A. had sent a quanty of goods to B. on credit, as I presume, the case being silent on that head. B. received the goods, but shortly, or immediately after (the case is again silent as to time), finding he was on the eve of bankruptcy, he delivered a quantity of goods, (the greatest part of them the same he had received of A.) to C. for A's. use. Before A. accepted the goods, B. became bankrupt, and the commissioners claimed them. The court were of opinion that the goods were so vested in A. by the delivery for his use that the commissioners had no right to them. Lord Mansfield afterwards in Farnam y. Fisher, 1. Cowper' 117, approved of this opinion, but says the true reason of it was that B. had refused to accept the goods which A. had sent, and they remained the property of A. But this cannot be, for there was only a part of those goods given to C. with other goods for the use of A. For my part, I am apt to think that the true reason of the court's decision, was some vague ideas of equity, for which they sought reasons in law, as well as they could, it appearing to them that A. had a better right to the goods than the creditors, and that there was no fraud in the case. The recentness of the transaction between A. and B. on the first sending of the goods, probably induced them to come to this conclusion. it This case appears much better reported in Salk. 165. There appears that the goods which B. delivered to C. for the use of A., were all the same goods which he had sent to him before. In this report the reason which the court give for their decision is, that there was a sufficient consideration moving from A. to B. to hold or to take away from B. or his assigns, the power of countermanding, which implies that if there had been no such consideration, the order of delivery to B. might have been countermanded before acceptance. It is true the court cite the case of Buller v. 'Baker, 3 Co. 26, which I have before noticed, but this appears to have been by way of make-weight to support an opinion, of the grounds of which they were not perfectly clear. If we consider well the intrinsic merits of this case, we shall find that the decision of the court was perfectly equitable, the case was in fact nothing but the rescinding, by consent of the parties, a contract of sale, which the vendor would not have 124 Right of Fishery in the Waters of another State. [July, entered into, if he had known that the purchaser was on the eve of bankruptcy. Nothing would be harder, than to interpose here a strict right in favor of the bankrupt's creditors, and make them profit by the error of an innocent person. While the goods can be yet identified, it seems just that the vendor should have them back, and in some countries he is allowed in such cases to reclaim them. It is evident to me that the strong equity of this case was the true reason of the court's decision, however they may have tried to support it on principles of strict law, and without taking much pains to examine whether those reasons are fully satisfactory, it appears that the principle, that may be safely inferred from this decision, is, that if a man send goods to a person who is, unknown to him, on the eve of bankruptcy, and that person, before he actually becomes bankrupt, though in contemplation of it, but to save him from the general wreck, voluntarily returns the identical goods to him, it is a fair and just transaction which the courts will support by all the means in their power, on account of its intrinsic equity. 1. That the From all that I have above stated it follows: common law allows of no donations or gifts, without consideration, (inter vivos) except of such chattels as pass by delivery, and that the gift of such is not complete, until delivery by the donor and acceptance by the donee, till when it is, under all circumstances, subject to the revocation or countermand of the donor. 2. That all other kinds of donations, inter vivos, known to the civil law, cannot be made directly at common law, but the same object may be obtained by means of a bond or deed of transfer with a nominal consideration, so as to prevent the operation of the doctrine of nudum pactum. D. ART. VI-RIGHT OF FISHERY IN THE WATERS OF ANOTHER STATE. HAS the state of New Jersey a right to prohibit the citizens of Pennsylvania from fishing for oysters in the Bay of Delaware, within one marine league of Jersey shore? Whether independent nations have a right to prohibit strangers from fishing on their coasts, is a question which has long agitated the minds of publicists, and is yet undecided. Grotius decides in the affirmative and Puffendorff in the negative. See Grot. De Jure Belli ac Pacis, Book 2, c. 2, § 5, and Puffendorff on the Law of Nature and Nations, Book 4, ch. 6, § 5. The reason of those who maintain the negative is that fishes are inexhaustible, like air and water, and that it is unjust for one nation to appropriate to itself an article of food, which is necessary to all the world, and of which, by letting every one have his share, there still remains enough for themselves. They quote the well known passage of Ennius cited by Cicero in his Treatise de Officiis: Homo qui erranti comiter monstrat viam Quasi lumen de suo lumine accendat, facit They quote also Ovid in the 6th Book of Metam. line 350. Nec tenues undas; in publica munera.- And lastly Virgil in the 7th Eneid. -Littusque rogamus Innocuum, et cunctis undamque auramque patentem. The civil law of the Romans was very liberal in this respect. They held that the shores, indeed, belonged to the Roman people, but the sea in all its extent was common to all mankind. Litora in quæ populus Romanus imperium habet, populi Romani esse arbitror. Maris communem usum omnibus hominibus; sed id concedendum non esse, si deterior litoris marisve usu eo modo futurus sit. Dig. lib. 43, tit. 8, 1. 3. The principles and practice of Great Britain on this subject have varied from time to time. In the year 1602, the Danes attempted to prohibit the English from fishing on their coast. Queen Elizabeth sent an ambassador to them who in her name claimed the right of fishery as a natural right. It is,' said he, 'contrary to the law of nations to usurp a dominion over the seas. Princes have no jurisdiction there, except on the seas close to their shores, and that only for the purpose of keeping off pirates and enemies. The English,' added he, do not prohibit fishing in the Irish Channel, though both shores belong Camden's Annals, p. 839. Six years afterwards, to them.' VOL. XII.-NO. XXIII. 11 in 1608, the English endeavored themselves to prohibit the Dutch from fishing for herring on their coast. 7 Rapin, 58. They did not, however, succeed, for to this day the Dutch and French fish for herring on the coast of England and Scotland, even in the mouths of their harbors, and I have seen great complaints in English writers, that the Dutch draw a much greater profit from this fishery than the English, because they navigate their boats cheaper, and cure the fish better. The right of the Dutch to fish on the British coast is now generally allowed as a prescriptive right, by those who do not wish to enter into the general question of abstract right. On this principle the citizens of Pennsylvania have also a clear prescriptive right to fish for oysters on the coast of New Jersey. They have enjoyed it ever since the first settlement of these colonies, and it is too late now to question it. Surely if the British will not now venture to question the right of the Dutch to fish on their coast, still less can those of New Jersey dispute our right to fish on theirs. Although I have examined this question on these general principles, I am clearly of opinion that it is put an end to by the 2d section of the 4th article of our federal constitution, by which it is provided, that the citizens of each state'shall be entitled to all privileges and immunities of citizens in the several states. The privilege of fishing cannot be excluded from this general expression taken in its plain and obvious sense. D. ART. VIL-NATURE OF AN ASSIGNMENT FOR THE BENEFIT OF CREDITORS.-ANSWER TO THE CRITICISM UPON CUSHING'S TRUSTEE PROCESS IN THE AMERICAN JURIST, NO. 17. TO THE EDITORS OF THE JURIST: THE January number of the Jurist, for the year 1833, contains a short review of the Practical Treatise on the Trustee Process,' in which the writer objects to the views, taken by the author of that work, of the nature of an assignment for the benefit of creditors. Though the criticism, as well as the work, has been some time before the public, it is not, perhaps, too late to say a word in explanation of the doctrines referred to. The question is not one of much practical importance indeed, since, whatever may be our theoretical notions on the subject, the law is perfectly well settled, that an assignee is liable, as the trustee of the assignor, in favor of his dissenting creditors, for any eventual surplus of the property assigned, not wanted for the purposes of the assignment. Before proceeding to the explanation proposed, it ought to be premised, that the author was not considering the general subject of an assignment, as a contract or conveyance, nor the nature of that contract, as between the parties to it; but, in pursuance of the plan of his work, was treating of it, as controlled and limited by the attachment laws, and the actual jurisprudence of this commonwealth, and as between the assignee and the dissenting creditors of the assignor. His object was to ascertain the nature of the transaction, in respect only to the operation of the trustee process. The title of the section, in which the subject of assignments is noticed, is: Of the liability of one, who is in the possession of goods and effects, in which he has such a valid interest or property, as to be entitled to detain them against the owner or his creditors.' An assignee has such a possession, and therefore the case of an assignment, so far as the assignee might become a trustee, was necessary to be considered. In the investigation of this branch of the general subject, it was obvious, from all the cases, that the courts had never regarded the case of an assignment as furnishing any peculiar ground of liability. On the contrary, it was expressly asserted, that the assignee's liability was to be ascertained and determined by the general principles of the decisions, in reference to other transactions, and out of which the system of trustee attachment had grown up.. In order, therefore, to determine the character of an assignment, so far as relates to the assignee's liability as trustee, it became necessary to examine the other cases of the possession (with or without title or lien of any kind) of personal property, and the principles upon which the possessors had been adjudged trus |