Page images
PDF
EPUB

CHAPTER IV.

OF TITLE BY GIFT; AND BY ASSIGNMENT.

THE property in things personal is transferable with absolute freedom; and in the case of any absolute assignment which should be expressed to be subject to a prohibition against any further subsequent assignment of the property, the prohibition would be void, both as being repugnant to the gift itself, and as being against the policy of the law (a).

There are some cases, however, where the right of disposal is, in respect of the incapacity of the owner, suspended; as to which it will be sufficient in this place to remark, that the law relating to the disability of infants, insane persons, and persons under duress, applies in general to personal as well as to real property (b). In cases where the old law, as existing previous to the Married Women's Property Acts, 1870 and 1882, still applies, a married woman, also, may still be under an incapacity to alienate things personal, as well as things real, except, of course, where the property belongs to her for her separate use. There are also some few cases where, in respect of the nature of the interest itself, its transfer is absolutely prohibited; e.g., the pay or half-pay of a military or naval officer, or the salary attached to any public office of trust, which are, on grounds of public policy, not assignable, the object being to secure to such persons, even against their own improvidence, the posses

(a) Co. Litt. 223 a; Brandon v. Robinson (1812), 18 Ves. 429.

(b) Vide supra, bk. II., pt. 1., ch. xv.

sion of the means which are essential to the due performance of the duties of their station (e), while they either are engaged in, or are liable to be recalled to, the exercise of such duties (d). So, also, and partly for the like reason, the assignment of alimony is illegal (e) ; and the assignment or sale of a public appointment is contrary to the policy of the law, and is prohibited in most cases by express enactments of the legislature (ƒ ).

And as regards property in futuro, e.g., goods not yet manufactured, or goods and machinery not yet (but which may hereafter be) brought upon any specified premises, these used not to be assignable at law. But in equity the purported assignment of them was deemed a contract to assign them, which contract (when for value) was considered as being (in effect) performed, and so the assignment was deemed effectual in equity. And since the fusion of law and equity which was effected by the Judicature Act, 1873, such assignments of property in futuro appear to be effectual in all respects, except where conflicting with the Bills of Sale Acts as hereinafter mentioned (g). As regards choses in action, these also were, by the strict rule of the old common law, incapable of being assigned, but in equity they were assignable, subject to certain conditions, and are now, generally speaking, transferable legally under the Judicature Act, 1873. This subject is, however, more fully dealt with later on in this work (h).

A transfer inter vivos of personal property may be either (1) gratuitous, in which case it is usually called a

(e) Apthorpe v. Apthorpe (1887), 12 P. D. 192.

(d) Lucas V. Harris (1887), 18 Q. B. D. 127.

(e) In

re Robinson (1884), 27 Ch. D. 160; Linton v. Linton (1880), 15 Q. B. D. 239.

(f) 5 & 6 Edw. 6, c. 16; 49 Geo. 3, c. 126; 6 Geo. 4, cc. 82, 83.

(g) Bac. Max. Reg. 14; Holroyd v. Marshall (1864), 10 H. L. C. 191; Tailby v. Official Receiver (1888), L. R. 13 App. Ca. 523. (h) See post, ch. 5, s. 12.

gift; or (2) not gratuitous, but for value, in which latter. case, it is an assignment properly so called.

1. A GIFT is open--particularly when made in favour of a stranger, and not a relative to some degree of suspicion (i); and, as against the creditors of the donor at the time of the donation, the gift, if in fraud of creditors, is made void by the 13 Eliz. c. 5. By the 3 Hen. VII. c. 4, a gift, made in trust to the use of the donor, had already been made void; because otherwise persons might have been tempted to commit crimes by this method of escape from the forfeiture of their goods, and because the creditors of the donor might otherwise bave been defrauded thereby of their rights (k). And even as against the donor himself, a gift, to be valid in law, must be accompanied either by the solemnity of a deed, or by delivery of possession, or it may be effectual in equity if a valid declaration of trust of the subject-matter is made in favour of the donee (1). But when the gift is once perfected, either by execution of the deed or by a complete. delivery of the thing, or by a complete declaration of trust, it is not in the donor's power to retract it, though made without any consideration or recompense, unless, indeed, he was under some legal incapacity, (such as infancy), or was drawn in, circumvented, or imposed upon by false pretences, surprise, or other unlawful inducement, to make the gift.

There are also several cases in which, owing to the donee being in a fiduciary relationship to the donor, a gift is presumed to be fraudulent and ineffectual, e.g., gifts by wards to guardians, clients to solicitors, or persons of any kind to their spiritual superiors or advisers (m).

(i) 2 Bl. Com. 144.

(k) This statute was repealed by the Statute Law Revision Act, 1863.

(1) Irons v. Smallpiece (1819), 2 B. & Ald. 552; Cochrane v.

Moore (1890), 25 Q. B. D. 57;
Kilpin v. Ratley, [1892]1 Q. B. 582.

(m) Liles v. Terry, [1895]2 Q B. 679; Allcard v. Skinner (1887), 36 Ch. D. 145; Barron v. Willis, [1899] 2 Ch. 578. See infra, p. 88.

There is also a species of gift called a donatio mortis causa, which, though made inter vivos, does not take effect. till after the death of the donor. It arises when a person in his last sickness, and apprehending his dissolution near, delivers or causes to be delivered to another the possession of any personal goods to keep in case of his decease (n). Which gift, if the donor die, needs not the assent of his executor, yet is accompanied with this implied trust or condition, that if the donor lives, the property shall revert to himself, being given only in contemplation of death or mortis causá (o); and, being in the nature of a legacy, this donation might always have been made by a husband. to his wife, though an ordinary gift inter vivos could not formerly have taken place directly between them (p). But, to render a donatio mortis causâ in any case effectual, it must be accompanied by a delivery of the chattel, or of the instrument—such as a bond or note, and the like—by which it is secured (q); and the executor or administrator of the donor is, in such a case, bound to put the instru ment in suit for the benefit of the donee (r). The gift will be revoked, even after a complete delivery, if the possession be resumed by the donor (s). On the other hand, an antecedent delivery to the donee,-although in the capacity of bailee for the donor,—would suffice, if the quality of the possession should have been sufficiently changed before the death (†).

2. An ASSIGNMENT of chattels personal may in general be made by parol, that is, either by mere writing, or simply by word of mouth (u); and (being for value) it (r) Rolls V. Pearce (1877),

(n) Tate v. Hilbert (1793), 2 Ves. jun. 111.

(0) 2 Bl. Com. 514; Hills v Hills (1841), 8 M. & W. 401. (p) Miller v. Miller (1735), 3 P. Wms. 358.

(q) Re Dillon (1890), 44 Ch. D. 76; Re Mead (1880), 15 Ch. D. 651; Re Weston, [1902] 1 Ch. 680; Re Beaumont, [1902] 1 Ch. 889.

[blocks in formation]
[blocks in formation]

does not require the solemnity of a deed, nor even the delivery of possession (a). If made in writing, it may be either in the form of a mere note or memorandum, or by a regular deed of assignment, which latter is ordinarily denominated a Bill of Sale. In the case of goods sent from abroad by ship to a person resident in this country, or vice versa, the transfer of the property therein is commonly authenticated, or (as the case may be) originally effected, by an instrument (not under seal) termed a Bill of Lading, which is in its form a receipt from the captain to the shipper (usually termed the consignor), undertaking on specified conditions to deliver the goods (on payment of freight) to some person whose name is therein expressed, or indorsed thereon by the consignor (y). The delivery of this instrument (equally with the actual delivery of the goods) will suffice to pass and transfer to the party so named (usually termed the consignee), or to his indorsee for value, the property in such goods; and that so as even to put an end to the unpaid consignor's right to stop the goods in transitu (z). And by the Bills of Lading Act, 1855, the indorsee has transferred to him all rights of suit, and is subject to the same liabilities, in respect of the goods, as if the contract in the bill of lading had been made with himself (a).

But though generally, and by the common law, personal property may be transferred without the use of writing, there are certain cases in which the statute law has required writing; for, as we shall see later on, a writing is by statute made essential to a contract for the sale of goods to the value of £10 and upwards. And for the transfer of ships, and for the assignment of a patent or of a copyright, writing is also required;

(x) Martindale v. Booth (1820), 3 B. & Ad. 507.

(y) Sanders v. Maclean (1883), 11 Q. B. D. 327.

(z) Lickbarrow v. Mason (1788),

2 T. R. 63; Gurney v. Behrend (1854), 3 E. & B. 622; Sale of Goods Act, 1893, s. 47.

(a) Sewell v. Burdick (1885), L. R. 10 App. Ca. 74.

« EelmineJätka »