Up to the time of Irons v. Smallpiece, 2 B. & A. 551, and afterwards, I have no doubt the Courts did require proof of an actual delivery in such a case. Upon long consideration, I have come to the conclusion that actual delivery in the case of a "gift" is more than evidence of the existence of the proposition of law which constitutes a gift, and I have come to the conclusion that it is a part of the proposition itself. It is one of the facts which constitute the proposition that a gift has been made. It is not a piece of evidence to prove the existence of the proposition; it is a necessary part of the proposition, and, as such, is one of the facts to be proved by evidence. The proposition is not - that the one party has agreed or promised to give, and that the other party has agreed or promised to accept. In that case, it is not doubted but that the ownership is not changed until a subsequent actual delivery. The proposition before the Court on a question of gift or not is that the one gave and the other accepted. The transaction described in the proposition is a transaction begun and completed at once. It is a transaction consisting of two contemporaneous acts, which at once complete the transaction, so that there is nothing more to be done by either party. The act done by the one is that he gives; the act done by the other is that he accepts. These contemporaneous acts being done, neither party has anything more to do. The one cannot give, according to the ordinary meaning of the word, without giving; the other cannot accept then and there such a giving without then and there receiving the thing given. donor could not get possession of the to force the donce to give it back. the donee could not get possession without bringing an action against the donor to force him to give him the thing. But if we are to force him to give, it cannot be said that he has given. Suppose the proposing donor offers the thing saying, "I give you this thing - take it"; and the other says, "No, I will not take it now; I will take it to-morrow." I think the proposing donor could not in the meantime say correctly to a third person, "I gave this just now to my son or my friend." The answer of the third person would (I think rightly) be: "You cannot say you gave it him just now; you have it now in your hand." All you can say is: "That you are going to give it him tomorrow, if then he will take it." I have come to the conclusion that in ordinary English language, and in legal effect, there cannot be a "gift" without a giving and taking. The giving and taking are the two contemporaneous reciprocal acts which constitute a "gift." They are a necessary part of the proposition that there has been a "gift." They are not evidence to prove that there has been a gift, but facts to be proved to constitute the proposition that there has been a gift. That being so, the necessity of their existence cannot be altered unless by Act of Parliament. For these reasons, I think that the decision in Irons v. Smallpiece, 2 B. & A. 551, cannot be departed from, and I cannot agree with the decisions, which have been cited to us, of Pollock, B., and Cave, J.

After these two things done, the chattel without bringing an action Short of these things being done,

I think, therefore, that we cannot agree with the main reason given by Lopes, L. J., for his decision in the present case, which he gave because he thought that, sitting as a judge of the Queen's Bench Division, he ought to follow the later decisions. His own opinion was in favor of maintaining Irons v. Smallpiece, 2 B. & A. 551. But I do entirely agree with what I understand was another ground on which he was prepared to decide this case, and which he found, as a fact, existed in this case, namely, that the deed on which the claimant's case rested was obtained by a fraudulent misrepresentation, and was repudiated by the giver of it as soon as he discovered the fraud.

For this reason, and the others mentioned by my brother Fry, I think the appeal must be dismissed. I wish to say that I am not prepared to differ in any respect from the judgment of my learned brothers; but I wish to add my own particular reason.

Appeal dismissed.1

NOTE. INCORPoreal Personal PROPERTY. COMMON LAW. Any incorporeal personal property, such as a debt, is commonly called a chose in action, though the term was originally, and now often is, used in a narrower sense. For the various meanings of chose in action and the things held to have been included in the term, see Warren, Choses in Action, 1-26.

Incorporeal personal property is not transferable at common law. For the reasons given for this, see Warren, 31, 32.

Annuities were, however, assignable, even under the ancient law. See Baker ▼. Brook, Dyer, 65 a; Mary York v. Twine, Cro. Jac. 78; Co. Lit. 144 b, Hargrave's note; Gerrard v. Boden, Hetl. 80; Macleod, Banking (5th ed.), 219.

And as to many kinds of obligations, if the King assigned them, his assignee could sue in his own name, and if they were assigned to the King, the King could sue in his own name. Warren, 34 et seq.; Miles v. Williams, 1 P. Wms. 249, 252. And it seems that this prerogative exists in the government of the United States. U. S. v. Buford, 3 Pet. 12, 30; U. S. v. White, 2 Hill, 59, 63.

At more or less recent dates various important kinds of incorporeal personal property have been made assignable either by statutes or by decisions of the courts without the aid of statute. Among these are Bills of Exchange and Promissory Notes, Shares in the Stock of Corporations, Patent Rights and Copyrights. Of late years, in many jurisdictions, incorporeal personal property generally has been made transferable. Warren, 119 (before the Judicature Act), 140 (after that Act); 1 Stimson, Am. Stat. Law, §§ 4031-4038.

The law as to the assignability or non-assignability of incorporeal personal rights is generally treated together with the law governing the creation of those rights. Thus, treatises and lectures on Bills and Notes commonly discuss not only the making but the transfer of the rights created by those instruments.

The passing of incorporeal personal property on the death or on the bankruptcy and insolvency of the owner is dealt with under Wills and Administration and under Bankruptcy, respectively.

EQUITY. Legal rights in incorporeal personal property have always been assignable in equity, either by compelling the assignee to sue at law in the assignor's

1 See Winter v. Winter, 4 L. T. N. s. 639, and Wing v. Merchant, 57 Me. 383 (cf. Kilpin v. Ratley, [1892] 1 Q. B. 582); Poullain v. Poullain, 79 Ga. 11, 19; Miller v. Le Piere, 136 Mass. 20; Doering v. Kenamore, 86 Mo. 588; Picot v. Sanderson, 1 Dev. 309 (but cf. Bromley v. Brunton, L. R. 6 Eq. 275); Hillebrant v. Brewer, 6 Tex. 45. - ED.

name or by other appropriate methods; and so rights which are exclusively equitable are assignable in equity. Warren, 46 et seq.

TRANSFERS AGAINST PUBLIC POLICY. Some rights, however, cannot be assigned either at law or in equity. Public policy forbids their transfer. Chief among these are: Future salaries of public officers. Barwick v. Reade, 1 H. Bl. 627. Flarty v. Odlum, 3 T. R. 681. Lidderdale v. Montrose, 4 T. R. 248. Palmer v. Bate, 2 Brod. & B. 673. Cooper v. Reilly, 2 Sim. 560. Wells v. Foster, 8 M. & W. 149. Schloss v. Hewlett, 81 Ala. 266. Bangs v. Dunn, 66 Cal. 72. Field v. Chipley, 79 Ky. 260. Roeller v. Ames, 33 Minn. 132. State v. Williamson, 118 Mo. 146. Shwenk v. Wyckoff, 46 N. J. Eq. 560. Bliss v. Lawrence, 58 N. Y. 442. Bowery Nat. Bank v. Wilson, 122 N. Y. 478. Nat. Bank of El Paso v. Fink, 86 Tex. 303. Shannon v. Bruner, 36 Fed. R. 147. Contra, State v. Hastings, 15 Wis. 75; but this case has been disapproved in many of the last-mentioned authorities. In the leading case of Bliss v. Lawrence, supra, it is said that the question of public policy was not considered in Brackett v. Blake, 7 Met. 335, and Mulhall v. Quinn, 1 Gray, 105.

In Flarty v. Odlum, supra, BULLER, J., intimated that the pay of a public officer, actually due, might be assigned. But in Sandwich Mfg. Co. v. Krake, 66 Minn. 110, it was held that the wages of a fireman, although due, could not be reached by proceedings supplementary to execution. Sed qu.

When, however, the service is not a public one, the compensation may be assigned. Grenfell v. Dean and Canons of Windsor, 2 Beav. 544. In re Mirams, [1891] 1 Q. B. 594. Contra, Matter of Worthington, 141 N. Y. 9, where it was held that an executor cannot assign his commissions in advance of their adjustment and payment. PENSIONS. In Wells v. Foster, supra, BARON PARKE drew a distinction between a pension given entirely as a compensation for past services, and one not exclusively for past services, but as a consideration for some continuing duty or service; the former may be assigned, the latter not. This distinction has been generally followed. Arbuthnot v. Norton, 5 Moo. P. C. 219. Spooner v. Payne, 1 De G., M. & G. 383. Dent v. Dent, L. R. 1 P. & D. 366. Wilcock v. Terrell, 3 Ex. Div. 323. Lucas v. Harris, 18 Q. B. D. 127, 135. See the remarks of LORD LANGDALE, M. R., in Grenfell v. Dean and Canons of Windsor, supra, on Davis v. Marlborough, 1 Swanst. 79.

By statute, assignments of pensions are prohibited, and pensions are exempted from seizure by legal process. U. S. R. S. §§ 4745, 4747; 47 G. III. sess. 2, c. 25; 44 & 45 Vict. c. 58, § 141. Such provisions protect the pension only while it is in transit to, and not after it has reached, the pensioner. See Rozelle v. Rhodes, 116 Pa. 129; Crowe v. Price, 22 Q. B. D. 429. State statutes sometimes exempt from seizure not only pensions, but the property in which they are invested. Diamond v. Palmer, 79 Iowa, 578.

U. S. R. S. § 3477 makes null all transfers of claims upon the United States. In U. S. v. Gillis, 95 U. S. 407, it was said that the language of this section was broad enough to cover claims of every kind. In Erwin v. U. S., 97 U. S. 392, it was said this law applies only to voluntary assignments, and not to the passing of claims to heirs, devisees, or assignees in bankruptcy. Nor does it apply to a voluntary assignment of all property by an insolvent for the benefit of his creditors. Goodman v. Niblack, 102 U. S. 556. See also Forrest v. Price, 52 N. J. Eq. 16, 27.

ALIMONY. In Re Robinson, 27 Ch. D. 160, the Court of Appeal was inclined to think that alimony was not alienable. And see remarks of CAVE, J., in Linton v. Linton, 15 Q. B. D. 239, 241.

FELLOWSHIP. The income of a fellowship is assignable in equity. Feistel v. King's College, Cambridge, 10 Beav 491. In Bank v. Morrow, 99 Tenn. 527, it was held that the right to nominate a scholar to be supported and taught at the expense of a college is not such property as may be taken and sold for debts.

CLAIMS FOR TORTS. Claim for a tort to the person is not assignable before judgment, not even after verdict. Rice v. Stone, 1 Allen, 566. People v. Tioga Common Pleas, 19 Wend. 73.

In People v. Tioga Common Pleas, ubi supra, it was suggested that although an attempted assignment of a claim for a tort to the person was void as an assignment, it was good as a contract, and would give a right of action for damages against the

assignor if he afterwards released the claim to the wrongdoer. But see 2 L. C. Eq. (4th Am. ed.) 1627, 1628. See Williams v. Ingersoll, 89 N. Y. 508.

In many jurisdictions the subject is affected by statute.

The rule is sometimes stated more broadly, prohibiting the assignment of any claim in tort. Gardner v. Adams, 12 Wend. 296.

But in general claims for injuries to property may be assigned. 1 Pet. 193, 213. Chicago, &c. R. R. Co. v. Wolcott, 141 Ind. 267. 9 S. & R. 244.

Comegys v. Vasse,
North v. Turner,

In England a distinction has been drawn between the assignment of a bare right to bring a bill in equity to set aside a transaction for fraud, Prosser v. Edmonds, 1 Y. & C. Ex. 481 (see Hill v. Boyle, L. R. 4 Eq. 260), and a transfer of the interest of the defrauded party in property which carries the incidental right to sue. Dickinson v. Burrell, L. R. 1 Eq. 337. Prosser v. Edmonds was approved in Marshall v. Means, 12 Ga. 61; Norton v. Tuttle, 60 Ill. 130; Morrison v. Deaderick, 10 Humph. 342; Milwaukee, &c. R. R. Co. v. Milwaukee, &c. R. R. Co., 20 Wis. 174; and accord. are Sanborn v. Doe, 92 Cal. 152; Brush v. Sweet, 38 Mich. 574. But see Clews v. Traer, 57 Iowa, 459. In Smith v. Thompson, 94 Mich. 381, it was held that the right to bring an action on the case for fraud was not assignable.

It is often said that the test of assignability is whether or not the claim is one which will survive to the legal representative of the injured party on his death (post, Vol. IV. Bk. VII.); e. g. in Comegys v. Vasse, ubi sup. Grant v. Ludlow, 8 Ohio St. 1, 37. North Chicago, &c. R. R. Co. v. Ackley, 171 Ill. 100, 105, 115. Chicago, &c. R. R. Co. v. Wolcott, ubi sup. Final v. Backus, 18 Mich. 218.

CHAPTER IV.

POSSESSION.

NOTE. The authorities collected thus far have been intended to illustrate the acquisition and transfer of ownership. In this chapter the rights which may be had in personal property by persons other than the owner are dealt with.

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 pay 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 plaintiff, and he required them of the defendant, who refused to deliver them to the plaintiff, unless he would pay 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 by the appointment of Belgrave, he delivered the five beasts to Foster; and if super totam materiam he be guilty, they find for the plaintiff, and damages twenty-five pounds; and if, &c. then for the defendant.

JONES, Justice, and myself (absentibus cæteris justiciariorum), conceived, 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, paying for them a weekly sum, unless there be such an agreement betwixt them. Whereupon rule was given, that judgment should be entered for the plaintiff.