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LAW STUDIES. Kent, Vol. II, 386-450. Law Studies.
December, 1890. Of the Law Concerning Personal Property..
“Goods and chattels may change owners by act of law, in the cases of forfeid ure, succession, marriage, judgment, insolvency, and intestacy."
Forfeiture of property for treason and felony, part of the common law, and so remains except where changed by constitution or statute. Succession of the government to property where there are no heirs or next of kin.
Ownership by judgment of law, raises the question whether a judgment is satisfaction or merely security.
(Lacy's Note.—“The English doctrine now is that it is not the judgment alone that vests the property in the defendant, but the judgment coupled with the satis.' faction thereof, and a number of cases in this country follow out this doctrine."
Insolvency.—“It has been found necessary, in governments which authorize personal arrest and imprisonment for debt, to interpose and provide relief to the debtor in cases of inevitable misfortune; and this has been particularly the case in respect to insolvent merchants, who are obliged, by the habits, the pursuits, and the enterprising nature of trade, to give and receive credit, and encounter ex. traordinary hazards. Bankrupt and insolvent laws are intended to secure the application of the effects of the debtor to the payment of his debts, and then to relieve him from the weight of them.”
Congress has power to establish a uniform system of bankruptcy throughout the United States. A State has power to pass an insolvent law, but the obligation of contract cannot be impaired by an Act of Congress. Discharge under a State law will not affect a citizen of another State who does not make himself a party to a proceeding under the law.
“ The municipal law of the State is the law of the contract to be made and executed within the State, and travels with it wherever the parties to it may be found, unless it refers to the law of some other country, or be immoral, or contrary to the policy of the country where it is sought to be enforced. This was deemed to be a principle of universal law; and therefore the discharge of the contract where the contract was made is a discharge everywhere."
Absconding and absent debtors, attachment of their property.
Intestacy.-" This is where a person dies leaving personal property undisposed of by will; and in that case the personal estate, after the debts are paid, is distributed to the widow and next of kin." This subject may be considered under three heads.
1. “To whom the administration of such property belongs, and to whom granted."
2. “The power and duty of the administrators; and
In olden times in England such property went first to the king, afterward to the popish clergy. Parties to whom administration is usually directed.
Power and duty of administrator.-Must give bond, file inventory, collect outstanding debts, and pay debts of the estate. General order of payment of debts.
Distribution of the personal estale.—The English rule prevails in many of our older States, allowing the administrator or executor a year before distributing the
estate. Distribution, succession, and disposition of intestate's personal property is governed by the law of the country of the owner or intestate's domicile at the time of his death. Personal property is subject to the law which governs or governed the person of the owner. Debts and personal contracts have no locality. But the law governing the real property, as to tenure, mode of enjoyment, transfer, and descent is that of the place where it is located.
Title to personal property by gift.—“The English law does not consider a gift, strictly speaking, in the light of a contract, because it is voluntary, and without consideration; whereas a contract is defined to be an agreement upon sufficient consideration to do or not to do a particular thing. And yet, every gift which is made perfect by delivery, and every grant, are executed contracts; for they are founded on the mutual consent of the parties, in reference to a right or interest passing between them. (The one consents to give, the other consents to take.)
Gifts inter vivos, gifts causa mortis.
The first have no reference to the future and go into effect at once. Delivery essential in either case. Mere intention without an act to pass, not a gift. Subject of the gift must be certain. The delivery must be actual so far as the subject is capable of delivery. Donor must part with dominion over the subject. A gift perfected by delivery and acceptance irrevocable where there is no fraud.
Bonds, bills of exchange, promissory notes and other choses in action are proper subjects of gift in either case ; causa mortis or inter vivos.
“By the admirable equity of the civil law, donations causa mortis were not al. lowed to defeat the just claims of creditors; and they were void as against them even without a fraudulent intent. It is equally the language of the modern civil. ians that donations cannot be sustained to the prejudice of existing creditors." Questions.
under a State law discharge a debt due 1. In what ways may personal prop
a citizen of another State, and what
was decided in the case of Ogden v. erty be transferred by act of law?
Saunders ? 2. How is forfeiture and corruption of blood treated under the laws of the
9. What passes by the assignment of United States ?
an insolvent ? 3. What becomes of the property of
10. How is his property to be distri. an intestate (person dying without
buted among his creditors ? making a will) without heirs or next of 11. In what instances may a debtor's kin?
property be attached ? 4. Does a judgment change the 12. What is meant by intestacy? property SO as to defeat any other
13. In granting administration, what remedy before its satisfaction ?
is the order of preference among those 5. What is the purpose of bankrupt entitled to act ? and insolvent laws ?
14. Under the English law who 6. What general principle pervades were considered the nearer if any, the English bankrupt system ?
parents or children of the intestate? 7. Is a general bankrupt law an act 15. Which does the law prefer in of national or State legislation ?
granting of letters ? 8. Will the discharge of a bankrupt The student will remember the disgoverns the person of the owner. the statutory provisions that I must f. (Q.) What is a gift ? (A.) It is familiarize myself with in my own where a donor irrevocably divests him. State, to make my knowledge practi- self of a right to a thing and transfers
tinction between an administrator and cal. Such subjects as judgments—as. an executor; the latter is appointed by signments — attachments — decedent's the testator's will and requires no bond, estates-executors and administrators, the other appointed by law and re- and intestate laws will have to be exquired to give bond.
II. That personal property may be 16. Mention some of the duties of administrators and executors ?
acquired by gift, and that a gist inter
vivos has no reference to the future 17. What law governs in the distri- and goes into effect immediately, but bution of an intestate's personal prop- that a gift causa mortis is conditional erty when located in different coun- and on recovery of the health of the tries?
donor becomes void. 18. What law governs real estate as
Leading Questions and Answers. to the measure of distribution and mode
a. (Q.) What is the settled jurisof descent?
prudence of this country as to the lo19. Have debts and personal con- cality of an insolvent's property? (A.) tracts any locality ?
That the lex loci rei sita prevails over
the law of the domicile with regard to 20. What is essential both in law and equity to the validity of a parol
the rule of preferences. The laws of
other governments have no force begift of a chattel or chose in action ?
yond their territorial limits. 21. When does a gift become irre
b. (Q.) Who are intended by the vocable ?
term next of kin?
(A.) Under the 22. Into what two classes are gifts rule, the father stands in the first dedivided in law ?
gree, the grandfather and grandson in
the second. 23. In which class are they irrevocable ?
6. (Q.) When do claimants take 24. In what respect does a gift per sterpes? (A.) Only when they
stand in unequal degrees, or claim by causa mortis resemble 2 will ?
representation, and then the doctrine of 25. Can gifts to the prejudice of ex
representation is necessary. isting creditors be sustained ?
d. (Q.) When do they take per Student's examination of the studies
capita ? (A.) When they stand in gone over.
equal degree, as three brothers, three What have I learned from the sixty. nephews, for here they take per capita, six pages of text taken up by the two
or each an equal share, because reprechapters considered in this month's
sentation is not necessary to prevent study ?
the exclusion of those in a remote de1. That personal property may be
gree. acquired by act of law, by forfeiturejudgment-and insolvency-and by
c. (Q.) What law governs personal intestacy. From the text I have ac
property as to the owner's locality ? quired a general knowledge of these
(A.) It is subject to the law that subjects, and have had suggested to me
it gratuitously to another, who accepts work, gleaned from Campbell's Lives it.
of the Lord Chancellors of England,
where he is described by him as “uni. 8. (Q.) What is the special distinc
versally and deservedly considered the tion between a gift inter vivos, and a
most consummate judge who ever sat causa mortis ? .) The first
in the Court of Chancery-being disgoes into effect immediately, the second is conditional upon the donor's death
tinguished not only for his rapid and
satisfactory decision of the causes which or recovery.
came before him, but for the profound Notes, Readings, and References. and enlightened principles which he
laid down, and for perfecting English Insolvency.-Discharge by an in
equity into a symmetrical science." He solvent court of one State is no bar to
was born December ist, 1690, died an action by a creditor, who is a citizen
March 6th, 1764. Leaving school at of another State, and was not a party
an early age, we find him at fourteen in to the insolvency proceedings: 28
an attorney's office, but with an ambiAmerican Law Register, N. S., 253
tion to rise in the world, and by deter(1889).
mination and perseverance accomOgden v. Saunders Reviewed.-- plished it. He acquired a good knowl“ The only point necessarily decided in edge of the more popular Roman the great case of Ogden v. Saunders, classics, not remaining satisfied with 12 Wheaton 213-369, was, that a the merely technical law-Latin endebtor's discharge under the insolvent countered in his law studies; and took laws of one State is not a valid defense great pains to acquire a correct English to an action brought in the Federal composition. He likewise devoted courts by a creditor who is a citizen of himself to oratory and acquired that another State, and has not voluntarily
close and self-possessed manner of made himself a party to the insolvency speaking before the public by which he proceedings : 27 American Law Regis- was distinguished. In acquiring a ter 611 (1888).
knowledge of Chancery practice he did
not, as many others, rely on Reports Note.--In the above case Mr. Web
and Abridgments, but entered upon a ster was one of the counsel for the
systematic course of study, qualifying plaintiff in error, and in his opening
him to be a great advocate or a great stated that “The real question (in- judge in the Court of Chancery—tracing volved) is—whether the Constitution
the equitable jurisdiction of the court has not, for general political purposes,
to its sources, and thoroughly underordained that bankrnpt laws should be
standing all the changes it had underestablished only by national authority?
gone. He was about twenty-nine years We contend that such was the intention
of age when he was appointed Solicitor of the Constitution; an intention as we
General, when he had been at the bar think, plainly manifested in several of
only a little more than four years. At its provisions." Webster's Great
the age of forty-six he was appointed Speeches 178.
Lord Chancellor. “We now see him Lord Hardwicke. — The frequent in his glory as an Equity Judge. mention of the name of this eminent Viewed as a magistrate sitting on his English Chancellor in the text of this tribunal to administer justice, I believe month's studies suggests the propriety that his fame has not been exceeded by of giving a brief note of his life and that of any man in ancient or modern times; and the long series of enlight- luminous method in the arrangement of ened rules laid down by him having, the topics, and elegant perspicuity of from their wisdom, been recognized as language in the discussion of them." binding by all who have succeeded Lives of the Lord Chancellors, Vol. vi, him, he may be considered a great legis- page 73, etc. lator. His decisions have been, and ever will continue to be appealed to as
Review of the Year's Work. fixing the limits and establishing the With the present number the year's principles of that vast judicial system work on Law Studies closes. And ex. called Equity, which now, not only in cepting the first chapter in Part IV the this country and in our colonies, but student has gone over the law concernover the whole extent of the United ing" The Rights of Persons," treating States of America, regulates property of the law of and personal rights more than the Aliens and Natives. ancient Common Law.
Marriage. “The student animated by a generous Divorce. ambition, will be eager to know where Husband and Wife, this great excellence arose? Like every- Parent and Child, thing else that is valuable, it was the Guardian and Ward. result of earnest and persevering labor Infants. A complete knowledge of the common Master and Servant, law was the foundation on which he Corporations. built. * * * Having bestowed unremit- Also of the “ Law Concerning Perting power in qualifying himself for the sonal Property" comprised in Part V, discharge of his high duties, when oc- those branches treating of the cupying the judgment seat, exhibited a History, Progress, and Absolute pattern of all judicial excellence. Rights of Property. Spotless purity-not only an abstinence The Nature and various kinds of from bribery and corruption, but free- Personal Property. dom from undue influence, and a Title to Personal Property by Original hearty desire to do justice. * * * He Acquisition. never attempted to show his quickness, Title to Personal Property by Transfer by guessing at facts, or anticipating au- by Act of Law. thorities which he expected to be cited. Title to Personal Property by Gift. Not ignorant that the Chancellor can Whatever help the student may have always convulse the bar with 'counter- derived from reading Kent in course on feited glee,' he abstained from ill- the above subjects, the main purpose of timed jocularity, and he did not hurl our plan of work will have been accomsarcasms at those who, he knew, could plished, if, in the course of his general not retort upon him. The arguments legal studies, he has been prompted to being finished, if the case seemed clear, closer application to standard text-book and did not involve any new question, he study in laying the foundation of his immediately disposed of it. His judg. legal education. ments are praised for their deservedly
T. ELLIOTT PATTERSON,