may pass by operation of law; as where a person satisfies a judgment obtained against him for the value of goods which he had converted. Such a transfer is often spoken of as an involuntary sale. An early writer bases this doctrine on the two maxims, Solutio pretii emptionis loco habetur; Quod remedio destituitur, ipsa re valet, si culpa absit.1

Many of the older law-books contain dicta to the effect that title passes to the converter upon the recovery of judgment against him; but in Brinsmead v. Harrison,2 Willes, J., declared such was not the common-law rule; and, on appeal, the majority of the judges seem to have held the same opinion. This view was reaffirmed in Ex parte Drake,3 and prevails generally in the United States.4

6. Title relates back to Time of Conversion. Whether the title acquired in such a case relates back to the wrongful act appears not to have received judicial decision in England, and the text-writers are at variance. In the United States the doctrine of relation is enforced. Accordingly, the offspring of converted animals, born intermediate the conversion and the satisfaction of the judgment, are the property of the judgment debtor; and the owner of converted property, who retakes it after judgment and before satisfaction, is a trespasser, if thereafter he enforces the judgment.7

7. Reasons assigned for Doctrine of Relation. The reasons for this view were stated as follows by the Maryland Court of

1 Jenkins, Centuria Quarta, Case 88.

2 L. R. 6 C. P. 584 (1871); on appeal, 7 C. P. 547, holding that the doctrine that if two commit a tort, a judgment against one is of itself, without execution, a bar to an action against the other for the same cause, relates purely to procedure, and does not affect the question of title.

3 5 Ch. D. 866 (1877). In this case James, L. J., said: "I think it is not the business of any court of justice to find facilities for enabling one man to steal another man's property."

Miller v. Hyde, 161 Mass. 472; 37 N. E. 760; 42 Am. St. R. 424, with note; 25 L. R. A. 42 (1894); Gilman v. Township of Gilby, 8 N. D. 627; 80 N. W. 899 (1899).

Cf. Addison on Torts (Am. ed., 1891), 606; and Chalmers' Sale of Goods Act (2d ed.), 8.

6 Hepburn v. Sewell, 5 H. & J. (Md.) 211 (1821).

Smith v. Smith, 51 N. H. 571 (1872).

Appeals: "If the thing converted should from any cause, whether natural or artificial, be destroyed during the interval intervening between the period of conversion and the payment of the judgment, the loss must be sustained by the defendant; and it would seem to follow, that if the thing should improve in value during that period, the benefit ought to enure to the defendant, on the principle qui sentit onus, sentire debet et commodum. It must be borne in mind that the plaintiff, in an action of trover, compels the defendant to become a purchaser against his will; and from what period does he elect to consider the defendant as a purchaser, or as answerable to him for the value of the thing converted? He selects the date of conversion as the epoch of the defendant's responsibility, and claims from him the value of the property at that period, with interest to the time of taking the verdict. The inchoate right of the defendant, as a purchaser, must be considered as coeval with the period of conversion; and this right being consummated by the judgment and its discharge, must, on legal and equitable principles, relate back to its commencement."

§ 3. The Subject-matter of a Sale.

8. This does not embrace every form of personal property, but is generally said to consist in goods.2 English common law appears to assign two reasons for its refusal to recognize choses in action as a proper subject-matter of sale: first, that delivery of the property sold is a normal part and evidence of a sale; second, that to allow the sale of choses in action would encourage litigiousness. As the signification of "goods" has been extended in some directions, while it has been narrowed in others, by the Statute of Frauds, as interpreted by the courts,

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1 Hepburn v. Sewell, 5 H. & J. (Md.) 211 (1821).

2 In Fickeisen v. Wheeling Electrical Co., 67 W. Va. 325; 67 S. E. 788 (1910), it is held that electricity is personal property, capable of sale, and that title passed in that case, when the defendant delivered electricity into the wires of the purchaser.

' Chalmers' Sale of Goods Act (2d ed.), 112. See infra, § 6, "Goods or an Interest in Land."

Humble v. Mitchell, 11 Ad. & E. 205 (1839); Burdick's Cases on Sales, 9.

the provisions of that statute must be kept in mind and applied during the discussion of the present topic.1

9. "Goods, Wares, and Merchandises." -The seventeenth section of the English Statute of Frauds 2 is as follows: "And be it further enacted: That no contract for the sale of any goods, wares, and merchandises for the price of ten pounds sterling or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold and actually receive the same or give something in earnest to bind the bargain or in part payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract or their agents thereunto lawfully authorised."

It would seem to have been the intention of Parliament to include under the terms "goods, wares, and merchandises" such personal property as was then deemed the proper subjectmatter of a sale. This view was taken by most English judges, prior to the adoption of the Sale of Goods Act,3 and in that country it was generally conceded that only those things which were the subjects of larceny at common law and susceptible of delivery could be the subject-matter of sale in its technical

sense.

10. United States. The seventeenth section of the English Statute of Frauds has been re-enacted in most of our States,5 but the tendency of judicial interpretation in this country has been to extend its operation to the transfer of choses in action as well as to corporeal property. This tendency has been aided by the legislators in many States, who have so changed the

1 In England the signification of "goods" is affected also by the provision of the Bankrupt Act as to reputed ownership. See Campbell on Sales (2d ed.), 136–156.

2 29 Charles II., ch. 3 (1676).

3 56 & 57 Vict. ch. 71 (1893).

• Colonial Bank v. Whinney, 11 App. Cas. 426, 439 (1886). In Lawton v. Hickman, 9 Q. B. 563, 588 (1846), Lord Denman, who had taken part in Humble v. Mitchell, supra, held that a recovery could be had for the price of railway shares in an action for "goods and chattels sold and delivered." The following States have not re-enacted it: viz. Ala., Ariz., Del., Ill., Kan., Ky., La., N. M., N. C., Ohio, Pa., R. I., Tenn., Tex., Va., W. Va.; although Ohio and R. I. have adopted a modification of it in the Uniform Sales Act.

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language of the statute 1 as to leave no doubt of their intention to extend the law of sales to every form of personal property. Even in the States which have adopted the exact words of the English statute, it is held generally that they include all choses in action or securities which are the subjects of common sale and barter, which have a market value, or which are intended to be transferable, and when transferred to convey the debts or claims evidenced by them in a visible and palpable form.2 American judges have not hesitated to declare the construction put upon the statute by English courts narrow and forced.3

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11. Different Judicial Views. — In some States, accounts, although not evidenced by anything having a visible or tangible form, have been treated as goods, and it has been asserted that "goods, wares, and merchandise" are equivalent to "personal property," including whatever is not embraced in the phrase "lands, tenements, and hereditaments." 5 The view generally entertained, however, is that a legal right of property, not evidenced by an instrument which is capable of delivery in specie is not within the words "goods, wares, and merchandise." Hence the contract for the transfer of an interest in an invention, before letters patent are obtained, or a bank account or other debt due the transferrer,' is not one for the sale of goods; nor is an agreement for the sale of a partner's share in a firm,8 although it is embraced by the words "goods, chattels, and

1 In Conn., Fla., Ore., Ia., Miss., "any personal property;" in Cal., Colo., N. Dak., S. Dak., Idaho, Minn., Mon., Neb., Nev., N. Y., Wy., "goods, chattels, or things in action;" in Ind., N. J., S. C., Vt., Wash., "goods;" in Ga., Me., Mass., Mich., Mo., N. H., "goods, wares, or merchandise."

2 McCann v. Randall, 147 Mass. 81 (1888).

Tisdale v. Harris, 20 Pick. 9, Shaw, C. J., p. 14 (1838); Burdick's Cases on Sales, 9.

• Walker v. Supple, 54 Ga. 178 (1875).

5 Greenwood v. Law, 55 N. J. L. 168; 26 At. 134 (1892); Burdick's Cases on Sales, 11; Mayor, etc. of Jersey City v. Town of Harrison, 71 N. J. L. 69; 58 At. 100 (1904); affirmed in 72 N. J. L. 185. Contract for a water supply is within the statute.

Somerby v. Buntin, 118 Mass. 279 (1875); Dalzell v. Dueber Mfg. Co., 149 U. S. 315; 13 Sup. Ct. 886; L. ed. 749 (1892).

7 N. Y. Biscuit Co. v. City of Cambridge, 161 Mass. 326 (1894); 37 N. E. 438; Burdick's Cases on Sales, 11.

8 Vincent v. Vieths, 60 Mo. App. 9 (1894).

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things in action." These words also include a contract for the sale of an invention, as shown by a model.2

12. Sale of Goods Act and Uniform Sales Act. - Both of these statutes exclude "things in action" from the definition of "goods." 3 The English Act accords with judicial decisions, under the Statute of Frauds, already referred to, and does not make use of the terms "goods and chattels," employed in the Bankrupt Act; terms that have been held to include choses in action.5

While the American statute defines goods as stated above, nevertheless, in an earlier section, which is substituted for the seventeenth section of the Statute of Frauds, it refers to "a contract to sell or a sale of any goods or choses in action." In this respect, the statute accords with the tendency in this country, heretofore stated, to extend the operation of the Statute of Frauds beyond corporeal property; a tendency which seems thoroughly sound and reasonable. At early common law, property in a chose in action could not be transferred, but an owner of a chose in action could appoint another his attorney to sue and authorize such person to keep the proceeds. Soon, equity interfered to protect the attorney's right to sue and to keep the proceeds; and, later, the attorney or assignee was recognized as having a legal title to the chose in action which had been turned over to him: his early character of attorney to sue being evidenced by the fact that he must sue in the name of his assignor, and that he was subject to defences available against his assignor. Finally, in many jurisdictions, the assignee of a chose in action has been granted the right to sue at law in

1 Van Brocklen v. Smeallie, 140 N. Y. 70; 35 N. E. 415 (1893). 2 Jones v. Reynolds, 120 N. Y. 213; 24 N. E. 279 (1890).

56 & 57 Vict. ch. 71, § 62; Mass. Acts & Resolves, 1908, ch. 237, § 76. Humble v. Mitchell, 11 Ad. & E. 205 (1839); Burdick's Cases on Sales, 9; holding shares in a joint stock company not to be within the statute, because "incapable of delivery."

5 Hornblower v. Proud, 2 B. & Ald. 327 (1819). The word "chattels" is considered more comprehensive than "wares and merchandises," and the Bankrupt Act does not provide for the acceptance and receipt of the subject-matter, and hence does not by implication limit the term to things capable of delivery. See also Lawton v. Hickman, 9 Q. B. 563 (1846). Mass. L. 1908, ch. 237, § 4.