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fect their title thereto, but it said parties refuse and neglect to purchase the title of C within sixty days, then C is to be released from any obligation to convey the title to said parties: Held, that such agreement is a promise for which there is no consideration, and that it can not be en. forced at law. Held, also, that such agreement, under said circumstances, is no defense to an action brought by 0 against the grantee of K to recover the possession of the real property deeded to C by H. Opinion by HORTON, C. J. -Clark v. Libbey.
ABSTRACT OF DECISIONS OF SUPREME
COURT OF TENNESSEE.
April Term, 1877.
trustee, or one claiming under him could make that de. fense, and not a stranger holding adversely to the mortgage; and the purchaser at the sale made upon said judg. ments can recover in ejectment against the purchaser at a subsequent sale made by the debtor's assignee in bank. ruptcy. Opinion by HENRY, J.-Hardwick v. Rickards et al.
INDICTMENT—CRIMINAL PRACTICE.-It is not error in a court to refuse defendant a copy of the indictment in a murder case, when the record shows that such copy had already been furnished. A plea that one of the grand jurors which returned the indictment was not a freeholder or householder in the county where the indictment was found, and that defendant was in custody when the jury was sworn and had no opportunity to challenge the juror, or the array; and a plea that the record fails to show that the county court selected the grand jurors or either of them, and that five of the eighteen were not selected by the court, and five others who had been selected were not sworn on the jury, or discharged by the court, are not good pleas in abatement. State v. Welch, 33 Mo. 33; State v. Blakey, 18 Mo. 428; State v. Connell, 49 Mo. 282. The dec. laration of a little girl, nine years of age, made after the killing, and in presence of the body of deceased, that “ Mr. Long (the deceased) had a knife in his hand,” is inadmis. sible on the trial of defendant. It is not res gestae, and the child is a competent witness. Where the jury boarded at the house when the homicide was committed, and were seen looking at the ground on which it occurred, this was no misconduct on the part of the jury, there being no evi. dence offered to show that they were looking at the ground with a view of understanding how the killing was done, nor that they conversed among themselves in regard to the ground. Opinion by HENRY, J.-State of Missouri v. Brown.
ABSTRACT OF DECISIONS OF SUPREME
COURT OF KANSAS.
January Term, 1877.
16 D. M. VALENTINE, LAssociate Justices.
6 D. J. BREWER, S PROMISSORY NOTE - WHAT IS SUFFICIENT NOTICE OF PROTEST.-Before an indorser can be held upon a note, it must appear that sufficient notice of protest was duly served upon him; and a finding that a notice, the contents of which are unknown, was served is not equivalent to a finding that a notice of protest, much less a sufficient notice of protest, was served. Opinion by BREWER, J.-Couch v. Sherrill.
TAX LEVY-EXCESSIVE-EFFECT OF SUBSEQUENT ACT. -1. Where the county commissioners of Sedgwick County, in levying taxes for the year 1874, levied for current ex. penses a tax of one per cent., which tax was all that they had any power to levy during that year for that purpose, and then, in addition to said tax, and apparently without any authority, they levied another tax of eight mills on the dollar to meet a deficit in the county revenue of the preceding year; Held, that the levy of said eight-mill tax was and is illegal and void. 2. Afterwards, on March 6. 1875, the legislature passed an act entitled "An act to legalize a cer. tain levy of taxes," which act provides “that all levies of taxes heretofore made by the board of county commission. ers of Sedgwick County, Kansas, in the year 1874, be and the same are hereby legalized.” Laws of 1876, p. 6. Held. that said act does not make valid said eight-mill tax; that even after the passage of said act said eight-mill tax is not sustained or upheld by any law which distinctly states the object of the tax. Constitution, art. 2, sec. 4. Opinion by VALENTINE, J.-A., T. & S. F. R. R. v. Woodcock.
VOID DEED - CONSIDERATION FOR AGREEMENT. - 1. Where H, a councilman and head man of the Ottawa In. dians, makes a warranty deed to K, for $1,300, to certain lands patented to H under the first clause of article 3 of the treaty with said Indians, proclaimed July 28th, 1862, which deed is null and void at the time of its execution, and the said H, after he has become a citizen of the United States by the terms of the treaty, executes a quit-claim deed to C of the same land for the consideration of $200, and thereafter delivers to H, voluntarily and without any consideration, a written agreement to the effect that he will notify certain parties, who claim to have title to said lands from H, that he has the same, and that he will offer to per
HON. JAMES W. DEADERICK, Chief Justice.
Justices. " J. L. T. SNEED, CHANCERY PRACTICE-ASSIGNEE PENDENTE LITE.-An assignee, pendente lite, of the whole of the complainants claim in suit, is not a necessary party, and no notice of the assignment need be taken by the chancery court or the parties. Citing Story's Eq. Pl., $ 156. Opionion by DEADERICK, C. J.-Wills v. Whitmore.
APPEAL - CHANCERY PRACTICE. - The appeal of a part of the defendants in a chancery cause does not bring up the cause as to other defendants, whose interests are distinct. Citing and following Young v. Young, (MS.), April term, 1874. Opinion by MCFARLAND, J.--Nelson e. Trigg.
ADMINISTRATION-SITUS OF PERSONALTY.-An executor or administrator acquires, by his qualification in Tennessee, no right to personalty situated in another state; and if he bring such assets into Tennessee, his sureties there are not liable therefor. Opinion by MCFARLAND, J. - Nelson e. Trigg.
REBELLION-BELLIGERENT RIGHTS-VOID CONTRACT.A contract made July 5, 1864, between R., a citizen of Missouri, and T., a citizen of Louisiana, for the sale of cotton by T. to R., was null and void by reason of the war then flagrant; and a mortgage given contemporaneously by T. to R., to secure the delivery of the cotton, or the refunding of the money paid therefor, is also void. Opinion by MCFARLAND, J.-Ruby v. Trigg.
ADMINISTRATION-REAL ASSETS-DOWER-DESCENT.1. The widow of an heir or devisee of realty can not have dower in such realty, where the creditors of the ancestor have instituted proceedings against it, as assets, before the death of the heir. The filing of a bill to reach lands as 48sets for the payment of debts makes them such assets. 2. Semble, that until the debts of the ancestor are in fact paid, the heir or devisee of the realty does not so far become owner thereof as to give his widow dower therein. Opinion by MCFARLAND, J.-Nelson v. Trigg.
MUNICIPAL TAXES - RECOVERY OF, WHEN ILLEGALLY EXACTED - CONFLICT OF JURISDICTION.-1. Municipal taxes, illegally exacted, may be recovered back by the tax. payer, if the municipal corporation acknowledged the same as a debt for which it is liable. 2. But the tax payer will not, by the state courts, be allowed to set of such debt
nst a renewed assessment for the same tax, ordered to be collected in cash by the corporation, by a mandamos from the United States Circuit Court, even though the cor poration be insolvent. Opinion by DEADERICK, C. J.Lea v. City of Memphis.
DECEIT-BANK-CASHIER.-1. The essence of the liabil. ity of the defendant, in an action of deceit by representations as to the solvency of another, by reliance on which the plaintiff was injured, is the purpose to influence the action of the latter by such representations, regardless of their truth. 2. It is questionable, it it would be the duty of the defandant to notify the plaintiff in case of a change in circumstances as to the third party's solvency, where all reside in the same town or city. 3. A bank is not liable for the act of its cashier in making such representations, un. less it has authorized him to do such acts. Citing Barwick v. Eng. Joint Stock Co., 2 Law Rep. 265; Swift v. Jewsbury, Law Rep. (1874) 314. Opinion by FREEMAN, J.-Horrigan s. First National Bank of Memphis.
The Central Law Journal.
SAINT LOUIS, JUNE 8, 1877.
THE fiendish attempts to wreck passenger trains for the sake of plunder, which are occasionally brought to light, seem to be on the increase. At the beginning of the present week a train was thrown from the track in this state, causing the death of three persons, and the condition of the track showed that it must have been the result of design. An unsuccessful attempt of the same kind was made last week in New Jersey. In Canada, at the present time, three men are awaiting trial for wrecking an express train and causing the death of the engineer and severe injuries to a number of the passengers. Where death ensues as the result of such a diabolical plot, the crime is murder, and herein the law is satisfactory. Whether, considering the number of lives at stake and the enormity of the offense, the attempt to throw a train off the track, for the sake of plunder or revenge, is as severely punished under our laws as it should be, we leave to the consideration of our legislators.
known to our ancestors." The Solicitors' Journal recalls a former chancellor's advice to judges, which it thinks must have passed out of memory in modern judicial quarters: “Patience and grayity of bearing,” says Bacon in one of his essays, “is an essential part of justice; and an overspeaking judge is no well-tuned cymbal. It is no grace to a judge first to find that which he ought to have heard in due time from the bar; or to show quickness of conceit in cutting off evidence or counsel too short, or to prevent information by questions, though pertinent. The parts of a judge in hearing are four,--to direct the evidence; to moderate length, repetition, or impertinency of speech; to recapitulate, select, and collate the material points of that which hath been said; and to give the rule of sentence. Whatsoever is above these is too much, and proceedeth either of glory and willingness to speak, or of impatience to hear, or of shortness of memory, or of want of a stayed and equal attention. Let not the counsel at the bar chop with the judge, nor wind himself into handling of the cause anew after the judge hath declared his sentence; but on the other side, let not the judge meet the cause half way, nor give occasion to the party to say his counsel or proofs were not heard.” The Law Times is of opinion that the reporters have a very responsible duty to perform in preventing reckless conversation from the bench from reaching the public eye.
AN instrument which does not show upon its
1. WE HAVE received a number of inquiries from face that it is valid for the purpose for which it
lawyers and others in regard to the following was created, it is held in Roode v. The State,
paragraph, which has been going the rounds of 5 Neb. 174, can not be the subject of forgery if
the country press: not genuine. The defendant was indicted for the
Judge Field, of the United States Supreme Court, forgery of a deed of conveyance which did not
decided not long since that legal notices required by contain the statutory acknowledgment by the
law to be printed in certain localities could not be wife of the grantor, as required by the laws of published in a paper having a patent outside. The the state in which it purported to have been made. law required that notice of surveys should be printed The court held that, the instrument being void on
in the paper nearest the land; and a notice was pubits face, he could not be convicted of the forgery.
lished in a paper, one side of which was printed in
San Francisco, when the land was near Santa Barbara, In People v. Galloway, 17 Wend. 541, it is said of the
which, the judge held, did not satisfy the law. He statute in relation to forgery, that it was made
said a paper was published from the office at which to protect men in the enjoyment of their property, it was first printed for circulation, no matter where it and, if the instrument can by no possibility preju was sent afterward to be distributed. dice any one in relation to his estate, it will not We understand that some such a decision was be an offense within the statute." In Jones & rendered by Judge Field at circuit; but at the Palmer's Case, 1 Leach, 405, Baron Egre said that present writing we have not seen the decision, and an instrument, to be the subject of forgery, must have no means of knowing its exact scope. This
purport on the face of it to be good and valid much we feel warranted, however, in saying; that for the purpose for which it was created.” See the newspapers who do not use what are termed also on this point, King v. Moffat, 2 Leach, 483; “ patent outsides,” deceive themselves if they Smith v. Hunt, 13 Ohio St. 260; Carney v. Hop think the courts of the country are going to lay ple's Heirs, 17 Ohio St. 39; Perdue v. Aldridge, down such a principle. The ruling which Judge 19 Ma. 290.
Field is said to have rendered may have been a
correct one under the statute which governed that The English law journals are severely criticising particular case; but it certainly would not be good a growing habit in the judges of that country, of under the statute of this state. If a newspaper is interrupting counsel during the course of their ar published within a particular county, that is, isguments, and making comments upon the acts and sued from a post-office within that county for cirsayings of other judges and courts. “No case is culation, and if that part of such a paper which heard in the present day," says the Law Times, relates to local affairs is collected and edited there, “ without an amount of judicial interposition un- it can make no possible difference that one side of
Vol. 4.- No. 23.
the paper was printed outside of the county, as, L A PERSON who has no interest in another's life for instance, in St. Louis or Chicago. Papers thus can not purchase or take by assignment an inprinted are superior in all respects to the ordinary surance policy on such life. It is against public country newspapers which are got up entirely at policy, and not authorized by law. This principle home, and, being superior, they are able to com has been recently applied by the Supreme Court mand a larger circulation, and are better mediums of Kansas to the case of The Missouri Valley Life for the publication of legal notices. The Attorney- | Insurance Company v. Sturges. The facts of the General of Missouri has, we understand, given an case, so far as it is necessary to state them, opinion, that the publication of a legal notice were substantially as follows: On March 16th, within a paper printed upon a patent outside is a 1870, one Haynes procured from the defendgood publication; and, unless there is something ant an insurance policy on his own life for peculiar in the statute, to suppose that the courts the sum of $2,000. The premiums were made will hold otherwise, is to assume that they will payable quarterly on the 16th days of March, divest themselves of common sense, and shut their June, September and December of each year eyes to the progress of the age.
during the continuance of said policy, and the
amount of each premium was $57.58. On May A NEW ZEALAND court was recently rather 8th, 1872, Haynes assigned said policy to the puzzled by the following combination of circum plaintiff Sturges, who had no interest in the stances: One McKay was charged before a magis- life of Haynes. The insurance company assented trate with rape. The evidence of the prosecutrix to said assignment. The plaintiff Sturges afterand her witnesses established the commission of wards paid the premiums on said policy. On the offense. The prisoner being remanded for a January 30th, 1873, Haynes died, and Sturges few days, on his being again brought before the brought action against the company on the policy. magistrate, it was found that since the previous The court held that he could not recover. In the examination of the witnesses he had married the case of Ruse v. The M. B. L. Ins. Co., 23 N. Y. prosecutrix. He was, however, committed for 516, it is said, that “a policy obtained by a party trial to the ensuing sittings of the supreme court. who has no interest in the subject of insurance is The assize judge, in charging the grand jury, a mere wager policy;” and “policies without infound great difficulty in deciding whether or not terest, upon lives, are more pernicious and danthe case should go to the jury for the purpose of gerous than any other class of wager policies; their finding a bill. Though subsequent assent because temptations to tamper with life are more would, he thought, be very strong evidence that mischievous than incitements to mere pecuniary she was not altogether unwilling in the first in- | frauds." Mr. May says, in his work on Instance, still, if the crime had been committed, the surance, that “all the objections that exist fact that the woman had forgiven it and married against issuing a policy to one•upon the life of the offender could not do away with the crime. another, in whose life the former has no insurable The crime had been committed against the public, interest, exist against his holding such policy by and it was not in the power of a private person mere purchase and assignment from another. In to condone it. A murdered man, in his dying either case the holder of such policy is interested moments, may forgive his murderer; but the mur in the death, rather than in the life, of the insured. derer, if convicted, will be hanged notwithstand The policy of the law forbids such speculations ing. Another difficulty presented itself in regard based on the continuance of human life. It will to the evidence. The common-law rule is, that not uphold a practice which incites danger to life, neither husband nor wife are competent witnesses and it substantially declares that no one shall have for or against each other in criminal cases; but it any claim under a policy upon the life of another, has been held that the wife is a competent witness in whose life he had no insurable interest at the against her husband in respect of any charge that time he acquired the policy, whether the policy be affects her liberty or person. The peculiarity here issued to him directly from the insurer, or whether was, the marriage occurred subsequently to the he acquired the policy by purchase and assignoffense. The case most nearly resembling it was ment from another. If he may purchase a policy where a woman had been forcibly carried away on the life of another, in whose life he has no and married. “There the better opinion seems to interest, as a mere speculation, the door is open to be that, notwithstanding the marriage is valid, and the same practice of gambling, and the same has been ratified by subsequent cohabitation, the temptation is held out to the purchaser of the wife is a competent witness. Lord Hale, however, 1 policy to bring about the event insured against, as in such a case, was of opinion that, had the woman if the policy had been issued directly. It is, in lived with the man for any considerable time, and fact, an attempt to do indirectly what the law will assented to the marriage by a free cohabitation, not permit to be done directly." There are a she should not be admitted as a witness against large number of cases holding that, in order to her husband. After a lengthy consideration of the enable any person to procure an insurance policy case, and having examined the wife on the voir ! on the life of another, such person must have an dire, the judge held that her evidence was inad insurable interest in the life of such other; and it missible, and the prisoner was thereupon dis has even been held that such interest must, in charged.
some sense. be pecuniary, and not founded merely
upon relationship. Guardian Mutual Life Ins. Co. THE LIEN OF A TAX AGAINST REALTY v. Patrick Hogan, Supreme Court of Illinois,
AND PERSONALTY. 3 Cent. L. J. 817. In this case the policy was
Is a tax assessed against an individual or a corissued to John Hogan, on his own life, for the
poration in respect of personal property a lien benefit of his son, Patrick Hogan, who had no
upon such property, without the aid of an express pecuniary interest in his father's life, and it was
statute or constitutional provision making it such? therefore held that the son had no insurable
And if so, is it a lien which is paramount to all interest in his father's life, and therefore that he
other liens of private persons or corporations, irrecould not recover on the policy after his father's
spective of the date at which it attaches? An examdeath. The case of The Franklin Insurance Co.
ination of the adjudicated cases bearing upon this v. Hazzard, 41 Ind. 116, is identical with the case
question will, we think, show that, while the weight at bar, in all its essential particulars. In that case
of authority is that a tax is not a lien even upon Cone procured an insurance policy on his own
real property without the aid of an express statute life, and then, with the consent of the company,
or constitutional provision making it so, there are assigned said policy to Hazzard, who had no in
cases to be found in conflict with this principle. terest in Cone's life. The court held that Hazzard
But an extensive and diligent search through the could not recoyer on the policy after Cone's death.
English and American cases shows that no such
doctrine in respect to the character of a tax laid THE court also referred to the case of The State v. Winner, decided by it at a previous term, and not
upon personalty, has ever been suggested. yet reported. The facts which were disclosed there
The fact that many statutes, both in England sufficiently show the wisdom of the rule adopted
and the United States, declare taxes to be a llen by the courts in these cases. Two persons, named
upon property, real and personal, in particular
cases, would seem to indicate that taxes do not respectively McNutt and Winner, in pursuance of
constitute such a lien at common law. Several a previous design and arrangement, procured an
excise acts in England, such as the 7th and 8th insurance policy on the life of McNutt for the sum of $5,000, in the Metropolitan Life Insurance
Geo. IV., cap. 53, and 3 Geo. IV, cap. 95, $ 10, Company, and then, in order to make it appear
gave the king a lien upon the goods and chattels that McNutt had been subsequently murdered by
of the subject for the payment of his duties; but robbers, and thereby that the insurance money
where no such statute existed, the English books had become due, killed one Seiver, on December
contain many cases where the king's debt gave 25th, 1873, at Wichita, Kansas. Seiver arrived at
way before the subject's lien, and where the subWichita about the midnight of December 24th of
ject's prior lien ousted the subsequent lien of the the year last named, to work for Winner and Mc
king. In these cases the debts in question were Nutt, who were then partners in the painting busi
not the king's private debts, but portions of the ness at Wichita. The last-named parties met him at
public revenue. It is true that the king had, in the train, took him immediately to their rooms, and,
certain instances, in the collection of his debts a after having stupefied him with whisky and lauda
right of preference over the subjcct; but in modern
times the king's own court of revenue, the Court num, set the building on fire and burned him to death, and so burned the body that it was past
of Exchequer, had limited his prerogative until it recognition. This was done so as to lead people
was confined merely to this ;-that if the king's to believe that McNutt had been killed, and that
execution and the subject's execution came into the lifeless body of Seiver was that of MeNutt.
the hands of the same sheriff, the king's execution McNutt immediately left the state secretly, and
should be preferred, and the king should be first went to an obscure village in Ray County, Mo.,
paid out of the money made by the sale of the and there shaved off all his whiskers, colored his
debtor's goods, unless the goods had been sold hair, and changed his name, so as to be unknown.
under the subject's execution before the king's Winner remained at Wichita, and gave out that
execution reached the hands of the sheriff. Rex. McNutt and himself were alone in their rooms on
v. Stoper, 1 Price, 614; Butler v. Butler, 1 East, the night of the 25th of said December; that they
238; Swain v. Morland, 1 B. & B. 37; s. C. 3 were there attacked by robbers; that he (Winner)
Moore, 740. But the reports of the Court of Exwas badly injured and McNutt killed, and that the
chequer contain many cases in which the king's lifeless body found in the burning building was
extent, the writ by which the debts of the Crown that of his partner McNutt. Afterwards both of
were levied upon the property of the subject,-was the parties were arrested, and in 1874 were con
postponed to liens raised by contract or by the victed of murder in the first degree, for the homi
operation of the common law in favor of the subcide of Seiver. Winner took an appeal to the
ject. Thus, an equitable mortgage, created by the Supreme Court of Kansas, and, at the July term
delivery of title-deeds, created a lien which was of the court for 1876, the judgment was affirmed.
preferred before the debt of the Crown, although Both MeNutt and Winner are now confined, under
the king's debt accrued in consequence of the sentence of death, in the penitentiary of the State
mortgagor having been a defaulter in the collecof Kansas.
tion of the king's revenue. Casberd v. The At
torney-General, 6 Price, 411. “If,” said Lord THE vacancies in the Federal Courts, caused by the death of Judge Emmons and the resignation of Judge Davis, are !
Chief Baron Richards, in delivering the judgment still unfilled.
of the court in this case, “we find that the plaintiffs are equitable mortgagees, of course they are law of which is perfectly clear. It is plain he has entitled to be paid before the Crown, if their title is a double security-the personal security against in point of time superior to that of the Crown." the bankrupt (Emerson), and the more substantial
In the King v. Smith, Wightwick, 34, decided security of the actual possession of the goods. in the Court of Exchequer in 1810, the question Shall it be said, then, that the Crown, by virtue of arose and was twice argued, whether a simple any privilege, shall be enabled to take from this contract-debt of the Crown would bind the lands | man his better security, namely, these goods, and of the debtor in the hands of a bona fide purchaser drive him to the doubtful security of a claim without notice of the king's debt and without fraud against a ruined man? It would be a downright or covin. The question arose on an extent and in- | act of injustice, and I hope I have the concurrence quisition thereunder against Col. Loft, who had of the rest of the court in saying so." So in King received from the king's paymaster-general a v. Lee, 6 Price, 369 (Court of Exchequer, 1819), it large sum of money for his levy of troops, and was distinctly decided that factors, to whom goods who had pocketed it. “The question which arises had been sent for sale and who had accepted bills on these pleadings," said Lord Chief Baron Mc of exchange drawn on them by their principal to Donald, “was stated fairly and explicitly to be, the amount of their value, had a lien on such goods whether a simple contract-debt is such a lien or and their purchase-money, available against the charge upon the estate of the king's debtor as shall Crown, where the goods or money had been seized bind his lands in the hands of his assignee for a by the sheriff under an extent against the princivaluable consideration, without notice and without pal for å debt due to the Crown. A somewhat fraud, the debt not having been recorded till after the singular illustration of the doctrine that the king's conveyance." And after an extended review of the title was, under an extent, merely a derivative precedents bearing upon the question, it was held title from that of his debtor, is afforded by the that it was not, and judgment was accordingly | case of King v. Tapping, McClel. & Younge, 544. given against the king. So in the case of Rex v. | A lease contained a clause of re-entry in case the Humphery, McClel. & Younge, 173 (Exchequer term of years granted should be extended or taken Chamber, 1820), it was declared after elaborate in execution. Before the end of the term the sherargument and great deliberation that the lien which iff entered the premises under a writ of extent a wharfinger has upon goods for arrears due him as against the lessees, at the suit of the Crown, held such wharfinger would prevail against the king's an inquisition and seized the lessees' interest in extent. The court was “clear of all kind of doubt” | the land. It was held, first, that this proceeding upon the question. “ The Crown in this instance,” | was a taking in execution within the latter clause said Graham, B., “has no means of coming at of the conditions of the lease, and that the term these goods but from Emerson (the defendant), was thereby determined, and forfeited to the lesand Emerson, having placed the goods with his sor, and second, that, though the Crown had a lien wharfinger, could by no possibility get at them which would attach from the teste of the extent, it without paying the general balance. The Crown, was only commensurate with the interest of its by virtue of its extent, succeeded to the interest of debtors, and this interest having been determined Emerson. The utmost length to which you can by the taking in execution the Crown's title was carry its right is to consider that the interest of the determined by the same event. debtor had been assigned to it; that is always the The cases where the subject's lien prevailed assumption that is made in these extents; the over the debt of the king were, of course, cases of deed is considered as quasi assigned. Then, is not bona fide liens. Where fraud intervened, or where the necessary consequence of the Crown standing the person claiming the lien had been guilty of a in the place of the debtor this,—that it can have clear violation of duty, and was therefore unable nothing more than he had? You can not carry a to come into court with clean hands, he was not stream higher than its fountain-head. You can allowed to set up his lien against the king. Such not make a derivative title mount higher than the was the case of Broughton v. Davis, 1 Price, 216, title from which it is derived; and the Crown can where the king was allowed a preference over have nothing more assigned to it than what Emerson an equitable mortgagee expressly upon these (the debtor) had the power of assigning. What is grounds. that? His interest in the goods subject to Humph From the American decisions on the question, ery's claim. The Crown had the right of taking whether a tax assessed in respect of real property these goods out of the wharfinger's possession on is a lien upon such property paramount to all terms of paying him his balance. It is the duty other liens, without the aid of a statute, but little of a court of justice to advise the king to do what aid can be derived. The common law places real is just and right. * * * Now it would appear property in this respect upon an entirely different to me to be a perfect injustice to decide against footing from personal property, A judgment at this defendant; for what was the situation of common law was a lien which bound the debtor's Humphery (the wharfiinger) before this extent realty. United States v. Morrison, 4 Pet. 124; issued? He had a double security; he had the Barton v. Smith, 13 Pet. 479; Taylor v. Thomppersonal claim against Emerson, and, what is in- son, 5 Pet. 358; Massingill v. Downs, 7 How, 760. finitely better, a security by pledge; for I can not But it has no such effect upon the debtor's goods. distinguish this case from that of a pledge, the Rankin v. Scott, 12 Wheat. 179. So the assess