founded; for the very power of devising is an in

IN

SEQUENT BIRTH OF CHILDREN.

N Negus v. Negus, 46 Iowa, 487; S. C., 26 Am. Rep. 157, a testator, having two children, bequeathed all his estate to his wife; subsequently two other children were born to him. It was held, relying on Mc Cullum v. McKenzie, 26 Iowa, 510, that this revoked the will at common law. The court cited Sherry v. Lozier, 1 Brad. 437; but in that case the testator, having been in moderate circumstances when the will was made, died possessed of a very large estate. The court also cited Johnston v. Johnston, 1 Phill. 447, but conceded that it held that subsequent birth "with other circumstances leaving no doubt of the testator's intention," would work a revocation. Gibbons v. Caunt, 4 Ves. 840, was admitted to be obiter. The court also quote Young's Appeal, 39 Penn. St. 119, where it is said: "The principle of the common law of revocation of wills, by the subsquent birth of issue, is stated thus: If the testator's circumstances be so altered that new moral testamentary duties have accrued to him subsequent to the date of the will, such as may be presumed to produce a change of intention, this will amount to an implied revocation. Now, it matters not whether it be said that this principle was derived from the Roman law, or from our human instincts of justice. Certainly it is now a legitimate element of our common law, and we would not have received it but for those instincts. The Romans received it before us, because they were before us, and because they, too, were human.'"

The doctrine of the principal case is at least doubtful, so far as it holds that at common law the subsequent birth of a child, without any other circumstances, will imply a revocation of a will. In the principal case the previous birth of two children may have been a circumstance to be considered in arriving at the testator's supposed intentions, but in the case cited and relied on (McCullum v. McKenzie, 26 Iowa, 510) there was no such cir

cumstance.

It was a matter of great controversy in the earliest cases whether subsequent marriage and the birth of a child would revoke a will, but this was at last settled in the affirmative. Brush v. Wilkins, 4 Johns. Ch. 506, and cases there cited. But it was early laid down in the Prerogative Court of Doctor's Commons, that subsequent birth alone would not have that effect. Shepherd v. Shepherd, 5 T. R. 51, n. Here the court said: "A great many cases have been cited at the bar to show that bachelor's wills have been set aside on a subsequent marriage with issue. These cases are undoubtedly law, as well as a great many others which might be mentioned, where the courts have gone every length to revoke wills which have been made in a state which has been entirely altered, and where testamentary acts have been held forth as indicative of an inclination to have that will set aside. And this is well

for the purpose of family provisions. Therefore, where so entire a change in the circumstances of a person has happened, or when new objects of care arise which he could not have had in his eye at the time, this will is no longer regarded as a considerate provision, but by operation of law is revoked. Hence it is that alienations or settlements of real property revoke precedent wills; and hence it is that subsequent marriage and birth of issue revoke a bachelor's testament. But I do not find any case which goes to prove that a married man's will may be set aside by the birth of children; and the principle already advanced will not embrace it so as to authorize any decision upon it in favor of the issue; because by marriage and children the case of a bachelor is entirely altered, but the case of a married man with children is not so by the birth of more, and the law cannot presume a wish in the married man to have his will altered. Marriage and children at once revoke a will; but marriage alone will not; because the law allows other provisions for a wife, and she may provide for herself previous to the marriage; if she do not it is her own fault, and the law will not presume any thing in her favor to revoke her husband's will. This is settled in abundance of cases, and is an incontrovertible position; and as marriage alone will not do this, so the birth of children alone will not, unless under very special circumstances. It has been sometimes done on a combination of circumstances, but never on the mere ground of the birth of a child."

Nothing different from this was decided in Johnston v. Johnston, 1 Phill. 447. Here it was held that the birth of a child, when accompanied with other circumstances, leaving no doubt of the testator's intention, was sufficient to revoke the will of a married man. In that case the testator not only had previous children, and provided for one in centre de sa mère, but his property had augmented from £20,000 to £300,000, and the subsequent children were left entirely unprovided for.

In Doe v. Barford, 4 M. & S. 10, where one made a will after he married, and thereby devised to his niece, and died leaving his wife pregnant with a child subsequently born, of which pregnancy he had been ignorant, Lord Ellenborough held that this did not revoke the will. He said: "But if it is to be understood that every will is made upon a tacit condition that it shall stand revoked whenever the testator by the circumstance of the birth of a child becomes morally bound to provide for it, I do not see why the birth of any one of a numerous succession of children would not equally work a revocation. But where are we to stop? Is the rule to vary with every change which constitutes a new situation giving rise to new moral duties on the part of the parent?"

The American text-writers approve the doctrine of these cases. Kent says (4 Com. 523 m.) "the better opinion is that under the English law there

Chancellor Kent came to the same conclusion in Brush v. Wilkins, 4 Johns. Ch. 516, although he conceded that the point was not necessarily under examination. He gave there a learned and analyti

"CAN A CHATTEL MORTGAGE COVER AFTER-ACQUIRED PROPERTY?"

THIS question has been discussed by the Supreme

Court of Mississippi in a number of cases. As the exponent of the policy of one of the States of the Union, the views of that court may be of interest. The leading case is that of Sellers v. Lester, 48 Miss. 513, wherein the text-books and adjudications are nuThe mortgage

merously cited and quoted from. embraced all the mules, stock and farming implements, on a certain plantation, or which might be

all the crops to be raised thereon during the same year. This mortgage was recorded under the laws of the State of Mississippi in January, 1870. In March, several mules were added to the farming stock. In October the above mortgagors, to secure an antecedent indebtedness, executed a second mortgage to another party, covering all the property named in the first, including the mules subsequently acquired. The suit was by bill in equity. The controversy was as to the

In McCay v. Me Cay, 1 Murph. (N. C.) 447, the testator, having had a child born subsequent to his will, in his last illness asked his physician if he thought his illness dangerous, for if it was, he wished to provide for his youngest child. The physician told him he thought him better, and advised a postponement. Held, that these circumstances did not amount to a revocation. There was no careful consideration of the question, however, so far as the opinion discloses.

In Ash v. Ash, 9 Ohio St. 386, it is said, obiter, “By the common law perhaps both marriage and the birth of a child were necessary to constitute such implied revocation."

In Tomlinson v. Tomlinson, 1 Ashm. (Penn.) 227, it is said: "The numerical weight of English authority, perhaps, is that both a subsequent marriage and the subsequent birth of issue are required in order to induce courts of justice to consider a previous will revoked by implication; " but the matter was even then otherwise regulated by statute in Pennsylvania.

The subject is a matter of statutory regulation in England and most of the United States of America, in accordance with what the principal case conceives to have been the common law.

In the very recent case of Peters v. Siders, 126 Mass. 135, a woman, by an ante-nuptial agreement, reserved to her sole use her real estate and the right to dispose of it by will. She made a will nine months after marriage, giving all her estate to her husband. About a month afterward she gave birth to a child, the complainant. Held, that the evidence of these facts justified the finding that her omission to provide in the will for the child was intentional, and that he could not claim under the statute.

after-acquired property. After citing and quoting

from 1 Powell on Mort. 194; 25 Barb. 284; Pennock v. Coe, 23 How. (U. S.) 128; Mitchell v. Winslow, 2 Story, 644; 1 Ves. 409; 2 Story's Eq. Jur., § 1040; Legurd v. Hodges, 1 Ves. Jr. 477, with note by Sumner; 1 Myl. & K. 488; Langton v. Horton, 1Hare, 549; 1 Paige, 125; 2 id. 217; 1 B. Monroe, 124; 2 Selden, 179; 36 Vt. 452; 3 Des. 74; 3 Ves. 582; 2 Serg. & Rawle, 11; 3 Bing. 347, note; 14 Pick. 497; Montague on Liens, 36, note c; Story on Bailments, § 294; Gladstone, 2 Berly; 2 Mer. 404; Hilliard on Mortg., vol. 2, p. 379, § 4; id. p. 381; Carr v. Allot, 27 L. J. Ex. 385; Domat (Cush. ed.) 649, art. 5, and disclaiming a purpose to adopt, broadly, the doctrine laid down by Story, it was held that the mortgage attached to the after-acquired property so soon as acquired and was good against the second mortgage, especially as the latter was to secure an antecedent debt, and the second mortgagee had notice of the prior mortgage.

The next case was that of Cayce v. Stovall, 50 Miss. 396. The court gives this caution: "We do not wish to be understood as having committed ourselves to the broad doctrine that a mortgage of chattels thereafter to be acquired is unlimited, and in all circumstances to be sustained."

But on page 399 declares this doctrine: "In Sillers et ux. v. Lester, 48 Miss. 523, the cases were extensively reviewed, and the doctrine deduced from many of them with approbation was that whilst at law the property or thing mortgaged must be in esse at the time, yet there may be a pledge or hypothecation which will take effect in equity so soon as the chattel shall be acquired or produced."

The case of White v. Thomas, 52 Miss. 49, the third, chronologically, was between the parties to the contract only.

The following from the opinion of the court presents the whole case and the point decided: "The fact that the cotton was not produced within fifteen months from the date of the contract for a lien upon it did not hinder its becoming subject to the operation of the contract, as between the parties to it when it came posed of lawyers second to none in the southwest. into being." The court deciding this case was com

Everman v. Robb, 52 Miss. 653, is the last case which has come to my knowledge. In 1871 R. demised his plantation to D. for five years. The lease was acknowledged and recorded. It created a first lien on the stock, implements and crops to be grown annually, to secure the rents. In 1873, D. gave a mortgage to E. for supplies. Six bales of cotton were delivered to E., when R. seized it for rent; in the possession of E. Held, that the lien retained by R. on the annual crops to be

grown during the term as security for his rents was not only good between the immediate parties, but was superior and paramount to the mortgage to E. by reason of the registration, the latter having notice of R.'s equity. Registration of the lease was notice to subsequent purchasers and creditors who dealt with the lessee in respect to the cotton at their peril. The following selections from the opinion are given:

"The instruments under which the respective parties asserted right to the property having been regularly executed and recorded, the primary question is whether the clause of the lease reserving a lien on the crops to be produced from year to year is superior to the mortgage."

"The rule at common law seems to be that a chattel mortgage can only operate on property in actual existence at the time. It is not valid as to goods not then in esse, or which do not then belong to the mortgagor, to which he has no potential ownership. Lane v. Thorton, 1 Man., Gr. & S. 379. In the early case of Grantham v. Hanley, Hob. 132, it was said 'a man cannot grant all the wool that shall grow upon sheep that he may buy thereafter.' But if the grant be of all the wool of his sheep for sever years, this is good, for that means the wool of the sheep the grantor then has.

"The distinction is between the grant of an interest in property which the grantor then has in existence, or potentially, and an interest in property thereafter to be acquired. The ownership must be actual or potential. * * * A grant implies a disposition of a thing in esse, or potentially so, as the clip of the wool, for a term of years, of the sheep which the man then has. The grantor owns the property from which the wool naturally grows, so that he may be said to be the potential owner. * * *

"Courts of equity in modern times, to give effect to contracts and engagements, where public policy would not be contravened, and the door not be opened to the perpetration of fraud, have imparted the virtue of securities, by way of liens, to many instruments which courts of law would not regard as operating as a grant or assignment of the thing, as in case of a technical mortgage. When it is said that a mortgage of a thing not in esse is void at law, no more is meant than that the instrument does not have effect to pass the title to the property.

"Courts of equity constantly enforce rights attaching to property where the legal title is not involved, and where the owner of the right would have no countenance or support in a court of law. The reservation of a lien for the purchase-money in the deed of conveyance is of the same character as the implied equity in favor of the vendor; neither creates a title to the property; neither amounts to any thing more than a privilege to subject the specific property to the debt. These are instances of liens created without a grant; where they attach, they are quite as effectual securities for the debt as a mortgage. Courts of equity have in certain instances upheld contracts intended as grants by way of mortgage, which were ineffectual as such by giving them virtue as liens. These are some of the illustrations:

"A ship-owner may assign the freight of a voyage which the vessel is prosecuting. In re ship Warre, 8 Price, 269. Or he may sell, or hypothecate for advances, the oil and head matter to be taken in a whaling voyage. Laughton v. Horton, 1 Hare, 549.

"And the work animals on the plantation and such others as may be brought on it for farm use. Sillers et ux. v. Lester, 48 Miss. 523.

"In these cases the instruments, though in the form of assignments or mortgages of the several subjects, could not operate to pass the legal title, for the reason above stated. Yet courts of chancery dealt with them as equitable securities or liens.

"In Cayce, trustee, v. Stovall, 50 Miss. 400, whilst adopting the authority of these cases, the court said that it must not be understood as committing itself to the broad doctrine that a mortgage of chattels thereafter to be acquired is unlimited and in all circumstances to be sustained.

"An assignment or mortgage of all the goods which a man may hereafter acquire would be too vague and uncertain, and invalid for that reason as well as, perhaps, on grounds of public policy. But contingent estates and interests, though not assignable at law, may be the subject of a contract for a valuable consideration, which will be specifically enforced when the event happens. 2 Story's Eq., §§ 1040, 1046. At law the assignment of future accretions, or increase of any subject which a person owns at the time, will be respected.

"The doctrine of equitable liens on things not in esse at the date of the contract, and the extent to which they will be upheld against subsequent creditors, has not as yet been sufficiently developed to admit of a precise generalization into principles. A careful study of the cases will disclose:

"1st. That in each instance the contract had reference to some particular designated property which may, in the ordinary course of things and with reasonable certainty, come into existence.

"2d. The assignor or mortgagor must, at the date of the contract, have an actual interest in or concerning the subject. There must be an interest "in presenti,' of which the future acquisition is the product, or in such wise incident to or connected with it constituting a tangible and substantial predicate of a contract. Morrill v. Noyes, 56 Me. 458.

"These tenants were purchasers of the land for the term of five years, to be used for agricultural purposes. As security for the price to be paid they pledged the crops. The thing hypothecated was to spring out of or be the product of the soil. It was directly connected with the land which the tenants owned for the term. The crops were contingencies depending on present existing property or interest in the lessees, and therefore the subject of sale or assignment. Story on Sales, § 186.

"Whilst a person cannot make a present sale of all the wool that may grow on sheep, which he may hereafter buy, nor of any other thing in which his interest is wholly prospective and doubtful, there may be a valid sale of the wine a vineyard is expected to produce or the grain a field is expected to grow, the milk of a cow for the next year, or the future young of animals. Story on Sales, § 185.

"It is to be remarked in all these instances, that the subject of the sale sprung out of or depended upon some present right or property or interest which the seller had.

It seems to be a solecism to say that a mortgage is void at law and yet may be operative in equity. Much of the confusion and seeming conflict in the cases result from the infelicitous use of language which does not accurately convey the idea. The invalidity at law imports nothing more than that the mortgage is ineffectual as a grant to pass the legal title. The chancery court does not put itself in conflict with that principle, but construes the instrument as imposing a lien upon the thing when acquired or produced, treating the legal title or ownership as still residing in the debtor.

"Prior to the enactment of the registration laws the current of all decisions was that possession by the mortgagee was essential to the validity of a chattel mortgage.

"In controversies with subsequent creditors and purchasers, registration was regarded as of the same import as possession, and if the security was in other respects fair and bona fide, it would be unimpeachable.

Where there are no registration laws we find a great deal of discussion in the books as to the necessity of a creditor, protected by an assignment of goods thereafter to be produced or acquired, getting possession before a subsequent creditor has acquired a lien on them. Several of the cases cited by counsel, and others which we have consulted, are of that sort.

"These statutes protect the assignee or mortgagee against subsequent liens and sales. They were not designed to make good a title which was not good before, but to shield it, when bona fide, against claims which subsequently accrue against the property. We held, in the case of White v. Thomas et al. (MSS opinion), that the reservation of a lien in a lease on the annual crops would be enforced, in a court of chancery, between the parties. We now take the further step and declare that the lien retained by Robb on the annual crops to be grown during the term, as security for his rent, was not only good between the immediate parties, but was superior and paramount to the mortgage of Everman & Co., they, by reason of the registration, having notice of Robb's equity. Registration of the lease was notice to subsequent purchasers and creditors, who dealt with the lessees, in respect of the cotton at their peril.

"This doctrine does not contravene public policy but, on the contrary, will be beneficial in its effects, as it may enable those with moderate means and little or no credit to engage in agriculture, by pledging the fruits of the soil for the rent; nor when, as in this case, the instrument has been recorded, can any one be deceived, for the nature of the property can be readily ascertained by consulting the public records." J. TARBELL. April 9, 1880.

the contract, in the bank. While it there continued, and during the transit of the cotton from St. Louis to Philadelphia, the indorsed bill of lading was stolen by one of the firm of Kuhn & Brother, and by them indorsed over to Miller & Brother, for an advance of $8,500. The jury has found, however, that there was no negligence of the bank, or of its agents, in parting with the possession of the bill of lading, and that Miller & Brother knew facts from which they had reason to believe it was held to secure the payment of an outstanding draft; in other words, that Kuhn & Brother were not the lawful owners of it, and had no right to dispose of it.

It is therefore to be determined whether Miller & Brother, by taking the bill of lading from Kuhn & Brother under these circumstances, acquired thereby a good title to the cotton as against the bank.

In considering this question it does not appear to us necessary to inquire whether the effect of the bill of lading in the hands of Miller & Brother is to be determined by the law of Missouri, where the bill was given, or by the law of Pennsylvania, where the cotton was delivered. The statutes of both States enact that bills of lading shall be negotiable by indorsement and delivery. The statute of Pennsylvania declares simply, they "shall be negotiable and may be transferred by indorsement and delivery;" while that of Missouri enacts that "they shall be negotiable by written indorsement thereon and delivery, in the same manner as bills of exchange and promissory notes." There is no material difference between these provisions. Both statutes prescribe the manner of negotiation, i. e., by indorsement and delivery. Neither undertakes to define the effect of such a transfer.

We must, therefore, look outside of the statutes to learn what they mean by declaring such instruments

LADING.

SUPREME COURT OF THE UNITED STATES.-OCTOBER TERM, 1879.

SHAW ET AL., Plaintiffs in Error, v. MERCHANTS' NATIONAL BANK OF ST. LOUIS.

A statute declaring that bills of lading "shall be negotiable and may be transferred by indorsement and delivery," or declaring that "they shall be negotiable by written indorsement thereon, and delivery in the same manner as bills of exchange and promissory notes," does not put bills of lading in all respects on the footing of bills of exchange and other instruments which are the representatives of money. Accordingly, when an indorsed bill of lading was stolen from the owner without his negligence, held, that a purchaser for value, without notice from the thief, would not acquire title thereto or to the goods represented thereby, against the owner. No statute is to be construed as altering the common law farther than its words import.

N error to the Circuit Court of the United States

for the Eastern District of Pennsylvania. The

opinion states the case.

STRONG, J. The defendants below, now plaintiffs in error, bought the cotton from Miller & Brother by sample, through a cotton broker. No bill of lading or other written evidence of title in their vendors was exhibited to them. Hence, they can have no other or better title than their vendors had.

The inquiry, therefore, is, what title had Miller & Brother as against the bank, which confessedly was the owner, and which is still the owner, unless it has lost its ownership by the fraudulent act of Kuhn & Brother? The cotton was represented by the bill of lading given to Norvill & Co., at St. Louis, and by them indorsed to the bank, to secure the payment of an accompanying discounted time-draft. That indorsement vested the title to the cotton, as well as to

term derived from the usage of merchants and bankers, in transferring, primarily, bills of exchange and, afterward, promissory notes. At common law no contract was assignable, so as to give to an assignee a right to enforce it by suit in his own name. To this rule bills of exchange and promissory notes, payable to order or bearer, have been admitted exceptions, made such by adoption of the law merchant. They may be transferred by indorsement and delivery, and such a transfer is called negotiation. It is a mercantile business transaction, and the capability of being thus transferred, so as to give to the indorsee a right to sue on the contract in his own name, is what constitutes negotiability. The term negotiable expresses, at least primarily, this mode and effect of a transfer.

In regard to bills and notes, certain other consequences generally, though not always, follow. Such as a liability of the indorser, if demand be duly made of the acceptor or maker, and seasonable notice of his default be given. So if the indorsement be made before the maturity of the bill or note, in due course of business, and be made for value to a bona fide holder, the maker or acceptor cannot set up against the indorsee any defense which he might have set up against the payee, had the bill or note remained in his hands. So also if a note, or bill of exchange, be indorsed in blank, if payable to order, or if it be payable to bearer, and therefore negotiable by delivery alone, and then be lost or stolen, a bona fide purchaser for value paid acquires title to it, even as against the true owner. This is an exception from the ordinary rule respecting personal property. But none of these consequences are necessary attendants or constituents of negotiability, or negotiation. That may exist without them. A bill or a note past due is negotiable, if it be payable to order, or bearer, but its indorsement or delivery does not cut off the defense of the maker or acceptor against it, or create such a contract as results from an indorsement before maturity, and does not give to the