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II. By judgment.

On a recovery by law in an action of trespass or trover of the value of a specific chattel, of which the possession has been acquired by tort, the title of the goods is altered by the recovery, and is transferred to the defendant; and the damages recovered are the price of the chattel so transferred by operation of law—solutio pretii emptionis loco habetur. The books either do not agree, or do not speak with precision on the point, whether the transfer takes place in contemplation of law, upon the final judgment merely, or whether the amount of the judgment must first be actually paid or recovered by execution. In Brown v. * Wotton,* Fenner, J., *388 said, that in case of trespass, after the judgment given, the property of the goods is changed, so that the former proprietor may not seize them again; and in Adams v. Broughton,b the K. B. declared, that the property in the goods was entirely altered by the judgment obtained in trover, and the damages recovered were the price thereof. On the other hand, the rule is stated in Jenkins" to be, that if one person recovers damages in trespass against another for taking his chattel, "by the recovery and execution done thereon," the property of the chattel is vested in the trespasser; and in the Touchstone,11 it is said, that if one recovers damages of a trespasser for taking his goods, the law gives him the property of the goods, "because he hath paid for them." The rule in the civil law was, that when the wrongful possessor of moveable property, who was not in a condition to restore it, had been condemned in damages, and had paid the same to the original proprietor, he became possessed of the title. The Roman and the French law speak of the change of rights as depending upon the pay

• Cro. J. 73.

» Andrew's Rep. 18. S. C. Str. 1078.

Jenk. Cent. case 68. p. 189.

Shep. Touch. tit. Gift.

inent of the estimated value.* So, also, in the modern case of Drake v. Mitchellb Lord Ellenborough observed, that he always understood the principle of transit in rem judicatam to relate only to the particular cause of action in which the judgment was recovered, operating as a change of remedy, from its being of a higher nature than before; and that a judgment recovered in any form of action, was still but a security for the original cause of action, until it was made productive in satisfaction to the party; and until then it would not operate to change any

other collateral concurrent remedy which the party *389 might "have. This is the more reasonable, if not

the more authoritative conclusion on the question0

* Dig. 6.1. 35. 63. Pothier, Traite Droit de Propricte, No. 3G4. Merlin, Repertoire, vol. 13. p. 34. Verbo. Pret. b 3 East's Rep. 251.

• It remains a vexed question, by reason of loose or contradictory decisions in the books, whether a recovery by judgment in trespass or trover of the value of a chattel, does, by implication of law, per se, amount to .i transfer of title to the defendant, or those who held under him, without payment or satisfaction of the judgment. In Smith v. Gibson, Cas. temp. Hard. 303, Lord Hardwicke said, that if the plaintiff recovers damages for a thing, it is as a sale of a thing to the defendant, which vests the property in him, and it is a bar to another action for the same thing. The plea in that case, to which the remark applied, was, that the damages given were recovered in full satisfaction of the damages sustained. In Moor v. Watts, I Lord Raym. 614, Lord Holt is made to say that in replevin for cattle with adhunc detinet, damages given for the cattle will change the property. In the same case, as reported in 12 Mod. Rep. 428, he says, that in replevin for cattle with an adhunc detinet, and judgment for damages against the defendant, by payment thereof, the property of the distress vests in him. The American cases leave the law in equal uncertainty. In Curtis v. Groat, 6 Johns. Rep. 168, Osterhout v. Roberts, 8 Cawen's Rep. 43, Prentiss, J., in Sanderson v. Caldwell, 2 Aik. Rep. 203, Jones v. M'Neil, 2 Bailey's S. C. Rep. 466, and Walker v. Farnsworth, Sup. Court of Tennessee, September, 1844, the doctrine is, that a recovery in damages of the value of a specific chattel does not, of itself, work a change of title, and transfer it to the defendant, or his vendee, without satisfaction of the value found. This is the better doctrine, property does not pass by the judgment, but only by satisfaction of the judgment; so it is adjudged in Sharp v. Gray, 5 B. Monroe, 4, that a judgment in detinue without satisfaction, III. By insol»ency.

It has been found necessary, in governments which authorize personal arrest and imprisonment for debt to interpose and provide relief for the debtor in cases of inevitable misfortune; and this has been particularly the case in respect to insolvent merchants, who are obliged, by the habits, the pursuits, and the enterprizing nature of trade, to give and receive credit, and encounter extraordinary hazards. Bankrupt and insolvent laws are intended to secure the application of the effects of the debtor to the payment of his debts, and then to relieve him from the weight of them.*

does not change the right of property. On the other, hand it is declared in Morrell v. Johnson, 1 Hen. $ Munf. 449, Floyd v. Brown, 1 Rawle's Rep. 121, Marsh v. Pier, 4 Ibid. 273, Fox v. The Northern Liberties, 3 Watts Sf Serg. 107, Rogers, J., in Merrick Estate, 5 Watts Serg. 17, Rogers v. Moore, 1 Rice's S. C. Rep. 60, and Carlisle v. Burley, 3 Greenleaf's Rep. 250, that a recovery of the value of a chattel, by judgment, divests the plaintiff of his title, and transfers it to the defendant, though the judgment be not satisfied, and bars him from asserting his title in any other action. In the Am. Law Mag. los April, 1844, there is an able discussion of the authorities and of the legal principles applicable to the question of the "transfer of personal property by judgment," and in King v. Hoare, 11 Mees. $ TV. 494, it was adjudged, after a full discussion, that a judgment against one of two joint debtors is a bar, against the other. It is otherwise where the debt is joint and seeeral. The right given by the judgment without satisfaction, merges the inferior remedy by action fo r the same debt, and the same result follows in tort. The same principle of law was declared in Ward v. Johnson, 13 Mass. R. 148, Smith v. Black, 9 Serg. $ Rawle. R. 142, and Robertson v. Smith, 18 Johnson, 454. If one defendant in a joint contract and action, can plead a sufficient bar as it respects himself, it will avail the other defendant, whereas in the case of a joint and seeeral contract, an unsatisfied judgment against one of the debtors is no bar to d subsequent action against the other. The case in the Supreme Court of the United States, in Sheeby v. Mandeville, 6 Cranch R. 253, may be considered as having been completely overruled by our American authorities, long before the same decision against it was made in the English Court of Exchequer. See Trafton v. United States, 3 Story's R. 616, confirmation of the case of King v. Hoare.

• Insolvency means the condition of a person unable to pay his debts as they fall due, or in the usual course of trade and business. Deeds of compo sitions with creditors frequently avoid the necessity of a resort to dis

(1.) The constitution of the United States gave to congress the power to establish uniform laws on the subject of bankruptcies throughout the United States. Bankruptcy in the English law has, by long and settled usage, received an appropriate meaning, and has been considered to be applicable only to unfortunate traders, or persons who get their livelihood by buying and selling for gain, and who do certain acts which afford evidence of

an intention to avoid payment of their debts.* *390 *The general principle that pervades the English bankrupt system, is equality among creditors who have not previously and duly procured some legal lien upon the estate of the bankrupt; and in order to attain and preserve that equality, the bankrupt's estate, as soon as an act of bankruptcy is committed, becomes a common fund for the payment of his debts, and he loses

charges under bankrupt and insolvent laws. By these contracts, the creditors agree to accept a composition for their debts, on a part of the whole, and discharge the debtor. They hare been termed private bankruptcies, without the advantages attending a regular commission; but if they are made fairly, and in good faith, and strictly conducted, they are valid in equity and beneficial to all parties. See the case of Ex parte Vere, and note Ibid. 19 Vesey, 93. A creditor who does not agree with other creditors to a composition is not bound; but if he does consent, an agreement in derogation of the composition is fraudulent in respect to the other creditors, and void. The composition binds him to good faith. Greenwood v. Ledbetter, 12 Price's Exch. Rep. 183. Acker v. Phoenix, 4 Paige's Rep. 305. Jackman v. Mitchell, 13 Vesey, 581. Ex parte Sadler & Jackson, 15 Ibid. 52. Leicester v. Rose, 4 East's Rep. 372. Browne v. Stackpolc, 9 N. H. Rep. 478. See a collection of all the modem cases on the subject, Petersdorf's Abr. vol. vi. tit. Comp. with Creditors, and to the notes added to the case of Cumber v. Wane, 1 Str. 425, in Smith's Selection of Leading Cases, in the Law Library, N. S. vol. 27.

* 2 Blacks. Com. 285. 471. The bankrupt act of 6 Geo. IV. enlarged the description of persons subject to the bankrupt laws, and extended it to persons following the vocation of " victuallers, keepers of inns, taverns, hotels, or coffee-houses." A bankrupt means a broken up and ruined trader, according to the original signification of the term ; a person whose table or counter of business is broken up, Bancus ruptus. Story, J., in Everett v. Stone, 3 Story's Rep. 453.

the character and power of a proprietor over it.* He can no longer give any preferences among his creditors, and the race of diligence between them to gain advantages is wholly interrupted; and if the bankrupt acts fairly and candidly, he will ultimately be relieved from imprisonment, and even from the obligation of his debts. In this respect there is a marked difference in general between the bankrupt and insolvent laws, for while the bankrupt may be discharged from his debts, the insolvent debtor is usually only discharged from imprisonment. But the line of partition between bankrupt and insolvent laws is not so distinctly marked, as to enable any person to say, with positive precision, what belongs exclusively to the one, and not to the other class of laws. It is difficult to discriminate with accuracy between bankrupt and insolvent laws; and therefore a bankrupt law may contain those regulations which are generally found in insolvent laws, and an insolvent law may contain those which are common to a bankrupt law.b The legislature of the Union possesses the power of enacting bankrupt laws, and those of the states the power of enacting insolvent laws; and a state has likewise authority to pass a bankrupt law.0 But no state

* The English law carries the lien of the assignees of the bankrupt, back to the time of the act of bankruptcy committed, so that the sheriff who, on fi.fa., seizes and sells the goods of the bankrupt before the commission issued, but after the act of bankruptcy committed, and without notice of the act of bankruptcy, becomes liable in trover to the assignees, inasmuch as the assignment has relation back to the act of bankruptcy, and vests the title to the property in the assignees from that time. Cooper v. Chitty, 1 Burr. Rep. 36. Balme v. Hutton, 1 Crompton $ Meeson, 262. S. C. 9 Bingham's Rep. 471. This last decision was made in the exchequer chamber, after a very able and learned discussion, and the rulo was considered as settled, as it had been uniformly recognized and acted upon, ever since the decision under Lord Mansfield.

» Marshall, Ch. J., in Sturges v. Crowninshield, 4 Whcaton, 195.

• Insolvent laws, quite co-extensive with the English bankrupt system in their operations and objects, have not been unfrequent in our colonial and state legislation, and no distinction was ever attempted to be made in the same between bankruptcies and insolvencies. Story's Com. on Const. U. S.,vol. iii. p. 11.

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