[case of his decease (t). This gift, if the donor dies, needs not the assent of his executor; yet it shall not prevail against creditors, and is, moreover, accompanied with this implied trust, that if the donor lives, the property thereof shall revert to himself, being given only in contemplation of death or mortis causâ (u).] And, being in the nature of a legacy, this donation may be made by a husband to his wife, though an ordinary gift cannot take place directly between them in his lifetime (x). But, to render a donatio mortis causâ in any case effectual, it must be accompanied by a delivery of the chattel (y); or if it be in action and not in possession, the delivery of the instrument (such as a bond, bill, or note) by which it is secured (z); the executor or administrator of the donor being bound, in the latter case, to put the instrument in suit, for the benefit of the donee (a). Upon such delivery, too, the possession must be permanently retained by the donee; for if it be resumed by the donor, the gift is void (b). This mode of gift is said by Blackstone to have been "handed to "us from the civil lawyers, who themselves borrowed it "from the Greeks (c).”

2. An assignment, or bargain and sale of chattels

(t) See Tate v. Hilbert, 2 Ves. jun. 119; Walter v. Hodge, 2 Swanst. 99, (u) See 2 Bl. Com. 514; Snellgrove v. Baily, 3 Atk. 214; Lawson v. Lawson, 1 P. Wms. 440; Drury v. Smith, 1 P. Wms. 404; Miller v. Miller, 3 P. Wms. 358; Ward v. Turner, 2 Ves. sen. 431; Tate v. Hilbert, 2 Ves. jun. 111; Blount v. Barrow, 4 Bro. C. C. 72; Hills v. Hills, 8 Mee. & W. 401.

(x) Miller v. Miller, Lawson v. Lawson, ubi sup.

(y) Bunn v. Markham, 7 Taunt. 224; Ruddell v. Dobree, 10 Sim. 244; Farquharson v. Cave, 2 Coll. 356.

personal, may in general be made by parol, that is, either by mere writing, or by mere word of mouth (d); and does not require the solemnity of a deed, nor the delivery of possession (e). But instruments in writing are frequent, and in some cases (as will presently appear) essential; and are either in the form of a mere note or memorandum, or of a regular assignment, which last is ordinarily denominated (whether the transaction be between buyer and seller or not) a bill of sale. But in the case of goods sent from beyond the sea to a person resident in this country, the transfer of property is commonly authenticated, or (as the case may be) originally effected, by the transmission of a bill of lading, which is in its form a receipt from the captain of the vessel, to the shipper (usually termed the consignor), undertaking to deliver the goods (on payment of freight) to some person whose name is therein expressed, or endorsed thereon by the consignor; and the delivery of this instrument (independently of the actual delivery of the goods) will suffice to pass and transfer to the party so named (usually termed the consignee), or to any other person whose name he may think fit to endorse thereon, the property in such goods (f); and by the recent statute, 18 & 19 Vict. c. 111, it is now expressly provided, that every consignee and every endorsee of a bill of lading to whom the property in the goods shall pass by reason of such consignment or endorsement, shall also have transferred to him all rights of suit and be subject to the same liabilities in respect of the goods, as if the contract in the bill of lading had been made with himself (g).

(d) Perk. s. 57. See Power v. Walker, 3 M. & S. 7; Howell v. M'lvers, 4 T. R. 690; Heath v. Hall, 4 Taunt. 326.

(e) Shep. Touch. 224; Martindale v. Booth, 3 B. & Adol. 507; Com. Dig. Biens, D. 3.

(f) See Lickbarrow v. Mason, 2 T. R. 63; 1 H. Bl. 357; 6 East, 21; Thompson v. Dominy, 14 Mee. & W. 403; Meredith v. Meigh, 2 Ell. & Bl. 364.

(g) 18 & 19 Vict. c. 111, s. 1. The act however contains a proviso that

Though generally, and by the common law, a written instrument is not essential to the validity of the transfer of personal property, and it is sufficient that it be made by word of mouth, there are cases where the rule is otherwise. For, by the provisions of the Statute of Frauds, 29 Car. II. c. 3, s. 17, (explained by 9 Geo. IV. c. 14,) where there is a contract for the sale of goods to the value of 101. or upwards, and no payment or delivery is made under it, or earnest given, the contract itself is void (as will be more particularly noticed in the following chapter (i)), unless there be a memorandum or note in writing signed by the party to be charged, or by his agent lawfully authorized. And by force of several other enactments of the legislature, the solemnity of a written instrument is also required in the several cases of the transfer of ships (k), and the assignment of a patent right (1). To which we may add, that a bill of exchange or promissory note, when payable to the order of a particular person, can be assigned by him only under a written indorsement of his name.

Again, though the property in a chattel personal will pass without delivery of possession, and that not only in the case of an assignment, but even in the case of gift, when made by deed, yet [by the statute of 13 Eliz. c. 5, every grant or gift of chattels (as well as lands), with an intent to defraud creditors or others (m), shall be void as against the persons to whom such fraud would be prejudicial, (though as against the grantor himself they shall stand good and effectual,) and all persons partakers in or privy to such fraudulent grants shall forfeit the whole value of

[the goods-one moiety to the king, and another moiety to the party grieved-and also on conviction shall suffer imprisonment for half a year.] And one of the principal badges of fraud, under this statute, has always been deemed to be the retaining of the possession, by the original owner, contrary to the purport of his donation or assignment (0). Where possession, therefore, is so retained, it is primâ facie a case of fraud, entitling the creditors of the original owner to impeach the transaction; but supposing it to be consistent with the apparent object of the parties that possession should for the present be retained, as where the gift or grant is future or contingent only, the transaction is, in that case, clear from any fraudulent complexion (p).

Under this head of fraudulent dispositions of property, or those deemed by the law to be of that character, we may take occasion also to notice the antient rule, that where judgment was obtained in a court of law for a debt or damages, and a writ of execution issued against the defendant, the property in his goods was in all cases bound for satisfaction of the execution creditor [from the teste or issuing the writ (q)], and any subsequent sale by the defendant was fraudulent. Such is even now the law as between the parties; and therefore, [if a defendant dies after awarding and before the delivery of the writ, his goods are bound by it in the hands of his executors (r)]. But by the Statute of Frauds, 29 Car. II. c. 3, s. 16, it is provided, in favour of purchasers (s), that no writ of execution shall bind the property in the goods of the defendant but from the time that such writ shall be delivered to the sheriff, under-sheriff, or coroners, to be exe

(o) Twyne's case, 3 Rep. 81; Shep. Touch. 66; Read v. Blades, 5 Taunt. 212.

(p) See 1 Powell, Mortg. by Cov. 37; Edwards v. Harben, 2 T. R. 587; Martindale v. Booth, 3 B. & Ad. 498; Minshall v. Lloyd, 2 Mee. & W. 450; Reeves v. Capper, 5

Bing. N. C. 136, 138.

(q) Farrer v. Brookes, 1 Mod. 188; 8 Rep. 171; 2 Bl. Com. 447.

(r) Comb. 33; 12 Mod. 5; 7 Mod. 95; Samuel v. Duke, 6 Dowl. P. C. 536.

(s) 2 Bl. Com., ubi sup.

cuted; and now, in favour also of purchasers, another very important alteration has just been made by 19 & 20 Vict. c. 97, which provides (sect. 1), that no writ of execution or attachment against the goods of a debtor shall prejudice the title of such goods acquired by any person bonâ fide, and for a valuable consideration, before the actual seizure or attachment, provided he had not, when he acquired title, notice that such writ, or any other writ by virtue of which the goods might be seized or attached, had been delivered to and remained unexecuted in the hands of the sheriff, under-sheriff, or coroner. But on the other hand, there is also a recent enactment having in view the further protection of creditors from sales of a secret and fraudulent character. For by 17 & 18 Vict. c. 36, a bill of sale of personal chattels (t) made by the defendant in an action, whether after or before the suing out and delivering of the writ of execution, will now be void as against the plaintiff on whose behalf it is sued out and delivered, so far as regards any goods which shall be in the defendant's possession, or apparent possession, at or after the time of executing the writ, unless such bill of sale be duly filed for public inspection in the manner and within the time by this Act prescribed (u).

(t) As to the meaning of "bill of sale," and of "personal chattels," in this Act, see sect. 7.

(u) By this Aet, passed for "preventing frauds upon creditors by secret bills of sale" of "personal chattels," every "bill of sale," or a copy thereof, shall, together with such particulars as in the Act mentioned, be filed with the officer acting as clerk of the docquets and judgments in the Court of Queen's Bench, within twenty-one days after it is made or given; and otherwise shall,-as against all assignees in bankruptcy or insol. vency, or under any assignment for

the benefit of the creditors of the party; as against all persons seizing the effects comprised in the bill of sale under process from a court of law or equity; and as against every person on whose behalf the process has been issued,-be void to all intents and purposes, so far as regards the property or right to the possession of any personal chattels comprised in the bill of sale, which, at or after the time of the bankruptcy or filing the petition in insolvency or the execution of the assignment for benefit of creditors, or executing the process, and after the expiration of the twenty-one days, shall be in