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(82) A judgment is frequently the means of vesting the right and property of chattel interests in the prevailing party, page 436.

It is equally true that a judgment may vest the property of chattels, in some cases, in the defeated party, though Blackstone has not mentioned it. When a plaintiff recovers in damages the value of a chattel wrongfully taken or converted by the defendant, the judgment operates to vest the property of the chattel in the wrong-doer. He cannot justly be made to pay for it and yet deprived of title to it.

The only doubtful point is whether his title accrues on the mere entry of the judgment against him for its value, or only when he has paid or satisfied the same. It would be inequitable to treat the judgment as confirming his title while the judgment remains unpaid, and perhaps owing to his insolvency, never can be collected. Therefore most of the American courts now hold that his title does not accrue until the judgment is satisfied. But the other, and more logical view, was that of the common law. Indeed, in the earliest books, the property was regarded as divested by the act of trespass or conversion, or at least by the choice of the injured party to sue for the value rather than for the return of the thing itself. (Bishop v. Lady Montague, Cro. Eliz. 824.) Where trespass is done of goods taken the owner may sue in replevin, and this affirms property: or may bring action of trespass, and this disaffirms property, and so he has election. (Brooke, Trespass, 134; Property, 7.) And after this distinction became obsolete, it was the judgment that established the legal title of the one party to the money, and of the other to the goods.

How doubtful the nature of a chose in action was, when a chattel was out of the owner's possession, may be seen by the case, Y. B. 2 Edw. IV. 16, where two such lawyers as Danby, Ch. J. C. B., and Littleton,

who was to be his most famous associate six years later, differed on this point. Littleton, for plaintiff, had brought trespass for goods taken - forty stone of wool. Defendant, by Billing, pleaded that plaintiff had previously sold them to one F., who left them in his care, but afterward sold them to defendant. Littleton replied, relying on his client's possession at the time of taking, absque hoc the sale, etc. Danby asks Littleton to consider whether this is a good issue for him; suppose the defendant had wrongfully taken them out of plaintiff's possession after the sale to F., and then had bought them of F., would his action lie? Litttleton says yes. Needham, one of the judges, states a case implying Danby's view, to which Littleton replies: "To me, it seems that [the transfer after the trespass] would be void, for when the trespasser takes them, the property is out of the owner and in him, and how then can the owner transfer them to him?" Danby. "Well enough, for if one carries off my goods, I shall have replevin and you shall not, for I cannot have replevin if the property is in cthers and not in me; but here the property is in me at my pleasure." The matter ends unsatisfactorily, for Moile suggests that the issue is well enough on the record, and any special matter will appear when it is tried. And the sergeants passed to other matters.

Chancellor Kent and his editors discussed the question (2 Com. 388, 389), with a strong leaning to the view that the property does not pass until payment or satisfaction of the judgment. Judge Sharswood, in his note to this passage of Blackstone, argues the other way; that the judgment alone, being a conclusive bar to any other action between the parties and privies for the same cause, must transfer the title without satisfaction. But the weight of recent authority is the other way.

The rule applies not only to actions of trespass de

bonis asportatis and trover, and a fortiori to assumpsit brought for the price of the goods upon waiver of the tort, but also to cases of replevin under modern statutes, which allow a money judgment to be taken at election in place of the goods by either party who proves a title to the goods without having obtained possession of them, or return of them, as the case may be.


OF TITLE BY GIFT, GRANT, AND CONTRACT. We are now to proceed, according to the order marked out to the discussion of two of the remaining methods of acquiring a title to property in things personal, which are much connected together, and answer in some measure to the conveyances of real estates; being those by gift or grant, and by contract: whereof the former vests a property in possession, the latter a property in action.

VIII. *Gifts then, or grants, which are the eighth method of transferring personal property, are thus to be distinguished from each other, that gifts are always gratuitous, grants are upon some consideration or equivalent: and they may be divided; with regard to their subject-matter, into gifts or grants of chattels real, and gifts or grants of chattels personal. Under the head of gifts or grants of chattels real, may be included all leases for years of land, assignments, and surrenders of those leases; and all the other methods of conveying an estate less than freehold; which were considered in the twentieth chapter of the present book, and therefore need not be here again repeated: though these very seldom carry the outward appearance of a gift, however freely bestowed; being usually expressed to be made in consideration of blood, or natural affection, or of five or ten shillings nominally paid to the grantor; and in case of leases, always reserving a rent, though it be but a peppercorn: any of which considerations will, in the eye of the law, convert the gift, if executed, into a grant [see note 83, page 710]; if not executed, into a contract.

**Quoted, 128 Mass. 270. Cited, 14 Md. 197.

[441] * Grants or gifts, of chattels personal, are the act of transferring the right and the possession of them; whereby one man renounces, and another man immediately acquires, all title and interest therein which may be done either in writing, or by word of mouth a attested by sufficient evidence, of which the delivery of possession is the strongest and most essential.* But this conveyance, when merely voluntary, is somewhat suspicious; and is usually construed to be fraudulent, if creditors or others become sufferers thereby. And, particularly, by statute 3 Hen. VII. c. 4. all deeds of gift of goods, made in trust to the use of the donor, shall be void; because otherwise persons might be tempted to commit treason or felony, without danger of forfeiture; and the creditors of the donor might also be defrauded of their rights. And by statute 13 Eliz. c. 5. every grant or gift of chattels, as well as lands, with in intent to defraud creditors or others, shall be void as against such persons to whom such fraud would be prejudicial; but, as against the grantor himself, shall stand good and effectual: and all persons partakers in, or privy to, such fraudulent grants, shall forfeit the whole value of the goods, one moiety to the king, and another moiety to the party grieved: and also on conviction shall suffer imprisonment for half a year.

A true and proper gift or grant is always accompanied with delivery of possession, and takes effect immediately as if A gives to B 100. or a flock of sheep, and puts him in possession of them directly, it is then a gift executed in the donee; and it is not in the donor's power to retract it, though he did it with

a Perk. 57.

b See 3 Rep. 82.

8 Meant for "an."

**Quoted, 17 N. J. Eq. 421; 2 Ired. 366; 28 W. Va. 359; 1 Ark. 87, Cited, must be either deed or actual delivery, 1 Fla. 86; 11 Ga. 177; 35 Miss. 451.

2 BLACKST. — 57.

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