ocable, and the mortgagee has no right against the piano. A person could not make an oral gift of a one-fourth interest in a horse, for he could not make any delivery. But a complete gift of an account in a savings bank could be made by delivering the savings bank book, for the possession of the book would give the holder the right to the money. A, who thinks he is about to die from an illness which he has, indorses on a certificate of deposit "Pay to B, but not until my death," and delivers the certificate to B. This is not a good gift causa mortis, for it cannot take effect until after A's death, so that if it is available at all it must be as a testamentary disposition. Had A indorsed the certificate so that title would pass at once, it would have been a valid gift causa mortis on delivery, but would have been revoked by A's recovery from the illness with which he was threatened, or by actual revocation, or by B's death before that of A.

A gift of either kind must be gratuitous, and this is another reason why it must be executed, for, if any one should attempt to enforce a promise to give, in order to maintain his action he must show a sufficient consideration, and if he can do so he has only a contract, not a gift. A gift of either kind must be voluntary. A person must have sufficient mental capacity to understand the character of his act, and the act must not be procured by undue influence on the part of the donee. In the case of gifts between those standing in confidential relations to each other, the majority of the courts now hold that there is a presumption of undue influence, so that the burden is on the donee to affirmatively show that he did not exercise undue influence in procuring the gift.12

§ 45. Wills. A will is an instrument by which a person makes a disposition of his property to take effect after death, and which is revocable during his life. It is called a devise so far as it relates to real property, and a bequest so far as it relates to personal property, and a legacy as applied to both. The property which may be disposed of 12 Kellogg v. Adams, 51 Wis. 138; Basket v. Haskell, 107 U. S. 602.

by will, as well as the formal requisites of a will, are prescribed by the statutes of the several States, and reference should be made to them. In general they permit any one to make a will of personal property who is of full age, sound and disposing memory, and under no constraint of volition; and they generally require the will to be in writing, published and acknowledged in the presence of the witnesses, signed at the end by the testator, and witnessed by at least two witnesses, who subscribe their names in his presence and in the presence of each other. A will must be made animo testandi. Sealing and dating are sometimes, but not generally, required.13

§ 46. Bailments. A bailment is, in general, a delivery of chattels by one person to another, to be held according to the purpose of delivery, and to be returned or delivered over when that purpose is accomplished. A bailment transfers the possession and right of possession from the general owner (bailor), to a person (bailee), who then has a special property in the object of ownership. It also creates various obligations on the bailee for the benefit of the bailor. The bailee may also have the right to compensation for his services. The right to compensation and the right to the performance of his obligations by the bailee are objects of ownership by original acquisition, acquired either by contract or quasi-contract, and are merely further illustrations of a topic which has been already treated, under the heads of Contracts and Bailments and Carriers. The transfer of the right of possession of chattels is a method of acquiring title by secondary acquisition. In such case only a qualified property is transferred, ordinarily only the right of possession, but sometimes also the right of use and sometimes also a qualified right of disposal as in the right to re-pledge.

The qualified property thus carved out of the greater absolute property may relate either to corporeal chattels or incorporeal, but in the latter case the delivery is symbolical. Bailments are classified as those for the sole 13 See Article on Wills.

benefit of the bailor, including deposits and mandates, those for the sole benefit of the bailee, or gratuitous loans, and those for the mutual benefit of both parties, including pledges, and the hiring of a thing for use, hiring of work and labor on a thing, hiring of care and custody of a thing, and hiring of the carriage of a thing from place to place. In all of them the bailee has at least the right to the possession of the thing bailed as against all the world including the bailor so long as the bailment continues.14

§ 47. Assignment and Indorsement. Personal property relating to incorporeal chattels which a person acquires by some form of original acquisition, if transferable at all, may be transferred by assignment, or by indorsement. Claims for damages for mere personal torts are not assignable; but other remedial rights, quasi-contracts, contracts where the right of the promisee is not coupled with his obligation, patents, copyrights, and trade-marks and good will in connection with the business sold, all are the subject of assignment, and commercial paper is transferable by indorsement. The indorsee of commercial paper may get a better title than his indorser had if he is a bona fide purchaser, but an assignee of any other incorporeal chattels only steps into the shoes of his assignor. He succeeds to just what rights such assignor had, and any defenses available against the assignor are available against him. The assignment of a property right in an incorporeal chattel carries with it the accruing interest or income of the principal thing. The assignment of a debt carries with it the collateral security, unless expressly reserved. The assignee should give notice of the assignment to the debtor, if he would protect himself against any future claims of the debtor against the assignor. If, for example, the debtor should pay the claim to the original assignor before receiving notice he would be discharged from further liability. In equity, and under modern statutes the assignee may enforce his right by a suit in his own name.

A parol assignment is good in equity, but under most 14 Coggs v. Bernard, 2 Ld. Raym. 909.

statutes the assignment must be in writing in order to enable the assignee to sue in his own name. In case the incorporeal chattel is evidenced by writing the right to the same may be assigned by an indorsement thereon; otherwise a new instrument should be executed. An order for the whole of a debt or specific fund amounts to an equitable assignment thereof, entitling the assignee after notice to the third person to sue in his own name for the same whether or no the order is accepted, unless the order is in the form of a check or bill of exchange when acceptance is necessary. An assignment of a part of a fund by an order is good if the debtor assents to the same. A fire insurance policy is not assignable ordinarily, as fire insurance is a personal contract of indemnity. Public officers cannot assign salaries not yet earned but which they expect to earn in the future, because it would be against public policy to permit such assignments.15

The following examples will more fully illustrate the doctrines of assignment and indorsement: A slanders B by telling a third person that B is a thief. B now has a cause of action in damages against A, that is, he has a remedial right against A and A is under a remedial obligation to compensate B for the injuries he has caused him by his tort; but B cannot assign this claim to anyone else, as it stands. He must sue on the claim and recover judgment. Then he may assign the judgment to anyone he may desire, or he may collect the judgment himself. A hires B to work for him as a clerk for the period of six months for the salary of $60 a month, payable at the end of each month. B cannot assign his obligation to perform the services which he has promised to perform, nor can A assign his obligation to pay therefor, to any one else; but after B has performed his obligation he may assign the salary that is then due to any one he may desire by writing an order to A to pay the amount to such person. A pays B $100 by mistake, thinking that he owes B that sum when he does not owe him anything. The law creates a quasi-contract against

15 Schlieman v. Bowling, 36 Minn. 198.

B to repay the money to A. A may assign this claim to any one he may desire. Again, A owes B a certain sum of money and he signs a promissory note in which he agrees to pay such sum to B or his order at some future time, and he executes a chattel mortgage on some of his cattle as security for the note. B indorses on the back of the note "Pay to the order of C" and writes his name beneath and hands the note to C, who pays value and buys in good faith. C not only has a right to the chattel mortgage, but A cannot set up against him any defenses available against A.

§ 48. Sales. A sale is a contract whose subject matter is the transfer from one person to another of the general property (that is, the right to use, possess, and dispose, though the right may be otherwise qualified) in corporeal chattels, for a price paid or to be paid therefor. Whether the term should be applied to the transfer of property in incorporeal chattels is a matter of dispute. Such property may be transferred. Hence the only dispute is over the name to be applied to such transfer, and this is of importance only so far as the Statute of Frauds is concerned. One section of that statute applies to sales. Hence, in such connection, it becomes important to know whether incorporeal chattels are included. The English courts generally take the view that they are not, and the American courts, the view that they are. It conduces to clearness to adopt the definition given above for a sale, and to make the use of the term in the Statute of Frauds an exception to the general rule, and to adopt the term assignment for the transfer of property to incorporeal chattels.