it was enacted, that every such mortgage, not accompanied by immediate delivery and actual and continued change of possession, shall be void as against creditors, unless a copy thereof be filed in the town clerk's office, as therein provided, and shall not be valid at the expiration of one year from the date of filing, unless a copy thereof and a statement of the claim of the mortgagee shall be filed in the same office within thirty days previous to the expiration of the year.

In this case, the mortgage was filed, and at the expiration of the year a new mortgage was executed and filed, instead of a copy of the former one. After deciding that there had been a sufficient change of possession to support the mortgage, the vice chancellor proceeds to consider the effect of the act of 1833, and that without necessity, since in his opinion the requirements of the act had been fully complied with. But it is for the purpose of declaring his dissent from the opinion of the supreme court in the case of Wood v. Lowry, 17 Wend. 492. That court had said that the statute of 1833 "only adds another ground on which a mortgage of personal chattels shall be void. If the plaintiffs had omitted to file their mortgage, it would for that cause have been absolutely void. If it was before void on another ground, filing it could not render it valid."

Mr. Hoffman says, "adopt the construction of the supreme court and the statute is this: A mortgage must be filed, when, no delivery having been made, it is void; or else it shall be void."

Not so in such a case, previous to the act of 1833, the mortgage was presumed to be void, but its good faith might be established by proof; after that act, it was absolutely void and incapable of explanation-nothing could cure the defect.

Now, had this matter been discussed by counsel, it is impossible that the distinction should have escaped their

acuteness, and Mr. Hoffman would have avoided a gratuitous conflict with the supreme court, in reference to a point on which their doctrine has been since sanctioned by the court of ultimate appeal.

Strongly contrasted in style with these opinions, are those of vice chancellor Whittlesey. The latter are brief and sparing in the authorities cited. Mr. Clarke's volume contains twice the number of cases in Hoffman's, in about the same number of pages. Many of them, it is true, are upon points of practice, and allowance is to be made for the fact that all the cases in Hoffman are of the unhappy fourth class.

Mr. Clarke in his notes gives the determination of the chancellor upon cases which have been reviewed by him on appeal, and also informs us when any doctrine in the text has been overruled by subsequent decisions of the chancellor. The first instance of this kind we notice is Hatch v. Eustaphieve, page 63, where vice chancellor Whittlesey decides, that when the oath of a defendant to his answer is waived, the answer is a mere pleading and need not be signed by the defendant. In Denison v. Bassford, 7 Paige, 370, the chancellor held the contrary doctrine. Neither of them allude however to what we deem the true reason for requiring the defendant's signature, that he may be restrained from falsehood by the knowledge that his answer, signed by himself, may be read in evidence against him as a written admission in any suit at law, even where the complainant in the bill is not the plaintiff. Without his signature it is a mere pleading, and of no effect except in the cause in which it is put in.

The case of Doyle, page 154, is a rare one that of an application on the part of the father of an illegitimate female child, praying for the custody of the child, and that the mother might be restrained from interfering with it, on the

11 Starkie's Evidence, 285 and 288, and cases there cited.

alleged ground of dissolute habits in the mother. The petitioner is living with his wife and family, into which he proposes to introduce the child. The prayer of the petition is denied by the vice chancellor, on the ground, that he can find no authority vested in any tribunal or officer, to save the innocent offspring of guilt from the ruinous consequence of a demoralising education, by giving the custody to the father or the mother, as the welfare of the child may seem to require, either in statute or common law; that such child is at common law nullius filius, and there is therefore no father who is bound to support it or can rightfully claim its care or custody.

This seems to us a partial view of the subject, looking as it does only to the rights of the father. The ancient and established jurisdiction of chancery, as the guardian of infants, lunatics, &c., is vested in it for the protection of the rights of those who are incapable of protecting themselves. It respects the interests of the infant, and when those interests require a change of custody, it transfers the guardianship to any person, parent or not, approved by the court. This doctrine is eloquently vindicated by the lord chancellor in the case of Wellesley v. Beaufort,' in answer to the argument, that it was only exercised as incidental to the custody of their property. And the case of Courtois v. Vincent' is an instance where the court appointed a guardian for an illegitimate child, and made an order regulating its intercourse with the mother. If the mother be an improper person to bring up the child, then has the father the same right to its custody as any other proper person, and no more.

We cannot omit the characteristic and honorable fact sta ted by the vice chancellor in this case: "I have been myself to see the child, in the absence of and without the knowledge of her mother." He gathered from that exam

13 Condensed English Chancery Cases, 1.

* 4 Same, 127.

ination that she loved her mother, and was well educated both in mind and heart. It is not every one who would have the honesty to pursue this course, or the manliness to avow it in print.

But we have no space for a criticism of cases, and must content ourselves with saying in general, that the opinions in Mr. Clarke's volume are clear and well reasoned, with so little of technicality as to be level in most instances to the comprehension of the laity. This is no small merit, and will be appreciated by the profession in New York, who, as we understand, are growing somewhat restive under the ponderous case-learning poured out in Wendell's Reports since the accession of one of the new justices. That vice chancellor Whittlesey should, within the space of two years, have dispatched the current business of his court - cleared the calendar, burdened with the accumulation of yearsand this with scarcely the reversal of a decree, is evidence enough of judicial ability as well as industry. The character and importance of that business can be judged of only by an inspection of the reports; but something may be guessed from the remark of senator Verplanck, which we quote for the purpose of commending the entire speech in which it is contained to the attention of our readers.

"If Edward Hyde, lord chancellor, at once the first law officer and prime minister of England, 'by kings protected and to kings allied,'-ay, or lord Somers, with all the glory of the revolution, or Talbot, or Cowper, had for a moment entertained jurisdiction in such causes as Reuben Hyde Walworth takes cognizance of as a matter of course, what an insurrection would it have occasioned in Westminster Hall. The king's bench would have lifted up its voice to the common pleas. The whole corps of judges and sergeants and barristers would have mustered to repel the inroad on the territory of the common law. Articles of impeachment would have been moved in parliament, and

the presumptuous Xerxes of the courts been driven back, ungowned, unwigged, and unchancellored."'

We exhort the reader of Mr. Clarke's volume not to set down any want of perspicuity to the vice chancellor's style, until he has carefully done what the proof reader should have done. That worthy, in addition to other scandalous errors, seems to have adopted the doctrine, that the punctuation is no part of a statute, and to have extended it to judicial interpretations of the law.

E. P. S. Rochester, N. Y.

ART. III.

THE LEGAL AND EQUITABLE RIGHTS OF INDIVIDUAL AND PARTNERSHIP CREDITORS; WITH REFERENCE TO THE TAKING IN EXECUTION OF PARTNERSHIP PROP. ERTY FOR THE DEBT OF A PARTNER.

THE ancient doctrine, in courts of law, was, that partners held undivided moieties of the partnership effects; in other words, shares proportioned in number and magnitude to the number of the partners. Thus, if there were only two partners, each owned one half of the partnership effects; if three, one third; if four, one fourth, and so on. So the courts decided, that in executions against a partner for his individual debt, the sheriff might seize and sell a moiety of the partnership effects, but that to levy on such moiety, he must seize the whole effects and deliver back the other moiety to the other partners; and, by the sale, the vendee became tenant in common with those partners. The case of Heydon v. Heydon, 1 Salk. 392, decided in the king's

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1 Speech on the amendment of the law and reform of the judiciary system, - advocating the amendments to the constitution now proposed by the legislature.