and sold by execution. And in the case of Evans v. Darlington, 5 Blackf., 320, the court held there, the same interest may be reached by an attachment. If the lien asserted by Gibson be good to the extent as contended, it withdraws the property from the state of Indiana, and compels the creditors of M'Queen & M'Kay who reside in the state to follow it to the state of New York. And the principle would be the same had an advance of $1,000 been made on $10,000 worth of property. So careful is the law of the rights of creditors, that an executor under a foreign jurisdiction cannot withdraw the property of the deceased from the local jurisdiction to that of the domicile of the deceased, to the prejudice of creditors. Much more, it would seem, cannot this be done in the case under consideration; a case where, in fact, there has been no sale; and where, if the lien of the commission merchant attached, it could only extend to the advance made.

§ 48. Notice to attaching creditors Cases reviewed.

In Black et al. v. Zachara, 3 How., 511, the supreme court held that an attachment of bank stock in Louisiana, which had previously been assigned by the owner in South Carolina, of which the plaintiff in the attachment had notice before the writ was issued, could not be sustained. The court say, "now, in the case before us, there is plenary evidence that the assignment was valid and effectual by the laws of South Carolina, when and where it was made, to pass the right to the property in controversy; and that the attaching creditors had notice thereof before their attachment was made." And so in a late case in the supreme court of Louisiana, where the effects of the United States Bank were attached in that state, after a due assignment of them had been made in the state of Pennsylvania, of which the attaching creditors had notice, it was held the attachment could not be sustained. This case, and the one above cited, are made to turn on the fact of notice. And if, in the case under consideration, before the attachment was laid upon the property, the plaintiff had had notice of the order, the lien of Gibson to the extent of his advances would have been protected. In Babcock v. Maltbie, 19 Martin, 137, the court say, the true test in cases of assignment is, "that where the owner of the property has lost all power over it, and cannot change its destination, the creditors cannot attach." This rule is apparently sanctioned by the supreme court of the United States in the case above cited; but it is not true, except upon the supposition that the whole transaction was bona fide. For if a man fraudulently transfer his goods, he has lost all power over them, but his creditors may attach them. In the case of Gibson, M'Queen & M'Kay, before the notice, had power to sell the property and transfer a good title. In Story's Conflict of Laws, section 416, it is said, "neither is it true. that even the voluntary conveyances of parties in all cases are to be held valid, where they are prejudicial to the rights and remedies of our own citizens. In Massachusetts, for instance, it has been held that a voluntary assignment by a debtor of all his property, made in Pennsylvania, for the benefit of creditors generally, shall not prevail over a subsequent attachment of the funds of the debtor, made after the assignment, because such an assignment would be void by the laws of Massachusetts, if made in that state, as being in fraud of creditors; and it is unjust and unequal in its effects, and prejudicial. to the citizens of the state." "In such a case, therefore, the party who shall by process first attach the debt or seize the property, ought to prevail, whether creditor or assignee." Ingraham v. Geyer, 13 Mass., 146; Oliver v. Towns, 6 Pick., 97, 307, 286; and Chancellor Kent, 2 Comm., 406, says, "it may be considered as

part of the settled jurisprudence of this country, that personal property, as against creditors, has locality, and the lex loci rei sita prevails over the law of the domicile with regard to the rule of preference in the case of insolvent estates." In Lanfear v. Sumner, 17 Mass., 110, the court held, "A conveyance made in Philadelphia to plaintiff of a quantity of tea on board a ship bound to Boston, which was afterwards attached by a creditor in Boston, that the defendant must prevail, as there was no legal delivery before the attachment. That it was a case of two creditors, each endeavoring to secure his debt out of the same fund; he who first acquires possession will hold the goods." In the case of Hoffman et al. v. Joseph Noble and another, 6 Met., 68, the court very properly held that where a consignee had made an advance to the full value of the goods, in good faith, and they having come into his possession, he stood in the light of a purchaser.

$ 49. Rights of factors making advances.

It is supposed that a decision against the paramount lien of the plaintiff, as here asserted, may tend to prevent the customary advances on the shipment of produce. Factors or commission merchants must be cautious to whom they make advances. The legal right of the bank growing out of the fraud, to the pork and flour, if asserted by an action of trover, is not disputed. And this shows that the case turns mainly upon a mere technicality. But on the other side, the rights of creditors are involved, and the assertion of those rights under the jurisdiction where the property is found. If by a small advance on a large amount of property, by a factor, a fraudulent purchaser may remove the property to a foreign jurisdiction, beyond the reach of his local creditors, frauds of the greatest magnitude may be practiced. The facts of the present case strongly illustrate this, and show under such a rule with what facility and impunity such frauds may be committed.

This is probably the first case involving some of the precise questions above considered. I have felt an uncommon solicitude on the subject, and took occasion, at the last term of the supreme court attended by my lamented brother Story, to consult him on the points ruled, and I was gratified to find that he coincided with the opinion as now expressed. Upon the whole, we direct a judgment of de retorno habendo.

§ 50. In general.— Where there is a violation of a right, an action will lie, although there is no actual, perceptible damage; every injury imports damage, and the party will be entitled to nominal damages at least. Webb v. Portland Manuf’g Co., 3 Sumn., 192. See §§ 5, 8, 65, 103, 104.

§ 51. Covenant will not lie on a verbal promise; and a party will not be allowed to prove a cause of action which, if alleged in the declaration, would have been fatal to it on demurrer. Phillips, etc., Const. Co. v. Seymour, 1 Otto, 655.

§ 52. On contract.- Wherever the rights of a party are founded upon a deed, and are dependent upon the terms and conditions of the deed, the instrument thus creating and defining those rights must be resorted to, and must regulate the modes by which they are to be enforced at law. Where the contract contained in a deed has been varied or substituted by the subsequent acts or agreements of the parties, thereby giving rise to new relations between them, the remedies originally arising out of the deed may be varied in conformity with them. Fresh v. Gilson, 16 Pet., 334. See § 11.

$53. For deceit.- No cause of action exists on account of expressions of opinion, however fallacious and unfounded, in regard to property the value of which depends on uncertain contingencies. Gordon v. Butler, 15 Otto, 556. A party signing a letter of recommendation, with no intent to deceive, is not liable to an action for fraud and deceit, although the statements were untrue. Lord v. Goddard, 13 How., 193.

$54. Against an officer.- An action for the infringement of a patent lies against an officer of the government using the same in the service of the government. The exclusive use of

the invention is property which cannot be taken by the government without compensation, and that the invention was used for the benefit of the government is no defense. Campbell v. James,* 8 Reporter, 455.

§ 55. On a bond twenty years old. In an action on a bond by the United States, it is no defense that the bond was given in renewal of another bond for duties, which was more than twenty years old at the execution of the second bond, that no demand of payment had ever been made, and that at the time defendants executed the second bond, they were advised by plaintiff's agent that there was no defense to the demand. United States v. McKewan,* 4 Blatch., 383.

§ 56. Contrary to public policy. There can be no cause of action on a contract void by public policy. So where W., having arms to sell, made an agreement to pay O., a Turkish official, a commission on all arms ordered by an agent of the Turkish government from him, it was held that no action would lie by O. against W. for such commissions, the contract being void on the ground of public policy, as being for the sale of official influence. Oscanyan v. Winchester Repeating Arms Co., 15 Blatch., 84. It may be stated as a general principle, that public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential, and respecting which it will not allow the confidence to be violated; accordingly, it is held that a claimant cannot maintain an action in the court of claims against the government on account of secret services rendered during the war. Totten v. United States, 2 Otto, 105. See CONTRACTS.

§ 57. On distillery bond. A compromise and settlement of an indictment for a breach of the revenue laws by a distiller, is a bar to an action on the distillery bond to recover a penalty for the same offense. United States v. Chouteau, 12 Otto, 608.

$58. Diverting water. A riparian proprietor may maintain an action for diverting water, although he has sustained no actual damage. Union M. & M. Co. v. Dangberg, 2 Saw., 453; Webb v. Portland Manuf'g Co., 3 Sumn., 192. See $ 14, 50.

§ 59. Lex fori.- The right of action must be regulated by the law of the forum in which the suit is brought; and the laws of one nation will not authorize an action in the courts of another, nor authorize a person to maintain an action who could not maintain it by the principles of that forum to which he has applied. Blane v. Drummond, 1 Marsh., 68. See S$ 14, 29.

§ 60. Forged note.- Where a party has received a forged note in payment of a debt, in an action upon the original cause of action it is not necessary for him to prove that the defendant knew that the note was a forgery, and that he fraudulently passed it to the plaintiff; nor is it neccessary to the maintenance of such suit that a suit or suits should first be brought against the parties whose names are forged. The fact of forgery may be established in the suit against the party who passes the instrument. Semmes v. Wilson,* 5 Cr. C. C., 288. See $ 88.

§ 61. Conspiracy to defraud.— An action will not lie by a creditor, against his debtor and others, for a conspiracy to dispose of the goods of the debtor so as to hinder the creditor in collecting a debt not then due. Adler v. Fenton, 24 How., 408.

§ 62. An agreement to indemnify affords no ground of action until the party is damnified. Hood v. Spencer, 4 McL., 170. See §§ 1-7.

§ 63. Money paid on an erroneous judgment may, after reversal, be recovered back. Bank of Washington v. United States,* 4 Cr. C. C., 86; S. C., 6 Pet., 8. See § 181.

64. The neglect of a postmaster to forward a letter within a reasonable time, is not a ground of action unless damage results to the plaintiff. Dunlop v. Munroe, 7 Cr., 268. S$ 50, 83, 431.

See

§ 65. Withholding money colore officii.— At common law, a person may maintain an action for money had and received against one who wrongfully withholds goods from him, upon an illegal claim or demand, colore officii, and thus compels him to pay money to obtain them. Knoedler v. Schell, 4 Blatch., 485; citing 10 Pet., 137; 13 Pet., 263.

§ 66. Contract to insure.- Where there has been a valid contract to insure, and to issue a policy according to such contract, but no policy is issued, on loss by fire the plaintiff has the same cause of action against the company which he would have had, had the policy been issued as agreed. Humphry v. Hartford Fire Ins. Co., 15 Blatch., 36. See INSURANCE.

§ 67. Preventing arbitration.- Where a party agreed with a telegraph company to sell them certain inventions, the buyer and seller mutually agreeing to submit the value of the inventions beyond a certain price, to arbitrators, but the company afterwards revoked the submission, it was held that the inventor had a good cause of action on quantum valebat against the company. Humaston v. Telegraph Co., 20 Wall., 27.

§ 68. Removal of fixtures.- Where a tenant, during his term, brought an old wooden stable on the premises, which rested on posts inserted two feet into the soil, and leaned

against a building on an adjoining lot, and removed it during the term, held, that no action would lie. Krouse v. Ross.* 1 Cr. C. C., 368.

$69. Miscellaneous.- Where the owner of two negro slave girls, of the value of $2,000, sold them to the defendant as slaves for life, upon the express agreement that the vendee should not sell them south of the Potomac, out of the District of Columbia, nor remove them out of the District of Columbia, and the vendee removed the said girls out of the District, it was held, on demurrer to the declaration, that the plaintiff could not recover. v. Jones,* 5 Cr. C. C., 611.

Corcoran

§ 70. Where property is leased "for all purposes," no recovery can be had against the lessee for its use by him as a small-pox hospital. United States v. Bostwick, 4 Otto, 67.

§71. Where a husband, during the life of his wife, promises to pay a debt of hers, no action lies against him on such promise after her death. He was liable for her debt during her life-time, and his promise added nothing to his legal obligations, there being no new consideration. Callan v. Kennedy,* 3 Cr. C. C., 630.

§ 72. A., being indebted to B., learns, though in an irregular manner (by opening and reading letters not addressed to him), that a creditor of B. is about to attach the debt, and thereupon pays the debt to B., who is insolvent. Held, that the attaching creditor had no cause of action against A. Simpson v. Dall, 3 Wall., 473.

$73. In August, 1867, a British corporation, the N. Co., pursuant to an agreement for a voluntary liquidation, transferred the P. and other vessels to the S. Co., a British corporation. In October, 1867, a party was killed in New York harbor in a collision between the P. and another vessel, and the administrator of the deceased sued the N. Co. and obtained a judgment. Subsequently an assignee of the judgment brought suit upon it against the S. Co., on the theory that said company received the property of the N. Co. under an agreement to pay its debts, and judgment went for the defendant. Thereupon the plaintiff in this suit, by a bill in equity against the S. Co., sought to hold the said company liable, on the theory that it had received the property in fraud of the judgment; but the court found that there had been a regular and legal transfer of the property prior to the date of the collision, and that the S. Co. was not liable. Gray v. National Steamship Co.,* 19 Blatch., 216.

§ 74. Where a bond is payable by instalments, debt will not lie for the interest before the principal is due. Fontaine v. Aresta, § 75.

[NOTES.-See §§ 76-93.]

FONTAINE v. ARESTA

(Circuit Court for Illinois: 2 McLean, 127-128. 1840.)

Opinion of the COURT.

STATEMENT OF FACTS.-This action of debt was brought on an instrument, under seal, for the payment of a certain sum, as principal, not yet due; and the payment of the interest annually. The defendant filed a special demurrer, which raises the question whether an action of debt for the interest can be sustained before the principal becomes due.

$75. Rule as to form of action for instalments not due.

The rule seems to be well settled that debt will not lie for money, payable by instalments, until they shall all become due, unless the payment be secured by a penalty. 1 Chit. Pl., 129; Rudder v. Price, 1 H. Bl., 547; 2 Saund., 303, n. 6; 3 Co., 22, a; Selw. N. P., 531, n; Bac. Abr., 669; 3 Black., 168. Where a sum of money is payable by instalments, and the payment is secured by a penalty, debt may be brought for the penalty. Bac. Abr., 699, debt, B; Com. Di., F. In 1 Binn., 152, the court held that where the condition of a bond was for the payment of interest annually, and the principal at a distant day, the interest might be recovered, before the principal was due, by an action of debt on the bond. In this case the payment of the principal and interest was secured by

a penalty. Where there is no penalty in the bond, payable by instalments, covenant is the proper action to recover the instalments as they shall become due. If the instalment be due on a simple contract, assumpsit is the proper action. This is a technical rule, as applied to the action of debt, but it seems to be too well established to be disregarded. The demurrer must be sustained.

§ 76. On statutes.- When the statute which confers the right prescribes also the remedy, the party injured can have redress in no other method or form of procedure. Barnet v. National Bank, 8 Otto, 559; James v. Atlantic Delaine Co.,* 11 N. B. R., 393.

§ 77. When a statute which confers a right also declares what course shall be adopted to enforce it, only the remedy provided can be resorted to. So when it was provided by law that upon failure to render certain accounts the stockholders of a corporation should be liable to have their persons or property taken on attachment or execution or they might be proceeded against in equity, it was held that these remedies were exclusive, and that proceedings at law against the stockholders were improper. James v. Atlantic Delaine Co.,* 11 N. B. R., 393. § 78. When a statute creates a penalty and prescribes a remedy, that remedy alone can be pursued. The Nashville, 4 Biss., 191. See $$ 10, 270 et seq., 482.

§ 79. It seems that where a statute prescribes a penalty, and provides that it may be sued for "in any proper form of action, or by any appropriate form of proceeding," a civil action will lie if it is an "appropriate proceeding" when tested by the principles of the common law; otherwise the proceeding must be by indictment. United States v. Morin, 4 Biss., 93; United States v. Ebner, 4 Biss., 117. Where a statute creates a new right or offense, and provides a specific remedy or punishment, they alone apply. Barnet v. National Bank, 8 Otto, 558, citing 91 U. S., 291.

§ 80. Where a statute gives an action of debt for a penalty of $500 for harboring or concealing a slave, saving to the owner a right of action for the injury sustained, if debt is brought, a recovery may be had on the mere proof of concealment, but if case be brought, the recovery must be confined to the actual damage sustained. Oliver v. Weakley, 2 Wall. Jr., 326. See S$ 270-280.

§ 81. Where the punishment provided is a fine only, and the amount is not fixed by the act, or where imprisonment either may or must be a part of the punishment, then, in either case, no civil action will lie, and the only remedy is by indictment. United States v. Ebner, 4 Biss., 119.

§ 82. The federal courts must follow the forms of action prescribed by the law of the state in which they sit. Phillips, etc., Const. Co. v. Seymour, 1 Otto, 655.

§ 83. Against a postmaster.- Where a postmaster refuses to deliver money orders and registered letters, the proper remedy is mandamus, replevin, or an action for damages, and not an injunction. Boardman v. Thompson, 12 Fed. R., 675. See §§ 64, 431.

§ 84. Goods obtained by fraud.- Where the declaration alleges fraudulent representations made to induce a sale of goods on credit, the averments of fraud will not be stricken out on motion of defendant, so as to convert the action into assumpsit for goods sold and delivered. An action for the price of goods sold is substantially different from an action for a fraudulent representation, and the fact that the fraudulent representation was made to induce, and did induce, a sale of goods on credit, does not change the cause of action from one of fraud to one in assumpsit. Walker v. Byrnes,* 14 Blatch., 348. See $$ 156-159.

§ 85. For goods bought and money advanced.— It seems, that where plaintiff buys goods for defendant, and advances money to pay for them, the proper form of action is for money paid and expended, not for goods sold and delivered. Scholefield v. Eichelberger, 7 Pet., 595. See 156, 196.

§ 86. To recover a penalty.- An action to recover a penalty inflicted for any public wrong, must be brought in the name of the government; the usual remedy is an action or information of debt by the government itself. Matthews v. Offley, 3 Sumn., 120. See §§ 11, 270. § 87. False warranty.-The remedy for a false warranty is either case or assumpsit. Schuchardt v. Allens, 1 Wall., 368. See CASE, infra.

$88. Torts. When a tort depends upon a contract the action thereon may be either ex contractu or ex delicto. So when bonds are forged and sold by the forger, such act is a tort, and the action may be brought in tort, and the rule as to the statute of limitations on tort actions will apply. Shippen v. Tankersley, 13 Fed. R., 538. See § 60.

§ 89. Injury on steamboat.- Where an employee on a steamer was killed by an escape of steam caused by the negligence of the engineer, and a libel was filed by his son and widow against the boat, it was held, that under the statutes of the United States they had adopted the wrong form of action- that their remedy was in personam and not in rem and that the