« AnteriorContinuar »
tion about which there may be some doubt, as for the use of intoxicating liquors, was held valid. instance, if she is a setting hen, and makes fight, not This reminds us of the case, in Illinois, of Phillips merely amorous resistance.” “Upon this case of | v. Myers, upon a promissory note running as follows: the cock and the hen, can any one seriously insist “For value received, one day after I, at any time, that a jury has no right to call to their assistance become intoxicated or drunk, or mistreat or abuse their own experience and observation of the nature | Minnie Myers, I promise to pay to S. M. Phillips the of animals, and of male and female instincts?” sum of six hundred dollars for the use of Minnie This knowledge of the nature of man, derived from Myers, with ten per cent interest from maturity till experience and observation, the judge grandly ob- paid.” Minnie was the maker's wife, and had sued serves, “is the corner stone on which the institution him for divorce, and the note was given in considof trial by jury rests.” Then he winds up with this eration of the discontinuance of the suit, and her unanswerable syllogism: “ The prisoner had some returning to live with him. As might have been intent when he pursued the woman. There is no prophesied, the note "matured," and it was held evidence tending to show that his intent was to valid. We believe these two cases are a fair offset kill or rob her; so the intent must have been to have to each other, in pronouncing upon the comparative sexual intercourse." (How if it had been to in- / force of the passions of avarice and gluttony. quire his way, or ask for something to eat ?) So We shall take up this volume again. the jury, “considering that he was a negro," and the woman's flight, and the prisoner's retreat, and the sexual instinct, "and the repugnance of a white
A NOTABLE WILL CASE. woman to the embraces of a negro," had some evi
LONDON, November 15, 1877. dence to find that the intent was to commit a rape. On Monday Vice-Chancellor Malins had a case before And so on the fowl presumption raised by the court, U him which, if it ever reaches a decision on the the unfortunate Othello suffered, without even find
merits, will take rank as one of the most important ing out whether Desdemona, like Barkis, was
illustrations of the doctrine of interpretation of wills.
Knole was the seat of the Earls and Dukes of Dorset “ willin'.” We must say we think Lynch law is
from the time of the first Earl, Queen Elizabeth's about as good as this. But, of course, as the suf
cousin and Lord High Treasurer, down to the time of ferer was nothing but a “nigger," the case is awfully the Duke who died between thirty and forty years ago. funny. Another case of a rather entertaining char The Sackville family then came to be represented by acter is State v. Ward, 43 Conn. 489. A person in two sisters, daughters of the third Duke -- Lady Do the night season entered a dwelling-house without
La Warr and Lady Amherst; and Knole fell to the lot
of the latter, who was childless, while Lady De La breaking, for the purpose of stealing, but broke out
Warr had several sons. In order to keep the name and in making his escape. Held, burglary at common
fame of Sackville associated with Knole, apart froin law.
all other connections, the Queen was induced to revive In Vermont, we notice, with interest, the case of the Barony of Buckhurst, which was the first Peerage Ferriter v. Tyler, 48 Vt. 444. A school committee, in the Sackville family, and to create Lady De La Warr authorized by statute to adopt all requisite regula Baroness Buckhurst, with remainder to her second tions, excluded children from the school for absence
son, avd a proviso in the patent that if the second son
succeeded to the De La Warr title, the Barony of contrary to the rules. This was held valid, although
Buckhurst should pass to the next son, and so on, so the absence was pursuant to the command of their
that the Barony of Buckhurst should constitute a disRoman Catholic parents and their priest, and for the tinct family: Lady Amherst engaging, on her part, to purposes of keeping a religious holyday of the settle Knole on similar limitations, so that the estate church.
should pass as the Barony was intended to pass. This In Arkansas, we note the case of Wilson v. Teb
was in 1864, and Lady Amherst, while the deeds of
settlement of the estates on the Buckhurst title were betts, 29 Ark. 579. One of several sureties for
being prepared, made a codicil to her will directing her a debt notified the creditor, on the maturity of the
trustees, in case she should die before the deeds were debt, to sue the principal debtor within thirty days, finished, to settle the estates in a course of entail to which he failed to do, whereby, by statute, that correspond as near as might be with the limitation of surety was discharged. Held, that the sureties who | the Barony of Buckhurst." The lady died before she bad given no notice remained liable.
could executo a settlement of the estates. In March,
1866, the Court of Chan very was applied to touching In Missouri, the case of Dogs v. Missouri, Kansas
the form of a settlement to be drawn up in accordance and Texas Railroad Co., 59 Mo. 27, is noticeable. with the codicil of the deceased lady's will. The third Plaintiff went on board defendant's railroad train, son of Lady De La Warr resisted the settlement, and not as a passenger, but to find seats for some female
the case went to the House of Lords, which, in 1870, friends in his charge. The train started before he
ordered a settlement to be made with a shifting clause,
in exact accordance with the words of the clause in could get off, and in getting off he was injured.
the patent of Peerage; but the Lords distinctly deThe defendant was held liable. In Snidell v. Rokes,
Kokes, clined to express any opinion as to the validity of the 60 Mo. 249, a promissory note, payable on condi- clause in the patent. Lady Amherst had ordered the tion that the payee abstain for a certain time from' property to be settled in a course of entail to correspond with the limitations of the Buckhurst Barony,
OBITER DICTA. and the Lords showed how this was to be done, but they went no further.
Interesting romances - The novels of Justinian. Lady De La Warr died, and her second son succeeded to the Barony and the property; but on his eldest
Leading principles of lynch law - a cord and satisbrother dying childless, he became Lord De La Warr,
faction. and his next younger brother claimed the estates and
We wonder if Mr. Brightly would take it as a comBarony of Buckhurst. He obtained possession of
pliment if one should say of him that “he can digest Knole, but when the validity of the shifting clause in
like an ostrich ?” the patent came before the Lords, sitting as a committee of privileges, they decided that the Crown had no
"One book," says Phillip, "well digested, is better power to create a Peerage shifting about in the way than ten hastily slobbered over," and we commend the proposed, and they accordingly determined that
remark to digest makers. though Lord Buckhurst had become Lord De La Warr, he remained Lord Buckhurst also. Part of the design
A lawyer advertised for a clerk “who could bear conof the sisters was thus frustrated, but Knole still
finement," and received an answer from one who had remained with the next brother, and the Crown has
been seven years in jail. been advised to create him Lord Sackville.
Lord De La Warr dissented from this arrangement, In these Murphy times it should not be forgotten and it was insisted, on his behalf, before the Vice- that Richard III was in favor of a prohibitory law. Chancellor, that since the Barony of Buckhurst did
He stopped King Henry's “ bier.” not pass to his brother, neither did the Knole estates: that the failure of the shifting clause in the patent
A lawyer went into a barber shop to procure a wig. makes the shifting clause in the settlement to fail also.
| In taking dimensions of the lawyer's head, the barber It was the intention of Lady Amherst that the prop
exclaimed, “Why, how long your head is, sir?" "Yes," erty and the Barouy should go together, and they
replied the legal gentleman, “we lawyers must have must remain together. Vice-Chancellor Malins so far
long heads." The barber proceeded about his vocation, assented to this argument as to say, that “Lady Am- but at length exclaimed. “Why, sir. your head is as herst did intend these estates to go with the Barony of
thick as it is long!" Blackstone winced. Buckhurst, and that Knole park and the rest of the property ought to belong to Lord Buckhurst, though
The New York Times, the other day, said that Howhe is now Lord De La Warr;” but the decision of the
| ard's Practice Reports and Howard's United States Lords in 1870 is too strong for him, and he has rejected
Reports “were by the same author," which is nearly the claim, leaving the claimant to prosecute it else
as bad as Bayard Taylor's speaking of the efforts of where if he is so disposed, and, thus encouraged, he
the “Quincy statesman" in Teutonic literature bewill probably pursue it until it again reaches the House
cause a Mr. Charles F. Adams was the author of of Lords.
“Leedle Yawcob Strauss." The arguments against Lord De La Warr's contention and the admission of Sir Richard Malins are very
At the meeting of the State Bar Association Mr. well set forth in the following extract from the Times . "It is no doubt true that Lady Amherst did intend
Shepard proposed that the Association have a seal the Knole estates to go with the Barony of Buck
bearing the head of Chancellor Kent and the legend, hurst; but this is only part of the truth. Another “ Deus optimus maximus legislator solis." But whatportion was supplied by Lord Cairns in 1870: ---The ever may be thought of the Chancellor's head, we testatrix designed to endow the Buckhurst Peerage, but she designed to endow it as a separate Peeraye.
would most respectfully suggest to the committee that The committee of privileges have decided that it , a much more appropriate motto would be " suum cannot be kept apart as a separate peerage, and the | cuique." desigu to endow it in this character cannot be stretched into a design to endow it as a peerage held in union with an older earldom. The contention of Lord
THE LAW OF DESCENT. De La Warr is, from this point of view, inadmissible.
THE Kansas law of descent passes the entire estate, real It does not necessarily follow that the contention of Lord Sackville is sound. Lady Amherst meant the
1 and personal,of a deceased husband or father to the Buckhurst Peerage and Knole to go together in a par wife and children, one-half to her and the other half ticular course. The law will not allow the peerage to
to them. If there be no children, then the entire go in that course, and it has gone elsewhere; but this diversion of the peerage out of the course contem
estate goes to the wife. The statute of wills prevents plated by the testatrix will not drag her property into the husband from willing away from his wife, without another course along with it. The intention failing in her written consent, any portion of his estate to which respect of the peerage may remain good in respect of
she would be entitled if he died intestate. So that a the property. The law imposes no obstacle to the fulfillment of the intention in this direction, if apt words
man having children cannot, by will, deprive his wife have been used to express it. If apt words were not of more than half his estate; having no children, can employed, the result would be an intestacy on the part deprive her of none of it. Barry v. Barry, 15 Kans. of Lady Amherst in this respect, so that Knole would pass to her real representatives. The language of
587. Lord Cairns, in 1870, suggests a doubt whether, iu the This last provision is an outrage, was probably an events that have happened, this would not be, in his
oversight on the part of the legislature, and will doubtopinion, the conclusion of the whole matter. We should rather be disposed to think that the language
less be corrected by the present commission of revision. of Lady Amherst's codicil was sufficiently precise, and But is not the first part wise, that a husband shall not
But is not the first part wise, that a hi that her indication of the line of devolution of her es be at liberty to will away from his wife more than half tates did not stand or fall with the failure of the Barony
his property? And if the whole matter of wills is not to pass in the same course of descent; but this is a point which may be left to the argument of many learned | a mistake, would it not be wise to prevent either wife counsel and the judgmeut of many learned judges." or ohild being deprived, by will, of all of the husband of
father's estate? If, for instance, one-half his estate omission of the word “act" is a mere verbal one, which was beyond his power of disposal by will, and passed can deceive nobody. If this verdict stands, it will be in certain fixed proportions to his heirs, would not the a decision that every punctuation must be put in. disposition of property be ordinarily as wise and just “Willful" will apply as well to “neglect or default” as now, and would not a vast amount of that disgust- | as to "act." (2) The Lord Chief Baron should have ing and disgraceful litigation, of which the present left the whole question to the jury. They would have Vanderbilt will contest bids fair to become a chief ex- | found still more strongly that the plaintiff was negliample, be avoided? If such had been the law in New gent if the fact that there were drawers in the room York two years ago, would the public now be threat- | in which he might have locked up his property, had ened with that insight into the private life of the Van- | been before them. It would, therefore, be useless to derbilt family, which has been paraded in all the papers send the case again before a jury. Under the Judifrom Maine to California? Again, would not such a cature Acts a new trial should not be granted unless aw tend to prevent that transmission of estates which the court are satisfied that a substantial injustice has has been always regarded as against the genius of our been done by what is complained of. The prima facie institutions? The estate built up in one generation is liability of the innkeeper may be rebutted by proving scattered in the next; such has been the rule hitherto. negligence on the part of the guest. In Cashill v. But there is growing a desire to perpetuate unbroken Wright, 6 E. & B. 891, Erle, J., at p. 900, lays down from generation to generation a family fortune. The the law on this subject: “We think that the rule of Astor and Vanderbilt estates are instances. Would law resulting from all the authorities is, that in a case not the public weal be promoted and the best interests like the present, the goods remain in the charge of of society subserved by a division of such vast inher the innkeeper and the protection of the inn, so as to itance among all the children rather than by a trans make the innkeeper liable as for breach of duty, unless mission in bulk to one?
B. the negligence of the guest occasions the loss in such
a way as that the loss would not have happened if the
guest had used the ordinary care that a prudent man INNKEEPER— LIABILITY FOR LOSS OF PROP
may be reasonably expected to have taken under the ERTY OF GUEST.
circumstances." See, also, Armistead v. Wilde, 17 Q. ENGLISH COURT OF APPEAL.
B. 261; Jones v. Jackson, 29 L. T. Rep. (N. S.) 399;
Oppenheim v. White Lion Hotel, 25 id. 93; L. R., 6 SPICE V. BACON.
C. P. 515. Here there was evidence that plaintiff did Plaintiff, a guest at defendant's inn, retired without lock not take the reasonable care with respect to his prop
ing the door of his room. During the night his watch,
Herschell, Q. C., and Gainsford Bruce, for plaintiff. By section 1 of 26 & 27 Vict., it is provided, that no inn
keeper shall be liable to make good any loss of property (1) The notice is not sufficient to protect the defendbrought to his inn, except when such property shall have been “stolen, lost, or injured through the willful
ant. Not only is the word “act" left out, but the act, neglect, or default of such innkeeper, or any ser words “ or his servant authorized by him for that pur
vant in his ernploy." Section 3 of said act requires the innkeeper to exhibit a
pose" are added. Where an act relieves a person copy of section 1 in a conspicuous part of the entrance from his common-law liability, its provisions must be to his inn. Defendant caused a notice, purporting to be a copy of section 1, to be placed in the entrance to his
strictly complied with. Vaux v. Vollans, 4 B. & A. inn, but the word "act” was omitted.
525. Besides, the sense of the section is entirely Held, (1) that the innkeeper was not protected by the statute; (2) that the question of negligence was properly
altered by the word “act" being left out. In Squire v. left to the jury.
Wheeler, 16 L. T. Rep. (N. S.) 93, Byles, J., held that A CTION against an innkeeper to recover the value of
“willful” in section 1 of 26 & 27 Vict., c. 41, applied A property stolen from the plaintiff while staying only to "act," and not to "neglect or default." The at the inn. The facts appear sufficiently from the
notice must cover the rights of the parties. Here the head-note to this report, and the judgments of the
landlord holds himself out as being liable only for the Court of Appeal, post.
"willful neglect or default” of himself or his servants, At the trial before Kelly, C. B., the learned judge
so that if one of his servants had clearly stolen the left two questions to the jury:
property, the landlord would not have been liable on 1. Was the plaintiff guilty of negligence, or any
the notice. (2) There was no evidence of contributory breach of duty, in not locking his door, which caused
negligence on the plaintiff's part, except that the bedor materially conduced to the loss of his property?
room door was not locked. A jury could not reasonaAnswer: Yes.
bly find negligence on the facts. It is the known prac2. Did the loss arise from the willful default of the
tice and ordinary habit of mankind not to put their defendant or his manager, in not searching the porter
things into a drawer, and many people object to lockor the servants, the porter having proved that nobody ing their bedroom door for fear of being surprised by else was in the house except two gentlemen above sus
fire. Plaintiff did not omit to do any thing which picion? Answer: No.
ordinary care would suggest. The learned judge afterward ruled that there was no
J. H. Johnstone replied. evidence of negligence on the plaintiff's part, and Lord Chancellor CAIRNS. We think it would be entered judgment for him.
more satisfactory, before disposing of this case, to read Defendant now moved in the Court of Appeal to over again the summing up of the Lord Chief Baron. have the judgment entered for him.
We will deliver judgment on one part of the case-toGrantham, Q. C., and J. H. Johnstone (R. E. Webster morrow. We may remove one question, on which we with them), for defendant. There are two questions: do not entertain any doubt, from the case at once. (1) Was the notice sufficient? (2) Was there any evi-We think that the notice put up by the defendant was dence of plaintiff's negligence to go to the jury? (1) not sufficient to satisfy the statute. I very much The votice was a sufficient copy of the section. The I regret having come to the conclusion, because there was no doubt a bona fide intention on the part of the guest has or has not exercised reasonable care is a defendant to give a notice which would be an exact question for the jury, and no general rule can be laid compliance with the statute. The omission was merely down; still less can there be any general rule of law, per in curiam. At the first sight it appeared to me that for it is a question of fact. The first question here is, it might be looked upon as an omission of one or two was there evidence to go to the jury that there was words not material to the sense of the statute, and I not reasonable care on the part of the plaintiff? When was not prepared to hold that a notice, given in good | I say was there evidence, I mean was there evidence faith as and intended to be a copy of the statute, if all from which the jury could reasonably conclude that that could be said against it was that one or two words there was not such care. The defendant keeps a large not material to the sense had been omitted, was not a | hotel at Brighton, where the plaintiff was a guest; the sufficient copy of the statute to protect the innkeeper. | property in question was of small bulk, so that it But here the word omitted was “act," and the sen. | would be easily abstracted, and of considerable value, tence, which should have read, “When the property the value being agreed at 114. 88. 6d. I do not forget shall have been stolen, lost, or injured through the that in these cases the question is one of comparison, willful act, default, or neglect of the innkeeper, or and I find the legislature, in the Innkeepers' Act, 26 any serrant in his employ,” now reads, “through the & 27 Vict., c. 41, taking a much smaller sum, 301., as willful default or neglect of,” etc. There is, therefore, the limit of an innkeeper's ordinary liability. That no statement in the notice, admitting a continuance of | being the character of the property, the plaintiff might the common-law liability, if the goods are lost, etc.,
have handed it over to the innkeeper to take care of, through the willful act of the defendant, and the result but, as to the watch especially, that might not be a is this: if the goods were clearly stolen by a servant in convenient course; there was a chest of drawers bear the employment of the innkeeper, the notice, as it now | the door with a lock and key to them, and a dressing reads, would be a notice that his common-law liability table with a drawer in it which could be locked. The in that case bad ceased. It is sufficient to say, if that | property was placed on the drawers and on the table, be so, that the omission entirely alters the operation | except the money, which was put into the pocket of of the statute, and it is not, therefore, a notice stating some article of dress. The property was taken away the law in the way the first section of the statute re | in the night. The plaintiff might have locked the door quires it to be stated. I feel obliged, therefore, with | of his room, but some people have an objection to great reluctance, to hold that the defendant is in the doing that; or he might have locked the property up same position as if the statute had never passed for | in the drawers. He took none of these courses, but his protection
left the property without taking steps for its security, COCKBURN, C. J. I quite concur in the judgment and the result was that it was stolen. On the facts, it of the Lord Chancellor. If this had been a mere cler is not necessary to say that the jury ought to bave ical error, I should hold that the notice might still concluded that the plaintiff did not take reasonable suffice to meet the requirements of the act. It would care, if there was sufficient evidence to go to the jury, still be a “copy" of the section. But when we find on which they could reasonably find against the plainthat by the notice, the rights and liabilities of the tiff. The jury, on the question left to them, have parties, generally, under the statute are not stated, and | found for the defendant, and having so found on the therefore, in effect, a substantial part of the statute is question, if the question was a proper one, and accomomitted, I cannot think that the notice in this case panied by proper directions, there is an end of the is sufficient.
case, and there must be judgment for the defendant. BRAMWELL, J. A. I am of the same opinion, and That brings me to the main point, as to the form of I have nothing to add.
the question left to the jury and the direction. The Lord Chancellor CAIRNS. We disposed yesterday first question left to the jury was as follows: "Was the of the question on the construction of the statute, plaintiff guilty of negligence or of any breach of but there is a further question as to the conduct of duty in not locking his door, which caused, or matethe plaintiff, and whether he was guilty of such negli rially contributed, to the loss of his property?" If gence as would disentitle him to recover. The law is this question stood alone, it would be open to criticism, free from all doubt. The law from early times has but it was accompanied and preceded by a summingbeen that an innkeeper was bound, if he had room, to up and explanation, and it would be unfair to take it receive guests, and, as a general rule, to keep securely alone. Besides this, counsel did uot object to the the property of his guests. But there is this excep- question. In the summing-up, there is a clear statetion: the general rule does not entitle the guest to ment that there is no rule of law that a guest is bound divest himself of the duty to take reasonable care, so to lock his door. In the summing-up, and in the final as to invest the innkeeper with the character of an question, there is reference to one particular act, that absolute and unqualified insurer. An instance of this of locking the door, and the criticism to which the is given in Calye's case, 1 Smith's L. C., 7th ed. directiou is open is, that, instead of leaving to the There it is said that if a guest goes to an inn with a jury the question whether the plaintiff took reasonservant or companion, through whose dishonesty the able care, the Chief Baron put it to the jury, whether guest's property is lost, it should be the loss of the they thought the plaintiff ought to have locked his guest; for it was his fault for keeping such company door; I should be sorry to say any single word implying or having such a servant. The cases subsequently that there is any rule of law as to this. The fault of the treat this as an illustration, and the exception is ex direction, if any, is that it is too narrow, but the jury panded by using words which show that the innkeeper found for the defendant on this point, and in the face is not liable, if the negligence of the guest has caused of a summing-up which, on the whole, was not favore or contributed to the loss. Cashill v. Wright, 6 E. & able to the defendant. The conclusion is, that we B. 891. The circumstances, therefore, are to be con- | direction had been broader, the jury would have fou sidered, the value of the property, the means of secur for the defendant, and if it is open for criticism, 11 ing it, and any other circumstances. Whether the would be to criticism from the defendant. If it we
been more correctly worded, it-would have been more the estate of the late William B. Lawton. The title favorable to the defendant. It meant this: “You of William B. Lawton accrued to him under two have all the circumstances before you, and you can see mortgages, executed to him by the defendant, Nicholas what steps the plaintiff could have taken to secure his C. Briggs, and dated respectively January 1, 1867, and property, and you must consider, if he was not pre July 2, 1870. The second mortgage purports to convey pared to take any of these steps, whether he ought to to Lawton “all and singular the tools, fixtures, stock have locked his door." In substance, the jury were in trade for the manufacture of carriages, and also all asked to consider all the circumstances. On a question carriages made or in process of manufacture, now in of misdirection, by Order XXXIX, r. 3, we must my carriage factory, No. 254 High street, in said city consider whether some substantial wrong or miscar (Providence), together with all my right, title and riage has been occasioned by the direction. Assum interest in and to the land and building used for and ing that the question left to the jury was too narrow, in connection with said factory. And also all and every I cannot think that any substantial wrong was occa
article and thing that may be hereafter purchased by sioned by it, for if the direction had been broader,
me to replace or renew the articles and things hereinthere would still have been a verdict for the defend before conveyed, and also all stock, tools, fixtures and ant, so we ought not to send the case back for a new carriages, whether manufactured or in process of mantrial. I, therefore, think that the finding on this ques ufacture, that may be hereafter purchased by me to tion amounts to a verdict for the defendant, and there
be used in or about my business of buying and selling, should be judgment for the defendant.
making and repairing carriages.” On the 14th of COCKBURN, C. J. I entirely concur that the law is August, 1875, the defendant, Nicholas C. Briggs, made as it has been laid down by the Lord Chancellor, and
to the defendant, Edwin Winsor, a general assignI agree that the judgment should be for the defend- ment of all the property of which he was the lawful ant and there should be no new trial. Lam anxious to owner, excepting only what and so much as was exempt guard against expressing any opinion that the verdict
from attachment by law, in trust for the equnl benefit of the jury was right, but I think it is a question for of all his creditors. Under this assigument the said the jury whether reasonable care was exercised by the
Edwin Winsor took possession of the assigned propplaintiff. It is a question of fact on all the circum erty, among which was the property for the conversion stances, and if I could see my way to the conclusion of which this action is brought. It appeared at the that the jury were not invited to consider all the cir
trial, which was had before the court, jury trial being cumstances, I should be disposed to direct a new trial. waived, tbat only a small part of the property which Taking the passages in the summing-up, which have is in controversy was in the possession or ownership of been read by the Lord Chancellor, it appears to me
the said Nicholas C. Briggs at the time the second that there must have been present to the minds of the | mortgage was made, the larger part of it having been jury, not the abstract question whether it is a prudent subsequently acquired for the purpose, however, of course for a guest at a hotel not to lock his door, but renewing or replacing the stock and property which whether the plaintiff acted prudently under the cir
the said Nicholas C. Briggs then had. The case, therecumstances, and one circumstance to be considered,
fore, raises the question whether a mortgage of propwould be the value of the property with reference to
erty to be subsequently acquired conveys to the mortits bulk. The question was one for the jury, and there gagee a title to such property when acquired, which is was evidence to go to them, and, therefore, I think Tid at law as against the mortgagor or his voluntary there is no reason for ordering a new trial.
assignee. The question is one which, so far as we know, BRAMWELL, L.J. I am entirely of the same opinion,
has never been decided in this State by the Supreme I have some misgiving as to whether the form of the
Court sitting in Banc. Chief Baron's direction is open to any objection at
We think such a mortgage is ineffectual to transfer all. The defendant says: “I find no fault with the
the legal title of the property subsequently acquired, plaintiff for not handing over the property to be taken
unless, when acquired, possession thereof is given to care of, nor for not locking it up in the drawers, but the mortgagee or taken by him under the mortgage. I find fault with him, because, as things were so, he This view is supported by numerous cases in Massadid not lock his door."
chusetts: Jones v. Richardson, 10 Metc. 481; Moody Judgment reversed and entered for the defendant. v. Wright, 13 id. 17; Barnard v. Eaton, 2 Cush. 294;
Codman v. Freeman, 3 id. 306; Chesley v. Josselyn, MORTGAGE ON PROPERTY NOT IN POSSES
7 Gray, 489; Henshaw et al. v. Bank of Bellows Falls, SION OF MORTGAGOR.
10 id. 568; by cases in other States: Olis v. Sill, 8
Barb. S. C. 102; Milliman v. Neher, 20 id. 37; Hunt SUPREME COURT OF RHODE ISLAND, MARCH, 1877.*
v. Bullock, 23 Ill. 320; Hamilton v. Rogers, 8 Md. 301;
Chynoweth v. Tenney et al., 10 Wis. 397; Farmers' WILLIAMS, administrator, v. BRIGGS.
Loan & Trust Co. v. Commercial Bank, 11 id. 207 ;
Single v. Phelps et al., 20 id. 398; Gale v. Burnell, A mortgage of personal property to be subsequently ac
quired conveys no title to such property when acquired, Q. B. 850; Lunn v. Thornton, 1 C. B. 379; Robinson which is valid against the mortgagor, or his voluntary
et al. v. McDonald et al., 5 M. & S. 228; Congreve v. assignee, unless after acquisition possession of such property is given to the nortgagee, or taken by him
Evetls, 10 Exch. 298; also in 26 Eng. Law & Eq. 493. under the mortgage.
The reason on which the cases rest is expressed in the CTION of trover for the conversion of personal maxim, Nemo dat quod non habel. No persou can A property. The opinion states the case.
grant or charge what he has not. The maxim, in its DURFEE, C. J. This is an action of trover for the strict sense, is contined to cases at law. There are cases conversion of certain articles of personal property, in equity which hold that such a mortgage is effectual which the plaintiff claims to own, as administrator on to charge the property, when acquired, with an equit
to charge the property, when acquir
able lien, or to create an equitable title in it in favor * From Arnold Green, Esq., State Reportor. Tof the mortgagee against the mortgagor, and even, as