Gambar halaman

Ware, j., defines it as ' a jus in re, a proprietory interest in the thing, which may be enforced directly against the thing itself by a libel in rem, in whosesoever possession it may be, and to whomsoever the general title may be transferred." The subject was elaborately considered by Curtis, J., on appeal in the same case, 2 (urt. 404. The definition of maritime liens, as stated by Ware, J., was affirmed, and the view of the nature of such liens, as expressed in the case of The Triumph, was shown to be unsound (p. 412). The same view was allirmed in the following year (1856) by the Supreme Court in the case of The Yankee Blude, 19 How. 82, 89, and has since then been universally recognized and followed.

In the case of The Lottawanna the Supreme Court say (21 Wall. 579): "A lien is a right of property, and not a mere matter of procedure.” Ware, J., in the case of The Paragon, 1 Ware, 3.22, 330, beld, according to this view of such liens, that when all the debts hold the same rank of privilege, if the property is not sufficient to fully pay all, the rule is that creditors shall be paid concurrently, each in proportion to the amount of his demand." Lowell, J., in the case of The Fanny, 2 Low. 508, says: “The general rule in admiralty is that all lienholders of like degree share pro rata in the proceeds of the res, without regard to the date of their libels if all are pending together.” The same view was taken by Judge Hall in the case of The America, 16 Law Rep. 261, 271. So in the cases of The Superior, 1 Newb. 176; The Kate Hinchman, 6 Biss. 367; The General Burnside, 3 Fed. Rep. 228, 236; The Arcturus, 18 id. 713; The Desdemona, I Swabey, 158, it was held that concurrent liens of the same rank should be paid pro rula, where the proceeds were insuflicient to pay all, without regard to the date of the libel or the attachment of the vessel by either. Roscoe Adm. 101. Such is the provisiou also of the French law. Code de Com. 191.

The precise question here presented has not, so far as I can ascertain, arisen of late years within this district. In the eastern district, in the case of The Samuel J. Christian, 16 Fed. Rep. 796, the question seems to have been regarded by Benedict, as an open one. He there held that a lien for damages by collision was subject to the prior claims of material men, and did not acquire any priority over the latter through the prior filing of the libel; and he concludes his opinion by saying that “it is unnecessary to consider the question whether as between claims of equal rank a prior seizure of the vessel secures priority in the distribution of the proceeds."

The recent decision in the Circuit Court in this district however in the case of The Frank G. Fowler, 17 Fed. Rep. 633, accords in principle with the several cases recently decided, to which I have above referred, holding that mere priority of attachment does not entitle to a preference. That decision seems to me plainly incompatible with the rule adopted in the cases of The Triumph and The Globe,supra,and with the views upon which that rule was founded. In the case of The Foucler, damages in faror of different lienors had accrued by two collisions upon successive voyages of the same ressel. The libel for the last collision was filed three days before the libel for the previous collision; but the attachment of the vessel by the marshal was made upon both processes at the same time. The proceeds of sale being insufficient to pay both claims, this court held, for reasons which need not be here referred to, that the liens should he paid in the inverse order of the time at which they accrued. 8 Fed. Rep 331. On appeal, Blatchford, J., reversed this ruling, and held that the earlier damage should first be paid in full. Had the rule of priority depended upon the time of filing the libel, the judgment of the District Court should have been affirmed, since the libel on the last

lien was first filed; had priority depended upon the time of the arrest of the vessel alone, then, as the ar. rest upon both libels was at the same time, and the claims were of the same rank, neither had priority of the other, and the proceeds should have been dirided pro rata between them. Neither of these courses was pursued. The decision,on the contrary, in awarding priority to the earlier lien, established for this Circuit the principle, which has been repeatedly affirmed elsewhere, that a lien is a vested proprietary interest in the res itself, from the time when it accrues; and also that failure to enforce such a lien by immediate suit, before the vessel proceeds on another voyage, is neither laches nor sufficient, by any equity or rule of policy, to displace its priority, as a vested proprietary interest, orer a subsequent lien of the same rank upon which the vessel is arrested at the same time. The former rule in this district, which inade priority among liens of the same rank depend upon the date of filing the libel, or the arrest of the vessel in the proceeding to enforce it must be regarded therefore as superseded; not merely because the foundation upon which that rule rested has been wholly swept away, but also because the rule adopted by the Circuit Court in the case of The Frank G. Fowler is incompatible with its longer existence.

Viewing maritime liens therefore as a proprietary interest in the vessel itself, and the filing of the libel and seizure of the vessel as proceedings merely to enforce a right already vested, it follows necessarily that as between different lienors any proceeds in the registry should be distributed according to the rightful priorities of the liens themselves, and not according to priority of the proceedings merely to enforce them. This rule permits all the equities of such liens to be considered and enforced, instead of subordinating these equites to a mere race of diligence.

Where the liens are of the same rank there is often an equitable priority among them arising out of the character of the liens themselves, or the time when they accrued. A later lien for salvage is entitled to priority over a former salvage, because the last service has preserved the benefit of the former. The same is true of successive repairs of a vessel on different voyages, or on different parts of the same voyage, or of liens on successive bottomry bonds. The later improvements or advances are for the preservation of the former, for further improvements upon

the vessel; and they have therefore an equitable priority. As regards such liens therefore the rule is that they shall be discharged in the inverse order of their dates. 3 Kent, 197; The Eliza, 3 Hlagg. 87; The Rhadamanthe, 1 Dods. 201; The Bold Buccleugh, ò Moore P. C. 267; The St. Lawrence, 5 Prob. Div. 250; The Fanny, % Low. 508: The Jerusalem, 2 Gall. 345; The America, 16 Law Rep. 273; Roscoe, Adm. 98; The De Smet, 10 Fed. Rep. 489, note.

If the liens are of the same rank and for supplies, or materials, or services in preparation for the same voyage, or if they arise upon different bottomry bonds to different holders for advances at the same time, for the same repairs, such claims are regarded as contemporaneous and concurrent with each other,and they will be discharged pro rata. The E.ceter, 1 C.. Rob. 173; The Albion, 1 Hagg. 333; The Desdemona, 1 Swab. 158; The Saracen, 2 Wm. Rob. 458; The Rapid Transit, 11 Fed. 322, 334, 335; The Paragon, 1 Ware, 325, and cases first above oited. But if the liens arise from causes which are of no benefit to the ship, such as liens for damages by collision, or otber torts, or negligence; and if the claims are such as cannot be treated as contemporaneous or concurrent; and if there are no equitable grounds for preferring the later lieps, such as laches in the enforcement of prior ones, or other grounds of general policy-then, as stated by Story,J.,


in the case of The Jerusalem, "the rule would seem to there cited), the contrary view, according to later deapply qui prior est tempore, potior est jure" (2 Gall. cisions, placing both on the same footing, seems the 345, 350), and the lieus should be satisfied in the order more likely to prevail. The General Burnside, 3 Fed. in which they accrue, as was held in this Circuit in the Rep. 228; The Guiding Star, 18 id. 263. case of The Frank G. Fouler, supra; Macl. Shipp. 702, As the best practical rule attainable in such cases, 703.

and as a rule already supported by many decisions in As maritime liens are secret incumbrances, and tend the western districts, I think the pro rata rule of disto mislead those who subsequently trust to the ship, tribution should be adopted here as respects beneficial unless they are enforced with diligence, according to liens of the same class, in the case of canal boats and the circumstances and the existing opportunities for other similar craft which make short and frequent enforcing them, they will be deemed either abandoned trips upon the canals and rivers, and are laid up durthrough laches as agaiust subsequent lienors or incum- ing the winter season, wben the canals and rivers are brancers, or postponed to the claims of the latter, as frozen over. The same consideratious of convenience, circumstances may require. There is no fixed rule ap- justice and policy apply to this class of cases as in navplicable to all cases determining what shall be deemed igation upon the great lakes. They cannot be applied a reasonable time, or what shall be considered as however to other craft navigating about this port, laches in enforcing such liens. In ordinary ocean making short oceau voyages without interruption the voyages the preference allowed even to bottomry will

year round. be lost after a subsequent voyage, if reasonable oppor- The towage services rendered in this case hold the tunity previously existed for the arrest of the ship. same rank as claims for necessary materials and supBlaine v. The Carter, 4 Cranch, 332; The Royal Arch, plies ( The City of Tawas, 3 Fed. Rep. 170; The St. Law1 Swab. 269-281; The Rapid Transit, 11 Fed. Rep. 322, rence, 5 Prob. Div. 250; The Athenian, 3 Fed. Rep. 248; 334. Betts, J., held that the same rule should be ap- The Constantia, 4 Notes Cas. 512; Macl. Shipp. 703), plied to ordinary liens for supplies. The Ulility, and on the above rule the claims should be paid pro Blatchf. & H. 218, 225; The Boston, id. 309, 3:27. If rata. this rule were strictly applied to vessels which make In one of the bills there is a credit of $130. This very short and frequent voyages, of only a few days' credit should be applied upon the earliest items. The or a few weeks' duration, and which remain in port costs of the first libel should first be paid out of the but a short time between such trips, the effect would fund, and the residue should be divided pro rata bebe practically to destroy all credit to the ship, and to tween the claimants without regard to the dates durdefeat therefore the very object for which maritime | ing the season at wbich they accrued. liens are allowed; since every lienor would be com- Where there are various lienors entitled to the fund, pelled to enforce his lien almost immediately, or run that the fund is small, no costs after the first libel bethe risk of having it postponed to all subsequent ones. yond necessary disbursements should be allowed out of

As respects liens arising in the course of navigation the fund. The Jerusalem, 2 Gall. 351; The Kate Hinchou the western lakes and rivers, where the voyages mar, 6 Biss. 369; The Guiding Star, 18 Fed. Rep. 269. are short and frequent, the rule has been adopted to a See The De Smet, 10 Fed. Rep. 490, note. Bonds for cousiderable extent of making the division of claims latent claims are not now required, except on special by the successive open seasons of navigation, instead order, even in the English practice (Rule 29, Coote, of by the separate voyages during each season. The | Adm. Pr. 205; The Desdemona, 1 Swab. 159) and other Buckeye Stute, 1 Newb. 111; The Dubuque, 2 Abb. parties, if any, who have liens, but have not appeared (U. S.) 20, 32; The Hercules, 1 Brown, Adm. 560; The under the monition and after due publication, will be Detroit, id. 141; The Athenian, 3 Fed. Rep. 248; The barred from the time of the final decree of distribuCity of Tuwus, id. 170; The Arcturus, 18 id. 743, 746. tion. The Saracen, 2 Wm. Rob. 451; The City of The uniform practice therefore has been there. Tawas, 8 Fed. Rep. 170. adopted of paying maritime liens for repairs and sup

Since the foregoing was written I nave consulted plies accruing during the same season pro rata, with

the Circuit judge, and am authorized to say that a deout regard to the particular date or voyage at which

cision to the same substantial effect has been heretothey accrued. The Superior, 1 Newb. 176, 185; Tire

fore made by him in a case arising in the Northern Kate Hinchman, 6 Biss. 367; The General Burnside, 3

district. Fed Rep. 228, 236; The Athenian and The City of Tavas, ut supra.

While this rule is neither strictly logical nor consist- GIFT-SAVINGS BAVK DEPOSIT-TRUST. ent with the theory of beneficial liens, yet, as applied to short and frequent voyages during the open season

SUPREME COURT OF VERMONT. of each year, it is not merely convenient in application, but on the whole, as I think, it works out practical jus

POPE V. SAVINGS BANK.* tice better than any other rule suggested. It occupies a middle ground, and is in effect a compromise be

B., the plaintiff's executor, deposited $800 in the defendant tween the theoretical right of priority of the mate

savings bank in the name of C., but payable to himself. rial-mau who furnishes supplies for the last voyage,

He took a deposit book, which he kept and controlled. He on the one hand, and the corresponding obligation on

withdrew a little more than half of it, and in a few months his part to prosecute at once in order to retain that

directed the treasurer of the bank to add to the first enpriority which commercial policy would disallow.

try, “ Payable to S. Barlow," so as to make it read, The season of navigatiou is regarded as in the nature

“Payable to S. Barlow, during his life and after his death of a single voyage; and the rules applicable to a single

to Marion Cushing." B. made his will before the deposit, ocean voyage are applied, as gards liens for supplies,

in which was this provision: “I hereby confirm all gifts to the navigation of a whole season.

The City of

I have made or shall make to any of my children.” C.

was a grandchild. It did not appear that B. did or said Tawas, 3 Fed. Rep. 170, 173.

any thing else in relation to the deposit, or that indicated As respects liens arising under the State laws the de

an intention to hold the pass book in trust for C.

A bycisions are at variance whether such liens stand upon

law printed in the pass book provided that no deposit the same footing as strictly maritime liens. While

could be withdrawn without the production of the book. the greater number of decisious do not allow the same

The bank had no communication with C., and understood stati8 to statutory liens (The Superior, 1 Newb. 176; The E. A. Barnard, 2 Fed. Rep. 712, 721, 722, aud cases

* To appear in 56 Vermont Reports.

that B, was the depositor, and so treated him. C. had no in all cases of trust, what the trustee shall do with the knowledge of the transaction. Held,

money. The provision that a part or the whole shall 1. There was no delivery, no acceptance, and therefore the be subject to the use and call of the donor during his deposit could not be sustained as a gift inter vivos.

life, does not defeat the gift as to the part which re2. The bank did not hold the money as trustee for C.

mains at his decease. The donor by the transfer and 3. The donor did not declare himself a trustee, and did noth- actual delivery divests himself of the possession and

ing equivalent to that; hence there was no trust relation title, subject only to be brought back into his estate between him and the claimant.

by recall. This is the doctrine of Blanchard v. ShelAS SSUMPSIT brought in the City Court of Burling. don, 43 Vt. 512; and Barlow v. Loomis, lately deton by the executor of Sidney Barlow's will

cided in the United States Circuit Court of this disagainst the defendant, in which action Marion Cush

trict. See also Davis v. Ney, 125 Mass. 590. Whether ing was cited to appear as claimant under $ 3578, R. L.

under the authority of these cases the transaction Judgment for the plaintiff.

would have constituted a perfected gift inter viros, if By the custom of the bank, to prevent frauds in case

Barlow had delivered the deposit book to this claim of loss of deposit book, no pame of a depositor ap

ant, or some other person in trust, is not the question peared on their deposit book, but merely a number.

in the case at bar. Here there was no delivery whatOn a register, kept in the bank, these numbers were

ever. If the deposit had been made in such a way and inscribed and against each nuinber were seperate co).

with such an understanding with the bank as to place umns for the pames, residence, occupation, age and

it beyond recall or control of Barlow, then the transdate of birth of the depositor, together with such re

action might, under the authority of Howard v. Sarings marks or conditions as to the deposit as were directed

Banke, 40 Vt. 597, be upheld as a complote gift, potwithto be entered.

standing Barlow kept the deposit book. But the bill Mr. Barlow made or executed no writing in respect

of exceptions in this case fails to bring it within the to this deposit at anyłtime or on said book, or the

theory upon which that case was decided. books of the bank; nor was there any evidence that

II. Can this transaction be sustained as a trust, the he made any entry anywhere in respect to this deposit, bank being the trustee? This depends, first, on the except that some time before his death, it did not ap

relation between a depositor in a savings bank and the pear when, he wrote the initials M. C. in pencil

bank. Is it a trust relation or a debt and credit relaupon the cover of the deposit book as they now ap

tion ? pear; and these initials indicate the name of Marion

In a certain class of cases involving the question Cushing.

whether a savings bank could be taxed on its securiThe other facts are sufficiently stated in the opinion ties; and others, where the bank had become iusolof the court.

vent, and its business was being closed up by a re

ceiver, and questions arose between the rights of deRoberts & Roberts, for claimant.

positors and creditors, courts have said, that as the A. G. Safford, for certain heirs of B.

design of the Legislature in granting the charter was

to promote industry and frugality, and preserve the VEAZEY, J. I. The deposit by Barlow in the name fruits of honest toil by enabling persons to invest in a of Marion Cushing, the claimant, cannot be sustained safe and profitable manner, and contemplated no as a gift inter vivos. It was his money, and although benefit to the managers, but looked only to the securdeposited in her name, it was made payable solely to ity and advantage of the depositors, a trust of a genhimself during his life, he retaining the pass book and eral or public character was created. Stockton v. Mehaving absolute control of the deposit, and she being chanics, etc., Bank, 32 N. J. Eq. 163, is an illustrative neither a party to nor having any knowledge of the case of this kind. transaction. Where there are no conditions to a gift Savings banks are not unfrequently called trustees an acceptance may be implied; but a delivery is an in- in this class of cases; but I find no case where it is dispensable requisite in order to constitute a com- held that the relation of the bank to the depositor is a pleted gift; and as a general rule it must be such a de- pure trust relation; but on the other hand it was lately livery as terminates the donor's possession and domino decided in People v. Savings Institution, 92 N. Y. 7, ion and control of the article. "A declaration of an that the primary relation of a depositor in a savings intention to give is not a gift.” “The donor must be bank to the corporation, is that of creditor and not divested of, and the donee invested with the right of that of a beneficiary of a trust; that the deposit when property."

made becomes the property of the corporation; that Appleton, C. J., in Northrop v. Hale, 73 Me. 66: “to the depositor is a creditor for the amount of the deconstitute a donation inter vivos there must be a gift, posit, which the corporation becomes liable to pay acabsolute and irrevocable, without any reference to its cording to the terms of the contract under which it taking effect at some future period. The donor must was made; that there is nothing like a private trust bedeliver the property, and part with all present and fu- tween the corporation or its trustees and the deposi. ture dominion over it." Shepley, C. J., in Dole v. tors, in respect to the deposits. Lincoln, 31 Me. 428; Taylor v. Henry, 48 Md. 550; 2 In Ide v. Pierce, 134 Mass. 260, it was held that Kent Com. 438.

money deposited in a savings bank, unless there is an In tbis State and some others this rule has not been agreement to the contrary, becomes the property of rigidly adhered to in one class of cases, viz.: Where the bank, and the bank becomes a debtor therefor. there is a donation of money or evidence of indebted. We think this is the correct view. All the deposits are ness, like notes or bonds, and the gift is perfect in all intermingled. The bank handles and invests them in other respects, it is not defeated after the decease of its own name aud as its own funds. No deposit could the donor by a right reserved to recall a part or the be traced. The recovery of a deposit by a depositor whole of the gift during his life. Such a reservation would be by suit at law, as in this case, not by bill in is regarded as optional and personal to the donor, and chancery to enforce a trust. It is not apparent what the right expires with his life, and if not exercised, advantage could accrue to depositors from a trust rethen by his death the gift is freed from the condition lation. The managers are accountable then for their of defeasance, and the right of the donor becomes ab- administration as trustees, the same as the managers solute. It is not strictly a modification of the general or directors of a stock company are accountable to the rule; because it is, in essence, a gift in trust, absolute stockholders. and complete in respect to delivery, but providing, as Th statute, $ 3575 R. L., provides an easy method of

making a deposit a trust for another, wbich was when the notes became due he withdrew from this dein force when the deposit in question was made. posit to apply in payment of the notes a sum which If a deposit in the depositor's name does not create a left the balance of the deposit less than $400. On Autrust relation, uo more would that relation be created gust 20, 1880, Mr. Barlow, being in ordinary health, by depositing in another person's name, or making it verbally directed the treasurer to add to the said entry. payable to another's order. The claimant therefore “Payable to S. Barlow," so as to make it read as folcannot stand on the ground that the bank became a lows: “Payable to S. Barlow during his life and trustee when the deposit was made without any deo- after his death to Marion Cushing," which was done. laration of trust.

It does not appear that any thing else was ever said or III. But it is further insisted in behalf of this written by Mr. Barlow to any one in respect to this claimant, that the transaction created a trust between deposit, or his intentions in regard to it. A by-law her and Barlow; that is, that the latter held the bank printed in said pass-book provided that no deposit pass book as trustee for the claimant.

could be withdrawn without the production of this The general doctrine is now settled that a perfect book. The treasurer understood this deposit was unand completed trust is valid and enforceable, as be- der Barlow's control, and regarded and treated him tween the trustee and beneficiary, although purely as the depositor and that it was his money; and the voluntary. It is not essential that the beneficiary bank had no communication with Miss Cushing or any should have had notice. But a voluntary trust which one else in respect to it. Nothing else occurred in reis still executory, incomplete, imperfect, or promis- gard to it previous to his death. He left a will, made sory, will neither be enforced nor aided. A perfect or before this deposit, in which was this provision: “I completed trust is created where the donor makes an hereby confirm all gifts I have made or shall make to unequivocal declaration, either in writing or by parol, any of my children." Marion Cushing was a grandthat we himself holds the property in trust for pur- child, living in California. poses named. He need not in express terms declare The money deposited was Barlow's. The pass-book bimself trustee; but he must do something equivalent was the evidence of the deposit, and took the place of to it, and use expressions which have that meaning. the money in his hauds. No species of property could If the intention is to make such a transfer as would be more easily transferred or delivered. Notbing was constitute a gift, but the transaction is imperfect for said indicating an intention to hold the book in trust this purpose, the court will not hold the intended other than the direction to make said entry on the transfer to operate as a declaration of trust; “for then bank register. every imperfect instrument would be made effectual In Taylor v. Henry, 48 Md. 550, one H. deposited in a by being couverted into a perfect trust."

bank a sum of money belonging to himself, to the The act constituting the transfer must be consumn

credit of himself and his sister M., so that the account mated, and not remain incomplete or rest in mere in- was entered, “H. M. and the survivor of them, subject tention; and this is the rule whether the gift is by de- to the order of either, received $1,850." A short time livery only, or by the creation of a trust in a third after, H. drew out $50, and died in about a month, person, or in creating the donor himself a trustee. leaving the $1,800 on deposit. Held, that since H. re"An imperfect voluntary assignment will not be re- taiued the power and dominion over the money, there garded in equity as an agreement to assign for the was not a complete gift, aud the transaction did not purpose of raising a trust.”

constitute a valid declaration of trust in M.'s faIn order to render a voluntary settlement valid and effectual, as a trust, it must appear from written or Other leading cases to the same import are Mitchell oral declaration, from the nature of the transaction, v. Smith, 4 De G. J. & S. 422; Scales v. Maude, 6 De the relation of the parties and the purpose of the gift, G. M. & G. 43; Jones v. Lock, L. R., 1 Ch. App. 25; that the fiduciary relation is completely established. Heartley v. Nicholson, L. R., 19 Eq. 233; Young v. These propositions are established in uumerous cases. Young, 80 N. Y. 422. See Milroy v. Lord, 4 De G. F. & J. 261; Richards v. In Martin v. Funk, supra, cited by counsel for this Delbridge, L. R., 18 Eq. 11; Heartley v. Nicholson, L. claimant, the depositor declared at the time that R., 19 Eq. 233; Young v. Young, 80 N. Y. 4:22 (citing she wanted the account to be in trust for the many cases); Martin v. Funk, 75 id. 134; Webb's Est., plaintiff (who was so claiming it), and it was so en49 Cal. 541; Stone v. Hackett, 12 Gray, 227; 2 Pom. Eq., tered. 8996, et seq.; Urann v. Coates, 109 Mass. 581; Gerrish In Barker v. Frye, 75 Me. 29, the depositor informed v. Bank, 128 id. 159; Clark v. Clark, 108 id. 5:22; Ray the treasurer of the bank that she desired to make a v. Simmons, 11 R. I. 266; Minor v. Rogers, 40 Com. deposit for each of four grandchildren, naming B. as 512.

one of them, to which she proposed to make additions, In the light of these settled rules, and of what Bar- etc., and saying, "she wanted to do something for low did, the question is whether what he said con

the children;" and took pass books in their names, stituted a declaration of trust. As stated by Lord though subject to the order of the depositor during Cranworth in Jones v. Lock, L. R., 1 Ch. App. 25: her life-time. “The cases all turn upon the question whether what In these cases it was held that the deposit created a has been said was a declaration of trust, or an imper- valid trust, the depositors holding the pass books as fect gift."

trustees, but they differ from the case at bar: In the On the 15th day of January, 1880, Sidney Barlow de- New York case there was a plain declaration of trust; posited in the defendant bank $800, of his own money,

in the Maine case the declaration, though not of a and took therefor deposit book No. 10,973, is- trust in terms, strongly imports the intent to create sued by the bank, which he always kept and con- one. Two English cases, not cited by the claimant but trolled. No name of a depositor appeared on any de- tending to support her claim of a trust, viz. : Richardposit book, but merely a number. He directed the son v. Richardson, L. R., 3 Eq. 686, and Morgan v. treasurer to enter the name, Marion Cushing, this Malleson, L. R., 10 Eq. 475, have been repeatedly criticlaimant, on the bank register as the person in whose cised in this country and England, and are regarded name the deposit was made, and to enter, “Payable to as contrary to the doctrine settled by the weight of S. Barlow"; and this was done.

authority, and virtually overruled. In March and June following Barlow borrowed sums There is in other cases an apparent lack of harmony of money from this bank, giving his individual notes in some respects; notably as to the importance of uotherefor, and pledging this pass-book as security; and tice to the beneficiary, and as to the effect of the do


nor's retaining the custody,control and use of the fund; that suit a final decree for foreclosure and sale of but this will be found to exist more in suggestions in the mortgaged premises was made February 19, 1877. opinions than in decisions reudered.

The decree also contained the usual decree for the Our conclusion in this case is, upon what we think payment of deficiency by Short. Execution for the is the weight of authority and the souudest view, that sale of the mortgaged premises was issued April 20, the transaction did not create a trust between the 1877, and the property was sold under it November 13, claimant and Barlow.

1877. The deficiency was not ascertained until AuThese views render it unnecessary to pass upon the gust 19, 1878, when an order was made establishing it admissibility of the evidence objected to. Treating at $3,685.36, and directing that execution issue against that as properly in the case, the result arrived at is Short to collect it. Short died, as has been stated, in strengthened.

June, 1877, which was long before the deficiency was Judgment affirmed. ascertained. His administratrix, under the order of

this court to limit creditors in this cause, in August,

1877, presented to the receiver her claim, under oath, ATTORNEY'S LIEN.

to the money due on the judgment in the Circuit

Court, subject to the petitioner's claim. It is underNEW JERSEY COURT OF CHANCERY.

stood that though the receiver has paid dividends to

the creditors whose claims have been allowed, he has MIDDLESEX FREEHOLDERS V. STATE BANK.* paid none on the Short claim, but has retained the In April, 1877, one Short recovered a judgment at law against

dividends thereon in his own hands to await the ju. the defendants' receiver. He gave to his attorney a note

dicial determination of the questions which are now for his costs and professional services in that action and before me. The petitioner insists that he is entitled in a foreclosure suit then pending in this court, and to receive from the receiver the amount of the costs of agreed that the attorney should hold the judgment as col- the judgment in full, with the lawful interest thereon. lateral security for the note. Short died in June, 1877, and and also dividends at the same rate as those paid to nothing has ever been paid on account of the note. In the other creditors upon the rest of the amount of the August, 1878, the receiver obtained a decree for defici. judgment. The receiver, on the other hand, claims ency, against Short, in the foreclosure suit. Held, that that he has a right to set off so much of the decree for the attorney was entitled to receive from the receiver pay- deficiency as is necessary for the purpose, against the ment of the costs of the suit at law, in full, with interest judgment, and that under the circumstances the pefrom the date of the judgment, and that he was entitled titioner has no claim or equity superior to his. to receive the dividends on the rest of that judgment, or

The assignee of a judgment, who acquired his title so much of them as will be sufficient to pay his note and to it before the recovery of a judgment by the defendinterest, the receiver's claim to offset the decree for de- ant in the assigned judgment against the plaintiff ficiency against the judgment being disallowed.

therein, has an equity superior to such defendant's claim to set off the one judgment against the other. The agreement between debtor and creditor that the

latter shall have a claim ou a specifio fund for the payW. Strong, petitioner, in pro. pers.

ment of his debt operates as an appropriation of the A. V. Schenck, for receiver.

fund pro tanto to the payment of the debt, and as an

equitable assignment of the fund to that extent. And THE CHANCELLOR. James Short recovered a judg- the assignment of a chose in action may be by parol. ment in the Middlesex Circuit Court, April 24, 1877, In the case in hand it was agreed between Short and against the receiver of the State Bank at New Bruns- the petitioner that the latter should have a lien upon wick, for $312.99 damages, and $66.33 costs, in an ac- the judgment for the amount due him from the for. tion of assumpsit brought against him by the bank be- mer. At that time the receiver had no judgment fore the appointment of the receiver. The suit was agaiust Short, for the decree for deficiency in the pending when the receiver was appointed, and he was foreclosure suit had not the force and effect of a judgsubstituted as plaintiff. Short's judgment was upon ment at law until the time when the amount of the de. his set-off in the suit. The petitioner was his attorney ficiency was ascertained, which was not until August, in that suit.

1878. The equity of the petitioner is superior to that In May, 1877, Short gave to the petitioner, for the of the receiver. He is entitled to payment of the amount of his counsel fee ($175) and costs ($66.33) in cosis of the judgment in full, with interest thereon that suit, and his fee ($30) for his professional services from the date of the recovery of the judgment. They in a foreclosure suit brought by Joseph Fisher against are costs wbich were awarded against the receiver in a him, his note, dated the 31st of that month, for $221.33, suit prosecuted by him for the benefit of his trust, and payable at two months from date. Within a few days were payable at ouce and in full. The petitioner is after the recovery of the judgment, and before the giv- entitled to the dividends on the rest of the amount of ing of the note, it was agreed between the petitioner the judgment, or so much of them as will be suffiand Short that the former should hold the judgmert cient to pay the balance due him from Short's estate on as collateral security for his whole claim against the the note. In view of the fact that the assignment was latter (the items first mentioned), and that if he should by parol, merely, and therefore the receiver could not be able to collect the money due thereon he should re- safely recognize the petitioner's rights without the ditain the amount due him (unless he should have pre- rection of the court, no costs should be allowed to the viously received it from Short), and should pay over petitioner. to Short the balance. Short died intestate June 19,

Note.-In the King's Bench, in England, the rule is 1877. He never paid the petitioner's claim nor any

that judgment between the parties cannot be set off so thing on account of it. When the judgment was re

as to deprive the attorney of his lien for costs, Mitchcovered there was pending in this court a foreclosure

ell v. Oldfield, 4 T. R. 123; Randle v. Fuller, 6 id. 456; suit (the one before mentioned), brought by Joseph

Glaister v. Hewer, 8 id. 69; Middleton v. Hill, 1 M. & Fisber against Short, on a mortgage given by the lat

S. 240; Mellville v. Leesom, 1 E., B. & E. 324; Simpson ter to the bank and assigned by it to Fisher merely

v. Lamb, 7 E. & B. 84; see Mercer v. Graves, L. R., 7Q. for the purpose of foreclosing it in his name. In

B. 499. * 11 Stew. N. J. (Eq.) 36.

But the rule is otherwise in the Common Pleas,

ON petition and stipulation as to facts and affidavits.

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