administration. In this country the matter is governed by statutes in the respective States. In the State of New York there is, in two of the counties (New York and Kings), an officer called a public administrator, whose duty it is, among other things, to take charge of vacant estates. They proceed substantially as other administrators, and pay any surplus, after discharge of fees and expenses, into the city treasury. (a) In the other counties a similar service is performed by the county treasurer. Surplus moneys in this case are paid into the State treasury. (b) This mode of obtaining title applies both to real and personal property. It is a matter of statute regulation, which branches. out into much detail. Taxation as affecting personal property only is considered here. The tax may be levied on real property, and yet be collected from the taxpayer's personal estate. There is first an assessment of the amount to be paid according to a fixed and equitable proportion, by public officers termed assessors. They proceed judicially upon due inquiry. They are not personally liable for errors of judgment, though they are for wilful misconduct.2 If the tax is not paid within the prescribed time, a warrant is issued to a collector, who proceeds to seize upon or "distrain" the property of the taxpayer, whether it be money or goods. In the case of goods, there would be a public sale, the tax would be paid from the proceeds, and the overplus returned to the owner.3 The collection of taxes to be paid to the United States under internal revenue laws is regulated by the Revised Statutes. Cer Dyke v. Walford, 5 Moore, P. C. C. tenced to the pillory in the county where 434 (1846). the offence was committed. The court said the offence deserved exemplary punishment. 2 Queen v. Buck, 6 Mod. 306. This is an old case, where the collectors and assessors omitted some from their books whom they nevertheless assessed, and put the money in their own pockets. They were adjudged guilty of a misdemeanor, and sen. (a) The law in New York relative to the disposition of vacant estates, as stated in the text, was formerly found in the Revised Statutes, Part II., Ch. VI., Tit. VI. These provisions were, however, repealed by ch. 686, Laws of 1893. This act re-enacted much of the old law, in the form of amendments to the Code of Civil 8 East India Company v. Skinner, Comberbach's Rep. 342. 4 Tit. XXXV. See especially, § 3187. Procedure, §§ 2665-2669. Provisions re- tain specified articles are exempt from distraint. In case of sale, the collector gives a certificate of sale, which is made conclusive evidence of the regularity of his proceedings in making the sale.1 The subject in New York and other States is fully regulated by statute.2 DIVISION IV. - Eminent Domain. 3 The right of a State or of the United States to take the property of an individual owner on this ground, includes both real and personal property. The right is inseparably attached to national empire and sovereignty. All kinds of property are subject to the right. The occasion for taking personal property in this manner is, however, rare. One of the very early cases in which the right was asserted is the famous Saltpetre Case, in which the court vindicated the right of the "Commonwealth" to take property in time of war.5 Personal property, as well as real estate, is protected by the constitutional provision that private property is not to be taken for public use without just compensation. This kind of property may be destroyed without compensation in cases of inevitable necessity, as to arrest the spread of a conflagration. A provision requiring a particular county to issue bonds for an improvement in which the State, as a whole, is interested, is not a case of eminent domain, but rather of taxation.8 In the exercise of the right of eminent domain, there is nothing in the nature of a contract between the owner and the State. It is only necessary that compensation be made, and then the owner's property can be taken without his assent. If the property be taken by "due process of law," — that is, by judicial inquiry and condemnation, with due notice to the owner, the title of the original owner will be divested, and the State or its appointee will be substituted as owner. 1 U. S. Rev. St. § 3194. 2 For the law of New York, see the Revised Statutes of that State (8th ed.), pp. 1116, et seq. The collector proceeds under a tax list and warrant, distrains, sells, and pays any surplus to the owner, pp. 1116, 1117. There are special rules for the assessment of taxes on incorporated companies, pp. 1149-1159. Jones v. Walker, 2 Paine, C. Ct. 688. 4 New York, &c. R. R. Co. v. Boston, &c. R. R. Co., 36 Conn. 196. Coke's Rep., Part 12, p. 12. People v. Mayor, &c. of Brooklyn, 9 Barb. 535. 7 American Print Works v. Lawrence, 3 Zab. 9; Hale v. Lawrence, Id. 590; 1 Id. 714. Ante, pp. 430, 431. 8 County of Mobile v. Kimball, 102 U. S. 691. • Garrison v. City of New York, 21 Wall. 196. The word "judgment" is used in this connection in a broad sense, and is intended to include all judicial determinations of legal proceedings whereby the title to property may pass. Judg ments are commonly divided into two principal classes, in personam and in rem. (1) Judgments in personam. These are the results of actions or other proceedings against persons who are expressly or tacitly included in the litigation. The word "judgment" is more properly applied to an action in a court of law, the result of a suit in equity being regularly called a "decree." It is, however, common in this country to call each a "judgment.' A judgment in personam is in its nature a judicial declaration that a certain thing is to be done by a party to an action, — as, for example, to pay a sum of money. This declaration does not work out its own result. It remains a declaration and nothing more, unless it is carried into effect by the executive branch of the government, through a writ called an "execution," addressed in the name of the people to the sheriff or other officer of the county, requiring him to carry the judgment into effect, either by selling the property of the debtor, or taking him personally into custody, or delivering specific property to the successful party, as the case may be. An execution is thus vitally connected with such a judgment. Lord COKE says an execution is the life of the law, and the fruit and life of every suit. In an equity case, instead of an execution there will be a requirement by the court that the prescribed act be done, -e. g., that a deed be executed, or that the party refrain from doing a forbidden act. If this direction be disregarded, the party will be deemed guilty of a contempt of court, and treated accordingly. It has been strongly claimed that there is one instance in which a judgment in personam changes the title to property. This is where personal property has been wrongfully converted to the use of another, and the owner brings an action and recovers its value. The argument is, that the property vests at once in the wrongdoer, and the former owner has only the judgment. The more correct view is, that the title does not pass by the mere force of the judgment, but only when that has been paid.1 1 The difficulty in this case grows out of the election of remedies. When an owner's property is thus converted to the use of another, he has a choice of remedies; he may either sue for the value, or disregard the act of conversion, and claim his property. Having elected to sue for the value, and obtained judgment, he is estopped from bringing an independent action to recover the property itself. There appears to be no exception to the rule that a judgment for a mere sum of money is but an incorporeal right, vesting no title to property other than the ownership of the judgment itself. Where the judgment, though against a person, is for the delivery of a specific thing, such as for specific coin in a box or a particular chattel, it vests a title, while the office of the execution in that case is to put the owner into possession of the thing to which he is already entitled by force of the judgment. (2) Judgments in rem. Such a judgment is the result of an action against a particular thing. A chattel is, as it were, personified, and becomes a defendant in the action. This theory is resorted to, not only in cases of forfeiture, already referred to, but in case of ships and other property, as hostile or contraband in time of war, or in the enforcement of liens in civil cases in courts of admiralty, as for salvage, seamen's wages, collision, etc. A mode is provided whereby an owner, though not sued, is notified of the pendency of the action, with a corresponding liberty to make his defence. Notice is of the essence of the proceeding. Still, it does not follow from this reasoning that the ownership passes. The most that can be said is, that no other action can be brought against the same party, or those in privity with him (Hatch v. Cod. dington, 32 Minn. 92), while the judgment remains outstanding. The title, accordingly, is unchanged. This would appear to be well shown by the exercise of the right of recaption, which would apparently still exist in favor of the owner, though he could not resort to a new proceeding in court. (As to "recaption" by the act of an owner without legal proceedings, see Blackstone's Com. Book III. chap. I. par. ii.) Drake v. Mitchell, 3 East, 251, 258. Brinsmead v. Harrison, L. R. 6 C. P. 584, is an important and wellreasoned case, maintaining that no title passes until satisfaction of the damages has been made (p. 587). The argument is, that the proceeding is not in rem, and that it has no specific effect upon the goods (p. 588). At most, there is but an assessment of their value. A case in Jenkins' Centuries (4th Cent., Case 88), is approved, as well as Cooper v. Shepherd, 3 C. B. 266, while a dictum of JERVIS, C. J., in Buckland v. Johnson, 15 C. B. 145, 157, is disapproved. This point has sometimes been considered in connection with the question whether, if there be two or more persons jointly liable for a trespass to property or a conversion of it, and an action be brought against one and judgment obtained without satisfaction, it is a bar to an action against the others. There is, however, no necessary connection between the two questions: one is a matter of the transfer of property valid as to all persons, strangers as well as parties to the action; the other is a question between the parties and those in privity with them. See remarks in Brinsmead v. Harrison (in Exch. Cham.), L. R. 7 C. P. 547. On the last point the authorities are in a hopeless state of confusion. Cases taking the view that the former judgment, without satisfaction is a bar to the action against the joint wrongdoer are King v. Hoare, 13 M. & W. 494; Brinsmead v. Harrison, supra, both in C. P. and Exch. Cham.; Hunt v. Bates, 7 R. I. 217; Kenyon v. Woodruff, 33 Mich. 310. The opposite view is maintained in Lovejoy v. Murray, 3 Wall. 1; Livingston v. Bishop, 1 Johns. 290; Sheldon v. Kibbe, 3 Conn. 214; Elliott v. Hayden, 104 Mass. 180. It is, however, admitted in all the cases that on satisfaction of the judgment the title passes, on the principle that the payment of the amount awarded is equivalent to the payment of the price on a purchase. So a payment by one joint wrongdoer is available to another. Knapp v. Roche, 94 N. Y. 329, 334, and cases cited. Luce v. Dexter, 135 Mass. 23. This may take place, on the one hand, by the seizure of the goods, and on the other, by posted placard or by advertisement. The seizure is in general supposed to be sufficient for the owner; and the advertisement, for others. The officer who makes the seizure should make return to the court of the fact, and of any required notice. Sometimes the mode of giving notice is regulated by rule of court, as, for example, by the ninth rule in admiralty.1 Assuming that everything is regularly done, a judgment against the thing changes the status, condition, or ownership of the thing by its own force. It needs no execution to accomplish the result. This is a true case of title by judgment, and is said to bind all the world. There is now a new title, without reference to the former one, which is extinguished.2 DIVISION VI. - Title from a Failing Debtor. The cases upon this subject may be arranged under two general heads, one, where the debtor by his own act provides how his property shall be used in payment of his debts, or enters into an arrangement with one or more creditors for a compromise or composition; the other, where the matter is adjusted by a court or tribunal having jurisdiction over the subject. SECTION I. Voluntary Assignments and Composition Deeds. I. Voluntary assignments. - These may be divided into two kinds, - preferential and non-preferential. Preferential assignments. — It is a rule of the common law that a debtor having several creditors may lawfully pay directly one or more to the exclusion of the others. The creditors passed over cannot complain, as there is no fraud or wrong in discharging a debt. This rule may be affected by insolvency or bankruptcy. In the absence of contravening legislation, it exists. In a preferential assignment the debtor does not make direct payment to favorite creditors, but acts through the medium of a trustee, commonly called an assignee. The substance of such an assignment is, that the debtor conveys his estate to the assignee, directing him to convert it into money, and to pay the creditors according to a classification which he points out, paying the first class in full before the second class is reached, and so on from class to class until the fund is exhausted. There will be two general points to be considered: (1) The validity of the assignment; (2) Its nature and effect. 1 Waples on Proceedings in Rem, Book I. chap. 7. 2 Williams v. Armroyd, 7 Cr. 423; Gel ston v. Hoyt, 3 Wheat. 246, 318; Waples on Proceedings in Rem, Book I. chap. 15. |