issue by his wife born alive, who might by possibility inherit as her heir (v). If it be personal estate, he has a right to appropriate to himself all that he can lay hands on. Again, the real estate of the wife is guarded from alienation by the most careful provisions. Formerly the fictitious and cumbersome machinery of a fine was requisite; and now every conveyance of her real estate must be not only signed by her, but also acknowledged by her before commissioners, apart from her husband, as her own act and deed (x). Recently the same principle has been applied to the release of her equity to a settlement, and to the assignment of her reversionary interests (y). But, in all cases not within the act for these purposes, the assignment of her personal estate, if made at all, can only be made by her husband; and her concurrence or objection is quite immaterial. When personal estate consists of mere moveable articles, the nature of the property no doubt affords a sufficient reason for the difference between the laws which dispose of it, and those which regulate estates in fixed and immoveable landed property. But when personalty assumes the form of such solid investments as mortgages or consols, when it becomes like land disposable by deed rather than by delivery, the laws which affect it should rather depend on its present nature than on its past history. It seems hardly fair that a married woman should have no voice in the disposition of property of this kind Acknowledg- belonging to herself. At the same time, the present ment by wife system of taking her acknowledgment on a conveyance on conveyance of real estate. of her real estate is often found to be a burdensome expense without any practical benefit. For if a husband can persuade his wife to sign a deed, he can easily (v) See Principles of the Law of Real Property, 167, 1st ed.; 177, 2nd ed.; 184, 3rd ed.; 185, 4th ed.; 193, 5th ed.; 203, 6th ed.; 209, 7th ed. (a) Ibid. 171, 1st ed.; 181, 2nd ed.; 188, 3rd ed.; 189, 4th ed.; 197, 5th ed.; 207, 6th ed.; 213, 7th ed. (y) Stat. 20 & 21 Vict. c. 57. Ante, p. 357. 66 prevail on her to make an acknowledgment before two commissioners, notwithstanding that during the two minutes which the transaction lasts she may remain separate and apart" from him. If, whenever the wife's property of any kind should be alienated by deed, her signature were necessary, but her separate examination were dispensed with, the law both of personal and real estate would perhaps be improved. The Court of Chancery, by the establishment of trusts for separate use, and by giving the wife an equity to a settlement of part of her personal property when claimed through the medium of that court, has done much to mitigate the simple rigour of the common law. Trusts for separate use are now, after much wavering, firmly settled, it is to be hoped, into a system according both with the interests of the community and the general principles of the law. Such trusts, however, generally require to be established by deed or will, and are very seldom implied. And the wife cannot assert her equity to a settlement without taking the serious step of making an application to the Court of Chancery. The theory of that court certainly is, that its assistance is free and open to everybody, and that those who neglect to avail themselves of its aid suffer by their own fault. Experience, however, is too apt to suggest that the remedy may sometimes prove worse than the disease. в в 2 PART V. OF TITLE. Money and ne rities. THE title to personal estate varies according as it may consist of money or negotiable securities, or of ordinary choses in possession, or of choses in action. And first, with regard to money or negotiable secugotiable securities, no title at all is required to be shown by the payer in any bonâ fide transaction. Thus, if a sovereign or a bank note be offered in payment of a debt, it is no part of the duty of the creditor, under ordinary circumstances, to ask the debtor how he came by it. The reason of this rule is founded on the currency of the articles in question, and on the great inconvenience to trade and commerce which would ensue if the rule were otherwise (a). And the rule applies to all negotiable securities, that is, to all instruments the delivery of which passes the legal right to the property secured by them. Promissory notes and bills of exchange payable to bearer, or payable to order, and indorsed in blank, are accordingly within the rule (b). But if there be any mala fides on the part of the person receiving any money or negotiable security, or such gross negligence as may amount in itself to evidence of mala fides, the true owner may recover such property, provided its identity can be Delivery order. ascertained (c). A delivery order does not of itself pass (a) Miller v. Race, 1 Burr. 452; (c) Clarke v. Shee, Cowp. 197; Foster v. Pearson, 1 C. M. & R. 849; S. C., 5 Tyrw. 255; Goodman v. Harvey, 4 Ad. & Ell. 870. the property in the goods mentioned in it; it is therefore not a negotiable security within the rule above mentioned; and the transferee is accordingly bound to inquire into the title of the transferor (d). in market With regard to ordinary choses in possession, a valid Sale of chattels title to them is generally obtained by a purchase in an overt. open market, or market overt, although no property may have been possessed by the vendor (e). And every shop in the city of London, where goods are openly sold, is considered as a market overt within this rule, for such things as by the trade of the owner are put there for sale (f). But the shops at the west end of the town do not appear to possess this privilege. If the sale is not made in market overt, the purchaser, though he purchase bonâ fide, acquires no further property in the article sold than was possessed by the vendor (g). And formerly, if a writ of execution should have been actually in the hands of the sheriff on a judgment against the vendor, the goods, if not sold in market overt, were subject, in the hands of the purchaser, to the sheriff's right to seize, in the same manner as if they had remained in the hands of the vendor (h). But a recent enactment now protects a purchaser bonâ fide for valuable consideration, without notice of any writ (i). So if the goods have been stolen, a bonâ fide Stolen goods. purchaser, who has not bought them in market overt, will be bound to restore them to the true owner (k); whereas, a sale in market overt would have given the purchaser a valid title. There is one case, however, in (d) Kingsford v. Merry, 1 H. & N. 503. (e) 2 Black. Com. 449. (f) The case of Market Overt, 5 Rep. 83 b; Lyons v. De Pass, 11 Ad. & Ell. 326. (g) Peer v. Humphrey, 2 Ad. & El. 495; White v. Spettigue, 13 Mee. & W. 603. (h) Samuel v. Duke, 3 Mee. & W. 622. See ante, p. 49. (i) Stat. 19 & 20 Vict. c. 97, s. 1, ante, p. 50, not retrospective. Williams v. Smith, 2 H. & N. 443. (k) White v. Spettigue, 13 Mee. & W. 603. Horses. which even a sale in market overt will not protect a purchaser, namely, the case of the goods having been stolen, and the true owner prosecuting the thief and obtaining his conviction. In this case the property in the goods, wherever they may be, vests, on the conviction, in the true owner (1); and the only exception allowed is, where the article stolen is some valuable security, which shall have been paid or discharged bonâ fide by the person liable, or being a negotiable instrument, shall have been bonâ fide transferred or delivered for a just and valuable consideration, without any notice, and without any reasonable cause to suspect that the same had been obtained by any felony or misdemeanor (m). If a person suffer the loss of his goods by theft, he cannot by any civil action recover them from the felon (n). To do this, he is bound to suffer the further loss of time or money incurred in a prosecution. If he should succeed in obtaining a conviction, he is then rewarded for his good fortune by a restitution of his property, whether in the hands of the felon himself, or of any innocent purchaser who may have chanced to buy them, although in open market. Such is the application made by the law of the righteous principle of restitution. With regard to horses, a sale in market overt will not confer on the purchaser any further title than is possessed by the vendor, unless the sale be made according to the directions of certain statutes (o); and even then the true owner may, at any time within six months after his horse has been stolen, recover his pro (1) Scattergood v. Sylvester, 15 Q. B. 506. (m) Stat. 7 & 8 Geo. IV. c. 29, s. 57. (n) Stone v. Marsh, 6 Barn, & Cress. 551, 564; 2 Wms. Saund. 47 b, n. (p). (0) Stats. 2 & 3 P. & M. c. 7; 31 Eliz. c. 12; 2 Black. Com. 450. |