendar months, by descent, succession,
marriage, marriage-settlement, devise, or promotion to any benefice in
a church, or by promotion to any ofHce,'' such person shall be entitled
to be inserted as a voter. This was the meaning put by this court in
Murray v. Thornilei/, 2 C. li. 217; 15 L. J. (C. P.) 155, where it was
held that the possession required by that section was an actual posses-
sion, as contradistinguished from a possession in law ; and there would
have been no ditticulty in this case but for the decision in Heclis v.
Blain, 18 C. B. (N. S.) 90 ; 34 L. J. (C. P.) 88, where, the use being in
a person different from the person who took the fee, the Statute of
Uses applied, and it was held to give such a possession as amounted
to actual possession. Now the question arises, whether the Statute of
Uses is confined to a case where the use is not limited to the same per-
sons as those to whom the rent-charge is granted. It seems to me to
be clear, as well from the language of the preamble as from the enact-
ing words of § 1, that the Statute was intended only to meet the case
of a limitation of the use to persons other than those to whom the rent-
charge is granted. The object of the Statute was to prevent convey-
ances from being otherwise than bona fide, and to make the ostensible
and the real ownership of the estate alwa3's identical. We all know
how that object was defeated, viz., by repeating the words " to the use
of" The Statute, as I have already observed, in terms applies onl^'
to the case where the use was limited to a different pei'son fi'om the
grantee or feoffee. One exception is that mentioned in Satnmes's Case,
13 Rep. at p. 56 a, where it was resolved that, " if a man maketh a
feoffment in fee to one, to the use of him and the heirs of his bodj', in
this case, for the benefit of the issue, the Statute according to the limi-
tation of the uses divests the estate vested in him bj' the common law,
and executes the same in himself by force of the Statute ; and \ei the
same is out of the words of the Statute 27 Hen. 8, which are, where any
person, &c., stand or be seised, &c., to the use of anj- other person ;
and here he is seised to the use of himself; and thfe other clause is, where
divers and many persons, &c., be jointly' seised to the use of any of
them, &c. ; and in this case A. is sole seised : but the Statute of 27
Hen. 8 hath been always beneficially expounded, to satisfy the inten-
tion of the parties, which is the direction of the use according to the
lule of the law. So, if a man seised of lands in fee-simple by deed
covenants with another that he and his heirs will stand seised of the
same land to the use of himself and the heirs of his body, or unto the
use of himself for life, the remainder over in fee ; in that case, by
the operation of the Statute, the estate which he hath at the common
law is divested, and a new estate vested in himself, according to the
632 oeme's case.
limitation of the use." In Baccn on Uses, edit. 1806, p. 63, it is said,
" that the whole scope of the Statute was to remit the common law and
never to intermeddle where the common law executed an estate ; there-
fore the Statute ought to be expounded, that, where the party seised to
the use and the cestui que use is one person, he never taketh b3- the
Statute, except there be a direct impossibilit}' or importinency for the
use to take effect by the common law." All the other authorities are
in favor of the plain and obvious construction of the words of the Stat-
ute. In Sanders on Uses, 5th ed., p. 91, after quoting the case of
Jenkins v. Young, Cro. Car. 230, it is said : " So, if an estate be con-
vej-ed to A., B., and C, and their heirs, to hold unto the said A., B.,
and C, their heirs and assigns, to the use of the said A., B., and
C, for and during the natural lives of them and the life and lives
of the survivor and survivors of them, it would seem that this is not a
Statute use, but that A., B., and C. will take an estate of freehold for
their lives hy the common law." In the present case the grantees of
the rent-charge and the cestuis que use are the same persons ; and the
question we have to, determine is whether the use is executed by tlie
Statute. It has been ingeniousl3- argued bj' Mr. Mellor that, as by
the terms of the grant the grantees would prima facie take as joint-
tenants, the limitation of the use to them as tenants in common so
changed tlie character of the estate to which the use attached as to
make it in some sense a limitation to different persons. But then
comes the case of Doe v. Prestwidge, 4 M. & S. 178, which is some-
what the converse of this case, where the habendum, was to T. and H.
and their heirs, as tenants in common, and not as joint-tenants, and
the use was to them, " their heirs, and assigns " generally, and it was
held that the general words were controlled b^' the specific words, and
that T. and H. took as tenants in common. Counsel for the plaintiff,
after time for consideration, admitted that, although, if this had been an
use executed h\ the Statute, the consequence would be that T. and H.
were joint-tenants, j-et that, where the person seised to the use and
cestui que use is the same person, the Statute does not operate, — " ex-
cept (as Bacon says) there be a direct impossibilitj' or impertinency
for the use to take effect by the common law." That was in efiect the
judgment of the court. Is there here an}' direct impossibilitj' or repug-
nancy in holding that Ihe grantees here take as tenants in common? I
think not. The specific words of the declaration of uses clearl}- show
that the intention was not onl}' to limit the use, but to give the original
estate to the three persons named and their heirs as tenants in common.
If so, the Statute of Uses does not apply.
There may be a difficulty in saying that the possession given by the
execution of the use bj- the Statute is different from the possession
in law which was held in Murray v. Thorniley to be insufficient to
satisf}' § 26 of 2 Wm. 4, c. 45 ; but it is unnecessary to consider that
■ on tlie present occasion, for we are not now called upon to overrule the
case of Heelis v. Blain, 18 C. B. (N. S.) 90 ; 34 L. J. (C. P.) 88.
oeme's case. 533
Denman, J. I am of the same opinion. The ou'.y question raised
liy the revising barrister in this case is, whether the circumstances
bring it within Heelis x. Bluin, 18 C. B. (N. S.) 90 ; 34 L. J. (C. P.)
88. He decided that they did ; and that, I think, was a wrong deci-
sion. Heelis v. Blain was very carefully decided, so ns to leave un-
touched the two previous cases of Murray v. Thoruiky, "2 C. B. 217 ;
15 L. J. (C. P.) 155, and Ilayden v. Twerton, 4 C. B. 1 ; 16 L. J.
(C. P.) 88. I observe that Earle, C. J., in his judgment in Heelis v.
Blain, Hop. & Ph. at p. 198, says : " If it had been the case of a con-
vej-ance at common law, without tiie aid of the Statute of Uses, it is
clear, from the cases of Murray v. Thorniley and Hayden v. Twerton,
that there would have been no actual possession of the rent-charge to
entitle the claimant to be registered." The case of Heelis v. Blain
certainly may be called a refined decision in favor of the franchise. It
was there held that " actual possession " in § 26 of the Eeform Act of
1832 is satisfied by the execution of a conveyance to uses of a rent-
charge, although no part of the rent has been received. The question
now is whether this was or was not a grant operating by virtue of the
Statute of Uses. I am clearly of opinion that it was not. The Statute
of Uses has no application where the grant is to three persons and their
heirs, habendum to the same three, their heirs and assigns, to the use
of the same three, their heirs and assigns for ever, as tenants in
common ; because they do not satisfy the words of § 1, thej- not being
seised "to the use of some other person or persons," but to the use of
themselves. It is said here that the Statute of Uses applies, because
they are by the first part of the habendum joint-tenants, and by the
limitation of uses thej- take as tenants in common. I will not say that
that is an absurd argument, because it is at least as plausible an argu-
ment as some which have prevailed in cases of this sort. But I
agree with the rest of the court that this case is not within Heelis v.
Blain, and that it is within Murray v. Thorniley and Hayden v.
Twerton, and therefore that our judgment should be for the appellant.
Decision reversed.
Note. — The Statute of Uses in Wills. " In the opening of the work it was ob-
served, that a power given by a will was a common law authority. But here we must
consider whether a devise to uses through the medium of a devisee, as a devise to A.
and his heirs, to the use of B. and his heirs, will not take effect under the Statute of
Uses. Upon this point a difference of opinion has been expressed ; Butl. n. to Co.
Lit. 271 b, III. g 5 ; Powell on Devises, 272 ; and see ] Sand, on Uses, 195 ; and
Fonbl. n. (e) to 2 Treat. Eq. p. 24, 2d edit. The Statute of Uses would equally oper-
ate on the 1 Vict. c. 26, and, indeed, the subject is exhausted by the learning which
has been displayed upon it. Of course an immediate devise to A. for life, remainder to
B. in fee, would be good, although no seisin was raised to serve those e.states ; or, in
other words, lands may be devised without the aid of the Statute of Uses, and it is not
material that the limitations are termed uses; and powers may be created in like
manner. They will be common-law authorities, and the appointee will be in, not by
the Statute of Uses, but by the devise. Dike v. Ricks, Cro. Car. 335. On the other
hand, it seems equally clear that where a seisin is raised by will to feed uses created by
it, such uses will be executed into estates by the Statute of Uses.
534 STATUTE OF USES IN WILLS.
" In support of the poTitrary opinion, it is insisted that the Statute of Uses cannot
refer to the Statute of Wills, wiiicii was not then in contemplation. It is said to be
difficult to conceive' how USPS nrpated under the testamentary power given by the Stat-
ute of Wills can be w_itliiii the Statute of Uses ; and that it may be argued that a Stat-
ute can never be considered as relating to anything which did not exist at the time of
its passing. But this is well answered by Coke, who in Vernon's Case, Kep. 1, address-
ing himself to the precise objection, said ' It is frequent in our books, that an Act
njade of late time should be taken within the equity of an Act made long time before,'
of which he gives many instances. And see Williams v. Drewe, Willes, 392 ; Lane v.
Cotton, 1 Com. 100 ; In Be Perrin, 2 Dru. & War. 147. In the principal case, that
part of the Statute of Uses which relates to jointures, was holden to be within the
equity of the Statute of Wills. It appears to have been thought in Andrevis's Case, in
18 Eliz. Mo. 107, that the Statute of Uses would operate on uses created by will ; and
in Popham and Bampfield, 34 Car. II. 1 Vern. 79, and BurcAet and Durdant, 2 Will.
& M. 2 Ventr. 311, the same point was admitted both at the bar and by the court.
In the case of Hore and Dix, 12 Car. II. 1 Sid. 26, 4th resol., it was resolved, that an
use could not be raised without a deed. And as to the case of a devise of land to
uses, by a will in writing, which is not a deed, it was said, that that went upon another
reason, scil. rather upon the Statute of 32 H. VIII. of Wills, than upon the Statute of
27 H. VIII. of Uses. This case has been treated as an authority, that the use is exe-
cuted by the Statute of Wills, and not by the Statute of Uses; but ou the contrary,
it appears to admit that the Statutes may have a concurrent operation. It was in like
manner admitted in Broughton and Langley, 2 Ann. 2 Ld. Kaym. 873 ; 2 Salk. 679,
that a devise of lands may be by express words to the use of another than the devisee,
and that such devise will be executed by the Statute of Uses. In later times the
same point has been repeatedly ruled, or treated as clear, Hopkins v. Hopkins, 1 itk.
589 ; Bagshaw v. Spencer, 1 Ves. 143 ; Wright v. Pearson, Fearn. Cont. Kem. 128 ;
Perry v. Phelips, 1 Ves. jun. 255 ; Thompson v. Lawley, 2 Bos. & Pull. 311 ; Doe v.
Finch, i Bam. & Adol. 283 ; and there is not a single case in which the point has been
doubted. It must be considered therefore as settled, upon principle as well as author-
ity, that the Statute of Uses may operate on uses created by will : and that where a
seisin is created to serve the uses, the Statute will in most cases transfer the possession
to them. It is not denied that a devise unto and to the use of one, will vest the legal
estate in him, although ulterior uses are declared in favor of others ; but this, per-
haps, it may be said, is not by the operation of the Statute of Uses, but depends on an
in-esistible inference of the testator's intention, in analogy to the resolutions on limi-
tations to uses in deeds. Rohivson v. Comyv.i, For. 164 ; Brydges v. Brydges, 3 Ves.
120 ; and Doe v. Passingham, 6 Barn. & Cress. 305 ; 9 Dowl. & B. 416." Sugd. Pow.
(8th ed.) 146-148.
See Baker v. White, L. E. 20 Eq. 166, 171.
NEVIL V. SAUNDERS. 635
SECTION VIII,
TRUSTS.
Note. — Trusts form the subject of a separate course. Only two cases are here
given, — to point out differences between Uses and Tru.sts.
NEVIL V. SAUNDERS.
Chancery. Before Lord Jeffreys, C. 1686.
[Reported 1 Vern. 415.]
Lands were given hj will to trustees and their heirs, in trust for
Anne the defendant's wife and her heirs, and that the trustees should
from time to time pay and dispose of the rents and profits to the said
Anne, or to such person or persons as she by anj- writing under her
hand, as well during coverture as being sole, should order or appoint
the same, without the intermeddling of her husband, whom he willed
should have no benefit or disposal thereof ; and as to the inheritance of
the premises, in trust for such person or persons, and for such estate
and estates, as the said Anne by any writing purporting her will, or
other writing under her hand, should appoint ; and for want of such
appointment, in trust for her and her heirs.
The question was, whether this was an use executed by the Statute,
or a bare trust for the wife : and the court held it to be a trust only,
and not an use executed by the Statute.
LLOYD V. SPILLET.
Chancery. Before Lord Hardwicke, C. 1741.
[Reported 2 Atk. 148.]
John Stamp, being seised of a considerable real estate, and pos-
sessed of a large personal estate, made his will dated the 28th of
March, 1721, and afterwards a codicil of the 10th of October, 1721,
and appointed John House and John Spillet his trustees, to see what
he had done in his life-time be continued as he ordered, and then gave
his cousins Anne and Marj- Jobson £15 a j-ear a-piece during their
lives, and directed his trustees to improve all his estate to the best
advantage, and that the 3'early profits thereof should be given to and
for the yearlj' maintenance of such ministers, as were called by the
name of Presbyterian and Independent ministers, that do not receive
above £40 a year for their preaching ; the testator afterwards added
Richard Froome to the other two trustees, and on the 7th of December,
536 LLOYD V. SPILLET.
1721, there was an indenture of release duly executed between John
Stamp, of the one part, and House, Froome, and Spillet of the other
part, witnessing that Stamp, as well for and in consideration of the
natural love and affection which he bore unto his cousins House, Froome,
and his friend Spillet, and also in consideration often shillings paid bj'
Ihem, granted lo them several messuages and farms therein mentioned,
to hold to them, their heirs and assigns, to the use of them, their heirs
and assigns for ever ; provided alwaj-s, &c. that if Stamp should at
any time during his life tender or paj' to House, &c. 10s. on purpose to
make void the said deed and the estates thereby- convej-ed, then the
deeds and the estates thereby limited should be void. John Stamp did
also execute a deed-poll of his personal estate to House, Froome, and
Spillet, whereby John Stamp, in consideration of ten shillings, and
other good causes, bargained and sold to House, &c. all his goods
and chattels, to hold to them, their executors, &c. and put them in pos-
session of all the premises bj' the deliver}- of five shillings to them ;
and it was agreed between the parties, that Stamp should have the
rents and profits of the premises during his life for the maintenance of
himself and family, and a power was reserved to Stamp to make void
this deed by any deed or writing, and to dispose of the premises as he
should think fit ; and he had power also to revoke the lease and
release.
The bill is brought by the plaintiffs as heirs at law to John Stamp,
and the end of it is, that the defendants may convej' John Stamp's real
estate to the plaintiffs and their heirs, and account for tlie rents and
their share of the personal estate, and deliver up the deeds of bargain
and sale, and lease and release, and the title-deeds.
The defendants insist on their right to the real and personal estate
by virtue of the will and conveyances of John Stamp, and in regard it
is bj- his will declared that if his heirs should commence anj' suit relat-
ing to his will, that then it should be void : they submit to the court,
that if the plaintiffs had any title to their annuities of fifteen pounds
each, they have forfeited the same b}- bringing this suit.
First, With regard to the personal estate : I am of opinion there are
no grounds for the present plaintiffs to be relieved, according to the
prajer of their bill.
For here is an assignment, or bill of sale of all his goods and chattels,
and all other his substance whatsoe^-er, movable or immovable, quick
or dead, to his trustees during his life, for the maintenance of himself
and famil}-, with another proviso to revoke the uses of this deed by
i'.ny other deed or writing, or even by cancelling without any form or
ceremonj' whatsoever.
A man makes a will antecedent to a deed, in which he has given
away all his personal estate to charitable uses.
xsow, whether a man after a will made reserves a trust in what
was his personal property before, or acquired after, the will is ambula-
tory, till his death, and therefore, as to the next of kin, there is no
LLOYD V. SPILLET. 537
pretence that the personal estate is devisable under the Statute of
Distributions.
Secondly, As to the legal estate, whether it will pass by the lease
and release without a consideration.
Now, there are no grounds whatsoever to saj- that the legal estate
did not pass by the lease and release. For the considerations in it are
such as will operate by way of transmutation of possession.
In the first place, here is a consideration expressed of natural affec-
tion to two persons, who are not disputed to be very nearly related to
the grantor, and here is likewise the consideration of ten shillings ; but
there is no manner of doubt the estate would have passed even without
the last pecuniary consideration, under the SJiatute of Uses, for natural
love and affection is very sufficient to create a use, and will amount to
a covenant to stand seised, though no other consideration appear.
But then it has been insisted, here is not a sufficient consideration to
pass the beneficial interest in this estate.
The consideration often shillings, it is said, is onlj-a form in the con-
veyance, and not sufficient of itself to pass the estate : neither will the
consideration of natural love and affection alone pass it.
But I do not think these observations material in the present case.
Consider how it stood at common law before the Statute of Uses ;
there was no necessity then that there should be any consideration
expressed to pass the estate.
As, for instance, in the case of feoffments, there was no consideration
at all mentioned in them, and yet the estate passed by them from the
operation of law.
In process of time, for the sake of avoiding forfeitures to the Crown,
when the contests arose between the two Houses of York and Lancaster,
and likewise to avoid wardships, both of them with a fraudulent inten-
tion to cheat the Crown, and the lord, of what the law gave them, uses
were introduced, and were exactlj- the same with what trusts are now,
and I wonder how they ever came to be distinguished.
The doctrine of a resulting use first introduced the notion that there
must be a consideration expressed in the deed of feoffment, or other-
wise nothing could pass, but it would result to the feoffor.
And so it is insisted on here, tliat though the legal estate passes by
the Statute of Uses, j-et the beneficial interest will not pass, as there is
not what the court calls a valuable consideration, and consequentlj'
there is a resulting trust for the heir.
I am now bound down by the Statute of Frauds and Perjuries to con-
strue nothing a resulting trust but what are there called trusts by
operation of law ; and what are those ? Wlij-, Jlrst, When an estate is
purchased in the name of one person, but the money or consideration
is given bj' another ; or secondly. Where a trust is declared onlj- as to
part, and nothing said as to the rest, what remains undisposed of
results to the heir at law, and they cannot be said to be trustees for the
residue.
538 LLOYD V. SPILLET.
I do not know in anj- other instance besides these two where this
court have declared resulting trusts by operation of law, unless in cases
of fraud and where transactions have been carried on mala fide.
But in the present case there is no fraud at all in the grantees, but a
scheme in the plaintiffs ancestor to secure the charitj' at all events,
supposing he should revoke his will.
It has been said, that it was not the intention to give this estate to
the defendant, and consequently the heir at law is entitled : for the heir
at law does not want an express intention ; and it is certainl3- so in the
case of a will, but it is otherwise with regard to a deed.
For there, since the Statute of Frauds and Perjuries, the lines are
exactly drawn with regar(j to resulting trusts, and the heir at law must
show an express trust for him in order to entitle himself.
A man that conveys a trust to another, and barely- for himself, or for
the use of his heir at law, does not generall}' insert a power of revoca-
tion, as has been done in the present case.
Upon the whole, I am of opinion that the legal estate did well pass,
and the beneficial interest likewise ; nor do I believe there was any
intention that there should be a resulting trust for the heir at law, but
the whole design of the plaintiff's ancestor was to secure the charity at
all events.
Lord Hardwicke therefore said, he saw no cause to var}- the decree
of the 8th of November, 1734, and ordered the same should be affirmed ;
but declared that the plaintiffs, the heirs at law of John Stamp, were
entitled to the two annuities of fifteen pounds each, devised to them by
the testator for their lives, and directed the arrears and growing pay-
ments to be paid to the plaintiffs.
[Note. — " There needed no consideration to give effect to a conveyance at the com-
mon law ; nor when, before the Statute of Uses, land was actually conveyed to uses,
did equity require, as the condition of granting its peculiar process, any inducement
beyond the obligation imposed on the conscience of the trustee. But if the land was
not actually conveyed, then a bargain and sale for money or money's worth, or a cove-
nant in consideration of marriage, or of blood, to stand seised of the land to uses, was
necessary to raise the use ; though a pre-contracted marriage, or a remote degi-ee of
consanguinity, as that of a cousin, was held suflBcient. After the Statute, uses arose
upon actual conveyances, without any consideration ; upon bargains and sales, for con-
siderations merely nominal ; upon covenants to stand seised, for the same considera-
tions as before. With respect to fiduciary interests, however, the old rules now
underwent some important modifications. If the land was actually conveyed — it
mattered not whether by feoffment, or lease and release, at the common law, or by bar-
gain and sale, under the Statute — upon express trusts, then such trusts, though
declared in favor of a stranger, without a shadow of consideration, were enforced ; but
if the intention was suffered to rest in contract, then a substantial consideration, as
money or money's worth, or the value of a prospective marriage, was requisite to evoke
the extraordinary aid of equity, — evoked in order, not merely to execute, but to estab-
lish the trusts. Between the strongest natural affection and mere friendship, between
moral duty towards a wife or child and bounty to a stranger, equity no longer made
any distinction, but regarded as volunteers all whose claims had not the support of a
really valuable consiiieration ; and for a volunteer, equity would not do more than
administer a trust regularly constituted." 1 Hiyes, Conv. (5th ed.), 102.]
CASE OP MINES. 639
BOOK IV.
NATURE AND INCIDENTS OF OWNERSHIP IN REAL
PROPERTY.
CHAPTER I.
GOLD AND SILVER MINES.
CASE OF MINES.
Exchequer Chamber. 1567.
[Reported Plowd. 310.]i
FmsT, all the Justices and Barons agreed, that by the law all mines
of gold and silver within the realm, whether they be in the lands of
the queen, or of subjects, belong to the queen by prerogative, with
liberty to dig and carry away the ores thereof, and with other such
incidents thereto as are necessary to be used for the getting of the
ore.
Also Harper, Southcote, and Weston, Justices, agreed, that if gold
or silver be in ores or mines of copper, tin, lead, or other base metal in
the soil of subjects, as well the gold and silver as the base metal
entirely bejpngs of right to the subject, who is the proprietor of the
soil, if the gold or silver does not exceed the value of the base metal ;
but if the value of tbe gold or silver exceeds the value of the copper or
other base metal, then it was tlieir opinion that the Crown should have
as well the base metal as the gold or silver ; and in such case it shall
lie called a mine royal, and otherwise not ; but if the base metal
exceeds the value of the gold or silver, then it draws the property of
the whole to the proprietor of the land. But they three agreed, that
forasmuch as the information sets forth that the ore and mine of copper
contained in it gold or silver, and the defendant has not denied it, but
has fully confessed it, thereby it shall be taken that the gold or silver
1 Only a part of the judgment on p. 336 is given.
540 CASE OP MINES.
were of the greater value, for the best shall be intended for the queen ;
and therefore they assented, with all the other Justices and Barons, that
judgment should be given against the earl, and for the queen. But all
the other Justices and Barons of the Exchequer unanimoush' agreed,
that if the gold or silver in the base metal in the land of a subject be
of less value than the base metal is, as well the base metal as the gold
or silver in it belong by prerogative to the Crown, with liberty to dig
for it, and to put it upon the land of the subject, and to carry it away
from thence ; and in such case it shall be called a mine roj'al, for the
records don't make any distinction herein, but they are general, and
prove that all ores or mines of copper, or other base metal, containing
or beai-ing gold or silver, belong to the king. And where Weston said,
that there is a text in the civil law to this effect, viz. that bj- the negli-
gence or poverty of the proprietor of the soil possunt fodi omnia
metalla in alieno solo, invito domino, qidautileest reipublicce, et dliter
non ; to this Saunders, Chief Baron, said, that the same law says,
quod optima legum interpres est consuetudo, and here there is consue-
tudo, for the precedents and the accounts prove that from time to time
it has been a custom and usage, that the kings of this realm have had
the profit of such mines of base metal cbntaining or bearing gold or
silver, without any distinction with regard to the value of the gold or
silver, be the same gi-eater or less tlian the base metal. Wherefore he
and all the others (except the three above-mentioned) took it that the
whole ore and mine belonged to the queen, although the base metal be
of the greater value. And here it is confessed by the defendant, that
the ore and mine of copper contains in it gold or silver, so that it agrees
with the precedents. And therefore as well the other three as all the
rest unanimously agreed, that judgment should be given for the queen
upon this plea, although they differed in the matter itself, and in the
reasons of the judgment, as it is shown before.
Also they all agreed, that if the ore or mine in the soil of a subject
be of copper, tin, lead, or iron, in which there is no gold or silver, in
this case the proprietor of the soil shall have the ore or mine, and not
the Crown by prerogative, for in such barren base metal no prerogative
is given to the Crown.* ^
1 See Sts. 1 "W. & M. c. 30, § 4 ; 5 "W. & M. C.6 ; also 3 Kent, Com. 378 note (6) ;
Moore v. Smaw, 17 Cal. 199.
SUTTON V. MOODY. 541
CHAPTER II.
WILD ANIMALS.
SUTTON V. MOODY.
King's Bench. 1697.
[Reported 1 Ld. Raym. 250.]
Trespass quare clausum suum fregit et centum cuniculos suos ad-
tunc et ibidem inventos venatus fuit occidit cepit et asportavit. Upon
not guilt}- pleaded, verdict for the plaintiff and entire damages. Gould,
Serjeant, moved, in arrest of judgment, that conies are ferce natura, and
therefore there is no propertj' in them in any ; therefore since the
plaintiff has laid property in them by the word [Sues'] it is ill, and no
damages ought to have been given for them. But if the action had
been for having hunted in warenna sua, and killed cuniculos suos
there found, it had been good, for then he would have had a privileged
propert}^ in them. The same law for fish taken in separali piscaria.
F. N. B. 87 ; Greenhill v. Child, Cro. Car. 399 ; March, 48 ; W. Jones,
440. But generallj- there is no property in things which are ferce
natura, and therefore trover does not lie for a hawk, without alleging
that be was reclaimed ; and in such an action it was adjudged against
the plaintiff, though it was alleged in the declaration, that he was pos-
sessed of the hawk as of his proper goods, Dier, 306 b, pi. 66. Sed non
allocatur. For per Holt, Chief Justice, a warren is a privilege, to use
his land to such a purpose ; and a man ma}' have warren in his own
land, and he may alien the land, and retain the privilege of warren.
But this gives no greater propertj- in the conies to the warrener, for the
property arises to the party from the possession ; and therefore if a
man keeps conies in his close (as he may), he has a possessory propertj^
in them so long as they abide there ; but if thej' run into the land of
his neighbor, he may kill them, for then he has the possessory prop-
ertj-. If A. starts a hare in the ground of B. and hunts it, and
kills it there, the property continues all the while in B. But if A.
starts a hare in the ground of B. and hunts it into the ground of C. and
kills it there, the propertj- is in A., the hunter; but A. is liable to an
action of trespass for hunting in the grounds as well of B. as of C.^
1 So Jwld in Churchward v. Studdy, 14 East, 249 (1811).
" I think Lord Holt must have been of opinion that as long as the game continued
upon the land there was a species of property, or rather, perhaps, a light to take it,
existing in the owner of the land, which was suiEcient to make it his the instant, by
542 SUTTON V. MOODY.
being killed or taken, it Ijecame the subject of property. But I cannot so easily dis-
cover the principle upon which he proceeds when he said that ' If A. starts a hare iu
the ground of B. and hunts it into the ground of C. and kills it there, the property
is iu A. , the hunter ; but A. is liable to an action of trespass for hunting iu the grounds
as well of B. as of C
" I have some difficulty in understanding why the wrongdoer is to acquirer, property
iu the game under the circumstauces here supposed. If the animal had left the laud
of B. and passed into the land of C. of its own will, and had been, immediately it
crossed the boundary, killed by C, it would unquestionably have been his property.
"Why then should not the act of a trespasser, to which C. was no party, have the same
effect as to his right to the animal as if it had voluntarily quitted the neighboring
land ? And why not only should B. lose his right to the game, and C. acquire none,
but the property, by this accident of the place where it happened to be killed, be trans-
ferred to the trespasser ? It would appear to me to be more in accordance with princi-
ple to hold that if the trespasser deprived the owner of the land where the game was
started of his right to claim the property by unlawfully killing it on the land of an-
other to which he had driven it, he converted it into a subject of property for that
other ovnier, and not for himself." Per LoED Chelmsford, in Blades v. Higgs, 11
H. L. C. 621, 639.
MASTERS V. POLLIB. 643
CHAPTER III.
BORDER TREES.
Dig. 47, 7, 6, 2. If a tree has extended its roots into the land of a
neighbor, the neighbor cannot cut them off, but he can bring suit to
have it declared that there is no right to have it projecting like a beam
or tile. If a tree is nourished by roots in a neighbor's land, yet it
belongs to him in whose land it had its origin.
Inst. 2, 1, 31. If Titius put another's plant into his own ground, it
will belong to him ; and conversel}' if Titius puts his plant into Maevius's
ground, it will be Maevius's plant, provided only that in each case it
has struck root ; but before it has struck root it continues his whose it
was. But to such a degree is the property in a plant changed from the
time of its striking root, that if a neighbor's tree encroach on the ground
of Titius so as to strike its roots into his land, we say that the tree
belongs to Titius ; for reason does not allow a tree to be considered as
belonging to any one but him in whose land it has struck root : and
therefore a tree placed near a boundary, if it strike root in the neighbor's
land, becomes common property. '
MASTERS V. POLLIE.
King's Bench. 1620.
[Reported 2 Soil. B. 141.]
Trespass quare clausum /regit et asportavit his boards. The de-
fendant justifies because that there was a great tree which grew between
the closes of the plaintiff and of the defendant, and that part of the
roots of this tree extended into the close of the defendant, and that the
tree was nourished by the soil, and that the plaintiff cut down the tree
and carried it away into his own close, and sawed it into boards, and
the defendant entered and took some of the boards and carried them
away, provt ei bene licuit, and on this, the plaintiff demurred.
Harris. The plea is not good, for although some of the roots of the
1 Bracton (lib. 2, c. 2, § 6, fol. 10), after giving the substance of the passage from the
Institutes, adds, " Nor can the neighbor cut off the roots. And this is true, if my tree
has struck root in "- neighbor's land, without which roots it cannot live, because it
ought to be common ; but if it can live well enough without those roots, it will not be
544 ANONYMOUS.
tree are in the defendant's soil, j'et the body of the main part of the
tree being in the plaintiffs soil, therefore all the rest of the tree
belongs to him also, and so Bracton holds ; but if the plaintiff had
planted a tree in the soil of the . defendant, then it will be otherwise,
quod Curia concessit. But Montagu, Chief Justice, said the plain-
tiff cannot limit the roots of the tree, how far they shall grow and go ;
vide 2 Edw. IV. 23.^
ANONYMOUS.
King's Bench. 1622.
[Reported 2 Roll. R. 255.]
If a tree grows in a hedge which divides the land of A. and B., and
by the roots takes nourishment in the land of A. and also of B., they
are tenants in common of this tree ; and so it was adjudged.
WATERMAN v. SOPER.
Nisi Prius. 1G98.
[Reported 1 Ld. Raym. 737.]
It was ruled by Holt, Chief Justice, at Lent assizes at Winchester,
upon a trial at Nisi Prius 1697-8 : 1. That if A. plants a tree upon
the extremest limits of his land, and the tree growing extend its root
into the land of B. next adjoining, A. and B. are tenants in common of
this tree. But if all the root grows into the land of A., though the
boughs overshadow the land of B., yet the branches follow the root,
and the property of the whole is in A. 2. Two tenants in common of
a tree, and one cuts the whole tree ; though the other cannot have an
action for the tree, j'et he maj' have an action for the special damage
by this cutting ; as where one tenant in common destroj's the whole
flight of pigeons.
HOLDER V. COATES.
Nisi Ekius. 1827.
[Reported 1 Moo. & M. 112.]
Trespass for cutting a tree of the plaintiff
The plaintiffs land, and that of the defendant, adjoined each other,
the plaintiffs land being rather the higher, and the separation between
1 See s. c. 2 Roll. E. 207.
HOLDER V. COATES. 545
the two being b}- a hedge belonging to the plaintiff, und standing
at the extremitj' of his ground, on the bank or declivity descending to
that of the defendant. The trunk of the tree stood in the defendant's
land, but some of the lateral or spur roots grew into the land of both
parties ; and evidence was given on the part of the plaintiff to show
that there was no tap root, and that all the principal roots, from which
the tree derived its main nourishment, were those which grew into the
plaintiff's land. The defendant, on the other hand, gave evidence that
there was a tap root, growing entirely in his land, and that the spur
roots grew alike in the lands of l)0th parties.
On the part of the defendant it was contended that, upon the evi-
dence, the tree must be taken as belonging entirelj' to his land ; but
that, at all events, it derived part of its nourishment from his land, and
that the plaintiff and defendant in that case would be tenants in com-
mon of the tree, according to the rule in the case of Waterman v.
/Soper, 1 Lord Raym. 737 ; and in that case the action of trespass
conld not be supported.
LiTTLEDALE, J. Thcrc is another case on that subject {Masters v.
Polite, 2 Roll. Rep. 141), in which it was considered that, if a tree
grows in A.'s close, though the roots grow in B.'s, yet the body of the
tree being in A.'s soil, the tree belongs to him. I remember, when I
read those%cases, I was of opinion that the doctrine in the case of Mas-
ters V. Pollie was preferable to that in Waterman v. Soper ; and I
still think so. However, if the question becomes material, I will give
you leave, on the authority of that case, to move to enter a nonsuit.
His lordship, in summing up to the jury, said, that with respect to
any question which had been raised as to the proportion of nourishment
derived by the tree from the soil of the plaintiff and defendant, he did
not see on what grounds the jury could find for either party ; but that
the safest criterion for them would be, to consider whether, from the
evidence given as to the situation of the trunk of the tree above the
soil, and of the roots yithin it, they could ascertain where the tree was
first sown or planted ; if they thought it was first set in the land of the
plaintiff, they would find a verdict for him ; for the defendant, if the
tree had originally been set in his. If they could form no opinion on
this suiiject, he would afterwards give them his direction on the ques-
tions which they would then have to consider.
The jury saying that they could not tell in whose ground the tree
first grew," a verdict for the defendant was taken by consent, on terms
agreed on between the parties.
Eussell. Serjt., and Whitcomhe for the plaintiff.
Campbell and Ludlow, Serjt., for the defendant.
35
546 LYMAN V. HALE.
LYMAN V. HALE.
Supreme Court of Eekoes of Connecticut. 1836.
[Reported 11 Cmin. 177.]
This was an action of trespass quare clausum fregit, alleging, that
the defendant, on the 19th of October, 1835, entered upon the plain-
tiff's land, described in the declaration, and gathered, carried away
and converted to his own use a great number, viz. twenty bushels, of
the plaintiffs pears, growing and being upon a certain pear-tree of the
plaintiff standing upon the land described. On the trial before the
Count}- Court, November term, 1835, it was proved and admitted, that
at the time of the alleged trespass, the plaintiff owned and possessed
the locus in quo ; that the defendant, at the same time, as a tenant,
was also in the lawful possession of a lot of land adjoining, on the
south side, to the plaintiff's land, the latter being raised two or three
feet above the former ; that a pear-tree then was, and for many 3-ears
had been, standing and growing on the plaintiff's land, a little more
than four feet from the line between his land and that occupied by the
defendant ; that the trunk of this tree, at the distance of five feet above
the ground, was about seventeen inches in diameter, and grew up per-
pendicularly about eight feet, and then divided itself into several
branches, some of which had extended to some distance across the
line and over the defendant's land ; and that from these branches the
defendant picked and gathered six bushels of pears and converted them
to his own use, claiming a right to do so. For the taking and appro-
priation of these pears, the action was brought.
It was proved, on the part of the defendant, that two of the roots of
the tree, one of about two inches in diameter, and the other a little
smaller, together with several others from an eighth to half an inch in
diameter, had entered his land.
The plaintiff offered testimony to prove, and claimed that he had
proved, that this tree had, for more than twentj'-flve years, stood in
the same situation in which it did at the time of the alleged trespass,
and extended its branches, in like manner, over the defendant's land ;
and that, during all that time, the plaintiff had exchisiveh- gathered and
appropriated to his own use the pears from the parts of the tree pro-
jecting over the defendant's land, as well as from the other parts, and
had the sole use and occupancy thereof, claiming exclusive title thereto ;
and that neither the defendant, nor those under whom he claimed,
had ever gathered the pears, or exercised any right of ownership over
tlie tree, or the fruit thereof, or claimed any title thereto. This claim
of the plaintiff was resisted bj- the defendant.
The plaintiff claimed, that from the facts proved and admitted, the
branches of the tree, which extended over the defendant's land and the
LYMAN V. HALE. 547
pears growing thereon, as well as the other parts of the tree, belonged
to him and were his property ; and that the defendant had no right to
gather the pears from such projecting branches and appropriate them
to liis own use, as he liad done ; and consequentlj-, that the plaintiff
was entitled to recover in this action ; and he requested the court so to
charge the iwy.
The plaintiff further claimed, that if from the facts proved and ad-
mitted, he had no title to the pears gathered b^' the defendant, yet if
the jar_v should find, that the plaintiff had, for more than fifteen years
next before the alleged trespass, exclusivelj- gathered and appropriated
to his own use the pears growing upon the branches projecting over
the defendant's land, and exclusively- exercised acts of ownership over
the tree and such branches, claiming title thereto, he had therel)y
become the owner thereof, and had the sole property in the pears
gathered b}- the defendant ; and requested the court so to instruct the
jur}'. The defendant claimed, that from the facts proved and admitted,
he was either the tenant in common or joint owner with the plaintiff, or
the exclusive owner of the pears so gathered by him ; and that in either
case, he had a right to gather them and appropriate them to his own
use, and consequently that the action could not be maintained ; and
he requested the court so to charge the jury. The defendant also
resisted the plaintifTs claim to the pears from fifteen years' exclusive
enjoyment, and requested the court to charge the jnrj- in opposition to
such claim.
The court charged the jury as follows : " The owner of land has not
only a right to the soil, but the right, in contemplation of law, includes
everything in a direct line upward to the heavens, and everj-thing
downwards to the centre of the earth. The owner of the surface of the
ground owns all that is over and under it.
" If a tree stand in the division line between two persons' lands,
the}' are tenants in common of the tree, or are joint owners of it. If
one plants a tree near the extreme limits of his land, and the roots do
not extend into the land of the adjoining proprietor, he who planted it
will own the whole tree, although the branches overhang and over-
shadow the land of the adjoining proprietor ; but if the tree so planted,
in growing extend its roots into the land of the adjoining proprietor,
whereby it derives a portion of its sustenance from the land of both,
they are tenants in common of the tree ; and the universal practice
in Connecticut has been for each to take the fruit overhanging his own
land.
"As it regards the usage, or the right by possession, the law is,
that to obtain it, the person claiming it is bound to show, by strict
proof, that he has had actual, exclusive, uninterrupted, and adverse pos-
session, for the period of fifteen years, under a claim of title. It is also
necessary, that the possession should have been definitely marked, and
certain, and Invariably the same ; and if the possession claimed is land,
it must be marked by definite boundaries.
548
LYMAN V. HALE.
" In this case, the court instruct 3'ou, that if j-ou find the roots of the
tree extended into the land of the defendant, and the branches over-
hung it, he had a right to gather the fruit on those branches, unless the
plaintifl'has acquired an exclusive right b}- possession."
The jury returned a verdict for the defendant ; and the plaintiff, hav-
ing filed a bill of exceptions, brought a writ of error in the Superior
Court. The judgment of the County Court was then afflrmed ; where-
upon the plaintiff brought the case before this court, by motiori in
error.
Ilungerford and Cone, for the plaintiff in error.
Johnson and Chapman, for the defendant in error.
BissELL, J. This writ of error is reserved for our advice ; and the
principal question raised and discussed, is, whether, upon the facts dis-
closed on the record, the plaintiff and defendant are joint owners, or
tenants in common, of the tree in controversj-.
It is admitted that the tree stands upon the plaintiff's land, and
about four feet from the line dividing his land from that of the defend-
ant. It is further admitted that a part of the branches overhang, and
that a portion of the roots extend into, the defendant's land. If, then,
he be a joint owner of the tree with the plaintiff, lie is so in conse-
quence of one or the other of these facts, or of both of them united.
It has not been insisted on, in the argument, that the mere fact, that
some of the branches overhang the defendant's land, creates such a
joint ownership. Indeed, such a claim could not have been made, with
an3- well-grounded hope of success. It is opposed to all the authorities,
and especially to that on which the defendant chiefly relies. "Thus"
(it is said) " if a house overhang the land of a man, he maj' enter and
throw down the part hanging over, but no more ; for he can abate only
that part which constitutes the nuisance." 2 Roll. 144, 1, 30 ; Hex v.
Pappineau, 2 Stra. 688 ; Cooper v. Marshall, 1 Burr. 267 ; Welsh v.
Nash, 8 East, 394 ; Bijson v. Collide, 5 Barn. & Aid. 600 ; Com. Dig.
tit. Action on the case for a nuisance, D. 4. And in Watertnan v.
Soper, 1 Ld. Enym. 737, the case principally relied on, by the de-
fendant's counsel, it is laid down: "That if A. plants a tree upon
the extremest limits of his land, and the tree growing extend its root
into the land of B. next adjoining, A. and B. are tenants in common
of the tree. But if all the root grows in the land of A., though the
boughs overshadow the land of B., yet the branches follow the root,
and the property of the whole is in A."
The claim of joint ownership, then, rests on the fact that the tree
extends its roots into the defendant's land, and derives a part of its
nourishment from his soil. On this ground, the charge proceeded, in
tiie court below ; and on this, the case has been argued in this court.
We are to inquire, then, whether this ground be tenable. The onlj-
cases relied upon, in support of the principle, are, the cases already
cited from'Ld. Raymond, and an anonj'mous case from RoUe's Reports
(2 Roll. 255). The principle is, indeed, laid down in several of our
LYMAN V. HALE. 549
elementaiy treatises. 1 S\v. Dig. 104; 3 Stark. Ev. 1457 n. ; Bui. N.
P. 84. But tlie only authority cited is tlie case from Ld. Rayuiond.
And it may well deserve consideration, whether that case is strictly
applicable to the ease at bar ; and whether it carries the principle so
far as is necessary to sustain the present defence. That case supposes
the tree to be planted on the " extremest limit" — that is, on the
utmost point or oerge — of A.'s land. Is it not then ftiirly inferable,
from the statement of the case, that the tree, when grown, stood in the
dividing line? And in the case cited from RoUe. tlie tree stood in the
hedge, dividing the land of the plaintiff from that of the defendant. Is
it the doctrine of these cases, tliat whenever a tree, growing upon the
land of one man, whatever may be its distance from the line, extends
an}- portion of its roots into the lands of another, they therefore become
tenants in common of the tree? We think not; and if it were, we
cannot assent to it. Because, in the first place, there would be insur-
mountable difficulties in reducing the principles to practice ; and, in
the next place, we think the weight of authorities is clearly the other
way.
How, it maj- be asked, is the principle to be reduced to practice?
And here, it should be remembered, that nothing depends on the ques-
tion whether the branches do or do not overhang the lands of the ad-
joining proprietor. All is made to depend solely on the inquirj',
whether any portion of the roots extend into his land. It is this fact
alone, which creates the tenancy in common. And how is the fact to
be ascertained ?
Again ; if such tenanc}- in common exist, it is diffused over the whole
tree. Each owns a certain proportion of the whole. In what propor-
tion do the respective parties hold ? And how are these proportions to
be determined ? How is it to be ascertained what part of its nourish-
ment the tree derives from the soil of the adjoining proprietor? If one
joint owner appropriate all the products, on what principle is the
account to be settled between the parties?
Again ; suppose the line between adjoining proprietors to run through
a forest, or grove. Is a new rule of propertj' to be introduced, in
regard to those trees growing so near the line as to extend some por-
tions of their roots across it? How is a man to know whether he is
the exclusive owner of trees, growing, indeed, on his* own land, but
near the line ; and whether he can safely cut them, without subjecting
himself to an action ?
And again ; on the principle claimed, a man may be the exclusive
owner of a tree, one 3-ear, and the next, a tenant in common witii
another ; and the proportion in which he owns may be varying from
year to year, as the tree progresses in its growth.
It is not seen how these consequences are to be obviated, if the prin-
ciple contended for be once admitted. "We think they are such as to
furnish the most conclusive objections against the adoption of the prin-
ciple. We are not prepared to adopt it, unless compelled to do so by
550 LTMAK V. HALE.
the controlling force of authority-. The cases relied upon for its support
have been examined. We do not think them decisive. We will ver}'
hriefl_y review those, which, in our opinion, establish a contrarj-
doctrine.
In the case of Masters v. Polite, 2 KoU. Eep. 141, it was adjudged,
that where a tree grows in A.'s close, though the roots grow in B.'s,
vet tiie body of the tree being in A.'s soil, the tree belongs to him.
The authoritj' of this ease is recognized and approved b}- Littledale,
J., in the ease of Holder v. Coates, 1 Moo. & Malk. 112. He saj-s :
•• 1 remember, when I read those cases, I was of opinion that the doc-
ti'ine in the ease of Masters v. PoUie was preferable to that in Water-
man V. Soper ; and I still think so."
The same doctrine is also laid down in Millen v. Fandrye, Pop.
Rep. 161, 163 ; Norris v. Paher, 3 Bulstr. 178 ; see also 20 Vin. Abr.
417; 1 Chitt. Gen. Pr. 652. We think, therefore, both on the ground
of principle and authority, that the plaintiff and defendant are not
joint owners of the tree ; and that the charge to the jur^-, in the court
below, was, on this point, erroneous.
It is, however, contended, that although the charge on this point was
wrong, there ought not to be a reversal, as upon another ground the
defendant was clearlj' entitled to judgment in his favor.
It is urged, that land comprehends everything in a direct line above
it ; and therefore, where a tree is planted so near the line of another's
close that the branches overhang the land, the adjoining proprietor may
remove them. And in support of this position, a number of authorities
are cited. The general doctrine is readily admitted ; but it has no
applicability to the case under consideration. The bill of exceptions
finds, that the defendant gathered the pears growing on the branches
which overhung his land, and converted them to his own use, claiming
a title thereto. And the charge to the jury proceeds on the ground
that he has a right so to do. Now, if these branches were a nuisance
to the defendant's land, he had clearly a right to treat them as such,
and as such to remove them. But he as clearly had no right to convert
either the branches or the fruit to his own use. Peardslee v. French,
7 Conn. Eep. 125 ; Welsh v. JSfash, 8 East, 394 ; Dyson v. Collick, 5
Barn. & Aid. 600 ; 2 Phill. Ev. 138.
On the wholfe, we are of opinion that there is manifest error in the
judgment of the court below, and that it be reversed.
The other judges ultimately concurred in this opinion ; Williams,
Ch. J., having at first dissented, on the ground of a decision of the
Superior Court in Hartford county {Fortune v. Newson), and the
general understanding and practice in Connecticut among adjoining
proprietors. Judgment reversed.^
1 So Skinner v. WilcUr, 38 Vt. 115.
GRIFFIN V. BIXBY. 551
GRIFFIN V. BIXBY.
Superior Court of Judicature op New Hampshire. 1841.
[Reported 12 N. H. 454.]
Trespass, for breaking and entering the plaintiff's close, in Litch-
field, November 1, 1838, and on other daj's, &c.
Plea, the general issue.
Hugh Nahor, the former husband of Elizabeth Bixbj-, who is one of
the defendants, was the owner of a farm in Litchfield. Upon his death,
her dower in said farm was set off, April 12, 1815, bj' a committee ap-
pointed for that purpose. In the return of the committee thej- described
the southerly line of the tract set off as running from " a pine tree
marked, with stones at the root," north 82 degrees east, " to the east
end of said lot." There are acknowledged monuments at each end of
this line, but the return of the committee did not designate any inter-
mediate monuments.
The defendants offered evidence, that at the time the dower was set
off, the committee in fact surveyed and marked a line through a tract
of wood-land, varying somewhat from a straight line, extending further
south, and thus including the locus in quo ; and that there has since
been a cutting of wood, by the occupants, on both sides, up to this
marked line.
The plaintiff derives title from the heirs of Nahor, to the land adjoin-
ing the dower, and he contended that this evidence could not be
received to control the return of the committee.
There was evidence that a part of the distance between the corners
was cleared, and a fence built, which varies from a straight line, but
corresponds with tiie first monument found in the woods.
There was further evidence tending to show that one or more of the
trees alleged to have been marked upon the line as monuments, had
been cut and carried away.
The questions arising upon the foregoing case were reserved for the
consideration of this court.
Farley, for the plaintiff.
J. IT. Parker, for the defendants.
Parker, C. J. If the committee had not run out and marked a line
when they set off the dower of Mrs. Nahor, the course mentioned in the
return must have determined the boundary between the parties ; and
parol evidence could not have been admitted to show that there was
previously a marked line there, varying from the course, and that the
committee intended to adopt that line. Allen v. Kingsbury, 16 Pick.
R. 235. But in this case the committee marked a line, and in this i-e-
spect the present case differs from that just cited, where the monuments
552 GRIFFIN V. BIXBY.
were not erected at the time the dower was set off, but at some ante-
cedent period, and for some purpose not known or explained.
As the monuments in this case were marked at the time by the com-
mittee, and intended to designate the land set off, we are of opinion
that this constituted an actual location, and that they must control the
course mentioned in the return. JSrown v. Gay, 3 Greenl. R. 126 ;
Ripley V. Berry, .5 Greenl. 24 ; Esmond v. Tarbox, 7 Greenl. R. 61 ;
Thomas v. Patten, 13 Me. R. 329 ; Prescott v. Hawkins, 12 N. H.
20, 26 ; and see 1 U. S. Digest, 474. The evidence offered tends to
show that the parties understood that the line was marked and estab-
lished by monuments, and acted with reference to that fact ; which
strengthens the case, and shows the propriety of the rule. Jackson v.
Ogden, 7 Johns. R. 241 ; Clark v. Munyan, 22 Pick. R. 410.
As to the second question : in Waterman v. Soper, 1 Ld. Raym.
737, cited for the defendants, Holt, C. J., ruled that if A. plants a tree
on the extremest limits of his land, and the tree growing extend its
root into the land of B., next adjoining, A. and B. are tenants in com-
mon of this tree, and that where there are tenants in common of a tree,
and one cuts the whole, though the other cannot have an action for the
tree, yet he maj- have an action for the special damage by this cutting.
What action he shall have is not stated, nor is it quite clear that such
an ownership can be established, if the root merely extend into the
other's land.
But in Co. Lit. 200 b, it is said, " If two tenants in common be of
land, and of mete siow&s, pro metis et bundii, and the one take them
up and cany them awaj-, the other shall have an action of trespass
quare vi et armis against him, in like manner as he shall have for the
destruction of doves."
And in Cubitt v. Porter, 8 B. & C. 257, it was held that " the com-
mon user of a wall separating adjoining lands, belonging to different
owners, \s prim,a facie evidence that the wall, and the land on which it
stands, belong to the owners of those adjoining lands in equal moieties,
as tenants in common ; " and " where such an ancient wall was pulled
down by one of the two tenants in common, with the intention of re-
building the same, and a new wall was built, of a greater height tlian
the old one, it was held that this was not such a total destruction of the
wall as to entitle one of the two tenants in common to maintain tres-
pass against the other."
It seems to have been admitted that for an entire destruction of the
wall by one, trespass might have been sustained.
Without going to the extent of the ruling in Lord Raymond, we are
of opinion that a tree standing directlj' upon the line between adjoining
owners, so that the line passes through it, is the common property of
both parties, whether marked or not, and that trespass will lie if one
cuts and destro,ys it without the consent of the other. See cases cited
in Odiorne v. Xyford, 9 N. H. Rep. 511.
HOFFMAN V. ARMSTRONG. 553
HOFFMAN V. AEMSTEONG.
Commission of Appeals of New York. 1872.
[Iteported 48 N. Y. 201.]
Appeal from judgment of the General Term of the Supreme Court in
the Seventh Judicial District, affirming a judgment for the plaintiflF en-
tered on a verdict. The action is for assault and battery. (Reported
46 Barb. 337.)
The facts are these : Dr. Hoffman and the defendant were the owners
of adjoining lands, separated by a line fence. There was a cherry tree
standing upon the land of Dr. Hoffman with limbs overhanging the land
of the defendant. The plaintiff, jvho was a sister of Dr. Hoffman, and
lived with him, went upon the line fence and undertook to pick cherries
from a limb of the tree which overhung the defendant's land. He for-
bade her, and on her still persisting, the defendant attempted to prevent
her by force, and did her a personal injury.
The court held, and so charged the jury, that "every person upon
whose lands a tree stands owns the whole of that tree, notwithstanding
portions of it may overhang the lands of another ; and in this case, as
it is conceded that the body or trunk of the tree was wholly upon the
land of Dr. Hoffman, he was entitled to all the fruit growing thereon,
and hence, if the defendant attempted to prevent the plaintiff from
picking such fruit by violence he was a wrong-doer, and this action lies
against him. If he touched her at all, with the, intention of preventing
her from picking the cherries while she was standing on the premises or
fence of Dr. Hoffman, although thej- were upon the limbs overhanging
his 3"ard, then this action lies against him, and jour verdict should be
for the plaintiff."
The defendant excepted to the several legal propositions contained in
the charge, and requested the judge substantial!}' to charge that the
limbs of the tree ovei'hangiTig the land of the defendant belonged to
him, that he was entitled to the fruit thereon, and that he had the right
to prevent the plaintiff from picking it bj- the application of all neces-
sary force, if she refused to desist after being requested to do so. This
was refused, and exceptions were taken to such refusals.
Amasa J. Parker, for the appellant.
II. V. Howland, for the respondent.
LoTT, Ch. C. The onlj- material question presented in this case is,
whether the owner of land overhung bj- the branches of a fruit tree
standing whollj- on the land of an adjoining owner is entitled to the
fruit growing thereon.
'J'he defendant claims that the ownership of land includes everything
above the surface, and bases his claim on the maxim of the law, " Cvjus
est solum ejus est tisque ad ccelurn," and that consequently he was the
554 HOFFMAN V. AKMSTKONG.
owner of the overhanging branches and the fruit thereon. The general
rule unquestionablj' is, that land hath in its legal signification an in-
definite extent upward, including everj-thing terrestrial, not oulj- the
ground or soil, but everything which is attached to the earth, whether
by the course of nature, as trees, herbage, and water, or by the hands
of man, as houses and other buildings. (See Co. Lit. 4 a ; 2 Black.
Com. 18 ; 3 Kent's Com., p. 401 ; 2 Bouvier's Ins. § 1570.)
This rule, while It entitles the owner of the land to the right to it,
and to the exclusive use and enjoyment of all the space above it, and to
erect anj' superstructure thereon that he may see fit, — and no one can
lawfully obstruct it to his prejudice, — yet if an adjoining owner should
build his house so as to overhang it, such an encroachment would not
give the owner of the land the legal title to the part so overhanging.
It would be a violation of his right, for which the law would aflbrd an
adequate remedy, but would not give him an ownership or right to the
possession thereof. (See Aiken v. Benedict, 39 Barb. 400.)
Although different opinions have been lield as to the rights of owners
of adjoining land in trees planted, the bodies of which are wholly upon
that of one, while the roots extend and grow into that of the other and
derive nourishment therefrom, it was considered by Allen, J., in giving
the opinion of the court in Dubois v. Beaver, 25 N. Y. Rep. 123, etc.,
that the tree is wholly the property of him upon whose land the trunk,
stands. This principle is sustained in Masters v. Pollie, 2 Rol. Rep.
141 ; Solder v. Coates, 1 Moody & Malkin, 112.*
The ground or reason assigned in those cases for holding that the
owner of land on which no part of a tree stands, but into which the
roots extend, has an}- interest, is that the tree derives its nourishment
from both estates, and not the ground »r maxim on which the defend-
ant's claim is based.
We have not been referred to any case showing that where no
part of a tree stood on tlfe land of a party, and it did not receive any
nourishment therefrom, that he had anj- right therein, and it is laid
down in Bouvier's Institutes (section 1573) that if the branches of
a tree only overshadow the adjoining lanJ, and the roots do not enter
into it, the tree wholly belongs to the estate where the roots grow.
(See also Masters v. JPollie, 2 Rol. Rep. 141 ; Waterman v. Soper, 1
Ld. Raymond, 737.) "
The rule or maxim giving the right of ownership to everything above
the surface to the owner of the soil has full effect without extending it
to anything entirely disconnected with or detached from the soil itself.
It follows, from the views above expressed, that the ruling of the
judge at the Circuit was' right, and the judgment appealed from must be
affirmed, with costs.
All concur. Judgment affirmed.
Note. — "I cannot see how that a bare denial of a thing detained shall make a
conversion : Thumblethorpe' s Case, a lessee, at the end of his term, leaves a timher log
on the ground ; afterwards he demands it. A denial of this, without some other act done,
HOFFMAN V. AEMSTRONG. 655
shall not make a conversion of this, if he doth not remove this, and so makes some
other special conversion. Zegere in one sense is to gather. If upon evidence to a jury,
there Hi denial is good evideuce to prove a conversion, but if he saith that he had locked
it up, and brought it into the court, here stahitur presumptiuni donee in contrarium
probeturj this is no conversion, if the contrary be not proved." Fer Coke, C. J., in
Isaack v. Clark, 2 Bulst. 306, 314 (1615).
" If trees grow in my hedge, and the fruit of such a tree hangs over your land, and
falls on your land, I can justify the collection of it, if I do not make too long a stay
there or break down his [your] hedge. Because ripe fruit naturally falls." Per
DoDERlDGE, J., in Milieu v. Fawdry, hatch, 119, 120 (1626).
556 WASTE.
CHAPTER IV.
WASTE.
St. 52 Hen. III. St. of Marlborough (1267), c. 23, § 2. Also
feriiiors, during their terms, shall not make waste, sale, nor exile of
house, woods, and men, nor of anything belonging to the tenements that
they have to ferm, without special license had bj- writing of covenant,
making mention that thfe}- may do it ; which thing, if they do, and
thereof be convict, thej- shall yield full damage, and sliall be punished
b3' amerciament grievousl}*.
St. 6 Edw. I. St. of Gloucester (1278), o. 5. It is provided alsO
that a man from henceforth shall have a writ of waste in the Chancery
against him that holdeth by law of England, or otherwise for term of
life, or for term of years, or a woman in dower ; and he which shall be
attainted of waste shall lose the thing that he hath wasted, and more-
over shall recompence thrice so much as the waste shall be taxed at.''
Reg. Brev. 73. The king to the sheriff, &c., greeting. If A. shall
give jou securitj' of prosecuting his claim, then summon B. by good sum-
moners that he be before our justices at Westminster on the octave of
St. Michael to show wherefore since it has been provided by the com-
mon council of our realm of England that it is not lawful for anj- one
to commit waste, sale, or destruction of lands, houses, woods, or gardens
demised to them for term of life or of years, the same B. has made of the
lands, houses, woods, and gardens in L., which the said A. demised to
him for the term of the life of the said B. (or which the said A. demised
to him for a term of years, or which F., the father or mother or other
ancestor of the said A. whose heir he is, demised to the said B., for the
life of the said B. or for a term of years) waste, sale, and destruction,
to the disherison {ad exhceredationem) of A., and against the form of
the Statute aforesaid, as he saj's : And have there the summoners and
this writ.
1 " Albeit tenant in tail apres possibility of issue extinct doth hold but for life,
and so within the letter of this law, yet is he out of the meaning thereof in respect
of the inheritance which was once in him, in respect whereof his estate is by law dis-
punishable of waste, but his assignee shall be punished for waste by this Statute."
2 Inst. 302.
ANONYMOUS. 557
ANONYMOUS.
King's Bench. 1345.
[Reported Fitz. Ah. Wast, pi. 30.]
Waste, and it was found by the inquest, where it was pleaded for
the party that there was no waste, that as to a kitchen, it was
burned by a strange woman without the knowledge of the defendant
(because he was living elsewhere) ; and that to rebuild this kitchen he cut
the oaks in the woods and hedges near the close ; and that the house is
now better than it was before the fire ; and that he had also cut down a
certain number of oaks in the woods and hedges near the close and
sold them, and had cut down some to repair the houses, and had cut
down one which laj' there yet unsold.
Pole pra3-ed judgment on the verdict for the plaintiff because all
that is found should be adjudged waste by the form of his plea, where-
fore the defendant ought to have pleaded this matter if he wished to
have availed himself of it. •
WiLUGHBY [C. J.]. The fire is waste for the want of good watch.
Thorpe [J.]. Now lately here on a writ of waste it was found by an
inquest taken on default that the Welsh arrived on the sea-coast and
burned a manor, and it was adjudged no waste, so here.
WiLUGHBY [C. J.]. Against the Welsh the party can never have
disturbance. But do you think if your household [?mam] lodges a
stranger who puts the houses in fire and flame, that that will not be
adjudged waste? As if he would say it was. Wherefore the fire is
adjudged waste, and so the kitchen is wasted ; but the cutting to repair
tlie house is not waste, and as to that which is cut and not sold, that is
waste, and that which is cut for repairs, although it was not pleaded, is
adjudged no waste, wherefore the court awards that the plaintiff recover
tlie place wasted and treble damages.
THE ABBOT OF SHIRBOURNE'S CASE.
Common Pleas. 1411.
[Reported Year Boole, 12 Hen. IV. 5.]
The Abbot of Shirbourne brought a writ of waste.^
Norton traversed the waste except in a barn, and said that half of the
barn had fallen before the lease, and as to the other half, he said that
it was unroofed by a sudden storm, and before he could roof it, the
plaintiff entered on him and was seised on the day of the purchase of
the writ, and he demanded judgment, if he could maintain an action
for this waste.
1 Part of the case is omitted.
558 THE ABBOT OF SHIKBOURNE's CASE.
Skrene. We have alleged that he has done waste in a barn, which
we let to him, and he says that the waste was made in one half before
the lease, which is no answer to onr action because, &c., and if he
has made a new barn there himself, and waste has been done in that,
onr action is maintainable.
Hill [J.]. If the matter is so, allege it on j-our part, for his answer
is good.
Skrene. Well, then as to the other half his plea is double, one is
the sudden storm, the other is our entay on him, wherefore we praj- he
may be held to one of them.
Hill [J.]. The plea is not double, because the effect of this plea is
jour entry upon him before he could repair the unroofing.
Skrene. If I traverse the entry, he will rely against me \_reliera sur
moy] on the sudden storm, which excuses him from waste ; for if I let
houses for a term of j-ears, and thej- are unroofed bj- sudden chance, I
shall have no action of waste for that.
Hill [J.]. What you saj' is not law, for although at the beginning
it will not be adjudged waste made by him, but bj' the act of God, j-et
if he suffers the house.to be unroofed, hy reason of which the timber is
injured, he shall answer for this waste, because it is his own fault, and
bj' law he is bound to roof the house.
Skrene. If the whole house is blown down by a sudden wind, I shall
not make a new one.
Hill [J.]. I grant it ; but when the timbers are standing, which are
the substance of the house, and thej' fall for lack of roofing, it is clearly
waste.
Hankford [J.] If I do waste in tenements which I hold for term
of j'ears, and within the term I am put out by the lessor, it is a ques-
tion whether he has an action of waste or not, namelj', during the
term ; and it is proved here bj' the count that the term still con-
tinues ; and yet if he wishes to say that the houses were unroofed by
your fault and not by a sudden wind, he will be concluded bj- the entry
which he made without cause, wherefore the plea seems double.
And then Norton alleged the cause of the entry of the plaintiff" spe-
ciallj' ; viz., that the lease was made bj* indenture on condition, tliat
if waste was done, he could re-enter, and by reason of the unroofing he
re-entered, wherefore, &e.
Hankfokd [J.]. Again you prove bj^ your plea that his entrj- was
tortious, and so the plea is double.
Hill [J.]. The plaintifl' can say that the defendant had suflScient
time before his entrj- to have repaired the house, and did not repair it,
and so prove the waste in the defendant's default, and so prove his
entrj- lawful by the condition aforesaid ; wherefore
Hankfokd [J.] to Norton. Be advised, &C.''
1 "Waste and destruction are nearly equivalent, and are used indifferently in refer-
ence to houses, woods, and gardens ; but exile can be used when serfs are manumitted,
"WASTE. 559
Lit. § 71. Also, if a house be leased to hold at will, the lessee
is not bound to sustain or repair the house, as tenant for term of
and wrongly ejected from their tenements ; but the chance of fire, or an unexpected
event of that kind, excuses all tenants." Fleta, lib. 1, v. 12, § 20.
" In an action of waste brought against tenant by the curtesy, tenant for life, tenant
for years, or tenant in dower, which before hath been named in this Act, the entry of
the plea of the tenant is quod predict' (talis) non fecit vastum, and yet all these by con-
struction of law shall answer for the waste done by any stranger, for he in the reversion
cannot have any remedy but against the tenant, and the tenant shall have his remedy
against the wrong-doer, and recover all in damages against him, and by this means
the loss shall light upon the wrong-doer ; for voluntary waste and permissive waste is
all one to him that hath the inheritance. But if the waste be done by the enemies of
the king, the tenant shall not answer for the waste done by them, for the tenant hath
no remedy over against them. The same law it is if the waste be done by tempest,
lightning, or the like, the tenant shall not an.swer for it. It is adjudged in 9 E. 2,
that if thieves burn the house of tenant for life, without evil keeping of lessee's for
lives fire, the lessee shall not be punished therefore in an action of waste ; nota the
case of fire, &c." 2 Inst. 303.
" Perhaps the universal silence in our courts upon the subject of any such respon-
sibility of the tenant for accidental fires, is presumptive evidence that the doctrine of
permissive waste has never been introduced, and carried to that extent, in the common
law jurisprudence of the United States." 4 Kent, Com. 82.
In Cook V. Champlain Transportation Co., 1 Denio, 91 (1845), the plaintiffs, assignees
of a lease of land, brought an action against a steamboat company for carelessly setting
fire to a mill on the demised premises by sparks from the steamboat. The lease
under which the lessees held provided that the buildings erected on the premises after
the making of the lease (which was the case with the mill), should, " without damages
of any kind, other than the natural wear of the same, revert to and become the prop-
erty of the lessors." Beakusley, J., delivering the opinion of the court, said: " Upon
this state of facts, it was argued that the plaintiffs were bound to rebuild the mill for
the benefit of the lessors, and therefore were entitled to recover its full value from the
defendants; and if such was the liability of the plaintiffs, the consequence stated would
seem to follow.
" This liability of the plaintiffs was placed on two distinct grounds :
" 1. It was said the lessees were bound by their covenant to rebuild; that the cov-
enant ran with the land, and bound their assignees ; and therefore the plaintiffs were
liable.
" 2. That the destruction of the mill by tortious negligence was waste, for which
the plaintiffs, being tenants for a term of years, were answerable to the reversioner,
wholly irrespective of any express agi'eement, and therefore they were entitled to a
corresponding redress from the defendants.
"I pass by the first gi-ound stated, for the last seems decisive of the question. The
plaintiffs claim that the mill was destroyed by the wrongful act of the defendants; and
if so, it was waste, for which the plaintiffs, being tenants for years, were responsible.
' It is common learning,' said Heath, J., in Attersoll v. Stevens (1 Taunt. 198), 'that
every lessee of land, whether for life or years, is liable in an action of waste to his
lessor for all waste done on the land in lease, by whomsoever it may be committed.'
Chambre, J., in the same case, p. 196, said: 'The situation of the tenant is extremely
analogous to that of a common carrier; to prevent collusion (and not on the presump-
tion of actual collusion), both are charged with the protection of the property in-
trusted to them against all but the acts of God and the king's enemies ; and as the
tenant in the one case is charged with the actual commission of the waste done by
others, so, in the other case, the earner is charged with actual default and negligence,
though he loses the goods by a force that was irresistible, or by fraud, against which
no ordinary degree of care and caution could have protected him.' Lord Coke is not
iQO WASTE.
j-ears is tied. But if tenant at will commit voluntarj- waste, as in
pulling down of houses, or in felling of trees, it is said that the lessor
shall have an action of trespass for this against the lessee. As if I
lend to one mj- sheep to tathe his land, or my oxen to plough the land,
and he killeth m}' cattle, I may well have an action of trespass against
him, notwithstanding the tending.
Co. Lit. 57 a. ^''Ifa house be leased to hold at will, the lessee is not
bound, dbc." For the Statute of Gloucester above mentioned extends
not to a tenant at will, and therefore for permissive waste, the lessor
hath no remed3' at all.
"-Bm< if tenant at will commit voluntary waste, <&c." And true it
is, that if tenant at will cutteth down timber trees, or voluntarily pull
down and prostrate houses, the lessor shall have an action of tresi)ass
against him, quare vi et armis ; for the taking upon him power to cut
timber, or prostrate houses, concerneth so much the freehold and inheri-
tance, as it doth amount in law to a determination of his will ; and so
hath it been adjudged.
Co. Lit. 53 a, 53 b. Waste, Vastum dicitur a vastando, of wast-
ing and depopulating : and for that waste is often alleged to be in tim-
ber, which we call in Latin maremium, or maresnium, or maresmium,
it is good to fetch both of them from the original. First, timber is a
Saxon word. Secondly-, maremium is derived of the French word
marreim, or marrein, which properlj- signifleth timber.
An action of waste doth lie against tenant by the curtesy, tenant in
dower, tenant for life, for ^ears, or half a year, or guardian in chivalry,
by him that hath the immediate estate of inheritance, for waste or de-
struction in houses, gardens, woods, trees, or in lands, meadows, &c.,
or in exile of men to the disherison of him in the reversion or re-
mainder. There be two kinds of waste, viz., voluntary or actual, and
permissive. Waste may be done in houses, by pulling or prostrating
them down, or by suffering the same to be uncovered, whereby the spars
less explicit, for he says: ' Tenant by the curtesy, tenant in dower, tenant for life,
years, &o., shall answer for the waste done by a stranger, and shall take their remedy
over.' (1 Inst. ,54 a ; see also 2 Id. 145, 303 ; 1 Chit. Gen. Pr. 388 ; 4 Kent's Com.
77 ; 2 E. S. 334, § 1 ; 1 Inst. 67 a, note 377 ; 2 Eoll. Abr. 821 ; 3 Black. Com. 228 ;
Comyn'.s Land, and Ten. 188.)
"The plaintiffs thus being bound to answer to their landlord for the full value of
the building which was destroyed, were entitled to recover a like amount from the
defendants," pp. 103, 104.
"As to the destruction of a part of the buildings by fire. There was, as has been
seen, no express agreement to repair in the lease. The implied obligation is not to
repair generally, but to so use the property as to make repairs unnecessary, as far as
possible. It is in effect a covenant against voluntary waste, and nothing more. It
has never been so construed as to make a tenant answerable for accidental damages, or
to bind him to rebuild, if the buildings are burned down or otherwise destroyed by
accident. In tliis case it has not been found, neither is it claimed in the petition,
that these premises were burned through the neglect of the United States. No judg-
ment can, therefore, he rendered against the United States on this account." Per
Waite, C. .J., in United Slates v. Bostwidc, 94 U. S. 53, 68. See White v. M'Cann,
1 Ir. C. L. 205.
WASTE. 661
or rafters, plauchers, or other timber of the house are rotten. But if
the house be uncovered when the tenant cometh in, it is no waste in
the tenant to suffer the same to fall down. But though the house be
ruinous at the tenant's coming in, yet if he pull it down, it is waste
unless he re-edify it again. Also, if glass windows (though glazed by
the tenant himself) be broken down, or carried away, it is waste, for
the glass is part of his house. And so it is of wainscot, benches,
doors, windows, furnaces, and the like, annexed or fixed to the house,
either by him in the reversion, or the tenant.
Though there be no timber growing upon the ground, yet the tenant,
at his peril, must keep the houses from wasting. If the tenant do or
suffer waste to be done in houses, yet if he repair them before any
action brought, there lieth no action of waste against him, but he
cannot plead quod non fecit vastum, but the special matter.
A wall, uncovered when the tenant cometh in, is no waste if it be
suffered to decaj-. If the tenant cut down or destroy any fruit trees
growing in the garden or orchard, it is waste ; but if such trees grow
upon any of the ground which the tenant holdeth out of the garden or
orchard, it is no waste.
If the tenant build a new house it is waste, and if he suffer it to be
wasted, it is a new waste. If the house fall down by tempest, or be
burnt by lightning, or prostrated by enemies, or the like, without a
default of the tenant, or was ruinous at his coming in, and fall down,
the tenant may build the same again with such materials as remain, and
with other timber which he may take growing on the ground for his
habitation ; but he must not make the house larger than it was. If the
house be discovered by tempest, the tenant must, in convenient time,
repair it.
If the tenant of a dove-house, warren, park, vivarj-, estangues, or
the like, do take so many, as such sufficient store be not left as he
found when he came in, this is waste ; and to suffer the pale to decay,
whereby the deer are dispersed, is waste.
And it is to be observed that there is waste, destruction, and exile.
Waste properly is in houses, gardens (as is aforesaid) , in timber trees
(viz., oak, ash, and elm, and these be timber trees in all places), either
by cutting of them down, or topping of them, or doing any act whereb}'
the timber maj- decaj*. Also, in countries where timber is scant, and
beeches or the like are converted to building for the habitation of
man, or the like, they are all accounted timber. If the tenant cut
down timber trees, or such as are accounted timber, as is aforesaid,
this is waste ; and if he suffer the young germins to be destroyed, this
is destruction. So it is, if the tenant cut down underwood (as he may
by law), yet if he suffer the young germins to be destroyed, or if he
stub up the same, this is destruction.^
Cutting down of willows, beech, birch, aspe, maple, or the like, stand-
1 See Phillipps v. Smith, 14 M. & W. 589.
36
562 WASTE.
ing iu the defence and safeguard of the house, is destruction. If there
be a quickset fence of white thorn, if the tenant stub it up, or suffer it
to be destroyed, this is destruction ; and for all these, and the like
destructions, an action of waste lieth. The cutting of dead wood,
that is, ubi arbores sunt aridoe, mortuce, cavce, non existentes tnare-
mium, nee portantes fntctus, nee folia in cestate, is no waste ; but
turning of trees to coals for fuel, when there is sufficient dead wood, is
waste.
If the tenant suffer the houses to be wasted, and then fell down tim-
ber to repair the same, this is a double waste. Digging for gravel, lime,
clay, brick, earth, stone, or the like, or for mines of metal, coal, or the
like, hidden in the earth, and were not open when the tenant came in,
is waste ; but the tenant maj' dig for gravel or claj- for the reparation
of the house, as well as he maj- take convenient timber trees.
It is waste to suffer a wall of the sea to be in deca^-, so as by the
flowing and reflowing of the sea, the meadow or marsh is surrounded,
whereby the, same becomes unprofitable ; but if it be surrounded sud-
denly by the rage or violence of the sea, occasioned by wind, tempest,
or the like, without any default in the tenant, this is no waste punish-
able. So it is, if the tenant repair not the banks or walls against
rivers, or other waters, whereby the meadows or marshes be sur-
rounded, and become rushy and unprofitable.
If the tenant convert arable land into wood, or e converso, or
meadow into arable, it is waste, for it change th not onlj' the course of
his husbandry, but the proof of his evidence.^
The tenant maj' take sufficient wood to repair the walls, pales, fences,
hedges, and ditches, as he found them ; but he can make no new : and
he maj- take also sufficient ploughbote, firebote, and other housebote.
The tenant cutteth down trees for reparations, and selleth them, and
after buyeth them again, and eraploj's them about necessarj"^ repara-
tions, yet it is waste by the vendition ; he cannot sell trees, and with
the money cover the house.^ Burning of the house by negligence or
mischance is waste.
Co. Lit. 53 b. No person shall have an action of waste, unless he
hath the immediate state of inheritance.
Co. Lit. 54 a. If a lease be made to A. for life, the remainder to
B. for life, the remainder to C. in fee, in this ease, where it is said in
the Register, and in F. N. B., that an action of waste doth lie, it is to
be understood after the death or surrender of B. in the mean remain-
der, for during his life no action of waste doth lie.
But if a lease for life be made, the remainder for j-ears, the remainder
in fee, an action doth lie presently during the term in remainder, for
the mean term for years is no impediment.
There is waste of a small value, as Bracton saith, JVisi vastum ita
1 See AfkiTis v. Temple, 1 Ch. Rep. 13 ; Fermier v. Maund, lb. 116 ; Cole v. Greene,
1 Lev. 309.
^ See Gower v. Eyre, G. Coop. 156. ,
COUNTESS OF SHREWSBURY'S CASE. 563
modicum sit propter quod non sit inquisitio facienda. Yet trees to
the value of three shillings and four pence hath been adjudged waste,
and manj- things together may make waste to a value.
Co. Lit. 54 b. A man hath land in which there is a mine of coals,
or of the like, and maketh a lease of the land (without mentioning anj'
mines) for life or for years, the lessee for such mines as were open at
the time of the lease made, may dig and take the profits thereof.
But he cannot dig for any new mine, that was not open at the time of
the lease made, for that should be adjudged waste. And if there be
open mines, and the owner make a lease of the land, with the mines
therein, this shall extend to the open mines only, and not to any hidden
mine ; but if there be no open mine, and the lease is made of the land
together with all mines therein, there the lessee may dig for mines, and
enjoy the benefit thereof, otherwise those words should be void. I
have been the more spacious concerning this learning of waste, for
that it is most necessary to be known of all men.^
COUNTESS OF SHREWSBURY'S CASE.
King's Bench. 1600.
[Reported 5 Co. 13.]
The Countess of Shrewsbury brought an action on the case against
Richard Crompton, a law^'erof tlie Temple, and declared, that she leased
to him a house at will, & quod ille tarn negligenter <& improvide custo-
divit iffnem suum, quoddomus ilia combusta fuit : to which the defend-
ant pleaded not guilty, and was found guilty, &c. And it was adjudged
that for this permissive waste no action lay, against the opinion of
Brook in the abridgment of the case of 48 E. 3, 25 ; Wast. 52. And
the reason of the judgment was, because at the common law no remedy
laj- for waste, either voluntary or permissive against lessee for life or
years, because the lessee had interest in the land by the act of tiie
lessor, and it was his folh' to make such lease, and not restrain him hy
covenant, condition, or otherwise, that he should not do waste. So and
for the same reason, a tenant at will shall not be punished for permis-
sive -waste. But the opinion of Littleton is good law, fol. (15) 152. If
lessee at will commits voluntary waste, soil, in abatement of the houses,
or in cutting of the woods, there a general action of trespass lies against
him. For as it is said in 2 and 3 Phil. & Mar. Dyer 122 b, when ten-
ant at will takes upon him to do such things which none can do but the
owner of the land, these amount to the determination of the will, and of
his possession, and the lessor shall have a general action of trespass
without any entry : and there 15 E. 4, 20 b, is cited, that if a bailee of
goods as of a horse, &c. kill them, the bailor shall have a general action
1 See Co. Lit. 316 a.
564 BOWLES'S CASE.
of trespass, for by the killing tlie privitj- was determined. But it was
agreed that in some cases, when there is a confidence reposed in the
part}', the action upon the case will lie for negligence, although ihe de-
fendant comes to the possession b}- the act of the plaintiff. As 12 E.
4, 13 a, b, where a man delivers a horse to another to keep safe, the
defendant equwm ilium tarn neyligenter custodivit, quod ob defectum
boncB custodicB inter lit ; the action on the case lies for this breach of
the trust. So 2 H. 7, 11, if m}- shepherd, whom I trust with my sheep,
and by his negligence they be drowned, or otherwise perish, an action
upon the case lies : but in the case at bar it was a lease at will made to
the defendant, and no confidence reposed in him ; wherefore it was
awarded, that the phantiff take nothing -by her bill.
BOWLES'S CASE.
King's Bench. 1615.
[EeportedU Co. 79.]
Lewis Bowles, Esq., brought an action upon the case upon trover
against Haseldine Bury the younger (which began in the King's Bench,
Hil. 10 JacobiJiegis, Rot. 1319), and declared that he was possessed of
thirty cart loads of timber, and lost them, and that they came into the
hands of the defendant, and that he 20 Feb. anno 9 Jdc. Regis, at
Norton, in the county of Hertford, converted them to his own use ; and
upon not guilty pleaded, the jurj' gave a special verdict to this effect.
Thomas Bowles, Esq., grandfather of the said Lewis, was seised of the
manor of Norton-Buiy , in the said county in fee, and, 1 Sept. anno 12 by
indenture, betwixt him on the one part, and William Hide and Leonard
Hide of the other part, in consideration of a marriage to be had betwixt
the said Thomas Bowles and Anne, daughter of the said William Hide,
&c. covenanted, that after the said marriage had and solemnized, that
the said Thomas, his heirs and assigns, would stand seised of the said
manor of Norton-Bur}-, to the use of the said Thomas and Anne, for
the term of their lives, without impeachment of waste, and after their
deceases, to the use of their first issue male, and to the heirs male of
such issue lawfully begotten, and so over to the second, third, and
fourth issue male, &c. and for want of such issue, to the use of the
heirs males of the bod}' of the said Thomas and Anne lawfull}' begotten ;
and for want of such issue, to the use of Thomas Bowles, son and heir
apparent of Thomas Bowles the grandfather, and the heirs males of his
body issuing, and for want of such issue, to the use of the heirs of
the body of the said Thomas and Anne lawfully issuing. Which mar-
riage was solemnized accordingly, and the said Thomas the grandfather,
and Anne, had issue John ; and afterwards the said Thomas the
grandfather died without an}- issue on the body of Anne, but the said
John ; after whose death the said Anne entered into the said manor,
Bowles's case. 565
and was thereof seised, with the said remainder over, as aforesaid, and
afterwards the said John Eowles died, and afterwards Thomas the son
conve3-ed b}' fine his remainder to the use of Lewis Bowles the plain-
tiff, and Diana his wife, and the lieirs males of his body ; and the said
Anne being so seised of the said manor, with the remainder over as
aforesaid, viz. 20 Feb. an. Ri^g. Jac. reg. 9, a barn, parcel of the
said manor per vim ventorum et tempestat' penitus suhvers. et ad
terram deject' fuit, and that the said thirty cart loads of timber, in the
declaration mentioned, were parcel of the said bam, and that the said
timber was sound and fit for building, wherefore the defendant, as
servant of the said Anne, and by her command, took the said timber,
and carried it out of the limits of the said manor to Radial, in the same
countj' ; and afterwards the said Anne, 24 Feb. anno 9 Jac. Meg. made
her last will, and thereof made Robert Osborne and Leon. Hide, Knts.
her executors, and died, after whose death the plaintiff seized the said
timber, and afterward the defendant, by the command of the said
executors, converted it to his use ; and if upon the whole matter the
defendant was guiltj- or not, the jury prayed the opinion of the court.
And in this case two questions were moved. 1. If upon the wholq
matter the wife should be tenant in tail after possibility, or that she
should have the privilege of a tenant in tail after possibility, sc. to do
waste, &c. 2. Admitting that she should not have the privilege, &c. if
the clause of " without impeachment of waste," shall give her property
in the timber so blown down by the wind.
And in this ease eight points were resolved by the whole court.
1. That till issue, Thomas the grandfather and Anne, were seised of
an estate tail executed sub modo., sc. until the birth of issue male, and
then by the operation of law the estates are divided, sc. Thomas and
Anne become tenants for their lives, the remainder to the issue male in
tail, the reversion to the heirs males of Thomas and Anne, the remainder
over as aforesaid ; for the estate for their lives is not absolutely merged,
but (exists) with this imphed limitation until they have issue male.
Vide ChudleigKs Case in the First Part of my Reports, fol. 120, and
Archer's Case, fol. 66 b.
2. That tenant in tail, after possibihty, has a greater pre-eminence
and privilege, in respect of the quality of his estate, than tenant for
life, but he has not a greater quantity of estate than tenant for life ; in
respect of the quality of his estate, it tastes much of the quality of an
estate in tail, out of which it is derived: and, therefore, 1. She shall
not be punished for waste. 2. She shall not be compelled to attorn.
3. She shall not have aid. 4. On her alienation no Consimili casu lies.
5. After her death no writ of intrusion lies. 6. She may join the mise
in a writ of right in a special manner, temp. E. 1 ; Wast. 125 ; 39 E.
3, 16 a, b ; 31 E. 3 ; Aid. 35 ; 43 E. 3, 1 a ; 45 E. 3, 22 ; 46 E. 3, 13 a,
27; 11 H. 4, 15 a; 7 H. 4, 10 b; 2H.4, 17 b; 42 E. 3, 22; 3 E.4, 11
a : 21 H. 6, 56 ; 10 H. 6, 1 b ; 13 p:. 2 ; Mitre Congeable, 56 ; 28 E. 3,
96 b ; 26 H. 6 ; Aid. 77 ; F. N. B. 203. 7. In an action brought by her,
566 Bowles's case.
she shall not name herself tenant for life. 18 E. 3, 27 a, a woman
brought a Ciei in vita, quoci clamat tenere ad vitam, and maintained
it in her count by a gift in special tail to her and her husband, and that hfr
husband is dead without issue, and the writ for variance of the title
abated. 8. In an action brought against her, she shall not be named
tenant for life, sc. quod tenet ad terminuni vitCB. Mich. 39 & 40 Eliz.
Eot. 3316, in Communi Sanco, inter Veal et alios quer' et Mead def
in quid juris clamat, and the note of the fine supposed that the defend-
ant tenet ad terminum vitce, the defendant demanded ojer of the writ,
and of the note of the fine, and had it, and pleaded that he was seised
in fee, absque hoc quod, the daj- of the note levied tenuit pro termino
vitce, and the jurj- found that he held as tenant in tail after possibility- of
issue extinct; and it was adjudged jor-o defendente ; for tenant in tail,
after possibilit)-, shall not be in judgment of law included in a writ or fine,
&c. within the general allegation of a tenant for life. Vide 19 E. 3, 1 b.
But as to the quantitj-, he has but an estate for life ; and therefore,
if he makes a feofl'ment in fee, it is a forfeiture of his estate, 13 E. 2 ;
JEJntre Cong. 56 ; 45 Ed. 3, 22 ; 21 E. 3, 96 b ; 27 Ass. 60 ; F. N. B,
159. So if fee or tail general descends or remains to tenant in tail after
possibilitj-, &c. the fee or estate tail is executed, 32 E. 3, Age 65. 50
E. 3, 4 ; 9 E. 4, 17 b. And by the Stat, of W. 2, he in reversion shall
be received upon his default, 2 E. 2. Eesceit 147 ; 41 E. 3, 12 ; 20 E.
3 ; Eesceit—; 38 Ed. 3, 33. Vide 28 E. 3, 96 b ; 39 E. 3, 16 a. b.
And an exchange betwixt tenant for life and tenant in tail, after possi-
bilit}', is good ; for their estates are equal.
3. It was resolved, that the estate of a tenant in tail, after possibilitj',
ought to be a remnant and residue of an estate tail, and that by the
act of God, and not by the limitation of the party dispositione legis,
and not ex provisione hominis : and tlierefore if a man makes a gift in
tail upon condition, that if he does such an act, that he shall have but
for life, he is not tenant in tail after possibility of issue extinct, for that
is ex provisione hominis, and not ex dispositione legis: but it ought
to be the remnant and residue of an estate tail, and that by the act of
God and the law, sc. by the death of one donee without issue. Lit. 6 b ;
Doct. and Stud. lib. 2, "cap. 1, fol, 61 ; 2 H. 4, 17 b ; 26 H. 6 ; Aid. 77.
If tenants in special tail recover in assise, and afterwards one dies
without issue, and afterwards he who survives (who is tenant in tail
after possibility) is re-disseised, he shall have a re-disseisin, for it is
the same freehold he had before, for it is parcel of the estate tail : and
because the wife in the case at bar had the estate for life bj' limitation
of the party, and the estate which she had in the remainder, sc. of the
tenancy in tail after possibilitj', was hot a larger estate in quantity, and
therefore could not merge the estate for life, as has been said before,
for this cause the wife was not tenant in tail after possibilitj*.
4. It was resolved, that in this case the wife should have the privi-
lege of a tenant in tail after possibility' for the inheritance which was
once in her; for now when John the issue male is dead, the privilege
Bowles's case. 567
which she had in respect of the inheritance which was in her in
remainder shall not be lost. And there is no question but a woman
may be tenant in tail after possibility of a remainder as well as of a
possession ; and therefore if a lease for life is made, the remainder to
husband and wife in special tail, the husband dies without issue, now is
the wife tenant in tail after possibility of this remainder ; and if the
tenant for life surrenders to her, as he may (for the life of him in the
remainder is higher than the other life) now is she tenant in tail after
possibility of possession : and like this case if the father is enfeoffed to
him and his heirs with warranty, and the father enfeoffs the son, &c.
and dies ; in this case the son, although he has the land by purchase,
j-et he shall take the benefit of the warranty as heir, for he cannot vouch
as assignee, and the warranty betwixt the father and him is lost, as it
is adjudged in 43 E. 3, 23 b. So here, although the wife cannot claim
the estate of tenant in tail after possibility, yet she ma}- claim the privi-
lege and benefit of it. And it was observed, that tenants in special
tail at the common law had a limited fee simple ; and when their estate
was changed b}' the Statute De Donis conditional', yet there was not
any change of their interest in doing of waste : so when b^- the death of
one donee without issue the estate is changed, yet the power to commit
waste, and to convert it to his own use, is not altered nor changed for
the inheritance which was once in him, vide Hil. 2 Jac. Rot. 229, inter
JBrooke and Rogers, in Communi Jianco, if a timber tree becomes arida,
sicca, non portans fi'uctus nee folia in cestate, nee existens mcereniium,
yet because it was once an inheritance, &c. no tithes shall be paid for it,
for that the quality remains, although the state of the tree is altered.
5. That if tenant for life or for jears fells timber, or pulls down the
houses, the lessor shall have the timber ; and because this point was
resolved in this court upon a solemn argument in Liford's Case at Mich,
term, whicli vide before in this book, I will make the shorter report.
1. It is apparent in reason, that the lessee had them but as things an-
nexed to the soil ; and therefore it would be absurd in reason, that when
by his act and wrong he severs them from the land, that he should gain
a greater property in them than he had by the demise. 2. It is without
question (as it is resolved in the said case) that the lessor has the
general ownership and right of inheritance in the houses and timber
trees, and the lessee has but a particular interest, and therefore be thej^
pulled down or felled bj- the lessee or anj- other, or by wind or tempest
blown down, or by an}' other means disjoined from the inheritance, the
lessor shall have them in respect of his general ownership, and because
the}' were his inheritance ; and as to that, the resolutions in Herlahen-
den's Case, in the Fourth Part of my Reports, fol. 63 a, were affirmed
for good law, and Pagefs Case in the Fifth Part of my Reports, fol. 76 b,
for although he cannot punish them in an action of waste at the common
law because it was his own act, and in his lease he has not made pro-
vision by covenant or condition ; yet the inheritance and general owner-
ship remains in the lessor, and the lessee (as hath been said) has but a
568 BOWLES'S CASE.
special interest in the houses and timber-trees so long as they are an-
nexed to the land, and this appears b}' the Statute of Marlebridge, c. 23.
Itemfirmarii vastum, dbc. non facient, nisi specialem inde habuerint
concessionem per scriptum conventionis, mentionem faciens quod hoc
facere possint, whereby it appears, that the lessees for life or years,
which then were, could not rightfully fell the trees, or pull down the
houses, unless the lessor had granted b^- deed to do it. In which it was
also observed, that at the time of the making of the same Act, the said
clause of " without impeachment of waste" was in use, which proves
that it was to such purpose that the lessee might commit waste, and
dispose it to his own use, which he could not do without such clause.
3. Every lessee for life and j'ears ought bj- the law to do fealtj' upon
his oath, and it would be against his oath to waste the houses and tim-
ber-trees. And, nota, reader, upon this Statute of Marlebridge lies a
prohibition of waste against the lessee for life, and lessee for j'ears, to
prohibit them that thej' shall not do waste before any waste was done,
as it was against tenant in dower, and tenant by the curtesj' at the
common law. Vide Bract. 316, the judgment in waste at the common
law. Tenant in dower or by the curtesy have as high an estate as
lessee for life ; and it appears that it was not lawful for tenant \>y the
curtesy or in dower to do waste, ergo no more for tenant for life : the
onlj- difference was, that a prohibition of waste lay against tenant in
dower, and b}- the curtesy, at the common law, and not against the lessees
till the said Statute of Marl. And to prove what interest the lessee for
life has in the trees at the common law, it appears bj' Bracton (who
wrote before the Statute of Glou'), lib. 4, tract' De Assisa novoe dis. c.
4,/'. 217. /Si quis vastum fecerit, vel destructionem in tenemento quod
tenet ad vitam suam, in eo quod modum excedit, et rationem, cum
tantum conceditur ei rationabile estoverium, facit transgressionem,
et si talis impediatur, ille tenens assisam non hahebit, intentio talis
liberabit a disseisina, quia in eo quod tenens abutitur male utendo, et
debitum, uswn et modum debitum, excedendo, non potest dicere quod
disesisitus est, quia tantum rationabilis usus ei conceditur ; whicli
proves directly, that it was a wrong in the lessee for life to do waste,
or destruction at the common law. And it was resolved, if an house
falls down per vim venti in the time of such lessee for life or for years,
or in the time of the tenant in dower, or tenant hj the curtesy, &c.
that such particular tenants have a special property in the timber to
rebuild the like house as the other was for his habitation : as if thej' fell
a tree for reparation, the)' have a special property to that purpose in it,
and therewith agree 44 E. 3, 5 b ; 44 E. 3, 44 b ; 29 E. 3, 3 ; and 10 E.
4,3a. But the said particular tenants cannot give or sell the tree so
felled, for the general property is in the lessor ; and therefore, Lit. f.
15, holds, that if I baU goods to another to manure his land, now he
has a special property in them to that purpose : and in that case, if he
kills them, a general action of trespass lies against him. See 11 H. 4,
17 a, & 23 b.
Bowles's case. 669
6. The pre-eminence and privilege which the law gives to houses
which are for men's habitation was observed. First, an house ought to
have the prioritj' and precedency in a Prcecipe quod reddcit before land,
meadow, pasture, wood, &c. F. N. B. 2, &c. ; for his house is his
castle, et domus sua est unicuique tutissimum refuglmn. 2. The
house of a man has privilege to protect him against arrest bj- virtue of
process of law at the suit of a subject, vide Semaine's Case, in the Fifth
Part of my Reports, fol. 91 b. 3. It has privilege against the king's
l)rerogative, for it was resolved by all the judges, Mich. 4 Jac. that
those who dig for saltpetre, shall not dig in the mansion-house of an}-
subject without his assent; for then he, or his wife or children, cannot
be in safety in the night, nor his goods in his house preserved from
thieves and other misdoers. 4. He who kills a man sc d;fendendo, or
a thief who would rob him in the highway, by the common law shall
forfeit his goods : but he who kills one that would rob and spoil him in
his house, shall forfeit nothing. 3 E. 3 ; Corone 330 & 26 Ass. 23, &c.
5. If there be two joint-tenants of a wood, or arable land, the one has
no remedy against the other to make inclosure or reparations for safe-
guard of the wood, or corn : but if there be two joint-tenants of an house,
the one shall have a writ De reparatione facienda against the other,
and the words of the writ are ad repdrationem et sustentationem ejus-
dem domus tenetur, F. N. B. 127 a, b. If a man is in his house, and
hears that others will come to his house to beat him, he may call together
his friends, &c. into his house to aid him in safety of his person ; for,
as it has been said, a man's house is his castle and his defence, and
where he properly ought to remain : but if a man be threatened if he
comes to such a fair or market that he shall be beaten, in that case he
cannot make such assembly, but he ought to have remedy by surety of
the peace. 21 H. 7, 39 a.
7. The clause of " without impeachment of waste " gives a power to
the lessee, which will produce an interest in him if he executes his power
during the privity of his estate ; and therefore to examine it in reason.
] . These words absque impetitione vasti, are as much as to say, with-
out any demand for waste ; for impetitio is derived from in and peto,
and petere is to demand, and petitio is a demand, and siJie impetitione
is without anj' manner of demand or impeachment : then this word
demand is of a large extent ; for if a man disseises me of my land, or
takes my goods, if I release to him all actions, yet I may enter into the
land, or take my goods, as Lit. holds, f 115, and therewith agree 19
Ass. 3 ; 19 H. g", 4b; 21 H. 7, 23 b ; 30 E. 3, 19, for by the release of
tlie action, the right or interest is not released, but if in such case I
release all demands, that will bar me, not only of my action, but also
of my entry and seizure, and of the right of my land, and of the prop-
erty of my goods ; as it was resolved in Chauncy's Vase, 34 H. 8 ; Br.
Release 90 ; 2 H. 7, 6 b, the king made one sheriff sine computo,
thereby he shall have the revenues which belong to his office to collect
to his own use. But if the words had been absque impetit' vasti per
570 Bowles's case.
aliquod breve de vasto, then the action onlj' would be discharged, and
not the property in the trees, but that the lessor after the fall of them
might seise them : and this difference appears in 3 Edw. 3, 44 a, b, in
Walter Idle's Case, where a lease was made without being impeached, oi'
impleaded for waste, upon which it was collected that these words " with-
out being impleaded," without these words " without being impeached
for waste," were not sufficient to bar the lessor of his propertj-, and that
if the lessor had granted that the lessee might do waste, he thereb}' had
power not onlj- to do waste, but also to convert it to his own use ; and
that the words of the said Act of Marlebridge, and the Statute De
Pr<Krogatwa Regis, c. 16, do prove where it is said, that the king shall
have a/mum, diem, et vastum, sc. which is as much as to saj', that he
shall have the trees, &c. at his own disposition.
2. It was said, that the continual and constant opinion of all ages was,
that those words gave power to the lessee to do waste to his own house,
and it would be dangerous now to recede from it, and as it is said in 38
Edw. 3,1a, bj- the judges (so we sa\- in this case) we will not change
the law which has been alwaj-s used ; and it is well said in 2 Hen. 4,
18 b : It is better that there should be a defect, than that the law should
be changed ; and the opinion of Wray, C. J., and Manwood, cited in
Herlakenden' s Case, was not judicial but prima facie upon an arbitra-
ment without any argument, and perhaps upon the sight of 27 Hen. 6,
Waste 8 ; and therefore, although the Chief Justice argued in this case,
against their opinions, 3et it was with great reverence to them, saying
with Aristotle in the like ease, amicus Plato, amicus Socrates, sed
magis arnica Veritas ; and qui non libere veritatem promcnciat,
proditor veritatis est.
And the truth of this case appears by Littleton in his Chapter of Con-
ditions, fol. 82, where he puts this case, If a feoffment be made upon
such condition, that the feoffee shall give the land to the feoffor, and to
the wife of the feoffor, to have and to hold to them and to the heirs of
their two bodies begotten, the remainder to the right heirs of the feoffor ;
in that case if the husband dies, living the wife, before anj' estate in tail
made to them, then ought the feoffee by the law to make an estate to the
wife as near the condition and as near the intent of the condition as he
can make it, sc. to lease the land to the wife for term of her life without
impeachment of waste, the remainder to the heirs of the bod^- of her
husband of her begotten, the remainder to the right heirs of the husband^
and the reason whj- the lease shall be made in this case to the wife with-
out impeachment of waste is, that the estate shall be to the husband and
his wife in tail, and if such estate had been made in the life of the hus-
band, then after the death of the husband she had had an estate in tail,
wliich estate is without impeachment of waste, and so it is reasonable
that a man should make an estate as near the intent of the condition as
he can, which case directly proves, that tenant for life without im-
peachment of waste has as great power to do waste and to convert it
at his own pleasure as tenant in tail had. That these words without
Bowles's case. 571
" impeachmentof waste," are sufflcient words to give tenantforlife such
power, vide 2 H. 4, 5 b, and the Lord CromioeU's Case in the Second
Part of my Reports, fol. 81 a, b, 82 a ; and for this clause of without
impeachment of waste, 3 Ed. 3, 44 ; 8 Ed. 3, 4 a, b, 35 a ; 24 Ed. 3, 32 ;
43 Edw. 3,5a; 5 Hen. 5,8; 27 Hen. 6 ; Waste, 8 ; 4 E. 4, 36 a ; 20
Hen. 7, 10 ; 28 H. 8 ; Dyer, 10 ; and so the Quaere in the said book of
27 H. 6, well resolved.
And see the opinion of Statham in abridging the said book against it.
But the said privilege of without impeachment of waste, is annexed
to the privity of estate, 3 Edw. 3, 44, bj- Shard and Stone ; if one who
has a particular estate without impeachment of waste, changes his estate,
he loses his advantage, 5 Heu. 5, 9 a. If a man makes a lease for years
without impeachment of waste, and afterwards he confirms the land to
him for his life, now he shall be charged for waste, 28 Hen. 8 ; Dyer,
10 b. If a lease is made to one for the term of another's life, without
impeachment of waste, the remainder to him for his own life, now he is
punishable for waste, for the first estate is gone and drowned ; so of a
confirmation. It was adjudged in JEwen's Case, Mich. 28 and 29 Eliz.
that where tenant in tail after possibilitj- of issue extinct granted over
his estate, that the grantee was compelled in a Quid juris damat to
attorn, for b}- the assignment such privilege is lost; and that judgment
was affirmed in the King's Bench, in a writ of error, and therewith
agrees 27 H. 6 ; Aid. in Statham ; nide 29 E. 3, 1 b.
The heir at common law should have a prohibition of waste against
tenant in dower, but if the heir granted over his reversion, his grantee
should not have a prohibition of waste : for it appears in the Register
72 that such assignee in an action of waste against tenant in dower shall
recite the Statute of Gloucester ; ergo, he shall not have a prohibition of
waste at common law, for then he should not recite the Statute. Vide
F. N. B. 55 c ; 14 H. 4, 3 ; 5 H. 5 (7) 17 b.
Lastl3-, it was resolved, that the said woman by force of the said
clause of without impeachment of waste, had such power and privilege,
that though in the case at bar no waste be done, because the house was
blown down per vim venti without her fault, yet she should have the
timber which was parcel of the house, and also the timber trees which
are blown down with the wind ; and when they are severed from the in-
heritance either by the act of the part}-, or of the law, and become chat-
tels, the whole property of them is in the tenant for life bj- force of the
said clause of '• without impeachment of was'te." And for this cause
judgment was given per omnes Justiciarios una voce, quod querens
nihil caperet per billam.
572 ASTRY V. BALLAKD,
ASTRY V. BALLAED.
King's Bench. 1677.
[Reported i Mod. 193.]
Trover and conversion for the taking of coals. — Upon not guilty
pleaded, the jury found a special verdict, That one J. R. was seised in
fee of the manor of Westerly, and being so seised did demise all the
messuages, lands, tenements, and hereditaments, that he had in the
said manor, for a term of years to N* R. in which demise there was a
recital of a grant of the said manor, messuages, lands, tenements, com-
mons, and mines, but in the lease itself to R. the word " mines " was
left out. Afterwards the reversion was sold to the plaintiff Astr3- and
his heirs by deed enrolled ; and at the time of this demise there were
certain mines of coals open, and others which were not then open ; and
the coals for which this action of trover was brought, were digged hy
the lessee in those mines which were not open at the time of the lease :
and. Whether he had power so to do? was the question.
It was said. That when a man is seised of lands wherein there are
mines open, and others not open, and a lease is made of these lands in
which the mines are mentioned, it is no new doctrine to saj', that the
close mines shall not pass. Men's grants must be taken according to
usual and common intendment, and when words ma3' be satisfied, they
shall not be strained farther than they are generallj- used ; for no violent
construction shall be made to prejudice a man's inheritance, contrary to
the plain meaning of the words. A mine is not properly so called
until it is opened, it is but a vein of coals before ; and this was the
opinion of Lord Coke in point, in his- First Inst. 54 b, where he tells us,
that if a man demise lands and mines, some being opened and others
not, the lessee maj' use the mines opened, but hath no power to dig the
unopened mines.
And of this opinion was the whole court ; and Twisden, Justice, said.
That he knew no reason wh}- Lord Coke's single opinion should not be
as good an authority as Fitzherbert in his Natura liremum, or the
Doctor and Student.
VANE V. LORD BARNARD.
Chancery. Before Lord Cowper, C. 1717.
[Reported 2 Vern. 738.]
The defendant on the marriage of the plaintiff his eldest son with the
daughter of Morgan Randyll, and £10,000 portion, settled {inter
alia) Raby Castle on himself for life, without impeachment of waste,
"WHITFIELD V. BEWIT. 573
remainder to his son for life, and to his first and other sons in tail
male.
The defendant the Lord Barnard having taken some displeasure
against his son, got two hundred workmen together, and of a sudden,
in a few days, stript tlie castle of the lead, iron, glass-doors, and
boards, &c. to the value of £3,000.
The court upon filing the bill, granted an injunction to stay com-
mitting of waste, in pulling down the castle ; and now, upon the hear-
ing of the cause, decreed, not only the injunction to continue, but that
the castle should be repaired, and put into the same condition it was
in, in August 1714, and for that purpose a commission was to issue to
ascertain what ought to be repaired, and a Master to see it done at the
expense and charge of the defendant the Lord Barnard ; and decreed
the plaintiff his costs.
WHITFIELD V. BEWIT.
Chancery. Before Lord Macclesfield, C. 1724.
[Reported 2 P. Wms. 240.]
One seised in fee of lands in which there were mines, all of them
unopened, b^- deed convej-ed those lands and all mines, waters, trees,
&c. to trustees and their heirs, to the use of the grantor for life (who
soon after died), remainder to the use of A. for life, remainder to his
first, &c. son in tail male successively, remainder to B. for life, remain-
der to hife first, &c. son in tail male successivelj", remainder to his two
sisters C. and D. and the heirs of their bodies, remainder to the grantor
in fee.
A. and B. had no sons, and C. one of the sisters died without issue,
by which the heir of the grantor, as to one moiety of the premises, had
the first estate of inheritance.
A. having cut down timber sold it and threatened to open the mines ;
the heir of the grantor being seised of one moiety ut supra by the
death of one of the sisters without issue, brought this bill for an
account of the moiety- of the timber and to stay A.'s opening of any
mine.
1st Obj. As to the plaintiffs claim of the moiety of the moneys
arising b}' sale of the timber, in regard the plaintiff comes into equit}'
lor the same, it would be more agreeable to the rules of equity, that
the monej-s produced by the timber should be brought into court and
l)nt out for the benefit of the sons as yet unborn and which maj' be
born. That these' contingent remainders being in gremio legis and
under the protection of the law, it would be most reasonable that the
moneys should be secured for the use of the sons when there should be
any born ; but as soon as it became impossible there should be a son,
then a moiety to be paid to the plaintiff; and the case would be the
574 BEWICK V. WHITFIELD.
same if there were a son in ventre sa mere ; or the plaintiff miglit
bring trover, and then what reason had he to come into equit\- ?
Cdr. : The right to this timber belongs to those who at the time of
its being severed from the freehold were seised of the tirst estate of
inheritance, and the property becomes vested in them.
As to the objection that trover will lie at law, it may be very neces-
sary for the part3' who has the inheritance to bring his bill in this court,
because it may be impossible for him to discover the value of the tim-
ber, it being in the possession of, and cut down bj- the tenant for life.
This was the verj- case of the Duke of Netocastle versus Mr. Vane,
where at Welbeck (the duke's seat in Nottinghamshiie) great quanti-
ties of timber were blown down in a storm ; and though there were sev-
eral tenants for life, remainder to their first and every other son in tail,
yet these having no sons born, the timber was decreed to belong to
the first remainder-man in tail.
Neither do I think the defendant ought (as he insists) to be allowed
out of this timber what money he has laid out in timber for repairs,
since it was a wrong thing to cut down and sell the same, and shows
quo animo it was done, not to repair but to sell.
2dlj', it was urged, that the mines being expressly granted by this
settlement with the lands, it was as strong a case as if the mines them-
selves were limited to A. for life, and like Saunders's Case in 5 Co. 1 2,
where it is resolved, that on a lease made of land together with the
mines, if there be no mines open, the lessee ma}- open them ; so in this
case, there being no mines open, the cestui que use for life might oi)en
them.
But Lord Chancellor contra. A. having onl}- an estate for life sub-
ject to waste, he shall no more open a mine than he shall cut down the
timber-trees, for both are equally granted b}- this deed ; and the mean-
ing of inserting mines, trees, and water, was, that all should pass, but
as the timber and mines were part of the inheritance, no one should
have power over them but such as had an estate of inheritance limited
to him.
Of which opinion was Lord Chancellor King on a rehearing.
BEWICK V. WHITFIELD.
Chancery. Before Lord Talbot, C. 1734.
[Reported 3 P. Wms. 267.]
A. WAS tenant for life, remainder to B. in tail, as to one moiet}', re-
mainder as to the other moiet}' to C. an infant in tail, remainder over.
There was timber upon the premises greatly decaying ; whereupon B.
the remainder-man, brought a bill, praying, that the timber that was de-
caying might be cut down, and that the plaintiff the remainder-man in
BATEMAN V. HOTCHKIN. 575
tail, together with the other remainder-man, the infant, might have the
money arising \>y the sale of this timber. On the other hand, the
tenant for life insisted to have some share of this money.
Lord Chancellor. The timber, while standing, is part of the in-
heritance ; but whenever it is severed, either by the act of God, as by
tempest, or b}- a trespasser and bj' wrong, it belongs to him who has
tlie first estate of inheritance, whether in fee or in tail, who may bring
trover for it ; and this was so decreed upon occasion of the great
windfall of timber on the Cavendish estate.'
2dl3'. As to the tenant for life, he ought not to have any share of the
mone3' arising by the sale of this timber ; but since he has a right to
what maj' be sufficient for repairs and botes, care must be taken to
leave enough upon the estate for that purpose ; and whatever damage is
done to the tenant for life on the premises hy him held for life, the same
ought to be made good to him.
3dly. With regard to the timber plainly decaying, it is for the benefit
of the persons entitled to the inheritance, that it should be cut down,
otherwise it would become of no value ; but this shall be done with the
approbation of the Master ; and trees, though decaying, if for the defence
and shelter of the house, or for ornament, shall not be cut down. B. that
is the tenant in tail (and of age), of one moiety, is to have a moiety of
the clear money subject to such deductions as aforesaid, the other
moiety belonging to the infant, must be put out, for the benefit of
the infant, on government or real securities, to be approved of by the
Master.
1 BATEMAN v. HOTCHKIN.
Chancery. Before Lord Romilly, M. R. 1862.
[Reported 31 Beav. 486.]
A QUESTION arose as to the right of a tenant for life impeachable for waste to a fund
derived partly from wood blown down by a storm.
The question was brought before the Master of the Rolls in Chambers, who gave the
following opinion in writing : —
" That in the case of waste committed by a tenant for life by cutting timber, the
produce of the sale of it is part of the inheritance, and as the tenant for life can gain no
advantage by his own wrongful act, the produce is invested and accumulated for the
benefit of the first estate of inheritance.
" In the case of timber blown down by a storm, there is no waste, because it is the
act of God, but the produce of the sale of it belongs to the inheritance, that is, the
money must be invested in Consols, and the interest paid to the tenant for life."
Mr. Speed, for the plaintiff.
Mr. C. Hall, for the tenant for life.
The Master of the Bolls. I am of opinion that the tenant for life is entitled
to have the benefit of the sale of all such trees felled by the wind as he would be en-
titled to cut himself, and to all fair and proper thinnings, and to all coppices cut
periodically in the nature of crops.
There must be an inquiry to ascertain what part of the fund is derived from timber
or cuttings within that description.
See Stomhraker r. Zollidcoffer, 52 Md. 154.
576 CLAVERING V. CLAVBRING.
CLAVERING v. CLAVERING.
Chancert. Before Lord King, C. 1726.
[Meported 2 P. Wms. 388.]
The defendant was tenant for life of lands in Durham, but not with-
out impeachment of waste ; the plaintiff was the remainder-man in tail,
and in these lands there were several mines of coals, which were open
before the defendant the tenant for life came to the estate, and the
tenant for life opened the earth in several places, but (as it was said)
with design only to pursue the old vein of coals. And the plaintiff
moved for an injunction to stay the defendant from opening the earth
in an}' new place.
Lord Chancellor. This was determined in the great cause of Hel-
lier v. Twiford, in which I was of counsel, the matter was tried at the
assizes in Devonshire before Mr. Justice Powel, and held great part of
the day ; there it was proved by witnesses to be the course of the coun-
tvy, and a practice well known in those parts among the miners, that
any person having a right to dig in mines may pursue the mine, and
open new shafts or pits to follow the same vein ; and that otherwise the
working in the same mines would be impracticable, because the miners
would be choked for want of air, if new holes should not be continually
opened to let the air into them ; and the same vein of coal frequently
runs a great way, and (as Lord Chancellor expressed it) the same mine
of coals was very knowable and easy to be discerned ; besides, that to
stop the working might be the ruin of the colliery for ever ; and in the
present case it appeared that there was a fire-engine kept by the tenant
for life of these mines, which carried off the water, without which the
mines would be lost, and the working of this fire-engine cost £40 or £50
a week.
Then it was objected bj- the Attorney- General, that these mines
were not opened when the settlement was made ; having been opened
by the person who by that settlement claimed an estate-tail, and was
since dead without issue, whereas the settlement gave only the benefit
of the mines then opened to the tenant for life.
Sed per Cur. It seems as if the tenant for life may work all mines
wliich were lawfully opened by the precedent tenant in tail, though
subsequent to the settlement.
So deny the injunction.
CASTLEMAIN V. CKAVEN. 577
LORD CASTLEMAIN v. LORD CRAVEN.
Chancery. Before Verney, M. R. 1733.
[Heported 22 Fin. Ah. 523, pi. 11.]
A. TENANT for life, remainder to trustees to preserve, &c. remainder
to C. the plaintiff in tail, remainder over, with power for A. with con-
sent of trustees to fell timber, and tlie money arising to be invested in
lands, &c. to same uses, &c. A. felled timber to the value of £3,000
without consent of trustees, who never intermeddled, and A. had suf-
fered some of the houses to go out of repair. C. by bill prayed an
account and injunction. The Master of the Rolls said, that the timber
may be considered under 2 denominations, (to wit) such as was thriv-
ing, and not fit to be felled ; and such as was unthriving, and what a
prudent man and a good husband would fell, &c. And ordered the
Master to take an account, &c. and the value of the former which was
waste, and therefore belongs to the plaintiff, who is next in remainder
of the inheritance, is to go to the plaintiff, and the value of the other is
to be laid out according to the settlement, &c. But as to repairs, the
court never interposes in case of permissive waste either to prohibit or
give satisfaction, as it does in case of wilful waste ; and where the
court having jurisdiction of the principal, viz. the prohibiting, it does
in consequence give relief for waste done, either by wa}- of account as
for timber felled, or by obliging the party to rebuild, &c. as in case of
houses, &c. and mentioned Lord Sarnard' s Case., as to Raby Castle,
2 Vern. But as to the repairs it was objected, that the plaintiff here
had no remedj' at law, b}' reason of the estate for life to the trustees
mean between plaintiff's remainder in tail and defendant's estate for
life, and that therefore equity ought to interpose, &c. and that this was
a point of consequence. Sed non allocatur. MS. Rep. Mich. Vac.
1733.1
ROLT V. LORD SOMERVILLE.
Chancery. 1737.
[lieported 2 Hq. Cos. Ah. 759.]
The case in effect was thus : A very considerable real estate was
limited to Mrs. Rolt (who afterwards married the defendant the Lord
Somerville) for life, without impeachment of waste, remainder, to the
plaintiff Rolt for life, without impeachment of waste, with several
I See Powtjs v. Blngrave, 4 De G. M. & G. 448.
578 EOLT V. SOMEKVILLE.
remainders over. The defendant, the Lord Somerville, to make the
most of this estate during the life of his wife, pulled down several houses
and out-buildings upon the estate, and sold the same, and also took up
lead water pipes that were laid for the conveyance of water to the capi-
tal messuage, and disposed thereof, and he also cut down several gi'oves
of trees that were planted for the shelter or ornament of the capital
messuage. Upon this a bill was brought by the plaintiff to compel the
defendant to account for the money raised by the particulars before
mentioned, andtto put the estate in the same plight and condition that
it was before. To this the defendant demurred, and therebj' insisted
that this waste was committed by tenant for life, without impeachment
of waste, and therefore he was not liable to be called to an account for
what he had done either in law or equity, and if he was, yet the plain-
tiff could not call him to an account, because he was not a remainder
man of the inheritance.
Lord Chancellor Haedwicke. Though an action of waste will not
lie at law for what is done to houses, or plantations for ornament or
convenience, by tenant for life, without impeachment of waste, yet this
court hath set up a superior equit}-, and will restrain the doing such
things on the estate. In Lord Barnard's Case the court restrained
him from going on, and ordered the estate to be put in the same con-
dition. In Sir Blundel Charleton's Case the Master of the Rolls
decreed that no trees should be cut down that were for the ornament of
the park ; but Lord Chancellor King reversed that, and extended it only
to trees that were planted in rows. Mj' onlj- doubt is, as to the trees
that have been cut down, for if this bill had been brought before such
trees had been cut down as were for the ornament or shelter of the
estate, this court would have interposed ; but here the mischief is done,
and it is impossible to restore it to the same condition as to the planta-
tions, and therefore it can lie in satisfaction only ; and I cannot say the
plaintiff is entitled to a satisfaction for the timber which is a damage to
the inheritance, yet as to the pulling down the houses and buildings,
and laying the lead pipes, they maj- be restored, or put in as good con-
dition again. In the Case of my Lord Barnard there were directions
for an issue at law to charge his assets with the value of the damages,
he not having performed the decree in his life-time.
The demurrer was allowed as to satisfaction on account of the tim-
ber, but overruled as to the rest.^
1 I have been informed that this cause of Roll and Lord Somerville was afterwards
referred to two friends, and amicably settled. — Bep.
PERROT V. PERROT. 579
PERROT V. PERROT.
Chancery. Before Lord Hardwicke, C. 1744.
[Reported 3 Jik. 94.]
There was a limitation in a settlement to the defendant for life, to
trustees to preserve contingent remainders, to his first and every other
son in tail, remainder to plaintiff for life,^ with remainder to his first
and everj' son in tail, reversion in fee to the defendant.
The first tenant for life ^ cuts down timber, the plaintiff, who is the
second tenant for life, brings his bill for an injunction to stay waste.
31)-. Attorney- General, for the plaintiff, showed cause wh}' the in-
junction for restraining the defendant from committing any further
waste should not be dissolved.
It was insisted bj' Mr. Solicitor- General, for the defendant, that the
timber which he has cut down are decaj-ed trees, and will be the worse
for standing, and that it is of service to the public that they should be
cut down ; and that it is very notorious that timber, especially oak,
when it is come to perfection, decaj'S much faster in the next twentj'
years than it improves in goodness the twenty years immediatel}'
preceding.
That as the defendant has exercised this power in such a restrained
manner, and confined himself merely to decayed timber, which grows
worse every daj', that this court will not interpose, especially as the
plaintiff is not entitled to come into this court, as he has not the imme-
diate remainder, and besides has no remedy at law.
Lord Chancellor. The question here does not concern the interest
of the public, unless it had been in the case of the king's forests and
chases ; for this is merely a private interest between the parties ; and
it is by accident that no action at law can be maintained against the
defendant, because no person can bring it but who has the immediate
remainder.
Consider, too, in how manj- cases this court has interposed to pre-
vent waste.
Suppose here the trustees to preserve contingent remainders had
brought a bill against the defendant to stay waste for the benefit of the
contingent remainders.
I am of opinion they might have supported it, but here it is the sec-
ond tenant for life who has done it, and though he has no right to the
timber, yet if the defendant, the first tenant for life, should die without
sons, the plaintiff will have an interest in the mast and shade of the
timber.
1 Remainiier to trustees to preserve contingent remainders. — Rep.
2 Before he had any son born. — Rep.
580 OBRIEN V. OBEIEN.
The case of Welbeck Park, which has been mentioned, was a very
particular one, because there, bj' the accident of a tempest, the timber
was thrown down, and was merely the act of God.
But this is not the present case, for here a bare tenant for life takes
upon him to cut down timber, and it is not pretended that they are
pollards onU' ; and though the defendant's counsel have attempted to
make a distinction between cutting down young timber trees that are
not come to their full growth, and decaj-ed timber, I know of no such
distinction, either in law or equity.
Therefore, upon the authority of those cases, which have been very
numerous in this court, of interposing to stay waste in the tenant for
life, where no action can be maintained against him at law, as the
plaintiif has not the immediate remainder, the injunction must be con-
tinued till the bearing.
OBRIEN V. OBRIEN.
Chancery. Before Lord Hardv^icke, C. 1751. •
[Reported Ambl. 107.]
By indenture, dated 12th March, 1730, between the defendant, Henry
Obrien, and Margery, his wife, of the first part ; Henry Stainer and
Edward Hogan, of the second part; Richard Connell and Pool Hick-
man, Esqrs., of the third part; Francis Burton and Robert Hickman,
Esqrs., of the fourth part ; and William Stainer, of the fifth part ; in
consideration of a marriage thentofore had between the defendant,
Henr3- Obrien, and Margery, his wife ; and in performance of certain
articles, dated the 30th of October, 1730, the manors, &c., of Blather-
wicke, in the county of Northampton, and Tixover, in the county of
Rutland, were, amongst other estates, conveyed to trustees, to the use
of the said defendant, Henry Obrien, for life, without impeachment of
waste ; remainder to the first and other sons of the marriage between
him and the said Margery in tail ; remainder to the first and other sons
of the said Henry, or sloj after-taken wife in tail male ; remainder to
the plaintiff, Donatus Obrien, the father, for life, without impeachment
of waste ; remainder to his first and other sons in tail male, with other
remainders over : Henrj' Obrien, the first tenant for life, having con-
vej-ed his life estate to the defendant. Sir Edward Obrien, and he
threatening to cut down all the trees and timber growing on the estates
in England, the plaintiff filed their bill against the defendants, praying
an injunction to stay the defendants from committing any waste on the
estate, stating the above settlement ; that Henry had no issue by the
said Margery, and that they had been long separated i that great part
of the timber trees growing on the said estates were standing and
growing in a walled-in park called Blatherwicke Park, and stood near
HARROW SCHOOL V. ALDERTON. 581
the capital seat of the familj-, and other houses upon the said estate,
and either served for the shelter thereof, or were set in rows, walks,
vistoes, avenues, or clumps, and were great ornaments thereto ; great
part whereof were of a late growth, being planted about twenty-five
years before, and manj' thousands of them were j'oung saplings, greatlj-
beneficial to the estate, but of ver\' small value if cut down, not being
worth above 2.s-. 6d. apiece, one with another.
Upon an affidavit of the above facts, 3Ir. Solicitor- General, Mr.
Wilbraham, and Mr. Waller, this day moved that an injunction might
lie awarded to stay the defendants from committing any waste or spoil
on the premises.
His Lordship ordered that an injunction should be awarded to stay
the defendants, &c., from cutting down any timber trees, or other trees
growing on the said estate which were planted or growing there for
ornament or shelter of the mansion-house, or that grew in vistoes,
planted walks, or lines for the ornament of the park, part of the prem-
ises in question ; and also from cutting down axiy saplings growing on
any other part of the estate in question, not proper to be felled, until
answer, and other order to the contrary.
HARROW SCHOOL v. ALDERTON,
Common Pleas. 1800.
{Reported 2 B. & F. 86.]
This was an action of waste on the Statute of Gloucester, for plough-
ing up three closes of meadow-land, and converting the same into garden-
ground, and building thereupon, to the damage of the plaintiffs of £500.
Plea, Not guilty.
The cause was tried before Heath, J., at the "Westminster sittings
after last Trinity Term, when the jury found a verdict for the plaintiff
with three farthings damages, being one farthing for each close.
In the Michaelmas Term following, Cockell, Serjt., obtained a rule,
calling on the plaintiff to show cause why the judgment should not be
entered up for the defendant, on account of the smallness of the dam-
ages recovered, on the principle that de minimis non curat lex ; and
cited in support of the application Bro. Abr. tit. Waste, pi. 123 ; Co.
Lit. 54 a; 2 Inst. 306; Cro. Car. 414, 452; Finch's Law, lib. 1, cap.
3, § 34, adopted 3 Black. Com. 228 ; Vin. Abr. tit. Waste N ; and
BuUer's N. P. 120.
Shepherd, Serjt, now showed cause.
Lord Kldon, Ch. J. I confess, that when this application was first
made, I was not aware, that under the circumstances of the case the
defendant was entitled to demand judgment; but my Brother Heath
has satisfied me that the application is supported by the current of
582 HAREOW SCHOOL V. ALDERTON.
authorities. I do not indeed see precisely on wliat grour.d those de-
cisions have proceeded ; though I can easily- conceive manj- cases in
which it may be exti'emelj- unconscientious for a plaintiff to take ad-
vantage of his judgment, where such small damages have been recov-
ered as in this case. As, if the owner of land suffer his tenant to lay
out money upon the premises, and then bring an action of waste to
rt'cover possession when the land m&j have been improved to ten times
the original value. Tlie cases do not appear to authorize the distinction
contended for by my Brother Shepherd. Whether the waste committed
be hy alteration of the propertj-, or bj- deterioration, still the jurj', in
estimating the damages, take into consideration the injur}' which the
plaintiff has sustained ; and in this case the jury have estimated the
damage which these plaintiffs have sustained, by the alteration of their
propertj', at three farthings onl}'. The courts of common law seem to
have entertained a sort of equitable jurisdiction in cases of this kind.
Heath, J. This doctrine prevailed as early as the time of Bracton,
who wrote before the Statute of Gloucester. With respect to the dis-
tinction taken, there is no reason why pecuniar}' damages should not
be assessed for the alteration of propertj' as well as for the deteriora-
tion. Thus, if a tenant convert a furze-brake, in which game have
bred, into arable or pasture, by which its real value would be improved,
but its value to the landlord depreciated, it would be the business of the
jury to assess damages to the landlord thereon.
RooKE. J. I am of the same oj-nnion. Rule absolute}
^ " We are therefore of opinion that the pulling down a barn, taken absolutely, is
such waste as subjects the copyhold tenant to a forfeiture. But there is another prin-
ciple applicable to waste, that is, the sinallness of the value, and there are a great num-
ber of old authorities to say, that if the value be very small, the consequences of waste
do not attach.
"They will be found collected in 2 Eoll's Abr. 824; Comyn's Dig. Tit. Copyhold, M.
3, and Waste, E. 1 ; Viner's Abr. Tit. Copyhold, K. c, and Waste N; 2 Saunders,
259, Gfreen v. Cole, notes. See also The Keepers of Harrow School v. Alderton, 2 Bos.
& Pul. 86. Some of these authorities are not directly in point, for they are decided
upon the Statute of Gloucester, and in actions of waste, and between landlord and
tenant. And it is laid down by Lord Chancellor Loughborough, in Bench v. Bampton,
4 Ves. Jun. 706 (see Richards v. Noble, 3 Mer. 673), that an action of waste will not
lie between a lord of a manor and a copyholder. But they are illustrations of the prin-
ciple, that where there are no damages there can be no waste; and to this effect is the
case of Barret v. Barret, Hetley, 35, where C. J. Eichardson said, 'The law will not
allow that to be waste which is not any ways prejudicial to the inheritance.'
" Upon the whole, there is no authority for saying that any act can be waste which is
not injurious to the inheritance, either, first, by diminishing the value of the estate, or,
secondly, by increasing the burden upon it, or, thirdly, by impairing the evidence of
title. And this law is distinctly laid down by C. J. Eichardson in Barret v. Barret,
cited at the bar from Hetley's Reports. This case is ejitirely clear of the two former
grounds ; and as the jury have found that the defendant did no damage to the estate,
it follows that there was no waste, and no forfeiture. The rule must, therefore, be made
absolute." Per Denman, C. J., in Doe d. Grubb v. Burlington, 5 B. & Ad. 507, 616,
517 (1833).
See Barry v. Barry, 1 Jac. & W. 651 ; Jones v. Chappell, L. R. 20 Eq. 539.
FERGUSON v. 583
FERGUSON V.
Nisi Prius. 1797.
[Hcported 2 Esp. 590.]
This was an action to recover damages for suffering an house of
plaintiff's to be out of repair.
The case on the part of the plaintiflF was, that the defendant had
rented an house of him, as tenant at will, at a rent of £31 per annum,
which he had quitted ; after the defendant had given up the possession,
the house was found to be very much out of repair, and the plaintiff
had an estimate made of the sum necessary to put it into complete
and tenantable repair, which sum he sought to recover in the present
action.
Lord Kenton said : It was- not to be permitted to plaintiff to go for
the damages so claimed. A tenant from 3-ear to 3ear is bound to com-
mit no waste, and to make fair and tenantable repairs, such as putting
in windows or doors that have been broken b}- him, so as to prevent
waste and decay of the premises ; but in the present case the plaintiff
has claimed a sum for putting on a new roof on an old worn-out house ;
this I think the tenant is not bound to do, and that the plaintiff has no
title to recover it.
HERNE V. BEMBOW.
Common Pleas. 1813.
[Reported i Taunt. 764.]
The plaintiff declared in case in the nature of waste, and alleged
certain buildings in the defendant's occupation to be ruinous, prostrate,
and in deca}- for want of needful and necessary reparations. There
was also a count for obstructing a waj-. The defendant suffered judg-
ment by default. The premises were demised by the plaintiff to the
defendant by lease, which contained no covenant to repair. Upon the
execution of a writ of inquirj-, the under-sheriff directed the jury to in-
quire what sum it would take to put the premises into tenantable repair.
The jurj- however rejected that rule, and gave verj- small damages.
Shepherd, Serjt., now moved to set aside the inquisition, and that the
case might be submitted to another jurj', contending that the damages
ought to have been the sum sufflcient to enable the defendant to keep
up the premises in as good repair as thej' were in when the defendant
took them.
Per Curiam. Whatever duties the law casts on the tenant, the law
584 LTTSHINGTON V. BOLDERO.
will raise an assumpsit from him to perform (if there be no covenant
in his lease for the performance) , but that is a very different ease from
a declaration framed in tort like this. If this action could be main-
tained, a lessor might declare in case for not occupying in an hnsband-
like manner, which cannot be. The facts alleged are permissive waste :
an action on the case does not lie against a tenant for permissive waste.
Countess of /Shrewsbury' s Case, 5 Co. 13. If therefore we were to
grant this motion, the defendant would meet the plaintiff in a manner
he would not like. Mule refused.
LUSHINGTON v. BOLDERO.
Chancery. Before Sir John Romilly, M. R. 1851.
[^Reported 15 Beav. 1.]
In 1785 the testator devised Aspe'den Hall and other estates to
Charles Boldero for life, without impeachment of waste, with remainder
to his first and other sons in tail, with similar limitations to William
Boldero for hfe, without impeachment of waste, with remainder to his
first and other sons in tail, with remainder to Henry Lushington for
life, without impeachment of waste, with remainder to his first and
other sons in tail, with divers remainders over.
In 1812, Charles Boldero and Henry Lushington, and their partners,
became bankrupt, and the assignees under their joint commission hav-
ing proceeded to commit equitable waste \>y felling ornamental timber,
this bill was, in 1813, filed by the eldest son of Henrj' Lushington, who
was then and was now the first tenant in tail in esse. The plaintifl!" es-
tablished his claim (see Lushington v. Boldero, 6 Mad. 149 ; and
G. Cooper, 216), and the assignees were ordered to paj- into court
£6379 4s., the value of the timber and interest, to an account, intituled,
" The Account of Timber felled by the Defendants, the Assignees of the
Estate of Messrs. Boldero, Lushington, & Co., Bankrupts." This was
done ; and it was directed to accumulate, and be subject to the further
order of the court. By accumulation, the fund in court now exceeded
£26,000.
William Boldero died " several years since," without having been
married. In 1850, Charles Boldero being still living, and ninet3--five
years of age, but having no issue, the plaintiff, the first tenant in tail
in esse, presented his petition for payment to him of the fund in court.
The case came before Lord Langdale on the 4th of November, 1850,
when his Lordship thought, that the case could not be decided until it
had been ascertained that Charles Boldero, who was living, should have
no issue, and his Lordship therefore ordered the petition to stand over
until after the death of Charles Boldero.
Charles Boldero died in August, 1851, and the application for pay-
ment was now again renewed.
LUSHINGTON V. BOLDEEO. 585
Mr. Lloyd and Mr. Tripp, in support of the petition.
Mr. R. Palmer and Mr. Qoldsmid., contra.
The Master of the Kolls. I shall first consider what would have
been the effect if Charles Boldero had himself done this act. He was
tenant for life without impeachment of waste, and having cut orna-
mental timber, the court compelled him to pay into court the amount
for which the timber was sold ; and, omitting all questions respecting
intermediate life estates, the question now is, whether he or the rever-
sioner was entitled to the income of that fund. The equitable doctrine
applicable to this and other similar cases is this : that no person shall
obtain any advantage by his own wrong. But it is manifest that the
tenant for life may obtain very considerable advantage from his own
wrong, if he were to cut down timber and obtain the interest of the
fund ; his income for life would be thereby increased beyond what it
would have been if the timber had not been cut.
It has been observed, that in all the reported cases the rule has been
applied to the corpus of the fund ; but that, I think, ought not to vary
my judgment, because it depends upon this equitable and just principle,
that no man shall obtain a benefit by his own wrongful act ; the authori-
ties, therefore, which lay down the principle in cases of corpus onlj-,
are equally applicable to any species of interest to be derived by a
wrongful act.
It is then said, that this is a case in which the court does not impose
a forfeiture, but only requires restitution ; and that to deprive the tenant
for life of the income, it would be to inflict a penaltj- upon him, inas-
much as he would have had the enjo3'ment and advantage of the shade
and mast of the timber if it had not been cut. But this he deprives
himself of bj- his own wrongfid act, and for this reason the court refuses
to give him anj- substitution or remuneration. It is also material to bear
in mind, that if the timber had not been cut, it would have increased in
value for the benefit of the reversioner, but that has been rendered im-
possible b}- the tenant for life having improperly cut it. If, therefore,
it is impossible for the court to ascertain what portion of the interest
ought to be attributed to the estate of the reversioner, and what portion
to the enjoyment of the tenant for life, it is the tenant for life who has
himself put the court into that situation, and made it incapable of arriv-
ing at a just conclusion. It is not a case in which the court can act on
the principle of restitution. The case put, by way of analog}', of a
tenant for life selling out the fund, and being compelled to restore it,
is inapplicable, because the tenant for life cannot in this case restore the
subject-matter.
There maj- be a great number of cases in which the timber would be-
come of great value when the reversion fell in ; and it is impossible for
the court to ascertain what portion of it would have been enjoyed by
the reversioner if the wrongful act had not been committed. Undoubt-
edly the tenant for life does in some cases directly gain an advantage,
but it is not b}' reason of his own act. Thus, where by the act of God
586 LtrSHINGTON V. BOLDERO.
a large quantity of timber is blown down bj' a storm, the produce is
laid out in the purchase of stock, and the interest of the fund is paid to
the successive tenants for life. So, upon the same principle, when
timber is decaying, and it cannot benefit the reversioner to allow it to
remain standing, the court, having ascertained that it is for the benefit
of all parties, orders the timber to be cut down, and the produce to be
invested, and the interest of the fund to be paid to the tenants for life in
succession.
When, however, the tenant for life has committed the wrongful act
which produces the fund, the court will not allow him to gain anj- benefit
from it ; but the reversioner takes the benefit arising from an accretion
of the fund, in lieu of the accretion of the timber.
Can I look at this case in an\' different point of view, because the
assignees, and not the tenants for life, have done the wrongful act ?
The assignees stand for these purposes exactlj' in the same situation as
the tenants for life ; they are bound by the same equities, and are ex-
actly' in the same position, and the same observations apply to both.
Nor am 1 able to separate, or to distinguish the case of Sir Henry
Lushington from that of Charles Boldero ; because, if the two tenants
for life had concurred together, and had agreed between themselves
that the one in possession should cut the timber, and that they should
divide the produce in certain proportions, the court would have pre-
vented either of them from gaining anj- benefit from the wrongful act
which they concurred in performing. Here, they are the assignees of
both ; and I am unable to find any principle which says, that the as-
signees must not stand exactlj" in the same situation as the tenants for
life would stand, and be bound by exactly' the same equities. If Charles
Boldero had died immediately afterwards, and Sir Henry Lushington
had survived for a very long period, and the income of the proceeds of
the timber had been applied during that period in payment of the joint
creditors, the3' would have obtained a great benefit from the wrongful
act of the assignees. I must hold them in exactly the same position as
if the wrongful act had been committed hy Sir Henry Lushington alone.
I cannot separate the characters of the assignees ; they are assignees
for the joint creditors and of the joint estate ; and I consider that I
must treat the case exactl3' in the same waj- as if the two tenants for
life, one onl3- being in possession, had concurred in the wrongful act of
cutting the timber.
It was suggested, that I should suppose the possible case of the com-
mission having been superseded ; and I was asked, whether the tenant
for life. Sir Henry Lushington, who is perfectly innocent in the matter,
ought to be prejudiced bj' the wrongful act committed by his assignees.
It would be hard if it were to be so ; but I do not consider that question
at present, because it does not arise before me. But, if the question
did arise, it is manifest that the remark would apph' just as much to
the case of Mr. Charles Boldero's estate as to that of Sir Henry Lush-
ington ; nor can I find an^'thing whatever in the fiduciary character of
LUSHINGTON V. BOLDEEO. 587
the assignees, who, in matters of this description, stand in exactly the
same position as the tenants for life, to prevent their being held liable
precisel}' in the same manner as the tenants for life themselves. They
have themselves done this wrongful act ; and neither they nor the per-
sons for whom they are trustees can gain any advantage by reason
of it.
I am of opinion, therefore, that, upon the petition, I must make an
order according to the prayer.
Note. — In the argument of this case, both hefore Lord Langdale and Sir John
Roniilly, two authorities which are in point were overlooked. In Salt v. Lord Somer-
ville, 2 Eq. Ca. Ab. 7.59, Lady Somerville was tenant for life, without impeachment of
waste, with remainder to the plaintiff Rolt for life, without impeachment of waste,
witli several remainders over. Lord Somerville cut down several groves of trees
planted for the shelter and ornament of the mansion, and did other waste. Eolt, the
tenant for life, filed a bill to compel the defendant to account for the moneys thus
raised. To this the defendant demurred, and insisted that "the plaintiff could not
call him to an account because he was not a remainderman of the inheritance." Lord
Hardwicke observed, "I cannot say the plaintiff is entitled to a satisfaction for the
timber, which is a damage to the inheritance : " and the demurrer was allowed as to
satisfaction on account of the timber.
The second case is that of the Marquis of Ormonde v. Kynnersley, or Butler v. Kyn-
nersley, 7 Law J. {0. S.) Ch. 150 ; and 8 Law. J. (0. S.) Ch. 67 ; and reported on
other points in 5 Mad. 369, 2 Sim. & St. 15, and 2 Bli. (N. S.) 374, decided by Sir
John Leach, and afterwards by Lord Lyndhurst.
In that case, eijuitable waste was, in 1805, committed by Clement Kynnersley, who
was then in possession as the tenant for life, without impeachment of waste. The es-
tate was limited in remainder to his first and other sons in tail, with remainder to the
Marchioness of Ormonde and Job H. P. Clarke for life, in a moiety, with remainder, as
to the whole, to her first and other sons in tail, with an ultimate remainder to Job
H. P. Clarke in fee. Neither Clement Kynnersley nor the Marchioness of Ormonde had
any issue, and Job H. P. Clarke had therefore the first vested estate of inheritance.
Upon a bill by the Marchioness of Ormonde for an account of the timber, a decree
was, in the first instance, made by Sir John Leach, 5 Mad. 369, for an account of the
timber (6th May, 1820).
There was a reference to arbitration ; and on a motion to enforce the award (re-
ported 2 Sim. & St. 15), (1824), it was suggested, that "the representative of Job
H. P. Clarke (if any one) was entitled to the proceeds of the timber cut down." (See
2 Bli. (N. S.) 385. The cause was reheard by Sir John Leach (23d April, 1825),
who dismissed the bill, on the gi'ound that the right to the money vested in Job H. P.
Clarke (see 2 Bli. (N. S.) 386). The cause then went by appeal to the House of Lords
(1828). and was remitted to Chancery, 2 Bli. (N. S.) 392, with liberty to appeal ;
and ultimately (20th April, 1830), Lord Lyndhurst dismissed the appeal with costs
(7 Law J. (0. S. ) Ch. 150, and 8 L. J. (0. S.) Ch. 67, and Keg. Lib. 1829, A, folio 2190),
on the ground that the trees belonged to Job H. P. Clarke, as the person entitled to
the first vested estate of inheritance, and that the plaintiff had no interest.
It is to be observed, that the decision of the Marquis of Ormonde v. Kynnersley is
scarcely reconcileable ; first, with the order for the investment and accumulation in
Lushington v. Boldero, instead of for immediate payment to the plaintiff, the owner of
the first estate of inheritance ; nor, secondly, with Wellesley v. Wellesley, 6 Simons,
503, where, instead of directing payment to the plaintiff, the fund was paid into court,
and formed part of the settlement fund ; nor, thirdly, with the grounds on which the
defence to the Statute of Limitations was overruled hy Sir L. Shadwell and Lord Cot-
tenham, in The Buke of Leeds v. Lord Amherst, 2 Phillips, pp. 120 and 125. — Rep.
588 SMYTH V. CABTER.
SMYTH V. CARTER.
Before Sir John Romilly, M. R. 1853.
[Reported 18 Beav. 78.]
In 1852 the defendant became owner of a public-house and premises
which had formerlj^ been built on part of the waste of Bed minster, of
which the plaintiffs were the lords of the manor. Rent had been paid
bj' the previous owners to the plaintiffs.
The plaintiffs alleged, that the defendant was pulling down the
house in order to erect a brewery in its place, which, as it would over-
look the plaintiffs' residence, would form an intolerable nuisance. In
July last, the plaintiffs obtained an injunction to restrain the defendant
from so doing, and the defendant now moved to dissolve it.
Mr. Jtoupell and Mr. C. M. Rovpell, in support of the motion.
Mr. a. Palmer and Mr. Osborne, for the plaintiffs.
The Master of the Rolls. Assuming the plaintiffs to be landlords,
and the defendant tenant, I entertain no doubt, that this court will re-
strain a tenant from pulling down a house and building any other which
the landlord dislikes. It is not sufficient to show that the house proposed
to be built is a better one ; and the fact of the defendant's showing that
tlie landlord does not know his own interest will not affect the judgment
of the court in any respect whatever. The landlord has a right to exer-
cise his own judgment and caprice, whether there shall be anj- change ;
and if he objects, the court will not allow a tenant to pull down one
house and build another in its place.
In this case, the defendant alleges he is owner in fee, subject to a
quit rent. I shall not now determine or express anj- opinion on tliat
subject, but I shall preserve the rights of the parties until the question
has been determined at law.^
1 " A doubt has been stated, indeed, in a note to 2 Saund. 252 b, whether a tenant for
years is liable for permissive waste, and if he were not, then a covenant by the landlord
to repair would not amount to an implied permission to the tenant to omit to repair.
These doubts arise from three cases in the Common Pleas : Gibson v. Wells, 1 N. E.
290 ; HerTie v. Benbow, 4 Taunt. 764 ; Jones v. Hill, 7 Taunt. 392. Upon examining
these cases, none of which appears to be well reported, the court seems to have con-
templated the case only of a tenant at will in the two first cases, and in the last no
such proposition is stated, that a tenant for years is not liable for permissive waste.
We conceive that there is no doubt of the liability of tenants for terms of years, for
they are clearly put on the same footing as tenants for life, both as to voluntary and
permissive waste, by Lord Coke, 1 Inst. 53 ; Harnet v. Maitland, 16 M. & W. 257 ;
though the degree of repairs required for a tenn.nt from year to year, by modern de-
ci.sions, is much limited." Per Paeke, B., in Yelloxly v. Oower, 11 Exch. 274,
293, 294.
In Ddherty v. Allmcvn, 3 Ap. Cas. 709, fields, on which were buildings that had
been used as store warehouses, and afterwards as artillery barracks and dwellings for
GENT V. HARRISON. 689
GENT V. HAERISON.
Chancery. 1859.
[Reported H. R. V. Johns. 517.]
George Gent, by his will dated the 8th of Jul}-, 1808, devised certain
real estate to the use of George William Gent for life, with remainder to
trustees to preserve, with remainder to his first and other sons in tail
male, with remainder to John Gould Gent for life, with remainder to
the said trustees to preserve, with remainder to his first and other sons
in tail male, with remainder to John Gent for life, with remainder to
the said trustees to preserve, with remainder to his first and other sons
in tail male, with remainder to the plaintiff George Gent for his life
without impeachment of waste, with remainder to the said trustees to
preserve, with remainder to his first and other sons in tail male, with
remainder to William Gent in fee.
By certain codicils the testator revoked the ultimate devise in fee,
and declared that the remainder of his real estates should go as the law
might direct.
The testator died in 1838, and George William Gent entered and
continued in possession of the devised estate until the 17th of March,
1855, when he died, without having had any issue male. John Gould
Gent then entered, and continued in possession until the 26th of May,
1856, when he died, without having had any issue male. John Gent had
previously died without having had any issue male. The plaintiff then
entered, and had since continued in possession, and had never had anj'
issue male. The bill alleged that the plaintiff had been unable to dis-
cover the testator's heir. In the j-ear 1820 George William Gent cut a
quantit}- of timber, and invested the greater part of the proceeds of the
sale of it in the names of the trustees to preserve ; and this fund con-
sisted, at the date of the bill, of a debenture for £5,000 of the North
Western Railwaj' Company. The rest of the proceeds, amounting to
£739 14«. 6f?., were retained by the said George William Gent.
The trustees paid the income of the fund so invested to George
William Gent, John Gould Gent, and the plaintiff, during their suc-
cessive occupations.
In 1848 George William Gent cut other timber, which he sold ; and
married soldiers, were demised, part in 1798, for a term of 999 years, and part in
1S24, for a term of 988 years. The buildings having been for some time unoccupied,
and, as was said, falling into decay, the assignees of the leases proposed to change the
buildings into dwelling-houses. The reversioner brought a bill for an injunction to re-
strain the making of these changes, on account of the proximity to his private residence
of the bnildings proposed to be altered. The Vice-Chancellor of Ireland granted a
perpetual injunction ; but the Court of Appeal ordered the injunction to be dissolved,
without prejudice to the plaintiti"s right to proceed at law, and the House of Lords
affirmed the order.
590 GENT V. HARRISON.
it was agreed that the amount so received and appropriated should be
taken to be £1,000, and the date of receipt Midsummer, 1854.
In 1856, John Gould Gent cut and sold other timber, and received
the proceeds ; and it was agreed that the amount should be taken to be
£900, received on the 2d of January, 1856.
The said sums of £1,000 and £900 were paid by the executors of
George William Gent and John Gould Gent respectivelj- to the trustee
who held the other fund.
The plaintiff, by his bill, claimed to have all the capital which had
arisen from the sales of timber, and to be paid bj' the executors of
George William Gent and John Gould Gent the amounts received by
their respective testators as income of the fund in which the proceeds
of the timber were invested. There was some conflict of evidence as to
whether the timber was properly or improperly cut.
JMr. Bolt, Q. C, Mr. Shapter, Q. C, and Mr. Busk, for the
plaintiff.
Mr. WillcocTc, Q. C, for the representatives of George William Gent.
Mr. Speed, for the representative of John Gould Gent.
Mr. Chapman, for the trustee.
Vice-Chancelloe Sir W. Page Wood. The plaintiff would be put
in very considerable diflScultj' if this were treated otherwise than as a
proper cutting, followed bj- the investment of the proceeds for the pur-
poses of the trust. The authorities seem to go to the full extent, that,
where timber is properly' cut for the benefit of the estate (as the Vice-
Chancellor of England says in the case of Waldo v. Waldo [12 Sim.
107]), either b}- the act of the court, or out of court by the act of
trustees, which the court has adopted, there it is treated as so much of
the estate. Thus, in a much earlier case, Mildmay v. Mildmay [4 B.
C. C. 76], before Lord Thurlow, the court preferred not treating the
proceeds as money, because that would change the character of the
fund, but directed them to be invested in land, the effect being, that
the tenant for life, although impeachable for waste, would obtain the
benefit of the money when so invested. Therefore, where the timber is
properly cut, the purchase-monej' of the timber follows the land, and
the tenant for life, although impeachable for waste, receives the income
during his life ; and when j'ou reach the first tenant for life unimpeach-
able for waste, as in the case of Phillips v. £arlow [14 Sim. 263],
he takes the capital. There would therefore be no difficulty if the
plaintiff in this case had treated the timber as having been properly cut,
and the fund as being his from the date of his coming into possession of
the estate ; but he seeks the past interest on this ground (and it is onlj'
on this ground that he can seek it), that when the tenant for life, hy his
own wrong, creates the fund, as in The Duke of Leeds v. Lord Am-
herst [2 Ph. 117], and some other cases, the tenant for life shall not be
allowed to avail himself of his own wrong, and to receive the interest
from a fund which would never have existed but for his own wrongful
act. But the cases which were cited have been cases of equitable
GENT V. HARRISON. 591
t
waste, where, the whole matter having to be administered in equity, the
legal right which might spring from such a wrongful act could never have
arisen. In the case of legal waste, you have only to consider the legal
consequences of the wrongful act as to which trover may be brought.
There is no account asked for in this bill, for the wliole amount is
ascertained and settled, which was one of the points that arose in the
last cited case of JTony v. Jloy^y [1 S. & S. 568]. No account is
asked of what timber has been cut, what it has been sold for, and the
like. No account has been rendered, but the tenant for life, who has
now come into possession unimpeachable for waste, comes into court
with this simple case. He says : " I find the exact value of the timber
cut ; I ask for that value ; I ask to have it paid to me ; I ask to have
the back interest paid on that ; I do not ask for anything else : and I,
being legal tenant for life unimpeachable for waste, saj-, this is mj'
money." In that state of things, if he has any right at all, it is plainly
a legal right, treating the original act as a wrong. There is nothing
which the Court of Chancerj' is called upon to do ; and, therefore, he
should be left to his remedy at law. But who maj- have the legal right,
is, I think, a matter of great doubt. I am by no means satisfied at
present, that, when tlie timber was cut, assuming the cutting to have
been a wrongful act from the first moment, it did not belong to the first
person having an estate of inheritance. The limitations are to the ten-
ants for life, with contingent remainders to their issue, and then a
remainder to the tenant for life unimpeachable for waste, and remain-
ders in tail to his issue. All the authorities are uniform in this respect,
that, where there has been an improper fall of timber on the estate by a
person having a limited interest, the first owner of the inheritance is
the person wlio has a right to bring trover, passing over all the inter-
mediate estates. It certainly does not appear that there was, in any of
these cases, an intervening tenant for life unimpeachable ; but there
were contingent remainders, that might come into esse and defeat the
estate of inheritance vested in the heir or the person taking in remain-
der, as the case might be. The reason of the thing was this : that
there must be the property in somebod}- when tlie wrongful act is done.
The court will not allow the tenant impeachable for waste to avail him-
self of his own wrong ; and the law therefore vests the timber wrong-
fully cut in the person having the first legal estate of inheritance. The
answer made by Mr. Eolt is, " that the tenant for life, although in re-
mainder, if he is unimpeachable for waste, as in Lewis Bowles' Case,
has not merely an immunit}- from liabilit}' for waste, but the actual
property in the timber. But how has he the property ? The doctrine
laid down in the 7th resolution in Lewis Bowles' Case is this : The
clause without impeachment of waste gives a power to the lessee which
will produce an interest in him, if he executes his power during the
pendency of his estate. That is to say, if he ever comes into possession
of the estate, and ever exercises his power of cutting the timber tliere-
upon, the timber belongs to him ; and the reason of its belonging to
592 GENT V. HAERISON.
him, which is fully argued out, is this : It is said, if it had been without
impeachment of waste by any writ of waste, then, bj' old authoritj', the
action only would be discharged, and the lessor, after the fall of the
timber, might nevertheless seize it ; but when it is without impeachment
of waste altogether, then the effect is, that the tenant for life cannot be
interfered with in any manner in respect of that waste ; and as soon,
therefore, as he has exercised his power thereupon, the timber at once
becomes his own propert}'. But how does that prove, that, when the
trees are felled b}' the wrongful act of some one preceding him, before
his propert3' has arisen thereupon, the property is in him? To say the
least, that is a doubtful proposition ; and that point I am asked to de-
cide, not having the heir before nie. The question is, whether such a
point as that ought to be decided without the presence of the heir, and
against the heir. I think the answer is plain, that, without hearing the
heir upon it, I can come to no such conclusion. And further than that
I see no reason to go. There seems to be considerable reason for a
contention by the heir that his position is just the same in respect of
a person having a possible power, which may arise if ever his estate
arises, as it is in respect of the contingent interests of unborn issue, in
favor of whom the law does not interfere to prevent the heir's right ac-
cruing at once, so as to enable him to bring trover immediately after
the timber is cut. But there are further difficulties in the plaintiff's
way, if he chooses to treat this as a tort. In the first place, of course
the tort arose when the act was committed ; and, if the plaintiff had a
remed}- by an action of trover, I apprehend the action should have been
brought some twenty j-ears ago, when the act took place. That is the
first difficulty. But, secondly, suppose the plaintiff has any right of
action now of any kind, his remedy is clearly at law. He is the legal
owner, and if he chooses to proceed at law by an action of trover, there
is his remedy. In what respect does he want tlie aid of this court?
He asks for no injunction ; he asks for no account ; he asks nothing
which he has not got at law. Why should he come here to insist on his
right? It is put in this way : It is said, a person commits a wrong,
and hands over the fund which has resulted as the produce of his wrong
to another, and says, " Take care of that ; I have injured somebodj' or
other, and I ask you to hold the proceeds for anybod.y who may be inter-
ested in them." I apprehend, even supposing the form of action might
be varied, and that it might be an action for monej* had and received
to plaintiff's use, the remedy would still be at law. It is not for me to
determine the question, whether it should be an action of trover, or an
action for money had and received. Still, taking it either way, what does
the plaintiff come here for? In truth, it is onlj- bj- treating the cutting
as rightful, as an act which the court would recognize, that the plaintiff
can have any ground for coming to this court. On that view, consider-
ing that the trustees were applied to in the first instance, there might
be ground for directing an inquir3- whether this cutting ought to be re-
garded as an act of the trustees, which the court would recognize, as it
TUKNER V. WKIGHT. 693
did in Waldo v. Waldo. If that were so, the plaintiff would be entitled
to the whole of the money produced ; but he would be clearly wrong in
asking for the intermediate interest. If, on the other hand, he says :
" You, the trustee, having received this sum of money as the proceeds
of a wrongful act, ought to have held it for all the persons interested ;
you should not have paid any income to the wrongdoer himself, but you
should have held it for me," — that contention entirely fails, because, if
the act was wrongful, the remedy is at law, and not here. If he chooses
to treat the timber as rightfully cut, then the tenant for life was entitled
to interest, and all the plaintiff can get is the principal, his title to
which does not seem to be disputed. What seems right for me to do
is this, — either to dismiss the bill altogether, if the plaintiff insists on
treating the cuttings as wrongful acts from the commencement, in which
case I ought to dismiss it with costs ; or else, if the plaintiff is content
to treat the cuttings as rightful, then to make a decree for the payment
to him of the capital derived from the proceeds of that timber. But I
cannot do this unless the plaintiff waives any inquiry as to whether the
cutting was rightful or not.
Mr. Rolt having consented to waive any inquiry, and to treat the
timber as rightfully cut, the minutes of decree were as follows : —
Dismiss the bill, with costs, as against the representatives of George
William Gent and John Gould Gent ; and, the plaintiff not asking any
inquiry whether any of the timber was wrongfully cut, the funds in the
hands of the trustee to be transferred to the plaintiff; the trustee's costs
to come out of the fund.'
TURNER V. WRIGHT.
Chancery, before Lord Campbell, C. 1860.
[Reportod 2 De G, F. & J. 234.]
The Lord Chakcellob.'' In this case the plaintiff, by his bill,
prajed an injunction " to resti'ain the cutting of anj' timber, or at any
rate of anj' ornamental timber," growing upon the lands devised in fee
to tlie defendant, subject to an executory devise over to the plaintiff.
^ ' ' The only point remaining is, whether this tenant for life, not being tenant with-
out impeachment of waste, has any property in the underwood cut, before his estate
comes into possession. It is rightly assimilated to the case of tenant for life without
impeachment of waste, supposing it only to relate to timber and not to underwood.
Upon that it is clear, that tenaut for life without impeachment of waste cannot main-
tain trover. That was decided in the Court of King's Bench a few years ago upon a
case reserved at the assizes upon the Home Circuit, and I think in Kent, which, I sup-
pose, is not in print, or it would have been found by the counsel. There it was deter-
mined, that notwithstanding an estate for life witliout impeachment of waste in being,
yet timber falling or cut vested immediately in the owner of the inheritance ; for
tenant for life without impeachment of waste has no right to the timber cut before his
possession." Per Buller, J., in Pigot v. Bullock, 1 Ves. Jr. 479, 483, 484.
See Bf(lcer v. Sebright, 13 Ch. D. 179.
^ Only the opinion is given.
38
594 TURNER V. WEIGHT.
The decree of the Vice-Chancellor declared, " that the defendant is
entitled to fell all such timber on the devised estates as is mature and
fit to be cut, except such as has been planted or left standing bj' waj-
of ornament or shelter with reference to the occupation of the mansion-
house on the said devised estates ; but that he is not entitled to fell
any unripe timber or an}' timber planted or left standing for ornament
or shelter as aforesaid."
The result of the decision is, that the defendant is dispunishable of
legal, but not of equitable, waste. After great consideration, I agree
with the Vice-Chancellor on both questions.
As to the first, my opinion is clear and decided. The defendant is
tenant in fee-simple, with all the incidents of such an estate, although
there be executory- devises over in case he should die without leaving
issue living at the time of his decease. Not making an}- unconscien-
tious use of the powers belonging to him as tenant in fee-simple, why
should he not reasonably exercise these powers? Is there anything
unconscientious or unreasonable in his cutting down timber mature and
fit to be cut, and not such as has been planted or left standing by way
of ornament or shelter? If we are to regard the intention of the testa-
tor in such limitations, can the intention be supposed to be that the
first taker, who is made tenant in fee, should during the whole of his
life, although he should have numerous children and grandchildren, not
be entitled to cut down a tree upon the property, unless for his botes?
In this case, the presumed intention of the testator is strengthened by
the first executory devise over, which is for life and sans waste. He
could not have intended that the first taker, to whom he gave a fee,
should be more restricted in the management of the property than the
devisee over, to whom he gave only a life-estate. Having given the
first taker a fee, he probably thought it quite unnecessary expressly to
make him dispunishable of waste.
So that equitable waste is not committed, the bountiful intention of
the testator in favor of the devisees over will be completely fulfilled ;
for, on the happening of the contingencies limited, the property will
come to them in the same condition in which it would have been if the
testator, being a prudent man, had himself survived and had managed
and enjoyed it till the time when the events happen upon which they
are entitled to enter.
The onus seems to lie upon the plaintiff to show, by authority, that
tenant in fee-simple, subject to an executory devise over, is not entitled
to cut timber. It is admitted that no express decision to this effect is
to be found in the books, and that no instance has ever yet occurred of
an adult devisee in fee with an executory devise over being restrained.
The plaintiffs counsel relied on dicta to be found in the reports of
three cases, Mohinson v. Litton, 3 Atk. 209 ; Cru. Dig. tit. xvi. c. 7,
§ 26 ; Stansfield v. Ilabergham, 10 Ves. 273, and Wright v. Atkyiis,
17 Ves. 255; 19 Ves. 299; 1 Ves. & Bea. 313; Turn. & Russ. 143.
According to Vesey, Jr., a very careful and accurate reporter. Lord
TURNER V. WRIGHT. 595
Eldon did say, in Stansjield v. Haherffham, " I should by dissolving
this iujiinetion contradict what has been understood to be the doctrine
of this court : that, where there is an executory devise over, even of a
legal estate, this court will not permit the timber to be cut down."
But this doctrine is not to be found in any text-writer, and it has never
been acted upon. In Wright v. Atki/ns, the power of the widow to
cut down timber was only questioned upon the supposition that she
toolc no more in equity than an estate for life. In Robinson v. Litton,
Lord Hardwicke was influenced hy the consideration that the tenant in
fee-simple with an executory devise over was the infant heir of the tes-
tator, and was about to cut down timber improvidentl}-. The limitation
was as stated by Cruise, 6 Cruise, 428, 429 ; and the infant, though
seised of the legal estate in fee, was entitled to the rents and profits
only until he attained twenty-one, i. e., for a chattel interest. After that
he was to become trustee for his sisters ; and, even according to the
report in Atkyns, the circumstance of the infant being a trustee for
the benefit of his sisters was mainly relied upon in granting the
injunction. 3 Atk. 209.
Therefore, as to legal waste, I think there is no authority to out-
weigh the considerations which, upon principle, lead strongly to the
conclusion that, so far, the injunction ought to be dissolved.
Had there been a charge in the bill, supported by evidence, that the
cutting down of the ornamental and immature timber was malicious, I
should have entertained no doubt that this court ought to interfere by
injunction. Tenant in fee-simple, subject to an executor}- devise over,
of a mansion surrounded b}- timber for shelter and ornament, cannot
say that the propertj- is his own, so that out of spite to the devisee
over, he may blow up the mansion with gunpowder and make a bonfire
of all the timber. The famous Moby Castle Case ( Vane v. Lord
Barnard, 2 Vern. 738) shows that such things may not be done bj-
tenant for life sans waste, and tenant in fee with an executory devise
over, actuated by malice, would not have greater liberty to destroy.
The waste which intervenes between what is denominated legal
waste and what is denominated malicious waste, viz., equitable waste,
may admit of a different consideration. But equitable waste is that
which a prudent man would not do in the management of his own
property. This court may interfere where a man unconscientiously
exercises a legal right to the prejudice of another ; and an act may in
some sense be regarded as unconscientious if it be contrary to the dic-
tates of prudence and reason, although the actor, from his peculiar
frame of mind, does the act without any malicious motive. The pre-
vention of acts amounting to equitable waste may well be considered as
in furtherance of the intention of the testator, who, no doubt, wished
that the property should come to the devisee over in the condition in
which he, the testator, left it at his death ; the first taker having had
the reasonable enjoyment of it, and having managed it as a man of
ordinary prudence wou'.d manage such property were it absolutely his
596 TtTENER V. WEIGHT.
own. In the present case, the devise being by the testator of " all his
said mansion-house and estate at Brattleby and North Kelsey, with the
appurtenances," there would be great difficulty in distinguishing for
this purpose between the mansion-house and the ornamental timber.
Indeed, Mr. Daniel contended that, in the absence of malice, this
court could not interfere to protect the mansion-house. I put to him
hypotheticallj', in the course of his able argument, the supposition that
a mediaeval castle is devised to A. in fee, subject to an executory devise
over to B. in fee, and that A. from a sincere dislike of turrets and
moats, and a genuine love of roses and lilies and gravel walks, and
beheving that B. and all other sensible men must have the same taste,
declares that he means to throw down all the buildings and to convert
the site of the castle into a flower-garden, and begins with setting men
to strip the lead from the roof of the donjon tower. A bill being filed
by B. for an injunction, would this court interfere? Mr. Daniel an-
swered: "A., acting bona fide — No." Nevertheless I cannot help
thinking that in spite of A.'s bona fides, what A. contemplated would
be in the nature of a destruction of the subject devised, and would cer-
tainly be in contravention of the intention of the devisor, so that B.
would be entitled to an injunction. It maj- be said that this is an ex-
treme case, but it is by an extreme case that the soundness of a princi-
ple is to be tested. The presence or absence of a bad motive will not
alone enable us to draw any satisfactory line between what is to be
considered malicious and what is to be considered equitable waste, and
no line to regulate the interposition of a court of equity bj- injunction
can well be drawn other than the recognized and well-established line
between legal and equitable waste. The application of this to the facts
of particular cases may sometimes be attended with difficult}' ; but the
principle on which the line is to be traced is known and invariable.
I am willing, with Vice-Chancellor Page Wood, to accept the clew
hw which Lord Justice Turner, in Micklethwait v. Michlethwait, 1
De G. & J. 504, 524, proposed to solve the difficult}- : " If a devisor
or settlor occupies a mansion-house, with trees planted or left standing
for ornament around or about it, or keeps such a mansion-house in a
state for occupation, and devises or settles it so as to go in a course of
succession, he may reasonably be presumed to anticipate that those
who are to succeed him will occupy the mansion-house ; and it cannot
be presumed that he meant it to be denuded of that ornament which he
has himself enjoyed." However, I cannot go so far as the Vice Chan-
cellor, who is reported to have added: "This reasoning obviously
applies to every case of an estate limited so as to go in a course of
succession." "The tenant for life, sans waste, is as much owner of
the timber as the tenant in fee. Their legal rights in this respect are
identical." Turners. Wright, 3o\iXi. 740-751. "Where an estate tail
is created with successive estates tail in remainder, the estate entailed
is " limited to go in a course of succession," but a tenant in ail is dis-
punishable of equitable as well as legal waste, because he may at any
TURNER V. WRIGHT. 597
lime bar the entail, and give himself a pure and absolute fee-simple.
Again, a tenant for life sans waste can hardly be said to be as much
owner of the timber as the tenant in fee ; for although the tenant for
life (avoiding equitable waste) may fell and dispose of the timber in
his lifetime, were he to sell growing trees they would go to the remain-
der-man or reversioner, if not severed from the soil in his lifetime ;
whereas the tenant in fee might by sale or conveyance give the pui'-
chaser an absolute and permanent interest in the trees against all the
world. Nevertheless I think that the rights and liabilities of tenant
for life sans waste may be taken as a measure of the rights and liabili-
ties of devisee in fee, subject to an executory devise over.
The only analogy at all unfavorable to this view of the case is that
of tenant in tail, with the reversion in the Crown, and tenant in tail
under an Act of Parliament which precludes the barring of the entail.
Such tenants in tail are considered dispunishable of waste ; this being
an incident of tenancj' in tail, probabl}' arising from the power which
generally subsists of barring the entail, and it not having been thought
fit to make an exception in respect of those rare cases in which the
power of barring the entail is withheld. But in the Marlborough Case,
3 Madd. 498, although the court would not interfere on the mere
ground that the tenant in tail was prohibited by Statute from barring
the entail ; yet, having regard to the enactment " that Blenheim House
should in all times descend and be enjoyed with the honors and digni-
ties of the family," it was held that the court ought to interfere not
only to prevent the destruction of the house, but also to protect the
timber essential to the shelter and ornament of the house. 3 Madd.
549.
There is an analogy which entirely accords with the distinction made
by the Vice-Chancellor in this decree between legal and equitable
waste, viz., the case of " tenant in tail after possibility- of issue ex-
tinct," who is dispunishable of legal waste in respect of the estate of
inheritance which was once in hira, but may be restrained by injunction
from committing equitable waste, this being an abuse of his legal
power.
F"or these reasons I think that the decree of the Vice-Chancellor, as
he pronounced it, should in all respects be affirmed, and that the appeal
must be dismissed with costs.
3fr. Holt, Sir Hugh Cairns, and Mr. Kay, for the plaintiff; Mr,
Daniel and Mr. Speed, for the defendant.
598 HONYWOOD V. HONYWOOD.
HONYWOOD V. HONYWOOD.
Chancery. 1874.
[Reported L. S. IS Eq. 306.]
William Philip Hontwood by his will devised all his real estates
to trustees, upon trust to manage the same, and, after certain payments
therein mentioned, to pay the rents and profits to his wife during her
life or widowhood, with remainders over.
The testator died in 1859, and the suit was instituted hj Mrs. Honj--
wood for the administration of his estate. Various inquiries had been
directed by the decree, and orders had been made from time to time
for felling part of the timber on the estate, and directing that some
part of such felled timber might be used for repairs on the estate, and
that the remainder might be sold, and the proceeds paid into court
and invested, and the income thereof paid to the widow as tenant for
life.
It appeared that part of the money thus paid into court represented
the proceeds of the sale of trees, which, according to the evidence of
the agent for the estate, were ripe and fit to be cut, and would not
improve but lessen in value, and that it would be for the benefit of the
estate if they were cut.
The question which came before the court, on further consideration
of the suit, was, as between the plaintiff, as equitable tenant for life,
and the remainderman, whether the proceeds of the sale of the trees,
which were felled in the regular course of thinning, or which were fit
to be cut, and would not improve by standing, and which were injurious
to the other timber, belonged absolutelj' to the plaintiff, or whether she
was only entitled to the income thereof when invested.
Mr. Ji'ischer, Q. C, and Mr. Hanson, for the plaintiff.
Mr. Southgate, Q. C, and Mr. Freeling, for the trustees of the will,
and Mr. Crossley, for the heir-at-law.
Sir G. Jessel, M. R. As I understand the law, it is this : The
tenant for life may not cut timber. The question of what timber is,
depends, first, on general law, that is, the law of England ; and,
secondly, on the special custom of a locality.
By the general law of England, oak, ash, and elm are timber, pro-
vided they are of the age of twenty j'ears and upwards, provided also
they are not so old as not to have a reasonable quantity of usable
wood in them, sufficient, according to a textwriter (see Gibbons on
Dilapidations, p. 215; Countess of Cumberland's Case, Moore, 812;
HerlakenderC s Case, 4 Rep. 63 b), to make a good post. Timber,
that is, the kind of tree which may be called timber, may be varied by
local custom. There is what is called the custom of the country, that
HONYWOOD V. HONYWOOD. 599
IS, of a particular count}' or division of a county, and it varies in two
waj's. First of all, you may have trees called timber by the custom of the
country, — beech in some counties, hornbeam in others, and even white-
thorn and black-thorn, and many other trees, are considered timber in
peculiar localities, — in addition to tlie ordinarj- timber trees. Then
again, in certain localities, arising probably from the nature of the soil,
trees of even twenty years old are not necessarily timber, but ma}' go
to twenty-four years, or even to a later period, I suppose, if necessarj- ;
and in other places the test of when a tree becomes timber is not its
age, but its girth. These, however, are special customs. Once arrive
at the fact of what is timber, the tenant for life, impeachable for waste,
cannot cut it down. That I take to be the clear law, with one single
exception, which has been established principally by modern authorities
in favor of the owners of timber estates, that is, estates which are cul-
tivated raerel}' for the produce of salable timber, and where the timber
is cut periodicall}-. The reason of the distinction is this, that as cut-
ting the timber is the mode of cultivation, the timber is not to be kept
as part of the inheritance, but part, so to saj-, of the annual fruits of
the land, and in these cases the same kind of cultivation ma}- be carried
on by the tenant for life that has been carried on by the settlor on the
estate, and the timber so cut down periodically in due course is looked
upon as the annual profits of the estate, and, therefore, goes to the
tenant for life. With that exception, I take it, a tenant for life cannot
cut timber ; therefore, I ho'.d in this case, it not being a timber estate,
that the tenant for life cannot cut timber at all.
The next question to be decided is, what can the tenant for life cut?
The tenant for life can cut all that ia not timber, with certain excep-
tions. He cannot cut ornnmental trees, and he cannot destroy " ger-
mins," as the old law calls them, or stools of underwood; and he
cannot destroy trees planted for the protection of banks, and various
exceptions of that kind ; but, with those exceptions, which are waste,
he may cut all trees which are not timber, with again an exception, that
he must not cut those trees which, being under twenty years of age, are
not timber, but which would be timber if they were over twenty years
of age. If he cuts them down, he commits waste, as he prevents the
growth of the timber. Then, again, there is a qualification that he may
cut down oak, ash, and elm, under twenty years of age, provided they
are cut down for the purpose of allowing the proper development and
growth of other timber that is in the same wood or plantation. That
is not waste ; in fact, it is for the improvement of the estate, and not
the destruction of it, and therefore he is allowed to cut them down. If,
therefore, in the course of the proper management of this estate, any
oaks, ashes, and elms under twenty years old have been cut down for
the purpose of allowing of the growth of the other timber in a proper
manner, that would not be waste on the part of the tenant for life,
though impeachable for waste.
Then the only other question to be decided is, in whom is the prop-
600 HONYWOOD V. HONYWOOD.
ertj' of the timber cut down vested ? There, I think, the law is reasonably
clear. If the timber is timber properlj- so called, that is, oak, ash, and
elm over twenty 3-ears old (I am not saying anything about exceptional
cases), the property in the timber cut down, either by the tenant for
life or anybody else, or blown down bj- a storm, belongs at law to the
owner of the first vested estate of inheritance. There is in equity an
exception where the remainderman, the owner of the first vested estate
of inheritance, has colluded with the tenant for life, to induce the tenant
for life to cut down timber, and then equity interferes and will not
allow him to get the benefit of his own wrong. There is, again, a
second equitable exception, and that is this : that where timber is
decaying, or for any specitil reason it is proper to cut it down, and the
tenant for life in a suit properly constituted, to which the remainder-
man or the owner of the vested estate of inheritance is a partj', gets an
order of the court to have it cut down, there the court disposes of the
proceeds on equitable principles, and makes them follow the interests
in the estate. In that case, therefore, the proceeds are invested, and
the income given to the successive owners of the estate, until j'ou get
to the owner of the first absolute estate of inheritance, who can take
away the monej'.
The same course, as I understand it — there is a decision of Lord
Lyndhurst, in Ormond \. Kynnersley, 7 L.J. (Ch.) 150, the other waj-,
but modern decisions have settled the law — is adopted in the case of
the commission of equitable waste, that is, where ornamental trees, or
trees which could not otherwise be cut down even b3' a tenant for life
unimpeachable for waste, are cut down ; there also, as I understand it,
the proceeds are invested so as to follow the uses of the settlement,
that is, to go along with the estate according to the settlement giving
the income to the tenant for life, and so on.
Then we come to the propertj' in trees not timber, that is, those
which are not timber either from their nature or because they are not
old enough or because thej' are too old. In all those cases, I take it,
the property is in the tenant for life. If he cuts them down wrong-
fully, and commits waste, the property is still in him, though he has
committed a wrong, and would be liable to an action in the nature of
waste. I am not sure that would follow in equitj'. Mj' impression is
that equitj' would say that he should not be allowed to take the benefit
of his own wrong, and that he should not be allowed to take the
propertj' in those trees he cuts down. This is not the case at com-
mon law, and I am not aware that the exact point has been decided in
equitj'.
If the present tenant for life has cut down oak, ash, or elm under
twenty j-ears of age, in a due course of cultivation, and for the purpose of
improving the growth or allowing the development of timber trees, she
will be entitled to the proceeds of the trees so cut down ; and assuming,
when I come to look at the affidavits, that there are some which show
that there is such a class of tree cut down, as I understand is actually
PYNCHON V. STEARNS. 601
the case, then I shall direct an inquirj' to ascertain what portion of the
proceeds she is entitled to.
As regards the future, I think I have said enough, without any
further declaration, to show what the tenant for life will be entitled to.
PYNCHON V. STEAENS.
Supreme Judicial Court op Massachusetts. 1846.
[Reported 11 Met. 304.]
This was an action of waste, in which the plaintiff alleged that the
defendant held two parcels of land in Springfield, as tenant for life —
the plaintiff having the next estate of inheritance — and had committed
sundry acts of waste thereon. Trial before Shaw, C. J., whose report
thereof was as follows : —
The plaintiff gave in evidence the last will of Edward Pynchon,
proved May 30th, 1830, by which he devised the two parcels of land
described in the plaintiff's declaration; viz., Pond Meadow and Great
Meadow, to his wife, Susan Pynchon, so long as she should remain his
widow, remainder to his brother, the plaintiff, in fee : Also an assign-
ment of the same parcels, by said Susan, to the defendant, for her life,
reserving a J'earl3- rent of thirty dollars. There was evidence tending
to show that these parcels of land adjoined each other, and together
extended from JNIain Street, easterly, to and bej'ond Chestnut Street.
The plaintiff relied on the four following acts of waste : 1st. That
the defendant had destr03-ed fences, or permitted them to fall down or
decay, by means of which there was danger that the abuttals and land-
marks of the estate would be lost, or rendered doubtful, to the damage
of the inheritance. 2d. That the defendant had laid out a street or
open waj-, across the land, from one public highway- to another, viz.,
from Main Street to Chestnut Street, by which the character of the
land was changed, to the injur}- of the inheritance, and bj- which there
was danger that the rights of the inheritance might be lost or impaired.
3d. That in order to fit that part of the land, so laid out for a street,
for travel, the defendant had ploughed furrows or dug drains along the
side thereof, and drawn in large quantities of earth, to raise the same,
and thereby had so changed the surface, that it ceased to be meadow
and pasture land. 4th. That the defendant had erected several wooden
houses on the land, and had, for that purpose, caused some portion of
the soil to be thrown out from under the sites of those houses, in order
to form cellars under them, and to raise the land around them ; and had
thus changed the character and condition of the land.
As to all that part of the land, nearest to Main Street, called Pond
Meadow, the defendant denied the right of the plaintiff to maintain this
action, on the ground that the plaintiff, on the 13th of July, 1839, had
602 PYNCHON V. STEAENS.
taken of the defendant a lease thereof during the life of the aforesaid
Susan Pynehon, so that the defendant had ceased to be tenant for life,
and the plaintiff had become tenant for life, entitled to the possession ;
and that the relation of tenant for life and remainderman no longer sub-
sisted between the parties. The lease was given in evidence, and the
execution thei'eof admitted. The judge sustained the defendant's ob-
jection, and instructed the jur^' that, as to that part of the land, the
action could not be maintained.
As to the alleged acts of waste, on the other parcel of land, the de-
fendant made several answers : As to removal or decay of fences, and
the loss of boundaries, he denied tlie fact ; and the evidence was left to
the jury, with directions not excepted to. As to the other alleged acts
of waste, the defendant denied that they amounted to waste. And the
jury were instructed that the opening of a way through the land, from
one highwa\- to another, was not waste. As to the subverting of the
soil, and carrying on earth to raise it, and as to the plaintiff's digging
out of a part of the soil for cellars of houses, and raising the soil about
the houses, evidence was offered, and, though objected to, was admitted,
tending to show that it was a useful and beneficial mode of Imsbandry,
on similar meadow ground, occasionally to break it up and cultivate it,
and again laj- it down to grass ; that as the soil in question was low and
wet, the carrying of earth thereon would benefit it, and make it worth
more for agiicultural purposes, than if it had not been done ; that it
would cost but little to level it and fit it for cultiAation. Whereupon
the jurj' were instructed, that if breaking up meadow laud, occasionally,
was a judicious and suitable mode of husbandrj-, the changing of the
surface of the soil from meadow, b3' breaking up and cultivating it, was
not waste ; that if the cost of levelling would be small, and if, after de-
ducting such cost, the land, over which the road had been built, and on
which the houses had been erected, would, in case of their removal, be
equally (or more) valuable for agricultural purposes, including plough-
ing and cultivation, and fitting and laying it down to grass, as if it had
not thus been changed and built upon, then the laying out and filling up
of the road, and removing the soil, for the building of houses and the
erection of houses thereon, did not constitute waste.
The jury were also requested to saj- (if they should find that the es-
tate would be of less value for agricultural purposes, supposing the
buildings to be all removed), whether It would, on the whole, be equally
or more valuable to the owner of the inheritance, on the hj-pothesis
of the buildings' remaining thereon at the determination of the life
estate.
The jury returned a verdict for the defendant, and, on being inquired
of, stated that thej- were of opinion, that the estate would be worth
more to the owner of the inheritance, for agricultural purposes, even if
the houses were taken off, than if the acts of the defendant, in raising
and filling up the road, and digging the soil for building, had not been
done.
PYNOnON 1-. STEARNS. 603
Verdict to be set aside, and a new trial granted, if any of the fore-
going instructions, unfavorable to the plaintiff, were wrong.
J). Cummins and 7^. Cummins, for the plaintiff.
B. It. Curtis and R. A. Chapman, for the defendant.
Wilde, J. This is an action of waste, and the case comes before us
on exceptions to the instructions to the jury at the trial. The premises
described in the writ wei-e formerly the jjvoperty of Edward Pynchon,
and were devised by him to Susan Pynchon, his wife, so long as she
should remain his widow, remainder to the plaintiff. The defendant
liolfls under an assignment from the said Susan.
It was proved at the trial, that the plaintiff had taken of the defend-
ant a lease of part of the premises during the life of the said Susan ;
and it was ruled by the court that, as to that part of the premises, the
action could not be maintained. That this ruling was correct, cannot,
we think, admit of a doubt. B}' this lease to the plaintiff, he became
the owner of the whole estate. The estate for years immediately merged
in the remainder in fee ; and the plaintiff entered, as it is understood,
before the alleged waste. If, however, the lease had been given after
the waste, no action of waste could be maintained after the merger of
the estate, and after the entry of the plaintiff under the lease fi'om the
defendant.
If it be said that the reservation in the lease to the plaintiff prevented
the merger, the answer is, that the reservation did not, and could not,
b3- the well-established rules of construction, limit or devest the estate
expressly demised to the plaintiff. The defendant only reserved the
right to erect buildings on the premises ; but no estate for life or for a
term of years is reserved ; and if it had been reserved, it would have
been repugnant to the terms of the lease limiting and demising the
estate for life to the plaintiff.
As to the stipulation for the payment of rent, we consider that as a
personal covenant of the plaintiff. No right of entry is reserved for the
non-payment of rent ; and that covenant can no more prevent a merger
than it can prevent the vesting of the estate demised.
As to the alleged acts of waste on the other part of the premises, the
plaintiff relied upon sundry facts which are not disputed ; namely, that
the i.^iendant had opened a way through the premises from one public
highway to another ; and that the defendant had subverted the soil, by
digging out part of the soil for cellars of houses by him erected ; and
that he had ploughed the lands, dug drains, and had drawn in large quan-
tities of earth, thereby raising the land and changing the surface thereof.
The defendant introduced evidence to show that these acts of the de-
fendant were beneficial and not prejudicial to the plaintiff, and did not
constitute waste. On this evidence the jury were instructed that the
opening of the way was not waste ; and that if breaking up meadow
land occasionally was a judicious and suitable mode of husbandry, the
changing the surface by breaking up and cultivating it, was not waste ;
and that the removing the soil for the building of houses, and the erect-
604 PYNCHON V. STEAENS.
ing them, and digging drains, if the estate on the whole would be
equally or more valuable to the owner of the inheritance, would not
be waste.
The general rule of law in respect to waste is, that the act must be
prejudicial to the inheritance. It is defined bj- Blackstone (3 Bl. Com.
223) to be " a spoil and destruction of the estate, either in houses, woods,
or lands." It is true, however, that it has been held in England, that to
change the nature of the property bj- the tenant, although the alteration
maj' be for the greater profit of the lessor, was waste. So in England,
if the tenant cohverts arable land into wood, or e converse, or meadow
into plough or pasture land, it is waste. Bac. Ab. Waste, C. 1. The
reasons given are, that it changes the course of husbandrj-, and the evi-
dence of the estate. But these reasons are not applicable in this Com-
monwealth, and consequent]}' such changes hero do not constitute waste,
unless such changes are prejudicial to the inheritance. So the doctrine
is laid down bj- Mr. Dane, and it is, we think, supported on satisfactovj'
reasons. 3 Dane Ab. 219. When our ancestors emigrated to this coun-
try, they brought with them, and were afterwards governed bj-, the
common law of England ; excepting, however, such parts as were inap-
plicable to their new condition. 2 Mass. 534 ; 8 Pick. 316. Tliat the
principle of the common law under consideration was then inapplicable
to the condition of the country' is obvious ; nor has it been applicable
at an}- time since ; for it has been the constant usage of our farmers to
break up their grass lands for the purpose of raising crops by tillage,
and laying them down again to grass, and otherwise to change the use
and cultivation of their lands, as occasions have required. A conformity,
therefore, to this usage, cannot be deemed waste. Even in England,
" if a meadow be sometimes arable, and sometimes meadow, and some-
times pasture, the ploughing of it is not waste." Bac. Ab. Waste, C. 1 ;
Com. Dig. Wast, D. 4. As to the effect of such changes upon the evi-
dence of title to lands, it is evident that it can have none in this State.
Our conveyances are very simple. The land conveyed is described by
metes and bounds, or by some general and certain description of its
limits, without any designation of the kind of land conveyed, whether
it be arable land or grass land, wood land or cleared land, pasture or
meadow.
As to the other acts complained of, we think they cannot be deemed
waste, unless thoy may be prejudicial to the plaintiff; and that the
instructions to the jury, in this respect, were therefore correct. To
erect a new house on the land where there was not any before, is not
waste. Bac. Ab. Waste, C. 5. So there seems no authority for holding
that the opening of a way by the defendant, for his convenience, and
draining the land, are acts of waste. And as to raising the land, by
carrying thereon quantities of earth, whatever may be the law of Eng-
land, it is not in this Commonwealth waste, unless it may be prejudi-
cial to the plaintifi'.
The ancient doctrine of waste, if universally adopted in this country,
MOOKE V. TOWNSHEND. 605
would greatlj- impede the progress of improvement, without any com-
pensating benefit. To be beneficial, therefore, the rules of law must be
accommodated to the situation of the country, and the course of affairs
here ; as it has been frequently- decided. Winship v. Pitts, 3 Paige,
259, and other cases cited by the defendant's counsel.
In tills country, it is diflicult to imagine any exception to the general
rule of law, that no act of a tenant will amount to waste, unless it is or
may be prejudicial to the inheritance, or to those entitled to the rever-
sion or remainder.
For these reasons, we are of opinion that the instructions to the jury
were correct. Judgment on the verdict.^
MOORE V. TOWNSHEND.
Supreme Codet of New Jersey. 1869.
[Beported i Vroom, 284.]
This was an action on the case in the nature of waste, to recover
damages for permissive waste, tried at the Cumberland Circuit. The
plaintiff, on the 5th of November, 1853, by a lease, under seal, demised
to the defendant the premises kno'frn as the Eagle Glass Works, in the
county of Cumberland, together with one hundred and fifty moulds, and
all the tools of every description connected with the glass manufactory
business at that manufactorj- ; to hold for the term of two years and
eight months, at a yearly- rent of one thousand dollars. The lease con-
tained a covenant, bj' the tenant, for the re-delivery of the moulds and
tools, to the lessor, at the expiration of the term, in as good con-
dition as the}' were in at the time of the demise, reasonable wear and
tear and fire excepted. It also contained the following clause : " It
being understood and agreed between the said parties that said Moore
has the privilege of lading out one hundred dollars per j'ear in repairs
on said propert3% and deducting the same from the rent." There was
no other covenant in the lease on the subject of repairs. It was shown,
at the trial, that twentj'-one dollars and fifty cents had been expended
in repairs during the continuance of the lease, of which sum six dollars
and niuet3'-five cents had been deducted from the rent, the balance of
which had been paid.
The jur\- found a verdict for the plaintiff, and assessed his damages
at five hundred and fifty dollars.
A rule to show cause wh}- a new trial should not be granted, was
allowed ; and the following reasons were assigned for setting aside the
verdict. 1. Because an action on the case will not lie against a tenant
' See Keeler v. Eastman, 11 Vt. 293 ; Clemence v. Steere, 1 E. I. 272 ; M'Cullough
V. Irvine, 13 Pa. 438, 443.
606 MOORE V. TOWNSHEND.
for 3'ears for permissive waste. 2. Because the lease between tlie
parties measures and limits the liability of the tenant, in the matter of
repairs.
Argued at November Term, 1868, before the Chief Justice and
Justices Daleimple and Depue.
For the rule, J. T. Nixon and the Attornej^-General, George M.
Hobeson.
Against the rule, F'. F. Westcott and Mr. Browning.
Depue, J. The action on the ease, in the nature of waste, has
almost entirely superseded the common law action of waste, as well for
permissive as for voluntary waste, as furnishing a more easy and ex-
peditious remedy than a writ of waste. It is also an action encouraged
by the courts, the recovery being confined to single damages, and not
being accompanied by a forfeiture of the place wasted.
At common law, waste laj' against a tenant in dower, tenant b}' the
curtesj' and guardian in chivalry, but not against lessees for life or
years. 2 Inst. 299, 305 ; Co. Lit. 54. The i-eason of this diversity
was, that the estates and interests of the former were created by the law,
and therefore the law gave a remedj- against them, but the latter came
in bj^ the act of the owner who might have provided in his demise
against the doing of waste by his lessee, and if he did not, it was his
negligence and default. 2 Inst. 299; Doct. & Stu., ch. 1, p. 102.
This doctrine was found extremely- inconvenient, as tenants took advan-
tage of the ignorance of their landlords, and committed ai^ts of waste
with impunity. To remedy this inconvenience the Statute of Marlbridge
(52 Hen. 8, ch. 23) was passed. But as the recompense given by this
Statute was frequently inadequate to the loss sustained, the Statute of
Gloucester (6 Edw. 1, ch. 6) increased the punishment by enacting
that the place wasted should be recovered, together with treble dam-
ages. 1 Cruise Dig. 119, §§ 25, 26 ; Sackett v. Sackett, 8 Pick., p. 313,
per Parker, C. J. The Statute of Marlbridge is in the following words :
" Also fermors, during their terms, shall not make waste, sale, nor
exile of house, woods, and men, nor of anything belonging to the tene-
ments that they have to ferm, without special license had by writing of
covenant, making mention that they maj- do it ; which thing, if they do
and thereof be convict, they shall yield full damage, and shall be pun-
ished bj- amercement grievously." 2 Inst. 145. The word " fermor"
{firmarii) in this Statute comprehended all such as held by lease for
life or lives, or for years, by deed or without deed (2 Inst. 145, note 1),
and also devisees for life or years (2 Roll. Abr. 826, 1. 35). By the
Statute of Gloucester, " it is provided, also, that a man, from hence-
forth, shall have a writ of waste, in the Chancer;', against him that
holdeth by law of England or otherwise, for term of life, or for term of
j'ears, or a woman in dower. And he which shall be attainted of
waste, shall lease the thing that he hath wasted, and, moreover, shall
recompense thrice so much as the waste shall be taxed at. And for
waste made in the time of wardship, it shall be done as is contained in
MOOKE V. TOWNSHEND. 607
die Great Charter." 2 Inst. 299. At the common law, a tenant at will
was punishable for voluntary' waste, but not for permissive waste.
Countess of Salop v. Crompton^ Cro. Eliz. 777, 784 ; The Countess
of Shrewsbury's Case, 5 Rep. 14 ; Harnett and Wife v. Maitland, 16
M. & W. 258. Tenants in dower, by the curtesy, for life or lives, and
for years, were included in the Statute of Gloucester. Tenants at will
were always considered as omitted from the Statute of Marlbridge as
well as from the Statute of Gloucester, and, therefore, continued to be
dispunishable for mere permissive waste, and punishable for voluntary
waste bj- action of trespass as at common law. The reason of this ex-
emption of tenants at will from liability- for permissive waste, wa5 the
uncertain nature of their tenure, which would make it a hardship to
compel them to go to any expense for repairs. Their exemption from
the highly remedial process of waste provided by the Statute of Glou-
cester, is attributable to the fact that the owner of the inheritance might
at anj- time, b3' entr}-, determine the estate of the tenant, and thus
protect the inheritance from spoil or destruction.
The language of the Statute of Marlbridge is, " shall not make (non
facient) waste," and in the Statute of Gloucester, in speaking of guar-
dians, the words used are, "he which did waste" (que aver fait
waste). The settled construction of these Statutes in the English law
until a comparatively recent period was, that they included permissive
waste as well as voluntary waste. In a note in exposition of the Stat-
ute of Marlbridge, Lord Coke, in commenting on the words " non
facient," says : " To do or make waste, in legal understanding in this
place, includes as well permissive waste, which is waste bj' reason of
omission or not doing as for want of reparation, as waste by reason of
commission, as to cut down timber, trees, or prostrate houses, or the
like ; and the same word hath the Statute of Gloucester, ch. 5, que aver
fait waste, and yet is understood as well of passive as active waste,
for he that suffereth a house to decay which he ought to repair, doth
the waste." 2 Inst. 145 ; 7 Bac. Abr. 250 ; 3 Bl. Com. 225 ; 2 Saund.
252 ; 4 Kent, 76. So under the prohibition to do waste, the tenant is
held to be bounden for the waste of a stranger, though he assented not
to the doing of waste. Doct. & Stu., ch. 4, p. 113 ; 2 Inst. 303 ; JFay
V. Brewer, 3 Pick. 203; 1 Washburn, E. Prop. 116. It is common
learning that every lessee of land, whether for life or years, is liable in
an action of wast^ to his lessor, for all waste done on the land in lease
by whomsoever it may be committed, per Heath, J., in Attersoll v.
Stevens, 1 Taunt. 198 ; with the exception of the acts of God, public
enemies, and the acts of the lessor himself White v. Wagner, 4 Harr.
& Johns. 373 ; 4 Kent, 77 ; Heydon and Smith's Case, 13 Coke, 69.
The instances in the earlier reports in which lessees for life or years,
were held liable for permissive waste, which consisted in injuries re-
sulting from acts of negligence or omission, are quite frequent; and
their liabilitj- is grounded, not on the covenants or agreements in the
instruments of demise, but on the Statute, which subjected them to the
608 MOOEE V. TOWNSHEND.
action of waste. Griffith's Case, Moore, 69, No. 187 ; lb. 62, No. 173 ;
lb. 73, No. 200; Keilway, 206; Barcy v. Askwith, Hobart, 234;
Glover v. Pipe, Owen, 92"; 3 Dyer, 281 ; 2 Roll. Abr. 816 1. 40 ; 22
Vin. Abr. Waste, " o " and " d," pp. 436-440, 443 ; Co. Lit. 52 a, 53 b ;
5 Com. Dig. Waste, d 2, d 4 ; Bissett on Estates, 299, 300. So uni-
formly had the courts determined that lessees for life or years, had
committed waste hy the application of the common law rules, with
respect to waste, whether of omission or commission, that the learned
commentator on English law .saj's, " that for above five hundred jears
past, all tenants merely for life, or for any less estate, have been pun-
ishable or liable to be impeached for waste, both voluntary and permis-
sive ; unless their leases be made, as sometimes they are, without
impeachment of waste." 2 Bl. Com. 283.
This construction of the Statutes of Marlbridge and Gloucester con-
tinued to be received without dissent until the decision of the case of
Gibson v. Wells, 4 B. & P. 290, in the year 1805, which was followed
by the case of Heme v. Bemhow, 4 Taunt. 764 (1813). These cases, it
is insisted, have settled the construction against the liability of a tenant
for years for permissive waste. Gibson v. Wells is not an authority
for this position. The tenant against whom the action there was
brought was a tenant at will, who is not included within the Statutes,
and who, at common law, was punishable for voluntarj-, but not for
permissive waste. In Heme v. Bembow it does not clearly appear
that the lease was for a term. It is certain that the opinion of the
court proceeded upon the principles applicable to tenants at will. As
the case is reported in Taunton, it appeal's to have been decided, with-
out argument or consideration. The opinion is a. per Curiam opinion,
and the onl^' case cited is The Countess of Shrevjsbury' s Case, 5 Co.
14, which was a case of a tenancy at will.
The only subsequent case which sustains these cases is Torriano v.
Young, 6 C. & P. 8 ; a case at Nisi Prius. In other cases where Heme
V. Bemboio was cited, the English courts show no disposition to follow it.
In Jones v. Hill, 7 Taunt. 392, Gibbs, C. J., expressly guards himself
against being supposed to concur in the position that an action will not
lie against a lessee for years for permissive waste. In Martin v. Gil-
ham, 7 A. & E. 540, and in Beale v. Sanders, 3 Bing. N. C. 850, a de-
cision of that question is avoided ; and in Harnett v. Maitland, 16 M.
6 W. 256, 261, Parke, B., on Gibson v. Wells, Heme v. Bemboio, and
Torriano v. Young being cited, intimates an opinion against those
cases as necessarily involving the result that a tenant for life is also
dispunishable for permissive waste. Text-writers of acknowledged
authority have not recognized these cases as settling the law against
the older cases and the opinions of Coke and Blackstone, but have
regarded them as merelj' throwing a doubt upon a principle that had
previously been set at rest. 2 Saund. 252 b, note i ; Arch. L. & T.
196, 7 ; Smith on L. & T. 196 ; Comyn on L. & T. 495, and note e ;
2 Bouvier's Law Diet. 645, Waste, § 14 ; 1 Washburn on R. Prop. 124,
MOORE V. TOWNSHEND. 609
and note 1 . By other legal writers they are doubted or condemned as
unsound In principle. Roscoe on Real Actions, 385 : Ferrard on Fix-
tures, 278, 281, note ; 1 Evans' Statutes, 193, note ; Broom on Parties,
257 ; 4 Kent, 76, 79 ; Elines on Dilapidations, 257.
Independent of authority, the true construction of the Statute of
Gloucester, leads to the conclusion that tenant for life or j'ears, was
made liable for permissive as well as voluntary waste. Before either
this Act or the Statute of Marlbridge was passed, waste was recognized
in the law, as an injury to the inlieritance, resulting either from acts of
commission or of omission. Neither of these Statutes created new kinds
of waste, but gave a new remedy for old wastes, leaving what was
waste, and what not, to be determined by the common law (2 Inst.
300) ; and by the Statute of Gloucester the writ of waste was suable out
of Chancery as well against lessee for life or j'ears, as against tenant
by the curtesy, or in dower, putting the former, as to the newlj* created
remedj', on the same footing as the latter. " It hath been used as an
ancient maxim in the law, that tenant bj^ the curtesj-, and the tenant
in dower, should take the hind with this charge, that is to saj', that
thej' should do no waste themselves, nor suffer none to be done ; and
when an action of waste was given after, against a tenant for term of
life, then he was taken to be in the same case, as to the point of waste,
as tenant bj- the curtesy, and tenant in dower was, that is to say, that
he should do no waste, nor suffer none -to be done." Doct. & Stu., ch. 4,
p. 113. No distinction can be made between lessee for hfe and lessee
for years. Both are mertioned in the Statute conjointly ; and each
derives his interest in the premises from the act of the owner of the
inheritance.
The second section of the Act for the prevention of waste, which is
in force in this State (Nix. Dig., 4th ed., 1022) provides that no tenant
for life or years, or for any other term, shall during the term make or
suffer any waste, sale or destruction of houses, gardens, orchards,
lands, or woods, or anything belonging to the tenements demised,
without special license in writing, making mention that he may do it'.
The third section is in substance the same as the Statute of Gloucester.
The Act was passed in 1795. The use of the words " make or suffer,"
in the second section, which are equivalent to Coke's interpretation of
facient in the Statute of Marlbridge, manifests an intent to adopt
as the law of this State, the doctrine of the English courts, as to the
liability of tenants for life or years for permissive waste, which was
universally received at the time of the passage of the Act.
The second reason assigned involves the effect of the lease in this
action.
Premising that the act or omission, to constitute waste must be either
an invasion of the lord's property, or at least be some act or neglect
which tends, materially, to deteriorate the tenement, or to destroy the
evidence of its identity (Burton's Comp. R. Prop. 411 ; Doe ex dem.
Qrubb V. Earl of J3urlington, 5 B. & Ad. 507 ; 2 Saund. 259 a,
39
610 MOOEE V. TOWNSHEND.
note o ; Pynchon v. Stearns, 11 Met. 304 ; 1 Washburn R. Prop. 108) ;
and that the action is founded partly upon the common law and partly
upon the Statute, and does not depend for its support on anj' covenants
of the tenant (22 Viner, Abr. 457, Waste M. 4 ; 3 Bl. Com. 227 ; Kin-
lyside v. Thornton, 2 W. Black. 1111 ; Marker v. Kenrick, 13 C. B.
188) ; it is obvious that we must resort to the Statute for the condi-
tions on which the tenant is excusable for the waste done.
There is a class of cases in which tenants have been held not to be
liable for waste resulting from non-repair where the lessor has entered
into a covenant to make the repairs for the want of which the injury
has happened. These cases go upon the ground that the injury
was caused by the lessor's own default, on which he can base no
right to recover. There is no such covenant in the lease now under
consideration.
The Statute forbids waste bj- the tenant " without special license, in
writing, making mention that he may do it." The consent of the land-
lord by parol will not be sufficient authority. McGregor v. Brown, 6
Seld. 114. The words usually employed for this purpose are " without
impeachment of waste," but any words of equivalent import will be
sufficient, provided they amount to a license to do the acts. The de-
fendant, to bring himself within the Statute, relies on that part of the
lease which relates to the re-delivery of the personal propertj' leased, in
connection with the stipulation giving the defendant the privilege of
expending a portion of the rent in each year for repairs. The covenant
as to the personal property is entirely distinct from the obligations of
the tenant, with respect to the real estate. The privilege of expending
a portion of the rent reserved in repairs, is not a license to the tenant
to omit a dutj^ put upon him by the Statute, growing out of the relations
between the parties. To construe a privilege given bj"^ the landlord to
expend his money in the reparation of the demised premises, as a
license to the tenant to omit his dutj', to the spoil or destruction of the
inheritance, would be an entire subversion of the obvious intent of the
landlord. If it falls short of a license for the act complained of, it does
qualify or abridge the obligations of the tenant which exist independent
of the provisions of the lease.
It was further insisted that if any action lies, it should be an action
ex contractu, and not in tort. As alreadj- observed, the gravamen of
the action is the breach of a statutory- duty. An action on the case
founded in tort will lie for the breach of a duty though it be such as
that the law will imph' a promise on which an action ex contractu may
be maintained. Brunell v. lyynch, 5 B. & C. 589. To the same effect
are the cases of Kinlyside v. Thornton and Marker v. Kenrick, already
cited, in which it was held that an action on the case in the nature of
waste, will lie, although the act complained of might also be the subject
of an action for the breach of an express covenant.
Beasley, C. J,, and Dalrimple, J., concurred.
Rule discharged.
GAINES V. GREEN POND COMPANY. 611
GAINES V. GEEEN POND lEON MINING COMPANY.
New Jersey Court of Errors and Appeals. 1881.
[Heported 33 N. J. Eg. 603.]
Appeal from a decree of the Chancellor.^
Mr. Barker Gummere, for the appellants.
Mr. Henry C. Pitney, for the appellees.
Van Syckel, J. The bill in this cause was filed by the complainants
as owners of the remainder in fee of a large tract of wild lands in the
countj- of Morris, to restrain the defendants, who, it is alleged, have
onl}- a life estate in said lands, from cutting timber and working the
iron mines on said premises, and also prajing for an account.
Two principal questions are raised by the defendant's answer : First,
whether Robert L. Graham, through whom the complainants derive
their title, was the legitimate son of Charles M. Graham, the third.
Second, whether, if Robert's legitimacy is established, the working of
the mines bj- the life tenants, under the circumstances shown in this
case, is waste.
The complainants allege that Charles M. Graham was married clan-
destinely to Cornelia Ludlow in July, 1847, and they admit that it was
not followed by open cohabitation. Under such circumstances the law
will cast upon the complainants the burden of proving the fact of mar-
riage by very clear and persuasive evidence.
It is not deemed necessary to discuss the testimony on this branch
of the case ; it is sufficient to say that a careful consideration of it has
left no doubt in my mind that the Chancellor is justified in the conclusion
he reached upon this point.
The complainants, therefore, as owners of the remainder in fee, are
entitled to protect their estate against waste b3- the life tenant, or those
claiming under her.
The land in question is very rough and mountainous, and almost all of
it unfit for cultivation. On it there is a thin covering of wood and tim-
ber, with a large deposit of valuable iron ore underlying it. About the
year 1812 Dr. Graham, then owner of the fee, excavated the iron ore for
the purpose of manufacturing copperas, sulphur being combined with it
in such proportions as made it available for that purpose. He made at
least two openings, from ten to fifteen feet deep, out of which the ore
was raised, and carried on this business for several years. There was
erected upon the premises a building used for pounding the ores, and
other apparatus for treating them. There was no digging for ore from
the time Dr. Graham quit working (about 1812 or 1814) until about
forty years ago, when a small quantity of ore was taken out and tested
' The opinion sufficiently states the case.
612 GAINES V. GREEN POND COMPANY.
at two different forges in the neighborhood, and was considered to be
without value as iron ore, on account of the sulphur it contained.
From that time there has been no mining upon these premises until the
Green Pond Iron Companj- commenced its operations in 1872.
Bj- the strict rule of the common law, the opening and working of a
mine b}' a tenant for j^ears, not opened in the lifetime of the previous
tenant in fee, was, equall3- with the cutting of timber, an undoubted
waste of the estate. In Hohy v. Hoby, 1 Vern. 218, the widow was
held to be dowable of a coal work. It was resolved in Saunders's
Case, 5 Coke, 12, that "if a man hath land in part of which there is a
coal mine open, and he leases the land to one for life, or for years, the
lessee may dig in it, for inasmuch as the mine is open at the time, and
he leases all the land, it shall be intended that his intent is as general
as his lease."
The tenant for life, subject to waste, cannot open a new mine.
Whitfield V. JBewitt, 2 P. Wms. 240.
And if a lease of land be made, and some mines are open and some
not, the open mines oulj' can be wrought. Astry v. Ballard^ 2 Lev.
1.85.
But a tenant for life may open the earth in new places in pursuit of
an old vein of coals, when the coal mine had been opened before he
came in possession of the estate. Clavering v. Clavering, 2 P. Wms.
388.
Stoughton v. Leigh, 1 Taunt. 402, was a case directed out of the
High Court of Chancery for the opinion of the law judges.
The case involved the right of the widow to dower in certain mines
on an estate of which her husband had died seised. The mine had
been opened and wrought, but had ceased to be worked long prior to
the husband's death. The question was whether the widow, in virtue
of her estate in dower, was entitled to work the abandoned mine for her
own benefit.
The judges answered that the widow was dowable of all the mines
which had been opened and worlied in her husband's lifetime, and
"that her right to be endowed of them had no dependence upon the
subsequent continuance or discontinuance of working them, either by
the husband, in his lifetime, or by those clairping under him, since his
death."
In Viner v. Vaughan, 2 Beav. 466, Lord Langdale said: " A ten-
ant for life has no right to take the substance of the estate by opening
mines or clay-pits ; but he has a right to continue the working of mines
and claj'-pits where the author of the gift has previously' done it, and
for this reaspn that the author of the gift has made them part of the
profits of the land."
A temporary injunction was granted, so that the right of the life ten-
ant to work the clay-pits might be passed upon. That this case did not
receive a thorough consideration, is shown by the fact that Stoughton
V. Leigh was not referred to.
GAINES V. GREEN POND COMPANY. 613
This subject was cavefullj- considered b^- Lord Romillj-, in Bagot v.
Bagot, 32 Beav. 509, where he says : " With respect to the abandoned,
or, as they are called in the pleadings and evidence, the dormant mines,
I am of opinion that it has not been shown that he committed waste in
working those mines. It is always a question of degree to be estab-
lished by evidence, whether the working of a mine which has been
formerly worked, is waste or not. There is no doubt that a tenant for
life, though impeachable for waste, may properly work an open mine.
A mine not worked for tweh-e months, or two years, previously to the
tenant for life coming into possession, must still be considered an open
mine. A mine which has not been worked for one hundred years can-
not, I think, be properly so treated. My present opinion is, that a
mine which had not been worked for twenty or thirty years, from the
loss of profit attending the working, might, without committing waste,
be worked again by a succeeding tenant for life. But, if the working
of the mine had been abandoned by the owner of the inheritance many
years previouslj-, with a view to some advantage which he considered
would accompany such discontinuance, apart from the profits to be
made from the sale of the mineral, I doubt whether a succeeding tenant
for life could properly treat that as an open mine."
In JElias v. Griffith, L. R. (4 App. Cas.), 465, Lord Selborne
says: "Upon the questions of law which were argued at the bar, I
think it unnecessary to make more than two remarks. The first is, that
I am not at present prepared to hold that there can be no such thing as
an open mine or quarry, which a tenant for life, or other owner of an
estate impeachable for waste, may work, unless the produce of such
mine or quarrj' has been previously carried to market and sold. No
doubt if a mine or quarrj' has been worked for commercial profit, that
must, ordinarily, be decisive of the right to continue working ; and, on
the other hand, if minerals have been worked or used for some definite
and restricted purpose (e. g., for the purpose of fuel or repair to some
particular tenements), that would not alone give an}- such right. But
if there has been a working and use of minerals not limited to any spe-
cial or restricted purpose, I find nothing in the older authorities to justif^-
the introduction of sale as a necessary criterion of the difi'erence between
a mine or quarry which is, and one which is not, to be considered open in
a legal sense. None of the dicta which are to be found in some of the
more modern cases (each of which turned upon its own particular cir-
cumstances) can have been intended to introduce a condition or qualifi-
cation not previously known, into the law of mines.
" The other observation which I desire to make is, that when a mine
or quarry is once open, so that the owner of an estate impeachable for
waste may work it, I do not consider that the sinking a new ]M on the
same vein, or breaking ground in a new place on the same rock, is ne-
cessarily the opening of a new mine or quarry ; and for this, authoritjr
is to be found in the cases which were cited at the bar, of Clavering v.
Clavering, Bagot v. Bagot, and Cowley v. Wellesley [L.R. 1 Eq. 656]."
614 GAINES V. GREEN POND COMPANY.
In Elias v. Griffith, L. R. 8 Ch. Div. 521, Lord Cotton remarked
that, " To enable a termor, or tenant for life punishable for waste, to
work mines, it must be shown that the owner of the inheritance, or
those acting by his authoritj', have commenced the working of the mines
with a view to making a profit from the working and sale of what is
part of the inheritance. When this is established, though no profit has
in fact been made, the mine is open in such a sense as to justify the con-
tinuance of the working b3- a termor."
The case of Clavering v. Clavering, 2 P. Wms. 388, which recog-
nizes the right of tlie life tenant to open new pits or shafts, for the
working of an old vein of coal, has never been overruled in the English
courts. '
These citations show that, in England, the life tenant has a right to
use a mine for his own profit, where the owner of the fee, in his lifetime
has opened it, even though he may have discontinued working upon it
for a long period of years.
The rule by which the right of the life tenant is to be tested is not
the length of time that may have elapsed since the last woj-king of the
mines, but it depends upon whether the owner of the fee merely discon-
tinued the work for want of capital, or because it did not prove profit-
able, or for any other like reason, or whether he abandoned it with an
executed intention to devote the land to some other use.
A mere cessation of work, for however long a period, will not defeat
the life tenant's right, but an abandonment for a day, with a view, in
the language of Lord Romilly, "to some advantage to the property ;
which the fee owner considered would accompany such discontinuance,
apart from the profits to be made from the sale of the mineral," would
extinguish anj' claim on the part of the life tenant. If the fee owner
should sink a shaft, and afterwards erect a dwelling-house over it, or if
he should fill it up and devote the space to agricultural purposes, it
would indicate, so clearly, his intention to devote his estate to other
uses than mining, that the life tenant could not base any right upon the
prior opening.
The distinction between mere cessation of use and such an aban-
donment as has been adverted to, is recognized in the cases in this
country.
In the New York Supreme Court, a widow was held to be dowable of
a bed of iron ore, although the openings which had been made by the
husband had been partly filled up and the work discontinued in his
lifetime. Coates v. Cheever, 1 Cow. 460.
Chief-Justice Shaw, in Sillings v. Taylor, 10 Pick. 460, expresses
the like view : " Whatever doubts may have been formerly entertained,
it seems now to be well settled that a widow is entitled to dower in such
mines and quarries as were actually opened and used during the lifetime
of the husband, and it makes no difference whether the husband con-
tinued to work them to the period of his death, or whether they have
been continued since his death, by the heir or his assignee."
GAINES V. GKEEN POND COMPANY. 615
Stoughton v. Leigh, Coates v. Cheemr, and Billings v. Taylor, are
cited with approbation by Chancellor Green, in Reed v. Beed, 1 C. E.
Gr. 248.
The American cases have modifled the law of waste, to adapt it to
the circumstances of a new and growing country', in order to encourage
the tenant for life in making a reasonable use of wild and undeveloped
lands. Hustings v. Grunckleton, 3 Yeates, 261 ; Findlay v. Smith.
6 Munf. 134; Ballentine -v. Boyner, 2 Hayw. 110; Neel v. Neel, 7
Harris, 323 ; B-win v. Covode, 12 Harris, 162.
In JVeel v. Neel, a coal mine had been opened and worked for family
use, and for the benefit of the neighbors, but a very inconsiderable
quantity had been taken out. In that ease, Judge Lowrie said: " It
seems, in this case, that the author of the gift had sometimes sold coal
out of the pits, but I do not conceive this to be material. It is suffi-
cient that he opened them and derived an3- profit from them, even if it
were only private. And the decisions refer to coal mines, iron mines,
&c., and the tenant for life may work them, even though the working
of them ma3- have been discontinued before the death of him through
whom the estate comes, and, if necessary to the proper working of them,
to make new openings in the ground."
In support of these views he cites the English and American cases,
and expresses himself without reference to the Statute of 1848.
Chancellor Kent saj's : " The American doctrine on the subject of
waste is somewhat varied from the English law, and is more enlarged
and better accommodated to the circumstances of a new and growing
countrj-." 4 Com. 76.
The cases referred to will show a strong inclination to amplify the
privileges of the life tenant.
In a country like this, where there are such vast bodies of unimproved
lands, which would otherwise lie dormant in the hands of the life ten-
ant, public policj' requires that the doctrine of waste should be liberal-
ized, and the decisions have uniformly been in that direction.
The present case illustrates the hardship of a close rule in favor of
the fee. The life estate vested in 1860, and there is an expectancy of
twenty- years more of this life. A construction of the law which locks
up the land from all beneficial use for so long a period, and gives the
life owner only the privilege of paying the land tax, should not be
favored.
When the property is unimproved land, not adaptable to any other
beneficial use than that of mining, the right of the life tenant to use it
reasonably for such purpose, has some support in the adjudications in
this countrj', and is certainly not without reason to uphold it.
To maintain the right of the appellant in this case, it is not necessary
to broaden the rule to that extent.
The openings in this case were such as, under the English cases, will
establish the right in the life estate to pursue the workings upon the
veins which had been opened.
616 GAINES V. GEEEN POND COMPANY,
It is sufficient to show that openings were made and ore taken out
with a view to profit, and it is wholly immaterial whether the ore was
used in the manufacture of copperas or for some other commercial
purpose.
The evidence shows a mere cessation of the work, not such an aban-
donment, in the legal sense of that term, as will defeat the right of the
life tenant. The length of time during which cessation continued is
immaterial, so long as the fact of abandonment is not established.
Tlie decree of the Chancellor, so far as it denies the right of the ap-
pellants to work the veins of ore upon which the openings had been,
made in the lifetime of the owner of the fee, and so far as it enjoins
such work, should be reversed, and in other respects affirmed.
Decree unanimously reversed.^
^ See Xier v. Peterson, 41 Pa. 357 ; Westmoreland Coal Co.'s Appeal, 85 Pa. 344.
LEATHES V. LEATHBS. 617
CHAPTER V.
TITLE-DEEDS.
LEATHES V. LEATHES.
Chancery. 1877.
[Reported 5 Ch. D. 221.J
This was a motion on behalf of the plaintiff, who was tenant for life
in remainder of a settled estate under a will, that he might be at liberty
to deposit in court the title deeds of the estate, and that thej- might be
retained in the custod_y of the court till the hearing of the action, when
they might be secured for the benefit of the several persons interested
in the estate.
The deeds had come into the plaintiff's possession during the lifetime
of his father, the testator, for whom he acted as solicitor.
The defendant, the first tenant for life, claimed to be entitled to the
custody of the deeds, but the plaintiff alleged that he had long resided
in Australia, also that, as there was a contest respecting the ownership
of part of the estate, the defendant might make use of the deeds by
showing them to those who had an adverse claim, to the prejudice of
those entitled in remainder.
Ince, Q. C, and Chester, in support of the motion.
Chitty, Q. C, and Langworthy, for the defendant.
Jessel, M. R. a legal tenant for life of freeholds is entitled to the
custody of the title deeds as a matter of right, except in cases where
he has been guilty of misconduct so that the safety of the deeds has
been endangered, or where the rights of others intervene, and it be-
comes necessary for the court to take charge of the title deeds in order
to carry out the administration of the propert}'.
In Garner v. Hannyngton, 22 Beav. 627, 630, Lord Romilly held
that " the legal tenant for life is prima facie entitled to the custody of
the title deeds." The question came before the Court of Exchequer in
Allwood V. Heywood, 1 H. & C. 745, when the full court held that it
was but reasonable that the plaintiff, who was legal tenant for life,
should have the custody of the title deeds. There are many dicta to
the same effect, including a passage in Sugden's Vendors and Pur-
chasers, p. 446, n.
The only case the other way is that oi Warren v. Mudall, 1 J. & H.
1, 13, where the deeds were in court, and Vice-Chancellor Wood stated
the rule thus : " With respect to the title deeds, it is a settled dootiine
618 LEATHES V. LEATHES.
that this court never interferes as to the possession of deeds between a
father tenant for life and a son entitled in remainder ; but in the case
of a stranger tenant for life the court will interfere ; and this is in fact
a particularly strong case, because the deeds are in court, and I am
asked to deliver them out. The reversioner has no connection with the
tenant for life ; the title deeds must remain in court." There is a dictum
of Lord Hardwicke in Pyncent v. Pyncent, 3 Atk. 571 , to the same
effect ; but it is quite contrarj' to law, for the mere fact of the rever-
sioner being a stranger to the tenant for life has nothing to do with the
question.
Now I come to consider what are the circumstances in which the
court will interfere. First, the court will interfere when there is anj'
danger to the safety of the deeds if left in the custody of the tenant for
life ; and, secondly, where the court is carrying out the trusts of the
property, and the deeds are wanted for that purpose. Bejond these
cases the court cannot go.
The case of Stanford v. Roberts, Law Rep. 6 Ch. 310, was referred
to. In that case there was a pending suit affecting the estate ; and, as
I understand the case, the Lords Justices were of opinion that there
was an actual duty to be performed hy the trustees, and Lord Justice
James observed: "This case does not appear to me to turn on the
mere question of legal title. There is a pending suit which relates to
these estates, and which is being actively prosecuted. The onlj' ques-
tion, then, is where, having regard to the purposes of the suit, the
deeds can be most convenientlj' kept. The Vice-Chancellor has, in the
exercise of his judicial discretion, held that it is most convenient to
allow them to remain where they are, and with that discretion we shall
not interfere."
The other case referred to was that of Jenner v. Morris, Law Rep.
1 Ch. 603, 606. That was rather a peculiar case. A suit had been
instituted for raising portions out of a settled estate. Pending the
suit, the tenant for life took a number of the leases to Paris. He after-
wards, under an order of the court, brought the whole of the title deeds
and leases into court for the purposes of the suit. After the purposes
of the suit had been satisfied and the portions raised by mortgage, he
applied to have the title deeds and leases given up to him. This appli-
cation was opposed hy the mortgagees, and refused bj' Vice-Chancellor
Kindersley. When the case came before the Court of Appeal, Lord
Justice Knight Bruce said: "I cannot, without the consent of the
mortgagees, concur in an order for delivery of these documents to a
tenant for life who on a former occasion has, without any necessity,
taken a number of them out of the jurisdiction." Therefore the sole
ground of his decision was, that the tenant for life had taken them out
of the jurisdiction, and that in his opinion there was danger to the
deeds if they remained in his custodj-. Lord Justice Turner did not
agree, but by consent an order was made for the delivery of the deeds to
the tenant for life upon his giving securitj' for their safe custod}', and
LEATHES V. LEATHES. 619
for their production at reasonable times, and for their return into court
if ordered.
In tlie present case, the first reason in support of the motion that I
have to consider is, that the tenant for life has for many years resided
in Australia. That is no reason at all. Secondly, it is urged that
there is a contest as to the ownership of a portion of the estate, and
that the tenant for life might show the deeds to the adverse claimants.
There appears, however, no ground for such a suspicion.
The motion must be re/used.
Note. — Heirlooms. "And note, that in some places chattels as heirlooms (as
the best bed, table, pot, pan, cart, and other dead chattels movable) may go to the
heir, and the heir in that case may have an action for them at the common law, and
shall not sue for them in the ecclesiastical coui-t ; but the heirloom is due by cus-
tom, and not by the common law." Co. Lit. 18 b.
620
EMBLEMENTS.
CHAPTER VI.
EMBLEMENTS.
Lit. § 68. Tenant at will is, where lands or tenements are let by
one man to another, to have and to hold to him at the will of the lessor,
by force of which lease the lessee is in possession. In this case the
lessee is called tenant at will, because he hath no certain nor sure es-
tate, for the lessor may put him out at what time it pleaseth him. Yet
if the lessee soweth the land, and the lessor, after it is sown and before
the corn is ripe, put him out, yet the lessee shall have the corn, and
shall have free entry, egress and regress to cut and carry away the corn,
because he knew not at what time the lessor would enter upon him.
Otherwise it is if tenant for years, which knoweth the end of his term,
doth sow the land, and his term endeth before the corn is ripe. In this
case the lessor, or he in the reversion, shall have the corn, because the
lessee knew the certainty of his term, and when it would end.^
Co. Lit. 55 a, 55 b. " Yet if (he lessee soweth the land, and the lessor
after it is sown, &c." The reason of this is, for that the estate of the
lessee is uncertain, and therefore lest the ground should be unmaniired,
which should be hurtful to the Commonwealth, he shall reap the crop
which he sowed in peace, albeit the lessor doth determine his will before
it be ripe. And so it is if he set roots, or sow hemp or flax, or any other
annual profit, if after the same be planted, the lessor oust the lessee ; or
if the lessee dieth, yet he or his executors shall have that year's crop.
But if he plant joung fruit trees, or J'oung oaks, ashes, elms, &c., or
sow the gr«und with acorns, &c., there the lessor maj' put him out
notwithstanding, because they will yield no present annual profit. And
this is not only proper to a lessee at will, that when the lessor deter-
mines his will that the lessee shall have the corn sown, &c., but to
every particular tenant that hath an estate uncertain, for that is the
reason which Littleton expresseth in these words {because he hath no
certaiti nor sure estate). And therefore if tenant for life soweth the
gi-ound and dieth, his executors shall have the corn, for that his estate
was uncertain, and determined by the act of God. And the same law
is of the lessee for years of tenant for life. So if a man be seised of
land in the right of his wife, and soweth the ground, and he dieth, his
executors shall have the corn, and if his wife die before him he shall
1 In tenancies for jears the law is otherwise in Pennsylvania. Stultz v. Dickey,
5 Binn. 285 (1812).
ME. spencer's case. 621
have the corn. But if husband and wife be joint-tenants of the land,
and the husband soweth the ground, and the land surviveth to the wife,
it is said that she shall have the corn. If tenant pur terme d'auter
vie soweth the ground, and cesty que vie dieth, the lessee shall have the
corn. If a man seised of lands in fee hath issue a daughter and dieth,
his wife being enseint with a son, the daughter soweth the ground, the
son is born, j-et the daughter shall have the corn, because her estate
was lawful, and defeated b}- the act of God, and it is good for the Com-
monwealth that the ground be sown. But if the lessee at will sow the
ground with corn, &e., and after he himself determine his will and re-
fuseth to occupj" the ground, in that case the lessor shall have the corn,
because he loseth his rent. And if a woman that holdeth land durante
viduitate sua soweth the ground and taketh husband, the lessor shall
have the emblements, because that the determination of her own es-
tate grew bj- her own act. But where the estate of the lessee being
uncertain is defeasible bj' a right paramount, or if the lease determine
by the act of the lessee, as bj' forfeiture, condition, &c., there he that
hath the right paramount, or that entereth for any forfeiture, &c., shall
have the corn.
MR. SPENCER'S CASE.
Common Pleas. 1622.
[Reported Winch, 51.]
Sarvy, Serjeant, came to tlje bar, and demanded this question of the
court, in the behalf of Mr. Spencer : A man was seised of land in fee,
and sowed the land, and devised that to I. S., and before severance he
died ; and whether the devisee shall have the corn, or the executor of
the devisor, was the question ; and by Hobeet, Winch, and Hutton,
the devisee shall have that, and not the executor of the devisor ; and
Harris said, 18 Elizabeth, Allen's Case, that it was adjudged, that where
a man devised land which was sowed for life, the remainder in fee, and
the devisor died, and the devisee for life also died before the severance,
and it was adjudged that the executor of the tenant for life shall not
have that, but he in remainder ; and Winch, Justice, said that it had
been adjudged, that if a man devise land, and after sow that, and after
he dies, that in this case the devisee shall have the corn, and not the
executor of the devisor, nota bene}
1 See Anon. Cro. El. 61.
622 LATHAM V. ATWOOD.
LATHAM V. ATWOOD.
King's Bench. 1688.
[Reported Cro. Car. 515.]
Trover and conversion of two hundred and fifty pounds of hops.
Upon not guilty pleaded, the case appeared to be :
A woman, tenant for life, takes to husband the plaintiff, 5 Car. 1, the
remainder being to the defendant for his life. These hops were grow-
ing out of ancient roots, being within the land in question ; the wife
dies the 19th August, 9 Car. 1, the hops then growing and not
severed, &c.
The question was. Whether these hops appertained to the husband
or to him in remainder? because she died so small a while before the
gathering of them ; and they are such things as grow by manurance
and industry of the owner, by the making of hills and setting poles.
The Court, upon the motion of Grimston, who was of counsel with the
plaintiff, held, that they are like emblements, which shall go to the hus-
band or executor of the tenant for life, and not to him in remainder ;
and are not to be compared to apples or nuts, which grow of themselves.
"Wherefore adjudged for the plaintiff.
PEACOCK V. PURVIS.
Common Pleas. 1820.
[Reported 2 Srod. & B. 362.]
Replevin for growing corn. Cognizances for half a year's rent, due
the 12th of May, 1819. Pleas. First, non tenuit ; second, a writ of
fieri facias issued upon a judgment recovered by the plaintiff, in Hilary
term, 1819, against W. Peacock, under which the sheriff seized the
corn on the 28th April, 1819, and, having paid the landlord one year's
rent, sold the corn (not saying by agreement in writing) to the plain-
tiff, who then became possessed of the same. There were also pleas,
stating a custom for a waygoing crop. General demurrer and joinder.
Sulloch., Serjeant, for the defendant.
jy Oyley^ Serjeant, for the plaintiff.
Dallas, C. J. Though this question is not altogether new, there
certainly are no decisions express]}' in point. But different cases have
been referred to : first, one in Willes ; next, a case containing a dictum
of the late Lord Chief Baron ; and I shall begin by adverting to these,
before I proceed to investigate the principles on which the present case
PEACOCK V. PURVIS. 623
must turn. In the case in Willes, the question now before us was
not decided, although it was presented for the consideration of the
court ; because, upon the facts of that case, it became unnecessary to
decide it. But it was certainly stated, that if the present question
should occur, "it might have required very good consideration, it
being a point of great consequence. That goods taken in execution,
or even goods distrained damage feasant, are in the custody and under
the protection of the law, and, therefore, cannot be distrained for rent,
is expressly holdeu in Co. Lit. 47 a, and several other books ; and we
are inclined to be of this opinion.'' " But we think we have no oc-
casion to enter any further into this matter, because we are all clearly
of opinion, that if there had been no execution in the present case, yet
the corn could not be distrained." That case, therefore, onlj' proves
the court to have thought, that this point, if presented for decision,
would have required their best consideration. Owilliavi v. Barker
was similar, in fact, to the present case, though the question before the
court in that case is not the question here.
It is admitted that a dictum is to be found in that case, in favor of
the landlord's right to distrain, but that was not the point on which the
decision turned ; and this dictum of a moment is perhaps impaired by
what follows. " I do not think the Statute applies to corn in the blade ;
it would be a monstrous thing to cut it in such a state." So that it
seems inconsistent with the argument used to-day, and with the Stat-
ute, because by the Statute, corn in the blade may be distrained. This,
therefore, being a new question, that is, a new question in judgment,
and one on which no express decision can be found, we must recur to
principle, in order to arrive at a decision ; and, in considering the point
on principle, we must look to the reason and sense of the thing. With
respect to an execution on goods, the course of the sheriff is clear and
easy ; he seizes, makes a bill of sale, delivers the goods to the pur-
chaser, and retires; and why does he deliver the goods? because he
can deliver them, and is therefore bound to do so : that makes it neces-
sary for us to consider the distinction between goods and growing corn.
It is admitted, the law authorizes growing corn to be seized ; and why?
To satisfy the judgment.
But the writ of fieri facias would be quite nugatory towards such a
purpose, in a case like the present, if the right of the party were to
cease the moment the bill of sale is executed, and if he were not al-
lowed to wait till the corn became ripe and valuable, in order to reap
the benefit of his purchase. With respect to goods, it is true, the
sheriff, or the person purchasing of him, is bound to remove them
within a reasonable time ; but it is to the delivery that the law looks,
and that must be made within a reasonable time ; so here, the sheriff
is bound to deliver, and in a reasonable time ; but being so bound,
when is it he can deliver ? when the corn is ripe ; and, after that period,
it must not remain an unreasonable time. The question, therefore,
always is, What is a reasonable time for delivery? and I fully agree
624 PEACOCK V. PURVIS.
with the counsel for the plaintifT, that the deliveiy of the crop and the
satisfaction of the judgment, are the objects of the law ; that not onlj'
things actualh' in the hands of the sheriff are in custodia legis, but that,
virtually, all things taken in execution remain in such custody till the
sheriff can deliver them, so as to give effect to tlie judgment. If there
be any doubt as to this, we should refer to the Statutes respecting land-
lords ; by those Statutes, growing corn is considered as goods ; and
the provisions touching a distress of such corn are, that it is to be
distrained as if it were goods and chattels. I put, therefore, the same
construction on this case, iu favor of creditors, as obtains, under the
Statutes, in favor of landlords. Mj- opinion clashes with no authoritj- ;
and being called on to decide on principle, I think, on principle, the
defendant had no right to distrain.
Park, J. The question was well put bj' the counsel for the defend-
ant, with the addition which was made bj' my Brother Burrough ;
and that is the fair question in this case. If the decision of the court
were any other than it is to be, the effect of the law would be entirely
destroyed ; because, how could the law be available to execution, if
those who purchased under a sheriff were not allowed to retain what
they had bought? But the doctrine is not entirely new ; for, though
there was no direct decision on the point in the case in Willes, the lan-
guage of the court there, is a pretty strong argument, to show that
their opinion was against what the defendant contends for. I agree
with the counsel for the plaintiff in his argument, that if the law author-
izes this property- to be taken under an execution, it authorizes every-
thing which will make that execution available. Here, all was done
which was requisite to render the seizure legal ; the landlord had his
deduction fairly allowed at the time, and the purchaser must be allowed
to retain what the law has given him.
Burrough, J. I have a high opinion of whatever proceeded from
the late Chief Baron Thompson, but I do not think that which has been
ascribed to him was his deliberate opinion ; and the intimation of the
court in Willes is an authorit}' the other way. I am clearly of opinion
that these goods were in the custody of the law. For, how does the
case stand? Here is a judgment creditor, who purchases growing corn
under an execution, but he has no satisfaction till the corn is carried
awaj^ and till then, he is under the protection of the law. The case of
assignees and executors differs from the present : they stand onlj^ in
the place of the bankrupt and testator, and there is a continuation of
the same right of property ; here, the property is transferred from one
hand to another. Supposing we were not to decide as we have done,
it would only alter the practice, and cause executions to be kept alive
from term to term, it being clear that the landlord is entitled to no
more than one j'ear's rent on the execution of a, fieri facias.
Richardson, J. I am of opinion, that crops in the hand of the
sheriff's vendee are protected from distress ; and this is a necessary
consequence of allowing such crops to be liable to seizure. That, how-
GRAVES 11. WELD. 625
ever, is clearlj- so, though little on the subject is to be found in the
books. It has alwaj-s been held as undoubted, which perhaps is the
reason why so little appears ; such crops are fructus industriales,
■which would go to the executor, and therefore have been considered
seizable as goods and chattels. But, where the law authorizes a seiz-
ure, it authorizes all that which will make the seizure available. Now
h6re the seizure would be uttei;ly unavailable, if the purchaser could
not retain that which he bought under the sheriff's sale. Eaton v.
Soutfihy [Willes, 131], comes ver}' near the present case, though there
it was not necessary to decide the point ; but the Chief Justice, in de-
livering the judgment of the court, thought growing crops might be
protected after sale by the sheiiff. Though the Statute of 11 Geo. 2,
gives landlords great powers, which they did not possess before, yet it
only enabled them to distrain crops in the same manner as other goods.
But other goods must alwa^'s be taken as subject to any prior rights
which may have attached to them : here, a right had attached to the
crop in question, incompatible with the landlord's distress. In order,
therefore, to make the writ oi fieri facias available to the purposes
for which, by law, it was intended, there must be, in this case, —
Judgment for the plaintiff .
GRAVES V. WELD.
King's Bench. 1833.
[Beported 5 B. & Ad. 105.]
Trover for clover, the clover hay, and clover seed. Plea, not
guiltJ^ At the trial before Taunton, J., at the Dorsetshire Summer
Assizes, 1832, a verdict was found for the plaintiff, subject to the follow-
ing case : —
The plaintiff being possessed of a close under a lease for ninetj--nine
years, determinable on three lives, in the course of the spring of 1830,
sowed it with barley ; and in May of the same year, he sowed broad
clover seed with the barley. The last of the three lives expired on the
27th of July, 1830, the reversion then being in the defendant. In the
autumn of 1830, the plaintiff took the crop of barley, in the mowing of
which a little of the clover plant which had sprung up was cut off and
taken together with the barley. In January, 1831, the plaintiff gave
up the possession of the close to the defendant. According to the
usual course of good husbandry, broad clover is sown about April or
May, and the crop is fit to be taken for hay about the beginning of
June in the following year. The clover in question was cut by the
defendant about the end of May, 1831, which was moi-e than a twelve-
month after the seed had been sown. After the barley is cut, the
clover is sometimes depastured bj- sheep in the autumn, whereby the
iO
626 GRAVES V. WELD.
crop is made thicker ; if not so fed off, the shoots would be killed bj'
the frost in the winter. In this case the clover was not depastured.
Broad clover is sometimes sown by itself; but more frequently with
barle}-, flax, oats, or wheat. The part of the clover plants cut off with
the barle}- at the time of mowing it, makes the barlej- straw better as
fodder ; but the clover is sown for ha,y, or seed, and not to improve the
barlej- straw. When the clover grows up high, it is injurious to the
barlej'. It is the common course of husbandry-, to take for haj' a sec-
ond crop of the clover in the autumn of the jear after it is sown ; and
a second crop was so taken bj- the defendant in the autumn of 1831.
But when it is intended for seed, no crop is taken for hay in the
summer. Sometimes the clover is left for a third year, but it is not
then a good crop. The usual course of husbandry is to plough up the
land in the autumn of the second j-ear for wheat. There was no cove-
nant in the lease as to the away going crop, or binding the tenant to
any particular course of husbandry.
The learned judge took the opinion of the jury on the two following
questions : First, whether the plaintiff received any benefit from taking
the clover with the barley straw, sufficient to compensate him for the
cost of the clover seed, and the extra expense of sowing and rolling.
Secondly, whether a prudent and experienced farmer, knowing that his
term was to expire at Michaelmas, would sow clover with his barley in
the spring, where there was no covenant that he should do so ; and,
whether, in the long run, and on the average, he would repay himself in
the autumn for the extra cost incurred in the spring. The jury answered
both these questions in the negative.
The question for the opinion of the court was, whether the plaintiff
was entitled to the clover cut in Maj"^, 1831, as emblements.
The case was argued in this term.
JFollett, for the plaintiff.
Gambier, for the defendant.
Denman, C. J. In this case the plaintiff is undoubtedlj' entitled to
emblements. The question is, whether that which is here called the
second crop of clover falls under that description ? We think it does
not.
In the very able argument before us, both sides agreed as to the
principle upon which the law which gives emblements was originallj'
established. That principle was, that the tenant should be encour-
aged to cultivate, by being sure of receiving the fruits of his labor ;
hut both sides were also agreed that the rule did not extend to give the
tenant all the fruits of his labor, or the right might be extended in that
case to things of a more permanent nature, as trees, or to more crops
than one ; for the cultivator very often looks for a compensation for his
capital and labor in the produce of successive years. It was, there-
fore, admitted by each, that the tenant could be entitled to that species
of product only which grows by the industrj' and manurance of man,
and to one crop onlj' of that product. But the plaintiff insisted that
GRAVES V. WELD. 627
the tenant was entitled to the crop of anj^ vegetable of that nature,
whether produced annually or not, which was growing at the time of
the cesser of the tenant's interest ; the defendant contended that he
was entitled to a crop of that species only which ordinarilj- repays the
labor by which it is produced, witliin the year in which that labor is
bestowed, though the crop ma}-, in extraordinary- seasons, be delayed
beyond that period. And the latter proposition we consider to be the
law.
It is not, however, absolutel}- necessary to decide this question ; for,
assuming that the plaintiff's rule is the correct one, the crop which is
claimed was not the crop growing at the end of the term. The last
cestui que vie died in Juh- ; the bade}- and the clover were then grow-
ing together on the same land, and a crop of both, together, was taken
by the plaintiff in the autumn of that 3 ear ; though the crop of clover
of itself was of little value. Thus the plaintiff has had one crop ; and
if it were necessary, either general!}-, or in the particular case, that the
crop taken should remunerate the tenant, we must observe, that though
the crop of clover alone did not repay the expense of sowing and prep-
aration, the case does not find that both crops together did not repay
the expenses incurred in raising both. The decision, therefore, might
proceed on this short ground ; but as the more general and important
question has been most fully and elaborately argued, we think it right
to say we are satisfied that the general rule laid down by the defend-
ant's counsel is the right one.
The principal authorities upon which the law of emblements depends,
are Littleton, § 68, and Coke's Commentary on that passage. The
former is as follows: " If the lessee soweth the land, and the lessor,
after it is sown and before the corn is ripe, put him out, yet the lessee
shall have the corn, and shall have free entry, egress and regress to
cut and carry away the corn, because he knew not at what time the
lessor would enter upon him." Lord Coke, Co. Lit. 55 a, says, "The
reason of this is, for that the estate of the lessee is uncertain, and,
therefore, lest the ground should be unmanured, which should be hurt-
ful to the Commonwealth, he shall reap the* crop which he sowed in
peace, albeit the lessor doth determine his will before it be ripe. And
so it is if he set roots or sow hemp or flax, or any other annual
profit, if after the same he planted, the lessor oust the lessee ; or if the
lessee dieth, yet he or his executors shall have that year^ crop. But
if he plant young fruit trees, or young oaks, ashes, elms, &c., or sow the
ground with acorns, &c., there the lessor may put him out notwith-
standing, because they will yield no present annual profit." These
authorities are sti'ongly in favor of the rule contended for by the defend-
ant's counsel ; they confine the right to things yielding present annual
profit: and to that year's crop, which is growing when the interest
determines. The case of hops, which grow from ancient roots, and
which yet may be emblements, though at first sight an exception, really
falls within this rule. In Latham v. Atwood, Cro. Car. 515, they were
628 GKAVBS V. WELD.
held to be " like emblements," because they were " such things as grow
by the manurance and industry of the owner, hj the making of hills
and setting poles : " that labor and expense, without which they would
not grow at all, seems to have been deemed equivalent to the sowing
and planting of other vegetables. Mr. Cruise, in his Digest, i. 110, ed.
3, says that tliis determination was probably on account of the great
expense of cultivating the ancient roots. It may be observed, that the
case decides that hops, so far as relates to their annual product only,
are emblements ; it bj' no means proves, that the person who planted
the young hops would have been entitled to the first crop whenever
produced.
On the other hand, no authoritj- was cited to show that things which
take more than a j'ear to arrive at maturity, are capable of being em-
blements, except the case of Kingsbury v. Collins, 4 Bing. 202, in
which teazles were held bj- the Court of Common Pleas to be so. But
this point was not argued, and the court does not appear to have been
made acquainted with the nature of that crop or its mode of cultiva-
tion, or it may be, that in the j'ear when the plant is fit to gather, so
much labor and expense is incurred, as to put it on the same footing as
hops. We do not therefore consider this case as an authority upon the
point in question.
The note of Serjeant Hill in 9 Vin. Abr. 368, in Lincoln's Inn
Librar}', which Mr. Gambler quoted, is precisel}' in point in the present
case, and proves that, in the opinion of that eminent lawyer, the crop
of clover in question does not belong to the plaintiffs. It is stronger,
because there the estate of the tenant is supposed to determine after
harvest, whereas here it determined before.
The weight of authority, therefore, is in favor of the rule insisted
upon by the defendant. There are besides some inconveniences,
doubts, and disputes, which were pointed out in the argument, which
would arise if the other rule were to prevail. Is the tenant to have the
feeding in autumn, besides the crop in the following year? If so, he
gets something more than one crop. Is he to have the possession of
the land for the purpose? Or is the reversioner to have the feeding;
and, in that case, is the reversioner to be liable to an action if he omits
to feed off the clover, and thereby spoils the succeeding crop? These
inconveniences do not arise if the defendant's rule is adopted. It also
prevents the reversioner from being kept out of the full enjoyment of
his land for a longer time than a year at the most ; whereas, upon the
other supposition, that period may be extended to two or more 3 ears,
according to the nature of the crop.
We are therefore of opinion that the rule regulating emblements is
that which the defendant has contended for, and that for this reason
also he is entitled to our judgment. Judgment for the defendant }
1 See Eeiff v. Eeiff, 64 Pa. 134 ; Evans v. Iglehart, 6 G. & J. 171, 188 et seq. ;
Flanagan v. Seaver, 9 Ir. Ch. 230.
COOPER V. WOOLFITT. 629
COOPER V. WOOLFITT.
Exchequer. 1857.
[Reported 1 H. & N. 122.]
The declaration alleged that W. Cooper, in his lifetime and at the
time of his death, was seised in fee of certain land called the " Claj-
pits," and being so seised sowed the same with a crop of corn and
barley, which was growing thereon at the time of his death ; and that at
the time of the committing of the grievances hereinafter mentioned, the
plaintiffs, as executors, were entitled to the said crop of corn and bar-
lej', which was then growing on the said land, and to a right of way,
&c. , for the purpose of cutting and carrying away the said crop of corn
and barlej- ; that the crop was ripe and read}- to be cut ; yet the de-
fendant obstructed the said waj-, and prevented the plaintiffs from
entering and carrying away the said corn, &e.
Plea. That W. Cooper, by his last will, devised the said land, called
the " Clay pits," unto one M. Woolfitt, to hold the same to the use of
M. "Woolfitt, her heirs and assigns forever, whereby M. Woolfitt
became seised of the said land called the " Clay pits," and entitled to
the crop of corn and barley growing thereon ; and that M. Woolfitt
being so seised and so entitled to the said crop of corn and barley, the
defendant, as the servant of M. Woolfitt, committed the supposed
grievances.
Replication. That W. Cooper, bj' his will, gave and devised the said
land to M. Woolfitt, chargeable, nevertheless, with the payment of a
legacj- of £20 thereinafter bequeathed to Samuel Cooper, to hold the
same, chargeable as aforesaid, unto and to the use of M. Woolfitt, her
heirs and assigns forever. And, bj' his will, he gave and bequeathed
to M. Woolfitt and Sarah Cooper, in equal shares, all his moneys,
securities for monej', household furniture, goods, chattels, personal
estate and effects whatsoever and wheresoever not 'thereinbefore speci-
fically bequeathed ; and bj- a codicil to his said will, duly executed, &c.,
he revoked the said bequest, in favor of the said M. Woolfitt, of one
half part of the residue of his personal estate and effects, and be-
queathed such one half part to the plaintiff, Henry Cooper, and after-
wards died without altering his said will and codicil as to the said
bequest, and that the corn and barley in the declaration mentioned was
not specifically bequeathed b}' the will or codicil, or otherwise.
The defendant demurred to the replication. He also rejoined : That
W. Cooper, bj- his said will, bequeathed to the said Samuel Cooper,
the legacj- of £20, to be payable at the end of twelve calendar months
next aftef his decease, by M. Woolfitt, out of the close of land called
" Cla}' pits," &c. And he also bequeathed unto Joseph Cooper
630 COOPER V. WOOLFITT.
absolutely', all that his post windmill, with the sails, gear and appurte-
nances ; and that the said W. Cooper, by his said will, gave and be-
queathed unto M. Woollitt and the plaintiff, Sarah Cooper, in equal
shares, all his monej-s, securities for mone^-, household furniture, goods,
chattels, personal esta,te and effects whatsoever and wheresoever not
thereinbefore speciflcallj- bequeathed, subject to the payment of all his
just debts, his funeral and testamentar3' expenses, as well as to the
pa3'ment of legacies of £20 apiece unto James Cooper and E. Cooper,
and he appointed them, the said M. Woolfitt and Sarah Cooper, joint
executrixes of his said will ; and that the said W. Cooper, hy his said
codicil, charged his aforesaid mill and appurtenances bequeathed to
the said Joseph Cooper with the payment of the said two legacies of
£20 apiece to the said James Cooper and E. Cooper, in exoneration of
his residuarj' personal estate, and he appointed the plaintiff, Henry
Cooper, joint executor with the said Sarah Cooper of his will.
The plaintiff demurred to the rejoinder.
£iUleston, for the defendant.
Joseph Brown, for the plaintiff.
Pollock, C. B. The question is, whether, under the large words
employed by the testator in the bequest of personalty, the growing
crops are so clearly given to the legatee as to take them out of the
operation of the rule of law which, in case of a devise of the ground on
which the crops stand, gives them to the devisee. A devisee takes
more than the heir would have done ; for he is not hceres factus,, but
takes by conveyance. He is therefore entitled to everything which
is appurtenant to the land, and as such to all crops growing on the
land at the time of the testator's decease, unless it appears with cer-
tainty that the testator intended some one else to take them. Here it
is impossible to say that it is clear that the testator intended to give
these crops to the executors. I am therefore of opinion that there
must be judgment for the defendant.
Martin, B. I am of the same opinion. The replication shows that
the testator having given to M. Woolfitt the close called " the Clay
pits," bequeathed to H. Cooper and S. Cooper all his personal estate
whatsoever and wheresoever not thereinbefore speciflcall}- bequeathed.
It is said that this applies to the crops growing on the land in question.
But according to the well-established rule, thej' go to the devisee of the
land unless expressly given by the will to some one else.
Beamvtell, B. I am of the same opinion. It is said that the gen-
eral bequest of the personal estate, not thereinbefore specifically be-
queathed, shows that the emblements were not to go to the devisee
of the land. But, in fact, this amounts to nothing, because in every
case where an executor is appointed all the personal effects vest in
him.
Channell, B. I am of opinion that the defendant is entitled to
judgment upon each of the demurrers. The law is thus stated in Shep-
pard's Touchstone, by Preston, p. 472: "As between an executor
IN RE KOOSB. 631
and devisee the emblements belong to the devisee, unless they are
expressly bequeathed." Here there is nothing either in the will or the
codicil to cut down the effect of the devise to M. Woolfltt.
Judgment for the defendant.
IN RE ROOSE.
Chancery. 1880.
[Reported 17 Ch. D. 696.]
Margaret Roose, widow, deceased, by her will, dated the 24th of
Jill}', 1879, gave all her real estate to her daughter, Grace, the wife of
Thomas Williamson, during her life, for her separate use, and after her
decease to her children. The testatrix then proceeded as follows : "I
give unto mj' granddaughter, Catherine Williams, the sum of £1,000,
and all the household furniture, farming stock, goods, chattels and
effects which shall be in and about Froudeg at the time of my decease."
And the residue of her personal estate the testatrix gave to her trustees,
Thomas Evans and Owen Jones, — whom she also appointed executors,
— upon trust for sale, and to hold the proceeds upon trusts for the benefit
of her said daughter, Grace Williamson, her husband and children.
One of the questions raised in the action — which was for the admin-
istration of the personal estate of the testatrix — was whether the crops
growing upon the testatrix's freehold farm called Froudeg at the time
of her death passed to Grace Williamson as the devisee of the said
farm, or to Catherine Williams as legatee of the " farming stock."
Ince, Q. C. , and J. Maurice TJoyd, for the plaintiffs.
Jtussell Moberts, for Grace WilUamson.
Jessel, M. R. I am of opinion that I am bound by authority to hold
that the specific legatee took the growing crops in question. This case
seems almost identical with the reported cases. The words in Cox v.
Godsalve were " stock of mj' farms," and the question was whether
the corn growing passed to the defendant John Godsalve, who was de-
visee in remainder of the land sown, or whether it passed to his mother
under a bequest of "all my goods, chattels, and stock of my farms."
The argument was that you could not give the corn to the devisee of
the land b}^ implication against an express bequest. The judgment of
Lord Holt was that the gift of the corn was to the mother and not to
the son ; that is to say, he held that the words " stock of my farms"
included growing crops.
The point came before Lord EUenborough, in 1807, in West v.
Moore, where he treated the law as settled. There a testator be-
queathed the " stock upon my farm, and all other my personal estate
of what nature or kind soever ; " and it was held that that passed the
growing crops as against the devisee of the land. What Lord Ellen-
borough says is this (8 East, 343) : •' The case of Oox v. Godsalve, 6
East, 604 n., before Lord Holt, is in terms so much the same as this,
632 IN RE EOOSE.
that it must conclude it : though but for that case I should have been
more inclined to think that stock on the farm meant movable stock."
That shows that Lord EUenborough decided upon the words " stock
upon my farm " and nothing else.
Then the point seems next to have come, in 1825, before Lord Gif-
ford, Master of the Rolls, in Blake v. Gibbs (note to Vaisey v. Reynolds,
5 Russ. 13). That was the case of a testatrix who was tenant for life
only of a plantation in Jamaica on which the growing crops in question
stood. The onl}- question was whether the word " stock" included the
growing crops. By her will the testatrix devised "all and everj- her
negro, mulatto, and other slaves, men, women, and children, and all
her cattle, mules, horses, asses, and other live and dead stock" upon
the plantation. The question was, what was the meaning of the words
"and other live and dead stock." It was argued on the authority of
Cox V. Godsalve and West v. Moore, 8 East, 339, that a bequest of the
stock upon a farm would include growing crops. In delivering judg-
ment, Lord Gifford says this (5 Russ. 16) : " The two cases, which have
been cited, prove, that the emblements are part of the stock, and will
pass under the description of stock on a farm ; and I cannot help think-
ing that the claim of the specific legatee is stronger here than in either
of those cases, from the circumstance of the testatrix having been only
tenant for life."
Then the point seems to have come, in 1828, before Sir John Leach
inVaisey v. Meynolds, Ibid. 12, and what he says is very odd. There
the gift was of " all and everj' my book debts, moneys in hand, stock in
trade in mj- dwelling-house, shop, and malting ; and also my farming
stock of every kind and description whatsoever ; " and Sir John Leach
held that the growing crops did not pass under the gift of the farming
stock, as against the devisee of the land, because there was no gift of
the residuary personal estate to the legatee of the farming stock. I
must say I think he was entirely- wrong. No one would hold that a
general bequest of personal estate would pass growing crops as against
the devisee of the real estate, — that under a gift of the real estate to
A. and of the personal estate to B., A. would not take the growing
crops, 3'et that is the substance of Sir John Leach's decision. As Lord
Holt's decision in Cox v. Godsalve is reported, we cannot tell what his
reasons were ; but Lord EUenborough saj-s, in West v. Moore, that a
gift of the " stock on my farm " will pass the growing crops as against
the devisee of the land ; and Lord Gifford, in Blake v. Gibbs, also
says that the growing crops will pass under the description of stock on
■A farm. But Sir John Leach says this (5 Russ. 17) : " In the case of
Cox V. Godsalve, where the words of the gift to the executor were
' stock of my farms,' there were other words in the gift which com-
prised all personal estate. And in West v. Moore, where the words of
the gift to the executor were, ' stock upon my farm,' the whole personal
estate of every nature and kind was, in terms, comprised in the gift.
These cases were between the executor and ihe devisee of the land."
IN EE EOOSB. 633
That is not quite correct : in Cox v. Godsalve it is true that the mother,
who was the legatee of the stock, was one of the executors, but the
stock was not given to her as an executor. Then Sir John Leach goes
on: "And the rule is, that, although crops on the ground are per-
sonal estate, and, generally speaking, pass to the executor, yet, as
between the executor and the devisee, the devisee will take them with
the land, unless the intention of the testator appears to be otherwise.
In these two cases such intention seems to have been inferred, rather
because the executor was plainly meant to take the whole personal
estate, than from the mere force of the words ' stock of my farm,' or
' stock upon my farm.' " All I can say is, having read the case before
Lord EUenborough, I think Sir John Leach made a mistake. Lord Ellen-
borough says " stock upon mj' farm," in so many words, passes the grow-
ing crops, showing that those were the words he relied upon. I am
therefore of opinion that the distinction taken by Sir John Leach between
those two cases and the case before him is quite untenable. Then the
last case is Itudge v. Winnall, 12 Beav. 357, in 1849, before Lord Lang-
dale, M. R. There the testator devised real estate to his trustees and
executors, in trust for A., and bequeathed " all his live and dead stock "
and the whole of his personal estate to the same trustees and executors
upon trusts for various persons. Vaisey v. Meynolds, 5 Russ. 12, was
cited in the argument, and the Master of the Rolls held that the grow-
ing crops formed part of the personal estate of the testator ; but I can-
not .find from the report whether he so decided on the ground of the
gift of the whole personal estate or of the gift of " live and dead stock ; "
consequently that case does not help me any further than the previous
cases.
In the present case the gift is in these terms: "I give unto my
granddaughter Catherine Williams the sum of £1,000 and aU the house-
hold furniture, farming stock, goods, chattels and effects, which shall
be in and about Froudeg at the time of my decease." Now, the words
"farming stock" would of themselves pass the growing crops, and
thev would not form part of his general personal estate as against the
legatee of the farming stock. The question is whether they pass to
the legatee as against the devisee of the real estate. As Lord Ellen-
borough said in West v. Moore, the question is one of intention. What
he sa.ys is this (8 East, 343) : " The case of Cox v. Godsalve, before
Lord Holt, is in terms so much the same as this, that it must conclude
it : though but for that case I should have been more inclined to think
that stock on the farm meant movable stock." By which he means
that Cox v. Godsalve decided that stock on the farm included stock
that was not movable. Then, after saying that, as against the ex-
ecutors, the standing corn goes to the devisee of the land, he proceeds :
" This is founded upon a presumed intention of the devisor in favor of
his devisee. But this again may be rebutted by words which show an
intent that the executor shall have it." Then he notices the case before
Lord Holt, observing that the only difference between that case and the
634 TEEHTJNE V. ELBERSON.
one before him was that in the former case the legatee of the stock was
not the sole executor, and that there was no material distinction between
the two cases : and he winds up by saying, " and a construction having
been once put upon these words, the question is now concluded." So
that he says the question was concluded by the construction put upon
the words " stock on the farm," that is, without reference to any other
words.
Now, in my opinion, a construction having been put upon these
words, I must treat the question as concluded. I must, therefore, hold
that in using the words "farming stock in and about Froudeg," tlie
testator intended to include, and that they did include, the growing
crops, and I so decide.
TERHUNE V. ELBERSON.
Supreme Court of Judicature of New Jersey. 1810.
[Reported 2 Penning. 533.]
The action below was an action of trespass, for cutting down and
taking away eighty bushels of rj-e, and twenty bushels of wheat of the
plaintiff below, Elberson, by the defendant below, Terhune, the 7th
July, 1810.
The defence set up, was, that the defendant below purchased the
land on which he cut the wheat and rye of the plaintiff" below, the 4th
May, 1810, and had gone into possession of the premises under the
said deed, on which the wheat and rj-e was cut at the time of cutting it,
which fact appeared by the record.
It was contended by the plaintiff below, that although he did sell the
land on which the wheat and rj'e was cut, to the defendant, in May,
and give him possession thereof, j'et that this sale did not convej- the
wheat and rye growing on the land. That whoever sowed in peace
should reap in peace. The cause was tried by a jurj-, and verdict and
judgment for the plaintiff for $30, with costs.
By the Court. The doctrine of emblements does not applj' to this
case. The sale and conve^'ance of the land in fee simple, carried with
it the wheat and rye growing on the land, unless the wheat and rj-e was
specially reserved, which was not pretended.
IjCt the judgment be reversed.
SMITH V. PRICE. 635
SMITH V. PRICE.
Supreme Court of Illinois. 1865.
[Reported 39 III. 28.]
Writ of error to the Circuit Court of Marion county; the Hon.
Silas L. Bryan, judge, presiding.
The case is stated in the opinion of the court :
Messrs. Willard and Goodnow, for the plaintiff in error.
Mr. H. K. S. O'Melmny, for the defendant m error.
Mr. Justice Lawrence delivered the opinion of the court. This
was a bill in chancery filed by Smith, plaintiff in error, to enjoin Price,
the defendant in error, from removing certain fruit-trees growing in a
nurserj-, and certain ornamental shrubbery, from a tract of land sold by
the latter to the former. Price answered (the oath to his answer hav-
ing been waived) , and on the coming in of the answer a motion was
made to dissolve the injunction. A replication was filed and the case
seems to have been irregularlj- set down for final hearing at the same
time with hearing the motion to dissolve, and to have been finally dis-
posed of upon the pleadings, and the affidavits filed for and against the
motion. As no exception was taken to this proceeding, it was prob-
ably had bj- consent. The court rendered a decree making the in-
junction perpetual as to a part of the trees, and dissolving it as to a
part ; and from this decree the complainant prosecutes a writ of error.
The defendant admits a sale of the land b}' himself to the complain-
ant, and that the latter went into possession under the contract of
purchase, but insists that one of the terms of the sale was a verbal
resei-vation of the nurserj' trees and some other ornamental shrub-
berj-. The proof made in the affidavits upon this point is uncertain
and contradictory.
While fruit-trees and ornamental shubbery grown upon premises
leased for nursery purposes would probablj- be held to be personal
property, as between the landlord and tenant, yet there is neither
authoritj- nor reason for saying that, as between vendor and vendee,
such trees and shrubbery would not pass with a sale of the land. They
are annexed to, and a part of the freehold. As between vendor and
vendee, even annual crops pass with the land where possession is given.
Bull V. Griswokl, 19 111. 631. Under the contract of sale and the de-
livery of possession bj- Price to Smith, the latter became the owner of
the trees as well as of the soil, and it would be a violation of the most
familiar rules of evidence to receive proof of a verbal arrangement co-
temporaneous with the written contract and impairing its legal effect.
The parties, in executing the written instrument, deliberately made it
the exclusive evidence of the terms of their agreement. This instru-
636 BEACKETT V. GODDAED. *
ment shows a sale of the land in such terms as to pass the trees. No
reservation is made, and to permit the vendor now to show that there
was a verbal agreement for their reservation, would be to permit him
to prove a verbal contract, inconsistent with the legal import of that
executed by the parties under their hands and seals. This the law for-
bids. We find nothing in the case to make it an exception to this
familiar principle, and it is therefore unnecessar}- to advert to the evi-
dence in detail. As the record shows that Price had actuallj- removed
a part of the shrubbery, and claimed the right to move much more, it
was a proper case for an injunction, and the decree will be reversed
and the cause remanded, with instructions to the court to proceed in
conformity with this opinion. Decree re^^ersed}
BEACKETT v. GODDAED.
Supreme Judicial Court of Maine. 1866.
{Reported 54 Me. 309.]
Assumpsit on account annexed, for $60, for money paid by the
plaintiff to the defendant, for logs and down timber, the title to which,
the plaintiff alleged, was not in the defendant at the time of sale. The
writ also contained a count for mone^- had and received for same
amount.
It appeared from the report that the defendant owned, in the summer
of 1863, a timber lot in Hermon ; that he cut down a large number of
hemlock trees thereon, peeled the bark therefrom and removed it from
the lot, — intending to prepare the trees bj- cutting off the tops and
haul them off as logs to be sawed during the ensuing winter. The trees
were severed from the stumps, and tliej- \&y as thej- fell, with the tops
on. In the felling the choppers endeavored, so far as practicable, to
have them lie in a good position for peeling and afterwards hauling
them off.
In the fore part of the fall of the same j'ear, the defendant convej-ed
the lot by deed of warranty, without any reservations, to one Works.
On the 20th of the following November, after "Works had entered into
possession of the lot under his deed, the defendant sold the hemlocks
thus cut, to the plaintiff, by a bill of sale. To recover back the money
paid for the bill of sale, this action was brought.
Previous to the commencement of this suit, the plaintiff demanded
the hemlocks of Works, who refused to deliver them or permit the
plaintiff to take them. Thereupon the plaintiff sued Works in trover
therefor, and entered his action in court, which action was continued
from term to term for several terms, when that action was by agree-
1 See Noble v. Bosworfh, 19 Pick. 314, post ; Strong v. Doyle, 110 Mass. 92.
BEACKETT V. GODDAED. 637
ment of parties entered " neither party." At a certain term of the
court, during the pendency of that action, the plaintiff wrote to the
defendant, then residing at Manchester, N. H., aslting him to come to
Bangor as a witness. The defendant went to Bangor at the time
requested. For his travel and attendance as a witness, he filed an
account in set-off in this action.
The court were to render such judgment as the legal rights of the
parties entitled them to.
J). J). Steioart. for the plaintiff.
A. W. Paine, for the defendant.
Appleton, C. J. This is an action brought to recover the price of
certain logs sold by the defendant to the plaintiff. The claim is based
upon an alleged failure of the defendant's title.
The defendant, while owning a lot of land in Hermon, cut down a
quantity of hemlock trees thereon. After peeling the bark therefrom
and hauling it off the land, he conveyed the lot to one Works, b}' deed
of warranty, without anj' reservation whatever. At the date of this
deed, the hemlock trees in controvers}- were Ij'ing on the lot where they
had been cut, with the tops remaining thereon.
The defendant, after his deed of the land to Works, conveyed the
hemlocks cut by him to the plaintiff. Works, the grantee of the de-
fendant, claimed the same by virtue of his deed. The question pre-
sented is whether the title to the logs is in the plaintiff or in Works.
Manure made upon a farm is personal property, and may be seised
and sold on execution. Staples v. Emery, 7 Greenl. 201. So, wheat
or corn growing is a chattel, and may be sold on execution. 'Whipple
v. Tool, 2 Johns. 419. Yet it is held that growing crops and manure,
lying upon the land, pass to the vendee of the land, if not excepted in
the deed (2 Kent, 346). or bj' Statute, as in this State b}- R. S. c. 81,
§ 6, clause 6. Fencing materials on a farm, which have been used as
a part of the fences, but are temporarily detached, without any intent
of diverting them from their use, as such, are a part of the freehold,
and pass b^- a conve^-ance of the farm to a purchaser. Goodrich v.
Jones, 2 Hill, 142. Hop-poles, used necessarily in cultivating hops,
which were taken down for the purpose of gathering the crop and piled
in the j-ard, with the intention of being replaced in the season of hop-
raising, are part of the real estate. Bishop v. Bishop, 1 Kenan, 123.
Timber trees, if blown down, or severed by a stranger, pass by a
deed of the land. " We think that it cannot admit of a doubt," remarks
Richardson, C. J., in Kittredge v. Wood, 3 N. H. 503, "that trees
felled and left upon the land, fruit upon trees, or fallen and left under
the trees where it grew, and stones lying upon the earth, go with the
land, if there be no reservation." The hemlock trees were lying upon
the ground. The tops and branches were remaining upon them. They
were not excepted from the defendant's deed, and, being in an unmanu-
factured state, they must, from analogy to the instances already cited,
pass with the land. Such, too, is the Statute of 1867, c. 88, defining
638 LEWIS V. McNATT.
the ownership of down timber. It would have been otherwise, had
they been cut into logs or hewed into timber. Oook v. Whitney, 16
111. 481 .
The defendant, at the plaintiffs request, travelled from another State,
as a witness, to testifj' for him in his suit against Works. He claims
to have his fees allowed in set-off in this suit. His account in set-off
was regularly filed. He is entitled to compensation therefor, which, as
claimed, will be travel from his then place of residence, and attendance,
in accordance with the fees established by Statute. -
Cutting, Kent, Walton, Dickerson, and Barrows, JJ., concurred.
Tapley, J. , did not concur.
Offset allowed. — Defendant defaulted, to be heard in damages}
LEWIS V. McNATT.
Supreme Court op North Carolina. 1871.
[Reported 65 N. 0. 63.]
This was an action of trespass vi et armis, commenced in the 3'ear
1860, and tried before his Honor, Judge Mussell, at the Spring Term,
1870, of the Superior Court of Bladen county, upon the issue joined on
the plea of not guilty.
The plaintiff declared for the loss of certain turpentine, some in bar-
rels and some on the trees, and for an injury to his slaves, caused by
the defendant in going upon a tract of land which the plaintiff held un-
der a lease, and driving off his slaves and seizing the turpentine. The
testimony disclosed the fact that the plaintiff was engaged in making
turpentine with another person, and that they were partners, that the
turpentine which had been lost was the property of the partnership, and
that the slaves alleged to have been injured were the property of the
plaintiff alone, and the injury to them was his individual loss, and not
that of the partnership. The defendant contended that the plaintiff
could not recover because of the non-joinder, but the court held that
the defendant could not take advantage of the non-joinder under the
general issue, and that the plaintiff could recover his proportional share
of the loss, and to this ruling the defendant excepted.
The defendant algo contended that the plaintiff could not recover
both for the injury to his slaves, and for the damage sustained as a
partner for the loss of the turpentine, but the court held otherwise, and
the defendant again excepted.
There was evidence that a large part of the turpentine consisted of
what is called " scrape," being that portion which does not run into the
box but remains on the face of the tree, and which is removed after it
1 See NoUe v. Sylvester, 42 Vt. 146, post.
LEWIS V. MoNATT. 639
has formed in sufficient quantity, by scraping it from the tree. It was
proved that the lease under which the plaintiff held, had expired before
the trespass was committed, and the defendant contended that the
plaintiff could not recover for the scrape turpentine remaining on
the trees.
His Honor charged the jury that if the plaintiff had cultivated the
trees and manufactured the scrape it was his property, and was not a
part of the tree going with the realty, and that the plaintiff had a right
to remove it, although his lease might have expired, and if the defend-
ant drove away his slaves and prevented them from removing it the
plaintiff could recover for the loss of it.
There was a verdict and judgment for the plaintiff, and the defendant
appealed.
W. McL. McKay, for the defendants.
Bragg and Strong, for the plaintiff.
Dick, J. Crude turpentine which has formed on the body of the
tree, and is usually known as " scrape," is personal property, and be-
longs to the person who has lawfully produced it by cultivation. State
v. Moore, 11 Ire. 70. It is an annual product of labor and industrj-,
and although it adheres to the body of the tree it is not a part of the
realty. The turpentine crop may be properly classed with fructus
industriales, for it is not the spontaneous product of the trees, but
requires annual labor and cultivatfon. Upon a similar principle, hops
which spring from old roots have long been regarded as emblements.
A lessee of turpentine trees, even after the expiration of his lease,
has the right of " entrj', egress and regress" to remove the "away-
going crops " which he has produced by his labor, provided he does so
within reasonable time. He has a right to the occupation of the prem-
ises for that purpose, and if this right is refused by the owner of the
land, the lessee is entitled to recover the value of the property detained.
Srittain v. McKay, 1 Ire. 265.
The " scrape" must be removed before the sap begins to flow in the
subsequent spring, for then the new turpentine mingles with the old
" scrape," which cannot be taken awa}' without interfering with the
rights of the owner of the trees.
In this case, it appeared, that the lease of the plaintiff had termi-
nated, but there was no evidence as to the time when he entered for the
purpose of removing the " scrape."
The charge of his Honor was, therefore, too general in its terms, as
the plaintiff had no right of entrj^ after the new turpentine had begun to
flow, and for this error there must be a venire de novo.
The question of pleading raised on the trial by the defendant's coun-
sel is attended with some difficulty on account of the change in our
system of procedure. At common law in actions in form ex delicto,
and which are not for the breach of a contract, if a party who ought to
join, be omitted, the objection can only be taken by a plea in abate-
ment, or by way of apportionment of damages on the trial ; and the
640 LEWIS V. MoNATT.
defendant cannot, as in actions in form ex contractu, give in evidence
the non-joinder as a ground of nonsuit on the plea of the general issue.
1 Chitty, P. 76.
Under the C. C. P. § 8, par. 1, all civil actions pending in the
courts when the present Constitution was approved by Congress, and
which were not founded on contract, are to be governed by tiie C. C. P.,
" as far as maj' be accoi'ding to the state of the progress of the action,
and having regard to its subject, and not to its form." A diflTerent pro-
vision is make as to actions founded upon contracts made previous to
the C. C. P. Merwin v. JBaUard, at this term.
The C. C. P. § 62, provides that the parties who are united in in-
terest must be joined as plaintiffs or defendants, &c. If a necessary
party to an action be omitted, and the defect appears upon the face
of the complaint, the non-joinder must be taken advantage of hy de-
murrer. C. C. P. § 95. If it does not appear upon the face of the
complaint, the objection may be taken by answer. C. C. P. § 98.
"If no such objection be taken, either by demurrer or answer, the de-
fendant shall be deemed to have waived the same." C. C. P. § 99.
It does not appear from the transcript at what term of the court the
issues were joined in this case, and the defendant might have put in a
plea in abatement at anj^ time before pleading in bar of the action. If
the issues were not joined when the case was transferred to the Su-
perior Court, he would have been entitled to have objected to the non-
joinder of a necessary' party by answer, as the defect does not appear in
the pleadings. As the defendant went to trial without taking any such
objection, the charge of his Honor must be sustained.
Venire de novo awarded. Let this be certified.
Note. — On the sale of growing timber and crops, see Langdell, Cases on Sales.
YEARWORTH V. PIERCE. 641
CHAPTER VII.
MANURE.
YEARWORTH v. PIERCE.
King's Bench. 1647.
[Reported Aleyn, 31.]
Slander. Thou art a thief, and hast stolen mj' dung. After a ver-
dict for the plaintiflF it was moved, tiiat the words were not actionable,
because dung is an indifferent word to signify either dung in a heap,
which is a chattel, or dung spread or scattered upon the ground, which
is parcel of the freehold, and then no felony may be committed of it.
But upon good debate judgment was given for the plaintiff, because the
first words being plainly actionable, the effect of them shall not be taken
away by subsequent words ambiguous ; for when subsequent words
should qualify the words precedent, they ought to cany in them a
strong intendment that thej' were spoken in such a sense as was not
actionable ; and then also Roll held they ought to be brought in by way
of explanation bj^ the word " for," as to say Thou art a thief, for thou
hast, &c. ; but if the words are, Thou art a thief, and hast stolen, &c.,
there the latter words are cumulative. But Bacon denied the difference,
and cited Clerk and Gilbert's Case, Hob. 331, where that difference is
denied, and said, that 8 Car. in the Common Pleas, where the words were.
Thou art a thief, and hast robbed thy kinsman of his land, the court was
divided in opinion ; but after upon conference with all the Justices at
Serjeants' Inn, it was adjudged for the plaintiff. And Roll denied both
those cases to be law ; and said, that this latter case was resolved upon
consideration of that in Hobert, which hath been often denied for law
in this court. And he said, that he had conferred with Sir Robert Bark-
ley and Sir John Bramston, and their opinions concur with him in this
point. And Roll held, that if the defendant had said thou hast stolen
my dung, without any other words, they would have been actionable ;
for dung in common parlance is understood of dung in a heap, which
was agreed to be a chattel, of which felony may be committed, and
goeth to the executors ; but if it lieth scattered upon the ground, so
that it cannot well be gathered without gathering part of the soil with
it, then it is parcel of the freehold.
41
642 LASSELL V. EEED.
LASSELL V. EEED.
Supreme Judicial Court of Maine. 1829.
[Reported 6 Gh-eenl. 222.]
This case, which was trespass quare clausum f regit, came before the
court upon a case stated bj' the parties.
The defendant had been the lessee of the plaintiff's farm, for the tei-m
of one year, ending April 16th ; on which day he left the premises, leav-
ing thereon a quantity of manui'e, lying in heaps about the barn and in
the farmyard, so frozen that it could not then be removed without great
inconvenience. It was afterwards taken away by the defendant, be-
tween the 10th and the 30th of Ma}', as soon as it conveniently could
be removed ; doing no other damage than was unavoidable in effecting
that object ; and this act was the trespass complained of. Some of the
cattle kept on the farm belonged to the lessor and were leased with the
premises ; others belonged to the defendant. Some of the hay also,
was purchased b}' the defendant, and the residue was cut on the farm.
The lease was referred to in the statement of facts, as containing cove-
nants for the breach of which the lessor had recovered judgment ; but
none of them related to the surrender or mode of management of the
farm, or in anj' manner touched the cause of this action.
The parties agreed that if the opinion of the court should be wholly
with the defendant, he should have judgment for costs ; that if lie had
a right to take away the manure at the end of his term, and not after-
wards, the plaintiff should have judgment for nominal damages and
costs ; but if he had no right to the manure, the plaintiff' should
have judgment for its value, being fifteen dollars, and costs.
Johnson, for the defendant.
Crosby, for the plaintiff.
Melleist, C. J. Upon examination of the lease referred to in the
statement of facts, we do not perceive an}' covenants on the part of Reed
which have anj' direct bearing on the questions submitted for our de-
cision. Nothing is said as to the management of the farm in a husband-
like-manner, or surrendering it at the end of the j'ear in as good order
and condition as it was at the commencement of the lease. The lease
is also silent on the subject of manure. The same kind of silence or
inattention has been the occasion of the numerous decisions which are
to be found in the books of reports between lessors and lessees, mort-
gagors and mortgagees, and grantors and grantees, or those claiming
under them, in relation to the legal character and ownership of certain
articles or species of propertj', connected with or appertaining to the
main subject of the convej'ance or contract. A few words, inserted in
such instruments, expressive of the meaning of the parties respecting
LASSELL V. KEED. 643
the subject, would have prevented all controversy and doubt. In the
absence of aU such language, indicating their intention as to the par-
ticulars above alluded to, courts of law have been obliged to settle the
rights of contending claimants, in some cases according to common
understanding and usage; thus window blinds, keys, &c., are consid-
ered as part of the real estate (thougli not strictly speaking fixtures),
or rather as so connected with the realty as always to pass with it. In
other cases, as between landloi'd and tenant, the question has been set-
tled upon the principles of general policy and utility ; as in the case of
erections for the purpose of carrying on trade, or the more profitable
management of a farm by the tenant. It does not appear by the facts
before us, that there is any general usage, in virtue of which the ma-
nure made on a farm bj- the cattle of the lessee during the term of his
lease is considered as belonging to him exclusively, or to the lessor, or
to both of them ; and we have not been able to find any case directly ap-
plicable to the present. There being no usage, nor such decision, nor
expressed intention of the parties to guide us, the case is one which must
be decided on the principles of policy and the public good ; for we do
not deem the case cited from Espinasse as applicable. The opinion
there given was founded on certain expressions in the lease, by means
of which the lessee was considered as a trespasser in removing the
manure from the farm at the end of the lease.
What then does policy and the public good dictate and require in the
present case ? Before answering the question we would observe that we
do not consider the case in any waj' changed bj- the fact that a part of the
fodder was carried on to the farm b}' the defendant, and a part of the
cattle on the farm were those leased ; for the purposes of the lease, such
fodder and such cattle must be considered as belonging to the tenant
during the term ; and he must be considered as the purchaser of the
fodder growing on the land, by the contract of lease, as much as if he
should purchase it elsewhere on account of the want of a sufficiency pro-
duced by the farm ; because a farm not 3-lelding a sufficiency would
command the less rent on that account. Numerous cases show that a
tenant, at the termination of his lease, maj' remove erections made at
his own expense for the purpose of carrying on his trade ; because it is
for the public good that such species of enterprise and industry should
be encouraged ; and where the parties are silent on the subject in the
lease, the law decides what principle best advances the public interest
and accords with good policy, and by that principle settles the question
of property. It is our duty to regard and protect the interests of agri-
culture as well as trade. It is obviously true, as a general observation,
that manure is essential on a farm ; and that such manure is the pro-
duct of the stock kept on such farm and relied upon as annually to be
appropriated to enrich the farm and render it productive. If at the
end of the year, or of the term where the lease is for more than a year,
the tenant may lawfully remove the manure which has been accumu-
lated, the consequence will be the impoverishment of the farm for the
644 STAPLES V. EMEKY.
ensuing year ; or such a consequence must be prevented at an unex-
pected expense, occasioned by the conduct of the lessee ; or else the
farm, destitute of manure, must necessarily be leased at a reduced rent
or unprofitably occupied by the owner. Either alternative is an un-
reasonable one ; and all the above-mentioned consequences may be
avoided by denying to the lessee what is contended fur in this action.
His claim has no foundation in justice or reason, and such a claim the
laws of the land cannot sanction. It is true that the defendant did not
remove and carry away any manure, except what was l3'ing in heaps,
probably adjoining the barn in the usual places ; but still if he had a
right to remov.e those heaps, why had he not a right to travel over the
farm and collect and remove as much as he could find scattered upon
the ground during the summer and autumn by the cattle in their pas-
tures? In both instances the manure was the product of his cattle;
yet who ever claimed to exercise such a right, or pretended to have
such a claim? The argument proves too much, and leads to impossi-
bilities in practice, as well as to something in theory which bears a
strong resemblance to an absurdity.
We do not mean to be understood by this opinion, as extending the
principles on which it is founded to the case of tenants of livery stables
in towns, and perhaps some other estate, having no connection with
the pursuits of agriculture ; other principles may be applicable in such
circumstances ; but as to their application or their extent we mean to
give no opinion on this occasion.
The case most nearly resembling the present is that of Kittredge v.
Woods, 3 N. Hamp. Rep. 503, in which it was decided that when land
is sold and conveyed, manure lying about a barn upon the land, will
pass to the grantee, as an incident to the land, unless there be a reser-
vation of it in the deed. The Chief Justice observed that the question
would generally arise between lessor and lessee, and very plainly in-
timates an opinion that a lessee, after the expiration of his lease, would
have no right to the manure left on the land. On the whole, we are all
of opinion that the defence is not sustained, and that the defendant
must be called. According to the agreement of the parties, judgment
must be entered for $15.00 and costs.^
STAPLES V. EMERY.
Supreme Judicial Court of Maine. 1831,
[Reported 7 Greenl 201.]
This was an action of trespass for taking and carrying away from
the barn yard of the plaintiff, thirty cords of manure, in the month of
May, 1828.
1 See Lewis v. Jones, 17 Pa. 262 ; Hill v. De Richemont, 48 N. H. 87.
STAPLES V. EMEEY. 645
In a case stated by the parties, it was agreed that one Elwell, who
was the owner of the farm from which the manure was talcen, had
mortgaged it to the plaintitf, who had entered for condition broken, in
August, 1827. The farm, liowever, had for manj- years, and until
September, 1830, been in the sole occupancy of Elwell the mortgagor ;
and the manure was taken under an execution against Elwell, com-
mitted to the defendant, as a constable, for collection.
«/". and JS. Shepley, for the plaintiff.
J. Holmes, for the defendant.
Mellen, C. J. The only question decided in Lassell v. Meed, 6
Greenl. 222, was, that a tenant for one j-ear, ending April 15, had
no right to remove and convert to his own use, at or after the end of
the lease, the manure made and accnmulated on the premises during
the continuance of the lease. In some peculiar respects the present
action differs from that ; for in this it appears that before the manure in
question was made, the plaintiff had entered under the mortgage for
breach of the condition ; but it also appears that Elwell, the mortgagor,
for many years before such entry, had been in possession of the land,
and ever since the entr}', which was in August, 1827, had continued in
possession, up to the time when the statement of facts was signed in
September, 1830 ; and from this last fact we are to consider Elwell,
during all that time, as a disseisor of Staples, or as a tenant at will
under him ; but as a wrong is not to be presumed, and as none is
alleged on his part, we ought to consider him, and so the plaintiff's
counsel contends, as a tenant at will, liable to the uncertainties of such
a tenancy, and entitled to its privileges ; liable to have the lease termi-
nated at the pleasure of the lessor or owner, but entitled to emblements,
if terminated unreasonably, according to well-settled principles. It
is important to attend to the reasoning of the court, which led to the
decision, in the case o? Lassell v. Meed. They say, " it is obviously
true, as a general observation, that manure is essential on a farm ; and
that such manure is the product of the stock kept on such farm, and
relied upon as annually to be applied to enrich the farm and render
it productive. If at the end of the year, or of the term, when the
lease is for more than a year, the tenant may lawfully remove the
manure which has been accumulated, the consequence will be the im-
poverishment of the farm for the ensuing j-ear ; or such a conse-
quence must be prevented at an unexpected expense, occasioned
by the conduct of the tenant; or else the farm, destitute of manure,
must be leased at a reduced rent or unprofltably occupied by the
owner." In tlie case before us the above reasoning is inapplicable,
because none of the contemplated consequences could follow. Sup-
pose a tenant for five years should, the second, third, and fourth
years, sell all the manure and manage the land without any ; whose
loss would it be? He would be injuring himself, destroying his own
profits to a certain extent, and rendering himself less able to pay
bis rent. Still, would he not have a right to proceed in this manner?
646 MIDDLEBBOOIf V. CORWIN.
At least might he not convert it to his own use in this imprudent mnn-
ner without being a trespasser, or the purchaser's being liable in an
action of trespass or trover? And has the owner anj^ other remedj- than
an action for damages for bad husbandr}' and mismanagement of the farm ?
In the case supposed, the manure is a part of the annual produce of the
farm ; and, as such, belongs to the tenant; and might l)e attached and
sold on execution to satisfj- the debts of such tenant, without rendering
the officer or the creditor a trespasser. That is to saj-, a tenant, as in
the case supposed, maj* injure himself and impair his own profits ; but the
manure of the season next before the known term of the lease, is the
produce of that season and designed for the use of the farm the follow-
ing season, at which time the owner is to occupy or have the control of
the land as in the above-mentioned reported case. Now, all the obsei--
vations made on this head applj' to the lease at will in the ease under
consideration. Elwell was in possession, as tenant at will, in August,
1827. The manure was made during the following winter, and the
tenancy at will has never been determined ; of course, the rights of no
one have been impaired, but Elwell's ; or rather the loss of profits bj'
reason of the seizure and sale of the manure lias been only his loss ;
the same having been a part of the annual profits designed for his own
use and benefit, and which would have been so applied had not the sale
prevented it. The haj- and fodder cut on the land bj- Elwell in the
summer of 1827, belonged to him as tenant, and that hay and that
fodder were the materials of which the manure was composed, which is
the subject of dispute, and which, had it not been taken and sold, would
have increased his crops in 1828 ; and a similar alternation of profits
and manure to increase them, probably occurred annually for two years,
at least, afterwards ; for the facts before us do not show anj- interrup-
tion of the natural order observed in such business on a farm. On this
view of the cause we think the plaintifl' is not entitled to maintain this
action. As we have before observed, this case differs from Lassell v.
Reed, and we do not mean to extend the principle of that decision
bej'ond the peculiar facts, or to intimate any opinion as to the question
whether manure, Ijing in heaps or yards, passes to the grantee by an
absolute deed of land, where no mention is made of it as a subject of
the convej-ance. A nonsuit must be entered.-'
MIDDLEBROOK v. CORWIN.
Supreme Court of New York. 1836.
[Reported 15 Wend. 169.]
Error from the Orange Common Pleas. Middlebrook sued Corwin
in a justice's court, for several loads of manure carried awaj' from a
farm occupied by one Van Cleft as tenant to Middlebrook for a year.
1 But see Perry v. Carr, 44 N. H. 118.
MIDDLEBEOOK V. CORWIN. 647
The farm was stocked by Middlebrook with twenty milch cows, a pair
of working cattle, and other cattle. The manure was sold by the ten-
ant to the defendant, and taken from the barn-yard of the farm shortly
before the expiration of the tenant's term. The justice rendered judg-
ment in favor of the plaintiff, which was reversed by the Orange Com-
mon Pleas, on certiorari. The plaintiff below sued out a writ of error.
W. F. Sharp and 11. G. Wismr, for plaintiff in error.
C. Q. Bradner, for defendant in error.
Nelson, J. It is laid down in several books, that manure in heaps,
before it is spread upon the land, is a personal chattel. 1 1 Viner, 1 75, tit.
Executors; Toller's Law of Executors, 150; Matthew's Executor, 2'?.
It further appears that it is common to insert a covenant in the lease of
a farm, to leave the manure of the last year upon it. All this would
seem to imply that the article belongs to the tenant, and that without a
covenant he might remove it. If a farm is leased for agricultural pur-
poses, good husbandry, which without any stipulation therefor is implied
by law, would undoubtedly require it to be left ; if rented for other pur-
poses, this conclusion might not follow. In Watson v. Welch, tried in
1785, in summing up to the jury, the judge said that it was matter of
law to determine what was using the land in a husband-like manner,
and expressed the opinion that under a covenant so to work a farm, the
tenant ought to use on the land all the manure made there, except that
when his time was out, he might carry away such corn and straw as he
had not used there, and was not obliged to bring back the manure arising
therefrom. Woodfall's Landlord and Tenant, 255 ; 1 Esp. N. P. part
2, p. 131. Perhaps this rule should be taken with some qualifications.
The practice and usage of the neighboring country, and even in relation
to a particular farm, should enter into the decision of the question.
4 East, 154 ; Doug. R. 201 ; Holt's N. P. R. 197 ; 2 Barn. & Aid. 746.
This is reasonable, because the parties are presumed to enter into the
engagement with reference to it, where there is no express stipulation.
What may be good husbandry in respect to one particular soil, climate,
&c. may not be so in respect to another. Independently, however, of
the usage and custom of the place, the rule of Mr. Justice Buller, I ap-
prehend, may be the correct one. In the recent case of Brown v.
Crump, 1 Marsh. 567, Chief-Justice Gibbs said, that he had often heard
him (Mr. Justice Buller) laj' down the doctrine, " that every tenant,
where no particular agreement existed dispensing with that engagement,
is bound to cultivate his farm in a husband-like manner, and to consume
the produce on it. This is an engagement that arises out of the letting,
and which the tenant cannot dispense with, unless by special agree-
ment." "Without carrying the doctrine to this extent, we may, I think,
safely say, upon authority, that where a farm is let for agricultural
purposes, no stipulation or custom in the case, the manure does not be-
long to the tenant, but to the farm ; and the tenant has no more right
to dispose of it to others, or remove it himself from the premises,
than he has to dispose of or remove a fixture.
GOODRICH V. JONES.
Case is the appropriate action for the injury complained of. 1 Chittv's
PI. 142. The tenant having no authority himself to remove the ma-
nure, could give none to the defendant. The judgment of the Common
Pleas must be reversed, and that of the justice afHrmed.
Judgment accordingly.
GOODRICH V. JONES.
Supreme Court of New York. 1841.
. [Reported 2 Hill, 142.]
On error from the Tioga C. P. Jones sued Goodrich before a justice,
in trover, for taking and converting manure and boards {inter alia)
the alleged property of Jones. The proof before the justice was, that
in September, 1835, Jones contracted to sell a farm to Goodrich, for
a monej' consideration paj-able 20th April, 1836. Under this agree-
ment, Jones, by Goodrich's consent, conveyed a part of the farm to
one Vose, and the residue to Goodrich, who claimed and converted to
his own use certain fence boards Ij'ing on Vose's part; and certain
manure in the barn-yard on his own part. This was after the deeds
were executed. At the time of the deed to Vose, the boards were on
the premises. Thej- had all been in fence on that part, and some still
remained so ; though a good many of them were displaced, some let
down and some blown down. The manure lay in the barn-yard, on
Goodrich's part, where it had been accumulating for a long time. The
conversion of both bj- Goodrich was proved ; but the justice holding
that both passed by the deeds, rendered a judgment for him (Good-
rich). On certiorari bj' Jones, the C. P. reversed the judgment, on
the ground " that the manure was personal property, and did not pass
to the vendee." Goodrich brought error to this court.
iVi W. Davis, for the plaintiff in error.
tT". jT! Taylor, for the defendant in error.
CowEN, J. The Common Pleas appear to have taken the same view
of Goodrich's, or rather Vose's, title to the boards, as did the justice.
There cannot be a doubt that thej' were right. Fences are a part of
the freehold ; and that the materials of which they were composed are
accidentally or temporarily detached, without any intent in the owner
to divert them from their use as a part of the fence, works no change
in their nature. Vide Walker v. /Sherman, 20 "Wend. 639, 640.
With regard to the ntonure, we have held that even as between land-
lord and tenant, it belongs to the former ; in other words, it belongs to
the farm whereon it is made. This is in respect to the benefit of the
farm, and the common course of husbandry'. The manure makes a
part of the freehold. Middlebrook v. Corwin, 15 Wend. 169. Nay,
though it be laid up in heaps in the farm-j-ard. Lassell v. Meed, 6
NEEDHAM V. ALLISON. 649
Greenl. 222 ; Daniels v. Pond, 21 Pick. 367 ; see Staples v. Mner^/,
7 Greenl. 203. The rule has always been still stronger in favor of the
vendee as against vendor, and heir as against executor. In Eittredge
V. Woods, 3 N. Hamp. Rep. 503, it was accordingly decided, that
manure lying in a barn-yard passes to the vendee. Vide also Daniels
V. Pond, before cited.
The case of Kittredge v. Woods was very well considered ; and the
right of the vendee to the manure, whether in heaps or scattered in
the barn-yard, vindicated on principle and authority I think quite
satisfactorilj'.
There are several English dicta which conflict with our views of the
right to manure, as between landlord and tenant, and that of the court
in New Hampshire, as between vendor and vendee. And vide 2 Kent's
Com. 346, note c, 4th ed., and Carver v. Pierce, Sty. 66. But they
may all be considered as repudiated by MiddlebrooJc v. Corwin. Vide
the introductory remarks of Mr. Justice Nelson, 15 Wend. 170.
The judgment of the Common Pleas must be reversed ; and that of
the justice affirmed. Judgment reversed?-
NEEDHAM v. ALLISON.
Superior Court op Judicature op New Hampshire. 1852.
[Reported 24 N. H. 355.]
Trover, for forty-five loads of manure, April 1, 1848.
It appeared that on the 13th of September, 1847, the defendant con-
veyed to the plaintiff" his farm in Dublin, in this county, which the
defendant then occupied. By a clause in the deed he reserved the pos-
session until the first of April, 1848, and agreed at that time to give
the plaintiff" the possession.
At the date of the conveyance there was some manure about the
barns and j'ards, all of which was carried out in the fall and spread
upon the land for the, use of the plaintiff.
At that time there was in the barn, hay and other fodder belonging
to the defendant, and a portion of it was fed out to his cattle in the
course of tlie ensuing winter season, and the manure was thrown out of
the windows, and a portion of it laj' about them and another part about
the barn-yards. Prior to April 1, 1848, the defendant sold all the
manure made from his stock kept bj' him on said farm, and from his
said hay and fodder, and the same was in part drawn away from said
farm by the purchaser, and the residue was sold by the purchaser to the
plaintiff, and by him used on the farm.
A verdict was taken, by consent, for the plaintiff, for the value of
the manure made from said hay and stock after said conveyance, and
1 See Eiidcman v. Outwater, i Dutch.' 581, contra.
650 NEEDHAM V. ALLISOK.
before the first of April, 1848, on which judgment is to he entered, or
the verdict set aside, as the court shall adjudge.
Chamberlain, for the plaintiff.
Wheeler, for the defendant.
Bell, J., delivered the opinion of the court. It is settled here that
manure, as between the buj-er and seller, passes with the land, whether
it is drawn out upon the land for the purpose of use there, or is Ijing
in heaps, or otherwise, about the barns or yards ; Kittredge v. Woods,
3 N. H. Rep. .503. The same is regarded as the law elsewhere in this
countr\'. Stone v. Proctor, 2 D. Chip. 115 ; Wetherhee v. Ellison, 19
Vt. (4 Wash.) 379 ; Lassell v. Reed, 6 Greenl. 222 ; Mld.dlehrooh
V. Corwin, 15 Wend. 169 ; Goodrich v. Jones, 2 Hill, 142 ; Daniels y.
Fond, 21 Pick. 371.
That principle, however, does not reach this case, since there is here
no question except in relation to the manure made upon the premises
subsequentlj' to the sale, and while the defendant may be regarded as a
tenant of the purchaser.
In England, in tlie case of manure made 'by a tenant of merel3'
agricultural propert}-, in the ordinary course of husbandry. Chancellor
Kent seems to be of the opinion that the custom is for the outgoing
tenant to sell or take awaj- the manure. 2 Com. 347, n. a. He cites
Roberts v. Barher, 1 C. & M. 809 ; and the cases of Higgon v. Morti-
mer, 6 C. & P. 616 ; Button v. Warren, 1 M. & W. 466 ; 2 Gale, 71 ;
JBeatty v. Gibbons, 16 East, 116, support that view, while the cases of
Brown v. Crump, 1 Marsh. 567; Putney v. Sheldon, 5 Ves. 147, 260,
n., and Onslow v. , 16 Ves. 173, seem to countenance a different
rule, where there is no special contract or custom of the countrj-.
In this country, in some of the States it has been held that the man-
ure made by the tenant during his term, is his propert}-, which he has
the right to remove or sell, and which may be attached and holden
as his propertj- for the payment of his debts. Staples v. Emery, 7
Greenl. 201 ; Southioick v. Ellison, 2 Iredell, 326.
In others, it is held that in the absence of special agreement, or a
special custom, the rules of good husbandry require that the manure
made upon a farm, in the ordinar}- course, should be expended upon it ;
that such manure is an incident of the freehold, and belongs to the
landlord, subject to the right of the tenant to use it in the cultivation
of the land ; and that the tenant has no right to remove or dispose of
it, or to apply it to any other use, either during or after the expiration
of his tenancy. Wetherbee v. Ellison, 19 Vt. (4 Wash.) 379 ; Middle-
brook V. Corwin, 15 Wend. 169 ; Goodrich v. Jones, 2 Hill, 142 ; Las-
sell V. Beed, 6 Greenl. 222 ; Daniel v. Pond, 21 Pick. 371 ; to whieli
add Kent's opinion, 2 Com. 347, n. a.
But it is urged upon us, that whatever may be the rule as to agricul-
tural propertj', it is here immaterial, because the tenancy was not for
agricultural purposes, in the ordinary course of husbandry. Bj- his
deed, the defendant I'eserved tlic possession of the property from its
SAWYER V. TWISS. 651
date in September, till the first of April following. He owned the hay
and stock from which this manure was made. He was under no obliga-
tion to keep either upon the place, except for his own convenience, and
he was bound by no duties to the purchaser resulting from contract,
either express or implied, except that of giving up the possession on
the first of April.
It was substantially, so far as this question is concerned, a reserva-
tion of the buildings merely, since the season of farming operations was
chieflj' passed, and the rights of the parties were rather like those of
the lessor and lessee of livery stables, or the like, than those of farming
tenants. There would seem to be no doubt that as to this kind of
buildings there would be no pretence that the lessor would have any
claim to the manure, except such as might result from express contract.
Daniels v. Pow(?, 21 Pick. 367 ; Lassell v. Reed, 6 Greenl. 222.
This view strikes us as just and reasonable, and most consistent with
the reasonable understanding and expectations of the parties. No one
can doubt that this must have been the idea of the defendant, or he would
have made his reservation clear in this respect. And it is not easy to
imagine that the plaintiff should leave it a subject for a doubt, if he
supposed he was to have this manure, and it was so understood.
Upon this ground we are of opinion there must be
Judgment for the defendant.
SAWYER V. TWISS.
SUPEEIOR COUET OF JUDICATURE OF NEVf HAMPSHIRE. 1853.
[Re.'pcyrted 26 N. H. 345.]
Trover, for fiftj- loads of manure. Plea, the general issue. The
manure in question was made on a farm owned and occupied by '
the defendant, and was lying in heaps about the barn on said farm.
The farm was subject to a mortgage to one Moore. Some of the cattle
which made the manure were owned by Moore, and kept by the de-
fendant for him, at a certain price per week, and the rest were owned
by the defendant, but were subject to a personal mortgage to Moore.
The manure was attached by a deputy sheriff, as the personal property
of the defendant, and sold by him at public auction, on an execution
issued on a judgment rendered by a justice of the peace against the
defendant, and was purchased by the plaintiff in this suit.
Subsequently to the sale, and before the plaintiff had removed the
manure, the defendant took it and used it on the farm.
It was agreed that judgment be rendered for the plaintiff, for the
value of the manure and interest, or for the defendant, as the opinion
of the court should be on the above case.
E. 8. Cutter, for the plaintiff.
Clark and Bell, for the defendant.
652 SAWYER V. TWISS.
. Bell, J. It has been decided here, that as between grantor and
grantee of a farm, the manure Ij'ing in' heaps in tlie fields, or deposited
about the barns and barn-yards on the premises, passes with the real
estate. It is an incident and appurtenance of the land, and part of the
real estate, like the fallen timber and trees, the loose stones Ijing upon
the surface of the earth, and like the wood and stone fences erected
upon the land, and the materials of such fences when placed upon the
ground for use, or accidentally fallen down. Kittredge v. Woods, 3
N. H. Rep. 503 ; JSTeedham v. Allison, 4 Foster's Rep. 335 : Connor
V. Coffin, 2 Foster's Rep. 538.
Elsewhere, it has been held, upon reasons which seem to us entirely
satisfactorj-, that manure made by a tenant upon a leased farm, in the
absence of any special contract or custom, belongs to the farm' as an
incident necessary for its improvement and cultivation. It is the prop-
erty of the lessor of the farm, subject to the right of the tenant to use it
in the cultivation of the land. The tenant has no right to remove it or
use it for any other purpose, and it is not liable to be attached orholden
for his debts. Wethsrbee v. Ellison, 19 Vt. Rep. (4 Wash.) 379 ; Mid-
dlebrook v. Corwin, 15 Wend. 169 ; Goodrich v. Jones, 2 Hill, 142 ;
Lassell v. Reed, 6 Greenl. 222 ; Daniel v. Pond, 21 Pick. 371 ; 2
Kent's Com. 347, note a. And this doctrine is recognized here in
Needham v. Allison, and Connor v. Coffin, above cited.
Some authorities of ancient date lay down the law that manure in
heaps, before it is spread upon the land, is a personal chattel, which
goes to the executor and not to the heir. 11 Vin. Ab. 175, Executors
32, and Carver v. Pierce, Sty. 66, and Yearworth v. Pierce, S. C.
All. 31, there cited ; 1 Vin. Ab. 444, Actions for words R. a. 5 ; S. C.
Toll. Exors. 150 ; Math. Exors. 27. And we regard the doctrine as
correct, that manure generally is personal property, and as such goes
to the executor. Pinkham v. Gear, 3 N. H. Rep. 484. But we think
• it may be doubted whether, notwithstanding the single decision on
which these books rest, there is not a great weight of argument as well
as of authoritj' for holding that, even as between the heir and the ex-
ecutor, the manure made upon a farm, in the ordinary course of hus-
bandry, is to be regarded as belonging to the farm, and an incident of
the real estate. In Needham v. Allison, it was held that the rule would
be different as to manure made in stables and otherwise, not in the
course of husbandr}^
It is not easy to draw any line of distinction between manure in heaps
and that which is spi-ead upon the land ; and we are of the opinion that
whatever rule is adopted with regard to the manure upon a farm, which
is not absolutely incorporated with the soil and become entirely undistin-
guishable from it, must be applied to all, in whatever form it may be,
whether it is in heaps at the barn windows, or lying about the barn-
yards, whether it is drawn out in piles for the purpose of fermentation,
or mixed with other ingredients for compost, or it has been drawn out and
thrown down in small parcels, for the purpose of being spread upon the
SAWYER V. TWISS. 653
land or placed in the hills of corn or potatoes. Whatever the rules of
good husbandry or considerations of sound policy require us to decide
in regard to this article, in one of its forms, is equally necessary and
proper to be held in relation to it in all its states. We consider it as being
very closely analogous to the muck and marl beds which are found on
many farms, and which are extensively used in many places as dressing
for land, or mixed into compost for the same purpose. We regard it, too,
as having strong resemblances, as to its connection with the realtj-, with
the fences upon the land, which, though attached to the land in many
cases by gravity alone, are yet beyond question parts of the realty it-
self. Ripley v. Paige, 12 Vt. 353 ; Gibson v. Vaughan, 2 Bailey,
389 ; Goodrich v. Jones, 2 Hill, 142.
Adopting, then, the opinion which we think supported by the strong-
est reasons, that the manure made upon a farm, in the ordinarj' course
of husbandry, is to be regarded as an incident or appurtenant of the
real estate, — a part of the freehold, — the owner of the fee must of
course have the authority and right to sell and dispose of it, to remove
it from the land at his pleasure ; and when so separated it becomes, like
the trees and fencing materials when separated, or like muck and marl
when dug up and removed, merely personal propertj'. But this right
of the owner is a personal right, clearly so in the other cases mentioned,
and it is not in the power of any officer, for the security of a debt, to
attach and remove standing trees or fences, however slight their con-
nexion with the earth, nor to dig or remove muck or marl, to dig plais-
ter or coal, or carr}- away the loose stones from the surface. And upon
equallj- strong, perhaps much stronger, gi'ounds we think an officer can-
not be permitted to remove the manure upon a farm, which is indis-
pensable to its beneficial cultivation.
In one respect the resemblance fails between such manure and the
fences, muck, &c., to which we have compared it. It is an article of
annual production, and it strikes many persons, that as the tenant is in
general entitled to the produce of the propertj' he hires, during the time
he hires it, he must also be entitled to the manure as a part of the an-
nual produce. But the dutj* of a tenant to treat his leasehold according
to the rules of good husbandry is quite as strong as his right to take
the annual produce. If this dut}' comes in conflict with the supposed
right, it seems to us that sound policy, as it regards the community, for-
bids that a tenant should take, as a part of the produce of a farm, that
which Is necessarj- to its cultivation, and the removal of which Is an ap-
propriation not of the profits, but substantially of a part of the capital
of the property leased.
Manure, regarded as a part of the annual produce of a farm, differs
essentially from the crops generally and other productions of a farm.
They are raised for the purpose of removal ; they are designed, per-
haps with the exception of hay and fodder, to be sold and disposed of
as a part of the income and profits of the land, while the manure is
never, unless by the most thriftless husbandman, sold or disposed of off
654 FAY V. MUZZEY.
the farm, nor used for any purpose but the improvement of the land. The
annual crops are liable, by our law, to attachment and execution, when
they have become mature and fitted for harvesting, and not before.
They may then be properly I'emoved, but the manure can never be re-
moved from a farm or used elsewhere, consistentlj" with sound public
policy or private advantage.
Upon the views suggested, we are of opinion that the manure made
upon a farm in the ordinary course of husbandr3', is a part of the real
estate, and that it cannot be attached or taken on execution separately
from the land ; that when so attached the owner has no other rights
over it than lie has over the fences, except that of using it for the pur-
pose of improving the land ; that he may be restrained from removing
or disposing of it otherwise, pending the attachment, and that an officer
attaching and removing such manure, without consent of the owner, is
liable as a trespasser, and that neither he nor his vendee acquires any
right to such manure bj' a levy upon and sale of it.
There must, therefore, be Judgment /or the defendant.
FAY V. MUZZEY.
SxjPREME Judicial Codet of Massachusetts. 1859.
[Reported 13 Gfray, 53.1]
Action of contract upon the probate bond of Elizabeth Muzzey as
administratrix of the estate of her husband, Benjamin Muzzey, brought
for the use of Moses G. Cobb, administrator de bonis non of said Benja-
min. Trial in this court in Middlesex at October term, 1852, before
Gushing, J., who reported the following case for the judgment of the
full court : —
" The case, after default of the defendants, was referred to an
auditor, who reported that he found due to the plaintiff from the de-
fendants the sum of $4,872.68 ; and also the further sum of $47.58 for
manure, unless upon the following facts the court should determine
otherwise as matter of law : It was proved that a large pile of manure,
containing some eight or ten cords, not broken up nor rotten, and not
in a fit condition for incorporation with the soil, stood on the land of
the said Benjamin at the time of his decease, and so continued until
after the appraisal returned by said Ehzabeth into the probate court ;
and this manure was taken from the barn-yard of the homestead of said
deceased.
" Also the further sum of $31.72, unless upon the following facts the
court should determine otherwise as matter of law : It was proved that
certain other manure, duly set down in said Elizabeth's inventory, and
1 Part of this case relating to another jioint is omitted.
FAY V. MUZZEY. 655
without controversy the personal property of said Benjamin at the time
of liis decease, was, after the date of her said appraisal, by her authority
spread upon the lands which descended from her intestate ; that this
was done judiciously, in an agricultural view, and in the usual course of
<;oad husbandry. This manure was taken from the hotel stable stand-
ing on the land of said deceased. AH the real estate of the deceased
was afterwards sold for the payment of debts."
'I'his case was argued in writing.
M. G. Cobb, for the plaintiff.
J. P. Converse, for the defendants.
Hoar, J. 1. The court are of opinion that manure from the barn-
yard of the homestead of the intestate, standing in a pile upon his land,
although " not broken up nor rotten, and not in a fit condition for in-
corporation with the soil," is not therefore assets in the hands of his
administratrix, and that she is not chargeable therewith as a part of
his personal estate. Manure, made in the course of husbandry upon a
farm, is so attached to and connected with the realty, that, in the
absence of any express stipulation to the contrary, it passes as appur-
tenant to it. This has been so decided as between landlord and tenant,
in the cases of Daniels v. Pond, 21 Pick. 367 ; Lassell v. Eeed, 6
Greenl. 222 ; and Middlebrooh v. Corwin, 15 Wend. 169. The reason
of the rule is, that it is for the benefit of agriculture, that manure,
which is usually produced from the droppings of cattle or swine fed
upon the products of the farm, and composted with earth or vegetable
matter taken from the soil, and the frequent application of which to the
ground is so essential to its successful cultivation, should be retained
for use upon the land. Such is unquestionablj' the general usage and
understanding, and a different rule would give rise to many difficult
and embarrassing questions.
The same doctrine was applied, as between vendor and vendee, in
Kittredge v. Woods, 3 N. H. 503, and in Goodrich v. Jones, 2 Hill
(N. Y.), 142. The doctrine as to fixtures and incidents to the realty is
alwaj's most strictly held, as between heir and executor, in favor of the
heir, and against the right to disannex from the inheritance whatever
has been affixed thereto. JElwes v. Maw, 3 East, 51.
The circumstance that a thing is not permanentlj- affixed to the free-
hold, but is capable of detachment, and is even temporarily detached
from it, is not conclusive against the right of the owner of the land.
Thus keys of doors go to the heir, and not to the executor. Wentworth
on Executors, 62. And in Goodrich v. Jones, ubi supra, it was held,
that fencing materials, which have been used as a part of the fence, ac-
cidentallj- or temporarilj' detached from it, without any intent of the
owner to divest them permanently from that use, do not cease to be a
part of the freehold. In Bishop v. Bishop, 1 Kernan, 123, the same
principle was applied to the case of hop-poles, which had been taken up
and laid in heaps for preservation through the winter ; and it was held,
that they would pass bj' a conveyance of the land.
656 FAY V. MUZZEY.
2. The manure from the hotel stable, which is agreed to have been
personal estate, and was included in the inventory, must be accounted
for by the administratrix ; and it is no sufficient account to saj' that she
has expended it upon the real estate which has since been sold for the
payment of debts. There is no waj- in which it can be made certain that
it has increased the amount received from the sale of the real estate ;
and if this were established, an administratrix has no right thus to
expend the personal property of her intestate.
henry's case. 657
CHAPTER VIII.
FIXTURES.
Note. —As the subject of the annexation of buildings to land runs by imperceptible
degrees into that of the annexation of Kxtures, oases on it are included in this chapter.
HENRY'S CASE.
Common Pleas. 1505.
[EepoHed Year Book, 20 ffen. VII. 13, pi. 24.]
Action of trespass brought against executors bj' one Henr}' after the
death of his ancestor for the taking of a furnace which was fixed and
annexed to the freehold with mortar. And the opinion of the court,
viz. Lord Read, Chief Justice of the Common Bench, Fishee, and
KiNGSMiLL, his fellows, was that the taking was tortious. For those
things which cannot be forfeited b}- outlawry in personal actions, nor
be attached in assise, nor distrained b}- the lord for rent, such things
the executors will not have ; but a furnace or table fixed to the ground
with posts, or a paling, or a bed covering, timber or board annexed to
the freehold, or a door and windows, and such other like things which
are annexed to the freehold, and are made for a profit of the inheri-
tance, cannot be forfeited by outlawry nor attached on distress. Ergo
ex consequente sequitur that the executors will not have such things,
and although the testator could have given these things in his lifetime,
non sequitur that the}' will liave them. And so the executors will not
have anj' documents concerning the land, althougii the testator bought
them, for they are appurtenant to the inheritance. And if the lessee
for j-ears makes any such furnaces for his advantage, or a dyer makes
his vats and vessels to carry on his business \_pur occupier son occupa-
tion^ during the term, he can remove them ; but if he suflfers them to
remain fixed to the land after the end of tlie term, then thej' belong to
the lessor ; and so of a baker. And it is no waste to remove such
things within the term, according to some ; and that will be contrary
to the opinions aforesaid ; for then it will not be adjudged parcel of the
freehold. But in H. 42 E. III., it remained therefore doubtful, whether
this was waste or not. T. 21 Hen. VII. 26.i
^ So a mortgagee in possession, after decree on a bill to redeem, but before posses-
sion taken, can remove his fixtures. Taylor v. Toumsend, 8 Mass. 411.
42
658 ANONYMOUS.
ANONYMOUS.
Common Pleas. 1506.
[Reported Year Book, 2] Hen. VII. 26, pi. 4.]
In trespass the case was this. A man was seised of a house in fee
simple, and made a furnace, viz. of lead, in the middle of the house,
and it was not fixed to the walls of the house. He made executors and
(lied, the heir entered, and the executors took the furnace, viz. of lead,
and the heir brought an action of trespass.
Pollard. It seems that the action lies ; for such things as are fixed
aud annexed to the freehold will descend to the heir with the inheri-
tance, and so the}' will pass by feoffment with the freehold ; as where
vats are fixed in the ground, or in a brewhouse or dyehouse, they are
appurtenant to the freehold, and altered from the nature of a chattel.
And where a paling is made to enclose an enclosure or pond, the execu-
tors will not take it, but the heir will have it. So of things fixed to the
inheritance thej^ belong and pass with the inheritance and the freehold.
And so in some cases such things as are not annexed to the land and
the freehold descend and pass with the inheritance as the windows :
they are not fixed, and j'et neither the executors nor the termor will
take them, but the heir will have them, because a house is not perfect
without the doors and windows. But it is otherwise with glass, for a
house is perfect enough, although it has no glass ; and so there is a
diversitj'. But in the case here, this furnace is altered by this fixing
from the nature of a chattel. For it is adjudged in our books that an
attachment in assise for a furnace is not good ; and the reason is that
it is not a removable chattel ; and so the action here for the heir seems
maintainable.
Grevill. Although this furnace is so fixed to the land, j'et it is not
therefore proved that it will go with the inheritance, so that it cannot
be severed from the inheritance, for by such a reason if anything was
fixed to the land b}' the tenant for term of years, it will be immediately
called parcel of the inheritance, and the termor will not take it; and
this is not so, for although he fixes a post in the ground during the
term, and he retakes it within the same term, yet the lessor will not
retake it. And in our case here it appears that this furnace was fixed to
the ground within the house, so that the inheritance is none the worse
for it, and where a furnace was fixed to the wall of the house, the better
opinion in 42 E. III. was that it is not waste, although the termor takes
it ; and so it seems here, that the executors will take it, and the action
is not maintainable.
Eliot. There is a difference when such a thing is fixed by the rever-
sioner, and when the termor ; for when it is done by the reversioner, and
then he leases it rendering a certain rent, now it is made parcel of the
reversion, for it makes the rent which is reserved on such a lease more
than it would be if such a fixing had not been made. As where one
ANONYMOUS. 659
makes vats and fixes them in a dyehouse or brewhonse, and then leases
the house rendering a certain rent, now, by common reason, the rent is
the greater, wherefore neither the termor nor the executor will take
them ; but where they are put in by the termor, he takes them : but here
he who had the fee simple fixed tiiis furnace, in which case the executors
cannot take it, for the reason aforesaid.
KiNGSMiLL, [J.] After it is fixed to the freehold, it is incident to the
freehold, although it is not parcel of the freehold, and it will go and
pass alw.iys with the freehold ; and although he to whom the freehold
belongs after such fixing is outlawed, this furnace will not be distrained
nor forfeited, and the reason is because it is annexed and fixed to the
freehold ; and for this reason the heir will have them after the death of
his father, for such posts as are fixed by the father will belong always
to the heir, and never to the executors. And where one is seised of
land in fee, and buys documents concerning the same land, and dies, in
that ease the heir will have the documents, and not the executors ; and
the reason is because they concern the title to the land, although they
are but chattels in themselves. And where one has fixed vats in a
brewhouse or dyehouse and dies, the heir will have them ; for when they
are fixed, they are for the continual profit of the house, and therefore
there is more reason that the heir should have them, whose is the free-
hold to which they are joined, than the executors, who have nothing to
do with the freehold. But as to the lessee for term of years, if he has
fixed such a thing to the ground, and not to the wall, he may well
retake it during the term, (but if he lets it after the term, the lessor
will take it,) for the taking of it is not any waste, because the house is
not injured by it. But in the case here, it seems that the action is
maintainable for the reasons aforesaid.
Fisher, [J.,] was of the same opinion.
Read, [C. J.] The executors will take all kinds of chattels which
belonged to their testator, but that is where they are properly in the na-
ture of chattels ; now here when this furnace was annexed and fixed to
the land, it is as to a thing of higher nature, and in a way is made inci-
dent to it. As in the case that has been put of sleeping tables, the heir
will have them after the death of the father, and not the executors, and
in reason it follows that when thej^ are joined to the inheritance, it is
in accordance with reason that thej- pass with the inheritance until the}-
are severed bj' him who has authorit}- to sever them, and that is he in
whom is the inheritance. And as to the reason which has been given
that the testator might have severed, and given or sold them, and that
the executors can in like manner, that is no reason, for the testator
could give the trees, and so cannot the executors ; and as has been
said at the bar, the furnace cannot be attached in assise nor distrained,
and so bj' all the cases aforesaid it seems that the action lies ; and so
was the opinion of the whole court. Quod nota}
1 See Keilw. 88, pi. 3.
"Nota, reader, Mich. 18 & 19 Devon : it was adjudged in C. B. that waste might
660 SQUIEE V. MAYEE.
SQUIER V. MAYER.
Before Sir Nathan Wright, Lord Keeper. 1701.
[Reported Freem. C. C. 249.]
Held, that a furnace, though fixed to the freehold, and purchased
with the house, and also hangings nailed to the wall, shall go to the
executor, and not to the heir, and so determined, contrary to Herlahen-
den's Case, 4 Co., qu'il dit nest ley quoad prcemissa.^
POOLE'S CASE.
Nisi Prius. 1703.
[Reported 1 Salk. 368.]
Tenant for j-ears made an under-lease of a house in Holborn to J. S.,
who was by trade a soap-boiler. J. S., for the convenience of his trade,
put np vats, coppers, tables, partitions, and paved the back-side, &c.
And now upon a. fieri facias against J. S., which issued on a judgment
in debt, the sheriff took up all these things, and left the house stripped,
and in a ruinous condition ; so that the first lessee was liable to make
it good, and thereupon brought a special action on the case against the
sheriff, and those that bought the goods, for the damage done to the
house. Et per Holt, C. J., it was held, —
be committed in glass annexed to windows, for it is parcel of the house, and shall
descend as parcel of the inheritance to the heir, and that the executors should not
have them ; and although the lessee himself at his own costs put the glass in the win-
dows, yet ill being once parcel of the house he could not take it away, or waste it, but
he should be punished in waste ; and upon the said judgment a writ of error was
lirought in B. R., and there the judgment was affirmed. Nota also, inter Warner <fc
Fleetwood, Mich. 41 & 42 Eliz, in C. B., it was resolved per totam curiatn : that glass
annexed to windows by nails, or in other manner, by the lessor or by the lessee, could
not be removed by the lessee, for without glass it is no perfect house ; and by lease
or grant of the house it should pass as parcel thereof, and that the heir should have it,
and not the executors ; and peradventure great part of the costs of the house consists
of glass, which if they be open to tempests and rain, waste and putrefaction of the tim-
ber of the house would follow, which agrees with the judgments given before. It was
likewise then resolved, that wainscot, be it annexed to the house by the lessor or by
the lessee, is parcel of the house ; and there is no difference in law if it be fastened by
great nails or little nails, or by screws, or irons put through the post or walls (as have
been invented of late time) ; but if the wainscot is by any of the said ways, or by any
other, fastened to the posts or walls of the house, the lessee cannot remove it, but he is
punishable in an action of waste, for it is parcel of the house ; and so by the lease or
grant of the house (in the same manner as the ceiling and plastering of the house), it
shall pass as parcel of it." Uerlakenden s Case, 4 Co. 62 a, 63 b (1589).
1 See accord. Beck v. Rehow, 1 P. Wms. 94 ; Harvey v. Harvey, 2 Stra. 1141.
CAVE V. CAVE. 661
1st, That during the term the soap-boiler might well remove the vats
he set up in relation to trade, and that he might do it by the common
law (and not by virtue of any special custom) in favor of trade and to
encourage industry : But after the term they become a gift in law to
him in reversion, and are not removable.
2dly, That there was a difference between what the soap-boiler did
to carry on his trade, and what he did to complete the house, as
hearths and chimney-pieces, which he held not removable.
3dly, That the sheriff might take them in execution, as well as the
under-lessee might remove them, and so this was not like tenant for
years without impeachment of waste ; in that case he allowed the sheriff
could not cut down and sell, though the tenant might : And the reason
is, because in that case the tenant hath onlj' a bare power without an
interest ; but here the under-lessee hath an interest as well as a power,
as tenant for years hath in standing- corn, in which case the sheriff can
cut down and sell.
CAVE V. CAVE.
Befoke Sir Nathan Wright, Lord Keeper. 1705.
[Eepmrted 2 Vern. 508.]
A QUESTION arising whether some pictures and glasses belonged to the
heir or to the executor : the Lord Keeper was of opinion,^ that although
pictures and glasses generally speaking are part of the personal estate ;
yet if put up instead of wainscot, or where otherwise wainscot would
have been put, they shall go to the heir. The house ought not to
come to the heir maimed and disfigured. Serlakenden' s Case, wain-
scot put up with screws shall remain with the freehold.^
LAWTON V. LAWTON.
Before Lord Hardwioke, C. 1743.
[Reported 3 Atk. 12.]
The material question in the cause was, whether a fire-engine set up
for the benefit of a colliery by a tenant for life, shall be considered as
personal estate, and go to his executor, or fixed to the freehold, and go
to a remainder-man.
There was evidence read for the plaintiff, a creditor of the tenant for
life, to prove that the fire-engine was worth, to be sold, three hundred
and fifty pounds ; and that it is customary to remove them ; and that in
1 Only that part of the case which relates to fixtures is here given.
3 See D'Eyncourt v. Gregory, L. E. 3 Eq. 382 ; Snedeker v. Warring, 12 N. Y.
170.
662 LAWTON V. LAWTON.
building of sheds for securing the engine, thej^ leave holes for the ends
of timber, to make it more commodious for removal, and that the^- are
very capable of being carried from one place to another.
That the testator, the counsel for the plaintiff said, was dead, greatly
indebted, and it would be hard, when he has been laying out his credi-
tors' monej- in erecting this engine, that they should not have the bene-
fit of it, but that the strict rule of law should take place.
Mr. Wilhraham compared it to the case of a eider-mill which is let in
very deep into the ground, and is certainly fixed to the freehold ; and
yet Lord Chief Baron Comyns, at the assizes at Worcester, upon an
action of trover brought by the executor against the heir, was of opin-
ion that it was personal estate, and directed the jury to find for the
executor.
Evidence was produced on the part of the defendant, to show that
the engine cannot be removed without tearing up the soil, and destroy-
ing the brick work.
Mr. Clark, of counsel for the defendant, cited Finch, fol. 135, under
the' head of Distress ; and the case of Worthy Montague v. Sir James
Clavering, about two years ago before Lord Hardwicke.
LoED Chancellor. This is a demand bj' a creditor of Mr. Lawton,
who set up the fire-engine, to have the fund for payment of debts ex-
tended as much as possible.
It is true the court cannot construe the fund for assets, further than
the law allows, but they will do it to the utmost they can in favor of
creditors.
This brings on the question of the fire-engine, whether it shall be
considered as personal estate, and consequently applied to the increase
of assets for pajment of debts.
Now it does appear in evidence, that in its own nature it is a per-
sonal movable chattel, taken either in part, or in gross, before it is
put up.
But then it has been insisted, that fixing it in order to make it work,
is properl}- an annexation to the freehold.
To be sure, in the old cases, thej- go a great way upon the annexa-
tion to the freehold, and so long ago as Henr}' the Seventh's time, the
courts of law construed even a copper and furnaces to be part of the
freehold.
Since that time, the general ground the courts have gone upon of
relaxing this strict construction of law is, that it is for the benefit of
the public to encourage tenants for hfe, to do what is advantageous
to the estate during their term.
What would have been held to be waste in Henry the Seventh's time,
as removing wainscot fixed only by screws, and marble chimney-pieces,
is now allowed to be done.
Coppers and all sorts of brewing vessels, cannot possibl3' be used
without being as much fixed as fire-engines, and in brewhouses espe-
cially, pipes must be laid through the walls, and supported by walls ;
LAWTON V. LAWTON. 663
and yet, notwithstanding tliis, as they are laid for the convenience of
trade, landlords will not be allowed to retain them.
This being the general rule, consider how the case stands as to the
engine, which is now in question.
It is said, there are two maxims which are strong for the remainder-
man : First, That you shall not destroy the principal thing, by talcing
away the accessory to it.
This is very true in general, but does not hold in the present case, for
the walls are not the principal tiling, as they are only sheds to prevent
anj- injur}' that might otherwise happen to it.
Secondly, It has been said, that it must be deemed part of the estate,
because it cannot subsist without it.
Now collieries formerly- might be enjoj-ed before the invention of
engines, and therefore this is onlj- a question of majus and minus,
whether it is more or less convenient for the colliery.
There is no doubt but the case would be very clear as between land-
lord and tenant.
It is true, the old rules of law have indeed been relaxed chiefly be-
tween landlord and tenant, and not so frequentlj' between an ancestor
and heir at law, or tenant for life and remainder-man.
But even in these cases, it does admit the consideration of public con-
veniency for determining the question.
I think, even between ancestor and heir, it would be very hard that
such things should go in ever}' instance to the heir.
One reason that weighs with me is, its being a mixed case between
enjoying the profits of the land, and carrying on a species of trade ;
and, considering it in this light, it comes very near the instances in
brewhouses, &c. of furnaces and coppers.
The case too of a cider-mill, between the executor and the heir, men-
tioned by Mr. Wilbraham, is extremel}' strong ; for though cider is
part of the profits of the real estate, yet it was held by Lord Chief
Baron Com\-ns, a very able common lawj-er, that the cider-mill was
personal estate notwithstanding, and that it should go to the executor.
It does not differ it in my opinion, whether a shed over such an
engine be made of brick or wood, for it is only intended to cover it
from the weather and other inconveniences.
This is not the case between an ancestor and an heir, but an inter-
mediate case, as Lord Hobart calls it, between a tenant for life and
remainder-man.
"Which way does the reason of the thing weigh most, between a
tenant for life and a remainder-man, and the personal representative
of tenant for life, or between an ancestor and his heir, and the personal
representative of the ancestor? Wh}-, no doubt, in favor of the former,
and comes near the case of a common tenant, where the good of the
public is the material consideration, which determines the court to con-
strue these things personal estate ; and is like the case of emblements,
which shall go to the executor, and not to the heir or remainder-man.
664 LAWTON V. SALMON.
it being for the benefit of the kingdom, which is interested in the pro-
duce of corn, and other grain, and will not suffer them to go to the
heir.
It is very well known, that little profit can be made of coal-mines
without this engine ; and tenants for lives would be discouraged in
erecting them, if they must go from their representatives to a remote
remainder-man, when the tenant for life might possiblj' die the next
day after the engine is set up.
These reasons of public benefit and convenience weigh greatlj' with
me, and are a principal ingredient in my present opinion.
Upon the whole, I think this fire-engine ought to be considered as
part of the personal estate of Mr. Lawton, and go to the executor for
the increase of assets ; and decreed accordingly.'
LAWTON V. SALMON,
King's Bench. 1782.
{Reported 1 H. Bl. 259 note.']
In this action of trover, brought by the executor against the tenant of
the heir at law of the testator, to recover certain vessels used in salt
works, called salt pans, a case was reserved bj- consent, which stated,
that the testator, some j'ears before his death, placed the salt pans in the
works ; that they were made of hammered iron, and riveted together ;
that they were brought in pieces, and might be again removed in pieces ;
that they were not joined to the walls, but were fixed with mortar to a
brick floor ; that there were furnaces under them ; that there was a
space for the workmen to go round them ; that there were no rooms
over them ; but that there were lodgings at the end of the wj'ch houses ;
that thej' might be removed without injuring the buildings, though the
salt works would be of no value without them, which with them were
let for £8 per week.
The question was, whether the executor or the heir at law were en-
titled to them ?
Mingay, for the plaintiff.
Davenport, for the defendant.
Lord Mansfield, after stating the case, said : All the old cases,
some of which are in the Year-Books, and Brooke's Abridgment agree
that whatever is connected with the freehold, as wainscot, furnaces,
1 "In the case of Lawton t. Lawton it was determined it [an engine] should go to
executors, partly on the reasons there mentioned, and partly on the authority of the
case of a cider-mill, there cited to have been so adjudged by Lord C. B. Comyns ; that
of Lawton v. Laiolon, was the case of creditors ; but that makes no difference, because
the question is. Whether part of the real or personal estate ? " Per LoED Haedwicke,
C, in Dudley -v. Ward£, Ambl. 113, 114. See D'Eyncourt v. Gregory, L. R. 3 Eq.
382 ; and JVadleigh v. Janvrin, 41 N. H. 503.
LAWTON V. SALMOX. 665
pictures fixed to the wainscot, even though put up by the tenant, belong
to the heir. But there has been a relaxation of the strict rule in that
species of cases, for the benefit of trade, between landlord and tenant,
that many things may now be taken away, which could not be formerly,
such as erections for carrying on any trade, marble chimney-pieces and
the like, when put up by the tenant. This is no injury to the landlord,
for the tenant leaves the premises in the same state in which he found
them, and the tenant is benefited. There has been also a relaxation in
another species of cases between tenant for life and a remainder-man,
if the former has been at anj- expense for the benefit of the estate, as
by erecting a fire-engine, or anything else b}' which it may be im-
proved ; in such a case it has been determined that the fire-engine
should go to the executor, on a principle of public convenience being an
encouragement to laj' out money in improving the estate, which *the ten-
ant would not otherwise be disposed to do. The same argument may
be applied to the case of tenant for life and remainder-man, as that of
landlord and tenant, namelj', that the remainder-man is not injured,
but takes the estate in the same condition as if the thing in question had
never been raised.
But I cannot find, that between heir and executor, there has been any
relaxation of this sort, except in the case of the cider-mills, which is
not printed at large. The present case is verj' strong. The salt spring
is a valuable inheritance, but no profit arises from it, unless there is a
salt work ; which consists of a building, &c. for the purpose of contain-
ing the pans, &c. which are fixed to the ground. The inheritance can-
not be enjoyed without them. They are accessories necessary to the
enjoyment and use of the principal. The owner erected them for the
benefit of the inheritance ; he could never mean to give them to the ex-
ecutor, and put him to the expense of taking them awaj', without any
advantage to him, who could only have the old materials, or a contri-
bution from the heir, in lieu of them. But the heir gains £8 per week
by them. On the reason of the thing, therefore, and the intention of
the testator, they must go to the heir. It would have been a different
question if the springs had been let, and the tenant had been at the ex-
pense of erecting these salt works ; he might very well have said, " I
leave the estate no worse than I found it." That, as I stated before,
would be for the encouragement and convenience of trade, and the
benefit of the estate. Mr. Wilbraham, in his opinion, takes the dis-
tinction between executor and tenant. For these reasons, we are all of
opinion, that the salt pans must go to the heir.
JPostea to the defendant.
666 ELWES V. MAW.
ELWES V. MAW.
King's Bench. 1802.
[Eeported 3 East, 38.]
Lord Ellenborocgh, C. J.* This was an action upon the case in
the nature of waste, b}' a landlord, the reversioner in fee, against his
late tenant, who had held under a term for 21 years, a farm consisting
of a messuage, and lands, out-houses, and barns, &c., thereto belong-
ing, and who, as the case reserved stated, during the term and about
15 years before its expiration, erected at his own expense a beast-
house, carpenter's shop, a fuel-house, a cart-house, a pump-house, and
fold-yar'd. The buildings were of brick and mortar, and tiled, and the
foundations of them were about a foot and a half deep in the ground.
The carpenter's shop was closed in, and the other buildings were open
to the front and supported by brick pillars. The fold-j-ard wall was of
brick and mortar, and its foundation was in the ground. The defend-
ant previous to the expiration of his lease pulled down the erections,
dug up the foundations, and carried away the materials ; leaving the
premises in the same state as when he entered upon them. The case
further stated, that these erections were necessary and convenient for
the occupation of the farm, which could not be well managed without
tliem. And the question for the opinion of the court was. Whether the
defendant had a right to take awaj' these erections ? Upon a full con-
sideration of all the cases cited upon this and the former argument,
which are indeed nearly all that the books afford materially relative to
the subject, we are all of opinion that the defendant had not a right to
take awaj- these erections.
Questions respecting the right to what are ordinarily called fixtures,
principallj^ arise between three classes of persons. 1st, Between differ-
ent descriptions of representatives of the same owner of the inheritance ;
A'iz., between his heir and executor. In this first case, i. e., as between
heir and executor, the rule obtains with the most rigor in favor of the in-
heritance, and against the right to disannex therefrom, and to consider
as a personal chattel anything which has been affixed thereto. 2dlj',
Between the executors of tenant for life or in tail, and the remainder-
man or reversioner ; in which case the riglit to fixtures is considered
more favorably- for executors than in the preceding case between heir
and executor. The 3d case, and that in which the greatest latitude and
indulgence has always been allowed in favor of the claim to having any
particular articles considered as personal chattels as against the claim
in respect of freehold or inheritance, is the case between landlord and
tenant.
But the general rule on this subject is that which obtains in the first-
mentioned case, i. e., between heir and executor; and that rule (as
1 The opinion sufficiently states the case.
ELWES V. MAW. 667
found in the Year Book, 17 E. 2, p. 518, and laid down at the close of
Ilerla&enden's Case, 4 Co. 64, in Co. Lit. 53, in Cooke v. Humphrey,
Moore, 177, and in Lord Darby v. Asquith, Hob. 234, in the part
fited by my brother Vaughan, and in other cases) is that where a
lessee, having annexed anything to the freehold during his term, after-
wards takes it away, it is waste. But this rule at a very early period
had several exceptions attempted to be engrafted upon it, and which
were at last effectually engrafted upon it, in favor of trade and of
those vessels and utensils which are immediately subservient to the
purposes of trade. In the Year Book 42 E. 3, 6, the right of the
tenant to remove a furnace erected by him during his term is doubted
and adjourned. In the Year Book of the 20 H. 7, 13, a. & b., whicli
was the case of trespass against executors for removing a furnace fixed
with mortar hy their testator and annexed to the freehold, and which
was holden to be wrongfully done, it is laid down, that " if a lessee for
\-ears make a furnace for his advantage, or a dyer make his vats or ves-
sels to occupy his occupation during his term, he may remove them;
but if he suffer them to be fixed to the earth after the term, then they
belong to the lessor. And so of a baker. And it is not waste to re-
move such things within the term by some : and this shall be against
the opinions aforesaid." But the rule in this extent in favor of tenants
is doubted afterwards in 21 H. 7, 27, and narrowed there, by allowing
that the lessee for 3-ears could only remove, within the term, things fixed
to the ground, and not to the walls of the principal building. How-
ever, in process of time the rule in favor of the right in the tenant to
remove utensils set up in relation to trade became fully established ;
and accordingly, we find Lord Holt, in Poole's Case, Salk. 368, laying
down (in the instance of a soap-boiler, an under-tenant, whose vats,
coppers, &c., fixed, had been taken in execution, and on which account
the first lessee had brought an action against the sheriff) , that during
the term the soap-boilei" might well remove the vats he set up in relation
to trade ; and that he might do it by the common law, and not by virtue
of any special custom, in favor of trade, and to encourage industry ; but
that after the term they became a gift in law to him in reversion, and
were not removable. He adds, that there was a difference between what
the soap-boiler did to carry on his trade, and what he did to complete
his house, as hearths and chimnej'-pieces, which he held not remov-
able. The indulgence in favor of the tenant for years during the term
has been since carried still further, and he has been allowed to carrj-
awaj- matters of ornament, as ornamental marble chimnej'-pieces, pier-
glasses, hangings, wainscot fixed only by screws, and the like. Beck
V. Hebow, 1 P. Wms. 94 ; Ex parte Quincey, 1 Atk. 477, and Lawton v.
Lawton, 3 Atk. 13. But no adjudged case has yet gone the length of
establishing that buildings subservient to purposes of agriculture, as
distinguished from those of trade, have been removable by an execu-
tor of tenant for life, nor by the tenant himself who built them during
his term.
668 ELWES V. MAW.
In deciding whether a particular fixed instrument, machine, or even
building should be considered as removable bj- the executor, as be-
tween him and the heir, the court, in the three principal cases on this
subject (viz. Lawton v. Lawton. 3 Atk. 13, which was the case of a
fire-engine to work a colliery erected by tenant for life ; Lord Dudky
and Lord Ward, Ambler, 113, which was also the case of a fire-en-
gine to work a colliery erected by tenant for life, — these two cases before
Lord Hardwicke, — and Lawton, Executor, v. Salmon, E. 22, G. 3 ; 1
H. Blac. 259, in notis, before Lord Mansfield, wliieh was the case of salt
pans, and which came on in the shape of an action of trover brought
for the salt pans by the executor against the tenant of the heir at law),
the court ma}- be considered as having decided mainl}- on this ground,
that where the fixed instrument, engine, or utensil (and the building
covering the same falls within the same principle), was an accessory to
a matter of a personal nature, that it should be itself considered as
personalty. The fire-engine, in the cases in 3 Atk. and Ambler, was
an accessory to the carrying on the trade of getting and vending coals ;
a matter of a personal nature. Lord Hardwicke saj's, in the case in
Ambler, " A colliery is not only an enjoyment of the estate, but in part
carrying on a trade." And in the case in 3 Atk. he says, " One reason
that weighs with me is its being a mixed case, between enjoying the
profits of the lands, and carrying on a species of trade ; and consider-
ing it in this light, it comes very near the instances in brew-houses, &c.,
of furnaces and coppers." Upon the same principle Lord Ch. B. Comyns
may be considered as having decided the case of the cider- mill ; i. e.,
as a mixed case between enjoying the profits of the land and cariying
on a species of trade ; and as considering the cider-mill as properl}- an
accessory to the trade of making cider.
In the case of the salt pans. Lord Mansfield does not seem to have
considered them as accessory to the carrjing on a trade, but as merely
the means of enjoying the benefit of the inheritance. He says, " The
salt spring is a valuable inheritance, but no profit arises from it unless
there be a salt work ; which consists of a building, &c., for the purpose
of containing the pans, &c., which are fixed to the ground. The inheri-
tance cannot be enjoyed without them. Thej' are accessories necessary
to the enjojment of the principal. .The owner erected them for the
benefit of the inheritance." Upon this principle he considered them as
belonging to the heir, as parcel of the inheritance, for the enjojment of
which they were made, and not as belonging to the executor, as the
means or instrument of carrying on a trade. If, however, he had even
considered them as belonging to the executor, as utensils of trade, or
as being removable by the tenant, on the ground of their being such
utensils of trade ; still it would not have affected the question now before
the court, which is the right of a tenant for mere agricultural purposes
to remove buildings fixed to the freehold, which were constructed by him
for the ordinary purposes of husbandry, and connected with no descrip-
tion of trade wh.ntsoever : and to which description of buildings no case
ELWES V. MAW. 669
(except the Nisi Prius case of Dean v. Allalt/, before Lord Kenyon,
and which did not undergo the subsequent review of himself and' the
rest of the court) has yet extended the indulgence allowed to tenants in
respect to buildings for the purposes of trade. In the case in Buller's
Nisi Prius, 34, of Culling v. Tuffnell, before Ch. J. Treby, at Nisi
Prius, he is stated to have hoklen that the tenant who had erected a
barn upon the premises, and put it upon pattens and blocks of timber
lying upon the ground, but not fixed in or to the ground, might by the
custom of the country take them away at the end of his term. 'J "o be
sure he might, and that without any custom ; for the terms of the
statement exclude them from being considered as fixtures : " they were
not fixed in or to the ground." In the case of Fitzherhert v. Shaw, 1
H. Blac. 258, we have only the opinion of a very learned judge indeed,
Mr. Justice Gould, of what would have been the right of the tenant, as
to the taking away a shed built on brick-work, and some posts and rails
which he had erected, if the tenant had done so during the term ; but as
the term was put an end to by a new contract, the question what the ten-
ant could have done in virtue of his right under the old term, if it had
continued, could never have come judicially before him at Nisi Prius ;
and when that question was offered to be argued in the court above,
the counsel were stopped, as the question was excluded by the new
agreement. As to the case of Penton v. Robart, 2 East, 88, it was
the case of a varnish house, with a brick foundation let into the ground,
of which the wood-work had been removed from another place, where
the defendant had carried on his trade with it. It was a building for
the purpose of trade : and the tenant was entitled to the same indulgence
in that case, which, in the cases already considered, had been allowed to
other buildings for the purposes of trade ; as furnaces, vats, coppers,
engines, and the like. And though Lord Kenyon, after putting the case
upon the ground of the leaning which obtains in modern times in favor
of the interests of trade ; upon which ground it might be proper!}- sup-
ported ; goes further, and extends the indulgence of the law to the
erection of green-houses and hot-houses bj' nurserymen, and indeed bj-
implication to buildings by all other tenants of land ; there certainly-
exists no decided case, and, I believe, no recognized opinion or prac-
tice on either side of Westminster Hall, to warrant such an extension.
The Nisi Prius case of Dean v. Allaly (reported in Mr. Woodfall'.s
book, p. 207, and Mr. Espinasse's, 2 vol. 11), is a case of the erection
and removal by the tenant of two sheds, called Dutch barns, which
were, I will assume, unquestionably fixtures. Lord Kenyon says, " The
law will make the most favorable construction for the tenant, where he
has made necessary and useful erections, for the benefit of his trade
or manufacture, and which enable him to carry it on with more advan-
tage. It has been so holden in the case of cider-mills, and other cases ;
and I shall not narrow the law, but hold erections of this sort made for
the benefit of trade, or constructed as the present, to be removable
at the end of the term." Lord Kenyon here uniformly mentions the
670 BUCKLAND V. BUTTERFIELD.
benefit of trade, as if it were a building subservient to some purposes
of trade ; and never mentions agriculture, for the purposes of which it
was erected. He certainly seems, however, to have thought that build-
ings erected bj' tenants for the purposes of farming, were, or rather
ought to be, governed bj- the same rules which had been so long judici-
alh' holden to apply in the case of buildings for the purposes of trade.
But the case of buildings for trade has been always put and recognized
as a known, allowed, exception from the general rule, which obtains as
to other buildings ; and the circumstance of its being so treated and
considered establishes the existence of the general rule to which it is
considered as an exception. To hold otherwise, and to extend the rule
in favor of tenants in the latitude contended for b3- the defendant, would
be, as appears to me, to introduce a dangerous innovation into the rela-
tive state of rights and interests holden to subsist between landlords
and tenants. But its danger or probable mischief is not so properly a
consideration for a court of law, as whether the adoption of such a doc-
trine would be an innovation at all ; and, being of opinion that it would
be so, and contrary to the uniform current of legal authorities on the
subject, we feel ourselves, in conformitj- to, and in support of those au-
thorities, obliged to pronounce that the defendant had no right to take
awa}' the erections stated and described in this case.
Vaughan, Serjeant, and Torkington, for the plaintiff.
Salguy and Clarke, for the defendant.
Fostea to the plaintiff.
BUCKLAND v. BUTTERFIELD.
Common Pleas. 1820.
[RcpoHed 2 Brod. & B. 54.]
Action on the case, in the nature of waste, by tenant for life, aged
70, against the assignees of her lessee from year to year, who had
become bankrupt. The bankrupt was the son of the plaintiff, and had
also a remainder for life in the premises after her death. At Buck-
ingham Lent Assizes, 1820, before Oraham, B., the case proved was,
that the defendants had taken away from the premises let to the bank-
rupt a conservatory and a pinerj-. The conservatory, which had been
purchased by the bankrupt and brought from a distance, was by him
erected on a brick foundation fifteen inches deep : upon that was
bedded a sill, over which was framework covered with slate ; the
framework was eight or nine feet high at the end, and about two
in front. This conservatory- was attached to the dwelling-house by
eight cantilivers let nine inches into the wall, which cantilivers sup-
ported the rafters of the conservatory. Resting on the cantilivers was
a balcony with iron rails. The conservatory was constructed with
BUOKLAND V. BUTTERFIELD. 671
sliding glasses, paved with Portland stone, and connected with the parlor
chimney bj' a flue. Two windows were opened from the dwelling-house
into the conservator^-, one out of tlie dining-room, another out of the
librarj-. A folding-door was also opened into the balconj- ; so that
when the conservatorj' was pulled down, that side of the house, to which
it had been attached, became exposed to the weather. Surveyors who
were called, stated that the house was worth £50 a-year less after the
conservatory and pinery had been removed. The learned judge having
stated his opinion that the plaintiff ought to recover at least for the
pinery, and probably for the conservatory, the jury, estimating the
plaintitr's life at six years' purchase, gave a verdict for her, £300
damages. Peake, Serjt, having obtained a rule nisi for a new trial,
£losset, Serjt., showed cause against the rule.
Peake, in support of the rule.
Dallas, C. J. This was an action on the case, tried before Graham,
B., at the last Aj-lesburj- Assizes. The question In the cause, as far as
relates to the motion now before us, was, whether a conservatory
affixed to the house in the manner specified in the report was so affixed
as to be an annexation to the freehold, and to make the removal of it
waste ? In JEJlwes v. Mawe will be found at length all that can relate
to this case and to all cases of a similar description. It is not neces-
sary to go into the distinctions there pointed out, as they relate to
different classes of persons, or to the subject-matter itself of the
inquirj-. Nothing will, here, depend on the relation in which the par-
ties stood to each other, or the distinction between trade and agricul-
ture ; for this is merelj' the case of an ornamental building constructed
hy the partj' for his pleasure, and the question of annexation arises
on the facts reported to us ; and I say the facts reported, because
every case of this sort must depend on its special and peculiar cir-
cumstances. On the one hand it is clear, that many things of an
ornamental nature may be in a degree affixed, and yet, during the
term, maj' be removed ; and, on the other hand, it is equally clear, that
there may be that sort of fixing or annexation, which, though the building
or thing annexed may have been merely for ornament, will yet make
the removal of it waste. The general rule is, that where a lessee, hav-
ing annexed a personal chattel to the freehold during his term, after-
wards takes it away, it is waste. In the progress of time this rule has
been relaxed, and many exceptions have been grafted upon it. One
has been in favor of matters of ornament, as ornamental chimney-
pieces, pier-glasses, hangings, wainscot fixed only by screws, and the
like. Of all these it is to be observed, that they are exceptions only,
and, therefore, though to be fairly considered, not to be extended ; and
wiLh respect to one subject in particular, namely, wainscots, Ix)rd
Hardwicke treats it as a very strong case. Passing over all that re-
lates to trade and agriculture as not connecting with the present sub-
ject, it will be only necessary to advert, as bearing upon it, to the
doctrine of Lord Konyon in 2 East, 88, referred to at the bar. The
672 WINN V. INGILBY.
case itself was tbat of a building for the purpose of trade, and standing,
therefore, upon a different ground from the present, but it has been
cited for the dictum of Lord Kenj-on, which seems to treat green-housest
and hot-houses erected bj* great gardeners and nursery-men as not to
be considered as annexed to the freehold. Even if the law were so,
which it is not necessary to examine, still, for obvious reasons, such a
case would not be similar to the present : but in JElwes v. Mawe,
speaking of this dictum, Lord Ellenborough says, there exists no de-
cided case, and, I believe, no recognized opinion or practice on either
side of Westminster Hall to warrant such an extension. Allowing,
then, that matters of ornament may or may not be removable, and that
whether they are so or not must depend on the particular case, we are
of opinion that no case has extended the right to remove nearly so far
as it would be extended if such right were to be established in the pres-
ent instance under the facts of the report, to which it will be sufflcient
to refer ; and, therefore, we agree with the learned judge, in thinking
that the building in question must be considered as annexed to the
freehold, and the removal of it consequentl3' waste.
Mule discharged}
WINN V. INGILBY.
King's Bench. 1822.
[Reported 5 JB. & AM. 625.]
Teespass for breaking and entering plaintiff's house, and taking his
fixtures, goods, and chattels. Justification under a writ of Ji. fa.
directed to the defendant, Ingilbj-, as sheriff' of the county, under which
the defendant, Hauxwcll, his bailiff, peaceably entered the premises,
and seized, &c. Replication de injuria, &c. At the trial at the last
assizes for Yorkshire, before Cross, Serjeant, the onlj- question was,
whether the defendants were justified in seizing, under the execution,
some fixtures, consisting of set pots, ovens, and ranges. It appeared
that the house where these were fixed was built on the plaintiff's own
freeliold, and the learned Serjeant was of opinion that under these cir-
cumstances thej' were not seizable by the sheriff under an execution.
The plaintiff accordinglj' had a verdict ; and now
Littledale moved to enter a verdict for the defendants.
Per Curtam. The verdict is right, for these were fixtures which
would go to the heir, and not to the executor, and thej' were not liable
to be taken as goods and chattels under an execution. Here, the house
where they were fixed was the freehold of the plaintiff, which distin-
guishes this case from those cited. Rule refused.
I See Jenkins r. Gething, 2 J. & H. 520.
THEESHEB V. WATER WORKS COMPANY. 673
THRESHER v. EAST LONDON WATER WORKS COMPANY.
King's Bench. 1824.
[Reported 2 B. S C. 608.]
Covenant on a lease. Breach, non-repaii- of premises. Plea, perform-
ance of the covenant. The cause was tried at the sittings at Guildhall
after Trinit}- term, 1823, when a verdict was found for the plaintiff, dam-
ages £500, subject to the opinion of the court upon a case, stating in
substance as follows. The lease upon which the action was brought, was
a lease b}- indenture made by the plaintiff's ancestor to the defendants
in the year 1791, reciting a former lease between the parties under
whom the plaintiff and defendant claimed, made in the year 1756
for thirtj--nine years ; and which would not expire until 1795, and was
in force at the time of malting the lease in question. An under-lease
of part of the premises was granted in 1783, by the lessees in the lease
of 1756, to one Joseph Matthews for thirt^'-one years, and which, con-
sequentlj-, would not expire until 1814, several years after the expira-
tion of the lease of 1756. The underlease of 1783 was granted in
consideration of a former underlease, which had become vested in
Joseph Matthews, and there was a covenant to repair, and to leave at
the end of the term the premises so repaired, together with all such
erections and buildings as then were or should be at anj'time thereafter
built or set up in, upon, or about the same, or anj' part thereof. In
1780, Matthews erected a lime-kiln on the premises, at the expense of
£160, and T. Ayres and Joseph Watford, the assignees of the term
granted to Matthews, erected a similar lime-kiln on the premises in
1790. It also appeared by the underlease of 1783, that a warehouse
and stable were then standing on the premises therebj' demised. Both
these lime-kilns were therefore existing in 1791, when the lease in ques-
tion was granted. The lime-kilns were built of brick and mortar, and
the foundations let into the ground. They were erected for the purpose
of carrj-ing on the trade of a lime-burner. The chalk and coals used in
the business were brought up the river Thames, and the lime sold on
the premises to customers. By the lease of 1791, the demise was of a
piece of ground formerly called the Osier Hope, and the wharfs and
buildings erected and built thereon, situate, &c., and abutting, &c., as
the same were demised by the lease of 1756; and the premises were
said to be in the occupation of the several persons therein named, and
among others, of James Ayres, lime-burner, habendum the said piece
of ground, wharves, and buildings thereon erected and built. The
lessees covenanted to repair, uphold, and maintain this piece of ground,
erections, and buildings, wharves, cranes, and ponds, and the hedges,
ditches, pa,les, and fences, belonging to the premises, and the said pre-
43
674 THRESHER V. WATER WORKS COMPANY.
raises so repaired, upheld, and maintained, to leave and yield up at the
end of the term. Tlie action was brought for the removal of these lime-
kilns. The lease of 1783 afterwards became vested in one Meeson,
who, after the expiration of the term thereby granted, held the premises
thereby demised for some time, as tenant from year to year, to the de-
fendants, and pulled down the lime-kilns four years ago. The question
in the cause was, whether the removal of those lime-kilns was a breach
of the covenant to repair contained in the lease of 1791 ?
Amos, for the plaintiff.
Campbell, for the defendant.
Abbott, C. J., delivered the judgment of the court ; and, after stating
the facts of the case, proceeded as follows : —
The question in the cause is, whether the removal of the lime-kilns
be a breach of the covenant to repair, contained in the lease of 1791.
On the behalf of the defendants three grounds of objection were taken :
First, that lime-kilns are not buildings within the meaning of a cove-
nant to repair buildings ; but this is answered b}' the case, in which it
is found that they were erected with brick and mortar, and their foun-
dations let into the ground.
Secondly, that, being erected for the purpose of trade, they were
removable generally.
Thirdly, that, upon the true construction of the several leases set
forth in tlie case, they were removable, or rather that they were not to
be considered as having been demised bj- the lease of 1791.
By this lease of 1791 the demise is of a piece of ground formerly
called the Osier Hope, and the wharfs and buildings erected and built
thereon, situate, &c., and abutting, &c., as the same were demised by
the lease of 1756, and the premises are said to be in the several occu-
pations of persons therein named, and among others of James Aj-res,
lime-burner, habendum the said piece of ground, wharves, and build-
ings thereon erected and built. The lessees covenant to repair, uphold,
and maintain the said piece of ground, erections and buildings, wharves,
cranes, and ponds, and the hedges, ditches, pales, and fences belonging
to the premises ; and the said premises so repaired, upheld, and main
tained, to leave and yield up at the end of the term.
Now it is settled, by the case of Baylor v. Collinge, 1 Taunt. 19,
that buildings erected for the purpose of trade, under a lease containing
such a covenant, cannot be removed by the lessee, the terms of the
covenant being general, and containing no exception. And this is
highly reasonable, because the expectation of buildings to be erected
during a term, and left at its expiration, is often one of the inducements
to the granting of a lease, and forms a considerable ingredient in the
estimate of the rent to be reserved. And if buildings for trade erected
during a lease cannot be removed without the breach of such a cove-
nant, neither can buildings erected before, and existing at the date of
a lease, be removed without a breach of the covenant, unless there
shall be some very special matter to take them out of the operation of
THRESHER V. WATER WOEKS COMPANY. 675
the covenant. Whether any matter capable of having such an effect
can exist dehors the deed maj- be questionable ; but it is enough for
the purpose of the present cause to saj-, that no such matter exists in
this case.
Such matter was supposed to be derivable from the former lease of
1756, and the underlease of 1783.
In the lease of 1756 the premises are described as all that piece of
ground called the Osier Hope, with the use of a crane, then standing on
part of it, and part of which had been made into a wharf, for the land-
ing, storing, and keeping goods, wherein are two docks, and the wharf
is fenced off hy pales, and part of which was formerlj- an osier ground,
but then converted into three ponds or reservoirs. It does not appear
bj' the case whether any covenant to repair was contained in this lease,
and the instrument is probably lost, and its contents known only by the
recital of it in the lease of 1791, in which it further appears, that the
lessees had applied for a further term of thirtj--one years, which is
granted at a considerable increase of rent. There is, therefore, nothing
in this lease of 1756 that can restrain or qualify the covenant to repair
in the lease of 1791 ; and it has not been shown hy what reason or rule
of law the lessees of 1791, having accepted a lease (by indenture) of
ground and buildings thereon, could be allowed to say that the ground
onlj', and not the buildings thereon, should be deemed to pass bj- that
lease. It would be verj^ difficult to maintain such a proposition, by the
circumstance of the buildings having been erected hy their under-lessee
during the continuance of the first lease, even if such under-lessee, as
between him and his own immediate lessor, had a right to remove the
buildings ; for the original lessor might very reasonably saj', that he
had nothing to do with any contract between other parties. But, upon
adverting to the under-lease of 1783, the foundation of such an argu-
ment is whollj' removed, because, by the terms of that under-lease, the
under-lessee, Matthews, has covenanted, not only to repair and uphold
the premises demised to him, but also to leave, at the end of the term,
those premises so repaired and upheld, together with all such erections
and buildings as then were or should be at any time thereafter built or
set up, in, upon, or about the same, or way part thereof. So that, ac-
cording to the case of Naylor v. Collinge, the under-lessee himself
could not have removed those lime-kilns without a breach of his cove-
nant made with his own lessors.
For these reasons our judgment is in favor of the plaintiff; and the
postea is to be delivered to her. Judgment for the plaintiff }
1 See Longhran v. Ross, 45 N. Y. 792.
676 GRYMES V. BOWEREN.
GRYMES V. BOWEREN.
Common Pleas. 1830.
\_Reported 6 Biiig. 437.]
Case for injury to the reversion. At the trial before Garrow, B., at
the last Norfolk Assizes, it appeared that the defendant, who occupied
as tenant from j'ear to year certain premises belonging to the plaintiff,
had, at his own expense, erected on the premises a pump, which he
took away when he quitted them.
The pump was attached to a stout perpendicular plank ; this plank
rested on the ground at one end, and at the other was fastened by an
iron bolt or pin to an adjacent wall, from which it was distant about
four inches. The pin, which had a head at one end and a screw at the
other, passed entirely through the wall.
The tube of the pump passed through a brick flooring into a well
beneatli. This well had originall}' been open, but the defendant had
arched it over when he erected the pump ; and, in withdrawing the
tube, four or five of the floor bricks were displaced, but the iron pin
which attached the perpendicular plank to the wall was left in the wall
when the plank was removed.
Under the direction of the learned Baron (who thought the pump
parcel of the freehold, inasmuch as it could not have been the sub-
ject of larcen}- at common law) , the jury found a verdict for the
plaintiflT, damages £4, with leave for the defendant to move to enter a
nonsuit.
Wilde, Serjt., having obtained a rule nisi accordinglj',
Storks, Serjt, now showed cause.
Wilde, contra.
TiNDAL, C. J. It is difficult to draw anj- very general and at the
same time precise and accurate rule on this subject ; for we must be
guided in a great degree bj- the circumstances of each case, the nature
of the article, and the mode in which it is fixed. The pump, as it is
described to have been fixed in this case, appears to me to fall within
the class of removable fixtures. The rule has alwa3S been more re-
laxed as between landlord and tenant, than as between persons standing
in other relations. It has been holden that stoves are removable during
the term ; grates, ornamental chimnej'-pieces, wainscots fastened with
screws, coppers, and various other articles : and the circumstance
that, upon a change of occupiers, articles of this sort are usually
allowed by landlords to be paid for by the in-coming to the out-going
tenant, is confirmatorj' of this view of the question.
Looking at the facts of this case ; considering that the article in dis-
pute was one of domestic convenience ; that it was slightly fixed ; was
THE KING V. OTLEY. 677
erected bj- the tenant ; could be moved entire ; and that the question is
between the tenant and his landlord, — I think the rule should be made
absolute.
Park J. The rules with regard to property of this description var3'
according to the relation in which parties stand towards each other.
The rule as between heir and executor is more strict than as between
landlord and tenant, and even as between landlord and tenant it has
been relaxed in modern times ; for in Lawton v. Lawton, 3 Atk. 13,
Lord Hardwicke held, that wainscot might be removed by the tenant,
although it would have been waste to have removed it in the time of
Hen. 7.
Perhaps we ought not to look with too much nicetj- as to the mode
in which articles are fixed, when it has been holden that the tenant
maj' remove ovens, coppers, and the like. The present case, however,
is clearly distinguishable from Buckland v. Sutterfield. where a con-
servatorj- was deeply fixed in the soil, and formed part of the house to
which it was attached ; and, however I may regret it, seeing that the
value in dispute is so small, I am compelled to say that the verdict
which has been given is wrong.
Gaselee, J., concurred.
BosANQUET, J. I am of opinion, that this pump was removable by
the tenant. Whether propert}- of this kind be removable or not, depends
in some degree on the relation between the parties : and in the relation
of landlord and tenant the rule is less strict than in others : it is more
so as between heir and executor, and as between executor and remain-
der-man. My apprehension has been lest we should be thought to lay
down anj' principle which would apply to cases diflierent from the pres-
ent. But considering that this is a case between landlord and tenant ;
that the pump was erected by the tenant ; that it is an article of domes-
tic use ; and can be removed entire, — I think the verdict ought to be
set aside. Rule absolute.
THE KING V. OTLEY.
King's Bench. 1830.
\Ee.pmm \B. & Ad,. 161.]
Upon appeal against an order of two justices, whereby Samuel Stam-
mers and his four children were removed from the parish of St. Mary,
Lambeth, in the county of Surrey, to the parish of Otley, in the
county of Suffolk, the sessions confirmed the order, subject to the
opinion of this court on the following case : —
Samuel Stammers, the pauper, rented of James Bedwell, of Ipswich,
carpenter, in the appellant parish, a windmill called a smock-mill, a
brick-built cottage, and a small garden, at the rent of £30 per annum,
678 THE KING V. OTLEY.
during the space of six years, and three quarters of another j'ear,
ending midsummer, 1827; and during the whole of that time held,
occupied, and actuallj- paid for the same the said sum of £30 per
annum, and was rated to and paid several rates for the relief of the
poor of the parish of Otley in respect of the cottage and garden, and
also of the mill, at the estimated value of £6 per annum. The cottage
and garden, with the mill, are together of more than the annual value
of £10, but the cottage and garden, exclusiveh" of the mill, are not of
that annual value. The mill is of a circular form, and of wood, having
a foundation of brick twelve inches high from the ground, in which the
wood-work is not inserted, but rests upon it by its own weight alone.
No part of the machinerj^ of the mill touches the ground or any part of
the foundation ; the whole is confined to the wooden part of it, which
has two floors ; but on the ground within the brick foundation, planks
are laid down so as to form a flooring, and the mill would work as well
upon the ground as upon the brick foundation. Some time after the
erection of the mill, the tenant placed mortar on the inside and outside
of the sill or bottom part of the wood-work of the mill, for the purpose
of excluding the weather, mortar so placed not acting as a cement
between wood and brick work ; and he also fixed posts in the ground,
which, sloping towards the mill, supported steps by which the mill was
entered. The question for the opinion of the court was, Whether the
mill in question was a tenement, by the renting of which the pauper
could acquire a settlement in Otley ?
Thesiger in support of the order of sessions.
Barnewall and Ross, contra.
Batlet, J. The question is, Whether the mill be parcel of a tene-
ment ? To be so, it must be part and parcel of the freehold. Now, it
is not parcel of the freehold unless it be affixed to it, or to something
previously connected with it. Here the mill was not affixed to the
land, but merely rested on a foundation of brick. The sessions have
found that if it had stood upon the ground, it would have worked as
well. If it had, the only difference would have been, that it probablj'
would have rotted. This is analogous to the case of a barn set upon
pillars ; and that is nothing more than a chattel. The windmill in this
case would clearl}- have gone to the executor, and not to the heir.
LiTTLEDALE, J. TMs is precisely within the case of The King v.
The Inhabitants of Londonthorpe, 6 T. R. 377. It is attempted to
be distinguished, because the tenant in that case had permission from
the landlord to put up the mill, and it was treated by both as a chattel ;
but that circumstance can make no difllerence. Suppose there were two
mills in two distinct townships, and one of the townships treated the
mill as a tenement, and the other, as a mere chattel. That would make
no difference. It must depend upon the nature of the building, and not
upon the mode of treating it, whether it be a tenement or not.
Parke, J. I am of the same opinion. To constitute a tenement,
it is necessary that the structure should be affixed to the soil, or to
HALLEN V. ETJNDER. 679
something annexed to the soil. Here the windmill rested merelj- upon
the brick foundation, without being annexed to it by cement.
Order of sessions quashed.^
HALLEN V. RUNDER.
Exchequer. 1834.
[Reported \ C. M. & R. 266.]
Assumpsit. The first count of the declaration stated, that, in con-
sideration that the defendant had bargained for, and bought of the
plaintiff, and that the plaintiff, at the request of the defendant, had
sold to the defendant divers chattels, fixtures, and effects, then lying
and being in and fastened to a certain dwelling-house and premises, at
and for a certain price, to wit, the price of £40 10s. ; the defendant
undertook to pay the said sum of £40 10s., when he should be there-
unto afterwards requested ; and that, although the plaintiff afterwards
requested the defendant to pay him the said sum of £40 10s., j-et, that
the defendant did not, nor would then or at any other time pay him the
same or any part thereof. The second count was in indebitatus as-
sumpsit, for the price and value of goods, chattels, fixtures, and effects,
bargained and sold, and for the price and value of other goods, chattels,
fixtures, and effects sold and delivered, and for money lent, money
paid, monej- had and received, and for money due upon an account
stated. The defendant pleaded the general issue.
At the trial, before Gurney, B., at the sittings in London, after last
Michaelmas Term, it appeared in evidence that the plaintiff had for
several years, prior to the 25th of March, 1833, occupied a house in
Nelson Square, under the defendant, and that a few days before that
day, when the plaintiff was on the point of removing to another house,
the defendant called upon the plaintiff, and requested him not to remove
the fixtures, saying, she would take them at a fair valuation ; and it
was agreed that each party should appoint their own broker. It further
appeared, that, when the plaintiff entered the house as tenant to the
defendant, he had paid £23 for fixtures to the out-going tenant ; and
that prior to his quitting the house, he had added very considerably to
the quantity of fixtures. The plaintiff gave up possession of the house
1 " We are aware that in England, by some, if not by most, of their cases, where
wooden buildings are erected on brick or stone foundations, and are not let into or
fastened to the brick or stone work, and are only held to their places by their own
weight, they have been held to be personal property only. Rex v. Otlcy, 1 Barn. &
Adol. 161, and fVansborough v. Maton, 4 Adol. & Ellis, 844, are cases of this sort.
But this has never been considered as the law with ns, and to hold it to be so at this
day would in effect change the character of very many, if not of most, of the wooden
buildings in the State, from real estate into mere personal chattels." Landon v. Plait,
34 Conn. 517, 524. See Snedeker v. Warring, 12 N. Y. 170.
680 HALLEN V. EUNDEE.
on the 24th of March, leaving the fixtures on the premises. On the
following day, the plaintiff sent for, and obtained the key of the house
from the defendant's son, for the purpose of having the fixtures valued,
and the key was accordinglj- delivered to the plaintiff's broker, who,
together with one Sexton, a broker, who met him there on the defend-
ant's behalf, valued the whole of the fixtures at £40 10s., and they
both signed the appraisement at that valuation. After the valuation
was made, the key was returned to the defendant. On the trial it was
proved by Sexton, the defendant's broker, that the defendant had
desired him to go to the house in question to look at some fixtures and
stoves ; that she said, she did not know whether she would agree with
the plaintiff for them or not, but that he wa,s to appraise them. It was
objected for the defendant, first, that there was no contract in writing
proved, inasmuch as the appraisement was not signed by the defend-
ant, or by her authority, and therefore tliat the sale was void under the
17th section of the Statute of Frauds ; and, secondU-, that this form of
action was not maintainable : that the fixtures, not having been severed,
continued to be part of the freehold, and could not be considered as
goods and chattels ; and therefore, that indebitatus assumpsit was not
maintainable, and that the action ought to have been special on the
agreement. The learned Baron told the jury that if they believed that
the defendant had authorized the broker to appraise the fixtures, he
was of opinion that she had given him authority to sign the appraise-
ment ; and consequentlj', that there was a sufficient note in writing, if
that were necessar3-. The jurj' found a verdict for the plaintiff for the
amount of the valuation. The learned judge gave the defendant leave
to move to enter a nonsuit ; and according'l3- in Hilary term last —
J^. Kelly, moved either for a nonsuit or a new trial. The court
granted a rule nisi, against which,
Thesiger and Petersdorff, showed cause.
Kelly, in support of the rule.
The judgment of the court was delivered by Parke, B. In this
case, which was argued before my Brothers Bolland, Alderson, Gur-
nej', and mj'self, all the questions were disposed of bj- the court in
the course of the argument except one ; namelj-, whether the plain-
tiff could recover the amount of the valuation of the fixtures upon
an}' count in this declaration. The first count stated, that in con-
sideration that the defendant had bargained for and bought of the
plaintiff, and that the plaintiff, at the request of the defendant, had
then and thei'e sold to the defendant divers chattels, fixtures, and
effects, then lying in and being fastened to a certain dwelling-house
and premises, at the price of £40 10s., the defendant "undertook to pay
the price so agreed upon. The second count stated tliat the defendant
was indebted to the plaintiff in £50 for the price and value of goods,
chattels, fixtures, and effects, bargained and sold bj' the plaintiff to the
defendant at her request ; and in the like sum for the price and value
of other goods, chattels, fixtures, and effects, sold and delivered bj' the
HALLEN V. BUNDEE. 681
plaintiff to the defendant at her request ; and in the like sum upon an
account stated ; and the question is, whether these counts, or any part
of them, are applicable to the plaintiff's ease. We think that the first
count, or that part of the second count which charges the defendant
with the price and value of fixtures bargained and sold, or indeed that
which states her to be indebted for fixtures sold and delivered, is upon
the evidence supported, and it is unnecessary to say whether the other
part of the second, upon the account stated, was or was not sustained.
The situation of the plaintiff was this, upon entering as tenant to the
defendant, he had paid upwards of £20 for the interest which a former
tenant had in certain chattels which had been annexed to the freehold,
but which that tenant had a right to sever and remove whenever he
pleased during his term ; and the plaintiff had also, during his term,
annexed other chattels to the freehold, which also he had the like right
of removing. Shortly before the exjftration of this term, the plaintiff
agreed with the defendant, his lessor, that he should forbear to remove
all these chattels so annexed, which he was about to do, and that Ihey
should be taken by the defendant on a valuation to be made bj' two
appraisers. This valuation was ascertained by two brokers, both of
whom must, upon the finding of the jury, be taken to have been prop-
erly appointed for this purpose : the value was fixed at £40 10s. The
plaintiff left th^ chattels attached to the freehold, and the defendant
took possession of them.
When chattels are thus fixed to the freehold by a tenant, they be-
come part of it, subject to the tenant's right to separate them during the
term, and tluis reconvert them into goods and chattels, as stated by
Lord Chief Justice Gibbs in Zee v. Risdon, 7 Taunt. 191, and in the
very able work of Messrs. Amos & Ferard on Fixtures ; but, whilst
annexed, they may be treated for some purposes as chattels : for in-
stance, in the execution of a Jl. fa. they may be seised and sold as fall-
ing under the description of goods and chattels — Foole's Case, 1 Salk.
368 — in like manner as growing crops of corn or other fructus indus-
tricdes, which go to the executor, and to which they bear a close resem-
blance. The case above cited of Lee v. Bisdon, however, decides that
they cannot be treated as goods in an action for the price ; and although
in the subsequent case of Pitt v. Shew, 4 B. & A. 206, they were held
to fall under the description of "goods, chattels, and effects" in an
action of trespass, we cannot consider the previous authority as over-
ruled, because in the latter case it is probable that the articles taken
had been severed from the freehold before the sale by the defendant,
though Lord Chief Justice Abbott certainly does not mention that cir-
cumstance as the ground of the decision.
The plaintiff, therefore, cannot recover the price fixed for these
effects as for goods sold and delivered ; but the question is, whether he
cannot as for fixtures bargained and sold, or sold and delivered. The
real nature of the contract between the plamtiff and the defendant was,
that the plaintiff should waive his right of removal, and thereby give up
682 MACKIl^TOSH V. TROTTER.
to the defendant all his interest in and right to enjoy these effects as
chattels. And after the contract is executed, and the plaintiff has
given up possession to the defendant, the question is, whether he maj'
not declare as for fixtures bargained and sold, or sold and delivered.
The term "fixtures" has now acquired the peculiar meaning of per-
sona] chattels which have been annexed to the freehold, but which are
removable at the will of the person who has annexed them, in which
sense it is used in the Treatise on Fixtures above referred to. And it
has certainly been the practice, since the decision in Lee v. Hisdon, to
declare for the amount of valuations of such fixtures between one tenant
and another, or the tenant and landlord, in a count in indebitatus
assumpsit for fixtures. Although this ma.j not be tlie most accurate
mode of describing the real contract between the parties, we think it is
sufficient, and that the plaintiff may recover upon it ; and the case
bears a strong analogy to that of a contract b}- a tenant to give up to liis
landlord or successor those growing crops to which he is entitled hy the
common law or the custom of the countiy, as emblements, and the value
of which after the contract is executed may certainlj' be recovered on a
count for crops bargained and sold. See Mayfleld v. Wadsley, 3 B. & C.
357 ; 5 D. & R. 224. This question on the form of the declaration was
indeed decided by the court on a motion for a rule nisi ; but as it was
suggested bj' the learned counsel for the defendant, tljat the court so
decided under the impression that this was a sale of an interest in land,
within the 4th section of the Statute of Frauds, leaving the point to be
discussed whether the appraisement was a sufficient memorandum in
writing, we have allowed the point to be argued, and given it full con-
sideration, and decided it. We are quite satisfied that this is not a
sale of any interest in land, for the reasons given in the course of the
arguments ; and the judgment of the court, and particularly of Mr.
Justice Littledale in Emns v. Roberts, 5 B. & C. 829 ; 8 D. & R. 611,
upon the subject of growing crops, is an authority to the same effect ;
but treating this as not being a sale of anj- interest in land, we think
the declaration is sufficiently adapted to the case.
Mule discharged.
MACKINTOSH v. TROTTER.
Exchequer.' 1838.
[Reported 3 M. & W. 18i.]
Teover for fixtures, furniture, &c. Plea, that the goods and chattels
in the declaration mentioned were not, nor were any of them, the prop-
erty of the plaintiff. At the trial before Coltman, J., at the last Liver-
pool Assizes, it appeared that the action was brought hy the plaintiff,
an innkeeper at Liverpool, to recover from the defendants, his assignees
under a fiat in bankruptcy, which he alleged to be void, the value of
MACKINTOSH V. TEOTTEE. 683
certain tenant's fixtures and household furniture, which they, as his
assignees, had put up to sale by auction, together with the lease of his
house and the goodwill of his business. The fixtures and furniture
were sold in one lot, for £79 8s. M., and it was proved that the former
still remained affixed to the freehold, not having been removed by the
purchaser. It was contended, for the defendants, that the fixtures
were not recoverable in trover. The learned judge was disposed to
think that the defendants, by selling them, had, as between themselves
and the plaintiffs, treated them as goods and chattels: he however
desired the jury to assess the value of the fixtures separately ; and they,
having stated their value at £55, a verdict passed for the plaintiff for
£79 8s. 8(7., leave being reserved to the defendants to move to reduce
the damages by the sum of £55. Cowling obtained a rule accordingly.
Cressicell, Wightman, and Addison, now showed cause.
Alexander and Cowling, in support of the rule.
Parke, B. 3Iinshall v. Lloyd [2 M. & W. 450] is a direct author-
ity on this point. I gave my opinion in that case, not on my mere im-
pression at the time, but after much consideration of this point, — that
the principle of law is, that, whatsoever is planted in the soil belongs
to the soil : quicquid plantatur solo, solo cedit ; that the tenant has
the right to remove fixtures of this nature during his term, or during
w-hat maj-, for this purpose, be considered as an excrescence on the
term ; but that they are not goods and chattels at all, but parcel of
the freehold, and as such not recoverable in trover. That case is a
direct authorit}', so far as my opinion and that of my Brother Alderson
go ; and I think it was a correct decision.
Holland and Gurney, Barons, concurred. Rule absolute}
1 " When an exception to the general law of fixtures was introduced in favor of
trade fixtures, was the principle of that exception this, that they were never affixed to
the freehold at all, or was it that, although affixed to the freehold, there was an excep-
tion to the right of removal ? Was this exception with respect to trade fixtures an
exceptisn to the general rule, that they are affixed to the freehold which depends on
the nature of the annexation ; or was it an exception to the rule that they were inca-
pable of removal duiing the terra ? If they were affixed to the freehold substantially, it
was not an exception to that portion of the rule, but an exception in favor of trade
fixtures to the rule that the tenant could not remove them, and they still remained
affixed to the freehold ; they were still fixtures affixed to the freehold, and, unless
removed, would go to the landlord. Now, if the exception was an exception to the
affixing to the freehold, to their becoming part of the freehold, one is utterly at a loss
to comprehend, if they are trade fixtures, why, if they are not removed during the
term, they go to the landlord. Why should they go to the landlord, except because
tliey are annexed to his freehold, and have not been removed ? Why should they ? I
confess I am utterly at a loss to know, except that a suggestion has been made — I do
not mean for the first time — but a suggestion has been made that after the term it
would be a, trespass to go on the premises to remove .the fixtures belonging to the
tenant ; the tenant has no longer a right to go on the premises. It would be a tres-
pass on his part to go and get his fixtures ; and therefore we consider — for this is the
suggestion — that inasmuch as though he had the right to remove them, he has not
removed them : he meant to abandon them, and make them a present to the landlord.
I must say, anything more unsatisfactory to my mind than that I can hardly imagine.
684 WEETON V. WOODCOCK.
WEETON V. WOODCOCK.
Exchequer. 1840.
[Reported 7 M. <t W. \i.]
Teover for a steam-engine boiler. Pleas, 1st, not guiltj' ; 2dlj-,
that the plaintiffs were not possessed as of their own propertj' : on
which issues were joined. At the trial before Erskine, J., at the last
Liverpool Assizes, it appeared that the defendants were the assignees
of one J. F. Taylor, a bankrupt. The plaintiffs, together with one
Philip Newton (since deceased), had demised to Taj-lor, hj indenture,
a cotton factory, with the warehouse, counting-house, engine, and
engine-house, &c., &c., implements, tackle, furniture, and machinery.
Clearly, to my mind, the exception was not an exception to the annexation to the free-
hold to their being fixed to the freehold ; but the exception in favor of trade was,
that they are capable of being removed by the tenant within the term. It appears to
me that that is the principle of the exception. Some cases have been referred to with
reference to the language of the judges ; and, no doubt, it may, upon a somewhat
hypercritical examination, be considered as rather tending to be an exception as to
fixtures affixed to the freehold ; but I have examined the language of all the cases, and
it appears to me that it would be unreasonable and unfair to those very judges to say
that that was in their mind. The question was not in their minds at the moment
whether the exception was an exception in favor of trade fixtures so as to make them
not affixed to the freehold, or an exception as to the right of removal. The question
in their minds was, are these fixtures affixed, and, if affixed, are they trade fixtures ;
and if they are trade fixtures, are they not capable of being removed during the term ?
. . . Now I made the observation that I was at a loss to understand upon what sensi-
ble principle, if a tenant does not move his trade fixtures within the term, they go to
the landlord. It has been suggested, as I have already observed, that the tenant must
be supposed to have meant to make the landlord a present of them. As I have said,
that is not satisfactory to my mind. I think they go to the landlord tor this ]-eason,
because they are affixed to the freehold, and are not removed within the term ; other-
wise, supposing that besides the fixtures there was a vast number of utensils not affixed
to the freehold at all, — the utensils of a brewery, for example ; I cannot enumerate the
various articles that would be used in one species of manufactory or another, but, of
course, in every manufactory, besides the fixed machinery, there must be a vast quan-
tity of loose machinery, mere chattels, never fixed to the freehold, and of course not
forming part of the freehold. Supposing that the tenant should have omitted, through
inadvertence or accident, at the expiration of the term to remove all those loose fixtures,
do those go to the landlord ? and why not ? Why should not the same observation be
made ou his not removing them during the term ? It must be assumed that he meant
to make the landlord a present of them. Then the house, utensils and articles remain
the property of the tenant : and why do not the others remain his property ? Why
does not the same piinciple apply to these ? It appears to me that, as to one, it con-
sists of chattels which are not affixed to the freehold, and with regard to the other,
they cease to be chattels as long as they remain affixed to the freehold, and they become
part of the freehold ; and the only exception is, not to their being affixed to the free-
hold, or to others being part of that freehold, but as to the right of removal which in
favor of trade is given to the tenant." Per Kindek-sley, V. C, in Gihson v. Ham-
mersmith R. Co., 3-i L. J. (N. S.) Ch. 337.
WEETON V. WOODCOCK. 685
the property of the plaintiffs and Newton, to the said factorj' and
steam-engine belonging,- and therewith used and enjoyed, &c., &c., for
a term of seven years from the 12th of May, 1836. The lease con-
tained covenants by Taylor to keep the premises in repair, to keep up
a good steam-engine, with a boiler of beaten iron of certain dimen-
sions, and at the end or sooner determination of the term, to leave and
deliver up possession of the premises, and all the things therein, in
good repair, or to pay the lessors the value of such as were not so left ;
with a proviso for re-entry in case of the bankruptcy of Taylor, and a
flat issuing thereon, or upon non-performance of any of the covenants.
The steam-engine boiler in question was set up by Taj-lor during his
tenancy, and annexed to the engine. It was built round with brick,
and firmly fixed to the floor and walls of the engine-house ; being,
according to the statement of the witnesses, more firmly annexed than
it was usual at a subsequent period to annex such boilers. In April,
1838, Taylor committed an act of bankruptcy, and on the 16th of that
month a fiat in bankruptcy issued against him, under which the defend-
ants were appointed assignees, and took possession of the bankrupt's
property. A breach of the covenant to repair had been committed
pi'eviously to the issuing of the fiat; and on tlie 30th of May, 1838, the
plaintiffs made an entrj- on the premises, in order to enforce the for-
feiture. The assignees, however, retained possession, and about the
20th of June following sold the boiler, and it was subsequently removed
from the premises. It was contended for the plaintiffs, first, that they
were entitled to recover under the covenant, to keep up the engine and
boiler, and to leave them on the premises at the determination of the
term ; and further, that independently of the language of this partic-
ular covenant, thej' were entitled to the boiler as being a fixture, and
not having been removed during the term. The learned judge left it
to the jur^- to say whether the boiler was a fixture ; and if so, whether
it had been disannexed within a reasonable time after the entrj' of the
plaintiffs. The jur}- found it to be a fixture, and that it had not been
disannexed within such reasonable time ; and a verdict was entered
for the plaintiffs for £87, leave being reserved to the defendants to enter
a nonsuit, if the court should be of opinion that the plaintiffs were not
entitled under the covenant, and that the defendants, as assignees of
the lessee, had a right to remove the boiler so long as they remained in
possession.
In Michaelmas Term, Wightman obtained a rule accordingly;
against .which, in Easter Term,
Cowling {Cresswell with him), showed cause.
Wightman and Crompton, contr^.
Alderson, B. In this case we took time to consider whether the
assignees of the bankrupt had, under the circumstances, proved the
right of removing the tenant's boiler, which was a fixture. It appeared
that the landlord had made, on the 30th of Maj-, 1838, an entry to
avoid the lease after a forfeiture committed, and that subsequently to
686 FISHER V. BIXON.
that entry, though not (as the jury have expressl}- found) within a
reasonable time after it, the assignees, still continuing in possession,
removed and sold the boiler in question. The point is, whether the}-
had the right so to do.
The rule to be collected from the several cases decided on this
subject seems to be this, that the tenant's right to remove fixtures
continues daring his original term, and during such further period of
possession by him, as he holds the premises under a right still to con-
sider himself as tenant. That was the rule on which this court acted
in Minshall v. Lloyd, 2 M. & W. 460, in which Mr. Baron Parke, in
giving his judgment, puts it on the ground that there was " no doubt
that in that case the steam-engines were left affixed to the freehold
after the expiration of the term, and after the plaintiffs had any right
to consider themselves tenants." In the present case, also, this boiler
was removed after the entry for a forfeiture, and at a time after the
assignees had ceased to have any right to consider themselves as ten-
ants. And further, even if they had the right, in a case where the
entr^- determining the tenancj- is the act of a third person, to consider
themselves entitled to a reasonable time for removing the fixture, the
jurj- have found that they did not avail thems^ves of that privilege.
The rule, therefore, for a nonsuit must be discharged.
Rule discharged}
FISHER V. DIXON.
House of Lords. 1845.
[Eepm-ted 12 CI. <b F. 312.]
This was an appeal against a decree of the Court of Session, arising
out of the following circumstances : —
The late John Dixon was an extensive coal and iron mine owner, and
was at the time of his death engaged in working mines, some of which
were his freehold property, having been purchased by himself, while of
the rest he was tenant under leases for various terms. A very valuable
portion of his property consisted of engines employed in the business he
carried on. By his will and codicils he made a provision for his daugh-
ter of a sura of £4,000, which he vested in trustees, and directed to be
applied to her sole benefit, independently of any control or right of her
husband. Upon his death she declined the provision made for her in
her father's will, and claimed kffitim, or child's portion, in his property.
To enforce this claim she institute'd a suit in the Court of Session (in
which her husband joined for conformity's sake) against her brothers,
who were the executors under her father's will, and the general dis-
1 See Deeile v. M' Mullen, 8 Jr. C. L. 355; Pugh v. Arto7i, L. R. 8 Eq. 626 ; Sx
parte Brook, 10 Ch. Div. 100.
FISHER V. DIXON. 687
ponees of his property. The respondent, one of those brothers, had
become, b\' the death of the other, sole heir-at-law to his father. In
this suit she alleged that the share of her father's personal propert}-,
to which she was entitled as legitim, amounted to £12,000. The re-
spondent in his defence declared his readiness to account for the per-
sonal or executory effects of his late father, in order that the appellant's
share therein might be ascertained, but insisted that these executory ef-
fects did not include either the heritage left by the deceased or such
machinery or other articles as were /undo annexa. The appellant put
in pleas in law, insisting that, —
" The trade or employment of manufacturing iron or lime, and of
digging coals to be used in these manufactories, or for sale, or in other
words, the trade of a coal-master, or iron-master, or lime-worker, is of
a personal nature, and all instruments, engines, and utensils, whether
fixed or loose, which are necessary and subservient to such a trade, are
legally to be held and treated as personal or movable effects or person-
alty ; that instruments, engines, and utensils, which, taken either in part
or in gross, are movable before thej- are placed in a particular spot, do
not lose their movable or personal character, though affixed to an heri-
table subject, unless they be so affixed perpetui usus gratia, in contra-
distinction to trade, such as the windows of a mansion-house ; and that
the fund out of which legitim is pa3-able consists of the whole movable
or personal estate, as before described, that belonged to the deceased
Mr. Dixon."
The Lord Ordinary, before whom the cause was appointed to be
heard, referred it to an officer of the court, with instructions for him to
report as to the nature and amount of the deceased's property. The
referee reported that the engines, colliery utensils, and rails were
claimed by the defenders as heritable property, but that he considered
it doubtful whether some of these articles came under that description,
and he therefore made a list of those which he deemed to be of a doubt-
ful or disputable nature. The Lord Ordinary, not being satisfied with
this report, remitted the cause to Mr. Smith, of Deanston, as a scien-
tific person, to report exactlj' on the facts as to each part of the ma-
chinerj-, the nature of which was in dispute. Mr. Smith made his
report, in the course of which he described all the machinery as capable
of being moved and replaced, but said that the removal would be very
expensive ; that it would more or less deteriorate the value of the ma-
chinery ; that for that reason machinerj- was often left by the tenant,
and its value made a matter of arrangement between him and the land-
lord ; and that some parts — such as the steam-engine for pumping the
mines — must, if removed, be instantly replaced, or very serious dam-
age would arise to the mines ; that the articles which were movable
were all of them more or less essential to the going of the diflferent
works, though, if taken away, they could be readily supplied ; that it
was usual to have spare articles of most of the classes described about
well-regulated works, these articles being equally valuable if taken
688 FISHER V. DIXON.
to any other work where thej' were wanted. He also referred to the
practice of the country-, and said, " that the practice at coal and iron-
works similar to those of the deceased is to remove the mechanism of
the engine and other machinerj' from one part of the premises to an-
other as occasion may require. . . . The practice is for the tenant
at the termination of his lease to remove the whole of such engines and
machinery, if not previously belonging to the landlord. . . . And in
the event of the exhaustion of the mineral field, or anj- permanent bar
arising to the profitable working of the minerals, the whole of the en-
gines and machinery is removed bj- the tenant or worker of the field, or
by the proprietor (if his property-) , and the general premises disman-
tled as far as it may be profitable to do so." Mr. Smith made out a
list of the various articles, to which he attached the character of
heritable or of movable.
The case was further debated before the Lord Ordinarj', and the ap-
pellant then put in accounts, made up from time to time b}' the testator,
to show the state of his affairs ; and likewise inventories of purchases
by himself, or bj' himself in conjunction with others, in all of which
papers the lands and the leases of them were described as " heritable,"
and the steam-engines and the. rails laid down were described as " mov-
able propertj'." It was also submitted on behalf of the appellant, as a
proposition of law, that the principle that annexation to land converts
that which is itself movable into a fixture could not be applied to arti-
cles used in trade and to the fittings up of collieries.
TJhe respondent, in answer to the argument, attempted thus to be
drawn from the manner in which the testator had in his accounts treated
the steam-engines and rails, proved that in those same accounts houses
were likewise included under his arrangement of " movable propertj-,"
from which he insisted that the deceased's mode of expressing himself
in these papers was no indication of his deliberate intention, and could
have no effect upon the case.
The Lord Ordinary, thinking the point raised in the case to be one
of difficult}', referred it to the Lords of the second division, and their
Lordships determined to consult the Lords of the first division and the
permanent Lords Ordinarj'. Cases were therefore prepared for their
opinions, and the great majoritj- of their Lordships finallj- expressed an
opinion to the effect that the machinerj- which was fixed to the soil, and
could not be used without being so fixed, and which were necessarilj' so
fixed for the purpose of the profitable use of the land, were heritable ;
but that the tools employed in the machinerj', but not necessarilj' affixed
thereto, and capable of being employed elsewhere in the same manner,
and parts of machinery prepared for fixing, but not actually affixed,
were movable. See 5 Bell, M., D. & Y., p. 775.
Mr. Turner and Mr. /Sandford, for the appellant.
The Lord Advocate and Mr. KeUy, for the respondents.
Lord Cottenham.' I concur in the opinion that this interlocutor
' The speeches of Lords Brougham and Campbell are omitted.
FISHER V. DIXON. 689
ought to be affirmed ; and when we separate and distinguish the real
case from some of the points which have been endeavored to be intro-
duced into it bj' way of argument, it does appear to nie to be free from
all doubt. The point which has been already alluded to — namely, that
this is not a case between the real and personal representative, but that
it is a case between two kinds of heirs — appears to me to be totally
destitute of foundation. Lerjitim can only be claimed by means of
showing it to be personal estate. The preliminary question is, there-
fore, Is this personal estate, or is it property attachable to the freehold,
and therefore descendible to the heir? The moment we see that the
legitim can only be claimed in consequence of the property being part
of the personal estate, the question, of course, assumes its natural shape,
Is it personal estate, or not? That preliminary question, therefore,
being decided, it entirely disposes of the ground on which this has
been attempted to be distinguished from the other cases which have
arisen with respect to the claims of heirs, and those who are inter-
ested in the personalty. The principal stress of the argument on the
side of the appellant has been, that this is to be protected, because it is
necessarj' for the encouragement of trade that this property should be
considered as not belonging to the real estate, but as belonging to the
personal estate. The principle upon which a departure has been made
from the old rule of law in favor of trade appears to me to have no ap-
plication to the present case. The individual who erected the machin-
ery was the owner of the land and of the personal property, which he
erected and emploj'ed in carrying on the works ; he might have done
what he liked with it ; he might have disposed of the land ; he might
have disposed of the machineiy ; he might have separated them again.
It was, therefore, not at all necessary, in order to encourage him to
erect those new works which are supposed to be beneficial to the public,
that any rule of that kind should be established, because he was mas-
ter of his own land. It was quite unnecessary, therefore, to seek to
establish any such rule in favor of trade as applicable here, the whole
being entirely under the control of the person who erected this
machinery.
If, therefore, this be clearl3' a question of real or personal estate, and
if the rule, which in some cases has been acted upon, of making a de-
parture from the established principle in favor of trade, has no appli-
cation to the present case, what does it come to? Of course we throw
out of consideration all the cases which have arisen between landlord
and tenant, and between tenant for life and remainder-man, because the
departure which has taken place there, in some cases, has no applica-
tion to the present case. Then the case being simply this, the absolute
owner of the land, for the purpose of better using that land, having
erected upon and affixed to the freehold, and used, for the purpose of
the beneficial enjoyment of the real propert}-, certain machinery, the
question is, Is there any authority for saying, that, under these circum-
stances, the personal representative has a right to step in and lay bare
41
690 FISHEE V. DIXON.
the land, and to take away all the machinery necessary for the enjoj--
ment of the land ? Let us consider for a moment, if that is the princi-
ple, to what extent is it to go. It is put by Lord Cockburn (and a very
strong illustration it is) , if the owner of the land should dig a well, and
erect machinery for the purpose of using that well, is it competent to
the personal representative to come and take away that machinery, and
leave the well useless? He thinks it is not. Where is the distinction
between the two cases? Such machinery is capable of being taken
away with very little, if anj', damage to the land. Although, there-
fore, machinery is in its nature, generally-, personal property, yet, with
regard to machinerj-, or a manufactory- erected upon the freehold for
the enjoyment of the freehold, nobody- can suppose that that can be the
rule of law ; and so with respect to other erections upon land. It is
not necessary to go beyond the present ease, which is a case of machin-
ery erected for the better enjoyment of the land itself. The principle,
probably, would go a great deal further ; but it is more advisable to
confine the observations I have to make to the particular circ^umstances
of this case. There is no case whatever which has been cited in which
that doctrine has been recognized, except the one which has been re-
ferred to (the Cider-mill Case), as to which we really know nothing,
except that at the Worcester Assizes, a good many years ago, a cider-
mill was held to belong to the personal estate. Why it was so held, un-
der what circumstances, and whether it was a cider-mill fixed to the
freehold or not, we do not know. We know nothing, except that this
machine, called a cider-mill, was decided to go to the personal represen-
tative. It is impossible to extract a rule of law from a case of which we
know so little as that. And, with that exception, there is a uniform
course of decisions, wherever the matter has been discussed, in favor of
the right of the heir to machinery erected, under the circumstances, in
the present case ; and if the corpus of the machinery is to be held to
belong to the heir, it is hardlj' necessarj' to sa}", that we must hold that
all that belongs to that machiner3', although more or less capable of be-
ing used in a detached state from it ; still, if it belongs to the machinery,
and belongs to the corpus, the article, whatever it maj' be, must neces-
sarily follow the same principle, and remain attached to the freehold.
I do not go into the detail of the particular items which have been ob-
jected to. I have looked them through, and quite concur with my noble
and learned friend, that if anj' exception were to be taken with respect
to particular articles, as to whether they ought to be adjudged to one or
to the other, it would have been for the respondent, and not for the
appellant, to take such exception.
The interlocutor was affirmed, with costs.^
I See Bain v. Brand, 1 Ap. Cas. 762.
"WHITEHEAD V. BENNETT. 691
WHITEHEAD v. BENNETT.
Chancery. 1858.
[Reported 27 L. J. Ch. 474.]
This suit was instituted for the administration of the estate of W.
Barker. A portion of the property consisted of certain plots of land
near Manchester, upon which there was a building that had been used
as a lunatic asjium. The receiver who had bfeen appointed by the
court, entered into an agreement, dated the 19th of September, 1852,
with W. Ireland, whereby it was agreed that a lease of the buildings
and premises should be granted to W. Ireland for the term of twenty-
one years, at a rent of £42 per annum, with a covenant on the part of
the said W. Ireland to repair the premises. Under this agreement
Ireland took possession of the premises, and converted the building
thereon into a cotton-mill, and he also erected on the land a bleaching-
house, a drying-stove, a dj-e-house, an engine-house, and a lime-house,
and also a building erected upon cross beams, resting upon two walls
and forming a passage. A dispute afterwards arose as to the terms of
the lease, and the lessee claimed a right to remove the buildings which
he had erected, on the ground that they were trade fixtures, used for
the purpose of his business. An injunction was obtained to restrain
the removal of the buildings ; and upon a reference to chambers, evi-
dence was obtained as to the nature of the buildings, and from the
report of a gentleman competent in such matters, who had been sent
down by the court to examine the premises, it appeai-ed that the various
buildings erected by the lessee were made of brick, with brick founda-
tions let into the soil to the depth of from five inches to five feet. The
question now came on upon an adjournment from chambers, as to the
right of the tenant to remove the buildings.
Mr. Eddis., appeared for W. Ireland, the tenant.
Mr. J^arslake, for the trustees ; and
Mr. JBazalgette, for other parties in the suit.
KiNDERSLEY, V. C. My opiuiou is, that these are not trade buildings,
removable at the pleasure of the tradesman. It is extremely difficult to
come to a conclusion upon the authorities as to any principle which can
be safely enunciated. I have carefully considered the subject as to the
possibility of deducing anj' rule from the cases cited, but have been
unable to do so. Still there are, no doubt, general principles upon
which these cases are founded. In the first place, the question has
arisen between the executor and the heir ; and, secondly, between the
tenant for life and the remainderman ; and, lastly, between the land-
lord and tenant. Again, there have been different views taken by the
court with reference to agricultural buildings, trade buildings, and the
ordinary fixtures which a tenant puts in for his own convenience. In
692 WHITEHEAD V. BENNETT.
this case the most favorable instance arises, namelj-, the right of
removal as between landlord and tenant ; and, moreover, the things
sought to be removed are of the most favorable character, as being
trade fixtures in the sense that they are buildings erected for the exclu-
sive purposes of trade. With respect to anj-thing in the nature of
maehinerj', engines, or plant, or things substantial and solid, such as
vats, utensils, &c., these are all clearly within the right of removal as
between landlord and tenant. In all these cases, the things sought to
be removed might either be taken awaj' bodil}-, where thej- are capable
of being set up again elsewhere, or if, b\' reason of their bulk or com-
plexity, it should be necessary to take them to pieces, they could be
put together in the same form in some other place. There is no dis-
pute about the right of the tenant to remove such fixtures when they
retain the general character of trade fixtures. Take the case, for in-
stance, of a large steam-engine, which it is impossible to remove in its
integral condition, yet the right of removal will apph' to such an article,
notwithstanding that j'ou must take it to pieces. It certamly may be
metaphysically argued from this, that a building of the most substantial
and solid character, let ten feet into the ground, with cement, is capa-
ble of removal, brick by brick, and of being put together in another
place in the same form ; but the common-sense of mankind would
determine that an engine is a very different thing from a house, al-
though every stone, brick, tile, and chimney-pot might be removed ;
one, however, is the case of removal of materials, and the other of tak-
ing to pieces and restoring to their former state, actual portions of the
engine. It would be impossible to admit the validitj^ of such an argu-
ment without laying down a rule never intended to be enunciated, and
which would alter the broad distinction between trade fixtures and
buildings used in trade. Suppose the case of a building or utensil
which, bj- the rule of law, a tenant might remove as a trade fixture, if
there is anj'thing which is a mere accessorj' or adjunct to it, and has no
other existence or purpose, then if you maj' remove the principal thing,
j'ou may also remove the accessor}-. Among the many cases upon this
subject, there is not one which has determined that even in the most
faA'orable circumstance of landlord and tenant, a tenant has a right to
remove any building which he has erected, merely because it is used
only for the purpose of trade ; and if the argument used in this case is
allowed to prevail, it can only do so in such a manner as maj- be fol-
lowed up to its legitimate consequences, and it would be laj-ing down a
rule that whatever a tradesman erected, however substantial, and how-
ever firmly let into the freehold, yet if the identity is preserved, the
tenant might remove it. Such a rule is established nowhere. Not
onlj" is there no such decision, but there is not even a dictum that can
bear any such construction. The strongest authority is the case of
Shoes x.Maw, which was a case of agricultural fixtures, and certainly
in that case there are dicta which appear distinct at first sight, and if it
could be found that Lord Ellenborough ever laid down such a rule of
LOAN AND DISCOUNT COMPANY V. DRAKE. 693
law as that which has been contended for in this case on behalf of Mr.
Ireland, I should gladly have followed it ; but I can find no such deci-
sion. It is evident that those dicta refer only to the particular case in
question. Assuming, then, that these buildings were erected solelj' for
the purposes of trade, has the tenant a right to remove them? and are
they capable of removal? There is no law, practice, or authority, hav-
ing regard to the nature of these buildings, to justify- the court in saj'-
ing that thej' come within the description of trade fixtures so as to
bring them within the cases cited. If they are to be so considered, it
would be laying down a very alarming rule, not only generallj-, but
particularly with respect to that district of the North of England, in
Lancashire and Yorkshire, where the most valuable structures, involv-
ing enormous expense, and constituting the whole value of the land,
are built for the sole purpose of trade. No doubt great favor has been
shown, and should always be shown, towards trade, and the modern
cases have relaxed the rigor of the old authorities in this respect ; but
some limit must be put to this indulgence, and the cases seem to me to
have gone quite as far as they ought to go. The question, then, turns
upon the nature of these particular buildings. With respect to that
which is erected upon the walls forming a passage, it is incapable of
being removed in an integral condition, and the same observation
applies to the engine-house, although it may in some sense be called an
accessor}- to the engine. But it is not a mere shed ; on the contrary,
it is a brick building, let into the soil. Take the common case of those
gigantic buildings which are raised story after story, fitted with spin-
ning-jennies, drums, wheels, &c., which can only be used in such a
building. It is clear, ex concessis, that you might remove the machi-
nery, or the engine, however large, which is usually in the lower portion,
and which works the whole machinery ; but if the argument as to acces-
sories were carried out, you might allow the entire building to be re-
moved, and it is impossible to see where such a doctrine would stop.
The present case is precisely the same on a smaller scale ; and with
respect to all and each of these buildings, my opinion is, that they can-
not be brought within the proper legal definition of trade fixtures,
removable by the tenant.
LONDON LOAN AND DISCOUNT COMPANY v. DRAKE.
Common Pleas. 1859.
[Reported 6 C. B. {N. S.) 798,]
The first count of the declaration was trover for goods ; the second
was for wrongfully depriving the plaintiffs of the use and possession of
divers goods and fixtures of the plaintiff's in and affixed and fastened
to a certain dwelling-house and premises in St. Mary Axe ; and the
third was for seizing and taking certain goods and fixtures of the plain-
69i LOAN AND DISCOUNT COMPANY V. DRAKE.
tiffs in and affixed and fastened to the said house and premises in the
said second count mentioned.
The defendant pleaded not guiltj-, and a traverse that the several
goods and fixtures in the several counts mentioned were the goods and
fixtures of the plaintiffs. Issue thereon.
The cause was tried before Crowder, J., at the sittings in London
after last Trinity Term, when the following facts appeared in evidence :
One Robinson, who was tenant of the premises in question (an eating-
house in St. Mary Axe) under a lease, of which seven years were unex-
pired, on the 4th of September, 1857, borrowed a sum of monej' of the
plaintiffs, giving them by way of collateral security a bill of sale upon
all his furniture and effects upon the premises, including certain tenant's
fixtures. The bill of sale contained an absolute assignment of all the
goods and effects therein comprised, subject to a proviso making the
same void if Robinson should repaj* the monej' borrowed by certain
instalments ; and also an agreement, that, in case default should be
made in paj-ment of the money, or if, amongst other things, the said
goods and effects should be distrained for rent, it should be lawful for
the plaintiffs to enter into and upon the premises, or wherever else the
said goods and effects should be, and to receive and take into their
possession and thenceforth to hold to the same, &c. Default having
been made by Robinson, the plaintiffs, bj- one Priest, on the 30th of
March, 1858, entered upon the premises for the purpose of making a
seizure, but found that the landlord had already distrained for arrears
of rent, and that his broker was in possession. Priest, however,
claiming the fixtures, left a man also in possession ; but the fixtures
were not severed.
On the 8th of March, 1858, Robinson had given his landlord an
authority to distrain the fixtures ; and on the 6th of April he made a
formal surrender of the terra to him. A fresh lease was afterwards
granted by the landlord to Drake, — the tenant's fixtures which had
formerly belonged to Robinson still remaining upon the premises
unsevered from the freehold. The plaintiffs made a formal demand of
the fixtures upon the defendant, who declined to give them up, saying
that he had purchased them from Robinson.
Upon these facts being proved, the learned judge directed a verdict
to be entered for the defendant, reserving leave to the plaintift's to
move to enter a verdict for them for £23 2s., if the court should be of
opinion that they were under the circumstances entitled to recover in
respect of the fixtures.
Atherton, Q. C, obtained a rule nisi.
Day showed cause.
J. Broion (with whom was Lush., Q. C), in support of the rule.
Williams, J. The question in this case is, whether, if a lessee
mortgages tenants' fixtures, and afterwards surrenders his lease, the
mortgagee has a right to enter and sever them.
The principles of law applicable to this point are well settled ; the
"WALMSLEY V. MILNE. 695
diflflculty lies in the application of them. It is fully established that the
right of the lessee to remove fixtures continues only during the term,
and during such further period of possession by him as he holds under
a right still to consider himself as tenant : and it is plain that the right
of his assignee can extend no further. On the other hand, it is laid
down, as to a surrender, in Co. Lit. 338 b, that, " having regard to
strangers who were not parties or privies thereto (lest b3- a voluntary
surrender thej- ma}' receive prejudice touching any right or interest they
had befoi'e the surrender) the estate surrendered hath in consideration
of law a continuance." This doctrine has been fully adopted and acted
on in modern cases, — as, in Pleasant v. JBenson, 14 East, 234; Doe
d. JBeadon v. Pyke, 5 M. & Selw. 146 ; Pike v. Eyre, 9 B. & C. 909,
4 M. & R. 661. And see Ex parte lientley, 2 M. D. & De Gex,
591.
The question is thus reduced to the inquirj' whether the mortgagee's
right to sever the fixtures from the freehold is a "right or interest"
within the meaning of this rule of law. And we are of opinion that it
is. Certainly it is an interest of a peculiar nature, in many respects
rather partaking of the character of a chattel than of an interest in
real estate. But we think that it is so far connected with the land that
it maj- be considered a right or interest in it, which if the tenant grants
away, he shall not be allowed to defeat his grant by a subsequent
voluntary' act of surrender.
We are, therefore, of opinion that the plaintiffs may maintain an
action against the defendant for preventing them from exercising their
right to sever, and may in such action recover the value of the fixtures
as severed. Mule absolute}
WALMSLEY v. MILNE.
Common Pleas. 1859.
[Reported 7 C. B. {N. S.) 115.]
Crowder, J.^ This was an action by the assignees of a bankrupt, to
recover from the defendant certain articles alleged to be part of the
bankrupt's estate. It was tried before my Brother Byles at the last
Spring Assizes at Liverpool, when a verdict was found for the plaintifl',
with liberty to move to enter a verdict for the defendant.
The facts were these : Moore, the bankrupt, being the owner of a
vacant plot of ground, in 1853 mortgaged it in fee to one Oswald, who,
in August, 1858, sold to the defendant the mortgaged premises.
Moore became bankrupt in September, 1858. Subsequently to the
mortgage, and before the sale in 1858, Moore, who had always con-
tinued in possession, erected various buildings upon the plot of ground,
1 See Saint v. Pilley, L. R. 10 Ex. 137.
2 The opinion gives the facts sufficiently.
696 WALMSLBY V. MILNE.
and set up all the articles sought to be recovered in this action. They
consisted of a steam-engine and boiler used for the purpose of suppl3--
ing with sea-water the baths which had been erected on the premises ;
also a hay-cutter and malt-mill or corn-crusher, and grinding-stones, all
(except the grinding-stones) being screwed with bolts and nuts, or
otherwise firmly affixed to the several buildings to which they were
attached, but still in such a manner as to be removable without damage
to the buldings or to the things themselves. The upper mill-stone lay
in the usual way upon the lower grinding-stone. All these fixtures
were put up for the purposes of trade.
The rule was argued before my Brothers "Willes and Bjles, and myself ;
and, in the course of the argument, a great man}' cases were cited, which
we desired time to consider before delivering our judgment.
On the part of the plaintiffs it was contended, first, that the articles
in question were not fixtures at all, because not permanentl}' attached
to the freehold, but simplj- movable chattels, which therefore passed to
the assignees of the bankrupt ; or, secondl}-, that, if fixtures, they were
trade fixtures, and therefore removable by the bankrupt, and so would
pass to his assignees.
The case o? Hellawell v. Eastwood, 6 Exch. 295, was cited in sup-
port of the first proposition. There, cotton-spinning machines called
mules had been distrained for rent ; and the question was as to the va-
lidity of the distress. It appeared that these mules were fixed by means
of screws, some into the wooden floor, some into lead which had been
poured in a melted state into holes in stone for the purpose of receiving
the screws : and it was considered by the Court of Exchequer as a
question of fact whether the machines so fixed were parcel of the free-
hold. It was said, that, whether a chattel attached to the soil was a
fixture was always a question of fact, depending upon the circumstances
of each case, and principallj' on two considerations, — first, the mode
of annexation to the soil or fabric of the building, and whether it could
be easily removed, without injiny to itself or the building ; and, sec-
ondly, the object of the annexation, whether for the permanent and
substantial improvement of the dwelling, or merely for a temporary
purpose, and the more complete enjoyment and use of it as a chattel.
The judgment of the court proceeded upon both considerations. They
said that the mules never became part of the freehold, as the}' were
onlj' attached slightly, and could be easih* remo-s'ed without any damage ;
" and the object and purpose of the annexation was not to improve the
inheritance, but merelj' to render the machinery steadier and moi'e
capable of convenient use as chattels."
Now, without expressing an}' opinion upon that case, it is sufficient
on the present occasion to observe, that, assuming it to be well decided,
it is no authority for holding that the disputed articles in the case at bar
are not fixtures forming part of the freehold ; for, we are of opinion, as
a matter of fact, that they were all firmly annexed to the freehold for
the purpose of improving the inheritance, and not for any temporary
WALMSLEY V. MILNE. 697
purpose. The bankrupt was the real owner of the premises, subject
only to a mortgage, which vested the legal title in the mortgagee until
the repaj-ment of the money borrowed. The mortgagor first erected
baths, stables, and a coach-house, and other buildings, and then sup-
plied them with the fixtures in question for their permanent improve-
ment. As to the steam-engine and boiler, they were necessary for the
use of the baths. The hay-cutter was fixed into a building adjoining
the stable, as an important adjunct to it, and to improve its usefulness
as a stable. The malt-mill and grinding-stones were also permanent
erections, intended by the owner to add to the value of the premises.
Thej", therefore, resemble in no particular (except being fixed to the
building by screws) the " mules " put up by the tenant in the ease of
Hellawell v. Eastwood.
But, secondlj-, it was contended on the part of the plaiutifls, that,
assuming the articles in question to have been so affixed as not to be
removable according to the general rule of law, yet that, as thej' were
trade fixtures, they might be removed, and so would pass to the bank-
rupt's assignees.
The whole of the plaintiffs' argument upon this head was founded upon
the well-established exception to the general rule, that, where a tenant
puts up fixtures for the purpose of trade during his term, he may before
its expiration, without the consent of his landlord, disunite them from the
freehold. The defendant's counsel were quite ready to admit the validity
of the numerous authorities supporting that proposition, and to concede
to the plaintiff, that, if the bankrupt had been tenant to the mortgagee
for a term, and the bankruptcy had happened before its expiration, the
fixtures in question were such as would have passed to the assignees.
But they denied that any such tendencj' existed in the present case.
And this leads us to the consideration of the peculiar relationship ex-
isting between a mortgagor in possession and the mortgagee, — which
it is really difficult to express in any other legal terms. A mortgagor
in possession has been called sometimes a tenant at will to the mortga-
gee, or a tenant at sufferance, or like a tenant at will : but he has never
been designated as tenant for any term. Lord Ellenborough, in Thun-
der d. Weaver v. Belcher, 3 East, 449, called him a tenant at suffer-
ance ; and Lord Tenterden, in Doe d. Rohey v. Maisey, 8 B. & C. 767,
3 M. & R. 107, said: " The mortgagor is not in the situation of tenant
at all, or, at all events, he is not more than tenant at sufferance ; but in
a peculiar character, and liable to be treated as tenant or as trespasser,
at the option of the mortgagee." He is clearly not a tenant at will,
because he may be ejected without any notice or demand of possession,
and IS not entitled to the growing crops.
All the eases, therefore, which show, that, where a tenant for years
has put up trade-fixtures, he may remove them before his tenancy ex-
pires, have no application to the case at bar. But, two cases of mort-
gagee and mortgagor in possession were cited by the plaintiffs' counsel
as strongly supporting their clients' title to the verdict. One was,
698 WALMSLEY V. MILNE.
Trappes v. JTarter, 2 C. & M. 177, decided by the Court of Exchequer,
in which Lord Lyndhurst delivered the judgment of the court ; and the
other was, Waterfall v. Penhigstone, 6 Ellis & B. 876, in which our
present Chief Justice, then Mr. Justice Erie, delivered the judgment of
the Court of Queen's Bench.
Trappes v. Barter was a decision in favor of the assignees of a
bankrupt mortgagor in possession, upon the ground that the mortgage
did not pass the fixtures in question, and was not intended by the par-
ties to pass them. The mortgage enumerated various fixtures, but did
not refer to the fixtures in dispute ; and this omission, together with
other circumstances in the case, induced the court to be of opinion that
they were intentionally omitted in the mortgage-deed, and therefore did
not pass b}' it. That case, then, " must be regarded as having been
decided on its own peculiar circumstances," as stated in the note ap-
pended to it, and cannot be taken as an autlioritj" to govern us in the
case before us. The other case, of Waterfall v. Peningstone, was also
that of a bankrupt mortgagor in possession and a mortgagee, where the
question was, whether the bill of sale of the fixed machiner}-, drawn in
the shape of a mortgage, required registration under the 17 & 18 Vict,
c. 36. This partly involved the consideration as to whether the fixtures
were to be deemed goods and chattels within that Act : and Sellawell
V. Eastwood was cited in the argument, and recognized as a valid
authority by the court. But the species of mortgage was of a peculiar
description. There had been a prior mortgage of the premises with the
fixtures then thereon. Afterwards, for a further consideration, a mort-
gage was made of the fixtures which had been subsequently annexed,
by themselves : and the court was of opinion that they did not pass by
the prior mortgage, "because the tenor of the instrument shows that
the parties did not so intend : " and they held that the separate mort-
gage of these fixtures was within the 17 & 18 Vict. c. 36, requiring the
deed to be registered ; and, for want of such registration, the}' decided
that the fixtures passed to the assignees. In the present case, how-
ever, there do not appear an}- circumstances tending to show an inten-
tion existing between Moore, the bankrupt, and his mortgagee, that
the fixtures annexed subsequently to the date of the mortgage should not
become part of the mortgaged estate : and, in the absence of such inten-
tion, the current of authorities in the Bankruptcy Court shows that such
an annexation of fixtures would inure to the benefit of the mortgagee.
In Ex parte Belcher, 4 Deac. «fe Ch. 705, which was decided in the
Court of Eeview, in 1835, it was held that fixtures annexed to the free-
hold after the mortgage by the mortgagor in possession, and which, as
between landlord and tenant, would have been removable if put up by
the tenant, became part of the freehold, and did not pass to the assig-
nees of the bankrupt mortgagor. The Chief Judge (afterwards Mr.
Justice Erskine) there says, after adverting to the relaxation of the
general rule of law in favor of trade- fixtures put up by the tenant;
" But that is not the present case. Again, it is said that the property
WALMSLEY V. MILNE. 699
in question did not pass by the mortgage-deed. Now, it always ap-
peared to me, that, wliere the owner of the inheritance affixes property
to it, it becomes a fixture in the general sense of the term, and part of
the freehold ; and, if the inheritance be afterwards sold or let, it goes
with the freehold : and I confess I see no distinction, for this purpose,
whether the deed be one of absolute conveyance, lease, or mortgage.
A mortgage, therefore, made by the owner of the inheritance, will,
witliout naming them, pass all the fixtures thereon." And, in another
part of his judgment, he says : " Again, it is urged, that, as to those
articles which were attached after the execution of the mortgage-deed,
they could not pass to the mortgagee. But there has not been cited
any authority, or even dictum, for such a proposition. I confess I
know no case which goes so far as to determine, or even to intimate an
opinion, that, where a mortgagor in possession alters the premises by
addition or otherwise, the mortgagee shall not take the benefit of such
alteration. I can find no distinction, therefore, substantially, between
those which were affixed before and those affixed after the date of the
mortgage-deed. In that point of view also, I am of opinion that all
the fixtures alike passed to the mortgagee." There is also a very
elaborate and learned judgment of Mr. Commissioner Holroyd, re-
ported in 2 Mont. D. & De G. 443 (1841), in which the whole subject
is full}' considered, and a similar opinion verj- clearly- expressed. To
the same purport are the decisions in the Court of Review : £Jx
parte Broaduiard, 1 Mont. D. & De G. 631 (1841) ; Ex parte Price,
2 Mont. D. & De G. 518 (1842) ; Ex parte Bentley, Ibid. 591 ; Ex
parte Cotton, Ibid. 725 ; and Ex parte Tagart, 1 De Gex, 351
(1847).
The eflfect of annexing fixtures of a similar character to those in the
present case by the owner of the inheritance, was much discussed in
the House of Lords, in the Scotch case o^ Fisher v. Dixon, 12 Clark
& Fin. 312. There, the question was considered as if arising between
the heir and executors : and Lords Brougham, Cottenham, and Camp-
bell delivered ver^' decisive opinions in favor of the heir. The subject-
matter of the annexation in that case was, steam-engines and machinery
for the purpose of working an iron mine. Lord Cottenham, after having
dismissed as wholly inapplicable the cases of landlord and tenant, says :
" Then, the case being simply this, the absolute owner of the land
having erected upon and affixed to the freehold, and used for the pur-
pose of the beneficial enjoyment of the real propertj', certain machinery',
the question is, Is there any authority for saying, that, under these
circumstances, the personal representative has a right to step in and
lay bare the land and take away all the machinery necessary for the
enjoyment of the land ?" He answers : " Although machinery is gen-
erally in its nature personal property, yet, with regard to machinery or
a manufactory erected upon the freehold for the enjoyment of the free-
hold, nobody can suppose that can be the rule of law : and so with
respect to other erections upon land. It is not necessary to go beyond
700 WALMSLEY V. MILNE.
the present case, which is a case of machiner}^ erected for the bettev
enjoj-ment of the land itself." In Mather v. Fraser, 2 Kay & J. 536,
wliich was a case of banlirupt mortgagor in possession decided bv Vici -
Chancellor Wood in 1856, Fisher v. Dixon was, amongst numerous
other cases, cited before the Vice-Chancellor. In giving judgment, the
Vice-Chancellor saj-s : "They (the mortgagors) conceived that the
most profitable purpose for which they could use the land would be
the business of copper-roller manufacturers. I apprehend, therefore,
that the case comes clearly within that of machinery affixed to land by
the owner of the land for the purpose of better and more beneficially
using and enjoying the land of which he is the owner ; and, although
the means of such use and enjoyment be manufacture or trade, still I
am of opinion that all such of the articles in question as are affixed to
the freehold, whether by screws, solder, or any other permanent means,
or \>y being let into the soil, are within the authoritj- of Fisher v.
Dixon, partake of the nature of the soil, and would have descended to
the heir along with and as part of the soil itself These later decisions
are in accordance with the earlier cases of Wynn v. Ingleby, 5 B. &
Aid. 625 ; Colegrave v. Dias Santos, 2 B. & C. 76 ; 3 T). & E. 255 ;
The King v. The Inhabitants of St. Dunstan's, 4 B. & C. 686 ; 7 D. &
E. 178, and Place v. Fagg, 4 M. & E. 277.
In Wgnn v. Ingleby, it was held, that certain articles, consisting of
set-pots, ovens, and ranges fixed up by the owner of a house, would go
to the heir and not to the executor, and could not therefore be seized nn-
Aqv a, fi. fa. against the owner. In Colegrave v. Dias Santos, in which
there was a question whether stoves, closets, shelves, brewing vessels,
locks, blinds, &c., passed to the purchaser of a house, upon a sale and
conveyance of the house, the court said that some of tlie articles, viz. the
stoves, cooking-coppers, mash-tubs, water-tubs, and blinds, might be re-
movable as between landlord and tenant, but would not belong to the ex-
ecutor, but to the heir, and were, as between those persons, parcel of the
freehold. In The King v. The Inhabitants of St. Dunstan's, Mr. Jus-
tice Bayley said that stoves, grates, and cupboards were parcel of the
freehold, and though the}- might be removed bj' a tenant during his term,
yet they would go to the heir, and not to the executor. And in Place v.
Fagg, the propertj- in question was the stones, tackling, and implements
necessary for the working of a mill. There had been a mortgage of the
mill ; and it was held, that, by that mortgage, the stones, tackling, and im-
plements necessarj- to the working of the mill passed to the mortgagee.
And we may observe here, in reference to a point made by one of
the learned counsel for the plaintiff, that at all events the verdict must
be for the plaintiff for the upper mill-stone, that Liford's Case, 1 1 Co.
Eep. 50, citing Wyston's Case, 14 H. 8, fo. 25 b, disposes of that
point. The law is correctly stated in Amos on Fixtures, p. 257, where,
in speaking of things constructively annexed to the freehold, he men-
tions a mill-stone, " which, though not annexed to the freehold, isj-et
essentially parcel of the mill."
EX PARTE ASTBUEY. 701
"We think, therefore, that, when the mortgagor (who was the real
owner of the inheritance), after the date of the mortgage, annexed the
fixtures in question for a permanent purpose, and for the better enjoy-
ment of his estate, he thereby made them part of the freehold which
had been vested by the mortgage-deed in the mortgagee ; and that,
consequently, the plaintiffs, who are assignees of the mortgagor, cannot
maintain the present action.
The verdict, therefore, must be entered for the defendant.
Jtule absolute}
James Wilde, Q. C , and Milward, for the plaintiffs.
Atherton, Q. C, and V. Williams, for the defendant.
EX PARTE ASTBURY.
Court of Appeal in Chancery. 1869.
[Reported L. B. 4 Ch. 630.]
This case came before the court on appeal from an order of Mr.
Registrar Tudor, acting for the Commissioner of the Birmingham
1 On a subsequent day it was intimated by tbe court that Mr. Justice Willes enter-
tained serious doubts as to whether the articles iu question were not chattels. — Rep.
In Hdl awell v. Eastwood, 6 Ex. 295 (1851), the question was whether "certain
cotton spinning-machines, called 'mules,' some of which were fixed by screws to the
wooden floor, and some by screws which had been sunk into holes in the stone flooring,
and secured by molten lead poured into them," were distrainable for rent. It was held
that they were distrainable. Parke, B., delivering the opinion of the court, said : " The
only question, therefore, is, whether the machines when fixed were parcel of the free-
hold ; and this is a question of fact, depending on the circumstances of each case, and
principally on two considerations ; first, the mode of annexation to the soil or fabric of
the house, and the extent to which it is united to them, whether it can easily be re-
moved, integre, salve, et commode, or not, without injury to itself or the fabric of the
building ; secondly, on the object and purpose of the annexation, whether it was for
the permanent and substantial improvement of the dwelling, in the language of the
Civil Law, perpetui iisus causa, or in that of the Year-Book, pour un profit del inherit-
ance (20 Hen, 7, 13), or merely for a temporary purpose, or the more complete enjoy-
ment and use of it as a chattel,
"Now, in considering this case, we cannot doubt that the machines never became a
part of the freehold. They were attached slightly, so as to be capable of removal
without the least injury to the fabric of the building or to themselves ; and the object
and purpose of the annexation was, not to improve the inheritance, but merely to ren-
der the machines steadier and more capable of convenient use as chattels. They were
never a part of the freehold, any more than a carpet would be which is attached to the
floor by nails for the purpose of keeping it stretched out, or curtains, looking-glasses,
liictures, and other matters of an ornamental nature, which have been slightly attached
to the walls of the dwelling as furniture, and which is probably the reason why they
and similar articles have been held, in different cases, to be removable. The machines
would have passed to the executor. (Per Lord Lyndhurst, C. B., Trappes v. Harter,
2 C. & M. 177.) They would not have passed by a conveyance or demise of the mill.
They never ceased to have the character of movable chattels, and were therefore liable
to the defendants' distress. The plain tifl"s rule is, therefore, discharged, and the
defendants' rule is absolute."
702 EX PARTE ASTBURY.
Court of Bankruptcj', made on a special case submitted for Iiis
decision.
It appeared from the special case that on the 28th of June, 1867, the
firm of Messrs. Job Eichards & Co., iron manufacturers at Smethwick,
which comprised the present bankrupts, Job Richards and Richard
Hill, and also T. and L. Jenkins, being at that time indebted to Lloyd's
Banking Company, Limited, deposited with them the lease of their
rolling mills at Smethwick, accompanied by a memorandum in the
following terms : —
"Memorandum. We, -the undersigned, Job Eichards, L. Jenkins,
Richard Hill, and Thomas Jenkins, trading together as iron-masters at
Smethwick, in the county of Stafford, under the style or firm of Job
Richards & Co., have this daj' deposited with Lloyd's Banking Com-
pany, Limited, the deed mentioned in the schedule hereunder written,
to be retained by the companj- by way of a continuing security to them
for paymenu on demand of all moneys and liabilities alreadj^ paid or
incurred, or which* the companj' maj- at anj' time advance, pay, or
incur to or for the said firm of Job Richards & Co., whether on current
account or by the discount of or otherwise in respect of bills of ex-
change, promissory notes, or other negotiable securities drawn, accepted,
or indorsed by the said firm, together with interest, commission, bank-
ing charges, law and other costs, charges, and expenses ; and for a
more effectual securitj- we undertake at our own expense, when re-
quired by the companj-, that we and all other necessarj' parties will
execute to the said companj-, or as thej' shall direct, a mortgage of all
our estate and interest in the said deed, which mortgage shall contain
a power of sale and all usual clauses."
The account was continued as an open account with the four partners
up to the month of August, 1867, when the partnership between the
bankrupts and Messrs. Jenkins was dissolved, and the bankrupts took
the assets and debts of the old firm, including a balance of upwards of
£10,000 due to Llojd's Banking Companj'.
On the 11th of January, 1868, the bankrupts executed to the bank-
ing company a legal mortgage of the mills ; and on the 18th of January
the banking company took possession under the mortgage. On the
30th of Januarj' a petition of bankruptcy was filed against them, and
they were declared bankrupts, and Messrs. Astburj-, Bloomer, and
Dickenson were appointed assignees.
The mortgage deed had a schedule annexed to it, containing a list of
certain chattels used in the rolling mills, which were the subject of the
present dispute between the assignees and the mortgagees. These
chattels consisted of a considerable number of iron rollers described as
finishing rolls, colting rolls, guide rolls, hard rolls, and bolting down
rolls ; and also four patent weighing niachines, and four straightening
plates.
It was admitted in the special case that the rolls and other chattels
comprised in the last-mentioned schedule were necessary to the carry-
EX PARTE ASTBUKY. 703
ing on of the bankrupts' business. If they had been removed, others
of a similar description must have been substituted.
The assignees contended that the mortgage security was void against
them so far as related to the duplicate rolls and other unfixed machin-
ery and chattels.
It was admitted in the argument that the mortgage deed of the 11th
of January, 1868, could not be supported against the assignees, by
reason of its having been made on the eve of bankruptcy ; but the
mortgagees claimed the chattels as fixtures attached to the iron mills,
under the equitable mortgage and deposit of the 28th of June, 1867.
The assignees admitted that one set of rolls passed with the machine to
the equitable mortgagees. Evidence was adduced before the registrar
as to the nature of the chattels, in which the following facts were
proved : —
The rolls were loose iron rollers, which were fitted into the rolling
machine. The machines, when made, were fitted with one set of rollers,
and others were ordered and supplied according to the work required,
different sized rolls being used for different descriptions of iron. When
the rolls first came from the manufacturer tliey had to be fitted to their
bearings in the machines by filing their ends, and when so fitted they
were grooved according to the size of the iron which they were intended
to roll. At the date of the equitable mortgage there were several dupli-
cate rolls which had been used or were ready for use, and others which
had been supplied by the manufacturers, but had never been fitted to
the machine.
There were four weighing machines, which were placed in holes dug
in the ground and faced with brickwork. The machines rested on the
brickwork at the bottom of the holes, the weighing plates being on a
level with the surface of the ground. It was stated in the evidence that
the machines might be removed without injuring tlie brickwork, and
that similar machines were often placed upon wheels instead of resting
on the ground.
The straightening plates were broad plates of iron for straightening
the bars of iron when taken out of the furnace. They were laid on
brickwork and bedded in the earth of the floor, and the rest of the
flooring was composed of iron plates, which fitted round them so as to
make an even surface.
The Registrar was of opinion that the rolls passed with the mills to
the mortgagees, as being part of the machinery ; from this decision the
assignees appealed. But he held that the weighing machines and
straightening plates did not pass ; and the mortgagees appealed from
this decision.
Mr. Jessel, Q. C, Mr. Little, Q. C, and Mr. Archibald Smith, for
the assignees, the appellants in the first appeal.
Mr. Fry, Q. C, and Mr. Finlay Knight, for the respondents, the
mortgagees.
Sir G. M. Giffakd, L. J. The questions in cases of this description
704 EX PARTE ASTBURY.
are, for the most part, much more questions of fact than of law, for to
mj- mind the law has been settled, but the facts necessarily difler more
or less in each particular case.
'With respect to the law, it is admitted that where there is a mort-
gage of a manufactor}-, and part of the machinery used in it is a fixture,
that part passes. We have, therefore, to determine what, according to
the law, are, in a proper sense, fixtures. There are two dicta which
will be sufficient to guide us for the present purpose. In Mather v.
Fraser it was decided that the article must be an essential part of the
machine. I think that was all that it was necessarj- to lay down in that
case. The dictum of Lord Cottenham in Fisher v. Dixon, 12 CI. & F.
812, was that all " belonging to the machine" would pass ; and I should
say in this case the proper test to laj- down would be that the chattel
must be " something which belongs to the machine as part of it."
Now, these machines were rolling machines, and there appear to be
connected with rolling machines parts which, beyond all doubt, are not
fixed, in the strict sense of the term ; but it is in evidence that if a
machine is ordered, it is sent with one set of rolls, and it is quite mani-
fest that without rolls the machine could not do any part of the work
for which it is made. One set of rolls clearly passes. But we have
here duplicate rolls, and with reference to them — I am not now speak-
ing of rolls which can be considered as, in anj' sense, unfinished, but of
duplicate rolls which have been actually fitted to the machine — I can-
not see why, if one set of rolls passes, the duplicate rolls should not
pass also. It comes, in fact, to this, that the machine with one set of
rolls is a perfect machine, but the machine with a duplicate set is a
more perfect machine. I think, therefore, that each set of rolls neces-
sarily' belongs to the machine as part of it. I do not think that this is
at all affected by the dictum of Fitzherbert ; but if it was, m}- answer
would be, that this subject has been considered much more of late
years than it was in olden times, and that the matter decided was with
regard to a question of distress. If it were desired to reduce the ques-
tion to an absurditj', it would be b^' supposing a case of duplicate latch
keys to a door, and holding that one onl}- should pass, and not the
other. The fact is, that whether there is one set of rolls or a duplicate
set, they are each part and parcel of the machine, and come within the
term " belonging to the machine as part of it."
Then comes the case as to the difl'erent sizes of rolls. But if the
duplicates of the same size pass, it follows that the rolls of different
sizes pass, if the}' render the machine still more perfect than if the rolls
were all of the same size.
Then we come to another and different class of rolls, and there I
confess I differ from the registrar who has given his opinion in this
case. I allude to those rolls which had been made for the purpose of
being used in this machine, and had been sent to the mill for that pur-
pose, but had never been fitted to the machine, and which required
something more to be done to fit them to the machine in order that
EX PARTE ASTBUEY. 705
they might be used in it. I think that if a man mortgages a machine,
and afterwards, the machine itself being perfect, and fitted with rolls
and everything else connected with it, other rolls are sent for to be used
with the machine, but those rolls cannot be used unless and until they
are fitted to the machine, it would be going a long way to say that the
mortgagor should be compelled to fit those rolls to the machine, and
should be precluded from saying that they do not form a part of the
machine.
Therefore I am of opinion that, as regards the duplicate rolls, as re-
gards the rolls of different sizes, as regards all the rolls which have
been actually fitted to the machine, the^' belong to the machine as part
of the machine, — they are, in fact, essential parts of the machine. But
I cannot hold that the rolls which have never been fitted to the machine,
and have never been used in the machine, and which require something
more to be done to them before they are fitted to the machine, belong
to the machine, or that they are essential parts of it. Therefore, in
that respect the order will be varied.
The second appeal was then argued.
Sir G. M. Giffard, L. J. The two points which remain to be dis-
posed of in this question are, first, as to the straightening plates ; and,
secondlj-, as to the weighing machines. I cannot agree to the sugges-
tion of Mr. Jessel that because the mortgagor in this case was a lease-
holder and not a freeholder the articles which are fixtures will not pass
to the mortgagee. Whether he is a freeholder or a leaseholder, the
same rule clearly and indubitably would apply, and the only question
is, whether the straightening plates and the weighing machines are
fixtures.
With regard to the straightening plates, two cases were cited, one of
the Metropolitan Counties Society v. Brown [26 Beav. 454], and an-
other of Beaufort v. Bates [3 De G. F. & J. 381]. The latter case
clearly has no application, for that was a case in which, there being
chattels which, as between the lessor and lessee, the lessee might
remove, an execution creditor of the lessee was held entitled to take
them. As regards the former case, the point was wholly difierent
from the point in this case, because there the straightening plates cer-
tainly were not fixed in the mode in which these straightening plates
appear from the evidence to be fixed. It is only necessary to read
some portions of the evidence to show that these straightening plates
are clearly fixtures, and, in fact, just as much part of the floor as any
pavement would be, and, certainly, it would be astonishing to me if an
ordinary pavement were regarded as a thing that could be removed by
a mortgagor, as against his mortgagee. [His Lordship then referred to
the evidence, and continued :] Upon this evidence I must assume that
the plates round the straightening plates are part of the ordinary floor
of the place, and that the straightening plates are just as much part of
the ordinary floor as the plates around them. I look upon these straight-
ening plates as in the same position as a flagstone laid down and let in,
45
706 CLIMIE V. WOOD.
and certainly if anytiiing in the world is a fixture I should conceive that
a flagstone laid down and let in would be a fixture. In fact, the registrar
seems to have fallen into this mistake b}' laying rather too much stress
on what was said in the case oi Mather v. Fraser, 2 K. & J. 536, as to
nothing being a fixture which could stand by its own weight. No doubt
a fiat plate will rest by its own weight, but if you have it laid in, em-
bedded, and overlaid with that which is part of the permanent floor,
and the permanent floor cannot be removed without damage to the free-
hold, as it clearly cannot be here, I can have no doubt whatever but
that the straightening plates are fixtures.
But, then, with regard to the weighing machines, I think the case is
wholly different. The evidence is clear that weighing machines of this
description are frequently put upon wheels, and are so used. As
regards these weighing machines, it appears that where they are placed
inside the building the floor is prepared for them, and where they are
placed outside the soil is prepared for them ; that is to say, a square
receptacle is made and is bricked, and when that square receptacle
is made and bricked, the weighing machine is placed in it, and
ma}', of course, be taken out again, for it is not fixed bj- nails, or b^*
screws, or in any other way. One of the witnesses saj's : "I took
a piece of thin iron about half an inch thick, and trickled around the
outside of it, and from that I could see there was some brickwork put
up in order to secure the outside ; there was a space all round of from
five-eighths to three-fourths of an inch." Mr. Frj' argued that the
brickwork was the same thing as if there had been a frame, and that
the brickwork is part and parcel of the machine. To that argument I
cannot assent. Suppose in this case a number of brick places had been
made, into which it had been convenient to put weights, beyond all
doubt the weights would not have been fixtures. In the same way, if
there had been a foundation of granite for a cannon or a large tele-
scope, neither the cannon nor the large telescope would be a fixture.
The preparation of the soil does not make the machine a fixture, nor
does the fact of its being put into the receptacle so prepared for it make
it a fixture.
Therefore, as regards the straightening plates the decision below will
be reversed, and as regards the weighing machines it will be afflrraed.
There will be no costs of the appeal, and the deposit will be returned.^
CLIMIE V. WOOD.
Exchequer Chamber. 1869.
[Reported L. R. 4 Ex. 328.]
Detintje for a steam-engine and boiler. Pleas : 1 . Not guilty.
2. Not possessed. Issue thereon.
1 See Wadleigh v. Janvrin, 41 N. H. 503 ; Bumside v. TwiicheU, 43 N. H. 390.
CLIMIE V. WOOD. 707
The plaintiff was the purchaser of the articles in question from the
trustees under an inspectorship deed of one Daniel Climie. Daniel
Climie had the freehold of two pieces of land, which ma}' be called (as
colored on a plan produced at the trial) pink and green land, and upon
them he, in the j'ear 1864, erected an engine-house formed with brick
pillars, parti}' open and partly enclosed, and with a slated roof. Into
this building the engine was then put. It stood equall}' on each of the
pieces of land. The boiler stood as to three-fifths, on the pink land,
and as to two-fifths, on the green land.
The engine was screwed down to some thick planks which la}- on the
ground, and the boiler was fixed in brickwork. The}' were used for
sawing timber in Climie's business of a contractor, and were clearly
what are ordinarily called " trade fixtures."
In the- year 1858 Climie mortgaged the pink land to Robert Craig in
fee, and by him in Jul}', 1866, it was sold (under a power) to a Mrs.
Mumford. In January, 1865, he mortgaged the green land to Eock &
Co. in fee.
In the same year, 1865, Climie executed the deed of inspectorship.
In September, 1866, the engine and boiler were removed from the shed
by the trustees of Climie at the request of Mrs. Mumford, who wanted
them off the pink land. The plaintiff purchased them of the trustees
about the same time. But while they were in the place to which the
trustees had removed them they were sold by Messrs. Eock & Co., the
mortgagees of the green land, to the defendant, who still detained
them, and for this detention the present action was brought.
The cause was tried at the Middlesex sittings after Hilary Term last
before Pigott, B., and the jury having found, in answer to questions put
to them by the learned judge, first, that they were trade fixtures, and
fixed for the better use of them, and not to improve the inheritance ;
secondly, that they were removable without any appreciable damage to
the freehold ; and, thirdly, that the sale to the plaintiff was bona fide,
— a verdict was entered for the plaintiff, with leave reserved to move
to enter a verdict for the defendant on the ground that the property in
the steam-engine and boiler did not remain in Climie, the mortgagor
in possession.
A rule was obtained accordingly.'
The Court of Exchequer made the rule absolute, and the plaintiff
appealed.
Son. G. Denman, Q. C. {Simpson with him), for the plaintiH.
H. Matthews, Q. C. {Channell with him), for the defendant.
Cur. ado. vuU.
The judgment of the court (Willes, Keating, Blackburn, Mellor,
Montague Smith, Lush, Hayes, and Brett, JJ.) was delivered by —
WiLLES, J. The question in this case turns upon whether a claimant
1 This statement of facts is printed from the report of the case in the court below.
L. E. 3 Ex. 257.
708 CLIMIE V. WOOD.
under the mortgagees of certain land or the purchaser from the mort-
gagor is entitled to an engine and boiler employed in a saw-mill on
the mortgaged premises, and erected under the circumstances and in
the manner proved at the trial. The Court of Exchequer held that the
claimant under the mortgagees was entitled, and we are of opinion that
their judgment ought to be affirmed. There is no doubt that sometimes
things annexed to land remain chattels as much after thej' have been
annexed as they were before. The case of pictures'huug on a wall for
the purpose of being more convenient!}' seen, may be mentioned by
wa}' of illustration. On the other hand, things may be made so com-
pletely a part of the land, as being essential to its convenient use, that
even a tenant could not remove them. An example of this class of
chattel maj' be found in doors or windows. Lastly, things ma}- be
annexed to land for the purposes of trade, or of domestic convenience
or ornament, in so permanent a manner as reall}' to form a part of the
land ; and j'et the tenant who has erected them is entitled to remove
them during his term, or, it maj' be, within a reasonable time after its
expiration. Now in the present case we think, upon the evidence and
findings of the jury, that the engine and boiler belonged to this last
class, and if erected by a tenant, might have been removed by him
during his term ; and in this view we are supported by the authority of
Xiyde V. Hussell, 1 B. & Ad. 394. The reasons, however, for a tenant
with a limited interest being allowed to remove trade fixtures, are not
applicable to the owner of the fee. Thus in Fisher v. Dixon, 12 CI. &
F. 312, thej' were held not to apply as between heir at law and exec-
utor, and the language of Lord Cottenham (at p. 328) explains the dis-
tinction between landlord and tenant on one hand, and Iieir at law and
executor on the other. " The principal stress of the argument on the
side of the appellant [the executor]," he says, "has been that this
[machinery] is to be protected, because it is necessary for the encour-
agement of trade that this property should be considered not as be-
longing to the real estate, but as belonging to the personal estate. The
principle upon which a departure has been made from the old rule of
law in favor of trade appears to me to have no application to the pres-
ent case. The individual who erected the machinerj' was the owner of
the land, and of the personal property which he erected and employed
in carrjing on the works ; he might have done what he liked with it ;
he might have disposed of the land ; he might have disposed of the
machinery ; he might have separated them again. It was therefore not
at all necessary, in order to encourage him to erect those new works
which are supposed to be beneficial to the public, that any rule of that
kind should be estabUshed, because he was master of his own land.
It was quite unnecessary, therefore, to seek to estabhsh any such rule
in favor of trade as applicable here, the whole being entirely undi'i- the
control of the person who erected this machinery." And we sire of
opinion, that the decisions which estabhsh a tenant's right to ivmove
trade fixtures do not apply as between mortgagor and mortgiin. any
HOLLAND V. HODGSON. 709
more than between heir at law and executor. The irrelevancy of these
decisions to cases where the conflicting parties are mortgagor and
mortgagee was pointed out in Walmsley v. Milne, 7 C. B. (N. S.) 115 ;
29 L. J. C. P. 97 ; and we concur with the observations made in that
case by the Court of Common Pleas. Here, therefore, we have come
to the conclusion that the verdict was rightly directed by the Court of
Exchequer to be entered for the defendant who represented the mort-
gagees, and that the plaintiff, who had no claim beyond what he derived
from the mortgagor, was not entitled to recover.
Judgment affirmed.
HOLLAND V. HODGSON.
Exchequer Chamber. 1872.
[RepoHcd L. B. 7 C. P. 328.]
Blackburn, J.^ In this case George Mason, who was owner in fee
of a mill occupied by him as a worsted mill, mortgaged the mill and all
fixtures which then were, or at any time thereafter should be set up
and affixed to the premises, in fee to the plaintiffs. The mortgage
deed was not registered as a bill of sale, and Mason, who continued in
possession, assigned all his estate and effects to the defendants as
trustees for the benefit of his creditors. The defendants under this last
deed took possession of everything. The plaintiffs brought trover.
The defendants paid money into court, and there was a replication of
damages ultra. A case was stated showing the nature of the articles,
and how and in what manner they were affixed to the mill. As the
deed was not registered under the Bills of Sales Act (17 & 18 Vict. c.
36) , it was by § 1 of that Act void as against the defendants as as-
signees for the benefit of creditors so far as it was a transfer of " per-
sonal chattels '' within the meaning of that Act ; and as by § 7 the
phrase " personal chattels" is declared in that Act to mean inter alia
" fixtui-es," it was void (as against these defendants) so far as it was
a transfer of fixtures as such. Since the decision of this court in
Climie v. Wood, Law Rep. 4 Ex. 328, it must be considered as settled
aw (except, perhaps, in the House of Lords) that what are commonly
jinown as trade or tenant's fixtures form part of the land, and pass by
a conveyance of it ; and that though if the person who erected those
fixtures was a tenant with a limited interest in the land, he has a right,
as against the freeholder, to sever the fixtures from the land ; yet if he
be a mortgagor in fee, he has no such right as against his mortgagee.
Trade and tenant's fixtures are, in the judgment in that case, accurately
defined as " things which are annexed to the land for the purposes of
trade or of domestic convenience or ornament in so permanent a man-
ner as to become part of the land, and j-et the tenant who has erected
1 The opinion only is given ; it states the case sufficiently.
710 HOLLAND V. HODGSON.
them is entitled to remove them during his term, or it may be withiu a
reasonable time after its expiration." It was not disputed at the bar
that such was the law ; and it was admitted, and we think properly
admitted, that where there is a conveyance of the land, the fixtures are
transferred, not as fixtures, but as part of the land, and the deed of
transfer does not require registration as a bill of sale. But we wish to
guard ourselves by stating that our decision (so far as regards the reg-
istration) is confined to the case before us, where the mortgagor was
owner to the same extent of the fixtures and of the land. If a tenant
having only a limited interest in the land, and an absolute interest in
the fixtures, wei'e to convej' not onl^- his limited interest in the land and
his right to enjoy the fixtures during the terra, so long as they con-
tinued a part of the land, but also his power to sever those fixtures and
dispose of them absolutely, a very different question would have to be
considered. As it does not arise, we decide nothing as to this. We
are not to be understood as expressing dissent from what appears to
have been the opinion of Wood, V. C, in £qyd v. Shorrock, Law Rep.
5 Eq. 72, but mereh- as guarding against being supposed to confirm it.
In Climie v. Wood the jurj- had found as a fact that the articles there
in question were tenant fixtures, and that finding was not questioned.
Neither the Court of Exchequer nor the Court of Exchequer Chamber
had occasion there to consider what would constitute a fixture. In the
present case there is no such finding. The controversy was confined to
the looms, the nature of which and the mode of their annexation were
described in the case. In the court below it was properl}- admitted
that there was no real distinction between those looms and the articles
which the Court of Queen's Bench, in Longhottom v. Berry, Law Eep.
5 Q. B. 123, decided to be so annexed as to form part of the land.
Judgment was accordinglj- given for the plaintiffs, without argument, leav-
ing the defendants to question Longbottom v. Berry in a court of error.
The present case is therefore really, though not in form, an appeal
against the decision of the Court of Queen's Bench in Longhottom v.
Berry ^ and was so argued. There is no doubt that the general maxim
of the law is, that what is annexed to the land becomes part of the
land ; but it is very difficult, if not impossible, to saj' with precision
what constitutes an annexation suflScient for this purpose. It is a
question which must depend on the circumstances of each case, and
mainly on two circumstances, as indicating the intention, viz., the
degree of annexation and the object of the annexation. When the arti-
cle in question is no further attached to the land than bj' its own
weight, it is generally to be considered a mere chattel ; see Wiltshear
V. Cottrell, 1 E. & B. 674; 22 L. J. Q. B. 177, and the cases there
cited. But even in such a case, if the intention is apparent to make
the articles part of the land, thej- do become part of the land : see
D'Eyncourt v. Gregory, Law Rep. 3 Eq. 382. Thus blocks of stone
placed one on the top of another without any mortar or cement, for the
purpose of forming a dry stone wall, would become part of the land
HOLLAND V. HODGSON. 711
thougb the same stones, if deposited in a builder's yard and for conven-
ience' salfe stacked on tlie top of eacJi other in the form of a wall, would
remain chattels. On the other hand, an article maj- be very firmly fixed
to the land, and yet the circumstances may be such as to show that it
was never intended to be part of the land, and then it does not become
part of the land. The anchor of a large ship must be very firmly
fixed in the ground in order to bear the strain of the cable ; yet no
one could suppose that it became part of the land, even though it should
chance that the ship-owner was also the owner of the fee of the spot
where the anchor was dropped. An anchor similarly fixed in the soil
for the purpose of bearing the strain of the chain of a suspension bridge
would be part of the land. Perhaps the true rule is, that articles not
otherwise attached to the land than b^- their own weight are not to be
considered as part of the land, unless the circumstances are such as to
show that they were intended to be part of the land, the onus of show-
ing that they were so intended lying on those who assert that they have
ceased to be chattels, and that, on the contrary, an article which is
affixed to the land even slightly is to be considered as part of the land,
unless the circumstances are such as to show that it was intended all
along to continue a chattel, the onus Ij'ing on those who contend that it
is a chattel. This last proposition seems to be in effect the basis of the
judgment of the Court of Common Pleas delivered by Maule, J., in
Wilde v. TVaters, 16 C. B. 637; 24 L. J. C. P. 193. 'This, however,
only removes the difficult}- one step, for it still remains a question in
each case whether the circumstances are sufficient to satisfy- the onus.
In some cases, such as the anchor of the ship or the ordinary instance
given of a carpet nailed to the flo.or of a room, the nature of the thing
sufficientl}- shows it is only fastened as a chattel temporarih', and not
affixed permanently as part of the land. But ordinary trade or tenant
fi.xtures which are put up with the intention that they should be removed
by the tenant (and so are put up for a purpose in one sense only tem-
porary, and certainly not for the purpose of improving the reversionary
interest of the landlord) have always been considered as part of the
land, though severable by the tenant. In most, if not all, of such cases
the reason why the articles are considered fixtures is probably that
indicated by Wood, V. C, in Boyd v. Shorrock, that the tenant indi-
cates by the mode in which he puts them up that he regards them as
attached to the property during his interest in the property. What we
have now to decide is as to the application of these rules to looms put
up b}- the owner of the fee in the manner described in the case. In Jlel-
lawell V. Eastwood, 6 Ex. 295 ; 20 L.J. Ex. 154 (decided in 1851), the
facts as stated in the report are, that the plaintiff held the premises in
question as tenant of the defendants, and that a distress for rent had
been put in by the defendants under which a seizure was made of
cotton-spinning machinery called " mules," some of which were fixed
by screws to the wooden floor, and some by screws which had been sunk
in the stone floor, and secured by molten lead poured into them. It
712 HOLLAND V. HODGSON.
ma}- be inferred that the plaintiff, being the tenant only, had put up those
mules ; and from the large sum for which the distress appears to have
been levied (£2000), it seems probable that he was the tenant of the
whole mill. It does not appear what admissions, if anj-, were made at
the trial, nor whether the court had or had not b}- the reservation power
to draw inferences of fact, though it seems assumed in the judgment
that thej- had such a power. Parke, B., in delivering the judgment of the
court, sa_ys : " This is a question of fact depending on the circumstances
of each case, and principally- on two considerations : first, the mode of
annexation to the soil or fabric of the house, and the extent to which it
is united to them, whether it can easil}- be removed integre, salve, et
commode, or not, without injurj- to itself or the fabric of the building ;
secondl}-, on the object and purpose of the annexation, whether it was
for the permanent and substantial improvement of the dwelling, in the
language of the civil law pei-petui usus causa, or in that of the Year-
Book, pour un profit del inheritance, or merely for a temporarj' pur-
pose and the more complete enjoj'ment and use of it as a chattel." It
was contended bj- Mr. Field that the decision in Hellawell v. Eastwood
had been approved in the Queen's Bench in the case of Turner v.
Cameron, Law Rep. 5 Q. B. 306. It is quite true that the court in that
case said that it afforded a true exposition of the law as applicable to
the particular facts upon which the judgment proceeded ; but the court
expressly guarded their approval by citing from the judgment delivered
by Parke, B., the facts upon which they considered it to have pro-
ceeded : " They were attached slightly, so as to be capable of removal
without the least injury- to the fabric of the building or to themselves,
and the object of the annexation was not to improve the inheritance,
but merely to render the machines steadier and more capable of con-
venient use as chattels." As we have alreadj- observed, trade or tenant
fixtures might in one sense be said to be fixed " merely for a temporary
purpose ; " but we cannot suppose that the Court of Exchequer meant
to decide that they were not part of the land, though liable to be
severed by the tenant.
The words " merely for a temporary purpose" must be understood
as applying to such a case as we have supposed, of the anchor dropped
for the temporar}' purpose of mooring the ship, or the instance inirae-
diatelj- afterwards given by Parke, B., of the carpet tacked to the floor
for the purpose of keeping it stretched whilst it was there used, and not
to a case such as that of a tenant who, for example, affixes a shop
counter for the purpose (in one sense temporary) of more effectually
enjoying the shop whilst he continues to sell his wares there. Subject
to this observation, we think that the passage in the judgment in Hella-
well V. JEastioood does state the true principles, though it may be ques-
tioned if they were in that case correctly applied to the facts. The
court in their judgment determine what they have just declared to be a
question of fact thus : " The object and purpose of the connection was
not to improve the inheritance, but merely to render the machines steadier
HOLLAND V. HODGSON. 713
and more capable of convenient use as chattels." Mr. Field was justified
in saying, as he did in his argument, that as far as the facts are stated
in the report, thej- are very liite those in the present case, except that
the tenant who put the mules up cannot have been supposed to intend
to improve the inheritance (if by that is meant his landlord's reversion),
but only at most to impi'ove the property whilst he continued tenant
thereof ; and he argued with great force that we ought not to act on a
surmise that there were any special facts or findings not stated in the
report, but to meet the case, as showing that the judges who decided
Hellawell v. Easticood thought that articles fixed in a manner very like
those in the case before us remained chattels ; and this is felt, by some
of us, at least, to be a weighty argument. But that case was decided in
1851. In 1853 the Court of Queen's Bench had, in Wiltshear v. Cot-
trell, to consider what articles passed bj' the convej'ance in fee of a
farm. Among the articles in dispute was a threshing machine, which
is described in the report thus: "The threshing machine was placed
inside one of the barns (the machinery for the horse being on the out-
side), and there fixed by screws and bolts to four posts which were let
into the earth." Hellawell v. Eastwood was cited in the argument.
The court (without, however, noticing that case) decided that the thresh-
ing machine, being so annexed to the land, passed by the conveyance. It
seems difficult to point out how the threshing machine was more for the
improvement of the inheritance of the farm than the present looms were
for the improvement of the manufactory ; and in Mather v. Eraser, 2
K. & J. 536; 25 L. J. Ch. 361, Wood, V. C, who was there judge
both of the fact and the law, came to the conclusion that machinery
affixed not more firmly than the articles in question by the owner of the
fee to land, for the purpose of carrying on a trade there, became part
of the land. This was decided in 1856. And in Walmsley v. Milne,
7 C. B. (N. S.) 115 ; 29 L. J.' C. P. 97, the Court of Common Pleas,
after liaving their attention called to a slight misapprehension by
Wood, V. C, of the effect of Hellawell v, Eastwood, came to the con-
clusion, as is stated by them, at p. 131, " that we are of opinion, as a
matter of fact, that they were all firmly annexed to the freehold for the
purpose of improving the inheritance, and not for any temporary pur-
pose. The bankrupt was the real owner of the premises, subject only
to a mortgage which vested the legal title in tiie mortgagee until the
repayment of the money borrowed. The mortgagor first erected baths,
stables, and a coach-house, and other buildings, and then supplied them
with the fixtures in question for their permanent improvement. As to
the steam-engine and boiler, they were necessary for the use of the
baths. The haj'-cutter was fixed into a building adjoining the stable as
an important adjunct to it, and to improve its usefulness as a stable.
The malt-mill and grinding stones were also permanent erections, in-
tended by the owner to add to the value of the premises. They there-
fore resemble in no particular (except being fixed to the building by
screws) the mules put up by the tenant in Hellawell v. Eastwood!' It
714 HOLLAND V. HODGSON.
is stated in a note to the report of the case that, on a subsequent d&j,
it was intimated by the court that Mr. Justice Willes entertained
serious doubts as to whether the articles in question were not chattels.
The reason of his doubt is not stated, but probabl3- it was from a doubt
whether the Exchequer had not, in SeUawell v. Eastwood, shown that
thej' would have thought that the articles were not put up for the pur-
pose of improving the inheritance, and from deference to that autlioritj'.
The doubt of this learned judge in one view weakens the authority of
Walmsley v. Milne, but in another view it strengthens it, as it shows
that tlie opinion of the majority, that as a matter of fact the hay-
cutter, which was not more firmly fixed than the mules in Hellawell v.
Eastwood, must be taken to form part of the land, because it was
" put up as an adjunct to the stable, and to improve its usefulness as a
stable," was deliberately adopted as the basis of the judgment ; and it
is to be observed that Willes, J., though doubting, did not dissent.
Walmsley v. Milne was decided in 1859. This case and that of Wilt-
shear V. C'ottrell seem authorities for this principle, that where an arti-
cle is affixed by the owner of the fee, though only affixed bj- bolts and
screws, it is to be considered as part of the land, at all events where
the object of setting up the articles is to enhance the value of the prem-
ises to which it is annexed for the purposes to which those premises
are applied. The threshing machine in Wiltshear v. Cottrell was
affixed by the owner of the fee .to the barn as an adjunct to the barn,
and to improve its usefulness as a barn, in much the same sense as the
haj'-cutter in Walmsley v. Milne was affixed to the stable as an adjunct
to it, and to improve its usefulness as a stable. And it seems difficult
to saj' that the machinery in Mather v. Eraser was not so much
affixed to the mill as an adjunct to it and to improve the usefulness of
the mill as such, as either the threshing machine or the haj'-cutter. If,
therefore, the matter were to be decided on principle, without reference
to what has since been done on the faith of the decisions, we should be
much inclined, notwithstanding the profound respect we feel for every-
thing that was decided by. Parke, B., to hold that the looms now in
question were, as a matter of fact, part of the land. But there is
another view of the matter which weighs strougl}' with us. Hellawell
V. Eastwood was a decision between landlord and tenant, not so likely
to influence those who advance money on mortgage as Mather v.
Eraser, which was a decision directlj' between mortgagor and mortga-
gee. We find that Mather v. Eraser, which was decided in 1856, has
been acted upon in Boyd v. Shorrock by the Court of Queen's Bench in
Longhottom v. Berry, and in Ireland in Be Dawson, Ir. Law Eep. 2
Eq. 222. These cases are too recent to have been themselves much
acted upon, but the}- show that Mather v. Eraser has been generally-
adopted as the ruling case. We cannot, therefore, doubt that much
monej' has, during the last sixteen years, been advanced on the faith of
the decision in Mather v. Eraser. It is of great importance that the
law as to what is the security- of a mortgagee should be settled ; and
LEE V. GASKELL. 715
without going so far as to saj' that a decision only sixteen years old
should be upheld, right or wrong, on the principle that communis error
facit jus, we feel that it should not be reversed unless we clearly see
that it is wrong. As already said, we are rather inclined to think that
if it were res integra we should find the same way. We think, there-
fore, that the judgment below should be affirmed.
Judgment affirmed}
LEE V. GASKELL.
Queen's Bench Division. 1876.
\Ii£-porlcd\ Q. B. D. 700.]
Statement of claim, inter alia, that plaintiff sold to defendant a gas-
meter and certain gas-fittings then in a certain mill. The plaintiff fur-
nished defendant with a bill for the meter and fittings, amounting to
£11 18s. 8c?., which the defendant promised to pay, but has not paid.
Statement of defence : Defendant denies the sale as alleged, and that
he received the bill and promised to pay it as alleged. That there
was no note or memorandum of the bargain in writing signed by the
defendant or his agent, nor did he accept part of the goods and actu-
allj" receive the same, nor did he give an3-thing as earnest money or as
part paj'ment, within 29 Car. 2, c. 3, § 17.
At the trial before Brett, J., at the Manchester Spring Assizes, it ap-
peared, as to this part of the plaintiff's claim, that the defendant was
landlord of the mill in which the fixtures were, thej' were tenant's fix-
tures, and the tenant had become bankrupt, and the trustee sold them
to the plaintiff, and he afterwards sold them to the defendant for the
sum claimed. It was objected that the contract came within either § 4
or § 17 of the Statute of Frauds ; and the learned judge directed judg-
ment for the defendant, giving leave to move to enter judgment for the
plaintiff.
J. jEdwards, Q. C, for the plaintiff.
H. Collins and C. Hussell, Q. C, for the defendant.
CocKBORN. C. J. The case oi Hallen v. Runder, 1 C. M. & R. 266,
is directly in point and binding upon us, and I think the principle on
which it was decided was perfectly right. Fixtures, although thej' may
be removable during the tenancy, as long as they remain unsevercd,
are part of the freehold, and you cannot dispose of them to the land-
lord or any one else as goods and chattels, because thej' are not severed
from the freehold so as to become goods and chattels. All you can do
is to bargain for the sale of them as fixtures, which are subject to the
right of the tenant to remove them during the term, but which right is
liable to be lost if it is not exercised during the term. There is but a
1 See OhulUy v. Clmrchwardens of West Ham, 32 L. T. (N. S.) 486.
716 BOSTWICK V. LEACH.
remote analogy between fixtures and growing crops, but there is this
obvious distinction between thera, — fixtures, when sold as fixtures, are
intended to remain where they are ; while as to growing crops, it is the
express intention of the purchaser to remove them.
Mellor and Quain, JJ., concurred.
Judgment for the plaintiff.
BOSTWICK V. LEACH.
Supreme Court op Errors' of Connecticut. 1809.
[Meporied 3 Dny, 476.]
Motion for a new trial.
This was an action of assumpsit.
The declaration stated, that the plaintiflf was the owner of a grist-
mill ; and the defendant, having it in contemplation to build one within
a short distance, and being desirous of procuring materials for it, as
well as of securing to it, when built, the custom of such persons as
usually went for grinding to the plaintiff's mill, proposed to the plaintiff
that he should stop his mill on the first day of Januarj- then next, and
the defendant would purchase the mill-stones, running-geers, bolt, tack-
ling, tools and utensils, which belonged to and were removable from the
mill, and would pa}- the plaintiff for the same the sum of four hundred
dollars. To this proposition the plaintiff acceded, and had performed
everj-thing to be done on his part.
The defendant pleaded the general issue.
On the trial the plaintiff offered to prove his case b}' parol evidence.
It was agreed, that the plaintiff's mill was what is commonly called a
gig mill, standing on a small stream of water ; that the mill-stones were
laid in the mill for the purpose of grinding in the same manner as mill-
stones are usually placed in such mills for that purpose, — viz., by the
bed stones being laid upon the floor timber of the mill ; that the run-
ning geers consisted of a horizontal water-wheel, the shaft of which was
upright, which passed through the lower mill-stone for the purpose of
turning the upper mill-stone ; that the lower part of the shaft rested and
turned on a pivot at the bottom ; and that the wheel was turned bj- the
water being received in the usual manner of mill-wheels of that descrip-
tion. It was also agreed, that the mill-stones, running-geers, &c., were,
at the time of the contract, in actual use for the purpose of grinding,
and have never since been removed, but might be removed without do-
ing violence to the mill-house, and without even so much as the drawing
of a nail. It was further admitted that the plaintiff stopped his mill on
the first day of January, according to his agreement, and the next day
gave notice thereof to the defendant.
The defendant objected to the admission of the evidence offered, on the
VAN NESS V. PACARD. 717
ground that the contract set forth in the declaration, and offered to be
proved, was a contract for the sale of lands, tenements, or heredita-
ments, or some interest in or concerning them ; and not being in writ-
ing, was, therefore, within the Statute of Frauds and Perjuries. But
the court overruled the objection, and admitted the evidence.
A verdict being found for the plaintiff, the defendant moved for a
new trial.
N. Smith and Hatch, in support of the motion.
JSacon, in the absence of Alleti, opposed the motion.
By the Court. The contract was not embraced by the Statute of
Frauds and Perjuries. When there is a sale of property, which would
pass by a deed of land, as such, without any other description, if it can
be separated from the freehold, and by the contract is to be separated,
such contract is not within the Statute. Such are the contracts for the
purchase of gravel, stones, timber trees, and the boards and brick of
houses to be pulled down and carried awaj-.
The agreement not to use his mill, after a certain daj', is not within
the Statute of Frauds and Perjuries ; for this Statute contemplates only
a transfer of lands, or some interest in them. In this case, there was
no transfer of au3- right, but onlj' an agreement not to exercise a right.
He parts with no interest to any person. There is no conveyance of
the stream, or indeed of any interest whatever. Thus, it differs nothing
in principle from the case where a man has carried on a trade in his
house, or shop, and agrees, for a valuable consideration, not to c&xry on
his business at that particular stand ; and yet such contract has never
been held to be within the Statute.
New trial not to be granted.
VAN NESS V. PACARD.
Supreme Court op the United States. 1829.
[Reported 2 Pet. 137.]
Mr. Justice Story delivered the opinion of the court.^
This is a writ of error to the Circuit Court of the District of Colum-
bia, sitting for the county of Washington.
The original was an action on the case brought by the plaintiffs in
error against the defendant, for waste committed by him, while tenant
of the plaintiffs, to their reversionary interest, by pulling down and
removing from the demised premises a messuage or dwelling-house
erected thereon and attached to the freehold. The cause was tried
upon the general issue, and a verdict found for the defendant, upon
which a judgment passed in his favor ; and the object of the present
writ of error is to revise that judgment.
1 The opinion only is printed ; it states the case.
'i'18 VAN NESS V. PACAED.
Bj^ the bill of exceptions filed at the trial it appeared that the plain-
tiffs, in 1820, demised to the defendant, for seven years, a vacant lot
in the city of Washington, at the yearly rent of $112.50 cents, with a
clause in the lease that the defendant should have a right to purchase
the same at any time during the term for $1,875. After the defendant
had taken possession of the lot, he erected thereon a wooden dwelling-
house, two stories high in front, with a shed of one story, a cellar of
stone or brick foundation, and a brick chimney. The defendant and
his family dwelt in the house from its erection until near the expiration
of the lease, when he took the same down, and removed all the mate-
rials from the lot. The defendant was a carpenter by trade ; and he
gave evidence that, upon obtaining the lease, he erected the building
above mentioned, with a view to carry on the business of a dairyman,
and for the residence of his family and servants engaged in his said
business ; and that the cellar, in which there was a spring, was made
and exclusively used for a milk cellar, in which the utensils of his said
business were kept and scalded, and washed and used ; and that feed
was kept in the upper part of the house, which was also occupied as a
dwelling for his family. That the defendant had his tools as a car-
penter, and two apprentices in the house, and a work-bench out of
doors ; and carpenter's work was done in the house, which was in a
rough unfinished state, and made partly of old materials. That he also
erected on the lot a stable for his cows, of plank and timber, fixed upon
posts fastened into the ground, which stable he removed with the house,
before the expiration of his lease.
Upon this evidence, the counsel for the plaintiffs prayed for an
instruction, that if the jury should believe the same to be true, the
defendant was not justified in removing the said house from the prem-
ises ; and that he was liable to the plaintiffs in this action. This
instruction the court refused to give ; and the refusal constitutes his
first exception.
The defendant further offered evidence to prove, that a usage and
custom existed in the city of Washington, which authorized a tenant
to remove anj- building which he might erect upon rented premises,
provided he did it before the expiration of the term. The plaintiffs
objected to this evidence ; but the court admitted it. This constitutes
the second exception.
Testimony was then introduced on this point, and after the examina-
tion of the witnesses for the defendant, the plaintiffs prayed the court
to instruct the jury that the evidence was not competent to establish
the fact that a general usage had existed or did exist in the city of
Washington, which authorized a tenant to remove such a house as that
erected hy the tenant in this case ; nor was it competent for the jurj' to
infer from the said evidence that such a usage had existed. The court
refused to give this instruction, and this constitutes the third exception.
The counsel for the plaintiffs then introduced witnesses to disprove
the usage ; and after their testiraonj' was given, he pra3-ed the court to
VAN NESS V. PACABD. 719
instruct the jury, that upon the evidence given as aforesaid in this case,
it is not competent for them to find a usage or custom of the place by
which the defendant could be justified in removing the house in ques-
tion ; and there being no such usage, the plaintiffs are entitled to a
verdict for the value of the house which the defendant pulled down and
destroyed. The court was divided, and did not give the instruction so
prayed ; and this constitutes the fourth exception.
The first exception raises the important question. What fixtures
erected by a tenant during his term are removable by him?
The general rule of the common law certainly is, that whatever is
once annexed to the freehold becomes part of it, and cannot afterwards
be removed, except by him who is entitled to the inheritance. The
rule, however, never was, at least as far back as we can trace it in the
books, inflexible, and without exceptions. It was construed most
strictly between executor and heir in favor of the latter ; more liberally
between tenant for life or in tail, and remainder-man or reversioner, in
favor of the former ; and with much greater latitude between landlord
and tenant, in favor of the tenant. But an exception of a much
bi'oader cast, and whose origin may be traced almost as high as the
rule itself, is of fixtures erected for the purposes of trade. Upon
principles of public policy, and to encourage trade and manufactures,
fixtures which were erected to carry on such business were allowed to
be removed by the tenant during his term, and were deemed personalty
for manj- other purposes. The principal cases are collected and re-
viewed by Lord Ellenborough in delivering the opinion of the court in
Elwes V. Maw, 3 East's R. 38 ; and it seems unnecessary to do more
than to refer to that case for a full summary of the general doctrine,'
and its admitted exceptions in England. The court there decided, that
in the case of landlord and tenant, there had been no relaxation of the
general rule in cases of erections, solely for agricultural purposes,
however beneficial or important they might be as improvements of the
estate. Being once annexed to the freehold by the tenant, they be-
came a part of the realty, and could never afterwards be severed by
the tenant. The distinction is certainly a nice one between fixtures for
the purposes of trade, and fixtures for agricultural purposes ; at least
in those cases where the sale of the produce constitutes the principal
object of the tenant, and the erections are for the purpose of such a
beneficial enjoyment of the estate. But that point is not now before
us ; and it is unnecessary to consider what the true doctrine is, or
ought to be, on this subject. However well settled it may now be in
England, it cannot escape remark, that learned judges at different
periods in that country have entertained different opinions upon it,
down to the very date of the decision in Mwes v. Maw, 3 East's R. 38.
The common law of England is not to be taken in all respects to be
that of America. Our ancestors brought with them its general princi-
pl«B, and claimed it as their birthright ; but they brought with tliera
and adopted only that portion which was applicable to their situation.
720 VAN NESS V. PACAED.
There could be little or no reason for doubting that the general doc-
trine as to things annexed to the freehold, so far as it respects heirs
and executors, was adopted by them. The question could arise only
between different claimants under the same ancestor, and no general
policy could be subserved by withdrawing fi'om the heir those things
which his ancestor had chosen to leave annexed to the inheritance.
But between landlord and tenant it is not so clear that the rigid rule of
the common law, at least as it is expounded in 3 East, 38, was so
applicable to their situation as to give rise to necessary- presumi)tion
in its favor. The country was a wilderness, and the universal policy
was to procure its cultivation and improvement. The owner of the
soil, as well as the public, had every motive to encourage the tenant to
devote himself to agriculture, and to favor any erections which should
aid this result ; yet, in the comparative poverty of the countrj-, what
tenant could afford to erect fixtures of much expense or value, if he
was to lose his whole interest therein by the very act of erection?
His cabin or log-hut, however necessary for anj- improvement of the
soil, would cease to be his the moment it was finished. It might
therefore deserve consideration whether, in case the doctrine were not
previouslj' adopted in a State bj' some authoritative practice or adjudi-
cation, it ought to be assumed by this court as a part of the jurispru-
dence of sueli State, upon the mere footing of its existence in the com-
mon law. At present, it is unnecessar}' to say more than that we give
no opinion on this question. The case which has been argued at the
bar maj- well be disposed of without anj' discussion of it.
It has been alread3' stated that the exception of buildings and other
fixtures, for the purpose of carrj-ing on a trade or manufacture, is of
very ancient date, and was recognized almost as early as the rule itself.
The very point was decided in 20 Henry VII. 13 a and b, where it
was laid down, that if a lessee for j'ears made a furnace for his advan-
tage, or a dyer made his vats or vessels to occupy his occupation,
during the term, he may afterwards remove them. That doctrine was
recognized by Lord Holt, in Poole's Case, 1 Salk. 368, in favor of a
soap-boiler who was tenant for j'ears. He held that the party might
well remove the vats he set up in relation to trade ; and that he might
do it b3- the common law (and not by virtue of any custom), in favor
of trade, and to encourage industry. In Lawton v. Lawton, 3 Atk.
R. 13, the same doctrine was held in the case of a fire-engine, set up
to work a colliery by a tenant for life. Lord Hardwicke there said,
that since the time of Henrj- the Seventh, the general ground the
courts have gone upon of relaxing the strict construction of law is, that
it is for the benefit of the public to encourage tenants for life to do
what is advantageous to the estate daring the term. He added, " One
reason which weighs with me is, its being a mixed case, between
enjoying the profits of the land, and carrying on a species of trade ;
and in considering it in this light, it comes very near the instances* in
brewhouses, &c., of furnaces and coppers." The case, too, of a cider-
VAN NESS V. PACAED. 721
mill, between the executor and heir, &c., is extremely strong; for,
though cider is a part of the profits of the real estate, 3-et, it was held
by Lord Chief Baron Comyns, a very able common lawyer, that the
cider-mill was personal estate notwithstanding, and that it should go
to the executor. " It does not differ it, in my opinion, whether the
shed be made of brick or wood, for it is only intended to cover it
from the weather and other inconveniences." In Penton y. Mobart,
2 East, 88, it was further decided that a tenant might remove his fix-
tures for trade, even after tlie expiration of his term, if he yet remained
in possession ; and Lord Kenyon recognized the doctrine in its most
liberal extent.
It has been suggested at the bar that this exception in favor of trade
has never been applied to cases like that before the court, where a
large house has been built and used in part as a familj' residence. But
the question, whether removable or not, does not depend upon the form
or size of the building, whether it has a brick foundation or not, or is
one or two stories high, or has a brick or other chimney. The sole
question is, whether it is designed for purposes of trade or not. A
tenant may erect a large as well as a small messuage, or a soap-boilery
of one or two stories high, and on whatever foundations he ma}- choose.
In Lawton v. Lawton, 3 Atk. R. 13, Lord Hardwicke said (as we have
already seen), that it made no difference whether the shed of the engine
be made of brick or stone. In Penton v. Mobart, 2 East's R. 88, the
building had a brick foundation, let into the ground, with a chimney
belonging to it, upon which there was a superstructure of wood. Yet
the court thought the building removable. In Mwes v. Maw, 3 East's
R. 38, Lord EUenborough expressly stated, that there was no difference
between the building covering any fixed engine, utensils, and the latter.
The only point is, whether it is accessory to carrying on the ti'ade or
not. If bona fide intended for this purpose, it falls within the excep-
tion in favor of trade. The case of the Dutch barns, before Lord
Kenyon {Dean v. Allalley, 3 Esp. Rep. 11 ; Woodfall's Landlord and
Tenant, 219), is to the same effect.
Then as to the residence of the family in the house, this resolves
itself into the same consideration. If the house were built principally
for a dwelling-house for the family, independently of carrying on the
trade, then it would doubtless be deemed a fixture, falling under the
general rule, and immovable. But if the residence of the family were
merely an accessory for the more beneficial exercise of the trade, and
with a view to superior accommodation in this particular, then it is
within the exception. There are many trades which cannot be carried
on well without the presence of many persons by night as well as by
day. It is so in some valuable manufactories. It is not unusual for
persons emploj-ed in a bakery to sleep in the same building. Now
what was the evidence in the present case? It was " that the defend-
ant erected the building before mentioned, with a view to carry on the
business of a dairyman, and for the residence of his family and ser-
46
722 VAN NESS V. PACAED.
vants engaged iu that business." The residence of the family was then
auxiliary to the dairj- ; it was for the accommodation and beneficial
operations of this trade.
Sural}', it cannot be doubted, that in a business of this nature, the
immediate presence of the family and servants was, or might be, of
ver3' great utility and importance. The defendant was also a carpenter,
and carried on his business, as such, in the same building. It is no
objection that he carried on two trades instead of one. There is not
the slightest evidence of this one being a mere cover or evasion to
conceal another, which was the principal design ; and, unless we were
prepared to say (which we are not) that the mere fact that the house
was used for a dwelling-house, as well as for a trade, superseded the
exception in favor of the latter, there is no ground to declare that the
tenant was not entitled to remove it. At most, it would be deemed
only a mixed case, analogous in principle to those before Lord Chief
Baron Comyns and Lord Hardwicke, and therefore entitled to the ben-
efit of the exception. The case of Holmes v. Tremper, 20 Johns. R.
29, proceeds upon principles equallj' liberal ; and it is quite certain that
the Supreme Court of New York were not prepared at that time to
adopt the doctrine of Elwes v. Maw, in respect to erections for
agricultural purposes. In our opinion, the Circuit Court was right in
refusing the first instruction.
The second exception proceeds upon the ground that it was not
competent to establish a usage and custom in the cit}- of Washington
for tenants to make such removals of buildings during their term. We
can perceive no objection to such proof Every demise between land-
lord and tenant in respect to matters in which the parties are silent,
maj- be fairl}- open to explanation by the general usage and custom of
the countr}' or of the district where the land lies. Everj'^ person under
such circumstances is supposed to be conusant of the custom, and to
contract with a tacit reference to it. Cases of this sort are familiar in
tlie books ; as, for instance, to prove the right of a tenant to an away-
going crop. 2 Starkie on Evidence, Part IV. p. 453. In the very class
of cases now before the court the custom of the country has been ad-
mitted to decide the right of the tenant to remove fixtures. Woodfall's
Landlord and Tenant, 218. The case before Lord Chief Justice Treby
turned upon that point. Buller's Nisi Prius, 34.
The third exception turns upon the consideration, whether the parol
testimony was competent to establish such a usage and custom. Com-
petent it certainly was, if by competent is meant that it was admissible
to go to the jury. Whether it was such as ought to have satisfied their
minds on the matter of fact, was solely for their consideration, — open
indeed to such commentary and observation as the court might think
proper in its discretion to lay before them for their aid and guidance.
We cannot say that they were not at liberty, by the principles of law,
to infer from the evidence the existence of the usage. The evidence
might be somewhat loose and indeterminate, and so be urged with
WHITK V. AENDT. 723
more or less effect upon their judgment; but in a legal sense it was
within their own province to weigh it as proof or as usage.
The last exception professes to call upon the court to institute a
comparison between the testimonj- introduced hy the plaintiff and that
introduced bj' the defendant against and for the usage. It requires
from the court a decision upon its relative weight and credibilitj', which
the court were not justified in giving to the jurj' in the shape of a
positive instruction.
Upon the whole, in our judgment, there is no error in the judgment
of the Circuit Court ; and it is affirmed, with costs. ^
WHITE V. ARNDT.
Supreme Court of Pennsylvania. 1836.
[Reported 1 Whart. 91.]
Writ of error to the Court of Common Pleas of Northampton countj%
to remove the record of an action in which Abraham Arndt was plaintiff,
and William White, defendant.
The material facts appeared to be as follows : Jacob Arndt devised
to his wife for the term of her life, a brick store, a stone house, and two
lots of ground, in the borough of Easton, with remainder in fee to Abra-
ham Arndt, the plaintiff. The widow afterwards married William A.
Lloj'd, who, with his wife, demised the premises to William White, for
the term of three years, from the 1st daj' of Jul}-, 1829, at the rent of
300 dollars per annum. Mrs. Llojd, the tenant for life, died about the
25th December, 1829. White, the defendant, continued to occupj- the
premises, and paid rent quarterlj', to the plaintiff, until the 1st of
April, 1832. The premises were sold by the plaintiff at public sale, on
the 23d of February, 1832.
The present action was originally instituted before a justice of the
peace, to recover the sum of seventy-five dollars, being one quarter's
rent of the premises due on the 1st of April, 1832. After hearing, the
justice rendered judgment for the full amount of the plaintiff's demand.
The defendant having appealed to the Court of Common Pleas, the de-
fendant declared in assumpsit ; and issue having been joined on the plea
of no7i assumpsit, the cause came on for trial on the 27th of January,
1835. The plaintiff having proved the occupation of the premises by
the defendant, during the term of three months, and the amount paid
by him for tlie preceding quarters, the defendant offered to prove, in
substance, that with the knowledge and approbation of Mr. and Mrs.
Lloyd, he had erected upon the lot of ground, a frame stable, and two
frame shops, and had made other improvements of the property ; that
1 See Gannm v. Hare, 1 Tenn. Ch. 22, 36.
724 WHITE V. AKNDT.
it was agreed between them (the said Lloyd and wife, and White) that
White was to have the libertj' of selling or removing the stable, and
that the shops were to be taken by the owners of the lots at a valuation,
or if a valuation could not be agreed upon, that he was to have the
privilege of removing the materials : That when the premises were put
up at public sale, he requested the crier, hy a written paper, to give
notice of his claim, but the plaintiff's agent refused to permit the notice
to be read : That the purchaser took possession of these buildings, with
the other parts of the propertj', and still retains them.
The plaintifi's counsel objected to this evidence, and the court refused
to receive it : upon which a bill of exceptions was tendered ; and the
jury having found for the plaintiff, the record was removed to this
court.
The onl}' question argued was the admissibilitj' of the evidence in the
court below.
Mr. Brooke, for the plaintiff in error.
Mr. Porter, for the defendant in error.
EoGERS, J. It is a general rule of the common law, that whatever
is annexed to the inheritance during the tenancj-, becomes so much a
part of it, that it cannot be removed by the tenant, although the im-
provements maj' have been made at his own expense. As in Warner
V. Fleetwood, 4 Rep. 63, glass put in by the tenant, or wainscot fast-
ened by nails, was held part of the inheritance. To this rule there are
certain exceptions, nearly as old as the rule itself, as between landlord
and tenant, that whatever buildings or other fixtures are erected for the
purpose of carrying on trade or manufactures, may be removed bj'^ the
tenant, during the term. The cases upon this subject are collected bj'
Lord EUenborough, in Mlwes v. Maw, 3 East, 38 ; and by Mr. Justice
Story, in Yan JVess v. Pacard, 2 Peters' Rep. 145. As to sub-
stantial improvements, they are usualh" made a consideration for ex-
tending the term of the lease ; or some collateral agreement is made, so
as to allow of some compensation to the tenant. The latter was the
course adopted bj- the parties to this contract. The tenant. White,
erected on the premises several improvements, among which was a
stable, and two shops, which, it is said, greath- enhanced the value. It
was agreed at or about the time of the erection of these improvements,
between White and Mr. and Mrs. Llo3-d, who had an estate for life,
that White was to have the libert}- of selling or removing the stable,
and that the barber's shop, and other small buildings erected by him
were to be taken at a valuation ; and that if a valuation should not be
agreed on, White was to have the privilege of removing the materials of
the shops. As between the parties to this contract, this agreement was
a good consideration ; and any violation of it on the part of Lloyd, would
have subjected him to an action. And I am inclined to believe, on the
authority of Yan Ness v. Pacard, that if the estate of Lloyd had con-
tinued until the end of the term. White would have had a right to
remove the buildings from the premises, without the consent of the
WHITE V. ARNDT. 725
owner of the remainder, notwithstanding the general principle, that
whatever is annexed to the freehold, becomes part of it, and cannot
afterwards be removed, except by him who is entitled to the inheri-
tance. The exception in favor of trade, which is founded on pubhc
policy, and intended to encourage manufactures and the improvements
of the countrj-, may well apply to this case ; for the question does not
depend, upon the size or form of the house, or the manner in which it
is built ; but the only inquiry- always is, whether it was intended for
purposes of trade or not ; and I cannot believe that the nature of the
business, whether agricultural or mercantile, can make any difference.
But while these principles are conceded, I am unwilling to extend them
beyond the duration of the estate which the tenant for life has in the
premises, so as to subject the owner of the fee to payment for the build-
ings, or to compel him to allow them to be removed. In the case at
bar, Lloyd's interest was in right of his wife, who had a life estate.
On her death, the interest in possession vested in Arudl, the owner of
the remainder in fee.
The death of Mrs. Lloyd put an end to White's lease. Now, there
is no principle better established by authority than that, even as be-
tween landlord and tenant, fixtures must be removed during the term.
After the term they become inseparable from the freehold, and can
neither be removed b}' the tenant, nor recovei'ed by liim as personal
chattels, b}- an action of trover, or for goods solil and dehvered. 1 Atk.
477, Ex parte Quincy ; 3 Atk. 13, Luwton v. Lawton, and the note ; 2
Peters' R. ; Lord Dudley v. Lord Ward, Ambl. 113 ; Co. Lit. 53 a ;
Brooke, Waste, 104, 142; Cooper's Vase, Moore, 177; Day y. Ms-
bitch, Cro. E. 374 ; Lord Derby v. Asquith, Hob. 234 ; 4 Term, Rep.
745 ; 7 Term, Rep. 157.
It has been contended by the counsel for the plaintiff in error, that
the tenant for life can bind tlie remainder-man by contract, so as to com-
pel him either to pay for improvements which enhance tlie value of the
property, or to permit them to be removed when it can be done without
injury to the inheritance. For this position they rely on Whiting v.
JBrastow, 4 Pickering, 310, in which it is ruled, that a tenant for
life, years, or at will, may at the determination of his estate remove
such erections, &c., as were placed on the premises by himself, tlie re-
moval of which will not injure the freehold, or put the premises in a
worse plight than when he entered. In Whiting v. Brastow, the
tenant removed a padlock used for securing a binn house, and mov-
able boards fitted and used for putting up corn in binns. That was a
case between landlord and tenant, and not between tenant for life and
the remainder-man ; the rule being that, as between the latter, in ques-
tions respecting the right to what are ordinarily called fixtures, as be-
tween tenant for life or in tail and the remainder-man or reversioner,
the law is considered more favorable than between landlord and tenant.
It is construed most strictly between the executor and heir, in favor of
726 WHITE V. AKNDT.
the latter ; more liberallj' between tenant for life or in tail and the re-
mainder-man, or reversioner, in favor of the former ; and with much
greater latitude between landlord and tenant, in favor of the tenant.
A distinction arises, also, between the cases, from the nature of im-
provements. In Whiting v. Jirastow, the court treated the improve-
ments as personal chattels ; but this cannot be said of these erections
which are of a permanent substantial kind, and which surelj' would not
have gone to the executors of Mrs. Lloj-d, if the buildings had been
erected by her. It would have been waste in the tenant to have re-
moved them ; for it is in general true, that when a lessee having an-
nexed anything to the freehold, during his term, afterwards takes it
away, it is waste. Co. Lit. 53 ; Moore, 177 ; 4 Co. 64 ; Hob. 234.
Doty V. Gorham, 5 Pickering, 487, merelj^ decides that a shop
placed on the lands of the plaintiff, with his permission, was a chattel,
and as such may be sold, on an execution against the owner and that
the purchaser has a right to enter on the land and remove the shop.
This principle it is not necessary to controvert, as the application of it
is not perceived.
It must be remarked, that the agreement does not purport to bind
Arndt, the owner of the remainder in fee, and seems to have been made
under the belief and with the wish, that the life interest would last as
long as the lease, which was but for three 3'ears. But if the intention
were to bind him, the objection arises, that it is not competent for them
to make an agreement, to affect the inheritance. On the falling in of
the particular estate, the remainder-man or reversioner is entitled to all
the improvements, which the law denominates fixtures, without regard
to the manner they are constructed, the persons who may have erected
them, or whether the3' may contribute to enhance the value of the prop-
ertj- or not. If the tenant for life, or the person with whom he con-
tracts, wishes to avoid the consequences, the improvements must be
removed during the continuance of the first estate ; or the assent of the
remainder-man, or reversioner, must be obtained. There is nothing which
shows any assent to the agreement by Arndt. The deposition of Lloj'd
proves nothing further than that the rent was made known to Arndt,
and that he made no objection against White being the tenant for the
remainder of the lease. But not a word was said, so far as appears,
about this agreement. It is in general true, that where there is a lease
for years, and by consent of both parties the tenant continues in pos-
session afterwards, the law implies a tacit renovation of the contract.
But that principle cannot fairly be made to apply to this case ; for here,
although the lease terminated at the death of Mrs. Lloyd, and the ten-
ant continued in possession with the consent of Arndt, yet that would
bind the parties to nothing more tlian what came within the teims of
the lease. It would not include the case of a collateral agreement, in-
dependent of the lease itself. The agreement on which this case turns,
was a collateral agreement, of which it does not appear that Arn-'t was
irOBLE V. BOSWOETH. 727
in any manner apprised, or to which there is not the slightest evidence
he assented, either directly or by necessary implication.
Judgment affirmed.''-
NOBLE V. BOSWORTH.
Supreme Judicial Couet of Massachusetts. 1837.
[Reported 19 Pick. 314.]
Shaw, C. J. It will probably not be necessary to go much at large
into the facts of this case, to explain the only material principle of law
on which it is decided. The action is trespass for taking and carrying
away one iron kettle and two copper kettles. There are two counts :
one, quare clausum, charging the taking away of the kettles as aggra-
vation ; the other, de bonis asportatis, in which the gravamen is, the
taking awaj- and converting the same kettles.
The defendant, by deed of June 4th, 1835, duly executed, acknowl-
edged and delivered, conveyed to the plaintiff a parcel of real estate,
on which was a dj'e-house, and in that dye-house were the kettles in
question. Thej- were flrmlj- set in brickwork, and constituted a valu-
able part of the estate, and were a part of the realtj". By mutual
agreement, the grantor retained possession till April, 1836, at about
which time the kettles were taken down by the defendant and removed.
The deed convej'S the premises, including the dye-house and appurte-
nances, but making no mention of the kettles, either bj' expressly ex-
cepting or including them. The deed was not delivered at the time
of its date, and probablj' not till some months after ; but this is not
material.
The defence relied upon was, that at the time the bargain was made
for a sale of the premises, by the defendant to the plaintiff, June 4th,
1835, it was agreed by Bosworth, the owner of the d3'e-house, with one
Chapin, to sell him the three kettles, that this was known to Noble,
and it was understood and agreed, that by the deed from Bosworth to
Noble, the kettles were not intended to be conveyed, and that although
the agreement between Bosworth and Chapin from accidental causes
fell through and was not executed, 3-et that the propertj- in the kettles
remained in the defendant, and did not pass by his deed to the plaintiff.
This presents two questions : first, whether the deed, bj' its ordinarj'
effect and operation, transferred the property in these dye-kettles ; and
if so, then secondly, whether that effect can be controlled by the parol
agreement made before or at the time of the delivery of the deed, that
the kettles should not be considered as included in the deed.
As to the first, whatever doubt there might be, if kettles were erected
in like manner by a tenant on the leased premises, for the purposes of
1 See ffaflick v. Slober, 1 1 Ohio St. 482.
728 PEIRCE V. GODDARD.
his trade, or by a mortgagor after the estate had been mortgaged, we
have no doubt, that where an owner erects a d3-e-house on his own land,
and sets up dj-e-kettles therein, firmly secured in brick work, they
become part of the realtj-, and pass b^- a deed of the land without
express words. The legal efllect and operation of such a deed is to
vest the entire right and propertj' in the kettles in the grantee. Union
Mank v. Emerson, 15 Mass. E. 159.
2. Then is it competent for the grantor to control or restrain this
legal eflTect, by proof of a parol agreement, made previouslj- to or at
the time of the delivery- of the deed? The court are all of opinion, that
it is not. It would be as well contrarj- to the general rule of the
common law, which provides that the terms of an instrument in writ-
ing shall not be altered or controlled by a parol agreement, as against
the provision of the Statutes, which requires that all rights and inter-
ests in real estate, shall be manifested b}' some instrument in writing,
and that no action shall be brought on anj^ agreement for the sale of
lands, or any interest in or concerning the same, unless in writing.
St. 1783, c. 37, §§ 1, 2, 3. It is as much against these rules to admit
parol evidence, to prevent or restrain the legal inferences and conse-
quences of a deed, as to control and alter its express provisions.
Fattison v. Hull, 9 Cowen, 754. A deed passes all the incidents to
the land as well as the land itself, and as much when not expressed, as
when the}' are. If the parol agreement were made before the execu-
tion and delivery of the deed, it is to be regarded as part of the nego-
tiation and discussion respecting the terms of the purchase and sale,
which is considered as merged and embodied in the deed itself as the
final and authoritative expression of the agreement and determination
of the parties on the subject. If it was made at the time of the deliv-
ery of the deed, then it must be deemed an exception, reservation or
defeasance, and being repugnant to the terms and effect of the deed,
it is void.
For these reasons, the court are of opinion, that the verdict, which
was for the defendant, must be set aside, .and a new trial granted.
Lathrop, I C. Bates, and Forbes, for the defendant.
Wells, Alvord, and W. Q. Bates, contra.
PEIRCE V. GODDARD.
Supreme Judicial Court of Massachusetts. 1839.
{Reported 22 Pick. 559.]
Trover. The writ contained two counts, one, for the conversion of
a dwelling-house, and tlie other, for the conversion of the materials of
a dwelling-house.
By an agreed statement of facts it appeared that Oliver G. Daven-
port, on the 16th of January, 1836, mortgaged to the plaintiflf a lot of
PEIRCE V. GODDAED. 729
land in Templeton, with a dwelling-house thereon, to secure the pay-
ment of a promissorj' note of that date for the sum of $450, upon which
there was still due the sum of about $270 ; that after such mortgage
was made, Davenport, having purchased another lot of land in Temple-
ton, undertook to remove the house to such lot; but that after having
removed it from sixty to eight}' rods from its former site, he took it all
to pieces and carried the materials to the subsequentlj' purchased lot,
and there erected a house of the same dimensions as the former house ;
that in the construction of the new house, he made use of the materials
of the old house, so far as they would answer the purpose, together
with new materials, which were furnished by himself ; that the removal
of the old house and the erection of the new one, were known to the
defendant ; but there was no evidence that he knew of the mortgage,
other than what resulted from the record thereof.
It further appeared, that when the new house was completed, Daven-
port, for a valuable consideration, convej-ed the lot on which it stood,
together with the house, to the defendant, who occupied the same from
that time until after the commencement of this action, when he sold
the same to a third person.
A nonsuit or a default was to be entered, as the court should
determine.
Washburn and JIartshorn, for the plaintiff.
C. Allen, for the defendant.
Wilde, J., drew up the opinion of the court. This action is sub-
mitted on an agreed statement of facts, by which it appears, that one
Davenport, being the owner of a lot of land with a dwelling-house
thereon, mortgaged the same to the plaintiff; that afterwards he took
down the house, and with the materials partly, and partly with new
materials, built a new house on another lot of his at some distance ;
and that after the new house was completed, he, for a valuable consid-
eration, sold the last-mentioned lot and house to the defendant.
There are two counts in the declaration : one, for the conversion of
the newly erected house ; and the other, for the conversion of the mate-
rials with which it was built, belonging to the old house.
The plaintiff's counsel insist, that the old house was the property of
the plaintiff, and that Davenport had no right to take it down, and
could not therefore acquire any property in the materials by such a
wrongful act ; that the new house, being built with the materials from
the old house in part, became the property of the plaintiff, although
new materials were added, by right of accession ; and that Davenport,
having no property in the house, as against the plaintiff, could convey
no title to it to the defendant.
That Davenport is responsible for taking down and removing the old
house, cannot admit of a doubt ; but it does not follow, that the prop-
erty in the new house vested in the plaintiff.
The rules of law, by which the right of property may be acquired by
accession or adjunction, were principally derived from the civil law,
730 PEIECE V. GODDAED.
but have been long sanctioned by the courts of England and of this
conntn- as established principles of law.
The general rule is, that the owner of propert}', whether the property
be movable or immovable, has the right to that which is united to it by
accession or adjunction. But by the law of England as well as by the
civil law, a trespasser, who wilfull}- takes the propert3- of another, can
acquire no right in it on the principle of accession, but the owner may
reclaim it, whatever alteration of form it maj' have undergone, unless
it be changed into a different species and be incapable of being restored
to its former state ; and even then the trespasser, b}- the civil law,
could acquire no right by the accession, unless the materials had been
taken away in ignorance of their being the property of another. 2
Kent's Com. 362 ; JBetts v. iee, 5 Johns. R. 348. But there are
exceptions to the general rule.
It is laid down bj' M0II03' as a# settled principle of law, that if a man
cuts down the trees of another, or takes timber or plank prepared for
the erecting or repairing of a dwelling-house, nay, though some of them
are for shipping, and builds a ship, the property follows not the owners
but the builders. Mol. de Jure Mar. lib. 2, c. 1, § 7.
Another similar exception is laid down by Chancellor Kent in his
Commentaries, which is directly in point in the present case. If, he
saj-s, A. builds a house on his own land with the materials of another,
the property in the land vests the property in the building by right of
accession, and the owner of the land would only be obliged to answer
to the owner of the materials for the value of them. 2 Kent's Com.
360, 361. This principle is full}- sustained bj' the authorities. In
Bro. tit. Property, pi. 23, it is said, that if timber be taken and made
into a house, it cannot be reclaimed bj- the owner ; for the nature of it
is changed, and it has become a part of the freehold. In Moore, 20, it
was held, that if a man takes trees of another and makes them into
boards, still the owner may retake them, but that if a house be made
with the timber it is otherwise.
In Popham, 38, this principle is further extended. The plaintiff in
that case had mixed his own hay with ha}- of the defendant on his land,
and the defendant took away the hay thus intermixed ; and it was held,
that he had a right so to do. But it was also held, that if the plaintiff
had taken the defendant's hay and carried it to his house and there
intermixed it with his own hay, the defendant could not take back his
ha:y, but would be put to his action against the plaintiff, for taking his
haj-. If there be any doubt of the doctrine laid down in this case, it
does not affect the present case. The doctrine laid down in the former
cases is fully supported by the Year-Books, 5 Hen. 7, 16 ; and I am
not aware of an}' modern decision or authoritj', in which this old doc-
trine of the English law has been controverted.
The case of Russell v. Hichards, 1 Fairfield, 429, cited by the plain-
tiff's counsel, was decided on the ground, that the building in contro-
vers}' was personal propertj- and had never become a part of the
EICHAEDSON V. COPELAND. 731
freehold. In the present case it cannot be questioned, that the newly
erected dwelling-house was a part of the freehold, and was the prop-
erty of Davenport. The materials used in its construction ceased to be
personal property, and the owner's property in them was divested as
effectually as though they had been destroyed. It is clear, therefore,
that the plaintiff could not maintain an action even against Davenport,
for the conversion of the new house. And it is equally clear, that he
cannot maintain the present action for the conversion of the materials
taken from the old house. The taking down that house and using the
materials in the construction of the new building, was the tortious act
of Davenport, for which he alone is responsible.
Plaintiff nonsuit}
RICHARDSON u. COPELAND.
Supreme Judicial Court op Massachusetts. 1856.
[Eeported 6 Cfray, 536.]
Action of tort for the conversion of a steam-engine and boiler,
which were manufactured and set up b^' John Putnam and others,
under a contract with Josiah Richardson, upon his land in Leominster,
in a building erected for the purpose of receiving them, and were used
to run the machinery in the adjoining shop of said Richardson. The
boiler was set into the brick-work in such a manner that it could not be
removed without taking down the brick-work ; and the engine was
placed upon a granite block, and fastened by a bolt or pin. After the
work was finished and the engine was in operation, said Putnam and
others gave a bill of sale of the engine and boiler to Richardson ; and
at the same time received back a mortgage thereof, which was recorded
as a mortgage of personal property ; and afterwards, upon breach of
the condition thereof, due notice was given of intention to foreclose the
same as such a mortgage. Richardson subsequently became insolvent,
and said real estate was sold by his assignees b}' order of the commis-
sioner, on the petition of mortgagees thereof, (some of whose mortga-
ges were made before the erection of the engine and boiler, and some
since,) to one Harlow, who had full knowledge of the mortgage to
Putnam and others, and of the proceedings thereon, and who after-
wards sold the engine and boiler to the defendant, to be taken away,
and the defendant removed them. The plaintiff afterwards purchased
all the rights of Putnam and others, and gave notice thereof to the
defendant, and demanded the property of him.
The plaintiff also offered to prove that, by the general usage and
custom of trade between manufacturers and vendees of such property,
it was regarded and treated in all respects as personal property. But
the Court of Common Pleas held the evidence incompetent.
The parties submitted the foregoing case to this court, with an agree-
1 See Central Branch R. R Co. v. Fritz, 20 Kans. 430.
782 EICHARDSOK V. COPELAND.
ment that if, upon the facts stated, the action could be maintained, or
if the evidence offered was competent, the case should stand for trial ;
otlierwise, judgment for tlie defendant.
IST. Wood, for the plaintiff.
J. W. Fletcher and C. Devens, Jr., for the defendant.
Shaw, C. J. This is an action of tort, in the nature of trover, to
recover the value of a steam-engine and boiler. To maintain this
action, the plaintiff must prove property in himself, and a conversion by
the deftendant.
Upon the facts stated, the court are of opinion that the engine and
boiler, having been erected on the premises of Josiah Richardson, of
which he was then the owner in fee, subject to se^'eral mortgages,
became annexed to the freehold. Winslow v. Merchants' Ins. Co., 4
Met. 306. This real estate comprised a manufactory occupied and
carried on by said Richardson, and the engine was erected to furnish
power for such manufactory. The steam-boiler was permanently set in
brick-work, and could not be removed without taking down the brick-
work, and the eqgine was permanently annexed to the buildings. This
permanent annexation of the engine and boiler to the freehold, de facto,
rendered them part of the realty ; and his agreement with the builders
to give them a mortgage thereon as personal property-, as against all
those who took title to the estate in fee, was inoperative and void. No
title to these articles passed as personal propertj- to the mortgagees
which they could assert against a third partj'. The engine and boiler
thus remained part of the realtj' till Josiah Richardson become insol-
vent, and the estate passed to his assignees, subject to the right of the
mortgagees of the real estate ; it was rightly sold by order of the com-
missioner, on their petition, and a good title passed to Harlow, the
purchaser. He afterwards severed them, and thus reconverted them
into personal property, as he lawfuUj- might, and sold them to the
defendant, who thereby took a good title.
The evidence of usage was rightly rejected ; it could not be received
to control the operation of law, arising from the actual annexation of
the engine and boiler to the freehold. If it be said, it might have
tended to show the intent of the parties ; the answer is, that the intent
of the parties was manifest enough from the agreement of the parties
and the mortgage. But the diflflcult}' was, (b3' mistake of the law, no
doubt,) that this intention was one which the law could not carry into
effect, that of hypothecating a portion of the realty, as personal prop-
erty', without severance.
The fact, that Harlow had full knowledge of the historj- of the mort-
gage, did not impair his right to be a purchaser.
It is to be observed, as a fact important to the present case, that the
engine and boiler were purchased and set up in the factor}' by one who
himself owned the freehold. Had they been so bought and placed by a
tenant on leased premises, the case might have presented a different
question. Judgment for the defendant.''-
1 See DudUy, v. Foote, 63 N. H. 57.
E0GEK8 V. GIIJNGER. 733
ROGERS V. GILINGER.
Supreme Court of Pennsylvania. 1858.
[Reported 30 Pa. 185.]
•Error to the Common Pleas of Bucks countj''.
This was an action of trover, brought in the court below, bj^ "William
T. Rogers and Paul Applebach, assignees of "William Beek, against
Philip Gilinger, Samuel Groflf, Matthew H. Crawford, and Henry C.
Hill ; in which the parties agreed upon the following statement of facts,
to be submitted for the opinion of the court, and considered in the
nature of a special verdict. The decision to be upon the merits of the
case, without regard to form, and either party to have a right to sue
out a writ of error.
' ' "William Beek was the owner in fee of a tract of land in Doj'les-
town township, Bucks county, upon which was erected a large frame
building, on stone foundations, designed to be used for the purposes of
agricultural and other exhibitions. By deed dated the 26th of October,
1856, recorded the same daj- in the recorder's otHce of said county, in
Miscellaneous Book No. 11, page 149, he assigned all his property
(including the above) to the plaintiffs in trust for the benefit of his
creditors.
" On the 28th of the same month, the building was blown down by a
storm of wind. Tlie foundations and floor were left nearlj- entire, but
the whole building above the floor was a complete wreck, severed from
its supports and broken up, so that it could not be replaced, or the
materials be used in the construction of a similar building.
" Subsequentlj' the sheriff levied upon the land, b}' virtue of an exe-
cution against Beek, issued on a judgment entered previouslj' to the
date of the assignment, and sold and conveyed the same to the defend-
ants. The ruins of the building, at the time of sale, were in the same
condition as immediately after it was blown down. The defendants
took possession of the property, sold the ruins of the building and
received the proceeds to their own use. The plaintiffs dul}' notified the
defendants, that they claimed such parts of the building as were severed
from the foundations, as personal propertj', and brought this action to
recover damages for the taking of the same.
" The property was described in the advertisement by the sheriff, on
the ven. ex. as containing about 28 acres of land, and that the im-
provements consisted of the wreck of the large exhibition house and
all its materials, — the foundations, joists, and floor of the building
being good, and more than one half of the doors, windows, roofing, and
timbers could be used for the purpose of erecting another building
of the kind. The property as advertised was struck off to the de-
fendants for $6000. The defendants afterward applied to the court for
734 EOGERS V. GILINGER.
a rule to show cause whj' the sale should not be set aside, and thcj'
relieved from their bid, on the ground of the uncertaintj- whether the
said wreck and materials passed to them as purchasers at sheriff's sale,
as part of the real estate ; and the court refused to grant the relief
requested, and confirmed the sale.
" The ven. ex., return, and proceedings to set aside the sale, are
considered as a part of this case.
"If the court should be of opinion that the parts of the building
severed from the foundations were personal propertj-, then judgment to
be entered in favor of the plaintiffs for the sum of $698, with interest
from June 21st, 1856 ; but should the court not be of such opinion, then
judgment to be entered in favor of defendants."
The court below {Smyser, P. J.) entered judgment in favor of the
defendants. Whereupon the plaintiffs sued out this writ of error.
Watson, for plaintiffs in error.
C. E. and J. L. Dubois, for defendants in error.
Strong, J. The owner of a lot of ground upon which had been
erected a large frame building, conveyed the propert}- to assignees in
trust for the benefit of creditors. Prior to the assignment, a judgment
had been recovered against the assignor, which was a lien upon the real
estate convej-ed. Two daj-s after the assignment had been made, a
storm of wind demolished the building, leaving the foundation and
floors nearly entire, but breaking the superstructure sp that its materials
could not be replaced, or used in the construction of a similar building.
While in this condition, the whole was levied upon and sold under exe-
cutions founded upon the judgment against the assignor, and the volun-
tarj- assignees now claim that the ruins of the frame building did not
pass at the sheriff's sale ; that they were personal property, and that
the purchaser under the vejiditioni exponas having used them, is re-
sponsible to the assignees in an action of trover.
It ma}' be premised that the assignees stand precisely in the shoes of
Beek the first owner. If he could not assert against the purchaser at-
sheriff's sale, supposing no assignment had been made, that the frag-
ments of the building were personalty, neither can they. It may also
be remarked that the purchaser under the judgment has obtained all
upon which the judgment was a lien.
Now clearly Beek, the first owner, could not have torn down the
building, and converted the materials from realty into personaltj', with-
out diminishing the security of the judgment, impairing its lien, and
wronging the judgment creditor. Though the statutory writ of estrepe-
ment might not have been demandable until after levy and condemna-
tion of the property, yet equity would have enjoined against any such
wrong. The building, as such, constituted a large part of the creditor's
security, and his lien embraced every board and rafter which made a
constituent part of the structure. Nor were the rights of the assignees
any more extensive. Thej- were mere volunteers. Thej' took the prop-
erty as land only, encumbered as a whole, and in every part, by the
ROGERS V. GILINGEK. 735
lien of the judgment. Their title was in one sense subordinate to the
right of the judgment-creditor to take all which passed to them in satis-
faction of his debt.
In Ilerlakenden's Case, 4 Rep. 62 a, it was resolved that if a lessee
pulls down a house, the lessor may take the timber as a thing which
was parcel of his inheritance. So in Bowles's Case, 11 Eep. 81 b, it
was held that if the lessee cut down timber, the lessor may take it.
Though severed, it is a parcel of the inheritance.
Nor will the tortious act of a stranger be allowed to injure the rever-
sion. 2 M. & S. 494 ; 1 Term Eep. 55 ; Garth v. Sir John Cotton, 1
Vesey Sr. 524. These principles are reasserted in Shult v. Barker,
12 S. & R. 272 ; 7 Conn. 232 ; 3 Wendell, 104. Nor will a severance
by the owner of that which was a part of the realty, unless the sever-
ance be with the intent to change the character of the thing severed,
and convert it into personalty, prevent its passing with the land to a
grantee. Thus it was held in Goodrich v. Jones, 2 Hill, 142, that
fencing materials on a farm which have been used as part of the fences,
but are temporarily detached without any intent to divert them from
their use as such, are a part of the freehold, and as such pass by a
conve3-ance of the farm to a purchaser.
Is the rule different when the severance occurs not by a tortious act,
nor b}' a rightful exercise of proprietorship, without any intent to divert
the thing severed from its original use, but by the act of God? The
act of God, it is said, shall prejudice no one (4 Co. 86 b), yet the
maxim is not true if a tempest be permitted to take away the security
of a lien-creditor, and transfer that which was his to the debtor or
the debtor's assignees. If trees are prostrated per vim venti, they
belong to the owner of the inheritance, not to the lessee. Herlaken-
den's Case, ut supra. He takes them as a part of the realty. True, he
may elect to consider them as personaltj', and this he does when he
brings trover for their conversion ; but until such election they belong to
him as a parcel of the inheritance. If a tenant hold " without impeach-
ment of waste," the propertj- in the timber is in him ; but if there be no
such clause in his lease, and he remove from the land trees blown down,
such removal is waste. That could not, however, be, unless, notwith-
standing the severance, they continue part of the realtj', for waste is an
injury to the realt}-.
I am aware that it is said to have been held that if an apple-tree be
blown down, and the tenant cut it, it is no waste. 2 Rollc Abr. 820.
That may well be, for the falling of the tree is through the act of God,
not of the tenant, and the cutting of the fallen timber is but an exercise
of the tenant's right to estovers ; but if he remove from the laud fallen
timber, it has been ruled to be waste.
What then is the criterion by which we are to determine whether
that which was once a part of the realty has become personalty on
being detached ? Not capability of restoration to the former connection
with the freehold, as is contended, for the tree prostrated by the tern-
736 ROGERS V. GILINGER.
pest is incapable of reannexation to the soil, and j'et remains realty.
The true rule would rather seem to be, that which was real shall con-
tinue real until the owner of the freehold shall by his election give it a
(litferent character. In Shepherd's Touchstone, 90, it is laid down that
" that which is parcel, or of the essence of the thing, although at the
time of the grant it be actually severed from it. does pass by a
grant of the thing itself. And therefore bj' the grant of a mill, the
mill-stone doth pass, although at the time of the grant it be actnalh'
severed from the mill. So by the grant of a house, the doors, windows,
locks, and keys do pass as parcel thereof, although at the time of the
grant they be actuallj- severed from it."
It must be admitted that the ease before us is one almost of the first
impression. Very little assistance can be derived from past judicial
decision. There is supposed to be some analog}- between the character
of these fragments of the building and that of a displaced fixture. The
analogy, however, if any, is very slight. These broken materials never
were fixtures, though thej- had been fixed to the land. Thej- had been
as much land as the soil on which thej- rested. Severance had never
been contemplated. One of the best definitions of fixtures is that found
in Shean v. Richie, 5 Mees. & W. 171. They are those personal
chattels which have been annexed to the freehold, but which are remov-
able at the will of the person who has annexed them, or his personal
representatives, though the property in the freehold maj' have passed
to other persons. Yet even fixtures, which but imperfectly partake of
the character of realty, go to the purchaser at sheriff's sale of the land,
though thej- have been severed tortiouslj-, or bj- the act of God. Thus
where a copper-kettle had been detached from its site in a brewery by
one not the owner, had remained detached for a long period, and while
thus severed had been pledged by the personal representatives of the
owner, it was still held to ha^e passed by a sheriflf's sale of the brewery
under a mechanics' lien, filed before the severance. Oray v. Soldship,
17 S. &R. 413.
Without, however, discussing the question further, it will be perceived
that in our opinion the broken materials of the fallen building must be
considered as a parcel of the realty as between the assignees and the
purchaser at sheriff's sale, and consequently that they passed by the
sale to the purchaser.
The judgment is affirmed.
VAUGHEN V. HALDEMAN. 737
VAUGHEN V. HALDEMAN.
Supreme Court of Pennsylvania. 1859.
[MepoHcd 33 Pa. 522.]
Error to the Common Pleas of Lancaster countj\
This was a case stated, between .Joshua Vaughen and Peter Halde-
man, in the nature of a special verdict, with the right to sue out a writ
of error ; in which the following facts were stated for the opinion of the
court : —
In 1846 Peter Haldeman purchased a large brick dwelling-house
and lot of ground, in Second Street, in the borough of Columbia, and
moved into it and occupied it with his family until the 20th April,
1856.
In Jul}-, 1853, for the more comfortable enjoj-ment of the property,
and lighting the premises, he caused gas-pipes to be introduced into
the several apartments of the house, and ornamental and handsomelj'
finished chandeliers, such as are commonly used in good private par-
lors, and brackets or side-lights attached to them. Two chandeliers
were screwed into pipes in the ceihng of the parlor, and the joints were
covered with cement ; the brackets were screwed into the pipes in the
wall and cemented, — this being the common and usual mode of fasten-
ing gas-pipes.
On the 1st of January, 1856, the premises were sold by the sheriff,
under an execution against Peter Haldeman, the defendant, and were
purchased for $7,175, by the plaintiff, Joshua Vaughen, to whom a
deed was executed on the 20th of the same month. On the 21st, notice
was given to the defendant, to quit the premises, at the expiration of
three months. On the 8th Apnl, 1856, on application of the plaintiff,
a writ of estrepement to staj' waste was granted, and placed in the
hands of the sheriff.
The said Peter Haldeman, while this writ was in the hands of the
sheriff, and before removing from the premises, notwithstanding a no-
tice from the plaintiff not to do so, detached the said chandeliers and
brackets, and carried them away.
It was agreed that if the court should be of opinion that Vaughen,
the purchaser of the real estate, was legally entitled to the said chan-
deliers and brackets, or either of them, then judgment should be entered
generally for the plaintiff, the damages to be ascertained by writ of
inquiry ; but if he was not entitled to them, or either of them, then
judgment to be entered for the defendant ; the costs to follow the
judgment.
The court below (Hayes, P. J.) gave judgment for the defendant on
the case stated ; which was here assigned for error.
47
738 VAXJGHEN V. HALDEMAN.
Stevens and North, for the plaintiff in error.
Fordney and Reynolds, for the defendant in error.
Read, J. Lamps, chandeliers, candlesticks, candelabra, sconces,
and the various contrivances for lighting houses, by means of candles,
oil, or other fluids, have never been considered as fixtures, and as
forming a part of the freehold. There is no trace of a contrary doctrine
in the JjUglish decisions, nor does it appear that the ordinary' apparatus
for lighting has ever been classed among fixtures.
This is still the law ; but it is supposed that the introduction of car-
buretted hydrogen gas may have changed the character of the appara-
tus, because it must be connected with the pipes through which the
gaseous fluid is brought into the building. If such were the case, it
would establish two different rules in relation to the same subject,
depending entirely' upon the medium used to produce light.
The first gas-works were established in London, fiftj' years ago ; and
in 1835, the first ordinance was passed by the city of Philadelphia for
their erection, since which period thej- have been gradually introduced
into the cities, towns, and villages of the interior. The pipes connect
with the street main, and are now carried up through the walls and
ceilings of the house, with openings at the points where it is intended
to attach fixtures, for the purpose of lighting the rooms and entries.
These are called gas-fittings ; whilst the chandeliers, and other substi-
tutes for the oil-lamps and candles, are called gas-fixtures, and are
screwed on to the pipes and cemented, onlj- to prevent the escape of
gas ; and may be removed at pleasure, without injury either to the
fittings, or to the freehold. There is, therefore, reall}- nothing to distin-
guish this new apparatus from the old lamps, candlesticks, and chan-
deliers, which have always been considered as personal chattels.
Gas-stoves are largely used for bath, and other rooms, and are neces-
sarily- connected with the gas-pipes in the same way ; but no one would
think of saying that they were fixtures, which it would be waste to re-
move. It is, therefore, more simple to consider all these gas-fixtures,
whether stoves, chandeliers, hall and entr}- lamps, drop-lights, or table-
lamps, as governed bj- the same rule as the articles for which thej- are
substituted.
We find no reported decisions on this subject m the English courts ;
but there have been some cases in our sister States, bearing directl}'
upon this question. \\y Lawrence v. Kemp, 1 Duer's Reports (Superior
Court of New York), 363, it was decided that gas-fixtures, when placed
by a tenant in a shop or store, although fastened to the building, are
not fixtures as between landlord and tenant ; and in Wall v. Hinds, 4
Gray, 256, the Supreme Court of Massachusetts held that a lessee
could take away gas-pipes put in by him into a house leased to him for
a hotel, and passing from the cellar through the floors and partitions,
and kept in place in the rooms by metal bands, though some of them
passed through wooden ornaments of the ceiling, which were cut away
for their removal.
VATJGHEK V. HALDEMAN. 739
The case now before us seems to have been directl}- decided in Mon-
tague V. Bent, 10 Richardson (S. Carolina Law Reports), 135, in
December, 1856, by the Court of Appeals of South Carolina. Under a
sale to foreclose a mortgage, a house and lot were sold, and a few days
afterwards, the sheriff, under executions against the mortgagor, re-
moved and sold certain gas-chandeliers, and pendant hall gas-burners,
and the court held unanimouslj-, that they were not fixtures which
passed to the purchaser of the real estate by the conveyance of the
freehold. The reasoning of the court appears to us to be decisive of
the present case, the only difference being that the house here, was sold
under a judgment, and not under a mortgage.
By "A supplement to an Act entitled ' An Act relating to the lien
of mechanics and others upon buildings,' passed the sixteenth day of
June, Anno Domini one thousand eight hundred and thirty-six,"
which was passed 14th April, 1855 (Pamph. L., p. 238), it is enacted
" that from and after the passage of this Act, the several provisions of
the Act, to which this is a supplement, be and the same are hereby
extended to plumbing, gas-fitting and furnishing, and erection of grates
and furnaces."
By referring to the Senate Journal of 1855, it appears that the first
section of this bill was amended in the Senate, by striking out all after
the word "to" in the seventh line, and inserting in lieu thereof the
words as follow, viz. : " plumbing, gas-fitting, furnaces, and furnace
buildings " (p. 167) ; and upon the passage of the bill, by the unani-
mous consent of the Senate, it was amended in the first section, by
striking out of the eighth line the words " furnaces, and furnace build-
ings," and by inserting in lieu thereof, the words " and furnishing, and
erection of grates and furnaces." Notwithstanding, therefore, the
punctuation of the Act, the word "gas-fitting" stands alone, the fur-
nishing and erection of grates and furnaces relating to an entirely
different subject.
It is not necessary to place a construction upon this Act, because in
the present case the fittings and fixtures were introduced into an old
house ; but it would seem reasonable, that it should be confined to what
is generallj- understood by the words " gas-fitting."
For these reasons, in addition to those assigned by the court below,
the judgment must be affirmed.^
1 See Johnson v. Wiseman, i Met. (Ky. ) 357 contra.
740 POKD V. COBB.
FOED V. COBB.
Court of Appeals of New York. 1859.
[Reported 20 N. Y. 344.]
Appeal from the Supreme Court. Action to recover damages for an
alleged illegal entrj* upon the plaintiffs premises, and taking, removing
and converting twentj'-three salt kettles. On the trial before a referee,
it appeared that on the 6th September, 1855, one Orrin W. Titus was
in possession of a lot of land, known as block No. 55, in the village of
Liverpool, Onondaga count}', upon which he had erected works for the
manufacture of salt. On that day he purchased of the defendants fiftj'
iron salt kettles, and certain iron arch pieces, arch fronts and grates,
to be put up in said salt works, for the price of $955.60, for which he
gave his promissory notes, paj-able in November, Julj-, and August next
after the purchase. He also executed to the defendants a chattel mort-
gage upon said articles, which recited the sale and that the kettles, &c.,
were about to be taken from SjTacuse to Liverpool, and to be set up in
the aforesaid salt block. It was conditioned to be void if Titus should
pay the notes at their maturity ; otherwise to be an absolute transfer to
the defendants. Titus was to remain in possession until default, unless
the defendants should consider themselves insecure ; in which case they
had a right to take possession of the property and applj- it to the puj-
ment of the debt, and Titus was to pay the deficiencj-, if an}'. The
mortgage was duly filed in the clerk's office of Onondaga county, and
was continued in force by refiling according to the Statute. Titus
thereupon set the kettles in arches, upon the salt block, in such man-
ner that they could not be removed, except by tearing off a portion of
the upper bricks of the arch, and prying the kettles out by a plank and
bars. It was proved to be the general custom to take the kettles from
the arch, and to reset them every season before commencing boiling in
the spring ; and that these kettles had been taken out, reset in the fall
of 1856, before the defendants took them, as afterwards mentioned ;
and that it would have been necessary again to take them out, and re-
set them the ensuing fall, if the defendants had not taken them.
Titus was the beneficial owner of the lots on which the salt works
were erected, in June, 1855, though the legal title was in Horace White,
from whom he had an executory contract. He, Titus, had put up the
frame of the salt works, and had covered the building ; and some time
in that month he made a verbal agreement with the plaintiff, to sell
him an undivided half of this property, and of other veal estate, for
$2,000, nearly all of which was paid down. By this agreement, Titus
was to put in the kettles, half the cost of which was included in the
purchase price, finish the salt block and wall it ; and this he accord-
POED V. COBB. 741
inglj' did by purchasing and putting in the kettles and otherwise ; and
he leased the whole to one Soule, who continued to run the salt works
down to the time the defendants took the kettles. In October, 1855,
Titus procured White, in whom the legal title was, to conve\' the lot to
one T. O. Titus, and the latter, on the 21st March, 1856, by O. W.
Titus' procurement, conveyed the same to O. W. Titus and the plain-
tiff, and in November, 1856, 0. W. Titus conveyed his interest to the
plaintiff.
On the 10th Februar}-, 1857, no part of the notes given for the pur-
chase price of the kettles, except the first note for $200, having been
paid, the defendants entered upon the premises, and took and carried
awaj- twent3--three of the salt kettles, claiming them by virtue of the
mortgage. Thej' did no moi'e damage than was necessarj', but they
were obliged to remove a part of the upper bricks of the arch, and to
pry up the kettles, each of which weighed about 675 pounds, in the
manner before mentioned ; by which, as the referee found, the property
was injured to the amount of $50. The plaintiff was absent from
the countrj', and did not know of the purchase of the kettles when it
was made, or of the giving of the chattel mortgage, until the day the
kettles were taken by the defendants. The referee held, as matter of
law, that the kettles were a part of the realty, and that the plaintiff be-
came the owner of them by his purchase of the land, and he awarded
damages to $461.77, for which judgment was entered; and it was
affirmed at general term. The defendants appealed. The case was
submitted upon printed briefs.
Philo Gridley, for the appellants.
James JVbxon, for the respondent.
Denio, J. The case is to be considered as though 0. W. Titus was
the owner of the land at the time he purchased the kettles and put them
into the arch, and as though the plaintiff subsequently purchased the
land from him, and took a conveyance of it without any notice of the
defendants' claim to the kettles. This is the precise point of view in
which the question has been regarded in the Supreme Court, and in the
briefs which have been submitted by the counsel for the respective
parties. The plaintiff, it is true, had made a verbal agreement with
Titus, anterior to the time when the kettles were set, but the latter
was in possession of the land as owner, with the plaintifl^s consent,
when he purchased and mortgaged the kettles ; and it does not appear
that the defendants had any knowledge of the verbal arrangement
between Titus and the plaintiff.
I shall assume, that if Titus had paid for the kettles when he pur-
chased them, instead of mortgaging them for the purchase price, the man-
ner in which he annexed them to the freehold was such as would have
converted them into a parcel of the realty ; and that they would have
passed to his subsequent grantee of the land, or would have gone to his
heirs or devisees if he had died without conveying it. It is very clear
that this would have been so at the common law and independently of
742 roED V. COBB.
the provisions of the Revised Statutes. The case of the salt pans, de-
cided by Lord Mansfield, where it was held that fixtures, very similar
in their purpose and mode of annexation with these now in question,
belonged to the heirs and not to the executors, has been very generally
followed in England and in this country. Lawton v. Salmon, 1 H.
Bl. 258, note ; and see Murdoch v. Gifford, 18 N. Y. 28, aiid cases
cited. There is room for an argument, that the rule thus established
has been modified by tlie provision of the Revised Statutes, which de-
clares that " things annexed to the freehold or to anj- building for the
purpose of trade or manufacture, and not fixed into the wall of a house
so as to be essential to its support," shall go to the executor or adminis-
trator to be applied as part of the personal property. 2 R. S. 82, § 6,
subd. 4. Apparently it was the intention of the Legislature to abolish
the distinction, which had become well established, between the rights
of a tenant to remove certain kinds of fixtures which he had himself an-
nexed to the freehold of the demised premises, and those of the heirs or
devisee. If that is the true construction of this provision, the kettles in
question ought to be held to be personal property, and the plaintiff, who
makes title only by means of a conveyance of the land, would have no
case. But the important and unexpected consequences which it was
seen would flow from such an interpretation have caused the courts to
hesitate ; and in House v. House, 10 Paige, 158, Chancellor Wal-
worth decided that the millstones, bolts and machinery of a flouriug
mill were parcel of the real estate and descended to the heirs of the
owner, holding, as I understand the case, that the rules of the common
law upon the distinction referred to, still prevailed ; and the jjresent
Chief Judge, in giving the opinion of this court in the case of Murdoch
V. Gifford, 18 N. Y. 28, seemed inclined to adopt the conclusion of
the Chancellor. But the point was not necessary to the decision of that
case, as the fixtures there in question were held to be personal prop-
ertj', according to the former decisions, in any aspect in which the ques-
tion might be presented. The reasoning of the Cha;noellor, in House v.
House, is not altogether satisfactory to mj' mind ; but as the judgment
in that case ma}- be said to have become a rule of property, it should
not be disturbed without the greatest consideration, and certainly not
in a case like the present, which may be satisfactorily disposed of on
other grounds.
Assuming then that these kettles would be parcel of the real estate
if the owner of the land was the unqualified owner of them when they
were put up in the arch, we are to determine as to the effect of the
arrangement in this case by which the owner of the land and the owner
of the kettles agreed, that notwithstanding their annexation to^the free-
hold in the manner which was contemplated, they should continue to be
personal property so far as should be necessar}' to give efi'ect to the
personal mortgage. It will readilj' be conceded that the ordinary dis-
tinction between real estate and chattels exists in the nature of the
subject, and cannot in general be changed bj' the convention of the
FORD V. COBB. 743
parties. Thus, it would not be competent for parties to create a per-
sonal chattel interest in a part of the separate bricks, beams or other
materials of which the walls of a house were composed. Rights by
wa}- of license might be created in such a subject, but it could not be
made alienable as chattels, or subjected to the general rules by which
the succession of that species of propertj' is regulated. But it is other-
wise with things which, being originally personal in their nature, are
attached to the realty in such a manner that they may be detached
without being destroyed or materiallj' injured, and without the destruc-
tion of, or material injury to the things real with which they are con-
nected ; though their connection with the land or other real estate is
such that in the absence of an agreement or of any special relation be-
tween the parties in interest, thej^ would be a part of the real estate.
The cases respecting trade fixtures put up by a tenant sufficiently ex-
emplifj- this distinction. Thus, in the case of the salt pans, which Lord
Mansfield held belonged to the heirs, no doubt was entertained by him
but that they might lawfully have been detached and taken away if
they had been put in bj- a tenant. " It would have been a diflTerent
question," he said, "if the springs had been let and the tenant had
been at the expense of erecting these salt works ; he might very well
have said, I leave the estate no worse than I found it." All the cases
upon this branch of the law of fixtures proceed upon the idea that erec-
tions which would clearly be a part of the realty under ordinary circum-
stances, are personal chattels as regards the rights of a tenant who
has put them up for the purpose of trade or manufacture. Penton v.
Robart, 2 East, 88 ; Elwes v. 3Iaw, 3 Id. 38 ; Buckland v. Butter-
field, 2 Brod. & Bing. 55 ; Holmes v. Tremper, 20 John. 29 ; Miller
V. Plumb, 6 Cow. 665. If a subject which would otherwise be real es-
tate can be made personal bj' the creation of special relations between
the parties, it is clear that the same parties may effect the same thing
by express agreement. Accordingly, it has been repeatedly held that
erections which, by the general rules of law, would belong to the
freehold, have become chattels in consequence of a contract to that
effect between the owner of the land and the party claiming the erec-
tions as personaltj'. In Smith v. Benson, 1 Hill, 176, a building used
as a grocery and dwelling-house had been erected under an agreement
with the proprietor of the soil that it might be removed at any time.
One who claimed title under the party who erected it, but who had no
interest in the land, mortgaged it as a chattel, and afterwards sold it as
personal propertj-. The question was between the mortgagee and the
subsequent purchaser, and the former was allowed to recover in trover
against the latter, who had converted the house. In answer to the ob-
jection that the building was real estate and therefore not the subject of
such an action. Judge Cowen said that prima facie such a building
would be a fixture and would not be removable ; that the legal effect of
putting it on another's land would be to make it a part of the freehold.
" But tlie parties concerned," he added, " may control the legal effect of
744 FORD V. COBB.
any transaetioa between them by an express agreement." So in Mott
V. Palmer, 1 Comst. 564, the defendant had sold and conveyed to the
plaintiff by deed containing a covenant of seisin, a farm, certain of the
fences standing upon which had been put up bj' a third person under
an agreement with the defendant that he might take them off at his
pleasure. This third party had recovered the value of the fences of
the plaintiff, who had refused to let him take them off, in an action of
trover, upon which the plaintiff sued the defendant, his grantor, for a
breach of the covenant, and was permitted to recover the value of the
fences. The recovery could be sustained onlj- on the assumption that
fences were prima facie parcel of the freehold, but might legally be-
come personal property' by force of such an agreement as was proved in
the case. And in Godardy. Gould, in the present Supreme Court (14
Barb. 662) , the plaintiffs had sold certain paper-making machinerj-, to be
put up in a paper-mill, reserving, however, bj- express agreement, the
title to the machinery as a security for the purchase monej-. It was ac-
cordingly put up, and afterwards the owner of the mill sold and con-
veyed it to the defendants, who had no notice of the plaintiffs' rights.
The deed, besides describing the land on which the mill stood, pur-
ported also to convej- all the machinerj- in it. The action was for the
conversion of the machiner}- bj- the defendants ; and a recovery in favor
of the plaintiffs was sustained bj^ the court. It was considered that the
machinery was personal property, bj- force of the arrangement under
which it was placed in the mill, though its mode of annexation and
adaptation to the purposes of the mill were such that it would have
passed b^' a simple convej'ance of the real estate but for the agreement
by which the plaintiffs retained the right of property In it. Many other
cases to the same effect will be found referred to in " Hilliard on Real
Property," ch. 1, §§ 18-28.
It is conceded that there must necessarilj' be a limitation to this doe-
trine, which will exclude from its influence cases where the subject or
mode of annexation is such that the attributes of personal propertj- can-
not be predicated of the thing in controversy'. Thus, a house or other
building, which from its size or the materials of which it was con-
structed, or the manner in which it was fixed to the land, could not be
removed without practically destroying it, would not, I conceive, be-
come a mere chattel, bj' means of any agreement which could be made
concerning it. So of the separate materials of a building, and things
fixed into the wall, so as to be essential to its support ; it is impossible
that they should by anj' arrangement between the owners become chat-
tels. The case of Fryatt v. The Sullivan Co., 5 Hill, 116, was cor-
rectlj' decided upon this distinction. A certain steam-engine and boiler
were leased, and the lessees took them to their smelting works, and
affixed them so firmly to the freehold that they could not be removed
without destroying the building in which thej' were placed. The de-
fendants made title to the building, under a mortgage executed after
the engine had been thus annexed, and the owner of the engine and
FORD V. COBB. 745
boilers brought trover for them. It was held, that the articles had been
converted into real estate, and that the remedy of the plaintiff was
against the party who wrongfully converted them from personal into
real propeity ; and that the action could not be sustained against the
owners of the real estate.
The question in the present case, therefore, is, whether the method
in which these salt kettles were affixed to the freehold was such that
they can still be claimed as chattels, upon the principle of the first men-
tioned cases, or whether they are to be considered as real property
within the one last referred to. There is no pretence that they were
necessary to the support of the building, or that their own condition
was essentially changed, or their value diminished, by being detached
from the arch. They were of value after being removed, as second-
hand kettles, and could be again put up in another arch ; but taking
them out involved the displacement of certain of the bricks of which
the arch was composed. I do not think this a controlling circumstance,
especially as it is found by the referee, that they required to be taken
out and re-set as often as once a j'ear, in the ordinary course of the
business of manufacturing salt. This involved a certain amount of
expense, whether it was done for the purpose of re-setting, or with a
view of flnallj' disconnecting them with the arch. I do not think that
it required any such destruction of the subject, or serious damage to the
freehold to which they were attached, as to render void the arrange-
ment b}' which it was agreed that thej' should continue to be personal
property, for the purpose of removal, in case default should be made in
the payment of the purchase monej'. They were not so absorbed or
merged in the realty, that their identit3' as personal chattels was lost ;
and unless such an effect has been produced, there is no reason in law
or justice for refusing to give effect to the agreement, by which they
were to retain their original character.
I conclude, therefore, that tiie defendants were entitled, as against
O. W. Titus, to detach the kettles from the arch and take them away,
after default had been made in the paj-ment of the purchase price ; and
the only remaining question is, whether the plaintiff is in any better
position than that which Titus occupied. The kettles were originally
personal propertj'. The agreement contained in the chattel mortgage
preserved their character as personalty, which would otherwise have
been lost by their annexation. They, therefore, continued to be per-
sonal chattels notwithstanding the annexation ; and the plaintiff, by
filino- the mortgage, observed all the formalities required by law to
preserve their lien upon that kind of property. The title to the kettles
did not, therefore, pass by the conveyances to the plaintiff. Those
conveyances embraced only the interests which the grantors had a right
to dispose of, including any advantage which would accrue to the
giantee by the laches of the former owners, in giving the constructive
notice which the law required to be given ; but I do not see that any
such laches occurred. This seems to me the true state of the case upon
746 CLARY V. OWEN.
principle. But it is also sustained by authority. The case of Moit v.
Palmer, already referred to, necessarih' involved this point. . It was
held, that the covenant of seisin was broken at the time of the execu-
tion of the deed, because the fences which were embraced in the gen-
eral description of the property professed to be conveyed, did not pass
by it ; and the reason they did not pass was, that thej- had been saved
from merging in the freehold by an agreement in character precisely
like the one set up bj' the present defendants. If it could have been
maintained that they passed bj' the deed, because they were apparently
parcel of the realty, and because the grantee had no notice of the special
arrangement, no recover3' for a breach of the covenant of seisin could
possibly have been sustained. This decision, pronounced by our prede-
cessors in this court, is of the highest authority' with us> and is decisive
of the point. There is a case equally in point, in the Supreme Court of
New Hampshire [Maine]. The action was trover for a saw-mill, mill
chain and dogs. The defendant made title under a deed of the land on
which the mill stood ; and the evidence showed that he had no notice
of the special facts upon which they were claimed to be personal prop-
ert3'. Those facts were, that the defendant's grantee, the owner of the
land, was a party to an arrangement bj' which that mill had been sold
to the plaintiff as personal property. It was decided that the action
was maintainable, and the plaintiff had judgment. Russell v. Rich-
ards, 1 Fairf 429. The case of Oodard v. Qould, before referred
to from the reports of the present Supreme Court of this State, is to the
same effect.
These considerations lead to a reversal of the judgment of the Su-
preme Court in the present case, and to tlie award of a new trial.
Johnson, C. J., Strong, Allen, Ghay, and Grover, JJ., concurred ;
CoMSTOCK, J., dissented.
Judgment reversed, and new trial ordered.^
CLARY V. OWEN.
Supreme Judicial Court of Massachusetts. 1860.
[Reported 15 Gray, 522.]
Action of tort by the assignee in insolvency of Heman D.Burghardt,
for the conversion of four water-wheels, with the shafts, couplings, and
other machinery connected with them. At the trial in the Superior Court
the plaintiff introduced evidence of the following facts : —
In 1854 Burghardt contracted with John E. Potter, who then owned
certain real estate in Barrington, to furnish the water wheels and machin-
1 See Tifft v. HorUm, 63 N. Y. 377.
CLABY V. OWEN. 747
er}-, and to set them up in wheel-pits to be prepared by Potter on the
premises, for the sum of $3,500, of which $500 was paid at once, and
the balance was to be paid on the completion of the work, in notes
secured by a mortgage of the property, or by a mechanic's lien.
In the latter part of 1854, Burghardt, in pursuance of this contract,
constructed the wheels in question, which were made of cast iron and
placed in pairs upon cast-iron shafts, and set them up in penstocks and
a flume, the frame of which rested on a stone foundation built by Pot-
ter in all respects like the foundation of a building. The wheels were
intended for the purpose of driving a paper-mill on the premises ; they
were outside of the paper-mill building, but the mill could not be used
without them.
In January-, 1855, before the completion of the wheels and fixtures,
the mill was destroyed by fire ; Potter failed, and abandoned the work ;
and Burghardt never fulfilled his contract and never received anj' pay-
ment or securitj-, except the $500 paid at the time of making the con-
tract ; never delivered the wheels, except in so far as setting them up
as above described amounted to a deliverj- ; never offered to return
the money which he had received, and never called on Potter for any
paj'ment.
When the contract was made the premises were subject to certain
mortgages, which were afterwards assigned to the defendants, who had
previously had notice that Burghardt claimed to own the wheels and
machinery, and who, a year after the fire, took possession of the prem-
ises, which were in the condition in which the fire had left them, to
foreclose the mortgages, and afterwards purchased the equity of
redemption.
Upon this evidence, Putnam, J., ruled that the wheels having been
placed on the premises after the execution of the mortgages, the action
could not be maintained. The plaintiff then offered to show that, by
the agreement between Burghardt and Potter, the wheels were to re-
main the property of the former until completed, and payment for
them secured by mortgage ; but the judge ruled that, even if that were
proved, the plaintiff could not maintain his action, and directed a ver-
dict for the defendants, which was returned, and the plaintiff alleged
exceptions.
J] D. Colt, for the plaintiffs.
J'. E. Field and M. Wilcox, for the defendants.
HoAE, J. It is conceded in the argument of the plaintiff's counsel,
that the mill-wheels, for the value of which this action was brought,
must be considered, as between mortgagor and mortgagee, fixtures be-
longing to the realty. They were essential to the operation of the
mill, and were intended, when completed and paid for, to be perma-
nently attached to the land. If the mortgagor had himself annexed
them to the freehold, there could be no doubt that the mortgagee would
hold them under his mortgage, and that they could not be severed
without his consent. Winslow v. Merchants' Ins. Co., 4 Met. 306.
748 CLAEY V. OWEN.
But it is contended that the mortgagor being in possession, and having
agreed with Burghardt that the wheels should remain the personal prop-
erty of the builder until they were completed and provision made for
paying for them, the wheels, having been set up under this agreement,
could not be claimed and held by the mortgagee.
If this position were tenable, it would follow that the mortgagor could
convey to another a right in the mortgaged premises greater than he
could exercise himself. But it is well settled that, although the mort-
gagor, for some purposes, and as to all persons except the mortgagee,
may be regarded as the absolute owner of the land, yet the title of the
mortgagee is in all respects to be treated as paramount. The mort-
gagor cannot make a lease which will be valid against the mortgagee ;
and if the mortgagee enter, neither the mortgagor nor his lessee will be
entitled to emblements. Pow. Mortg. c. 7 ; JTeech v. Sail, 1 Doug. 21 ;
Ziane v. King, 8 Wend. 584 ; Mayo v. Fletcher, 14 Pick. 526. And
we think it is not in the power of the mortgagor, by any agreement
made with a third person after the execution of the mortgage, to give
to such person the right to hold anything to be attached to the freehold,
which as between mortgagor and mortgagee would become a part of the
realty. The entry of the mortgagee would entitle him to the full enjoy-
ment of the premises, with all the additions and improvements made by
the mortgagor or by his authority.
Whether a person putting a building upon land by license of the
mortgagor, under such circumstances that it would remain his personal
property as against the mortgagor, would be allowed in equit}' to main-
tain a bill to redeem, if the mortgagee should enter, is a question involv-
ing very different considerations. A tenant under a lease may redeem,
to protect his interest. Rev. Sts. c. 107, § 13 ; Bacon v. Bowdoin,
22 Pick. 401.
It has been suggested that the defendants cannot avail themselves of
their title as mortgagees, because thej- acquired the title of the mort-
gagor also, and therefore the mortgages are to be regarded as paid or
merged. But it has been often decided that the purchaser of an equity
of redemption may take an assignment of the mortgage, and may keep
the legal and equitable titles distinct, at his election, if he has anj- in-
terest in so doing, so that thej- shall not merge hj unit}' of possession.
And a release of an equitj- of redemption operates as an extinguishment
of the equity of redemption, and not as a merger of the estate conveyed
by the mortgage. Loud v. Lane, 8 Met. 517.
Exceptions overruled}
1 See Tifft v. Eorton, 53 N. Y. 377 ; Bunt v. Bay Stale, Iron Co., 97 Mass. 279 ;
Porter v. Pittsburg SUel Co., 122 U, S. 267.
GIBBS V. ESTEY. 749
GIBBS V. ESTEY.
Supreme Judicial Court of Massachusetts. 1860.
[Reported 15 Gray, 587.]
Action of tort for breaking and entering the plaintiff's close and dig-
ging up and canying away a house. Answer, that the house was the
personal property of the defendant Estey.
At the trial in the Superior Court before Rockwell, J., there was evi-
dence that the close was in 1850 owned by Ira Haskell ; that he, while
in possession of the land, assented to the erection of a house thereon
by Warren Gibbs, and agreed that Gibbs should hold the house as per-
sonal propertj- ; and that this assent was given and agreement made
after the cellar had been dug, the cellar wall and underpinning stone
laid, the frame of the house erected, and while the work of building was
still going on. The judge ruled that such assent and agreement, to be
effective, must have been before or at the time when the frame of the
house was erected.
The judge rejected evidence, offered by the defendants, of the dec-
larations of Solomon Gibbs, Haskell's grantee and the plaintiff's grantor,
while in possession of the land, that he neither owned nor claimed the
house.
There was evidence that Estey bought the house of Warren Gibbs as
personal property, and afterwards bought the equity of redemption of
the land at a sale on execution against Solomon Gibbs ; that he sub-
sequently released to Solomon the rights acquired by this purchase,
and remarked to him, at the time of delivering the release, that he
should abandon his claim to the house, as he had been advised by counsel
that he could not hold it. The judge instructed the jury that if, at the
time of delivering such release, Estey verballj- relinquished his claim to
the house, neither he, nor any one claiming under him, could afterwards
legallj- assert any title to it, by virtue of anj- previous title to it as
personal property.
The jury returned a verdict for the plaintiff, and the defendants alleged
exceptions.
G. T. Davis, for the defendants.
S. T. Spaulding, for the plaintiff.
Dewey, J. The plaintiff has acquired an undisputed title to the real
estate described in his writ by sundry conveyances passing the title of
Ira Haskell as he held the same at the date of his deed to Solomon
Gibbs. It is conceded that this title of Haskell was originally a valid
one, and sufBcient to pass the estate in the land ; but it is contended
that the house standing thereon, and which is the subject of the present
controversy, was the personal property of Warren Gibbs, under whom
750 GIBBS V. ESTEY.
the defendants claim title. The question in the case is therefore
whether this house was real estate and passed by the various conve}--
ances as such, or was personal estate capable of being held and sold
irrespective!}' of its connection with the land. If it was a part of the
realtj-, it has duly passed to the plaintitf. The general rule is that a
building like a house, erected on the land, will of course become a part
of the realty, and as incident thereto will pass with the land. An ex-
ception to the rule has been held to exist in cases where the owner of
the land has given permission to another person to erect a building upon
such land, to be held and enjoyed as his own as personal property.
Such separation of the personal from the real estate to which it is at-
tached is to be established by evidence of assent to the erection of the
same, before the structure is erected and has become attached to the
realt}', and thus had its character fixed. That essential element was
wanting in the present case. It is shown in this case that the time of
giving such assent was after the digging of the cellar, the laying of the
cellar wall and underpinning stone, and the erection of the frame of the
house thereon, and while the process of further completing the building
was going on. The instruction of the court, that such assent, to be
effective, must have been given before or at the time when the frame of
the house was erected, was correct. After that period of time, the
building, though it might be an unfinished building, was a building at-
tached to the real estate, and would pass as such. The intention of the
parties, if it existed, to change this to personal property, was one which
the law could not carry into effect. Richardson v. Copeland, 6 Graj'',
538. Such being the case, the house would in law pass by the various
conveyances of the real estate upon a part of which it stood.
The declarations of Solomon Gibbs, one of the intermediate owners,
while he owned the real estate, that the house was not owned or
claimed bj- him, would not defeat the title legallj' in him, and which he
has passed to the plaintiff.
It is unnecessarj- to consider the further question of the effect to be
given to the evidence of the declarations of the defendant Estey, wholly
relinquishing his claim to the house at the time of making his quitclaim
deed of the land to Solomon Gibbs, the grantor of the plaintiff. In the
view the court take of the case, the first ground is decisive in favor of
the plaintiff, without any aid from these declarations.
Judgment for the plaintiff.^
1 Contra, Fuller y. Tabor, 39 Me. 519 (1855).
" It is argued on behalf of the assignees that a contract to treat fixtures as chattels,
whether it be express or implied, must be made before they are actually affixed to the
realty ; and for this some remarks of Dewey, J., delivering the opinion of the court in
Gibbs V. Estey, 15 Gray, 587, are quoted. But those remarks appear to be intended
only for parol agreements concerning buildings and fixtures annexed by a stranger, and
to mean that such a parol agreement or license cannot change real into personal estate
after its character has been once established. So if the question here were between the
petitioner and the savings bank, no mere oral license of the latter, given after the en-
gines were set up, could be shown. Growing wood or crops may be sold by parol, with
BEENNAN V. "WHITAKBE. 751
BRENNAN v. WHITAKER.
Supreme Couet of Ohio. 1864.
[Reported 15 Ohio St. 446.]
Error to the District Court of Lucas countj-.
Tiie original action was prosecuted by the Brennans, plaintiffs, in
the Court of Common Pleas of Lucas count}-, to recover from Wliitaker
and Phillips, defendants, damages for the alleged wrongful conversion,
by the defendants, of two steam engine boilers, one large steam engine,
a quantity of mill shafting, one drum, one balance wheel, the gearing
for an upright saw, one muley saw and the gearing, and one poney
engine.
The facts, as thej' appear in the record, are substantially as follows :
On the 9th of July, 1857, Farley & Ketcham, parties of the first part,
executed a mortgage to the plaintiffs, parties of the second part, by
which " the said parties of the first part for and in consideration of the
sum of $1231.51, to them in hand paid bj'the said parties of the second
part ... do grant, bargain, and sell unto the said parties of the second
part, all and singular the goods and chattels hereinafter described, that
is to say • The steam engine boilers now in the possession of said par-
ties of the first part, designed to be used in their saw mill in Oregon
township, Lucas county, Ohio, being the same purchased by them of
the said J. & J. Brennan this day, together with the engines and
machinery attached to said boilers. To have and to hold all and singu-
lar the said goods and chattels hereinbefore bargained and sold, or
mentioned, or intended so to be, unto the said parties of the second
a parol license to sever them ; and I am much inclined to think that trade fixtures
might be. At all events there can be no doubt that the owner can in writing and for
a valuable consideration convey severable chattels in such a way as to bind himself and
his assignee in bankruptcy by estoppel at least. The discussions of the question
whether fixtures have passed by a deed or mortgage all assume, and many of tliem ex-
press that if the owner chooses to except the fixtures out of his conveyance of the fee,
he may lawfully do so. Two or three decisions in England, whicli are thought to state
the law too strongly against mortgagees, are yet supported on the ground that the par-
ticular conveyances maybe construed as including or excluding the fixtures as the case
may be. See Waterfall v. Penistone, 6 E. & P. 876 ; Trappes v. Barter, 2 C. & M.
153 ; Cullwick v. Swindell, L. R. 3 Eq. 249 ; Colgrave v. Bias Santos, 2 B. & C. 76 ;
Harlan v. Harlan, 20 Penn. State, 303. So in Richardson v. Copeland, 6 Gray, 538,
the Chief-Justice says : ' No title to these articles passed to the mortgagees which they
could assert against a third party,' referring, no doubt, to a prior incumbrancer or an
innocent purchaser of the land, as in Htin't v. The Bay State Iron Co. , and as the defend-
ant in the case then before the court seems to have been in effect. The assignee is not
a third party, in this sense." — Per Lowell, J., in Ex parte Ames, 1 Low. 561, 567.
See Madigan v. McCarthy, 108 Mass. 376 ; Aldrich v. Husband, 131 Mass. 480 ;
Eines v. Ament, 43 Mo. 298 ; Meyers v. Schemp, 67 111. 469,
752 BEENNAN V. WHITAKER.
part forever ; said goods and chattels now remaining and continuing in
the possession of the said parties of the first part, in said Lucas county,
Ohio."
The mortgage was given to secure the paj-ment of the note of Farley
& Ketcham to the plaintiffs, bearing the date of the mortgage, for the
sum of $1231.51, paj-able, with the interest, in one year; it being the
amount due for the purchase money of the boilers mortgaged, and was
subject to the coudition that if default was made in the payment of the
note according to its tenor, the plaintiffs might " enter upon the prem-
.ises of the said parties of the first part at any place or places where the
said goods and chattels or any part thereof maj- be, and take possession
thereof, whether the same shall have been attached to the freehold, and
in law become a part of the realty or not, and to remove the same to
anj^ place or places thej- maj- deem best, and -to sell and disijose of the
same."
The mortgage was filed in the office of the recorder of Lucas county,
on the 9th of July, 1857, and copies, with the requisite statements,
again filed by the plaintiffs in the same place each j-ear thereafter up to
the time of the commencement of this action.
After the execution of the mortgage, the boilers were put by Farley
& Ketcham into a saw-mill, erected by them on land of which they were
the owners in fee. The}' were placed in an engine house, built princi-
pally of brick, on one side of and attached to the main building of the
mill. The roof of the mill extended over and formed the covering of
the engine house. The boilers were placed — one end on a cast-iron
frame, called the fire-front, which formed the front of the furnace, and
stood upon brick, the other end on iron stands also resting on the brick.
Under the boilers were built, to support them, piers of brick, and the
whole was enclosed in brick arches nearly surrounding the boilers, one
end of which came up to the fire-frame, and the otiier was built into the
end brick wall of the building. Usually the boilers are attached to the
fire-front and brick work by stay bolts, but the witnesses were not able
to saj' whether that was done in this case. The boilers could not be
removed without taking down the brick work around them and a part
of the building to make room for them to be taken out. To take the
boilers out through the mill would not require the walls of the building
to be taken down, but they could be taken out by removing a part of
the wood work in front, or b}- making a hole in the lean-to or engine
house, at the rear end of the boilers.
The engines were placed on wooden foundations and fastened to
them with bolts. The large engine was in the brick building with the
boilers, the other inside the main building. Thej- were connected with
the boilers by steam pipes. The main shaft was connected with the
large engine by a connecting rod fastened with keys. The drum and
balance wheel were placed on the main shaft and run with it. The
gearing for the upright saw was connected h\ a belt running on the
drum. The other saw connected directly with the shaft without any
BRENNAN V. "WHITAKEE. 753
belt. The engines could be taken out ; but there was no opening large
enough to take out the fly wheel ; and perhaps the drum would be too
large for the doors.
The mill was completed in the fall of 1857, and was after that time
occupied bj- Farley & Ketcham as a saw-mill, the motive power being
furnished by the engine and boilers. The building was designed for a
saw-mill, and in its form and structure was adapted to the business of
such a mill ; and, as appears from a description of the building con-
tained in the record, it would, without material alterations and addi-
tions, be comparatively of little value for any other purpose.
There was no water power connected with the mill, and it depended
wholly on steam for its power.
On the 14th of January, 1859, 'Farley & Ketcham executed to the
defendants a mortgage upon the real estate on which the mill was
located and all its appurtenances, to secure an indebtedness owing by
them to the defendants. The mortgage was dul}- recorded in the record
of mortgages of Lucas county. This indebtedness was unpaid at the
time of the commencement of this action, and the defendants were in
the possession of the mill. The plaintiffs demanded possession of the
property, but the defendants refused to permit them to take it away.
The plaintiffs claim that, at the time of receiving their mortgage, the
defendants had notice of the mortgage to the plaintiffs. This is denied
b}' the defendants. On the trial the Court of Common Pleas found this
issue in favor of the defendants.
Upon this^ state of facts and finding the Court of Common Pleas gave
judgment for the defendants.
To reverse this judgment a petition in error was filed by the plain-
tiffs in the District Court, where the judgment was affirmed, and the
plaintiffs now seek in this proceeding to reverse this action of the
District Court.
Mill and Pratt, for plaintiffs in error.
M. R. and R. Waite, for defendants in error.
White, J. I. The plaintiffs seek to recover for a tort arising from
the conversion of the property in controversy ; and, in order to estab-
lish their title to such property, as against the defendants Whitaker
and Phillips, rely upon the chattel mortgage. In order to ascertain
the relation in which Whitaker and Phillips stand to this mortgage, it
is proper, in the first place, to determine whether they had notice of its
existence at the time they received their real estate mortgage. The
issue, upon this question of notice, has been twice found in favor of the
defendants, by the Court of Common Pleas, and this finding we are
now asked to review, on the ground that it is against the evidence.
On this point, we only deem it necessary to state, that the testimony
in the court below was conflicting ; and while, as original triers of fact,
we would have been inclined to find differently, yet we cannot say that
the finding is so manifestly wrong as to warrant this court in reversing
the judgment on this ground.
48
754 BEENNAN V. WHITAKEE.
II. The next question is whether as between Farley & Ketcham,
the mortgagors, and Whitaker and Phillips, the mortgagees, in the real
estate mortgage, the property in controversj-, became a part of the
freehold ? We are of opinion that it did. A discussion of the general
pi-inciplcs to be regarded in determining when additions of personal
property become a part of the realty, is here deemed unnecessary.
The only difficulty arises in the application of these principles to the
solution of particular controversies as they arise ; and whether an arti-
cle has been annexed to the realty so as to become a permanent acces-
sion to it, must, in a great degree, be determined by the circumstances
of each particular case.
Farley & Ketcham, who made the annexations in the present case,
were the owners of the fee ; and the question we are now considering
arises between them, as mortgagors, and their mortgagees, Whitaker
and Phillips, who, for the purposes of their securitj-, are to be regarded
as purchasers.
The building was erected for a saw-mill, and, in the form and nature
of its structure, was adapted to the business of a mill of that descrip-
tion. The boilers and engines were the only motive power, and were
designed so to be when the mill was built. Thej' performed the office
of a wheel and water-power, and their adaptation to the structure and
the uses for which it was designed, as well as the mode of their annexa-
tion, show that they were intended to be permanent. The}' could not be
removed without leaving the saw-mill incomplete. The building, itself,
for any other purpose, would, without material alterations and addi-
tions, be comparatively of little value. The shafting, drum, balance
wheel, gearing for the upright saw, and the muley saw and gearing,
though differing from the boilers and engines in the mode of annexation,
yet are to be regarded as fixtures.
The mode of annexation, alone, does not determine the character of
the propertj' annexed ; but the appropriateness of the articles hamed
to the mill, and their necessit}- to its completeness, are also to be
looked to.
III. The remaining question is, whether the chattel mortgage to the
plaintifl's, as against the real estate mortgagees, deprives the property
in controversy of the character of fixtures ? The plaintiffs claim that
this is the effect of the chattel mortgage ; and that they have the same
right to recover the property from the mortgagees (Whitaker and
Phillips), without notice, as they would have had against Farley &
Ketcham, if the real estate mortgage had not been given.
It is not necessary to inquire what, as against mortgagees without
notice, would have been the rights of a party, other than the owner
of the freehold, who might have placed, in the same manner upon
the premises, the property in question, under some agreement with
the owner, for a temporarj- purpose, and with the right of remo^'al ;
nor as to what would have been the effect, if the property had been
annexed by the tortious act of Farley & Ketcham. The facts in this
BRENNAN V. WHITAKER., 755
case raise neither of these questions, and we forbear entering into an
examination of the authorities cited bearing upon them. Here it was
not only the intention of Farley & Ketcham to annex the property to,
and make it a part of, the freehold, but their so doing was according to
the understanding of the parties when tlie mortgage to the plaintiffs was
executed. In the mortgage it said the boilers are " designed to be
used in their (F. & K.'s) saw-mill," and power is given the plaintiffs on
default of payment, "to take possession thereof (mortgaged property)
whether the same shall be attached to the freehold and in law become
apart of the realty or not." The right given to the plaintiffs, by the
mortgage, to enter upon the premises and sever the propertj' would,
doubtless, have been effectual as between the parties. But the defend-
ants were purchasers without notice of this agreement. The filing of
chattel mortgages, is made constructive notice, onl}-, of incumbrances
upon goods and chattels. The defendants purchased, and took a con-
veyance of real estate, of which the property now in question was, in
law, a part ; and, in our opinion, it devolved upon the plaintiffs who
sought to change the legal character of the property-, and create incum-
brances upon it, either to pursue the mode prescribed b}^ law for incum-
bering the kind of estate to which it appeared to the world to belong,
and for giving notice of such incumbrance, or, otherwise, take the risk
of its loss in case it should be sold and conveyed as part of the real
estate to a purchaser without notice. It is true that in the case of
Fordy. Gohb, 20 N. Y. Eep. 344, it was held that an agreement which
was evidenced by a chattel mortgage was effectual against a subsequent
purchaser of the land, without notice. But it seems to us to be the
sounder rule, and more in accordance with principle, and the policy of
our recording laws, to require actual severance, or notice of a binding
agreement to sever, to deprive the purchaser of the right to fixtures or
appurteflances to the freehold. Fortman v. Goepper, 14 Ohio St. Rep.
565; 2 Smith's L. C. 259; Fryatt v. Sullivan Co., b Hill, 116;
Richardson v. Copeland, 6 Gray, 536 ; Frankland et al. v. Moulton et
al., 5 Wisconsin Rep. 1.
In the case last named, the owner of a steam engine, sold and as-
sisted to annex the same to the realty, reserving a chattel mortgage on
the same for a part of the purchase money ; and it was held that the
chattel mortgage was inoperative as against a prior mortgagee of the
real estate. The mode of annexation was very similar to that existing
in the case under consideration ; and the holding that the chattel mort-
gage was inoperative as against a prior mortgagee of the real estate, as
was likewise done in Copeland v. Richardson, supra, restricts the
operation of agreements to sever what would otherwise be regarded as
fixtures, more than is required to be done for the decision we make, in
the present case. Whether the restriction upon the right of removal,
that was applied in these cases, can be properly applied in favor of a
mortgagee of the real estate, claiming the property added to the prem-
ises after his mortgage, as fixtures, and against a party claiming the
756 Mclaughlin v. nash.
same property as personal chattels under a chattel mortgage from the
owner, when the removal would leave the realty claimed by the mort-
gagee as a security, in as good plight as when his mortgage was taken,
it is unnecessary now to inquire ; and, upon this question, we express
no opinion.
The judgment of tlie District Court will be affirmed.
BKiNKEEHorr, C. J., and Scott, Day, and Welch, JJ., concurred.
McLaughlin v. nash.
Supreme Judicial Court op Massachusetts. 1867.
[Reported 14 All. 136.]
Bill in equity for an account of a partnership formed between the
parties on the 1st of May, 1860, for the purpose of carrying on the»
business of tool-making, and dissolved on the 17th of December, 1861.
Upon the report of a master in chancer}', to whom the case had been
referred to state the account, the question was reserved for the deter-
mination of the full court, whether any of the following articles, the
value of which was found by the master, were partnership property,
under the circumstances hereinafter stated; namely, "engine and
boiler, $375 ; trip-hammer, $100 ; shafting and belting, $100 ; emery
machine, $40 ; blower, $50 ; force-pump and piping, $40 ; bench tools,
$10 ; vices, $40 ; planing machine, $275 ; forge tools, $100 ; stock of
iron and steel, $150 ; grinding stone and shaft, $30."
On the 1st of December, 1859, Ira Gerry executed to the plaintiff a
bond for the conveyance of a lot of land in Stoneham, with the build-
ings thereon, upon his paying $50 semi-annually for four year^ and a
half, and $1750 at the end of five j'ears, with interest, and meanwhile
paying all taxes levied on the premises, and a sufficient sum of money
to keep the buildings insured against fire in the sum of $1100; the
obligee "to have the privilege of occupying and improving the prem-
ises without further charge " until the convej-ance to him, or default in
payment of the price. Gerry erected a shop on the premises, for
which the plaintiff furnished some materials and labor. The articles in
question were put into the shop by the plaintiff. When the pai'tnership
was formed, the defendant purchased an undivided half of them, and
the firm agreed to pay to the plaintiff a stipulated rent for the use of
the shop. In the summer of 1861 the condition of the bond was broken,
and the plaintiff informed Gerry that he might collect the rent of the
premises. Gerry never obtained the keys of the shop ; but on the 20th
of December. 1861, let the shop to the defendant, "claiming all that
was fixed to the building as belonging to the real estate."
"The engine and boiler were set on brickwork, which was mh the
ground. The brickwork was built up to the fireplace, and under the
Mclaughlin v. hash. 757
boiler and engine, and the_y rested on this brickworlc. The boiler was
raised up, the brickwork built up, and the boiler let down upon it,
where it rested. There was no brickwork around it except as above
stated. The engine and boiler could be removed without removing the
bricks previouslj'. The engine was of eight horse power. The engine
and boiler were portable and in their own frames. It was formerlj-
used on a wharf, and was originally on trucks, which were taken off,
and kept on the premises. One half of the shop had no floor, except
cement, upon the ground. The trip-hammer was on a block of wood,
set in the ground, with a stone block for the hammer to rest and fall
on ; the other end was set in an iron frame, fastened with bolts to said
block of wood, set in the ground. The shafting was fastened up with
screws and bolts. The emery machine was set on the floor, and
fastened with bolts. The blower was set and fastened in the same
manner. The force-pump was fastened with screws to the side of the
building, and operated by the engine. The vices were fastened to the
work-bench with screws and bolts. The planing machine was set on
the floor ; it weighed a ton, and had no fastening. The largest anvil
was set on a stone block, with pins running up through, for it to set
on ; it could be lifted off; the others were set on wooden blocks, with
spikes at the sides, to keep them from jumping off; they could be and
were frequentlj' taken off. The grinding stone was on a movable
frame."
e/". JF*. Converse., for the plaintiff.
W. P. SarcUng, for the defendant.
Gkat, J. The articles which the defendant contends were fixtures,
annexed to the freehold, and therefore not to be accounted for as per-
sonal property of the partnership, were put hy the plaintiff into a build-
ing erected by Gerry, the owner of the land, of which the plaintiff was
in possession under a bond from Gerry to convey it to him upon the
payment of a price therein stipulated. The plaintiff had not the same
right to remove fixtures annexed by him to the land so occupied by
him, without pajing rent to the owner, under a contract for its pur-
chase, as an ordinary tenant would have against his landlord. Hutch-
ins V. Shaw, 6 Cush. 58 ; Murphy v. Marland, 8 Cush. 578 ; Mnff v.
Johnson, 7 Gray, 239. His rights in this respect were no greater than
..hose of a vendor or mortgagor against his vendee or mortgagee.
A mortgage passes even trade fixtures, annexed to the freehold by the
mortgagor, for the more convenient use and improvement of the prem-
ises, whether before or after the mortgage. Winslow v. Merchants'
Ins. Co., 4 Met. 306 ; Butler v. jPage, 7 Met. 42 ; Walmsley v. Milne,
7 C. B. (N. S.) 115. In ascertaining what are fixtures, regard is to be
had to the object, the eflfect, and the mode of annexation.
The trip-hammer, firmly attached to a block set in the ground, the
blower of the forge, the force-pump and its pipes for raising water on
the premises, and the shafting fastened to the building by screws and
bolts, having been annexed by the plaintiff to the freehold, and spe-
758 NOBLE V. SYLVESTER.
cially adapted to be used in connection therewith, became part of
it, and could not be severed again without the consent of the owner of
the land. Winslow v. Merchants' Ins. Co., above cited ; Richardson
V. Gopeland, 6 Graj-, 536 ; The Queen v. Xee, Law Rep. 1 Q. B. 241.
But, under the circumstances stated in the master's report, the engine
and boiler, which are expressly- found to have been " portable and in
their own frames," the planing machine, and the anvils, all of which
simplj- rested on the floor or ground, without being fastened to the
land ; together with the forge tools and bench tools, the stock of iron
and steel, the vices merelj- affixed hy screws to the work bench ; the
grindstone in a movable frame, and the emer}- machine, both of incon-
siderable size, more connected in use with the engine and boiler which
were not fixtures than with anj' of the articles which were, and capable
of removal without displacing or materially injuring any part of the
building or land, and of being used elsewhere as well as on the prem-
ises ; never lost the character of chattels, and must be accounted for
as assets of the partnership. Gale v. Ward, 14 Mass. 352 ; Winslow
v. Merchants' Ins. Co., 4 Met. 315 ; Park v. Baker, 7 Allen, 78 ; Horn
V. Baker, 9 East, 215; Hellawell v. Eastwood, 6 Exch. 312, 313;
Cresson v. Stout, 17 Johns. 116 ; Murdock v. Gifford, 18 N. Y. 28.
The report of the master is to be recommitted to re-state the account
In conformity with this opinion, unless the parties agree.
Order accordingly.^
NOBLE V. SYLVESTER.
Supreme Couet of Vermont. 1869.
[Reported 42 Vt. 146.]
Trover for a stone. Pleas, the general issue and two special pleas.
Replication joining the issue tendered and traversing the special pleas.
Trial by jury. May term, 1868, Barrett, J., presiding.
The defendant averred in his special pleas that, prior to the 12th day
of April, 1833, the plaintiff owned a piece of land in Bethel upon
which was a rock, and from this rock the plaintiff had loosened the
stone in question and moved it a very little ; that on said 12th of April,
the plaintiff sold and conveyed to one Daniel Wallace said piece of
land, having said stone thereon as aforesaid, bj' a warranty' deed having
the usual covenants of warranty, and made no reservation or exception
of said stone in said deed or in the sale of said land ; that said Wallace
thereupon went into possession of said land, and has so remained ever
1 See Oriden v. Stoch, 34 111. 522 ; EinTcley Irmi Co. v. Black, 70 Me. 473 ; McCon-
nell V. Blond, 123 Mass. 47 ; Murdock v. Oifford, 18 N. Y. 28 ; Rogers v. Brokaio,
25 N. J. Eq. 496.
Cf. Raymond v. WTiite, 7 Cow. 319.
NOBLE V. SYLVESTEK. 769
since, and said stone remained as the plaintiff left it for over thirty-two
years, and until September, 1866, when said Wallace sold it to the
defendant, who moved it off, and on to his own premises, and during
all this time the plaintiff made no claim to it, but said Wallace always
claimed it as his.
The plaintiff's evidence tended to show that he split out said stone
with others about tliirty-five years ago for the purpose of building a
tomb with them ; that they were black lime stone, and in layers about
seventeen feet long and five feet wide, and from three to four inches
thick ; that he tried to take it off, but could not with the team he had,
but raised it up, and propped it a little from the ground; that the
plaintiff told Wallace what he got it out for, and what he intended to
do with it, and reserved it in the sale of the land to him ; that the
defendant bought it of Wallace, and drew it off, and knew at the time,
and previously, that the plaintiff claimed it ; that the plaintiff never
gave up his intention of building a tomb ; that the plarintiff had at dif-
ferent times along said to certain persons that he reserved the stone in
his sale of the land to Wallace ; that plaintiff saw defendant and his
men when they went to get it, and forbade their drawing it off ; and
tending to show its value.
The defendant's evidence tended to sustain the averments in his
special pleas. The defendant claimed that the stone could be reserved
or excepted only in the deed ; but the court held otherwise, and allowed
the plaintiff to give evidence of a parol reservation of it, to which the
defendant excepted. The defendant objected to the plaintiff's proving
his own sajings as to the stone after the date, of the deed; but the
court allowed him to prove them, to show tliat he had not abandoned
his claim, to which the defendant excepted.
The defendant insisted that upon the evidence the plaintiff was not
entitled to recover ; but the court declined so to hold, and pro forma
left the case to the jury, to find whether the plaintiff' did with the stone
as his evidence tended to show, and whether there was a parol excep-
tion of the stone at the time of the conveyance of the land, understood
between the parties to the deed, and consented to by Wallace ; in-
structing them that if they should so find, the planitiff would be entitled
to recover ; and left it to them to find the facts upon the evidence,
without commenting thereon, or giving them any charge on any other
point (except as to the rule of damages), to which the defendant
excepted.
Uaiiton and Gilman, for the defenduQl.
James J- Wilson, for the plaintiff.
PiERPOiNT, C. J. It appears from the case that the stone in con-
troversy was split out and removed from its original connection and
position in the ledge, and laid up preparatory to its removal from the
farm on which it was originall_v situated. This was done by the plain-
tiff, who was then the owner of the farm, and the object of splitting it
out and putting it in such position was to remove it from the farm and
760 NOBLE V. SYLVESTER.
use it in the construction of a tomb. This being the case, the stone
maj' be regarded as being governed bj- the same principles that are
applicable to timber, fence rails, and the like, that have been removed
from the freehold in fact, but remain upon the premises for the purpose
of being used there in the construction of fences, etc., and if on the
land at the time the premises are convej-ed thej- will pass by the deed ;
but if they are there not for the purpose of being used upon the prem-
ises, but to be removed elsewhere, then they do not pass by the deed.
So of this stone, it having been severed from the freehold, for the pur-
pose of removing it from the premises, to be used for a specific purpose
elsewhere, we think it would not necessaril3- pass by the deed ; but as
there was nothing about the stone, or the position in which it was
placed, to indicate the use to which it was to be put, whether for
fencing or underpinning, or the like, upon the premises, or for use else-
where, it was a proper subject of explanation between the plaintiff and
Wallace, at the time the deed was executed, and such explanation
might well be by parol ; it was not an exception of that which would
otherwise pass by the deed, but the giving to Wallace a knowledge of
facts showing that it would not pass, and thus avoiding all misunder-
standing or controversy about it in the future. The fact that such
information was accompanied bj' an exception in form, does not vary
the principle. We think there was no error in admitting the parol
testimony. And in submitting the question to the jury whether there
was a parol exception or not, if there was error, it is not an error of
which the defendant has anj^ right to complain, as it was putting the
case, in this respect, in quite as favorable a light as he could legally
claim.
We think it was not error in the court to allow the plaintiff to show
his own sayings in respect to his ownership of the stone made after the
deed to Wallace, not for the purpose of proving what took place
between him and Wallace at the time the deed was made, but for the
purpose of showing that he had not abandoned the propertj-, inasmuch
as the defendant 'in his pleadings and proof sets up the fact that the
plaintiff had permitted the stone to remain where it was when the deed
was executed up to the time the defendant took it awa}', as one ground
of defence, and we are to assume that the court, in admitting the testi-
mony for that special purpose, took care that the jur}- should under-
stand that thej' were not to use or regard it for anj- other.
But it is insisted, that even if the plaintiff did retain the propertj' in
this stone, so that the title did not pass to Wallace, still he has lost his
rlo-ht to it by suffering it to remain on the premises of Wallace, down
to the time it was sold to the defendant, and he took it away.
The jury have found that the stone was excepted in the sale, and
remained the property of the plaintiff; that it was left upon the prem-
ises with the knowledge and assent of Wallace, and remained there
over thirty years before the defendant purchased it of Wallace. The
case shows that Wallace never interfered with the stone in any manner.
NOBLE V. SYLVESTER. 761
never made anj' claim to it, never objected to its remaining tliere, or
ever requested the plaintiff to remove it, but suffered it to remain there
just as it was left when the deed was executed. ' The defendant now
claims that the title to this stone became vested in "Wallace h.y lapse of
time, and we are called upon bj- his counsel to saj-, if thirty j-ears
under such circumstances is not sufficient to change the title, what time
is sufficient? We do not feel called upon to give a definite answer to
that question ; but we feel safe in sajing, when the property of one
man is left upon the premises of another, with the knowledge and
assent of the owner of such premises, that so long as such owner suf-
fers such property to remain upon his premises, without objection or
request to remove it, exercising no act of ownership over it and making
no claim to it, just so long the title to the propertj' remains the same,
and is not divested from the one and vested in the other by mere lapse
of time.
Wallace never was the owner of this stone, and if the plaintiff had
abandoned it, it would not necessarily revert to Wallace : but the case
does not show an abandonment, and it does not appear to have been
put upon that ground at the trial below.
The lapse of time was an element proper to be considered bj- the
jury in determining the question submitted to them, and it is claimed
that the County Court erred in not giving the jurj- special instructions in
respect to it. It does not appear that there was any controversy upon
the trial as to the propriety of their considering it, and there was no
request, from either side, that the court should give any specific charge
upon it. The evidence upon this point, as upon all others, was sub-
mitted to the jury ; it was doubtless commented upon by the counsel
on both sides in their arguments, and we have no reason to suppose it
was not duly considered and weighed by the jury. Under the circum-
stances it was no more error to omit to refer to this particular piece of
testimony than it was not to refer to any or every piece of testimony
put in on either side, and it has never been regarded the legal duty of
the court to refer specifically to each and every piece of testimony in
the case, in the charge, especially when there is no such request. We
find no error in the trial below.
The judgment of the county court is affirmed.
762 DAVENPOKT V. SHANTS.
DAVENPORT v. SHANTS.
Supreme Court op Vermont. 1871.
[Eeported 43 Ft. 646.]
Petition for foreclosure of a mortgage. The petition sets forth a
mortgage, executed by John G. Shants & Co., to the petitioner, Octo-
ber 13th, 1866, of a mill and factory and tannei'y in Searsburg, with
200 acres of land, and three dwelling-houses thereon. "And also
the factorj', then in process of erection on the site of said Searsburg
tannery, with the saw-mill, water-wheels, and all the machinery and
shafting in said factory,'' to secure a note of $1,000. The petition then
sets forth the execution by Shants & Co., and the purchase by the peti-
tioner, of another mortgage on the same premises, except the machinery,
and also sets forth that the defendants, other than Shants & Co., claim
an interest in said propertj'.
The petition was taken as confessed by all the defendants, except
Henry G. Root, who appeared and answered, admitting the facts set
forth in the petition, or not denying them, except as follows : —
" That between the 3d day of August and the 2 7th daj- of October,
1866, this defendant, by his agent, Olin Scott, sold to the said John G.
Shants & Co., various articles of machinery, consisting of a circular
saw-mill and saw, and the belts to drive the same ; the gears on two
water-wheels ; the upper piece of a large water-wheel shaft and box to
the same ; the counter-shafts to two water-wheels ; the drum flanges
and boxes to the said counter-shafts ; and one extra saw collar ; upon
the condition that said machinerj' should be and remain the property of
this defendant until the same should be paid for b}- said John G. Shants
& Co. ; the whole of said machinery- amounting in value to the sum of
$919.86, which thej- agreed to pay this defendant for tlie same. All of
which roachiner)-, excepting the gears and upper shaft to the large
water-wheel, and the counter-shaft and boxes to the same, were in place
in the factorj- mentioned in said petition at the time of the alleged ex-
ecution of the mortgages set forth in said petition, and the said excepted
articles have, since said time, been placed in said factorj'. That there
has been paid to this defendant, towards the purchase of said machin-
ery, the sum of $191 onlj' ; the remainder being still due, with the
interest thereon.
"And this defendant claims and insists that his title to said ma-
chinery is paramount to that of the said John G. Shants & Co., and
to that of the petitioner, and that the petitioner has no right to a
foreclosure as to said machinery, or any part thereof, against the
defendant.
" The petitioner replied, saying, that he never at any time, until long
DAVENPORT V. SHANTS. 763
after the execution of the several mortgages sought to be foreclosed by
this petition, had any knowledge or notice actual or constructive of any
contract or understanding between the defendant and the said John G.
Shants & Co., by which the defendant had or claimed to have any right or
claim to the saw-mill, water-wheels, and the machinery and shafting in
the factory described in said mortgage ; that he did, on the 13th day of
October, 1866, in good faith, and relying upon the fact that no claims,
liens or incumbrances existed of record upon any of the property or es-
tate described in said mortgage, and upon the promise and assurance of
both the members of said firm of John G. Shants & Co., that none
existed in fact, loan to said firm, the full sum of one thousand dollars,
and took said mortgage in good faith to secure the payment thereof;
that if it is true that the defendant did reserve such a lien upon the
several articles named in his answer to said petition for foreclosure, as
is in said answer stated, yet it is also true that the defendant well
knew the purpose for which John G. Shants & Co. purchased the same,
and the defendant then and afterwards consented that they might at-
tach and annex said water-wheels, saw-mill, shafting and machinerj' to
their freehold, and make the same a part of and appurtenant to said
freehold, and did b^' his agents and workmen assist the said John G.
Shants & Co. in so doing. And insists that the lien created by his
said mortgage is paramount to anj' lien or claim of the defendant to
the saw-mill, water-wheels, machinery and shafting in said factory.
" Stipulation. — It is hereby stipulated that this cause shall stand
for hearing upon petition, answer, replication, affidavits of Olin Scott
and H. W. Scott, statement of facts, and notes and mortgages set forth
in the petition. The facts stated in the answer are admitted to be true,
excepting as varied or qualiBed by the replication in connection with
the affidavits and statement of facts. The facts stated in the replica-
tion are admitted to be true, excepting as varied or qualified by the
affidavits and statement of facts, and excepting that the averment re-
specting annexing 'to the freehold of the said John G. Shants & Co.,
and make the same a part of, and appurtenant to said freehold,' is
not to be taken as an averment of facts, but as a conclusion of law.
The facts stated in the affidavits and statement are admitted to be true.
" Affidavits. —Olin Scott, on oath, says : ' I was at the mill of John
G. Schantz &Co., in Searsburgh, in the fall or winter of 1866-7, for the
purpose of getting pay for the job which 1 had done for them on account
of H. G. Koot, and looking around, I found that said John G. Schantz
& Co. had built a wooden wheel which did not answer their purpose,
and they were altering it. Witliout taking off my overcoat or gloves, I
suggested something about cutting or enlarging a spout hole in the
flume, and nothing more, and charged nothing for my advice. I never
had anything to do with putting in the machinery which I furnished
said Schantz & Co., on account of said Root, and none of said Root's
hands, so far as I know, had anything to do with putting said machin-
ery into the mill of said Schantz & Co.'
764 DAVENPORT V. SHANTS.
"Henry W. Scott, on oath, saj's : ' Tn 1866, I furnished an iron
wheel for John G. Schantz & Co., and set it in place in the mill of said
Schantz & Co., in Searsburgh, working at it myself. I did not in any
way assist in putting in the machinery furnished said Schantz & Co.
bj' Henrj- G-. Root ; the machinerj- furnished by said Root was not de-
livered at said mill until after I had finished mj job and had set said
iron wheel. I had no interest in said Root's job, and he had none in
mine.'
" Statement of Facts. — At the time the mortgage was executed,
there was in Shants' factory a flume, with a water-wheel attached out-
side of the flume, which water-wheel was a wooden centre-vent wheel,
with wooden vertical shaft, having cast-iron gudgeons and a bevel-gear
attached. The bevel-gear on said water-wheel drove another bevel-gear
on the counter-shaft. This counter-shaft had a pair of flanges attached,
upon which flanges a wooden pulley was built, which pulley drove the
saw-mill. The gudgeons, gears, shaft-boxes to same, and flanges were
furnished by H. G. Root, and are now claimed b^' him. Within the
flume aforesaid was an iron turbine water-wheel which was furnished
and put in place by H. W. Scott, and which had a shoi-t shaft. There
was also in the factory at the time aforesaid a circular saw-mill, with
carriage and all fixtures to the same ; also a 48-lnch circular saw,
together with all the necessary belts to drive the saw-mill. The whole
was in running order, the saw-mill bfeing driven by the wooden centre-
vent water-wheel first named. The saw-mill, carriage, and fixtures,
and the saw and belts were furnished by the said Root, and are now
claimed \>y him. There were on the yard at the same time two bevel-
gears, one piece cast-iron water-wheel shaft, with boxes, one coun-
ter-shaft, with boxes and flanges. The last-named iron-work was all
furnished by the said Root, and are claimed b^- him. The last-named
machiner}' was afterwards put into the factor}- by coupling the cast-iron
shaft to the iron turbine water-wheel shaft and attaching to the afore-
said cast-iron shaft the gears and counter-shaft, with the flanges and
boxes belonging to the same, and were built for that purpose. The
turbine water-wheel and shaft are in the lower wheel-pit. The shaft
coupled to the water-wheel, with the gears, counter-shaft, boxes and
flanges, are in the basement-room over the wheel-pit and under the
principal floor, on which floor the saw-mill is placed. The upper end
of the shaft, which is coupled to the water-wheel, and the counter-shaft,
are supported and attached to a frame-work bj- bolts, which frame-woi-k
is attached to the basement floor-timbers, and to the floor-timbers of the
floor above bj' means of tenons, mortices and keys. The wooden water-
wheel has a wooden shaft extending from the wheel-pit up into the
basement room, where the gear is attached, and has gearing and coun-
tershaft, attached in the manner similar to the first-named counter-shaft,
and supported in a similar manner. The saw-mill machinerj', consist-
ing of saw-arbor and boxes, with saw, the feed-works, gig- works, log-rolls
and fixtures, are all attached to a wooden frame, which frame, with all
DAVENPORT V. SHANTS. 765
the machiiierj- attached, is set on floor-timbers and fastened by means
of two bolts, extending through the floor-timbers and frame aforesaid.
The carriage to the saw-mill runs upon small iron rollers, which rest
upon small iron chairs, which chairs are secured to a stick of timber
that is laid down on the floor-timbers for that purpose. The chairs are
screwed down with wood-screws. The rollers are not attached to the
chairs, but rest on them. All the machinerj- mentioned above, including
the water-wheels and appendages, were placed in the factory, which is
a large two-story building, 33 X 90 feet, by John G. Shants & Co., for
the purpose of prosecuting the business of manufacturing lumber, chair
stock, &c., and is connected with and attached to the building, as
machinery of that character usually is. So much of the property
herein described as was furnished by H. W. Scott is not in controversy
in this suit."
At the September term, 1868, decree, ^ro /brma, foreclosing mort-
gage against all defendants, except Henry G. Root, and dismissing the
petition as to Root, with costs. Appeal by petitioner.
JT. H. Wheeler and Charles N. Davenport, for the petitioner.
, for the defendant.
Peck, J. The bill having been taken as confessed as to all the
defendants except Henry G. Root, and he alone defending, the only
question is as to the right of the orator, under his mortgage from Shants
& Co., to that portion of the property sold conditionally by Root to the
said mortgagors.
The bill, and answer of Root, in connection with the written stipu-
lation of the parties on file, leave no dispute as to the material facts in
the case, and no time need be spent in repeating the facts thus agreed.
It must be regarded as settled as a general rule in this State, that a
party may sell and deliver personal property, under a condition that it
shall remain the property of the vendor until the price is paid ; and that
under such contract, the title will remain in the vendor until the con-
dition is complied with, both as between the vendor and such conditional
vendee, and also as between the original vendor and a hona fide pur-
chaser without notice from such conditional vendee. The only question
is whether the facts of this case take it out of the general rule.
The proposition of the counsel of the defendant Root is, that the
whole property sold conditionally by Root to Shants & Co. was personal
property as well after as before the sale, and cannot properly be claimed
as fixtures or as parts of the realty. But we think as between mort-
gagor and mortgagee, if the title of the mortgagor were absolute, the
defendant's proposition is not correct ; and that under the recent de-
cisions in this State, on being put in place in the mill and factory, as
shown in this case, it became so far annexed to the realty as to pass
under a mortgage of the real estate. But still the question remains
as between the mortgagee under his mortgage, and the original owner
under his conditional sale to the mortgagor, which has the paramount
right.
766 DAVENPOET V. SHANTS.
First, as to that portion of the property which had been put in place
in the mill and factory by the mortgagors after they thus purchased it
of Root, and which was in the building and thus annexed at the time the
orator took his mortgage. As to this property, the orator, as it appears
having advanced his money and taken his mortgage in good faith, with-
out notice of any lien or encumbrance upon it, and from its condition,
having reason to suppose that the mortgagors' title to this propertj-
in question was the same as his title to the realtj-, to which it was an-
nexed, and of which it was apparently parcel, seems to have a strong
equity in his favor. While on the other hand the defendant Eoot, the
unpaid vendor, who endeavored to secure himself, by stipulation in the
sale that he should hold the title till paid, ought not to be deprived of
this security without some substantial reason. But the defendant Root
must have understood, when he sold the property to Shants & Co., that
they intended to put the property to use in advance of the paj-ment of
the price ; and from the kind and nature of the property, he must have
expected that in its use it necessarilj' must be annexed to the realty,
substantially in the manner in which it was, and thereb}- become ap-
parently parcel of the realty. "What he knew or had reason to suppose
and did suppose was to be done with the property-, he must be taken to
have consented to, as he did not object. Root therefore having, bj- im-
plication at least, if not expressly, consented that the propertj' might
be incorporated with the realty of Shants & Co. in the manner it was, and
they thereby become clothed with the apparent title as incident to their
record title to the real estate, wherebj- the mortgagee was misled and
induced to part with his money on the credit of the property, the equity
of the mortgagee is paramount to that of the conditional vendor. Jus-
tice and equity, as well as sound policy, require this limit to the rights
of a conditional vendor as between him and an innocent purchaser or
mortgagee of real estate without notice, who advances his monej- on the
faith of a perfect title.
But as to that portion of the property mentioned in the answer of the
defendant Root, and in the agreed statement of facts on file, which had
not been placed in the mill or factory at the time of the execution of
the mortgage to the orator, but was in the yard and put in place in the
factory or mill afterwards, the right of the defendant Root is paramount
to the right of the orator. That, not having been annexed to the realty
at the date of the mortgage, would not pass as incident to the realty ;
and the mortgage did not divest Root of his title. It having been
placed in the building bj- the mortgagors after the execution of the
mortgage, the mortgagee might hold it as against them, but not as
against Root, the conditional vendor. As to this portion of the prop-
erty the mortgagee was not misled, and advanced nothing on the faith
of it.
The decree of the Court of Chancery is reversed, and cause remanded
for a decree of foreclosure for orator against all the defendants as to all
the property except that defendant Root have a right to that portion of
STKONG V. DOYLE. 767
the property, or the value thereof, not in place in the factor}- or mill
at the time of the execution of the mortgage to the orator, but put in
afterwards, — the orator having his election to pay to Root the value of
it, or have it excepted in the decree so far as Root is concerned, with
liberty to Root to remove it within such reasonable time as the Court
of Chancery shaU fix for that purpose.
STRONG V. DOYLE.
Supreme Judicial Coukt. 1872.
[Reported 110 Mass. 92.]
Tort for the conversion of thirty tons of manure. At the trial in
the Superior Court, before Wilkinson, J., the plaintiff introduced evi-
dence that he sold and conveyed a farm to the defendant on February
11, 1870, by a deed describing it by metes and bounds, and containing
no reservation except a right for the plaintiff to occupy the land until
April 1 ; that the manure in question was on this farm ; that the de-
fendant, while negotiating for the purchase of the farm, made a separ-
ate and distinct oral agreement for the purchase of the manure ; that
it was agreed that the plaintiff should put up the manure for sale at
auction, and the defendant should have it if he was the highest bidder ;
that in March the plaintiff advertised the manure for sale at auction ;
but that, at the time and place advertised, the defendant forbade the
sale, claimed the manure under his deed, and afterwards spread it
upon the land.
On this evidence the judge ruled that the plaintiff could not maintain
his action, and directed a verdict for the defendant, which was re-
turned. The plaintiff alleged exceptions.
C. Delano and J. C. Hammond, for the plaintiff.
O. E. Smith and S. T. Spaulding, for the defendant.
Colt, J. It was said in Fay v. Muzzey, 13 Gray, 53, that manure
made in the course of husbandry upon a farm is so attached to and
connected with the realty that, in the absence of any express stipula-
tion to the contrar}-, it passes as appurtenant to it. This rule is applied
in whatever situation or condition the material is before it is finally
expended upon the soil. It is till then an incident of the real estate of
such peculiar character that, while it remains only constructively
annexed, it will be personal property if the parties interested agree so
to treat it. Such an agreement, though it be unwritten, does not come
within the Statute of Frauds, and is not to be rejected, although con-
temporaneous with the conveyance of the real estate. An oral con-
tract for the sale of it is valid. In the case of fixtures which are not
incorporated with, but merely annexed to the freehold, the rule is well
settled that the Statute does not apply. Browne on St. of Frauds,
768 WILLIAMSON V. NEW JERSEY RAILROAD CO.
§ 234 ; Hallen v. Bunder, 1 C, M. & E. 266 ; BostwicJc v. Zeach,
3 Day, 476.
In the case at bar, evidence was offered that the defendant, while
negotiating for the farm and before its conve3-ance to him, made a
separate and distinct agi'eement for tlie purchase of the manure, to be
his only in case he was the highest bidder at public auction ; that the
plaintiff advertised the sale as agreed, and the defendant at the sale for
the first time claimed that the manure belonged to him under the plain-
tiff's deed, and that it was afterwards spread upon the land by him.
The deed was in the usual form, conveying the land onlj', and reserv-
ing only to the plaintiff the right of occupying until the first of April
following.
In the opinion of the court, this evidence supports the plaintiff's title
to the property in dispute. It proves an independent preliminarj'
agreement, by which it was severed from its relations to the realtj'
before the deed was made. It serves to ascertain the subject matter
upon which the deed was intended to operate. 1 Greenl. Ev. § 286 ;
Hopps V. JiarJccr, 4 Pick. 239. Such an agreement, made upon good
consideration, with the owner of laud before it is convej'ed, is, as a mode
of severance, as effectual as a sale by the owner to a stranger, or an
agreement between landlord and tenant by which the manure becomes
personal property. JVbble v. Sylvester, 42 Vt. 146 ; Ford v. Cobb, 20
N. Y. 344.
This case differs from Noble v. Bosworth, 19 Pick. 314, cited by the
defendant. There the owner of land erected a dj-e-house upon it, in
which dye-kettles, firml}- secured in brick, were set up. And it was
held that a verbal reservation of the kettles, before or at the time of
the deliverj' of the deed of the land, was inadmissible to control the
ordinarj' effect and operation of the deed. The property in dispute had
been actualh- annexed to the building, and intentionall}- incorporated
with the real estate by the owner for the purpose of permanent im-
provement. While in that condition before severance it was subject to
the rules which govern the title and transfer of real estate, and passed
by the deed. Here no act of severance was necessary to detach the
manure from the land, and the agreement of the parties was sufficient.
Exceptions sustained.
WILLIAMSON V. NEW JEESEY SOUTHEEN EAILEOAD
COMPANY.
CouET or Ebroes and Appeals of New Jersey. 1878.
[Repm-led 29 N. J. Eq. 311.]
On appeal from a decree of the Chancellor. His opinion va&y be
found in Williamson v. JVl Z /Southern R. R. Co., 1 Stew. 278.
"WILLIAMSON V. NEW JERSEY RAILROAD CO. 769
Messrs. Barker Gummere and A. Q. Keashey, for the compLainant.
Messrs. J. B. Vredenhurgh and Cortlandt and It. Wayne Parker,
for Berthoud & Co.
Messrs. John Linn and Mercer Beasley, Jr., for the Lehigh Car
Manufacturing Company.
3Ir. Jacob Vanatta, for the Lackawanna Iron and Coal Company.
Depue, J. The Raritan and Delaware Bay Railroad Company was
incorporated in 1854. Its corporate name was changed to The New
Jersey Southern Railroad Company, in 1870. Under the powers
granted in its charter, the company constructed a railroad from Port
Monmouth, on the Raritan baj-, to Atco, in the county of Camden,
together wi:h branch railroads from Eatontown to Long Branch, in the
county of Monmouth ; from Manchester to Toms River, in the county
of Ocean ; and from Atsion, in the countj- of Burlington, to Jackson,
in the county of Camden.
On the 14th of September, 1869, the company made the complain-
ant's mortgage, in trust, to secure bonds issued to the amount of
$2,000,000. The property mortgaged comprised all the raiiwaj-s,
branches, rights of way, depots, station-houses, and the company's
franchises then held or thereafter to be acquired, including its rolling
stock, fixtures, tools and machinery, and all real estate of every kind,
wheresoever situate, and all personal property, of every nature, kind or
description then held or thereafter to be acquired. It also contained a
covenant that the company would hold all after-acquired franchises and
property-, real and personal, in trust, for the mortgagee, and would
make conveyance thereof accordingly, from time to time, as the same
might be acquired.
The bill originally filed was an ordinary foreclosure bill, to which the
New Jersej' Southern Railroad Company and the trustees named in the
second and third mortgages were the only parties. After bill filed and
interlocutory decree thereon, other interests and rights under the com-
plainant's mortgage were discovered, and claims were preferred by
other persons of rights in some of the property, for the enforcement of
which suits at law had been brought, and an amendment of the com-
plainant's proceedings was deemed advisable. Supplemental bills were
therefore filed, on the 11th of May, 1874, and the 20lh of September,
1876. By these supplemental bills and orders and decrees made, from
time to time, on several branches of the case, and submissions thereto
bv the parties, the Court of Chancery assumed jurisdiction over the
rights, legal and equitable, of all the parties in or relating to the prop-
erty in controversy. The Chancellor, on final hearing, so regarded the
scope of the litigation, and the propriety, if not necessity, of such a
course, clearly appears from so much of the record as has been re-
moved into this court.
From the final decree the complainant has appealed. Of the defend-
ants, Berthoud & Co., the Lehigh Car Manufacturing Company, and
the Lackawanna Iron and Coal Company have also appealed. No
49
770 WILLIAMSON V. NEW JERSEY RAILROAD CO.
appeal was taken 'by the other defendants. The discussion in this
court was confined to the rights of the parties appealing inter sese}
The Lackawanna Iron and Coal Companj- recovered a judgment
against the New Jerse_v Southern Railroad Company, on the 19th of
January, 1874, for damages and costs, amounting to 142,258.68. Exe-
cutions were issued into all the counties of the State through which the
company's railroad extended, and levies were made between the 20th
and 24th of January upon the cars, engines and rolling stock, and per-
sonal property of the railroad company. The Iron and Coal Company
was made a party to this suit by the supplemental bill filed on the 11th
of May, 1874.
The complainant's mortgage was duly recorded as a mortgage of real
estate, soon after it was executed and delivered, and long before the
judgment aforesaid was recovered, but was not filed in compliance with
the Act concerning chattel mortgages of March 24th, 1864, which makes
everj' mortgage or conveyance intended to operate as a mortgage of
goods and chattels, which shall not be accompanied by an immediate
deliver^', and followed by an actual and continued change of possession
of the things mortgaged, absolutelj' void as against the creditors of the
mortgagor, and as against subsequent purchasers and mortgagees in
good faith, unless the mortgage, or a copy thereof, be Bled as is directed
b}- the Act (Eev. p. 709). The Chancellor held that the rolling stock
of a railroad companj-, mortgaged with the railroad, is part of the
realty, and that if such rolling stock be personal propertj-, the provis-
ions of the above-mentioned Act requiring immediate deliver}- and con-
tinued possession of the chattels mortgaged or filing instead thereof,
were inapplicable to such mortgages. The appeal of the judgment
creditor denies the soundness of this legal proposition in both its
parts.
The complainant's mortgage, in terms, is comprehensive enough to .
cover propertj', real and personal, in present ownership and afterwards
to be acquired, of everj' kind and description which is susceptible of
sale or mortgage, either at law or in equitj*. But that does not solve
the problem for consideration, which is, whether the rolling stock of a
railroad compan}- is such a constituent part of its realtj' as that it would
pass under a convej-ance or mortgage of its road-bed and franchises
without other words of description. For fixtures which are part of the
realty, like easements, will pass under a conveyance as part of the
lands granted without additional words.
Where property personal in its character is subjected to mortgage,
in connection with real estate, the effect of the mortgage on such per-
sonal property is presented in three aspects : First, whether the mort-
gage attaches to after-acquired propertj- ; second, whether the moitgagee
is entitled in equity to restrain its sale under subsequent executions ;
1 Tliat part of the opininn which relates to the claims of Berthoud & Company,
and of the Lehigh Car Manulactariug Company is omitted.
WILLIAMSON V. NEW JERSEY RAILROAD CO. 771
and, third, whether such property has becorne a fixture so as to be part
of the realt}- itself. A failure to discriminate between these different
aspects in which the legal questions maj- arise, has caused considerable
confusion in the cases.
The first two of these propositions maj- be regarded as judicially
settled in the aflfirmative. It has been held quite generally that, in
equity, a mortgage will apply to after-acquired personal property if apt
words of description be contained therein, and that a court of equitj-
will, at the instance of the mortgagee, enjoin the sale 'of such property
under subsequent executions. But these principles have been applied,
indiscriminately, to property indisputably personal, such as unattached
machinery in a factory, goods in a store and furniture in a house, as
well as to the rolling stock of a railroad. In Smithhurst v. Edwards,
1 McCart. 408, the propertj' protected from sale under execution was
the after-acquired furniture in a hotel. Decisions of this class give no
support to the proposition under consideration.
To sustain the views adopted bj' the Chancellor on this subject,
counsel rehed greatlj- on the decisions of the federal courts. An exam-
ination of those cases will show that the point has not been directly, or
at least finally, adjudged.
The earliest, and perhaps the leading case, is Coe v. Pennock, de-
cided by Judge McLean, as reported in 6 Am. Law Reg. 27, 2 Redf.
Am. Railw. Cas. 546, and afterwards in the Supreme Court, and there
reported sub nom. Pennock v. Coe, 23 How. 117. In that case the
mortgage, which is set out in 23 How. 126, expressly enumerated, as
part of the property mortgaged, "all the present and future-acquired
property, . . . including engines, tenders, cars, tools, machinery, mate-
rials, contracts, and all other personal property." The rolling stock
having been levied on under execution, a bill was filed by the mort-
gagees to restrain a sale. The only question for decision was, as
expressed by Justice Nelson in the Supreme Court," whether or not the
after-acquired rolling stock of the company placed upon the road
attaches, in equity, to the mortgage, if within the description, from
the time it is placed there, so as to protect it against the judgment
creditors of the railroad company." Nothing else was discussed in the
Supreme Court, or decided in either court, but the validity of a mort-
gage of after-acquired property, — a question in nowise depending on
the distinction between the realty or personalty of the property mort-
gaged. The property mortgaged being inadequate to pay the mort-
gage debt, the injunction was allowed, as it was allowed in Smithhurst
v. ^Edwards to restrain the sale of furniture, under similar circum-
stances. The observations of Justice McLean, so often quoted, witli
respect to the connection of the rolling stock with the railroad, and the
injury that would result from the separation of the rolling stock from
the road and its sale under execution, are properly referable to the
question of the propriety of interference by injunction to stay the sale ;
just as Chancellor Green, in Smithhurst v. Edwards, adverts to the
< t Z "WILLIAMSON V. NEW JERSEY KAILKOAD CO.
injury that would result to the rights of the mortgagor and mortgagee
bj' a sale, under execution, of furniture mortgaged, as a reason for en-
joining its sale under the execution.
In Gee v. Tide Water Canal Co.^ 24 How. 257, the property levied
on and offered for sale was land which was admitted to be necessarj- to
the working of the canal. On bill filed by tlie companj', the court
enjoined the sale, on the gi-ound that the property was necessary for
the operations of the company's canal, and could not be dissevered
from the franchises without destroN'ing its useful existence.
In Mirmesota Co. v. St. Paul Co., 2 Wall. 609, a railroad company
had divided its line of railway into two divisions, and had given separ-
ate mortgages on each division. The mortgages each enumerated
rolling stock as part of the property- mortgaged. There was also a
subsequent mortgage on the entire road, its franchises and rolling
stock. The court held that the company might assign particular parts
of its rolling stock used over its whole line to separate divisions, and
mortgage such parts with the division to which it was assigned ; and
that whether thej' did so was a question of intention. In the majority
opinion, the question of the rolling stock being aflixed to the realtj'was
not discussed, and the decision was placed on the language of the
mortgages as decisive of what was intended to be covered bj^ them
under their descriptive words. The judges who expressed opinions
that the rolling stock was a fixture, dissented, holding that such rolling
stock, being purchased by the common funds of the compan}', and
fitted for use over the whole line, as a fixture, was attached to tlie
whole line, and not to anj- part or division of it. The case is recon-
cilable with legal principles only on the assumption that the rolling
stock was personal property, and was mortgaged as such.
In Railroad Company v. James, 6 Wall. 750, the case rested on a
Statute of Wisconsin, which declared that "all rolling stock of anj'
railroad compan}' used and employed in connection with its railroad
shall be and the same is hereby declared to be fixtures." E. S. Wis.
51 1, § 34. The dictum of the judge delivering the opinion of the court,
who was one of the dissenting judges in Minnesota Co. v. St. Paul Co.,
supra, that the rolling stock would have been fixtures independent of
the Statute, was merely obiter.
In Scott V. C <& S. R. R. Co., 6 Bissel, 529, the sole question was,
whether a mortgage made by a railroad companj-, covering all after-
acquired property, included after- acquired rolling stock. The judge,
after reviewing the cases in the Supreme Court of the United States,
held that it did, and declared, in his opinion, that it did not make any
difference in the result, whether the property was real or personal.
In Farmers Loan and Trust Co. v. St. Jo, <&c. R. R. Co., 3
Dillon, 412, the mortgage expressly covered the rolling stock and
other propert}' appertaining to the railroad. It had been recorded as a
mortgage of lands, but not as a chattel mortgage under the law of
Kansas. The rolling stock having been seized under execution, the
WILLIAMSON V. NEW JERSEY RAILROAD CO. 773
question was one of registry. The opinion of tlie court, by Justice
Miller, is quite short, and holds that rolling stock and other propertj-,
strictly and properly appurtenant to the road, is part of tbe road, and
covered by the mortgage in question, which in terms embraced the
rolling stock, and that it need not be recorded as a chattel mortgage to
give it priority over executions. Under the language of the mortgage
there could be no doubt that rolling stock was covered by it, and the
report does not show whether the registry' was deemed sufficient on the
ground that the rolling stock was a fixture, or for the reason that, as
chattels, it was such propert}' as not to come within the purview of the
Kansas Statute. At all events, I am not inclined to give this case the
effect of a direct decision of the moot question of such weight as to
settle the law in the federal courts.
The cases cited from the State courts are chiefly such as decide that
a mortgage of after-acquired goods and chattels is valid, or such as hold
that such property, when mortgaged, is not liable to be taken under
certain kinds of process, under rules of procedure peculiar to the
practice in such States. -P. tfe W. JR. JR. Co. v. Woeljoper, 64 Pa. St.
366, and Coiory v. P. S T. W- B. B. Co., 3 Phila. R. 173, are cases of
that kind. Where the question has been directly presented, whether
the rolling stock of a railroad, included in a mortgage, of its road-bed
and franchises, is real or personal property, the great weight of author-
ity is in favor of its being considered as personalty. Stevens v. B. &
C. B. B. Co., 31 Barb. 590 ; Beardsley v. Ontario Bank, Id. 619 ;
Bermont v. P. tk M. B. B. Co., 47 Id. 104 ; Bandall v. Elwell, 52
N. Y. 521 ; Iloyh v. Plattsburgh B. B. Co., 54 N. Y. 314 ; Chicago,
dbc. B. B. Co. V. Howard, 21 Wis. U; B. C. <S;M. Co. v. Gilmore-,
37 N. H. 410 ; Coe v. Columbus B. B. Co., 10 Ohio St. 372 ; City of
Dubuque v. The III Cent. B. B. Co., 37 Iowa, 56. In this State the
point was directly decided by the Supreme Court in State Treasurer v.
S. <& E. B. B. Co., 4 Dutch. 21, where it was held that the phrase,
" road and equipments," in a railroad charter, did not include its roll-
ing stock ; and, in the opinion of Chief Justice Green, engines and cars
were declared to be no more appendages of a railroad than wagons and
carnages were appendages of a highway — both were equally essential
to the enjoyment of the road — neither constituted any part of it.
Furthermore, the third section of the Act of March 24th, 1869, which is
now the thirty-eighth section of the Act concerning mortgages (Rev.
p. 709) , contains a plain legislative recognition of the rolling stock of
railroads as chattels — to be considered as such when covered by mort-
gage. And in practice the engines and cars of railroad companies have
frequently been seized under execution and distrained for taxes, as per-
sonal property, without any scruple as to their liability to seizure and
sale as such.
One of the primary objects of law is the classification of property
and the establishment of certain indicia by which its ownership may be
determined. For this purpose all property is by law divided into two
774 "WILLIAMSON V. NEW JERSEY RAILROAD CO.
kinds, real and personal, and the mode of enjoyment and raethods of
disposition are regulated by positive rules of law, which are founded
on considerations of public policy, and established for the purpose of
determining the ownership of propertj- according to its kind. The
method of transmuting property, personal in its nature, into realty, is
as fixed and established in the law as the method of testamentary dis-
position. Such propert}- does riot become realtj- by mere use in con-
nection with land. The implements of husbandrj-, though used only
for agricultural purposes, do not therein' become part of the land. Nor
will such property become realty by being included in a mortgage with
lands any more than lands will become personaltj' by such au associa-
tion. The stock of goods in a store, or the furniture in a hotel, do not
become part of the lands, although mortgaged or convej-ed with the
premises on which the}' are situate.
The criterion for determining whether property ordinarilj' regarded
as personal becomes annexed to and part of the realty, is the union of
three requisites : First — Actual annexation to the realty or something
appurtenant thereto. Second — Application to the use or purpose to
which that part of the realt}' with which it is connected is appropriated.
Third — The intention of the party making the annexation to make a
permanent accession to the freehold. Teaffy. Hewitt, 1 Ohio St. 511.
This criterion was adopted by the Chancellor in Quimby v. Manhattan
Cloth Co., 9 C. E. Gr. 260, and by this court in Blanche v. Rogers,
11 Id. 564, and by the Court of Appeals of New York in McRea v.
Central Nat. Bank, 66 N. Y. 489.
Whether a chattel is a fixture or not depends upon the facts. The
mere intention of the parties to make it part of the freehold does not
make it a fixture. To accomplish that result there must be an actual
annexation to the freehold, though the strength of the union is not ma-
terial, if in fact it be annexed. The intent of the party affixing it
is only important on the question whether he intended to make the
chattel so annexed a temporary or a permanent accession to the free-
hold. Rogers v. Brohaw, 10 C. E. Gr. 497 ; s. c. sub noni. Blanche
v. Rogers, supra. Cases of what is called constructive annexation are
only apparent exceptions to this rule. The instances of constructive
annexation such as the kej's, doors and windows of a house removed
for a temporary purpose, a millstone taken out of the mill to be picked,
and saws and leather belting taken out to be repaired or laid aside for
future use, and the like, are all cases where the chattel, by actual an-
nexation, was once part of the realty' and had been detached for tem-
porary purposes without the intent to sever it from the freehold. Having
once been part of the realty, removal temporarilj' without intent to sever
permanently does not reconvert the chattel into personaltj', and destroy
its character as a fixture. Ewell on Fixtures, 43. This is all that is
meant b}' constructive annexation. Cases of this description do not
militate against the rule that actual annexation is the condition under
which a chattel in the first instance becomes part of the realty ; and
WILLIAMSON V. NEW JERSEY RAILKOAD CO. 775
while the degree of annexation is unimportant, it will be found that the
attachment to the realty- is invariably such as to give a tixedness in
location or localization in use.
The illustrations of doves in a cote, deer in a park, and fishes in a
pond, are entirel}' inapplicable to the present subject. The.y go with
the inheritance for special and peculiar reasons. In Amos & Ferrard
on Fixtures, they are classified under the head of heir-looms, a class of
property entirely distinct from fixtures. A. & F. on Fixtures, 1G8.
Sir Eilward Coke assigns them to go with the inheritance, because they
are animals /er^e naturcB, " and could not be gotten without industry,
as by nets and other engines." Co. Lit. 8 a. This is the true founda-
tion of the common law rule, for Wentworth saith that " young pigeons,
being in the dove-house, not able to fly out, go to the executor ; yet
their dams, the old ones, shall go to the heir with the dove-house "
(Went. Off. Ex. 143) ; and fishes confined in a trunk or the like go to*
the executor. Co. Lit. 8 a. In Paulet v. Gray, fishes in a pond were
adjudged to belong to the heir, for the reason that " they are as profits
of the freehold which the executor shall not have, but the heir, or he
who hath the water." Cro. Eliz. 372. No analog}' exists between
these animals and machinery, such as engines and cars, by which the
legal status of the one can be deduced from that of the other.
The criterion above stated of actual annexation to the freehold, as a
rule for determining when chattels become part of the realty, is as well
settled in this State as &n\ other rule of propert}-. Exceptions founded
on fsmciful and groundless distinctions only tend to produce uncer-
taint}- and confusion in the rules of propert}-, which should be perma-
nent and uniform. " The general importance of the rule,'' says Judge
Cowan, " which goes upon corporal annexation, is so great that more
evil will result from frittering it away by exceptions tlian can arise from
the hardship of adhering to it in particular cases." Walker v. Sherman,
20 Wend. 656.
Tested by the foregoing criterion, it is manifest that the rolling stock
of a railroad must be regarded as chattels which have not lost their dis-
tinctive character as personalty by being aflSxed to and incorporated
with the realt}'. It is true that engines and cars are adapted to move
on the track of the railroad, and are necessarj- to transact the business
for which the railroad was designed. But unattached machinery in a
factory, the implements of husbandry on a farm, and furniture in a
hotel, are similarly adapted for use in the factory, on the farm, or in
the hotel, and are equally essential to the profitable prosecution of the
business in which they are employed. When regard is had to the fun-
damental and necessary condition under which the law permits chattels
to become part of the realty, engines and cars and the rolling stock of
a railroad utterly fail to answer the requirement of the law. Cars
which left Jersey City this morning, before the close of the succeeding
week will be found scattered over the West or on the Pacific coast,
their places in transportation through this State being suppUed by cars
776 WILLIAMSON V. NEW JERSEY EAILEOAD CO.
gathered from the railroads of other companies, many of which are lo-
cated in other States. The suggestion that each one of tliese cars car-
ries with it the attribute of realty in its journey through other States, or
even over other railroads in this State, will show the incongruity of de-
nominating that a fixture which, in its ordmary use, travels over other
railroads, and is connected with the railroad of its owner in no other
wa}' than in its useful employment in the business in which the com-
pany is engaged. In Randall v. Elwell, supra. Judge Grover says :
'■ I think no one would claim that a car of the New York Central which,
in the course of business, had been run to Chicago, was part of its real
estate while there ; and, if not such, I can discover no principle upon
which the character of the property should be changed when it reaches
the Central track on its return trip to New York." After an exami-
nation of all the cases on the subject, Mr. Ewell declares it to be the
better opinion, and one supported by the weight of authoritj', that the
rolling stock of a railroad is simply personalty, and not a fixture. Ewell
on Fixtures, 39.
Having reached the conclusion that the rolling stock of a railroad is
personal property, the next inquir3- will be, whether a mortgage of such
propert}' is within the provisions of the Statute requiring such mort-
gages to be filed.
In this State the legislative policj- is to require the registrj- or filing
of mortgages of all propertj' which is visible and tangible, and to post-
pone the lien of every mortgage not registered or filed as prescribed bj'
law, to the claims of third persons, the creditors of the mortgagor and
subsequent bona fide purchasers or mortgagees. This is apparent from
an inspection of the Statute (Rev. pp. 705-9.) The seventeenth and
twenty -seventh sections provide for the registration of mortgages of
lands, tenements and hereditaments ; the thirty-ninth and fortieth pro-
vide for the registry or filing of mortgages of goods and chattels. The
language of the sections relating to chattel mortgages is too clear to per-
mit a doubt as to the legislative meaning. Its language is : "Every
mortgage or conveyance intended to operate as a mortgage of goods
and chattels, not accompanied by an immediate delivery, and followed
by an actual and continued change of possession, shall be," &c. Giv-
ing the words of this Statute their primary and legal signification, which
is the cardinal rule for the construction of Statutes, this section must
be construed to apply to all mortgages of propertj' such as is comprised
under the description of " goods and chattels," as distinguished from
lands. Such a construction was made of the Statute of New York,
which, in this respect, is in the same words as our Act ; and the Act
was held applicable to mortgages of the rolling stock of a railroad in
connection with its lands. Stevens v. B. & N. Y. H. H. Co., 31
Barb. 590; Bement v. P. S M. B. B. Co., 47 Barb. 104; Hoyle v.
p. c& M. B.B. Co., 54 N. Y. 314. The court cannot interpolate any
qualification of the plain language of the Statute upon any supposed
inconvenience arising from its application to anj- particular class of
"WILLIAMSON V. NEW JERSEY EAILEOAD CO. 777
property which is within the operative words of the Act. That should
be left to legislative action, as it was bj' the courts of New York. The
question there has been set at rest by a Statute excepting out of the
operation of the chattel mortgage Act mortgages by railroad com-
panies on real and personal property which have been recorded as
mortgages of real estate. N. Y. St. 1868, c. 779.
In this State an Act was passed in 1876, relating to the registry of
mortgages given by certain corporations, providing that nothing in any
of the laws of this State shall be held to require the filing of record of
any mortgage given b^' anj- such corporation conveying the franchises,
and including chattels theoi or thereafter to be possessed and acquired,
if such mortgage shall be duly lodged for registry as a conveyance of
real estate. (P. L. 1876, p. 307, § 4.) The legal construction of the
Act we need not now consider.
The rights of tlie Iron and Coal Company in the property in con-
troversy were fixed and became vested rights in Januarj-, 1874, when
the levy was made under the executions. By the Act concerning ex-
ecutions, the property' was bound by the execution from the time of
delivery to the sheriff, and upon levy made, title under the execution
would be good, even as against subsequent bona fide purchasers (Rev.
p. 392, §§ 18, 20). By force of the last-mentioned Act, and the Act con-
cerning chattel mortgages, as it then stood, the Iron and Coal Compan}',
upon the levy being made, acquired a right in the property seized under
its execution superior to that of the complainant under his mortgage.
That right of priority, being a vested right, was not divested by the
Act of 187G.
The general rule is, that all Statutes shall have a prospective effect
onlj-. " Words in a Statute," saj-s Justice Paterson, " ought not to
have a retrospective operation, unless they are so clear, strong and im-
perative that no other meaning can be annexed to them, or unless the
intention of the legislature cannot otherwise be satisfied. This rule
ought especially to be adhered to when such a construction will alter the
pre-existing situation of the parties or will affect their antecedent rights,
services or remuneration, which is so obviously improper that nothing
ought to uphold and vindicate the interpretation but the unequivocal
and inflexible import of the terms, and the manifest intention of the
legislature." United States v. Ileth, 3 Cranch, 399, 413. This rule of
construction has been repeatedly enimciated and enforced by the courts
of this State. Den v. Van Riper, 1 Harr. 7 ; Jones v. Morris Aque-
duct Co., 7 Vr. 206 ; City of Elizabeth \t Hill, 10 Vr. 556.
The protection of vested rights in property from being destroyed or
impaired by after-legislation, has been placed on firmer grounds in this
State. By the third section of the Act relating to Statutes, it is de-
clared that the repeal of any statutory provision ' ' shall not affect or
impair any act done or right vested or accrued . . . before such repeal
shall take" effect; but every such act done, or right vested or accrued,
shall remain in full force and eflect to all intents and purposes as
7(6 "WILLIAMSON v. NEW JERSEY RAILROAD CO.
if such Statutory provision, so repealed, had remained in force." (Eev.
p. 1120, § 3.) This Statute is onlj- declarative of the law as judiciallj'
pronounced in Hiait v. GhcUcJc, reported in 4 Hal. 205.
Indeed, a right partaking of the nature of property, such as became
vested in the Iron and Coal Compan3- .upon the levy of its execution, is
clearly within the principle of the constitutional provision vvjiich pro-
tects private property from legislative action, and forbids its being
taken without compensation for either public or pi'ivate purposes. This
constitutional protection is thrown around property of everj- kind and
description, and is not restricted to anj- particular mode of taking. A
partial destruction or diminution in A'alue is a taking within the mean-
ing of the constitutional provision. Glover v. Powell, 2 Stock. 212 ;
ITale V. Lawrence, 1 Zab. 248, 714 ; Trenton Water Power Co. v.
Raff, 7 Vr. 335. If the levy had been upon lands, instead of goods
and chattels, a subsequent Act of the legislature depriving the plaintiff
in execution of his lien thereon, or impairing the value of his priority
by substituting a subsequent encumbrancer in his place, would be so
plainly- an invasion of his right in the property as to be undeniably
within the constitutional prohibition. If it might be done after the lien
of the judgment attached, it would be equally- competent for the legis-
lature to do so after the title had actualh* passed bj- a sale and con-
veyance under the execution. The same principle must be applied to a
lev}' on goods and chattels.
Nor is the form of the legislative change in the law a matter of any
consequence. Whether it be in the shape of a legislative construction
of a pre-existing Statute, or a positive enactment retrospective in terms,
the substance of the thing only will be regarded. What maj- not be
done directly in one way, cannot be done \>\ indirection in the other
way.
The Act of 1876 itself does not necessarily require a retrospective
construction, and therefore will not be allowed that effect; and if the
language used required such a construction, it could not be effective to
deprive a party of prior vested rights acquired under the levy.
Another point made on the argument was, that even if the rolling
stock of a railroad be goods and chattels, and a mortgage thereof be
required to be registered or filed bj' the chattel mortgage Act, the com-
plainant having taken actual possession of such propertj- before the
judgment of the Lackawanna Iron and Coal Companj- was recovered,
the complainant's mortgage is entitled to priority over the judgment.
The mortgage was made on the 14th of September, 1869, and posses-
sion of the rolling stock was not taken bj' the mortgagee until January
1st, 1874. The mortgage was not accompanied by an immediate
delivery of the property mortgaged, but possession was taken before
the judgment was recovered.
There is a distinction made in the Statute between the creditors of
the mortgagor and subsequent purchasers or mortgagees, with respect
to the avoidance of the mortgage for neglect to file the same, or to take
WILLIAMSON V. NEW JERSEY RAILROAD CO. 779
immediate possession. Purchasei's or mortgagees, in order to take
adx'antage of the failure of another mortgagee of chattels to comply
with the Statute, must be subsequent purchasers or mortgagees, taking
their title under the mortgagor in good faith. A purchaser or mort-
gagee acquiring his rights with notice of the existence of the antece-
dent mortgage, does not obtain his tillu in good faith. Consequentlj'
possession taken of the mortgaged property under a prior chattel mort-
gage, however long postponed, will give it priority over a subsequent
purchase or mortgage, if possession be taken in fact before such subse-
quent sale or mortgage was made. But no such qualifications apply as
against the creditors of the mortgagor. Their rights may have accrued
prior or subsequent to the mortgage, and yet they will be entitled to
the benefit of the Statute. Knowledge of the existence of a chattel
mortgage executed by the debtor will not preclude a creditor from
availing himself of the objection that the mortgage is void because it
was not accompanied by immediate delivery of the things mortgaged,
followed by an actual and continued change of possession Thomas on
Mortgages, 505 ; Farmers Loan and Trust Company v. Hendrich-
son, 25 Barb. 485 ; Stevens v. Buffalo & N. Y. B. R. Co., 31 Barb.
590 ; Thompson v. Van Vechten, 27 N. Y. 568. The distinction be-
tween creditors and subsequent purchasers or mortgagees in this respect
was recognized in the opinion of this court in National Bank of Me-
tropolisv. Sprague, 6 C. E. Gr. 530. The Chancellor's construction of
the Statute holding that possession of the chattels mortgaged, taken be-
fore judgment recovered, will not give validitj- to the mortgage as against
the execution creditor, if the mortgage was not filed according to the
provisions of the Act, and there was not an immediate delivery and
continued change of possession of the things mortgaged, was correct.
Upon a careful consideration of the subject, I am constrained to dis-
sent from the views of the Chancellor in holding the rolling stock of a
railroad to be part of the realtj-, and that the complainant's mortgage,
so far as it covered such propert}', was not within the provisions of the
Act concerning chattel mortgages, as the Act stood when the rights of
these parties became fixed. In my judgment, property of that kind
must, under the law as established in this State, be regarded as goods
and chattels, and a mortgage thereon be subject to the provisions of
the Act relating to mortgages of property of that description. The
complainant's mortgage, so far as concerns the roUing stock and other
personal property subject to it, must be postponed to the judgment of
the Lackawanna Coal and Iron Company.
The decree appealed from should be modified to conform to this
opinion, and to that end must be reversed, and the record remitted to
the Court of Chancery, with directions accordingly.
The Lehigh Car Company and the Lackawanna Iron and Coal Com-
panv having succeeded on their appeals, are entitled to costs m this
court. Both parties having appealed from that part of the decree that
related to the claim of Berthoud & Co., and neither succeeding on the
780 WATEISS V. PIEST BANK OF CAMBRIDGE.
appeal, the aflflrmance in that respect is without costs. The costs of
the complainant in this court to be considered as costs in the cause,
paj'able out of the proceeds of the sale of the propertj^ generally-.
Decree unanimously reversed.
WATRISS V. FIRST BANK OF CAMBRIDGE.
SuPKEME Judicial Court of Massachusetts. 1878.
[Reported 124 Mass. 571.J
Contract for breach of a covenant contained in a written lease given
by the plaintiff to the defendant, hy which the lessee agreed " to quit
and deliver up the premises to the lessor or her attornej- peaceably and
quietly at the end of the term, in as good order and condition ... as
the same now are." The breach complained of was the taking down
and removal of a fire-proof safe and vault, a furnace with pipes and
flues, and certain counters. The answer contained a general denial,
and alleged that the defendant owned the property' removed. Trial in
this court, before Arties, J., who reported the case for the consideration
of the full court, in substance as follows : —
The plaintiff and one Hyde owned the premises as tenants in com-
mon, and by a lease dated January 1, 1861, demised them to the Har-
vard Bank for the term of five j'ears, at the rent of $300 a j"ear. The
lease contained a clause giving to the lessee the privilege, at its option,
of renewing and extending its enjoyment of the premises for the addi-
tional term of five years upon the same terms ; and the lessee agreed
" to quit and deliver up the premises to the lessors or their attorney,
peaceablj- and quietl3', at the end of the term, in as good order and
condition, reasonable use and wearing thereof, fire and other unavoid-
able casualties excepted, as the same now are or ma}- be put into by the
said lessors," "and not make or suffer any waste thereof;" "nor
make or suffer to be made any alteration therein, but with the approba-
tion of the lessors thereto in writing having been first obtained ; " and
giving the lessors the right to enter to view and make improvements,
and expel the lessee if it should fail to paj' the rent as aforesaid, or to
make or suffer any strip or waste thereof.
The lessee thereupon constructed in the building a fire-proof safe or
vault, for the safe keeping of money, books, and securities ; also a
portable furnace in the basement, with the necessary pipes, flues, and
registers for warming its rooms ; and certain counters. The premises
were or-ciipied by the lessee as its banking rooms.
On May 16, 1864, the lessee was organized as a national bank under
the laws of the United States, and its name was changed to the First
National Bank of Cambridge, but there was no other change of its
identity. In the course of the first term, a partition was duly had
WATEISS V. FIRST BANK OF CAMBRIDGE. 781
between Hyde and the plaintiff, by virtue of which the plaintiff became
the sole owner of the premises. Before the expiration of the term, the
defendant elected to continue to hold under the lease for the five addi-
tional years, and a new lease was executed between the parties to this
action, bearing date October 7, 1870, granting to the defendant a fur-
ther term of five years from January 1 , 1871, at the rent of $800 a year.
This lease contained the same clauses above quoted from the lease of
January 1, 1861, and the following additional clause: "And provided
also, that in case the premises, or any part thereof, during said term,
be destroyed or damaged by fire or other unavoidable casualty, so that
the same shall be thereby rendered unfit for use and habitation, then,
and in such case, the rent hereinbefore reserved, or a just and propor-
tional part thereof, according to the nature and extent of the injuries
sustained, shall be suspended or abated until the said premises shall
have been put in proper condition for use and habitation by the said
lessor, or these presents shall thereby be determined and ended, at the
election of the said lessor or her legal representatives."
On or about November 5, 1875, the defendant, having concluded to
remove its business to another building, proceeded to take down the
vault, and remove the materials of which it was composed, and also
the furnace, pipes, flues, registers and counters to its new banking
rooms, contending that it had a right so to do.
It was agreed that the damage done by this proceeding to the build-
ing, if the propertj' so removed could lawfully be considered as fixtures
which the defendant, as an outgoing tenant, had a right to remove,
was $7.5 ; that the plaintiff was entitled, at all events, to recover that
sum, with interest ; and that the building could for that sum be restored
to the same good order and condition as it was in at the date of the
first lease. The jurj' returned a verdict for the plaintiff for $75, and
the judge reported the case for the consideration of the full court. If
the plaintiff was entitled to recover a greater sum than the amount of the
verdict, and if the alleged fixtui'es were removed wrongfully and in
violation of her rights, the case was to stand for trial; otherwise,
judgment was to be entered on the verdict.
S. H. Dudley, for the plaintiff.
J. W. Jfammond, for the defendant.
Endicott, J. It is stated in the report that the Harvard Bank, soon
after taking possession of the premises under the lease of January 1,
1861, put in a counter, a portable furnace with its necessary connec-
tions, and a fire-proof safe or vault, for the removal of which, in 1875,
this action is brought. In 1864, the Harvard Bank was organized as
the First National Bank of Cambridge. No question is made that all
the proceedings were according to law. The right to the personal
property of the old bank passed, therefore, to the defendant upon the
execution of the necessary papers and the approval of the proper oflS-
cers ; no other assignment was necessarj'. Atlantic National Bank
V. Harris, 118 Mass. 147, 151.
782 WATRISS V. FIRST BANK OF CAMBRIDGE.
The right of the defendant to occupy the premises under the lease to
the Harvard Bank for five j-ears, and to exercise the option contained
in the lease to hold the premises for five years more at the same rent,
seems to have been conceded bj^ the lessors ; for the defendant con-
tinued in possession, paying rent during the vpbole terra of ten j-ears
contemplated by the lease, which expired January 1, 1871. We must
assume that the title, not mereh' to movable chattels upon the prem-
ises, but also to trade fixtures put in bj- the Harvard Bank, passed to
the defendant, as the plaintiff does not deny that the defendant could
have removed such of the articles as are trade fixtures at any time
before the final expiration of the lease on January 1, 1871.
In October, 1870, about three months before tlie final expiration of
the term of the old lease, the plaintiff, one of the original lessors, who
had in the mean time acquired the whole title to the premises, executed
a new lease to the defendant, then in occupation, for a much higher
rent, containing different stipulations from those in the old lease, par-
ticnlarlj' in regard to abatement of rent in case of fire. This lease was
to take effect January 1, 1871, but made no reference to the existing
lease, or to the removal of any trade fixtures then upon the premises.
It was in no proper sense a renewal of the old lease. It contained the
usual covenants on the part of the lessee to quit and deliver up the
premises at the end of the term in as good order and condition " as
the same now are." Although executed before the expiration of the
earlier lease, it can have no other or different effect than if given on
the day it was to become operative, and its stipulations and conditions
are to be considered as if made on that day. And the question arises
whether the acceptance of the new lease and occupation under it on
January 1, 1871, was equivalent to a surrender of the premises to
the lessor at the expiration of the first term. If it did amount to a
surrender, it is very clear that the defendant could not afterwards
recover the articles alleged to be trade fixtures.
The general rule is well settled that trade fixtures become- annexed
to the real estate ; but the tenant may remove them during his term,
and if he fails to do so, he cannot afterwards claim them against the
owner of the land. Poole's Case, 1 Salk. 368 ; Oaffield v. Hapgood,
17 Pick. 192; Winslow v. Merchants Ins. Co., 4 Met. 806, 311;
Shepard v. Spaulding, 4 Met. 416 ; Bliss v. Whitney, 9 Allen, 114,
115, and cases cited; Talbot v. Whipple, 14 Allen, 177; Lyde v.
Hussell, 1 B. & Ad. 394 ; Baron Parke in Minshall v. Lloyd, 2 M. &
W. 450. This rule always applies when the term is of certain dura-
tion, as under a lease for a term of j-ears, which contains no special
provisions in regard to fixtures. But where the term is uncertain, or
depends upon a contingency, as where a part}' is in as tenant for life,
or at will, fixtures may be removed within a reasonable time after the
tenancy is determined. JEllis v. Paige, 1 Pick. 43, 49 ; Doty v. Gor-
ham, 5 Pick. 487, 490 ; Martin v. Roe, 7 E. & B. 237. See also
Whiting v. JBrastoio, 4 Pick. 310, 311, and note.
WATRISS V. FIRST BANK OF CAMBRIDGE. 783
There is another class of cases which forms an exception to the
general rule. Where a lease was given by an agent without sufficient
authority during the absence of the owner, and was terminated by the
owner on his return from abroad, it was decided by this court that the
lessees became tenants at sufferance, and could remove their fixtures
within a reasonable time after such termination. Antoni v. Belknap^
102 Mass. 193. In Penton v. Robart, 2 East, 88, it was held that a
tenant, who had remained in possession after the expiration of the
term, had the right to take away his fixtures, and Lord Kenyon said,
" He was in fact still in possession of the premises at the time the
things were taken away, and therefore there is no pretence to say that
he had abandoned his right to them." In Weeton v. Woodcock, 7 M.
& W. 14, a term under a lease had been forfeited by the bankruptcy of
the lessee, and the lessor entered upon the assignees to enforce the
forfeiture, and it was held that they might have a reasonable time to
remove fixtures; and Baron Alderson said that "the tenant's right to
remove fixtures continues during his original term, and during such
further period of possession by him, as he holds the premises under a
right still to consider himself as tenant." Mr. Justice Willes, com-
menting on these two last cases, in Leader v. Homewood, 5 C. B.
(N. S.) 546, said : " It is perhaps not easj' to understand fully what is
the exact meaning of this rule, and whether or not it justifies a tenant
who has remained in possession after the end of his term, and so
become a tenant at sufferance, in severing the fixtures during the time
he continues in possession as such tenant. But the rule, whatever its
exact meaning may be, is plainly inconsistent with the argument relied
on by the counsel for the plaintiff in the present case, viz., that the
right of the tenant continues till he has evinced an intention to aban-
don his right to the fixtures." In Mackintosh v. Trotter, 3 M. & W.
184, Baron Parke, after stating that whatever is planted in the soil
belongs to the soil, remarked " that the tenant has the right to remove
fixtures of this nature during his term, or during what maj', for this
purpose, be considered as an excrescence on the term." He also refers
to Minshall v. Lloyd, 2 M. & W. 4.i0, as authority, wherein he stated
in the most emphatic manner that " the right of a tenant is only to
remove during his term the fixtures he may have put up, and so to
make them cease to be any longer fixtures." It is clear from these
cases that the right of a tenant, in possession after the end of his term,
to remove fixtures within a reasonable time, does not rest merely on the
fact that he is in occupation, or has not evinced an intention to aban-
don, but because he is still, in contemplation of law, in occupation as
tenant under the original lease, and, as Baron Parke says, under what
may be considered an excrescence on the term, that is, as tenant at
sufferance.
But a very difl'erent question is presented when the same tenant con-
tinues in possession under a new lease containing different terms and
conditions, making no reference to the old lease, reserving no riglits to
784 "WATEISS V. FIRST BANK OF CAMBRIDGE.
the lessee in fixtures annexed during tlie previous term and not removed
before its expiration, and containing tlie covenant to deliver up the
premises at the end of the term in the same condition. This is not the
extension of or holding over under an existing lease ; it is the creation
of a new tenancj'. And it follows that whatever was a part of the free-
hold when the lessee accepted and began his occupation under the new
lease must be delivered up at the end of the term, and cannot be sev-
ered on the ground that it was put in, as a trade fixture, under a pre-
vious lease, which has expired. The failure of the lessee to exercise
his right to remove during the former term, or to reserve it in his new
contract, precludes him from denj'ing the title of his landlord to the
estate and the fixtures annexed which have become part of it. The
occupation under the new lease is in eflTect a surrender of the premises
to the landlord under the old.
This view is supported hx the authorities. The earliest case on the
subject is Fitzherhert v. Shaw, 1 H. Bl. 258. A purchaser o,f lands
having brought ejectment against a tenant from year to year, the par-
ties entered into an agreement that judgment should be signed for the
plaintiff, with a stay of execution for a given period ; and it was held
that the tenant could not, during the interval, remove the fixtures
erected during the term, and before action brought, — on the ground
that the tenant could do no act to alter the premises in the mean time,
but they must be delivered up in the same situation they were in when
the agreement was made and the judgment signed. This case was fol-
lowed in Heap v. Barton, 12 C. B. 274, where there was a similar
agreement, and Jervis, C. J., said that " if the tenants meant to avail
themselves of their continuance in possession to remove the fixtures,
they should have said so." In Thresher v. East London Waterworks,
2 B. & C. 608, it was held that a lessee, who had erected fixtures for
purposes of trade on the premises, and afterward took a new lease, to
commence at the expiration of the former one, which contained a cov-
enant to repair, would be bound to repair the fixtures, unless strong
circumstances were shown that they were not intended to pass under
the general words of the second demise ; and a doubt was expressed
whether any circumstances, dehors the deed, can be alleged to show
they were not intended to pass. The case of Shepard v. Spaulding,
4 Met. 416, touches the question. A lessee erected a building on the
demised premises, which he had a right to remove, but surrendered his
interest to the lessor without reservation ; afterward he took another
lease of the premises from the same lessor, but it was held that his
right to remove did not revive. When the new lease was made, it was
of the whole estate, including the building. This differs from the case
at bar only in the fact that there was an interval between the surrender
of the interest under the first lease and the granting of the second,
when the lessor was in actual possession. Bijt the acceptance of the
new lease and occupation under it are equivalent to a surrender of the
premises at the end of the term. In Loughran v. Moss, 45 N. Y.
STILLMAN V. FLENNIKEN. 785
792, it was held that, if a tenant, having a right to remove fixtures
erected by him on the demised premises, accepts a new lease of such
premises, including the buildings, without reservation or mention of
any claim to the buildings, and enters upon a new term thereunder, the
right to removal is lost, notwithstanding his occupation has been con-
tinuous. See also Abell v. Williams, 3 Dal3', 17 ; Merritt v. Judd, 14
Cal. 59 ; Jungerman v. Bovee, 19 Cal: 354 ; JElwes v. Maw, 3 East,
38 ; Taylor on Landlord and Tenant (5th ed.), § 552 ; 2 Smith's Lead.
Cas. (7th Am. ed.) 228, 245, 257.
We are therefore of opinion that the defendant had no right during
the second term to remove any trade fixtures placed there during the
first. If an}' of the articles named were movable chattels, as the de-
fendant contends, the plaintiff cannot recover for them ; but if they
were permanent or trade fixtures, the plaintiff may recover for their
removal. Case to stand for trial}
STILLMAN «. FLENNIKEN.
Supreme Court of Iowa. 1882.
[Reported 58 Icrwa, 450.]
Thjs is an action of replevin for a smutter of the alleged value of
seventy-five dollars. The cause was tried to the court, and judgment
was rendered for the defendant. The plaintiff appeals. The facts are
stated in the opinion.
D. W. Clements and W. E. Fuller, for appellant.
Ainsworth and Hobson, for appellee.
Day, J. The court found the facts of the case to be as follows :
" 1st. That in the year 1877 Anderson and Stillman were the
owners of the smutter in controversy in this case.
" 2d. That at the time Patterson and Dykens were the owners of, or
interested in, the East Auburn Mills.
" 3d. That Anderson and Stillman loaned the smutter in question
to Patterson and Dykens, the said Patterson and Dykens to pay lor the
use thereof, what would be equal to ten per cent per annum, on the
cost of said smutter.
"4th. That said smutter was to be returned, but no time agreed
upon for such return.
" 5th. That said smutter was placed in the East Auburn Mill, by
Patterson and Dykens, in the manner that such smutters are usually
placed in mills, it being placed upon a platform about two and one half
feet square, and something more than three feet in height, the platform
not being nailed or cleated to the floor of the mill, but the smutter
1 But see Kerr T. Kingsbury, 39 Mich. 150.
50
786 STILLMAN V. FLENNIKEN.
being held in position bj' braces from the joists of the mill above, and
extending to the smutter, holding it firmly in place for use.
" 6th. The smutter in question, when placed in the mUl, was de-
signed for, and used only for buckwheat and rye.
" 7th. That there was another smutter in the mill, which had, pre-
vious to getting the one in question, been used for all purposes for
which a smutter was used in the mill.
" 8th. That about the time of obtaining the smutter in question, the
arrangement of the miU was changed, and the first smutter so placed in
the mill, as not to be available for use in grinding buckwheat and rj-e,
and the smutter in question procured for use in grinding that class of
grain.
" 9th. That said smutter was placed in the mill in December, 1877.
" 10th. That the power of said mill was water, and that for the pur-
pose of operating the smutter in question, a counter-shaft was placed in
said mill, running from the main or upright shaft over the smutter and
connected therewith by belts, by which the smutter was operated.
" 11th. That to remove the smutter it was not necessary to destroy
or injure the mill, that is, the building, farther than to remoA'e in part
some spouting, or leaders, in which the grain or flour of the mill was
conducted.
' ' 12th. That on the 28th day of January, 1879, the sheriff of Fayette
county, Iowa, by virtue of a special execution to him directed, sold to
Flenniken Brothers the land on which the mill in question is situated,
including the mill, machinery and fixtures therein.
" 13th. That on the 30th day of January, 1880, the sheriff of said
countj' of Fa5-ette made his deed of said premises, mill, machinery and
fixtures, to Flenniken Brothers, who took possession thereof by virtue
of said deed.
" 14th. That R. B. Flenniken is the defendant herein, and was a
member of Flenniken Brothers, and that he is now the sole owner of
the interest of said Flenniken Brothers.
" 15th. That at the time of the sale, Januarj' 28th, 1879, the said
Flenniken Brothers had no notice that the smutter in question was
owned bj' plaintiff, or Anderson and Stillman.
'' 16th. The plaintiff is now owner of whatever interest Anderson
and Stillman has owned, or would have in said smutter. B3' the fore-
going, I mean that the interest of Anderson in said smutter is conveyed
to the plaintiff.
" 17th. That when Patterson and Dykens placed the smutter in
question in the mill, it was with the intention that it should be removed
and returned to Anderson and StiUman.
" 18th. I find the value of the smutter to be $75.
"19th. That when the smutter was loaned, Patterson [Anderson]
and Stillman knew that it was to be placed in the mill as a part of the
machinery thereof."
As conclusions of law the court found : —
STILLMAN V. FLENNIKEN. 787
"1st. That as between other parties and purchasers, at a judicial
sale, without notice, the srautter was a part of the realty and passed as
such.
" 2d. That R. B Flenniken is the full and unqualified owner of the
smutter in question, and entitled to the possession thereof." The
amount in controversy not exceeding one hundred dollars, the trial
judge duly certified the questions of law upon wliich it is desirable to
have the opinion of this court, all of whicli may be resolved into the
single question, whether under the facts as found by the court, the
smutter passed to Flenniken Brothers by virtue of their purchase at
the sheriffs sale.
That as between Anderson and Stillman, and Patterson and Dykens,
the smutter in question did not become a part of the realtj-, but was sub-
ject to removal, must be admitted. The question involved in this case
is as to what character is to be impressed upon the smutter against a
purchaser at sheriff's sale, without anj- notice of the arrangement existing
between Anderson and Stillman, and Patterson and Dykens. In Quinby
V. Manhattan Cloth & Paper Co., 9 C. E. Green, 260 (264), it is
said : " The true criterion as to fixtures to determine whether they are
to be regarded as part of the realty or not, is not whether the}' may be
detached and removed from the premises without injur}' to the freehold,
although that, as is well understood, is oftentimes an important ele-
ment in deciding the question. It is well established that whether
propertj', which is ordinarily treated as personal, becomes annexed to
and goes with the realt}- as fixtures, or otherwise must depend upon
the particular circumstances of the case." It appears from thfe facts as
found b}' the court that the smutter was placed in the mill in the usual
manner, and that without it the mill, without change in its arrangement,
could not grind buckwheat and rye. It was then, to all appearances,
an essential and necessary part of the mill.
In Gray v. Holdship, 17 S. & R. 413, the court say: "From the
adjudged cases on this subject, I think we are warranted in saying that
everything put into and forming part of a building, or machinery for
manufacturing purposes, and essential to the manufactory, is part of
the freehold ; the wheels of a mill, the stones and even the bolting
cloth, are parts of the mill and of the freehold, and cannot be levied
upon as personal property." In Farrar v. Stackpole, 6 Greenleaf,
154, it was held that things personal in their nature, but fitted and pre-
pared to be used with real estate, and essential to its beneficial enjoy-
ment, being on the land at the time of its conveyance by deed, pass
with the realty, and that, by the conveyance of a saw-mill with the ap-
purtenances, the mill chain, dogs and bars, being in their appropriate
places at the time of the conveyance, passed to the grantee. In Far-
ris V. Walker, 1 Bailey (S. C). .540, it was held that a cotton gin at-
tached to the gears in the gin house, on a cotton plantation, passed by
a convej-ance of the land. See, also, Union Bank v. Fmerson, 15
Mass. 152; Fryat <& Campbell v. The Sullivan Co., 5 Hill, 116;
788 CAKPENTER V. "WALKEK.
Bringholff v. Munzenmaier, 20 Iowa, 513 ; Ottumwa Woollen Mill
Co. V. Hawley, 44 Iowa, 57 ; Miller t. Flumb, 6 Cowen, 665 ; Wad-
leigh v. Janvrin, 41 N. H. 503 ; Powell v. Monson & Brimford
Man'f'g Co., 3 Mason, 459 ; Corliss v. McLagin, 29 Me. 115 ; Trull
V. Fuller, 28 Me. 545.
The rule is the same whether the sale is by the owner or by a public
ofHcer under the law. Price v. Brayton, 19 Iowa, 309 ; Farrar v.
Chariffetete, 5 Denio, 527.
Without entering upon the hopeless task of citing and reconciling all
the decisions upon this very vexed question of fixtures, we are clearly'-
of opinion that under the facts found by the court in this case, the
smutter must, as to a purchaser without notice, be regarded as consti-
tuting a part of the realty. Affirmed.^
CARPENTER v. WALKER.
SuPEEME Judicial Court of Massachusetts. 1886.
[Reported 140 Mass. 416.]
Bill in equity, filed February 11, 1884, in the Superior Court,
against Otis Walker, Thomas E. Rich, and Paris Rich, alleging that
the two last-named defendants, on June 19, 1883, executed a mort-
gage of certain chattels to the plaintiff ; namelj^ a boiler and steam-
engine and certain machinerj', to secure their promissorj' note for
$1000, pa3'able to the plaintiff or order, on demand ; and that the
defendant Walker had possession of the building in which said chat-
tels were, and refused to deliver them to the plaintiff, or to allow him
to take possession of them for the purpose of foreclosing his mortgage.
The prayer of the bill was, that Walker be restrained from prevent-
ing the plaintiff from taking possession of said chattels, and from mov-
ing, concealing, and disposing of the same ; and for further relief.
The defendant Walker filed an answer, alleging title to the property
by virtue of a mortgage, executed to him by the two last-named de-
fendants on June 20, 1881, which convej-ed a certain parcel of land
with the buildings thereon. The answer also alleged that all the arti-
cles mentioned in the bill, except the boiler and engine, were in the
building at the time the mortgage to Walker was made ; that the boiler
and engine were subsequentlj' placed therein ; and that all of the articles
were fixtures.
The case was referred to a master, who found the following facts :
The engine, boiler, and machinery were used in a mill or factory
building standing on the land mortgaged to Walker, and were used in
carrying on the business of making sashes and blinds.
The boiler and engine were cast together, the engine being on top of
1 Ocmtra, see Hill v. Sewald, 53 Pa. 271 ; Hendy v. Binlcerhoff, 57 Cal. 3. '
CARPENTER V. "WALKER. 789
the boiler. Their united weight was fifty-six hundred pounds. Two
iron legs projected from the rear end of the boiler and stood on timbers.
There were also two small projections, one on each side of the boiler
near its front end, but the front end rested on bricks, which were built
up to form the ash-box and placed around and laid to prevent fire. A
shed was built over the engine-house and boiler, the grist-mill building
and the sash and blind building constituting one end and side of said
shed. There was no doorway into this shed except an opening from
the sash and blind mill, and the boiler and engine could not be removed
except by removing the shed or by taking off some boards to enlarge
the opening into the factory. The shed was built over the boiler and
engine to protect them from the weather. The boiler and engine were
not fastened to the building, nor to the land, except that the engine was
belted to the main shaft, ' but they were kept in place by their own
weight. They were called "Allen's Portable Boiler and Engine." I
find the boiler, engine, and attachments to be portable, and that they
retained the character of chattels.
There were ten or more machines described in the plaintiff's bill,
all of which were used in the factorj- to make sashes and blinds, as
follows : —
1. i^jointing-machine, with circular saw and track: fastened at the
bottom bj' cleats about the legs, which were nailed to the floor ; and
the feet of the machine were nailed to the floor.
2. A tongue-groover or matching-machine : wood, fastened with
cleats and feet nails, and had not been moved since it was set up.
3. A planing-machine : cast-iron, screwed to the floor with Colt
screws : this had not been moved since it was set up.
4. A circular saw and table : wooden frame, fastened by cleats and nails.
5. A heavy machine called a slat-planer : wood, with iron legs made
to be bolted down to the floor.
6. A sticker : fastened to the floor by Colt screws, which are turned
by a wrench.
7. A cut-off" saw and table : wood frame, fastened by cleats and nails
to the floor.
8. A slat-machine for tenoning ; iron frame, screwed to the floor.
9. Boring-machine : wooden frame, held mainly by cleats.
10. Mortisiug-machine : iron, fastened by four screws to floor,
steadied on top by braces nailed to ceiling._
11. Sand-paper machine.' cleats round the bottom, and fastened to
the floor above.
The said machinery was all connected with the shafting, directlj- or
indirectly, by pulleys or gearing, and was run by belts. The machines
stood over the shafting, which was under the floor and in a position
convenient to be run by said shafting. None of the machines was very
heavy. They were movable, and were sometimes, though not often,
moved. They were adapted to do the work carried on in the mill, but
could be used elsewhere in the same business.
790 CARPENTER V. WALKER.
The master found all of said machines to be personal property, and
to be included in the plaintiff's mortgage, but not in the defendant
"Walker's ; and all the shafting to be part of the realty-, and to belong
to said defendant.
Walker filed the following exceptions to the report :
" In that, upon the findings of fact as to the boiler and engine, the
master has erred in his findings of law, that a boiler and engine, placed
as this boiler and engine were placed, and resting upon a brick founda-
tion as did this boiler, and used for conveying power to this sash and
blind shop, were chattels, instead of real propertj' included in and sub-
ject to the defendant's mortgage.
" In that, upon the findings of fact as to the machinery named from
paragraphs 1 to 11, fastened to the building in the manner set forth in
said report, and used for carrying on the business of manufacturing
sashes and blinds in the building upon the land described in tlie de-
fendant's mortgage, which building was built for that purpose, the mas-
ter has erred in his finding of law, that such machinery is a chattel,
instead of real property included in and subject to the defendant's
mortgage."
Pitman, J., overruled the exceptions, and ordered a decree for the
plaintiff; and the defendant Walker appealed to this court.
J. M. Cochran, for the defendant Walker.
A. J. Bartholomew, for the plaintiff.
Holmes, J. Perhaps it would have saved perplexing questions, if,
as between vendor and purchaser, or mortgagor and mortgagee, the
rule of the common law had been adhered to more strictly, that what-
ever is annexed to the freehold bj- the owner becomes a part of the
realty, and will pass bj' a convej'ance of it. Y. B. 21 Hen. VII. 26, pi.
4 ; Ehoes v. Maw, 3 East, 38 ; s. c. 2 Smith Lead. Cas. (8th Am. ed.)
191; Fisher v. Dixon, 12 CI. & Fin. 312, 328, <f! seq. ; Mather v. Fraser,
2 K. & J. 536 ; Walmstey v. Milne, 7 C. B. (N. S.) 115 ; Gibson v.
Hammersmith Railway, 32 L. J. Ch. 337, 340 ; Climie v. Wood,
L. R. 4 Ex. 328 ; Holland v. Hodgson, L. R. 7 C. P. 328 ; Meux v.
Jacobs, L. R. 7 H. L. 481, 490. The right of a tenant to sever chat-
tels which he has attached to the realty might be admitted, and yet the
property might be regarded as land until severed, as it seems to be in
England. The language of Hdlawell v. Eastwood, 6 Exch. 295, which
looked the other waj-, has been criticised in the later cases, some of
which we have cited.
But the later decisions of this Commonwealth establish that machines
may remain chattels for all purposes, even though physically attached
to the freehold bj' the owner, if the mode of attachment indicates that it
is merely to steadj- them for their more convenient use, and not to
make them an adjunct of the building or soil. McConnell v. Blood,
123 Mass. 47 ; Hubbell v. Fast Cambridge Savings Bank, 132 Mass.
447 ; Maguire v. Park, 140 Mass. 21.
It is more important to respect decisions upon a question of property
CARPENTEE V. "WALKER. 791
than to preserve a simple test ; and, for this reason, the decree of the
Superior Court must be affirmed. The master reports that he finds the
articles in controversj- to be personal propertj-, and we cannot go be-
hind this finding, unless the facts found specially require a different con-
clusion, as matter of law. The special facts are, that the boiler and
engine were portable, and not attached to the realty, except that they
were belted to the main shaft ; but that they could not be removed
except b}' removing a shed built over them to protect them from the
weather, or b}- taking off' some boards to enlarge the opening into the
factorj'. The machines were fastened to the floor by cleats, screws, or
nails. We cannot sa}', as matter of law, that these facts are inconsis-
tent with the master's finding, in view of the cases cited. We must
take that finding to exclude the articles having been put where they
were as a permanent improvement to the building, whatever conjecture
we might have formed but for the master's general conclusion.
Decree affirmed.
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