only a means of publicity, and does not affect the sufficiency of the notice arising from the contents of the bill, to charge a purchaser. (h)

There is also an equitable lien in favor of the assignee of a debt, on the money in the hands of the debtor. In a case like this, the assent of the debtor to the assignment is necessary, to enable the assignee to sue at law; but not so in equity. (i) A consignor has also an equitable lien on money unapplied by an agent, or goods consigned to him for some special unexecuted object. Here the lien depends upon privity of property, and to establish it, the property must be clearly identified, or its proceeds exist or be accessible in separate money, securities, or a new investment. (j)

(h) Griffith v. Griffith, Hoff. Ch. 153. (i) Row v. Dawson, 1 Ves. 331; Adams v. Claxton, 6 Ves. Jr. 226.

(j) Taylor v. Plumer, 3 M. & S. 562. This was an action of trover brought by the assignees of a stock-broker against the defendant, who had intrusted the broker with money to be invested in exchequer bills. The broker, with a design to embezzle a large portion of the money so intrust ed to him, invested that portion in foreign securities, and left his home with the purpose of fleeing the country. He was pursued and overtaken, and surrendered the certificates of the securities so obtained, to an agent of the defendant. The latter caused them to be sold, and retained the proceeds in lieu of the money of which he had been defrauded. A commission of bankruptcy was taken out against the defaulting broker, and this action was brought by the assignees to recover the value of the securities thus surrendered to the defendant, as assets of the bankrupt estate. The case came before the Court of King's Bench upon the question whether the plaintiffs were entitled wholly or in part to recover, and if neither, then a nonsuit to be entered. The counsel for the defendant admitted, that specific property in the possession of an agent, who becomes bankrupt, which was intrusted to him for a special purpose, belongs to the principal, and not to the representatives of the bankrupt agent; also, that where the property is not the same, but has been acquired by the bankrupt in lieu of the trust property, and in pursuance of the trust, the same rule applies to it, provided such property

is capable of being ascertained. But he took this distinction, that where the property had been tortiously acquired by the agent, in fraud of the trust, there the lien of the principal was at an end; because he could not, for his own private advantage, and to the prejudice of all the other creditors, aver what has been done in fraud of his trust, to have been done in execution of it. On the other side, this distinction was denied, and the rule asserted to be general, that nothing passed by the assignment but what was in equity, as well as law, the property of the bankrupt. The court held, that no change in the form of the property, so long as it could be identi fied, and no act of the agent, could divest the owner of his right thereto, whether it was in the hands of the agent, or of those who represent him in right. Lord Ellenborough, in giving the judgment of the court in favor of the defendant, said: “ And indeed, upon a view of the authorities, and consideration of the auguments, it shows that if the property, in its original state and form, was covered with a trust in favor of the principal, no change of that state and form can divest it of such trust, or give the factor, or those who represent him in right, any other more valid claim in respect to it, than they respectively had before such change. An abuse of trust can confer no rights on the party abusing it, nor on those who claim in privity with him. The argument which has been advanced in favor of the plaintiffs, that the property of the principal continues only so long as the authority of the principal is pursued in respect to the order and disposition of

Another equitable lien, which depends upon privity of parties, is recognized in favor of one for whom directions have been given to an agent or consignee, to retain money or goods. In this case, equity as well as law requires the assent of the holder and the beneficiary, in order to enable the latter to assert a lien or to sue. For the holder of the property is not the debtor but the bailee of the owner. (k) An acceptor or indorser of a bill of exchange for accommodation of the drawer, has an equitable lien on any property of the latter that may be in his hands. (1) Trustees have a lien upon the trust estate for their expenses, but not their agents. (m)

In concluding this chapter on lien, we may remark generally, that there is no difference in the rules of decision as to liens, in equity or in law, and that a court of equity will relieve, in a case where there is a lien at law, if, from the difficulties attendant upon it, the parties are unable to obtain justice at law. (n) We would add, that the liens of vendors, carriers, innkeepers, pledgees, factors, and some others, have been somewhat considered in previous chapters, especially in those on Bailment, Factors and Brokers, Sales, and Shipping.

it, and that it ceases when the property is tortiously converted into another form for the use of the factor himself, is mischievous in principle, and supported by no authorities of law." "It makes no difference, in reason or law, into what other form, different from the original, the change may have been made, whether it be into that of promissory notes for the security of the money which was produced by the sale of the goods of the principal (as in Scott v. Sherman, Willes, 400), or into other merchandise (as in Whitcomb v. Jacob, Salk. 160); for the product of, or substitute for the original thing, still fol

lows the nature of the thing itself, as long as it can be ascertained to be such, and the right only ceases when the means of ascertainment fail, which is the case when the subject is turned into money, and mixed and confounded in a general mass of the same description." A nonsuit was ordered to be entered.

(k) Scott v. Porcher, 3 Mer. 652. () Madden v. Kempton, 1 Camp. 12; Wilkins v. Kasey, 7 T. R. 711.

(m) Worrall v. Harford, 8 Ves. Jr. 4; Murray v. De Rottenham, 6 Johns. Ch. 52. (n) Weymouth v. Boyer, 1 Ves. Jr. 416, 2 Story Eq. Jur. § 1216, a

CHAPTER X.

STAMPS REQUIRED BY THE EXCISE LAW.

Sect 1. Of the General Principles of the Stamp Law.

THE Statute of the United States, passed July 1st, 1862, Chapter CXIX, entitled, " An Act to provide Internal Revenue to support the Government and to pay Interest on the Public Debt," establishes a comprehensive system of Stamp Duties, embracing within its provisions almost all the documents which are used in the transactions of business, as well as a great variety of articles which are the subject of trade.

It is apparent, on the face of the statute, that it was modeled upon the English stamp-acts; but its provisions being somewhat different from those acts, in substance as well as language, the precedents established by English litigation, as to construction and application, can be but of limited service in adjudicating the questions which may arise under our statute. So far as the terms of the United States law conform to the English, the decisions under the latter may be referred to with advantage in this work; and more especially in the infancy of our own law, when but few of its provisions have been passed upon by the courts of this country.

The operation of the English and the American statutes upon unstamped instruments, is substantially the same. The English provision is, that the unstamped instrument "shall not be pleaded or given in evidence in any court, or admitted in any court to be good, useful, or available in law or equity." The American statute provides, that such an instrument "shall be deemed invalid and of no effect." In both cases the exclusion deprives the document of all power to give a right or create an obligation, or sustain a defence, and precludes its use as evi

dence in support of any action or of any defence. The instrument is in fact a nullity until the appropriate stamp be affixed, whether issued or not; but in cases where the law permits the stamp to be affixed subsequently to the issue, the effect of the stamping is retroactive, conferring upon the document validity from its date. The doctrine of the retroactive effect of a stamp, has been carried even further than this in the English cases; it having been decided, that an unstamped instrument, if it be one that can be made available by being stamped, on any terms, may be the subject of trover. (a) In all cases where the law does not permit the post-stamping of a document, we think it must be entirely certain that trover could not be maintained.

The recognized rule of construing penal statutes strictly, and giving a liberal interpretation to words of exception contained therein, would doubtless be applied, by the courts of this country, to a statute so directly penal, and so clearly in restraint of common right as the United States Stamp Laws. (b) It is a wellsettled principle, that every charge upon the subject must be imposed by clear, unambiguous words. (c) But it is equally certain, that no interpretation will be adopted which must defeat the purpose of the law, provided the language of the statute admits, fairly and rationally, of an interpretation which sustains that purpose. (d)

No acts of parties in evasion of the statute would be tolerated by courts, such as an agreement that the objection for want of a stamp should be waived, (e) or the alteration of a document by consent, to avoid the necessity of restamping. (ƒ) But any compliance with the requirements of the statute, that are consistent with the law itself, though less burdensome to the party than some other mode pointed out by the law, would probably be held sufficient. Thus, a severance of amounts, or

(a) Scott v. Jones, 4 Taunt. 865; McLeod v. McGhie, 2 Scott, N. R. 604.

(b) 1 Blk. Com. 88, and notes by Sharswood; Warrington . Furbor, 8 East, 242; Denn v. Manefold, 4 B. & C. 243; Brandling v. Barrington, 6 B. & C. 467; Tomkins v. Ashby, 6 B. & C. 541; U. S. v. Gooding, 12 Wheat. 460; Whitcomb v. Rood, 20 Vt. 49.

(c) Wroughton v. Turtle, 11 Mees. & W.

561; Gurr v. Scudds, 11 Exch. 190; Smith v. Spooner, 3 Pick. 229; Sewall v. Jones, 9 Pick. 412; Sprague v. Birdsall, 2 Cow. 419.

(d) U. S. v. Wilterberger, 5 Wheat. 76; The Emily & Caroline, Wheat. 388; Platte v. Routh, 6 Mees. & W. 756. (e) Owen v. Thomas, 3 Myl. & K. 353. (ƒ) v. Lee, cited 2 Eq. Cas. Abg. 414; Bennison v. Jewison, 12 Jur. 485

a deduction from the consideration, for the purpose of diminishing the stamp duty, has been regarded as no evasion of the law. (g)

SECTION II.

OF THE GENERAL PROVISIONS OF THE STATUTE.

The general provision of the United States Statute, imposing stamp duties upon instruments, is as follows: "Sec. 94. And be it further enacted, that on and after the first day of October, eighteen hundred and sixty-two, there shall be levied, collected, and paid, for and in respect of the several instruments, matters and things mentioned and described in the schedule (marked B) hereunto annexed, or for or in respect of the vellum, parchment or paper upon which such instruments, matters or things, or any of them, shall be written or printed, by any person or persons, or party who shall make, sign or issue the same, or for whose use or benefit the same shall be made, signed or issued, the several duties or sums of money set down in figures against the same, respectively, or otherwise specified or set forth in said schedule."

It will be seen by the above, that the obligation to stamp, is imposed upon the party making or causing the instrument to be made; and it would seem that no stamping by any other party than the one designated, would be a sufficient compliance with the requirement of the law. Where there are several parties who execute an instrument, it is doubtless sufficient for any one of them to affix the necessary stamp; and this view is held by the U. S. Commissioner of Internal Revenue. (h)

The penal and invalidating clause of the act, in reference to unstamped instruments, is as follows:

(g) Abraham v. Dubois, 4 Camp. 269; Shephard v. Hall, 3 Camp. 180. In this case it was held, that an indenture of apprenticeship was not void, by reason of the premium being stated at £19 19s. 6d. which was the sum paid, when £20 was

agreed upon originally; the reduction having been made to avoid a part of the stamp duty. Hawkins v. Clutterbuck, 2 Car. & K. 810, is to same effect.

(h) Boutwell's U. S. Tax System, 389.